The Limits of Tort Privacy

29 Pages Posted: 13 Jun 2011 Last revised: 10 Nov 2011

Neil M. Richards

Washington University in St. Louis - School of Law; Yale Information Society Project; Stanford Center for Internet and Society

Date Written: June 10, 2011

Abstract

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict with First Amendment values. And when First Amendment values and tort privacy conflict, First Amendment values should prevail virtually all of the time. The disclosure tort will retain limited utility in the electronic environment, but privacy in the age of information and social media requires new strategies and new legal tools. Some of these strategies might include tort privacy as presently understood, but others require new approaches. These approaches can take either a broader look at tort privacy, including new torts and new theories of injury beyond emotional harm, or they can include new conceptions of privacy altogether, such as confidentiality law.

Keywords: Privacy, First Amendment, Free Speech, Social Media, Disclosure, Confidentiality

Suggested Citation

Richards, Neil M., The Limits of Tort Privacy (June 10, 2011). Journal of Telecommunications and High Technology Law, Vol. 9, 2011; Washington University in St. Louis Legal Studies Research Paper No. 11-06-06. Available at SSRN: https://ssrn.com/abstract=1862264

Neil M. Richards (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Yale Information Society Project ( email )

New Haven, CT 06520
United States

Stanford Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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