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The 'New' Privacy and the 'Old': Is Applying the Tort Law of Privacy Like Putting High-Button Shoes on the Internet?

Communication Law and Policy, Forthcoming

NYU School of Law, Public Law Research Paper No. 12-21

34 Pages Posted: 28 Mar 2012 Last revised: 13 Mar 2014

Diane Leenheer Zimmerman

New York University School of Law

Date Written: February 28, 2011

Abstract

Commentators have been critical of the inadequacies of the privacy tort law to deal with personal information circulated on the internet, particularly on social networking sites. This paper argues that, although technological change has created new concerns about privacy, the concerns are not fundamentally different from those raised by the "old" media, and they do not render the existing law, with its delicate balance between privacy and free speech, beside the point. The same considerations remain in play that have been recognized for more than half a century. There are, however, certain new elements that contribute to the anxiety about privacy and that, at the same time, make it more difficult to know how to respond to them. First is a distinct change in what individuals are actually willing to reveal to a broad range of acquaintances and strangers; second is the disintermediation of the "editor." Today, much of what is "published" is published by individuals who do not filter their decisions through the old protections of industry standards and who are not constrained by the need not to offend a paying audience. Both make the exposure of highly intimate or embarrassing material more likely, but do not necessarily create a case for giving those injured by the exposure greater rights to control its publication and use after the fact. Solutions, therefore, must be found outside the realm of privacy tort law.

Suggested Citation

Zimmerman, Diane Leenheer, The 'New' Privacy and the 'Old': Is Applying the Tort Law of Privacy Like Putting High-Button Shoes on the Internet? (February 28, 2011). Communication Law and Policy, Forthcoming; NYU School of Law, Public Law Research Paper No. 12-21. Available at SSRN: https://ssrn.com/abstract=2030409

Diane Leenheer Zimmerman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 322, Vanderbilt Hall
New York, NY 10012-1099
United States
212-998-6250 (Phone)
212-995-4585 (Fax)

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