Reviving Implied Confidentiality
44 Pages Posted: 8 Aug 2012 Last revised: 12 Aug 2017
Date Written: February 1, 2013
The law of online relationships has a significant flaw-it regularly fails to account for the possibility of an implied confidence. The established doctrine of implied confidentiality is, without explanation, almost entirely absent from online jurisprudence in environments where it has traditionally been applied offline, such as with sensitive data sets and intimate social interactions.
Courts' abandonment of implied confidentiality in online environments should have been foreseen. The concept has not been developed enough to be consistently applied in environments such as the Internet that lack obvious physical or contextual cues of confidence. This absence is significant because implied confidentiality could be the missing piece that helps resolve the problems caused by the disclosure of personal information on the Internet.
This Article urges a revival of implied confidentiality by identifying from the relevant case law a set of implied confidentiality norms based upon party perception and inequality that courts should be, but are not, considering in online disputes. These norms are used to develop a framework for courts to better recognize implied agreements and relationships of trust in all contexts.
Keywords: confidentiality, implied confidentiality, privacy, contract, Internet
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By Ryan Calo