Saving Privacy from History
77 Pages Posted: 2 Oct 2012 Last revised: 18 Dec 2014
Date Written: January 15, 2012
We are in the midst of a privacy panic. We have been panicking about privacy for over a hundred years now, since at least 1890, when Warren and Brandeis wrote their famous article, “The Right to Privacy,” the foundational text of the tort law of privacy. Warren and Brandeis envisioned the “right to privacy” as a means to combat what were perceived as the serious threats to privacy and identity posed by the new media of the time – yellow journalism, gossip columns, Kodak photography. Our privacy concerns are more intense now, with good reason – new technologies can track our thoughts, our movements, and the intimacies of our lives, and expose them to a global audience in an instant.
The Warren and Brandeis tort has proven inadequate to address the harms caused by the exposure of private life in the mass media. It is especially ill-suited to address the needs of the twenty first century, when new technologies magnify privacy injuries. There have been numerous suggestions for legal reform, yet these proposals have ignored the lessons of history. This article argues that one important key to the reform of the tort law of privacy lies in understanding its historical evolution.
This work offers a sociolegal history of the privacy tort from the late nineteenth century to the present. It suggests that privacy law, as it currently exists, rests on conceptual foundations that were created several decades ago, between roughly 1930 and 1960. It was built on assumptions about the social value of privacy and publicity, the public functions of the mass media, the capabilities and limitations of existing technologies, and the human costs of mass exposure that were specific to that historical era. Society, media, and technology have transformed, yet the law is still moored to its mid-twentieth century foundations. In particular, extra-legal forces that once restrained potentially egregious invasions of privacy by the media – social norms of privacy and journalistic ethics – have weakened, yet the law’s protection against unwanted mass exposure of private life remains minimal. Privacy law should be saved from its past.
Keywords: privacy, mass media law, freedom of speech
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