Tort's Role in Protecting Privacy: Current and Future Directions

Abstract

Outside the United States, the common law has not yet recognised any overarching tort of “invasion of privacy”, nor is “privacy” the compendious notion that underlies protection of various interests in the United States. Yet there is substantial protection of privacy from the common law and existing legislation. If there is a gaping hole in that protection it may be because of a soundly-based caution or a divergence of views on whether it would be in the community’s interests to fill it. Or it may be because the law has not yet caught up with demands for protection which the community has come to regard as legitimate. This chapter, published in Degeling, Edleman and Goudkamp Torts in Commercial Law, Thomson Reuters 2011, looks at what legal and remedial consequences flow from a wrongful invasion of privacy, by means of intrusion or disclosure, under the current law. It is impossible to do this without straying outside of tort law as much confidential information is protected by contract or the courts of equity. Is there any necessity to fashion a new tort action if, say, equity already meets the need? Should the common law recognise liability for emotional distress caused by intentional disclosure of private facts and for invasions of privacy by harassment that falls short of the tort of assault?

Keywords: privacy, tort, equity, confidential information, damages for emotional distress

JEL Classification: K10, K13, K30