Striking a Balance Between Privacy and Online Commerce
2013 Utah Law Review OnLaw 168
7 Pages Posted: 10 Jun 2013 Last revised: 11 Sep 2013
Date Written: 2013
It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In "Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment" Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. By themselves, the three perspectives articulated by Professor Ghosh do not pinpoint how to balance data commercialization and online privacy. Courts deciding data privacy cases will need to go further, building doctrinal structures that specifically take these policy interests into account. This does not mean, however, that courts will need to reinvent the wheel. In this Response, I explore an already existing doctrinal structure for considering rights in information. I identify one intellectual property regime — right of publicity — and two of its particular doctrinal innovations — the “transformativeness” test and the “newsworthiness” test. These tests are used by courts to determine when an entity’s First Amendment right to speak should trump a celebrity’s property interest in her name, likeness, or other information surrounding her persona. The tests are not perfect, but they may prove useful to future courts struggling to reconcile new privacy regulations with the expressive interests of commercial speakers.
Keywords: Sorrell, Ghosh, publicity, privacy, First Amendment
Suggested Citation: Suggested Citation