Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms

43 Pages Posted: 1 Dec 2016 Last revised: 12 Apr 2017

See all articles by Erin Carroll

Erin Carroll

Georgetown University Law Center

Date Written: 2017

Abstract

In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.

Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write and that underlie Facebook, Twitter, Instagram, and other platforms are not only influencing what we read but are prompting journalists to approach their craft differently.

While the Restatement (Second) of Torts says that a glance at any morning newspaper can confirm what qualifies as newsworthy, this article argues that the modern-day corollary (which might involve a glance at a Facebook News Feed) is not true. If we want to meaningfully balance privacy and First Amendment rights, then courts should not be so quick to defer to the press in privacy tort cases, especially given that courts’ assumptions about how the press makes newsworthiness decisions may no longer be accurate. This article offers several suggestions for making better-reasoned decisions in privacy cases against the press.

Keywords: First Amendment, Privacy, Media

JEL Classification: K13, L82

Suggested Citation

Carroll, Erin, Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms (2017). Georgetown Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2877335 or http://dx.doi.org/10.2139/ssrn.2877335

Erin Carroll (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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