Remedies for Breach of Privacy: A Study of a Different Hedgehog

Abstract

This article was written as stating and commenting on the American law of remedies in the tort law of privacy. It will appear in a book edited by Jason Varuhas and Nicole Moreham to be published in 2018 by Hart Publishing (UK). After examining the theoretical basis of American remedies law with its differences from, and similarities to, the theoretical foundations in other common law and civil law jurisdictions, the paper probes the remedies as shaped by the substantive interests of protection of property and the autonomy enhancing purposes of privacy protection. Each of the traditional categories of the tortious protection of privacy as fashioned by William Prosser touch free speech interests. To the extent that privacy protections trench on those free speech interests, as realized in the US Supreme Court’s aggressive first amendment jurisprudence, the remedies are thus quite idiosyncratic compared with remedies elsewhere. For example injunctive relief is crimped and damages are constricted. The remedial law must be understood against the first amendment to which every other interest bends its knees.