Privacy Remedies

36 Pages Posted: 25 Apr 2018 Last revised: 9 Dec 2018

See all articles by Lauren Henry Scholz

Lauren Henry Scholz

Florida State University - College of Law

Date Written: April 10, 2018

Abstract

When consumers sue companies for privacy-intrusive practices they are often unsuccessful. Many cases fail in federal court at the motion to dismiss phase because the plaintiff has not shown the privacy infringement has caused her concrete harm. This is a symptom of a broader issue: the failure of courts and commentators to describe the relationship between privacy rights and privacy remedies.

This Article contends that restitution is the normal measure of privacy remedies. Restitution measures relief by economic gain to defendant. If a plaintiff can show the likely ability to recover in restitution, that should be sufficient to pass muster at the motion to dismiss phase even if the court is unconvinced that the plaintiff could show a case for compensatory damages flowing from harm.

This argument intervenes in the scholarly literature in two ways. First, it supports the realist perspective that remedies are constitutive of rights. The election of restitution as a remedy suggests that privacy should be conceptualized in tort as quasi-property, and that contract and/or restitution claims should be a standard part of privacy infringement pleadings. Second, it challenges the view that defining specific and stronger privacy rights at law would be sufficient to increase privacy protection. If any privacy rights are to exist at all, they must be linked to proportional, accessible remedies.

Keywords: privacy, torts, contracts, private law theory, remedies, law & technology, norms

Suggested Citation

Scholz, Lauren, Privacy Remedies (April 10, 2018). Indiana Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3159746

Lauren Scholz (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-645-0278 (Phone)
850-644-5487 (Fax)

HOME PAGE: http://www.law.fsu.edu/our-faculty/profiles/scholz-lauren

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