Retrievable Images on Social Media Platforms: A Call for a New Privacy Tort
59 Pages Posted: 19 Feb 2020 Last revised: 23 Oct 2020
Date Written: February 6, 2020
The recognition of a right of privacy in Warren and Brandeis’s famous article has long been celebrated and lamented. It is celebrated because privacy is a central feature of individual well-being that deserves legal protection. It is lamented because the protection they contemplated, and that is actually provided by the law, is quite modest. Modern technology, especially social media platforms, has only raised the stakes. Anytime one goes out in public, one risks having one’s image captured and shared worldwide, leaving us with little or no control over how we are perceived by others.
This Article argues for the recognition of a new privacy tort: the tort of unwanted broadcasting. It would allow a person whose image is, without permission, shared widely on one or more social media platforms that has an enduring retrievable character, to recover damages from a person who posts it. While in some respects novel and far-reaching, the unwanted broadcasting tort has a solid grounding in privacy theory and doctrinal roots in English case law. This Article also shows that this tort can be fashioned in a manner that renders it consistent with First Amendment principles.
Keywords: Privacy, Torts, Social Media, Right to Erasure, Right to be Forgotten, Unwanted Broadcasting, Right to Publicity, Appropriation of Likeness, False Light, Internet Law, First Amendment, Section 230, CDA, Public Disclosure of Private Facts, Privacy in Public, Facebook, Facial Recognition, AI
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