Privacy Standing

Abstract

Courts struggle with how to identify and assess privacy harm and privacy injuries. This uncertainty has produced a Circuit split (and lower court split) on the requisite privacy injury sufficient for standing, recently addressed by the Supreme Court in TransUnion. This Article suggests a framework for distinguishing which actions involve harm to people’s privacy interests and which do not. It provides courts with guidance to assess privacy injuries and proposes a solution to the split.
To address privacy standing, courts should do three things. First, inquire whether someone faced a loss of privacy. Second, identify whether such a loss produced privacy harm by looking at normative aspects. Third, determine whether there is an actionable privacy injury by looking at tort law and statutory privacy to see if there is a common law wrong or statutory wrong.
The proposed framework for determining privacy harm has theoretical and practical benefits. First, it sheds light on the relationship between privacy loss and actionable privacy injuries. It is well-suited for evaluating grey areas by showing how privacy claims can be evaluated on a continuum. Second, it gives courts a tool to identify and navigate privacy harm, which is an increasingly relevant impediment to private rights of action in statutory privacy and which courts have manifested they need.

Keywords: Privacy law, privacy harm, class actions, privacy class actions