Privacy lawsuits in the United States usually seek damages against the media for revealing embarrassing but true facts — the so-called “disclosure tort” — but this is a “poor vehicle for grappling with the problems of privacy and reputation in the digital age,” says Neil M. Richards, JD, privacy law expert and professor at Washington University in St. Louis School of Law.
“The disclosure tort has never really worked successfully,” he says.
“It’s largely unconstitutional. The problem with suing the press for publishing the truth is that it’s their job. And the government can’t be in the business of telling the press what’s in the public interest and what’s private.
“With the Internet, we have many more publication opportunities. Ordinary individuals, whether they have a blog, whether they’re speaking on a social network or they’re publishing on the comments page of a newspaper, have much more of a claim to say, ‘We’re publishing too, we are the press.’”
Richards also says that the U.S. does not have a clear definition of privacy.
“Privacy can mean disclosures by the press, identity theft, the publication of information in consumer databases, cookie tracking or behavioral advertising. Privacy has many definitions, but American law currently uses tools developed in the 19th and mid-20th centuries to deal with the problems of the 21st. This is a problem,” Richards says.
In “The Limits of Tort Privacy,” an article published in a recent issue of the Journal of Telecommunications and High Technology Law, Richards says that for the past 120 years, discussions of privacy in American law have been dominated by the tort conception of privacy advanced in 1890 by Samuel Warren and Louis Brandeis in their article “The Right to Privacy.”
“American lawyers are conditioned so that when they think about privacy, they think about hurt feelings, they think about publication, and they go to the disclosure tort tool first when there are actually other legal tools that are more useful, and which better track the actual problems that are at issue and also are less threatening to the First Amendment to the free exchange of ideas and information,” he says.
Richards notes that there are two existing privacy law concepts that may be good supplements or even replacements to the disclosure tort.
“Europeans have a concept called data protection that isn’t about hurt feelings at all,” he says. “It’s about regulating the flow of personal information, particularly commercial information in consumer databases. This type of regulation would run into far fewer First Amendment problems.”
Another option is using privacy law’s existing intrusion tort, which punishes invasions of privacy, rather than the disclosures of embarrassing information.
“Intrusion punishes an invasion into a place or relationship that is considered private,” he says.
“Peeping Toms or secret video cameras are examples of punishable intrusion.
“In the Tyler Clementi case, the core of the injury in the Rutgers College student’s case was the intrusion — the secret recording of sexual activities. This is invasion of privacy as we understand it colloquially, and it’s what the law should focus on.”