The Privacy Torts (original) (raw)

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The Privacy Torts

The most influential source of privacy as a part of American legal culture was an article called The Right to Privacy in the 1890 Harvard Law Review. Written by Samuel D. Warren and Louis D. Brandeis, the article was inspired by the rise of newspapers, photography, and other technologies with the potential to expose people�s images and personal information to the public. Warren and Brandeis compared privacy to the law of defamation, to physical property rights, to intellectual property, and to the law of contract.

Their key concern, it is important to note, was with _publicity_given to sensitive personal information � undesirable and embarrassing scrutiny of private life by the press and public. Privacy as discussed by Warren and Brandeis did not extend to matters that were of legitimate public or general interest. And publication of facts by the individual concerned, or with that person�s consent, cut off that person�s right to privacy in that information.

In 1960, eminent legal scholar William L. Prosser documented how privacy as a legal concept had come to constitute four distinct torts. That is, a person whose privacy has been invaded could sue the invader for damages. These torts still exist today, and are contoured as four separate branches:

Intrusion upon seclusion or solitude, or into private affairs;
Public disclosure of embarrassing private facts;
Publicity which places a person in a false light in the public eye; and
Appropriation of name or likeness.

The privacy torts are often forgotten or deliberately ignored by some privacy advocates. They should not be. Litigation is arguably far superior to administrative regulation as a means to protect privacy while preserving innovation. And as the U.S. Department of Commerce said in a July, 2000 memorandum to the European Commission, "The right to recover damages for invasion of personal privacy is well established under U.S. common law."

Links:

Damages for Breaches of Privacy, Legal Authorizations and Mergers and Takeovers in U.S. Law Memorandum to European Commission, U.S. Department of Commerce (July 14, 2000)

Regulation Through Litigation: Assessing the Role of Bounty Hunters and Bureaucrats in the Quest For Consumer Protection And Human Health And Safety, Institute for Legal Reform, U.S. Chamber of Commerce (February 23, 2000) (PDF transcript available from the Manhattan Institute)

The Right to Privacy by Samuel D. Warren & Louis D. Brandeis, Harvard Law Review (December 15, 1890)

Comments? comments@privacilla.org (Subject: PrivacyTorts)

[updated 12/19/00]