Mainstreaming Privacy Torts
Much as crushed hands and burns were defining accidents of the Industrial Age, information disclosures and other privacy problems are characteristic hazards of the Information Age. Despite the prevalence of privacy injuries that can be far worse than those of the past, modern privacy torts often fail to address them. I recently posted on SSRN a draft of my article Mainstreaming Privacy Torts (forthcoming in California Law Review), which offers strategies for ensuring privacy tort law’s continued efficacy. I would love comments on the piece. Here is the abstract:
In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might recover for trivialities.
Unfortunately, privacy tort law is ill-equipped to address these changes. Prosser built the modern privacy torts based on precedent and a desire to redress harm. Although Prosser’s privacy taxonomy succeeded in the courts because it blended theory and practice, it conceptually narrowed the interest that privacy tort law sought to protect. Whereas Warren and Brandeis conceived privacy tort law as protecting a person’s right to develop his “inviolate personality” free from unwanted publicity and access by others, Prosser saw it as addressing specific emotional, reputational, and proprietary injuries caused by four kinds of activities prevalent in the twentieth century. Courts have too often rigidly interpreted the four privacy torts, further confining their reach. As a result, Prosser’s privacy taxonomy often cannot address the privacy interests implicated by networked technologies.
The solution lies in taking the best of what Prosser had to offer – his method of borrowing from doctrine and focusing on injury prevention and remedy – while ensuring that proposed solutions are transitional and dynamic. Any updates to privacy tort law should protect the broader set of interests identified by Warren and Brandeis, notably a person’s right to be free from unwanted disclosures of personal information so that he can develop his personality. While leaking databases and certain online postings compromise that interest, we should invoke mainstream tort remedies to address them, rather than conceiving unattainable new privacy torts. In addition to supplementing privacy tort law with traditional tort claims, courts should consider the ways that the internet magnifies privacy harms to ensure law’s recognition of them.