Privacy’s Other Path

confidential5a.jpgProfessor Neil Richards (Washington University School of Law) and I have posted on SSRN our new article, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal __ (forthcoming 2007). The article engages in an historical and comparative discussion of American and English privacy law, a topic that has been relatively unexplored in America.

Although the tort law of privacy in America and England arose from the very same common law cases, the law has developed on very different paths in each country. For example, in England, a friend, spouse, lover, or nearly anybody else who violates a confidence can be liable. In America, people are said to assume the risk of betrayal for many breaches of confidence; the law, however, protects against the invasion of privacy by strangers. How and why did the law develop so differently in America and England? Our new article explores the answers to these questions and debunks many myths in the conventional wisdom about privacy law.

You can download and read the article for free on SSRN. If you don’t like it, we provide a full money-back guarantee. With a deal like this, how can you lose?

Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis “invented” the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s “inviolate personality.” English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

We welcome any comments and suggestions for the article.

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9 Responses

  1. Privacy Scholar says:

    Hasn’t Rochelle Gurstein already discussed this very point in her excellent “Repeal of Reticence”?

  2. Gurstein’s book (click here for a description of the book) is primarily a discussion of public discourse, free speech, sex, and prudery. Our article is about conceptions of privacy and the development of the law of privacy and confidentiality. She does not cover the same territory.

  3. Privacy Scholar says:

    You obviously haven’t read the book, which is a little bit surprising. It contains a very thorough and lengthy anthropology of “privacy” borrowing primarily from Hannah Arendt’s The Human Condition. Gurstein makes a compelling argument that “privacy” has been distorted by it’s modern advocates (Brandeis & Co.) to favor a hyper kind of “exposure”–the very opposite of privacy.

  4. Privacy Scholar — you obviously haven’t read our paper, as it has little do with anything you say above.

  5. Privacy Scholar says:

    If conceptions of privacy and the development of the law of privacy and confidentiality have nothing to do with your paper, then you are correct.

  6. Privacy Scholar — Well, if the broad topic is conceptions of privacy, then hundreds of works have been written on this topic. There are countless critiques of Warren & Brandeis. There are countless historical accounts of the development of privacy. Our paper is making a specific argument about the history and development of two bodies of law — privacy and confidentiality and America and England. It has nothing to do with Arendt; it is not purporting to be a general anthropology of privacy; it is not about arguing that Warren and Brandeis distorted the law to favor a hyper kind of exposure. If you read our paper, you’d actually understand our argument and what we’re covering and what we’re not. Unfortunately, it seems as though instead of trying to have a productive conversation, you’re merely trying to agitate. Goodbye.

  7. Dissent says:

    I thought your paper was fascinating, Dan, and am grateful that it’s available online in full-text.

    As a non-lawyer privacy advocate, I’m just beginning to mull over the implications of where we go from here. Apart from more lawyers filing suit on the basis of confidentiality as opposed to privacy, can you enlighten me more on what implications you see for what I would have called “privacy legislation?”

    Suppose we were to say that it doesn’t matter whether you communicate your details to a physician, an insurance company, an employer, or a business, etc. — that all of those relationships (and we would expand the list) will now carry with them an expectation that personal information transmitted is to be considered obtained in confidence and that there would be an individual cause of action in the event of a breach, even if no financial harm accrued. I can just imagine how corporate America would react to that…

    Maybe we can ask England to take us back so that we can get a “do-over?” 🙂

  8. Dissent,

    Interestingly, the US and English law are converging. Breach of confidentiality is now a recognized in most jurisdictions. In the past 30 years, it has really grown. It is still not quite as broad and robust as the English version, but it is heading in that direction. One of the main problems is that the tort often doesn’t seem to be plead when it seemingly is applicable.

    On the English side, the breach of confidence tort has gradually expanded to encompass more and more territory that would ordinarily be covered by the Warren and Brandeis torts. The HRA has furthered the convergence, pushing England to enlarge and loosen the tort even more.

    There are some fascinating normative issues about just how far confidentiality protections should extend. Neil Richards and I are working on exploring these issues in a subsequent work.

  9. alan rassaby says:

    I thought that this was a terrific article – I trained in English and Australian law and practise in the US, and I have always been curious about the absence of a US law on breach of confidence. This explains it very well. What got me thinking about it again recently is the problems that I have been having stopping our employees from revealing confidential information to Wall Street analysts. I am the GC of a public company. Analysts frequently call our employees in an attempt to get information from them that the analysts know is confidential, and that they can then publish. The question is whether the analysts violate a law when they extract this information and then publish it. The answer appears to be no under US law, but maybe even under English law as it is not clear that we suffer a detriment when the information is published. Anyway – thank you for your excellent analysis.