Class 7

            Privacy torts are a relatively recent development. Samuel Warren and Louis Brandeis argued for the recognition of some kind of privacy tort in a pathbreaking article, The Right to Privacy, in 1890, and courts generally (but not without controversy) recognize four privacy torts. Of course, privacy violations have rapidly multiplied. Major data breaches—security incidents in which hackers access information without consent—happen regularly. Social media giants like Facebook and telecom providers like Verizon regularly harvest and sell user data without users’ being aware or giving informed consent. A 2016 study by the Data and Society Research Institute estimates that 1/25 Americans have been victims of revenge porn, the nonconsensual sharing of images. Privacy torts may be put to new uses. We will consider if the torts we currently have are up to the task.

            Some privacy torts deal with the revelation of embarrassing but true information. These cases, involving the public disclosure of private facts, force courts to balance an individual’s interest in shaping their own identity or getting a second chance at life with others’ ability to speak truly about that individual’s past. Public disclosure cases often also expose questions about what anyone has a right to know. Courts assume that some information is intrinsically private, but how should we define that category of information? Does it matter if the plaintiff is a celebrity? If the plaintiff voluntarily (but selectively) discloses what seems like private information online?

            A second privacy tort, intrusion, addresses snooping. Here, courts are concerned not just with the confidentiality of the information disclosed but also with the way the defendant acquired the information. Intrusion cases ask what kinds of information gathering are reasonable and customary versus inappropriate and damaging. These cases also ask what courts mean by privacy. Should the courts primarily protect information that the plaintiff has kept secret? Or does privacy have more to do with control over information—even if the plaintiff chooses to reveal it under some circumstances?

            Breach of confidence, a third privacy tort, most typically applies in medical settings when physicians disclose information that they were told in confidence. Of course, the doctor-patient relationship is unique in many ways. But do you think this tort should apply more broadly? To breaches of confidence between former partners or family members?

            A final tort, appropriation of image, more closely resembles an intellectual-property claim. This tort applies against defendants who use a plaintiff’s image or likeness for profit—and without the plaintiff’s consent. Most obviously, appropriation protects the right of artists to profit from their own creative work, including the image they have carefully curated. But should appropriation claims extend to other interests, or to plaintiffs who are not celebrities? Are there interests in controlling one’s image or identity that have no connection to profit?