'The Limits of Tort Privacy' by Neil Richards in (2011)
Journal of Telecommunications and High Technology Law genuflects to the US First Amendment in arguing that -
The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict with First Amendment values. And when First Amendment values and tort privacy conflict, First Amendment values should prevail virtually all of the time. The disclosure tort will retain limited utility in the electronic environment, but privacy in the age of information and social media requires new strategies and new legal tools. Some of these strategies might include tort privacy as presently understood, but others require new approaches. These approaches can take either a broader look at tort privacy, including new torts and new theories of injury beyond emotional harm, or they can include new conceptions of privacy altogether, such as confidentiality law.
He concludes that
The intrusion tort shares more with the disclosure tort than a common origin in the Warren, Brandeis, and Prosser traditions. It shares both the element of private information and the element of high offensiveness to a reasonable person, making it another illustration of Post‘s argument that the privacy torts are best understood as remedies for gross breaches of social etiquette. But disclosure and intrusion are different breaches of good manners – whereas disclosure protects against emotionally harmful gossip, intrusion often protects against emotionally harmful collection of the gossip, by a secret recorder, secret listener, or other intruder. Because the elements of the tort do not create civil liability for speech, thereby directly affecting the scope of public debate, the intrusion tort does not implicate heightened First Amendment concerns.
Moreover, if we are interested in protecting against what we colloquially call ―invasions of privacy ― the intrusion model is a better fit with our intuitive linguistic understandings of that metaphor. Secret cameras would seem to intrude on our privacy more directly than publications about us that hurt our feelings. Thus, as we structure legal protections to protect private information from disclosure, the law should focus on preventing unwanted collections or accumulations of information, rather than preventing the dissemination of already-collected information.
Going beyond intrusion, there are other ways to remedy privacy harms that create fewer constitutional problems than the disclosure tort. We have become accustomed to thinking about privacy in terms of Prosser‘s four torts, but there are other torts sharing elements with some or all of the privacy torts that can also be used to regulate information. For example, there is a close analogy between intrusion and trespass, with the primary difference being that intrusion protects emotional harm from invasions into private areas or relationships, while trespass protects property rights from similar invasions. But trespass is in reality a kind of privacy tort as well – protecting the privacy of the home from invasion, and another tort that creates fewer First Amendment problems than disclosure.
Breach of confidence is another privacy tort that has been underappreciated as a tool to regulate disclosures of embarrassing or harmful information. Recall that in the press privacy cases, a less restrictive means than punishing disclosure was to prevent the press from collecting the information in the first place, rather than allowing the state to directly censor the speech under a disclosure theory. The press (or others) can obtain information by trespassing or intruding into private areas, or it can obtain it through a leak. Both the breach of confidence tort or confidentiality rules more generally allow the regulation of disclosure in a way that is less troubling from a First Amendment perspective than the disclosure tort, because confidentiality remedies not the emotional injury of published words, but instead the breach of an assumed duty. Confidentiality has limits, too; most notably, it typically applies only to duties that are voluntarily assumed. But unlike the limits of disclosure, the limits of confidentiality enhance its consisistency with our First Amendment commitments to robust public debate.
The issues of press and privacy raised by the rise of social networks, incidents like the Clementi suicide and WikiLeaks are likely to become some of the most important and difficult facing our society in the Information Age. Of course, law will not provide all the answers, but it must provide some answers, if only to regulate the competing demands of publicity and non-disclosure that these cases raise. Law will be necessary to determine whether a case is more like Ravi's tweeting in the Clementi suicide, or more like the tweets of the democracy protesters in Cairo's Taksim Square. At the same time, it is important to realize that the harms from privacy are real. Just because the disclosure tort is largely unconstitutional, it does not mean that many of the psychological injuries it seeks to remedy are not substantial. A broader and more imaginative conception of tort privacy can hopefully help us to protect against some of those harms, either through tort law or other forms of law modeled on tort, and also to avoid the conflict with First Amendment values that the disclosure model produces.
