Increasingly more 'ordinary' Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.West claims that "autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law", arguing that attempts to balance autobiographical speech and information privacy using property or contract law have failed. In response, she proposes a "new, workable framework" to resolve that conflict, by reexamining the US tort of public disclosure of private facts.
The paper argues that
the current over-emphasis on whether the information disclosed was “newsworthy” is misplaced and likely unconstitutional. The tort's protection of individual privacy, however, can be reconciled with the First Amendment by interpreting the 'offensiveness' element to include an examination of the purpose of the disclosure. A number of courts have implicitly adopted this view and, in doing so, are reflecting community norms that disclosures made for sufficient justifications - such as sharing newsworthy information or, I submit, engaging in autobiographical speech - are not highly offensive. Disclosures made for purely voyeuristic reasons, however, are highly offensive.
This 'justified disclosure' approach encompasses community norms and expectations in a way that is more predictable and fair than other proposed frameworks. It further promises to be applicable not just to the conflict between autobiographical speech and information privacy but to broader disputes involving privacy and speech.
