Privacy torts seem to be the most obvious approach to the legal regulation of
online privacy. However, as currently framed, they have significant limitations, most of
which have been identified above.
210The Restatement (Second) of Torts currently
recognizes four distinct privacy torts.
211Unfortunately, they are uncohesive in terms of
coverage and have been criticized by free speech advocates.
212Nevertheless, some of the
privacy torts could be modified to better accommodate the realities of online conduct
involving video content. Professor Sánchez Abril has suggested strengthening the tort
relating to public disclosure of private facts
213to operate more effectively in the OSN
205
Dennis D Hirsch, Protecting the Inner Environment: What Privacy Regulation can Learn from
Environmental Law, 41 GEORGIA LAW REVIEW 1 (2006); Deirdre Mulligan and Joseph Simitian, Assessing
Security Breach Notification Laws, work in progress, copy on file with the author.
206
Hirsch, supra note ___, at 8; Jonathan Remy Nash, Framing Effects and Regulatory Choice, 82 NOTRE DAME LREV 313, 320 (2006) (explaining command and control regulatory approach in the
environmental context as a government setting a particular standard with which targeted actors are required to comply
207
Hirsch, supra note ___, at 8.
208
id., at 23 (“The privacy injuries of the Information Age are structurally similar to the environmental damage of the smokestack era. Two key concepts that have bee used to understand environmental damage – the “negative externality” and the “tragedy of the commons” – also shed light on privacy issues.”); 63 (identifying other similarities between environmental regulation and information regulation, including the fact that market players regulated by both areas of law: “undergo rapid change, face stiff competition, and have the capacity for socially beneficial innovation.”)
209
The kinds of technologies that might be incorporated into OSN services in this respect are taken up in more detail in Part IV.A.6 infra.
210
See discussion in Part II.A.2 supra.
211
Restatement (Second) of Torts, §§ 652A-E (1997).
212
Zimmerman, Requiem, supra note ___ (suggesting that torts prohibiting true speech cannot be reconciled with the First Amendment); Volokh, supra note ___ (suggesting that tortious approaches to protecting privacy cannot be reconciled with the First Amendment, but that contractual approaches may avoid this criticism).
213
Restatement (Second) of Torts, § 652D (“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”)
context.
214She notes that the public disclosure tort developed at a time when the law was
concerned with intrusions into physical spaces.
215It is therefore not well suited to virtual
environments.
216She suggests re-focusing enquiries about public versus private
activities, in the context of this tort, to better meet the needs of the information society.
Notably, she advocates: (a) thinking about zones of confidentiality created by system
architecture, agreements and relationship bonds, rather than physical walls;
217(b)
categorizing privacy harms that ensue from information disclosure rather than
categorizing certain subject matter as per se private;
218and (c) thinking in terms of
overall accessibility of online information rather than in terms of whether it was
completely secret or secluded.
219Related to the privacy torts is the right of publicity tort. In fact, the publicity tort
closely tracks one of the privacy torts – the misappropriation tort.
220Both torts prevent
the use of someone else’s name or likeness for financial benefit.
221Thus, neither tort
effectively covers unauthorized posting and dissemination of photographs on OSNs.
Most of these uses are not for commercial gain, but merely for amusement and
discussion.
222The misappropriation-based torts might be expanded to help individuals
control uses and dissemination of their images online:
223for example, they could cover
unauthorized disseminations of an individual’s image even in the absence of a profit
motive. Of course, there would have to be some counterbalancing forces put in place to
ensure that speech was not unnecessarily chilled: for example, a broadened non-
commercial appropriation tort might apply online only “when people’s photos are used in
ways that are not of public concern.”
224The four American privacy torts also suffer from some common limitations.
Plaintiffs are put in the awkward position of having to relive the humiliation and
embarrassment of the images as they are entered into the public record as part of the court
214
Sánchez Abril, Recasting Privacy, supra note __.
215
id, at 2 (“[P]rivacy is usually a function of the physical space in which the purportedly private activity occurred.”); 3 (“Traditionally, privacy has been inextricably linked to physical space.”)
216
id, at 4 (concepts of physical space are no longer relevant in analyzing modern online privacy harms). 217 id., at 47. 218 id. 219 id. 220
Restatement (Second) of Torts, § 652C (“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”)
221
GILSON ON TRADEMARKS,supra note ___, at § 2.16[1] (“The right of publicity … is the right of an individual to control the commercial use of his or her name, likeness, signature, or other personal
characteristics.”). See also MILLS, supra note ___, at 173-177 (discussing technical differences between the privacy misappropriation tort and the right of publicity tort).
222
GILSON ON TRADEMARKS,supra note ___, at § 2.16[1]. (“The appropriation tort would rarely apply to the discussion on the Internet of people’s private lives or the posting of their photos.”) Of course, it is arguable that the OSN provider’s complicity in the posting might amount to financial profit motives if the OSN provider is deriving financial profit from advertising related to the online posting of video content. This proposition remains to be tested.
223
SOLOVE,THE FUTURE OF REPUTATION, supra note ___, at 187 (“The appropriation tort might be expanded to encompass a broader set of problematic uses of information about a person …”)
224