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Over at Emergent Chaos, Adam Shostack raises an interesting issue regarding Alex Rodriguez (A-Rod) and confidentiality. According to the rules in place about the baseball steroid testing back in 2003, the results of these tests were supposed to be confidential. According to Gregg Doyel at CBS:

In 2003 the deal was simple: The players would submit to anonymous steroid testing, and if more than 5 percent tested positive, real testing with real penalties would begin in 2004.

But in 2003, the tests were going to be (A) anonymous and then (B) destroyed.

Shostack suggests that A-Rod might have an action for breach of contract. He might also have an action for the breach of confidentiality tort. Professor Neil Richards and I have written extensively about breach of confidentiality. The tort is recognized in most states, and it provides for liability whenever one owes a duty of confidentiality and breaches that duty. We observed, however, that the tort has remained “relatively obscure and frequently overlooked” in American law. In contrast, in England, the tort is robust and applies quite broadly. We suggested in our article that the American tort could develop more along the lines of the English tort, and it is, in fact, already beginning to head in that direction. See Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. 123 (2007).

I believe that A-Rod would have a strong case for breach of confidentiality. The A-Rod situation demonstrates why an action under the tort of breach of confidentiality might be preferable to an action for public disclosure of private facts. The public disclosure tort doesn’t apply to newsworthy information, and the fact A-Rod took steroids is newsworthy. The breach of confidentiality tort doesn’t have a newsworthiness limitation. The reason why it doesn’t is that the tort remedies a different kind of harm than the public disclosure tort. Breach of confidentiality protects confidential relationships, which often involve highly newsworthy information. Businesses hire workers and depend upon their keeping information confidential. Doctors, lawyers, accountants, and others form confidential relationships with patients and clients. In a lot of cases, the information is newsworthy, such as when it involves public figures. The law protects patient confidentiality even when the patient is a public figure because of the value of protecting the patient-physician relationship. The public disclosure tort ensures that people’s private information which is not of legitimate concern to the public be protected from disclosure. On the other hand, breach of confidentiality is not only about shielding one’s private life — it is primarily about ensuring trust in relationships and ensuring that promises and expectations of confidentiality are maintained and respected.

The breach of confidentiality tort has significantly different First Amendment implications from the privacy tort of public disclosure of private facts. There’s a fascinating set of First Amendment issues raised by the breach of confidentiality tort, as well as by contracts requiring confidentiality. In fact, these issues raise a much broader and deeper set of issues about how the First Amendment deals with civil liability. Neil and I have just written a new article that explores these issues. We just started to submit it to law reviews and plan to post it on SSRN soon.

A related issue involves the LAPD’s leaked photo of a beaten and bruised Rihanna. According to ABC News:

Reportedly taken by police after Rihanna’s boyfriend, rapper Chris Brown, allegedly assaulted her on the night of the Grammy awards two weeks ago, the photo has sparked an internal investigation within the Los Angeles Police Department, which released a statement saying that leaks from within the department are considered “serious misconduct” that could result in “termination” for those involved.

I believe that the LAPD should be liable for breach of confidentiality (as well as a violation of the constitutional right to information privacy). It is important to vigorously enforce confidentiality, for as the ABC News piece aptly explains, a lack of confidence in confidentiality could deter domestic abuse victims from reporting abuse to police:

Else said she’s also worried that the leak of Rihanna’s photograph may discourage women from coming forward to report their own abuse.

“Victims of domestic violence are so courageous when they come forward, and they expect to have confidentiality when they do that,” said Else. “I do think that this photo leak could be very traumatic for women who have experienced domestic violence to think their privacy could or was compromised in this way.”

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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