In a recent case, the Court of Appeal for Ontario, Canada recognized the privacy torts that are widely-recognized in the United States. Many foreign common law jurisdictions, including the United Kingdom and other countries, have steadfastly refused to recognize the privacy torts spawned by the 1890 law review article by Samuel Warren and Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). These torts – intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness – are known collectively as “invasion of privacy.” In the case of Jones v. Tsige, 2012 ONCA 42 (Jan. 18, 2012), the Court of Appeal for Ontario finally recognized the US privacy tort of intrusion upon seclusion – intentionally intruding upon a person’s seclusion or solitude, or into his private affairs.
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A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media. I am generally sympathetic to these arguments, though only to a point. I think these arguments are often overblown. An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law. Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence. Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed. Consider J.K. Rowling’s recent testimony:
There are some new details emerging in the Tyler Clementi cyberbullying case at Rutgers. The case involves freshmen at Rutgers University. Dharun Ravi used a webcam to film and broadcast online an intimate encounter between his roommate Tyler Clementi and another man.
The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student. In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N. Kowalski invited about 100 people to join the page, and about 24 people joined.
Professor Paul Schwartz (Berkeley School of Law) and I recently published a new book, PRIVACY LAW FUNDAMENTALS. This book is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.