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.
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:
Professor Neil Richards (Washington University School of Law) and I have posted on SSRN our new article, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal __ (forthcoming 2007). The article engages in an historical and comparative discussion of American and English privacy law, a topic that has been relatively unexplored in America.