3 - American tort law and the right to privacy

Summary

Introduction

The remarkable story of the common-law tort of invasion of privacy in the United States begins with a piece of scholarship published in 1890, eventually hailed as ‘the outstanding example of the influence of legal periodicals upon the American law’. It urged courts to validate an individual's interest in avoiding exposure to unwanted, unwarranted publicity generated by an increasingly aggressive mass media, and argued that the common law could protect this interest by recognising a new cause of action that would provide compensatory damages for tortious infringements of an individual's right to remain out of the public eye. As a direct consequence of this single publication, the privacy tort wove its way into the tapestry of American jurisprudence.

However, in the almost dozen decades since the article appeared, the concept of privacy as an interest to be protected by tort law has proved to be both complex and elusive. Courts have had difficulty determining whether to impose liability for a variety of specific violations plaintiffs have alleged; commentators have struggled to extract from the evolving case law a workable definition of the new tort; and the United States Supreme Court has interpreted the constitutional barrier against restricting freedom of the press as seriously restricting the reach of the tort. At the same time, the technological capacity for invasions of privacy has expanded enormously, and societal attitudes about privacy are no longer what they were in 1890.