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9 J. on Telecomm. & High Tech. L. 357 (2011)
The Limits of Tort Privacy

handle is hein.journals/jtelhtel9 and id is 363 raw text is: THE LIMITS OF TORT PRIVACY NEIL M. RICHARDS* The conception of tort privacy developed by Warren, Brandeis, and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Samuel Warren and Louis Brandeis and interpreted by William Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict with First Amendment values. And when First Amendment values and tort privacy conflict, First Amendment values should prevail virtually all of the time. The disclosure tort will retain limited utility in the electronic environment, but privacy in the age of information and social media requires new strategies and new legal tools. Some of these strategies might include tort privacy as presently understood, but others require new approaches. These approaches can take either a broader look at tort privacy, including new torts and new theories of injury beyond emotional harm, or they can include new conceptions of privacy altogether, such as confidentiality law. INTRODUCTION ................................... ...... 358 I. THE ORIGINS AND THEORY OF TORT PRIVACY................... 361 II. DISCLOSURE AND THE FIRST AMENDMENT CRITIQUE ...... 365 III. THE LIMITS OF DISCLOSURE .................... .....374 CONCLUSION: RETHINKING INVASION OF PRIVACY ...... ..... 382 * Professor of Law, Washington University School of Law. An early draft of this essay was presented at the Silicon Flatirons Conference on Privacy and the Press at the University of Colorado on December 4, 2010. For helpful comments and conversations about the ideas in this paper, thanks to Danielle Citron, Rick Garnett, Mark McKenna, Paul Ohm, Paul Schwartz, Dan Solove, and my Silicon Flatirons co-panelists Sandra Barron, David Lat, Helen Norton, and Steven Zansberg. Thanks also to participants in workshops at Notre Dame Law School and Berkeley Law School. Special thanks to Eric Schmidt and to Jim Stanley for outstanding research assistance. 357

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