Privacy's Other Path: Recovering the Law of Confidentiality

GW Law Faculty Publications & Other Works Faculty Scholarship

2007

Privacy's Other Path: Recovering the Law of Con;dentiality Privacy's Other Path: Recovering the Law of Con;dentiality

Daniel J. Solove

George Washington University Law School

, dsolove@law.gwu.edu

Neil M. Richards

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Daniel J. Solove & Neil M. Richards, Privacy's Other Path: Recovering the Law of Con;dentiality, 96 Geo.

L.J. 123 (2007).

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Privacy’s Other Path: Recovering the Law of

Conﬁdentiality

NEIL M. RICHARDS*&DANIEL J. SOLOVE**

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis

“invented” the right to privacy in 1890, and that William Prosser aided its develop-

ment by recognizing four privacy torts in 1960. In this Article, Professors Richards

and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law,

but took it down a new path. Well before 1890, a considerable body of Anglo-

American law protected conﬁdentiality, which safeguards the information people

share with others. Warren, Brandeis, and later Prosser turned away from the law of

conﬁdentiality to create a new conception of privacy based on the individual’s

“inviolate personality.” English law, however, rejected Warren and Brandeis’s con-

ception of privacy and developed a conception of privacy as conﬁdentiality from the

same sources used by Warren and Brandeis. Today, in contrast to the individualistic

conception of privacy in American law, the English law of conﬁdence recognizes and

enforces expectations of trust within relationships. Richards and Solove explore how

and why privacy law developed so differently in America and England. Understand-

ing the origins and developments of privacy law’s divergent paths reveals that each

body of law’s conception of privacy has much to teach the other.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

I. P

RIVACY’S DEFINING MOMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

A. THE RIGHT TO PRIVACY AND INVIOLATE PERSONALITY . . . . . . . . . . 128

B. CONFIDENTIALITY: THE RIGHT TO PRIVACY BEFORE ITS “BIRTH” . . . 133

1. The Law of Conﬁdential Relationships . . . . . . . . . . . . . . 134

a. Evidentiary Privileges . . . . . . . . . . . . . . . . . . . . . . . 134

b. Conﬁdential Relations . . . . . . . . . . . . . . . . . . . . . . . 135

c. Blackmail Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

d. Government Records . . . . . . . . . . . . . . . . . . . . . . . . 139

Solove. The authors would like to thank Susan Appleton, Sam Bagenstos, Sam Buell, Julie Cohen, Anuj

Desai, Orin Kerr, Pauline Kim, David Konig, Fred Lawrence, Steve Legomsky, Mark Ramseyer,

Matthias Reimann, Wendy Richards, Michael Risinger, Jackie Ross, Margo Schlanger, Paul Schwartz,

Peter Winn, and participants in faculty workshops at Washington University, St. John’s University

School of Law, and the 2007 Michigan-Illinois Comparative Law Workshop. Thanks also to our

research assistants, Andrew Gray, Carly Grey, Jay Lee, James Murphy, Andrew Nash, Erica Ruddy,

Sheerin Shahinpoor, James Stanley, and Stephen Wright; and to Carol Wibbenmeyer for outstanding

secretarial support.

123

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2. The Law of Conﬁdential Communications . . . . . . . . . . . . 140

a. Letters and Literary Expression . . . . . . . . . . . . . . . . 140

b. The Telegraph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

II. P

RIVACY’S DIVERGENT PATHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

A. PRIVACY IN TWENTIETH-CENTURY AMERICA . . . . . . . . . . . . . . . . . 146

1. Early Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

2. William Prosser and the Maturation of the Privacy Torts . 148

3. The Breach of Conﬁdentiality Tort . . . . . . . . . . . . . . . . . 156

B. PRIVACY IN TWENTIETH-CENTURY BRITAIN . . . . . . . . . . . . . . . . . 158

1. Origins and Development . . . . . . . . . . . . . . . . . . . . . . . . 160

2. The Human Rights Act and the Move Toward “Privacy” . 166

C. CONTRASTING CONCEPTIONS OF PRIVACY . . . . . . . . . . . . . . . . . . 173

1. Conceptual Differences . . . . . . . . . . . . . . . . . . . . . . . . . 173

2. Doctrinal Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

3. The First Amendment Critique . . . . . . . . . . . . . . . . . . . . 178

ONCLUSION:THE PROMISE OF CONFIDENTIALITY . . . . . . . . . . . . . . . . . . 181

NTRODUCTION

According to the oft-told legend, the right to privacy was born when Samuel

Warren and Louis Brandeis penned The Right to Privacy in 1890.

Spanning

just twenty-eight pages in the Harvard Law Review, the article identiﬁed

privacy as an implicit concept running throughout Anglo-American common

law. Commentators have hailed the article as the “most inﬂuential law review

article of all”

and “one of the most brilliant excursions in the ﬁeld of theoreti-

cal jurisprudence.”

Countless others have agreed.

In addition to giving birth to

four privacy torts, the article structured the conceptual landscape of privacy

1. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy,4HARV. L. REV. 193 (1890).

2. Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 L

AW &CONTEMP.

ROBS. 326, 327 (1966).

3. Elbridge L. Adams, The Right of Privacy, and Its Relation to the Law of Libel , 39 A

M. L. REV. 37,

37 (1905).

4. P. A

LLAN DIONISOPOULOS &CRAIG R. DUCAT,THE RIGHT TO PRIVACY:ESSAYS AND CASES 20 (1976)

(The Right to Privacy is “perhaps the most inﬂuential law journal piece ever published”); William L.

Prosser, Privacy, 48 C

AL. L. REV. 383, 383 (1960) (The Right to Privacy is an “outstanding example of

the inﬂuence of legal periodicals upon the American law”).

124 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

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more generally, shaping the development of statutory, constitutional, and other

privacy protections.

The conventional wisdom, shared by both admirers and critics alike, is that

Warren and Brandeis constructed a right to privacy out of a very meager body

of law. Indeed, Warren and Brandeis have been hailed as the “inventors” of the

right to privacy.

As Roscoe Pound noted, they did “nothing less than add a

chapter to our law.”

Before their article, the conventional wisdom goes, the law

did little to establish a ﬁrm foundation for the protection of privacy. With

brilliant maneuvering of limited precedent, Warren and Brandeis achieved the

legal equivalent of pulling a rabbit out of a hat.

The conventional wisdom, however, is wrong. In this Article, we argue that

Warren and Brandeis did not invent the right to privacy from a negligible body

of precedent but instead charted a new path for American privacy law. By 1890,

a robust body of conﬁdentiality law protecting private information from disclo-

sure existed throughout the Anglo-American common law. Conﬁdentiality fo-

cuses on relationships; it involves trusting others to refrain from revealing

personal information to unauthorized individuals.

Rather than protecting the

information we hide away in secrecy, conﬁdentiality protects the information

we share with others based upon our expectations of trust and reliance in

relationships. Building upon the conﬁdentiality case of Prince Albert v. Strange,

Warren and Brandeis pointed American common law in a new direction, toward

a more general protection of “inviolate personality” against invasions by strang-

ers. The celebrated torts scholar William Prosser cemented this change of

5. As one commentator has observed, Warren and Brandeis’s article “has attained what some might

call legendary status” and has been a “seminal force in the development of a ‘right to privacy’ in

American law.” Benjamin E. Bratman, Brandeis and Warren’s The Right to Privacy and the Birth of the

Right to Privacy, 69 T

ENN. L. REV. 623, 624 (2002).

6. See, e.g., James H. Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890): Demystifying a Landmark Citation, 13 S

UFFOLK U. L. REV. 875, 877 (1979) (there is “near

unanimity among courts and commentators that the Warren-Brandeis conceptualization created the

structural and jurisprudential foundation of the tort of invasion of privacy”); Ruth Gavison, Too Early

for a Requiem: Warren and Brandeis Were Right on Privacy vs. Free Speech, 43 S.C. L. R

EV. 437, 438

(1992) (Warren and Brandeis “single-handedly created a tort”); Irwin R. Kramer, The Birth of Privacy

Law: A Century Since Warren and Brandeis, 39 C

ATH. U. L. REV. 703, 703–04 (1990).

7. A

LPHEUS THOMAS MASON,BRANDEIS:AFREE MAN’S LIFE 70 (1946) (quoting Roscoe Pound).

8. See, e.g.,W

ALTER F. PRATT,PRIVACY IN BRITAIN 19–37 (1979); Edward J. Bloustein, Privacy as an

Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. R

EV. 962, 966–72 (1964) (arguing

that although Warren and Brandeis’s right to privacy expressly differentiated itself from existing

doctrines such as defamation, property, and emotional distress, they actually “went very little beyond

. . . giving ‘their right’ and ‘their interest’ a name and distinguishing it from other rights or interests. It

is only in asides of characterization and passing attempts at ﬁnding a verbal equivalent of the principle

of privacy that we may ﬁnd any further clues to the interest or value they sought to protect”); Robert C.

Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 C

ASE W. R ES. L. REV.

647, 655 (1991); Walter F. Pratt, The Warren and Brandeis Argument for a Right to Privacy, 1975 P

UB.

L. 161.

9. See Neil M. Richards, The Information Privacy Law Project, 94 G

EO. L.J. 1087, 1137–38 (2006);

Daniel J. Solove, A Taxonomy of Privacy, 154 U. P

A. L. REV. 477, 526–29 (2005).

10. (1848) 41 Eng. Rep. 1171 (Ch.).

2007] 125PRIVACY’S OTHER PATH

direction in his 1960 article, Privacy,

and in the Second Restatement of Torts,

for which he served as a reporter. Prosser not only established American privacy

law as four related torts, but also minimized the importance of conﬁdentiality as

a concept in American law. By contrast, English law developed a ﬂexible and

powerful law of conﬁdentiality from Prince Albert v. Strange, the very same

case underpinning Warren and Brandeis’s conception of privacy.

Thus far, the story of this fork in the path of privacy law has remained

largely unexplored, yet it has had far-reac hing effects on the law on both

sides of the Atlantic. What the law of privacy protects and does not protect

today traces back in large part to this critical divergence in the evolution of

the common law of information disclosure. In America, four privacy torts

emerged from Warren and Brandeis’s article—public disclosure of private

facts, intrusion upon seclusion, appropriation of name or likeness, and false

light.

English courts repeatedly considered whether to adopt the four

privacy torts spawned by Warren and Brandeis and consistently refused to

do so.

However, the English law of conﬁdentiality has expanded to redress

some (though not all) of the injuries protected by the Warren and Brandeis

torts.

The law of conﬁdentiality in England also has attributes that the American

privacy torts lack. In America, the prevailing belief is that people assume

the risk of betrayal when they share secrets with each other. But in England,

spouses, ex-spouses, friends, and nearly anyone else can be liable for

divulging conﬁdences.

As one English court noted, “when people kiss and

later one of them tells, that second person is almost certainly breaking a

conﬁdential arrangement.”

Conﬁdentiality thus recognizes that nondisclo-

sure expectations emerge not only from norms of individual dignity, but also

from norms of relationships, trust, and reliance on promises. American

privacy law has never fully embraced privacy within relationships; it typi-

cally views information exposed to others as no longer private. Although a

tort remedying breach of conﬁdence would emerge later on in American law,

it developed slowly in comparison to the Warren and Brandeis privacy

torts.

In this Article, we examine why American and English privacy law split apart

in the twentieth century and analyze the consequences of this divergence on

both sides of the Atlantic. Although there is some scholarship discussing the

Warren and Brandeis article itself, the complete story of the development of the

right to privacy in the common law has been neglected in the literature. By

11. Prosser, supra note 4.

12. Id. at 389.

13. See, e.g., Kaye v. Robertson, [1991] F.S.R. 62, 66 (C.A.) (U.K.).

14. See, e.g., Barrymore v. News Group Newspapers, [1997] F.S.R. 600 (Ch.) (U.K.) (lover liable for

breach of conﬁdence); Stephens v. Avery, (1988) 1 Ch. 449 (U.K.) (friend liable for breach of

conﬁdence); Argyll v. Argyll, (1967) 1 Ch. 302 (U.K.) (spouse liable for breach of conﬁdence).

15. Barrymore, [1997] F.S.R. at 601.

126 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

revisiting the history, we reveal that the common law of privacy did not unfold

according to one path, but two. While American privacy law has centered

around the individual’s inviolate personality, English privacy law has focused

on social relationships. Each body of privacy law has attributes that the other

lacks, and English and American conceptions of privacy have much to learn

from each other.

Moreover, our ﬁndings complicate existing understandings of privacy law

in the Western legal canon. In a recent article, James Whitman contrasts two

“western cultures of privacy,” an American tradition of liberty rooted in the

protection of the home and a European tradition of dignity rooted in

protection of feelings, which Warren and Brandeis’s theory introduced into

American law.

Our examination of the history reveals that the law of

privacy in the West is far more complex than a dichotomy between liberty

and dignity. Conﬁdentiality represents a third understanding of privacy, one

with ﬁrm foundations in both American and English jurisprudence. For all

their differences, conceptions of privacy based on liberty and dignity often

have been highly individualistic. Conﬁdentiality, in contrast, is a signiﬁ-

cantly different conception of privacy—one based on the protection of

relationships.

In Part I, we debunk the myths surrounding the birth of the right to privacy

by discussing the extensive law protecting privacy as conﬁdentiality that existed

prior to Warren and Brandeis’s article. In Part II, we examine the divergent

paths of privacy and conﬁdentiality law in America and England in the after-

math of Warren and Brandeis’s momentous article, and we discuss the profound

consequences of these developments.

I. P

RIVACY’S DEFINING MOMENT

According to the legend surrounding the Warren and Brandeis article, there

was scant law on the books to protect privacy until Warren and Brandeis pieced

together various fragments of law to create a robust right to privacy. This

legend, however, is myth.

Warren and Brandeis did not give birth to the right to privacy; they shifted

its conceptual underpinnings away from conﬁdentiality and toward what

they called “inviolate personality.” By 1890, a rich body of law had devel-

oped to protect privacy as conﬁdentiality. Its very existence at the time

Warren and Brandeis wrote their article has been virtually ignored. Warren

and Brandeis gave some recognition to this body of law, but their project

attempted to steer the law toward protecting what they believed to be a

broader conception of privacy. The then-ﬂourishing law of conﬁdentiality

became stunted in its development. In this Part, we tell the story that has

16. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J.

1151 (2004).

2007] 127PRIVACY’S OTHER PATH

become obscured by the lore surrounding Warren and Brandeis’s article.

A. THE RIGHT TO PRIVACY AND INVIOLATE PERSONALITY

Samuel Warren and Louis Brandeis published their famous article, The Right

to Privacy, in the Harvard Law Review in 1890. The two men had met at

Harvard Law School. Brandeis was from Kentucky, the child of Jewish immi-

grants who prospered as the result of a Louisville grain business,

while

Warren came from a wealthy and prominent Boston family.

They ﬁnished law

school with Brandeis ranked ﬁrst in the class and Warren second, and a few

years later, they started a law ﬁrm together.

Brandeis was one of the original

founders of the Harvard Law Review in 1887, and he and Warren co-authored

three articles in early volumes. The Right to Privacy was their third article, and

it became the most famous product of their collaboration—hardly a surprise

since their ﬁrst two articles were about the obscure topic of pond law.

Their

article would forever change the intellectual landscape of American privacy law.

Warren and Brandeis framed their article around the intersection of the news

media and new technology. The newspaper industry was undergoing an amaz-

ing growth during the second half of the nineteenth century. Between 1850 and

1890, the number of newspapers increased from 100 to 900, and the number of

readers grew from approximately 800,000 to more than 8 million.

Warren and

Brandeis complained that journalism had become sensationalistic and that the

“press is overstepping in every direction the obvious bounds of propriety and

decency. Gossip is no longer the resource of the idle and of the vicious, but has

become a trade, which is pursued with industry as well as effrontery.”

Indeed,

the private papers of the two men suggest that perceived press invasions into the

“social privacy” of Brahmin families like the Warrens prompted Warren to

enlist his friend Brandeis in the project.

Warren and Brandeis were particularly concerned about the new technology

of “[i]nstantaneous photograph[y.]”

In 1884, the Eastman Kodak Company

produced the “snap camera,” a small inexpensive camera that the general public

could afford. Before the snap camera, cameras had been expensive and heavy;

they had to be set up and people would have to pose to have pictures taken. The

snap camera enabled people to take candid pictures and created a “craze” for

17. MASON, supra note 7, at 23–25; MELVIN I. UROFSKY,LOUIS BRANDEIS AND THE PROGRESSIVE

TRADITION 2 (1981).

18. D

ON R. PEMBER,PRIVACY AND THE PRESS:THE LAW, THE MASS MEDIA, AND THE FIRST AMENDMENT

21 (1972).

19. Id. at 22.

20. See Samuel D. Warren & Louis D. Brandeis, The Law of Ponds,3H

ARV. L. REV. 1 (1889);

Samuel D. Warren, Jr. & Louis D. Brandeis, The Watuppa Pond Cases,2H

ARV. L. REV. 195 (1888).

21. See G

INI GRAHAM SCOTT,MIND YOUR OWN BUSINESS:THE BATTLE FOR PERSONAL PRIVACY 37–38

(1995).

22. Warren & Brandeis, supra note 1, at 196.

23. See P

EMBER, supra note 18, at 24–25.

24. Id. at 25.

128 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

amateur photography by thousands of people who had previously not been able

to afford a camera.

These developments prompted Warren and Brandeis to search for a legal

right to protect individual privacy. “It is our purpose,” the authors wrote, “to

consider whether the existing law affords a principle which can properly be

invoked to protect the privacy of the individual; and, if it does, what the nature

and extent of such protection is.”

Warren and Brandeis contended that the law

currently did not provide sufﬁcient protection to privacy, but they demonstrated

how a right to privacy could be derived using common law reasoning.

In making this argument, Warren and Brandeis faced at least two practical

and theoretical challenges. First, there was a paucity of legal support for their

claims.

Although the law protected somewhat related concepts such as breach

of conﬁdence, trespass, and defamation, it did not protect against strangers

taking unauthorized photographs or disclosing true private facts about a person.

The second problem that Warren and Brandeis faced was remedial. Late nine-

teenth-century law was deeply reluctant to protect injury to emotions or feel-

ings, preferring to grant remedies to more quantiﬁable harms, such as injury to

one’s property or physical person.

Warren and Brandeis attempted to solve

each of these problems by creative readings of Judge Thomas Cooley’s seminal

torts treatise and the famous English case of Prince Albert v. Strange.

Warren and Brandeis famously asserted that the common law “secures to

each individual the right of determining, ordinarily, to what extent his thoughts,

sentiments, and emotions shall be communicated to others.”

This right “is

merely an instance of the enforcement of the more general right of the indi-

vidual to be let alone.”

Warren and Brandeis adopted the “right to be let

alone” language from Cooley’s 1888 treatise The Law of Torts.

Cooley was

one of the leading jurists of his day,

a justice of the Michigan Supreme Court

25. Robert E. Mensel, “Kodakers Lying in Wait”: Amateur Photography and the Right of Privacy in

New York, 1885–1915, 43 A

M. Q. 24, 28 (1991).

26. Warren & Brandeis, supra note 1, at 197.

27. See P

RATT, supra note 8, at 19–37.

28. See e.g., G. E

DWARD WHITE,TORT LAW IN AMERICA:AN INTELLECTUAL HISTORY 105–06 (expanded

ed. 2003); Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History,

88 M

ICH. L. REV. 814, 816 (1990); Nancy Levit, Ethereal Torts, 61 GEO.WASH. L. REV. 136, 140–41

(1992).

29. Warren & Brandeis, supra note 1, at 198.

30. Id. at 205.

31. Id. at 195 & n.4 (citing T

HOMAS M. COOLEY,THE LAW OF TORTS 29 (2d ed. 1888)). The ﬁrst

edition of Cooley’s torts treatise in 1880 also contained the phrase. See T

HOMAS M. COOLEY,THE LAW OF

TORTS 29 (1st ed. 1880) [hereinafter COOLEY,LAW OF TORTS FIRST EDITION].

32. See S

TEPHEN M. FELDMAN,AMERICAN LEGAL THOUGHT FROM PREMODERNISM TO POSTMODERNISM

102–05 (2000) (discussing Cooley’s inﬂuence on constitutional theory); WHITE, supra note 28, at 115

(noting that Cooley was one of a handful of judges who contributed to the intellectual history of torts

and that his torts treatise was “widely cited”).

2007] 129PRIVACY’S OTHER PATH

and the author of the principal treatises on constitutional law and torts.

Cooley’s “right to be let alone” was merely a passing phrase in a discussion of

why tort law protected against not only batteries but also assaults with no

physical contact. Cooley noted that in assaults, victims suffered “a shock to the

nerves, and the peace and quiet of the individual is disturbed for a period of

greater or lesser duration.”

Warren and Brandeis certainly found useful Cooley’s

recognition of mental injury as a basis for tort recovery, but Cooley’s usage of

“the right to be let alone” was ﬂeeting and had no connection to privacy rights.

By contrast, Cooley devoted an entire chapter of the same treatise to the law of

“conﬁdential relations,” but Warren and Brandeis did not discuss it.

Warren and Brandeis also based much of their argument for a right to privacy

upon Prince Albert v. Strange, an English case from 1848.

Prince Albert was a

famous conﬁdentiality and literary property case that Warren and Brandeis

artfully (and perhaps disingenuously) recharacterized as a privacy case. The

dispute arose when Queen Victoria and her husband Albert, the Prince Consort,

sued in equity to prevent the exhibition by William Strange of etchings that the

royal couple had made of their family. They intended the etchings to be shared

only with their family and close friends. In addition to the etchings, the Royal

Family sought to prevent the publication of a descriptive catalog of the exhibit.

Strange apparently obtained the plates with which to make copies of the

etchings from an assistant to the palace printer who had provided them to him

“in violation of the conﬁdence reposed in him.”

In ruling for the Queen and

the Prince, Vice Chancellor Bruce suggested in dictum that a catalog of the

etchings could “shew the bent and turn of the mind, the feelings and taste of the

artist.”

Bruce went on to suggest that “[a] man may employ himself in private

in a manner very harmless, but which, disclosed to society, may destroy the

comfort of his life, or even his success in it.”

On appeal, the Lord Chancellor

agreed that Strange had no right to print and sell the etchings or the catalog. The

Chancellor concluded that Prince Albert had a common law literary property

right in the unpublished work—essentially, a common law copyright in unpub-

lished works. The author had the right to keep his works from being published

to protect his “private use and pleasure.”

Building upon the dictum from Bruce’s opinion below in Prince Albert,

Warren and Brandeis argued that traditional intellectual property concepts came

33. See generally THOMAS M. COOLEY,ATREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST

UPON THE

LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (1st ed. 1868); COOLEY,LAW OF

TORTS FIRST EDITION, supra note 31.

34. C

OOLEY,LAW OF TORTS FIRST EDITION, supra note 31, at 29.

35. Id. This body of law is discussed in greater detail in Part II. See infra notes 152–156 and

accompanying text.

36. (1848) 41 Eng. Rep. 1171 (Ch.).

37. Prince Albert v. Strange, (1849) 64 Eng. Rep. 293, 295 (Ch.).

38. Id. at 312 (Bruce, V.C.).

39. Id.

40. Prince Albert, 41 Eng. Rep. at 1178.

130 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

close to protecting privacy, but were still too focused on remedying injuries to

property such as lost proﬁts. Concerned with ﬁnding a remedy for “mere injury

to the feelings”

caused by the publication of private facts about individuals,

Warren and Brandeis posited that “the legal doctrines relating to infractions of

what is commonly termed the common-law right to intellectual and artistic

property are, it is believed, but instances and applications of a general right to

privacy, which properly understood affords a remedy for the evils under consid-

eration.”

Prince Albert suggested that intellectual property law could afford a

remedy of restricting publication in unpublished works. Warren and Brandeis

took this facet of the opinion and used it to turn Prince Albert from an opinion

protecting intellectual property rights to a case protecting individual feelings

and emotions from the pain of unwanted publicity. The authors concluded that

the “principle which protects personal writings and all other personal produc-

tions, not against theft and physical appropriation, but against publication in any

form, is in reality not the principle of private property, but that of an inviolate

personality.”

They thus reasoned that the rights protected in Prince Albert

were “part of the more general right to the immunity of the person—the right to

one’s personality.”

Of course, this reading (much like Bruce’s dictum itself)

had little support in the Anglo-American common law of literary property at the

time.

In taking this creative reading of the case, Warren and Brandeis minimized

the second basis for the judgment in Prince Albert v. Strange—breach of

conﬁdence. The Lord Chancellor’s opinion on appeal and the Vice Chancellor’s

opinion below noted that conﬁdentiality law provided an independent basis for

granting the injunction against publication of the exhibit catalog. Because

Victoria and Albert had circulated copies of the etchings only to a few friends,

and had only sent copies outside such a circle to the printer for purpose of

making these copies, the Lord Chancellor concluded that Strange’s possession

“must have originated in a breach of trust, conﬁdence, or contract,” most likely

by a clerk to the royal printer.

Disclosure represented a breach of conﬁdence

because a clerk to trusted professionals like printers and merchants owed the

same implied contractual duty as his master “that he will not make public that

which he learns in the execution of his duty as clerk.”

Thus, the printer’s

assistant had a duty to the Queen and the Prince to maintain the conﬁdentiality

of their etchings. The breach of this duty could be enforced against subsequent

41. Warren & Brandeis, supra note 1, at 197.

42. Id. at 198.

43. Id. at 205.

44. Id. at 207.

45. See, e.g.,P

RATT, supra note 8, at 26–32; Post, supra note 8, at 658. Robert Post notes further that

“even Brandeis himself appears later to have abandoned any pretension that common law copyright

could be given the interpretation he and Warren advocated in their article.” Id. (quoting Brandeis’s

dissent in International News Service v. Associated Press, 248 U.S. 215, 253–55 (1918)).

46. Prince Albert v. Strange, (1848) 41 Eng. Rep. 1171, 1179 (Ch.).

47. Id. at 1179.

2007] 131PRIVACY’S OTHER PATH

holders of the etchings and the plates used to make copies of them. Strange’s

catalog was made with the plates he obtained from a breach of conﬁdence.

Because the catalog could not have been produced without the plates, Strange

was enjoined from distributing it under a breach of conﬁdence theory.

Warren and Brandeis were well aware of the body of conﬁdentiality law on

the books in 1890. Although they noted that breach of conﬁdence had been used

in a number of English cases to protect private information from disclosure,

they rejected this doctrine because it did not serve their purposes.

Then as

now, conﬁdentiality is about protecting information from disclosure in the

context of relationships. But the injury which Warren and Brandeis were most

concerned about—the publication of embarrassing facts about people by the

press—did not involve the kind of relationships the law had to that point

protected. Rather than protecting the reliance interest in nondisclosure of infor-

mation in relationships, Warren and Brandeis sought a right against the world to

protect hurt feelings.

For example, although one English case had found a breach of conﬁdence

where a photographer had used one of his female client’s photographs as a

Christmas card without her consent,

this holding did not extend to nonconsen-

sual snap photography outside the context of a photographer-client relationship

or, as Warren and Brandeis put it, the “granting [of] a remedy against a

stranger.”

Warren and Brandeis were not satisﬁed with conﬁdentiality because

they had in mind the candid photographer, a stranger who did not have a

relationship with the subject of the photo. They observed that with earlier

photographic technology, “one’s picture could seldom be taken without his

consciously ‘sitting’ for the purpose.”

Accordingly, photography required a

relationship between photographer and subject. Warren and Brandeis argued

that “since the latest advances in photographic art have rendered it possible to

take pictures surreptitiously, the doctrines of contract and of trust are inadequate

to support the required protection.”

Moreover, they presented the hypothetical

situation of a person receiving a wrongly addressed letter and opening and

reading it anyway. The authors observed: “Surely, [the recipient] has not made

any contract; he has not accepted any trust.”

Therefore, they concluded, the

right to privacy does not arise “from contract or from special trust,” but must be

understood as a right “as against the world.”

“The principle which protects

personal writings and any other production of the intellect or of the emotions,”

they observed, “is the right to privacy, and the law has no new principle to

formulate when it extends this protection to the personal appearance, sayings,

48. See Warren & Brandeis, supra note 1, at 211–12.

49. Pollard v. Photographic Co., (1888) 40 Ch.D. 345, 349 (U.K.).

50. Warren & Brandeis, supra note 1, at 211.

51. Id.

52. Id.

53. Id.

54. Id. at 213.

132 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

acts, and to personal relation, domestic or otherwise.”

This right, they as-

serted, applied not just to photographic portraiture but also to “pen portraiture,

. . . a discussion by the press of one’s private affairs.” This passage was perhaps

the most breathtaking moment of the article, when Warren and Brandeis dramati-

cally expanded the foundation of the right of nondisclosure from one based on

relationships to a general right against all not to have one’s private affairs

discussed in public in any form.

Warren and Brandeis did not expressly reject breach of conﬁdentiality as a

remedy for invasions of privacy, but instead of developing this concept and line

of cases, they shifted to a different path. They explained the goal of privacy

protections not as enforcing the norms and morality of relationships but as

protecting an “inviolate personality” and the feelings of the individual from

injury.

Perhaps because they were focused primarily on the “ruthless public-

ity” of “a discussion by the press of one’s private affairs,”

Warren and

Brandeis neglected to see that a lot of privacy invasions still involved relation-

ships between people. They were certainly correct that conﬁdentiality alone

would not protect information from disclosure in many cases where it was

warranted, but as we will demonstrate later on, they failed to appreciate the full

power and potential of conﬁdentiality.

B. CONFIDENTIALITY: THE RIGHT TO PRIVACY BEFORE ITS “BIRTH”

Scholars have largely ignored the existence of privacy law before Warren and

Brandeis. In large part this is because of the conventional wisdom that Warren

and Brandeis created the right to privacy. Nevertheless, as the preceding

discussion suggests, a signiﬁcant body of Anglo-American law protecting per-

sonal information from disclosure through conﬁdentiality existed long before

Warren and Brandeis published their article.

The concept of conﬁdentiality as a value essential to a variety of personal relation-

ships can be traced back to antiquity. For example, in the physician-patient context,

the Hippocratic Oath, circa 400 B.C. states: “Whatever, in connection with my

professional service, or not in connection with it, I see or hear, in the life of men,

which ought not to be spoken of abroad, I will not divulge, as reckoning that all such

should be kept secret.”

Conﬁdentiality (or “conﬁdence” to use its earlier terminol-

ogy) is a concept with ancient origins in the Anglo-American common law as well.

F.W. Maitland, a leading early English legal historian, quoted an old sixteenth-century

rhyme in his lectures on equity:

These three give place in court of conscience

55. Id.

56. Id. at 211.

57. Id. at 213–14.

58. D

ANIEL J. SOLOVE,MARC ROTENBERG &PAUL M. SCHWARZ,INFORMATION PRIVACY LAW 350 (2d ed.

2006) (quoting Hippocratic Oath).

2007] 133PRIVACY’S OTHER PATH

Fraud, accident, and breach of conﬁdence.

By the time Warren and Brandeis wrote, the law had recognized and protected

conﬁdentiality in a number of contexts. Although conﬁdentiality was not consid-

ered to be a discrete area of law, Anglo-American statutory and common law

protected conﬁdentiality in many kinds of relationships and in various types of

communications.

1. The Law of Conﬁdential Relationships

a. Evidentiary Privileges. Among the oldest legal protections of conﬁdential-

ity are evidentiary privileges, which enable one party to a relationship to

prohibit the other party from revealing conﬁdences in court. The attorney-client

privilege, which dates back at least to 1577,

prevents attorneys from divulging

in court information their clients provide to them during the course of legal

representation. The privilege was justiﬁed not as protecting the client’s indi-

vidual rights and inviolate personality, but as ensuring the integrity of attorney-

client relationships by promoting complete and candid communication.

English

law also developed privileges pertaining to spousal relations, under which

spouses were prohibited from testifying against each other. Courts in the

nineteenth century frequently alluded to the need to protect the conﬁdential

communications of the marital relationship.

The protections for conﬁdential information provided by evidentiary privi-

leges were recognized in early American cases as well. In the ﬁrst quarter of the

nineteenth century, state courts in the United States recognized England’s

attorney-client privilege and spousal privileges.

Thus in 1811, a Pennsylvania

court declared:

The general rule is that every person not infamous or interested, is a compe-

tent witness. To this there have been exceptions, perhaps as ancient as the

59. F.W. MAITLAND,EQUITY:TWO COURSES OF LECTURES 7 (A.H. Chaylor & W.J. Whittaker eds., Fred.

B. Rothman & Co. 1984) (1926); see also B

RIAN C. REID,CONFIDENTIALITY AND THE LAW 1 (1986). The

term “conﬁdence” in the early cases meant something broader than the modern meaning of “conﬁdenti-

ality.” “Conﬁdence” meant trust and reliance, and it could be breached in a number of ways beyond the

disclosure of conﬁdential information, such as fraud and self-dealing. Nevertheless, the disclosure of

conﬁdential information constituted a large part of breaches of conﬁdence.

60. Berd v. Lovelace, (1577) 21 Eng. Rep. 33 (ch.).

61. P

RATT, supra note 8, at 42.

62. See, e.g., Monroe v. Twistleton, (1802) 170 Eng. Rep. 250, 251 (“[I]t shall never be endured that

the conﬁdence which the law has created while the parties remained in the most intimate of all

relations, shall be broken whenever by the misconduct of one party . . . the relation shall have been

dissolved.”); see also P

RATT, supra note 8, at 43–44.

63. Developments in the Law—Privileged Communication, 98 H

ARV. L. REV. 1450, 1458–60 (1985);

see also Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 C

AL. L.

EV. 1061, 1087 (1978) (“There appear to be no American cases on the attorney-client privilege until

the 1820s.”).

134 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

rule. Husband and wife shall not testify for or against each other. An attorney

at law shall not betray the conﬁdence of his client.

Most states did not recognize physician and clergymen privileges at early

common law, although most states codiﬁed such privileges by statute during the

middle portion of the nineteenth century.

Nevertheless, as an 1889 article in

the American Law Register revealed, the protection through privilege law of

“conﬁdential communications” made to lawyers, doctors, and clergy was wide-

spread in American law by the time Warren and Brandeis were writing their

article.

b. Conﬁdential Relations. Related to privileges were duties of nondisclosure

imposed on a category of relationships known as “conﬁdential relations.” These

relationships were a forerunner of the modern body of law of ﬁduciaries. The

law of conﬁdential relations protected a variety of special relationships in which

one party entrusted her interests to another. Because the party placing her trust

and conﬁdence in the other was extremely vulnerable to harm if the other party

abused this trust, the law stepped in to protect this reliance.

Duties of nondisclosure attaching to special relationships were distinct from

evidentiary privileges. Privileges merely prohibited a person from testifying

about certain information in court, and the common law construed them nar-

rowly because they ran directly counter to the truth-seeking function of the

judicial process. By contrast, duties of nondisclosure attached to conﬁdential

relationships prohibited a person from divulging conﬁdential information to any

unauthorized person on pain of liability.

In The Law of Torts, Cooley devoted an entire chapter to wrongs committed

in conﬁdential relations. Cooley deﬁned conﬁdential relations as “relations

formed by convention or by acquiescence, in which one party trusts his pecuni-

ary or other interests to the ﬁdelity and integrity of another, by whom, either

alone, or in conjunction with himself, he expects them to be guarded and

protected.”

Under such circumstances, equity intervened to protect the vulner-

able party from abuse as a result of the power or inﬂuence imbalance in the

relationship. Cooley observed that conﬁdential relations exist between agent

and principal, trustor and trustee, parent and child, and husband and wife,

64. Steele v. Phoenix Ins. Co., 3 Binn. 306, 313 (Pa. 1811).

65. Developments in the Law, supra note 63, at 1457–58.

66. G.W. Field & John B. Uhle, Privileged Communications, 37 A

M. L. REG. 1, 1 (1889). The use of

the phrase “conﬁdential communications” was widespread during this period. See, e.g.,1J

OHN HENRY

WIGMORE,ATREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW xlvii (1904) (listing the

topic of “conﬁdential communications” as an area of evidence law in his table of contents); see also 4

OHN HENRY WIGMORE,ATREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW §§ 2285–87

(1904).

67. P

RATT, supra note 8, at 44–48.

68. C

OOLEY,LAW OF TORTS FIRST EDITION, supra note 31, at 508.

2007] 135PRIVACY’S OTHER PATH

among others.

Many of these relationships included duties of conﬁdentiality.

One of the most important duties of conﬁdentiality was that between a lawyer

and his client. Cooley argued that such a duty was crucial to optimally serving

the client’s needs:

So close is the conﬁdence which this relation demands that the client is

expected and invited by the law to lay open to his adviser all that he may

know, believe or suspect—all, in fact, that may be in his mind—which it can

possibly be important for the adviser to know in order to prepare him to

render valuable services; and the conﬁdence thus invited the law protects, and

it will not permit the adviser to disclose what has been communicated to him,

not even as a witness in judicial proceedings, without his employer’s consent.

Still less will the law justify him in a voluntary disclosure.

The law of conﬁdential relations applied to speciﬁc relationships such as

those enumerated by Cooley in his treatise. Nevertheless, this list was insufﬁ-

cient to protect instances of disclosure of conﬁdential information in other

relationships. In this context, English courts of equity ﬁlled the gap by fashion-

ing an action for breach of conﬁdence that could apply even where there was no

attorney-client relationship or other “direct conﬁdential relation,”

such as the

disclosure of personal or trade secrets. Legal remedies for divulging such

conﬁdential information began to emerge as early as the eighteenth century. In

1758, in Duke of Queensberry v. Shebbeare,

the court held that equity could

restrain the publication of a manuscript shared with another for any purposes

except publication. Although the court did not talk in terms of breach of

conﬁdence, later authorities regard the case as an early example of the tort.

1820, Lord Eldon issued an injunction in Yovatt v. Winyard

protecting a

“breach of trust and conﬁdence,” where an employee stole secret veterinary

medicine recipes and used them in his own business.

A few years later, in Abernethy v. Hutchinson,

the Court of Chancery

enjoined the publisher of the British medical journal Lancet from publishing the

transcripts of a series of lectures on surgery obtained from a medical student

attending the lectures.

The Lord Chancellor held that the student who sold his

notes engaged in either a “breach of trust” or a violation of an implied contract

69. Id. at 508–30. Other classes that he discusses in the chapter include scriveners or draftsmen,

individuals with mental incapacity, and individuals involved in illegal sexual relations. Id.

70. Id. at 527–28 (footnotes omitted) (emphasis added).

71. See Ashburton v. Pape, (1913) 2 Ch.D. 469, 471 (U.K.) (Cozens-Hardy, M.R.).

72. (1758) 28 Eng. Rep. 924, 924 (Ch.).

73. F

RANCIS GURRY,BREACH OF CONFIDENCE 278 (1984).

74. (1820) 37 Eng. Rep. 425 (Ch.).

75. Id. at 426.

76. (1825) 26 Eng. Rep. 1313 (Ch.).

77. Id. at 1317.

136 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

arising out of his relationship to the lecturer.

In his Commentaries on Equity

Jurisprudence, Joseph Story noted without expressly citing Abernethy that

where a person delivers scientiﬁc or literary oral lectures, it is not competent

for any person, who is privileged to hear them, to publish the substance of

them from his own notes; for the admission to hear such lectures is upon the

implied conﬁdence and contract, that the hearer will not use any means to

injure, or to take away the exclusive right of the lecturer in his own lectures.

In the seminal 1851 case of Morison v. Moat,

the Court of Chancery held

that it was a “breach of faith and of contract” for the son of one deceased

business partner to use the other original partner’s medical formula for his own

business.

In so doing, the court made clear that breach of conﬁdence was an

equitable remedy separate from property rights; where the father had breached

his duty of conﬁdence not to tell the secret formula to the son, equitable

principles barred the son from using the formula even where the legal remedies

of property and contract were unavailing.

Two years before the publication of the Warren and Brandeis article, in

Pollard v. Photographic Co.,

the Vice Chancellor enjoined a photographer

from selling Christmas cards featuring a picture of a client based upon the

“common law right of action against Defendant for his breach of contract and

breach of faith.”

An injunction was warranted, the court concluded, because

the photographer had abused the “power conﬁdentially placed in his hands

merely for the purpose of supplying the customer.”

The court relied upon two

alternate theories—either that there was a conﬁdentiality term implied in the

contract between the photographer and his client, or that there was a general

duty of conﬁdence that bound the photographer by virtue of his relationship to

his client.

The court declared:

Where a person obtains information in the course of a conﬁdential employ-

ment, the law does not permit him to make any improper use of the informa-

tion so obtained; and an injunction is granted, if necessary to restrain such

use; as, for instance, to restrain a clerk from disclosing his master’s accounts,

78. Id. at 1316. The court did not talk in terms of breach of conﬁdence (preferring the related term

“breach of trust”) but the case (which was cited by Warren and Brandeis) has been interpreted by

subsequent courts as a foundational breach of conﬁdence case. See R.G. T

OULSON & C.M. PHIPPS,

ONFIDENTIALITY 6–7 (1996).

79. 2 J

OSEPH STORY,COMMENTARIES ON EQUITY JURISPRUDENCE:AS ADMINISTERED IN ENGLAND AND

AMERICA 264 (3d rev., corrected, and enlarged ed. 1843).

80. (1851) 68 Eng. Rep. 492 (Ch.).

81. Id. at 501.

82. Id. at 498.

83. (1888) 40 Ch.D. 345, 353.

84. Id. at 353.

85. Id. at 349.

86. Id. at 349–50.

2007] 137PRIVACY’S OTHER PATH

or an attorney from making known his client’s affairs, learned in the course of

such employment.

Other nineteenth-century cases reached similar results.

The cases discussed above might be read as intellectual property cases, yet

they were often based on two rationales—property and breach of conﬁdence.

Indeed, Prince Albert v. Strange followed the same pattern, as it was based both

on property rights as well as the duties of conﬁdentiality that the printer and his

assistants owed to their royal clients.

These cases protect an equitable interest

separate and apart from property, except perhaps property in the most vague and

metaphorical sense. Indeed, the pre-Warren and Brandeis Pollard case explicitly

rejected a hard property-only position, holding that “[t]he right to grant an

injunction does not depend in any way on the existence of property.”

More-

over, as the leading English treatise on breach of conﬁdence law notes, “[u]n-

doubtedly most of the references in the cases to conﬁdential information as

property are metaphorical. The courts have frequently described a conﬁder’s

rights as proprietary in contexts which make it clear that the description is

merely a convenient term to apply to the conﬁder’s rights in contract and

equity.”

Furthermore, these English breach of conﬁdence cases were also

relied upon by American courts interpreting this area of the common law as

protecting a broader interest than property.

By the time of 1890, then, the

English law of conﬁdence was established as a coherent equitable cause of

action that was quite distinct from the gloss that Warren and Brandeis placed

upon it.

c. Blackmail Law. A related protection of conﬁdential relationships emerged

in blackmail law. Before 1890, blackmail law protected conﬁdentiality by

preventing servants, lovers, and others from revealing secrets about relation-

ships with wealthy elites. In his study of blackmail, Angus McLaren notes that

the term “blackmail” originated from Tudor times and was a general term for

extortion.

Blackmail’s more contemporary meaning—as prohibiting people

from issuing threats to divulge secrets in return for hush money—developed in

87. Id. at 349.

88. See, e.g., Clague v. City Bank, 8 La. 48, 50 (1835); Lamb v. Evans, (1893) 1 Ch. 218, 226;

Foster v. Bank of London, (1862) 176 Eng. Rep. 96, 98; Tipping v. Clarke, (1843) 67 Eng. Rep. 157,

161 (Ch.); Beeston v. Collyer, (1827) 172 Eng. Rep. 276, 277. For a more detailed discussion of the

English cases on this point, see generally David J. Seipp, English Judicial Recognition of a Right to

Privacy, 3 O.J.L.S. 325, 342–45 (1983).

89. See supra notes 36–40 and accompanying text.

90. Pollard, 40 Ch.D. at 354.

91. G

URRY, supra note 73, at 47.

92. See, e.g., Essex Trust Co. v. Enwright, 102 N.E. 441, 442–43 (Mass. 1913); Peabody v. Norfolk,

98 Mass. 452 (1868); Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902) (Gray, J.,

dissenting); Schuyler v. Curtis, 15 N.Y.S. 787 (Sup. Ct. 1891); Stevens & Co. v. Stiles, 71 A. 802 (R.I.

1909); Klug v. Sheriffs, 109 N.W. 656 (Wis. 1906).

93. A

NGUS MCLAREN,SEXUAL BLACKMAIL:AMODERN HISTORY 12 (2002).

138 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

eighteenth-century England. McLaren observes: “Modern blackmail ﬁrst emerged

when criminals in the eighteenth century recognized that laws against sodomy

provided them with the means by which they could extort money from those

whom they could entrap.”

Blackmail statutes emerged in the United States throughout the ﬁrst half of

the nineteenth century.

Lawrence Friedman notes that “about half of the states

criminalized blackmail in situations where what the blackmailer threatened to

expose was not only actual crimes, but also inﬁrmities, immoral conduct, or

other things that would expose the victim to ridicule or disgrace in society.”

The law of blackmail developed substantially during the nineteenth century

because people would transgress strict Victorian laws against vice in the shad-

ows while carefully maintaining a veneer of respectability in public.

Blackmail-

ers were generally in a very different social class from their victims. The

blackmailers were often poor—they were prostitutes, servants, or others who

engaged in illicit trysts with wealthy elites. Even when not involved in a sexual

relationship, servants often had intimate knowledge of their employer’s private

affairs. This placed wealthy elites in a precarious and vulnerable position:

The courts had for centuries reassured [the wealthy] that their good names

were protected by the laws on libel and slander. The publicity given to the

emergence of the blackmailer raised the horriﬁc possibility that the pillaging

of the propertied could be carried out by those who threatened not to tell

hurtful lies, but obscene truths.

McLaren observes that “[b]lackmail scandals exacerbated old fears the well-off

had always had of being robbed by their staff.”

Blackmail thus frequently

served to ensure that the servants and illicit lovers of the afﬂuent would

maintain conﬁdentiality and not exploit the secrets that they learned.

d. Government Records. In addition to the myriad legal protections of informa-

tion shared between individuals in conﬁdential relationships, United States law

also protected the conﬁdentiality of information people supplied to the govern-

ment. During the nineteenth century, one of the most conspicuous instances of

government information gathering occurred with the census. Throughout the

century, successive censuses asked increasingly more numerous and more

intrusive questions; some of which began to involve personal matters.

100

Com-

94. Id. at 3.

95. Lawrence M. Friedman, Name Robbers: Privacy, Blackmail, and Assorted Matters in Legal

History, 30 H

OFSTRA L. REV. 1093, 1111–12 (2002).

96. Id.

97. Id. at 1102.

98. M

CLAREN, supra note 93, at 28–29.

99. Id. at 80.

100. See P

RISCILLA M. REGAN,LEGISLATING PRIVACY:TECHNOLOGY,SOCIAL VALUES, AND PUBLIC POLICY

46 (1995).

2007] 139PRIVACY’S OTHER PATH

pounding the invasiveness of the questioning, census forms were made avail-

able to the public.

101

The census began to raise a considerable public outcry.

One magazine quipped: “Be kind to the census man. . . . If you must kick him,

kick him softly . . . .”

102

To ameliorate people’s privacy concerns, the govern-

ment began promising conﬁdentiality. As early as 1840, census ofﬁcials noted

that some people might not candidly answer census questions “upon the ground

of disinclination to expose their private affairs.”

103

Accordingly, sensitive data

from the census would not be released in identiﬁable form and it was “incul-

cated upon the assistant that he consider all communications made to him in the

performance of his duty, relative to the business of the people, as strictly

conﬁdential.”

104

In 1889, Congress enacted a law ﬁning census ofﬁcials $500

for disclosing conﬁdential information.

105

Conﬁdentiality was also mandated for tax ofﬁcials when they began collect-

ing federal income taxes during the Civil War.

106

Tax fraud ultimately led the

government to make returns available for press scrutiny, but this move “engen-

dered sufﬁcient hostility to kill the [wartime] tax and, later, to prevent any

attempt to reinstitute it.”

107

Seipp observes: “[A]s more and more personal and

ﬁnancial information was required by expanding government enterprises, courts

and legislatures demanded greater conﬁdentiality from recordkeepers and at-

tempted to limit the access of others to such information.”

108

2. The Law of Conﬁdential Communications

Beyond protecting the exchange of information in professional and contrac-

tual relationships, the law also protected certain types of conﬁdential communi-

cations between people in nearly all kinds of relationships. Protection was

premised on one or both of two rationales. First, communicants were viewed as

having a conﬁdential relationship that prohibited either party from divulging

their communications. Second, where communicants used a service like the post

ofﬁce or a telegraph company to deliver their communications, duties of

conﬁdentiality were placed upon those entities as well.

a. Letters and Literary Expression. By 1890, the law of postal conﬁdentiality

and literary property protected the conﬁdentiality of letters. Since colonial

times, the privacy of letters has depended on conﬁdentiality. Early letters were

101. See DAVID J. SEIPP,THE RIGHT TO PRIVACY IN AMERICAN HISTORY 19 (1978), available at

http://pirp.harvard.edu/pubs_pdf/seipp%5Cseipp-p78-3.pdf.

102. Id. at 46.

103. Id. at 21 (quoting Instructions to Marshals, Etc.—Census of 1840).

104. Id. (quoting Instructions to Marshals, Etc.—Census of 1840).

105. Id. at 51–52; see also Act of Mar. 1, 1889, ch. 319, §§ 8, 13, 25 Stat. 760, 763, 764.

106. S

EIPP, supra note 101, at 50.

107. Note, The Right to Privacy in Nineteenth Century America, 94 H

ARV. L. REV. 1892, 1906

(1981).

108. Id. at 1907.

140 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

very difﬁcult to seal, and they would frequently be read by others.

109

Moreover,

letter delivery often included delivery to taverns or coffee houses where the

letters would be left in public for pickup.

110

The American postal service, begun

in colonial times, depended on its employees being trustworthy and not prying

into letters. The 1710 Post Ofﬁce Act of Parliament, applicable to both domestic

and colonial post ofﬁces, mandated that “[n]o person or persons shall presume

wittingly, willingly, or knowingly, to open detain, or delay, or cause, procure,

permit, or suffer to be opened, detained or delayed, any letter or letters, packet

or packets.”

111

Benjamin Franklin and William Hunter, who served as the

deputy postmasters general for the colonies in the 1750s, made employees

swear a similar oath not to open the mail.

112

In 1782, the Continental Congress

passed a law to protect the conﬁdentiality of letters.

113

Congress enacted

another law in 1825 to protect the conﬁdentiality of letters by criminalizing

taking “any letter, postal card, or package out of any post ofﬁce or any

authorized depository for mail matter, or from any letter or mail carrier.”

114

And

in 1877, in Ex parte Jackson,

115

the Supreme Court concluded that the Fourth

Amendment protected letters from government inspection without a warrant.

116

The fact that people willingly gave the government their letters for delivery did

not waive protection, as the government was expected to keep them conﬁden-

tial. As Anuj Desai has argued, this holding represented the embodiment of

earlier notions of postal conﬁdentiality into the very fabric of the Constitu-

tion.

117

The legal protections regarding the conﬁdentiality of letters in the postal

system reﬂected cultural changes that came to regard the mails as “sacred.”

118

While even George Washington had feared that the sentiments he expressed in

letters about the new Constitution were not conﬁdential, “for by passing through

the post-ofﬁce, they should become known to all the world,”

119

by the end of

the nineteenth century a remarkable transformation in social attitudes and law

had taken place. As David Seipp explains, “[n]ineteenth century public opinion

regarded the ‘sanctity of the mails’ as absolute in the same way it esteemed the

109. See DAVID FLAHERTY,PRIVACY IN COLONIAL NEW ENGLAND 118 (1972); ROBERT ELLIS SMITH,BEN

FRANKLIN’S WEB SITE:PRIVACY AND CURIOSITY FROM PLYMOUTH ROCK TO THE INTERNET 24–26 (2000).

110. F

LAHERTY, supra note 109, at 116; SEIPP, supra note 101, at 7–8.

111. S

EIPP, supra note 101, at 9 (quoting 9 Anne cap. X, § 40).

112. See, e.g.,R

EGAN, supra note 100, at 45; SEIPP, supra note 101, at 9; Anuj Desai, The Birth of

Communications Privacy, 60 S

TAN. L. REV. (forthcoming 2007).

113. S

MITH, supra note 109, at 50.

114. Act of Mar. 3, 1825, ch. 64, § 22, 4 Stat. 102 (codiﬁed as amended at 18 U.S.C. § 1702 (2000))

(language quoted is from 18 U.S.C. § 1702). This law is still valid today. See S

MITH, supra note 109, at

51.

115. 96 U.S. 727 (1877).

116. Id. at 733.

117. Desai, supra note 112 (manuscript at 3–4, on ﬁle with authors).

118. See Note, supra note 107, at 1899.

119. S

EIPP, supra note 101, at 11 (quoting Letter from George Washington to Marquis de Lafayette

(Feb. 7, 1788), in 11 W

RITINGS 218 (Worthington C. Ford ed., 1891)).

2007] 141PRIVACY’S OTHER PATH

inviolability of the home.”

120

Improved conﬁdentiality procedures in the Post

Ofﬁce and strong legal protections went hand in hand with an emerging attitude

that the ideas and sentiments expressed in letters traveling through the postal

system should remain inviolate, in language often tinged with overtly religious

imagery. Thus, a Louisiana court could refer in 1811 to the law’s respect for

“the sacredness of a man’s correspondence.”

121

The “sacredness” of personal correspondence promoted by the postal sys-

tem’s public law regime was buttressed by related private law doctrines protect-

ing the unpublished expressions in letters from unwanted disclosure. A variety

of state laws protected against “the violation of epistolary correspondence.”

122

Such statutes reﬂected norms deeply woven into the common law. In Pope v.

Curl,

123

a famous English case involving an attempt to publish letters from

Jonathan Swift and Alexander Pope, Lord Hardwicke noted that for the recipi-

ent of the letter, “possibly the property of the paper may belong to him, but this

does not give license to any person whatsoever to publish them to the world, for

at most, the receiver has only a joint property with the writer.”

124

This doctrine

was reafﬁrmed in Gee v. Pritchard,

125

in which Lord Eldon explained that the

author of letters retained the right to forbid their publication by the recipient,

although principally on a theory of property rights rather than privacy or

conﬁdence.

126

However, as Seipp notes in connection with these cases, “the

grounds of property protection soon became a convenient ﬁction” serving a

broader policy of protection for conﬁdential communications.

127

Joseph Story’s nineteenth-century American interpretation of these English

cases similarly asserted the sacredness of personal correspondence and the

breadth with which property theory could be used to protect them in equity.

Writing in his inﬂuential Commentaries on Equity Jurisprudence in 1843, Story

agreed that the doctrine of Pope and Gee did not rest on “any notion, that the

publication of letters would be painful to the feelings of the writer,” but rather

on basic notions of property law by which the property in the expression

remained with the sender subject only to the recipient’s right to read.

128

But

Story noted that these protections extended beyond valuable compositions such

as those by Swift and Pope to also cover “mere private letters on business, or on

family concerns, or on matters of personal friendship, and not strictly falling

within the line of literary compositions.”

129

He added that “the publication of

120. Note, supra note 107, at 1890.

121. Denis v. LeClerc, 1 Mart. (o.s.) 297, 313 (Orleans 1811); see also Note, supra note 107, at

1899 n.51 (collecting examples).

122. Note, supra note 107, at 1900.

123. (1741) 26 Eng. Rep. 608 (Ch.)

124. Id. at 608.

125. (1818) 36 Eng. Rep. 670 (Ch.).

126. Id. at 674–75, 678.

127. Seipp, supra note 88, at 337–38.

128. S

TORY, supra note 79, at 260.

129. Id. at 261.

142 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

such letters . . . is, perhaps one of the most odious breaches of private conﬁ-

dence, of social duty, and of honorable feelings, which can well be imag-

ined.”

130

Story explained that letters contain intimate details that are “reposed in

the bosoms of others under the deepest and most affecting conﬁdence” and that

“should for ever remain inviolable secrets.”

131

Failing to protect conﬁdentiality

in letters would “compel every one, in self-defence, to write, even to his dearest

friends, with the cold and formal severity with which he would write to his

wariest opponents, or his most implacable enemies.”

132

Accordingly, Story

noted, except in cases where the production of letters was necessary in litigation

of matters of “public justice,” equity could intervene to protect the letters

“where publication would be a violation of a trust or conﬁdence, founded in

contract, or implied from circumstances.”

133

The property right of the sender of

a letter thus dovetailed with established breach of conﬁdence law to provide an

actionable remedy in equity against unwanted disclosures.

134

Numerous American cases protected the conﬁdentiality of private letters prior

to 1890. For example, in Dennis v. LeClerc,

135

a newspaper editor sought to

publish an improperly obtained letter from a sender to a female acquaintance.

The court enjoined the publication of the letter, holding that the sender of a

letter retained a qualiﬁed property right in the letter that allowed him to prevent

its publication, copying, or even its use contrary to the presumed intention of

the sender.

136

The court also discussed the wrongfulness of the “disclosure of

the contents of a conﬁdential communication,”

137

concluding that because the

letter was written in “mystery and conﬁdence” (a term of art in Louisiana law),

“the defendant could not produce it to light without crime.”

138

Moreover, just as

the defendant could not produce it to his associates, he could also not publish it

in the press, due to the “sacredness” of the “conﬁdential letter.”

139

The Georgia Supreme Court ruled in 1859 that publication of “conﬁdential

correspondence” from one member of a partnership to another after dissolution

of the partnership was enjoinable by a court sitting in equity.

140

That court

understood the magnitude of the issue to be as follows:

130. Id.

131. Id.

132. Id.

133. Id. at 262, 264.

134. Cf. S

IMON GREENLEAF,ATREATISE ON THE LAW OF EVIDENCE §253 (Simon Greenleaf Croswell

ed., 15th rev. ed. 1892) (evidence law also prohibited the revelation of private letters in court, especially

those that might be “injurious to the feelings or interest of third persons”).

135. 1 Mart. (o.s.) 297 (Orleans 1811).

136. Id. at 299.

137. Id. at 309–10.

138. Id. at 312.

139. Id. at 313–15.

140. Roberts v. McKee, 29 Ga. 161 (1859).

2007] 143PRIVACY’S OTHER PATH

To give publicity, wantonly, to conﬁdential correspondence, meets with the

prompt rebuke and merited condemnation of every one not lost to all honor-

able feeling. It is a death-blow to the best interests of civilized society itself,

as well as to all the endearments of family and social intercourse. While all

this is fully admitted, the issue to be met and decided is, are Courts of Equity

clothed with power to interpose and grant relief in such cases?

141

Answering this question in the afﬁrmative, and relying heavily upon Story’s

equity treatise, the court concluded that the sender had a qualiﬁed property right

in restraining publication of the letter “to promote conﬁdence—the only solid

foundation upon which society rests—by taking away the temptation to its

betrayal.”

142

Many other state and federal cases protected the conﬁdentiality of

letters in the possession of recipients from publication or sale under property or

overt conﬁdence theories, but nevertheless stand for the broader proposition that

the relationship between the sender and recipient of letters would be pro-

tected.

143

b. The Telegraph. The invention of the telegraph in 1844 raised new issues

for the law of conﬁdentiality. As Thomas Cooley put it, “[t]here are [] to every

telegraphic despatch [sic] three parties—the sender, the receiver, and the tele-

graph company.”

144

Employees of telegraph companies like Western Union had

access to telegraph messages, raising concerns about conﬁdentiality akin to

those raised with the postal system over a century before. Throughout the

second half of the nineteenth century, numerous laws arose to address the

conﬁdentiality of telegraphic communications.

In order to promote telegraphy as an effective and secure means of communi-

cations, telegraph companies were eager to assure their customers that their

messages would be held in conﬁdence. Telegraph companies prohibited employ-

ees from disclosing telegrams and often resisted attempts to subpoena tele-

grams.

145

One study even suggests that Western Union employees in the 1870s

would burn a message rather than disclose it under compulsion,

146

and there is

some evidence that individual employees resisted attempts to breach telegraphic

141. Id. at 163.

142. Id.

143. See, e.g., Rice v. Williams, 32 F. 437, 439 (C.C.E.D. Wis. 1887) (sale of letters relating to

medical afﬂictions was “grossly disreputable business”); Folsom v. Marsh, 9 F. Cas. 342, 345–47

(C.C.D. Mass. 1841) (No. 4901) (court of equity can restrain wrongful publication of private letters “as

a breach of private conﬁdence or contract”); Dock v. Dock, 36 A. 411, 412 (Pa. 1897) (writer of letters

has a “special property” right allowing her to withhold their publication or use by one wrongfully in

possession); Eyre v. Higbee, 22 How. Pr. 198 (N.Y. Sup. Ct. 1861) (personal and business letters in

hands of executor are not assets subject to sale); Woolsey v. Judd, 11 How. Pr. 49 (N.Y. Sup. Ct. 1855)

(protecting letters under a literary property theory with reference to conﬁdentiality).

144. Thomas M. Cooley, Inviolability of Telegraphic Correspondence, 27 A

M. L. REG. 65, 66 (1879).

145. Note, supra note 107, at 1901 & n.68 (citing W

ESTERN UNION TELEGRAPH CO., RULES,REGULA-

TIONS, AND INSTRUCTIONS NO. 128, at 55 (Cleveland, 1866)).

146. S

MITH, supra note 109, at 67–68.

144 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

conﬁdentiality in the face of legal process.

147

Telegraphic conﬁdentiality may have been good business, but it was a

practice that became increasingly mandated by law. According to one treatise on

the law of telegraphs, two-thirds of states had by 1879 passed some sort of

statute imposing a nondisclosure obligation on telegraph company employees in

order to protect the “inviolability” of telegrams.

148

Many states also protected

telegrams against wiretapping by the government.

149

Advocates of telegraphic

inviolability went even further and argued that the contents of telegrams should

be privileged and inadmissible in court,

150

although such arguments were

largely unsuccessful.

151

However, as a result of the arguments of advocates of

telegraph conﬁdentiality, courts rejected “dragnet” searches of telegraph records

by requiring subpoenas for telegrams to specify the date and topic of any

telegrams that were sought.

152

Thus, by 1890 both public opinion and signiﬁ-

cant statutory law gave substantial protection to telegraphic conﬁdentiality.

***

As the preceding discussion illustrates, Warren and Brandeis did not write on

a nearly blank slate when they crafted their “right to privacy.” Instead of

developing and expanding the robust law of conﬁdentiality that already existed,

Warren and Brandeis took American privacy law down a different path. Before

the Warren and Brandeis article, English and American privacy law were on a

similar trajectory, being built out of the same materials and concepts. American

judges read English precedent and attempted to situate their rulings within the

fabric of the common law. Afterwards, the paths diverged. The next Part

explores the path Warren and Brandeis charted for American privacy law, and

also the path not taken—that of developing the law of conﬁdentiality. England

took this alternative path, with some illuminating and fascinating results.

II. P

RIVACY’S DIVERGENT PATHS

Throughout the twentieth century , American privacy law began to embrace Warren

and Brandeis’ s right to privacy. In contrast, in England, the Warren and Brandeis

article had a chilly reception and was rejected. Instead of creating a law of privacy ,

England developed a law of conﬁdentiality , which was explicitly distinguished from

privacy. Ironically, both the American law of privacy and the English law of conﬁden-

tiality emerged from the same source—the Prince Albert case. In this Part, we

compare the two divergent paths leading from Prince Albert.

147. See Ex parte Brown, 7 Mo. App. 484, 494 (App. Ct. 1879) (afﬁrming contempt conviction

against telegraph ofﬁce manager who refused to comply with a third-party subpoena).

148. M

ORRIS GRAY,ATREATISE ON COMMUNICATION BY TELEGRAPH 212 & n.1, 213 & nn.1–3 (1879)

(collecting statutes).

149. See Note, supra note 107, at 1901.

150. See Ex Parte Brown, 7 Mo. App. at 494–96 (Lewis, P.J., dissenting); Cooley, supra note 144, at

77.

151. G

RAY, supra note 148, at 213–14.

152. Note, supra note 107, at 1902.

2007] 145PRIVACY’S OTHER PATH

A. PRIVACY IN TWENTIETH-CENTURY AMERICA

1. Early Developments

In the twentieth century, privacy torts inspired by Warren and Brandeis’s

article slowly developed and proliferated in the United States. As early as 1891,

a New York judge recognized the Warren and Brandeis right to privacy in

Schuyler v. Curtis,

153

a case involving the erection of a statue of a deceased

philanthropist.

154

The New York Court of Appeals reversed the decision, not

because it rejected the right to privacy, but because it concluded that upon a

person’s death any right to privacy died with him.

155

In the lower state and

federal courts, a handful of other early cases ﬂirted with recognizing a right of

privacy

156

and generated a ﬂurry of scholarly commentary before the turn of the

century.

157

The ﬁrst state court of last resort to rule on the right to privacy was the New

York Court of Appeals. In the famous 1902 case of Roberson v. Rochester

Folding Box Co.,

158

the court squarely rejected the right to privacy. An advertise-

ment for Franklin Mills Flour used a drawing of a young woman, Abigail

Roberson, without her consent. The picture was a ﬂattering one, but Roberson

sued because she was “humiliated” by it and suffered mental distress as a

result.

159

The court concluded that there was no precedent to recognize Warren

and Brandeis’s tort remedies for invasion of privacy, and that such a right was

best left to the legislature to enact.

160

The Roberson case produced a wave of

153. 45 N.Y.S. 787 (Sup. Ct. 1891).

154. Id. at 788; see also Marks v. Jaffa, 26 N.Y.S. 908 (Sup. Ct. 1893) (ﬁnding violation of Warren

and Brandeis’s right to privacy where newspaper published picture of actor for purposes of testing his

popularity).

155. Schuyler v. Curtis, 42 N.E. 22, 25–26 (N.Y. 1895).

156. See Corliss v. E.W. Walker Co., 57 F. 434, 435 (C.C.D. Mass. 1893) (refusing to enjoin

biography of inventor on grounds he was public ﬁgure); Atkinson v. Doherty, 80 N.W. 285 (Mich.

1899) (rejecting privacy claim by widow of politician who objected to his likeness appearing on a cigar

label on ground that public ﬁgures surrender privacy rights to the public); Murray v. Gast Lithographic

& Engraving Co., 28 N.Y.S. 271 (Sup. Ct. 1894) (parents cannot enjoin unauthorized publication of

pictures of their children).

157. See generally Herbert Spencer Hadley, The Right to Privacy, 3 N.W. L. R

EV. 1 (1894);

Augustus Hand, Schuyler Against Curtis and the Right to Privacy, 36 A

MER. L. REG. (n.s.) 745 (1897);

John Gilmer Speed, The Right to Privacy, 163 N. A

M. L. REV. 64 (1896); Recent Cases, Untitled

(Atkinson v. Doherty),5V

A. L. REG. 710 (1899); Guy Thompson, The Right of Privacy as Recognized

and Protected at Law and in Equity, 47 C

ENTRAL L.J. 148 (1898); Note, Development of the Law of

Privacy,8H

ARV. L. REV. 280 (1894); Comment, Is This Libel?—More about Privacy,7HARV. L. REV.

492 (1894); Case Comment, A New Phase of the Right to Privacy, 10 H

ARV. L. REV. 179 (1896); The

Right to Privacy,3G

REEN BAG 524 (1891); Comment, The Right to Privacy,5HARV. L. REV. 148

(1891); Case Comment, The Right to Privacy,7H

ARV. L. REV. 182 (1893); Case Comment, The Right

to Privacy, 12 H

ARV. L. REV. 207 (1898); The Right to Privacy,4MADRAS L.J. 17 (1894), reprinted in 6

REEN BAG 498 (1894); Comment, The Right to Privacy—The Schuyler Injunction,9HARV. L. REV. 354

(1895); Recent Cases, Torts—Right to Privacy, 13 H

ARV. L. REV. 415 (1900); Comment, Untitled

(Marks v. Jaffa), 2 N.W. L. R

EV. 91 (1894).

158. 64 N.E. 442 (N.Y. 1902).

159. Id. at 442.

160. Id. at 447–48.

146 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

public criticism. An editorial in the New York Times lambasted the decision.

161

Commentary in law reviews largely sided with Roberson and decried the court’s

failure to redress her injury,

162

although one of the judges who decided the

Roberson case took the unusual step of defending the decision in the Columbia

Law Review.

163

A year later, in 1903, the New York legislature responded to the

case by enacting a statute allowing people to sue for invasion of privacy where

their “name, portrait, or picture” was used without consent “for purposes of

trade.”

164

Two years later, the Georgia Supreme Court recognized in the common law a

tort remedy for invasions of privacy. The case, Pavesich v. New England Life

Insurance Co.,

165

involved a situation similar to that in Roberson—a man’s

image was used in an advertisement without his consent. The court concluded

that a “right of privacy in matters purely private is . . . derived from natural

law.”

166

From its start in Pavesich, the new privacy tort began to slowly spread from

jurisdiction to jurisdiction. The early privacy cases were in some disarray, with

courts in various states embracing or rejecting rights to privacy in tort in a

variety of commercial and personal contexts. The fact pattern of Roberson and

Pavesich was common, with perhaps a majority of the early cases recognizing

rights of privacy in the context of the unconsented use of photographs in

advertising.

167

Nevertheless, as contemporary commentators recognized,

168

courts

recognizing the right to privacy invariably did so under the auspices of the

theory (if not the precise theory) laid out by Warren and Brandeis.

169

Over the

161. Editorial, N.Y. TIMES, Aug. 23, 1902, reprinted in Denis O’Brien, The Right to Privacy,2

OLUM. L. REV. 437, 447 (1902) (declaring that Roberson “excited as much amazement among lawyers

and jurists as among the promiscuous lay public”).

162. See generally Alexander Armstrong, Jr., Note, Injunction—Rights of Privacy—Enforcement in

Equity, 50 A

M. L. REG. 669 (1902); Comment, An Actionable Right to Privacy?, 12 YALE L.J. 35, 36–37

(1902); Case Comment, The Miscalled Right of Privacy, 10 A

M.LAWYER 293 (1902); Note, Publication

of Photograph as an Advertisement,2C

OLUM. L. REV. 486 (1902); Note, The Right of Privacy, 64 ALB.

L.J. 409 (1902); Note and Comment, The Right of Privacy,3M

ICH. L. REV. 559 (1904); Note, Right of

Privacy, 12 V

A. L. REG. 91 (1906); Book Review, Right to Privacy, 16 HARV. L. REV. 72 (1902).

163. O’Brien, supra note 161 at 437. O’Brien was not the only participant in Roberson who later

sought to justify its outcome. For another defense, see articles by Elbridge L. Adams, counsel for the

defendant: Elbridge L. Adams, The Law of Privacy, 175 N. A

M.REV. 361 (1902); Elbridge L. Adams,

The Right of Privacy, and Its Relation to the Law of Libel, 39 A

M. L. REV. 37 (1905).

164. See, e.g., Irwin R. Kramer, The Birth of Privacy Law: A Century Since Warren and Brandeis,

39 C

ATH. U. L. REV. 703, 717 (1990). The statute, which remains on the books today, is the New York

Civil Rights Law §§ 50–51 (McKinney 1976 & Supp. 1990).

165. 50 S.E. 68 (Ga. 1905).

166. Id. at 70.

167. For a detailed account of the growth of privacy torts, see generally P

EMBER, supra note 18.

168. See, e.g., Frederick Davis, What Do We Mean by “Right to Privacy”?, 4 S.D. L. R

EV. 1 (1959);

Wilbur Larremore, The Law of Privacy, 12 C

OLUM. L. REV. 693, 697 (1912); Louis Nizer, The Right of

Privacy: A Half-Century’s Developments, 39 M

ICH. L. REV. 526 (1941); see also WILLIAM L. PROSSER,

ANDBOOK ON THE LAW OF TORTS 636–37 (2d ed. 1955) [hereinafter PROSSER,TORTS SECOND EDITION]

(collecting cases from this period adopting the Warren and Brandeis argument).

169. P

EMBER, supra note 18, at 31, 57.

2007] 147PRIVACY’S OTHER PATH

ensuing decades, an increasing number of states permitted redress for invasions

of privacy. The First Restatement of Torts, published in 1939, had a brief

section on privacy, which stated: “A person who unreasonably and seriously

interferes with another’s interest in not having his affairs known to others or his

likeness exhibited to the public is liable to the other.”

170

But the spread of the

tort was slow in its ﬁrst half-century, and as of 1940, only ﬁfteen states had

recognized it.

171

During the 1940s and 1950s, many more jurisdictions began

recognizing the right to privacy, with the result that by the late 1950s, most

states had adopted a tort right of privacy in one form or another.

172

2. William Prosser and the Maturation of the Privacy Torts

The growing number of privacy cases attracted the attention of William

Prosser, the leading American torts scholar of the mid-twentieth century. Prosser

began the project of imposing some order on the hundreds of privacy cases that

had been decided since 1890. He discussed privacy in all of the editions of his

torts treatise, which were published in 1941, 1955, 1964, and 1971.

173

His most

famous discussion of the topic was a 1960 article entitled Privacy published in

the California Law Review.

174

In that article, Prosser noted that over 300

privacy cases had been decided since the Warren and Brandeis article, and that

to date, there had been little “attempt to inquire what interests are we protecting,

and against what conduct.”

175

He observed that the

law of privacy comprises four distinct kinds of invasion of four different

interests of the plaintiff, which are tied together by the common name, but

otherwise have almost nothing in common except that each represents an

interference with the right of the plaintiff, in the phrase coined by Judge

Cooley, ‘to be let alone.’

176

Prosser identiﬁed the torts as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private

affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

170. RESTATEMENT (FIRST) OF TORTS § 867 (1939).

171. P

EMBER, supra note 18, at 95.

172. Id. at 146.

173. W

ILLIAM L. PROSSER,HANDBOOK ON THE LAW OF TORTS (1st ed. 1941) [hereinafter PROSSER,TORTS

FIRST EDITION]; PROSSER,TORTS SECOND EDITION, supra note 168; WILLIAM L. PROSSER,HANDBOOK ON THE

LAW OF TORTS (3d ed. 1964) [hereinafter PROSSER,TORTS THIRD EDITION]; WILLIAM L. PROSSER,HAND-

BOOK ON THE LAW OF TORTS (4th ed. 1971) [hereinafter PROSSER,TORTS FOURTH EDITION].

174. Prosser, supra note 4.

175. Id. at 388.

176. Id. at 389.

148 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or

likeness.

177

In creating this taxonomy of the law of privacy, Prosser had a dramatic effect on

the development of privacy law in America. But Prosser’s inﬂuence did not only

enhance the development of privacy law, it also led to some signiﬁcant limita-

tions.

On the surface, Prosser’s project appeared to be descriptive, an attempt

simply to catalog the existing cases. However, Prosser was deliberately shaping

the law, and he understood that he was engaging in such an endeavor. Like

many of his contemporaries, Prosser was a legal realist who believed that tort

law was best understood to be a “common sense” balancing of social interests

rather than a series of universal principles.

178

Nevertheless, unlike more ex-

treme realists who doubted the value of legal doctrine, Prosser concentrated his

talents on reﬁning, clarifying, and ordering legal doctrine, since he believed that

law worked best when rules were clear.

179

Prosser thus actively attempted to

mold legal doctrine as he described it, something he did when recognizing the

tort of intentional inﬂiction of emotional distress, which, like privacy, rested

upon a mental injury.

180

He used the same approach in his treatment of privacy.

In his speeches and the various editions of his treatise, casebook, and articles,

Prosser approached the multitude of privacy decisions with a gradual but

systematizing impulse. The 1941 edition of Prosser’s widely read torts treatise

gave privacy limited attention—just twelve pages in a chapter entitled “Miscella-

neous.”

181

Prosser noted that the privacy cases decided by the various state

courts fell into three rough categories: appropriation of one’s name or likeness,

intrusion into one’s home or personal affairs, and public disclosure of one’s

private information.

182

By 1953, though, Prosser concluded that there was a

fourth privacy tort: the so-called “false light” tort redressing publicity that

places the plaintiff in a false light in the public eye. In a lecture in February of

that year at the University of Michigan, he suggested that although the bound-

aries of the privacy tort were “anything but well deﬁned,” the tort “appears in

reality to be a complex of four more or less related wrongs.”

183

He included

false light in his 1955 treatise, where the topic of privacy ﬁnally received its

own separate chapter.

184

Thus, by the time of his 1960 article, Privacy, Prosser had long been tracking

the development of privacy law. In the article, Prosser described the four torts in

177. Id.

178. W

HITE, supra note 28, at 102.

179. Id. at 157–58.

180. Id. at 102–06.

181. P

ROSSER,TORTS FIRST EDITION, supra note 173, at 1050–1062.

182. Id. at 1050.

183. W

ILLIAM L. PROSSER,SELECTED TOPICS ON THE LAW OF TORTS 116–19 (1953).

184. P

ROSSER,TORTS SECOND EDITION, supra note 168.

2007] 149PRIVACY’S OTHER PATH

great detail and charted their contours and limitations. Prosser was quite skepti-

cal of the privacy torts; he noted that their development “has gone on without

any plan, without much realization of what is happening or its signiﬁcance, and

without any consideration of its dangers.”

185

For Prosser, these dangers were

quite extensive. The intrusion tort was essentially intentional inﬂiction of

emotional distress with fewer limits and no requirement of outrageousness,

186

while appropriation created a new and extensive regime of intellectual property

under which every individual had a common law trademark in his name and

likeness unfettered by any of the policy limitations placed on business marks.

187

Even more dangerous, he believed, were the torts of false light and public

disclosure. Both torts, Prosser argued, moved into the ﬁeld of defamation law,

but did so by removing many of the careful limitations that the law had

developed for libel and slander in order to protect freedom of speech and press.

Gone, according to Prosser, were the defense of truth, the requirement of special

damages for most types of statements affecting reputation, and the need “for

any defamatory innuendo at all.”

188

Gone too was the procedural protection

provided by defamation retraction statutes. But the greatest concern, he argued,

was

the extent to which, under any test of ‘ordinary sensibilities,’ or the ‘mores’ of

the community as to what is acceptable and proper, the courts, although

cautiously and reluctantly, have accepted a power of censorship over what the

public may be permitted to read, extending very much beyond that which they

have always had under the law of defamation.

189

Prosser went on to observe that he would not view the development of the

privacy torts as “wrong” but “that it is high time that we realize what we are

doing, and give some consideration to the question of where, if anywhere, we

are to call a halt.”

190

This last statement suggested that perhaps privacy had

already gone too far.

Prosser’s inﬂuence over the privacy torts was further enhanced by his posi-

tion as a reporter of the Second Restatement of Torts, which imported his

four-part taxonomy of the privacy torts—a taxonomy that has been accepted by

virtually all courts and commentators to the present day.

191

The tort of intrusion

upon seclusion provides a remedy when a person “intentionally intrudes, physi-

cally or otherwise, upon the solitude or seclusion of another or his private

185. Prosser, supra note 4, at 422.

186. Id.

187. Id. at 423.

188. Id. at 422.

189. Id. at 423.

190. Id.

191. See, e.g.,D

ANIEL J. SOLOVE,MARC ROTENBERG,&PAUL M. SCHWARTZ,INFORMATION PRIVACY

LAW (2d ed. 2006); RICHARD C. TURKINGTON &ANITA L. ALLEN,PRIVACY LAW:CASES AND MATERIALS (2d

ed. 2002).

150 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

affairs or concerns” in a manner that is “highly offensive to a reasonable

person.”

192

Under the public disclosure of private facts tort:

One who gives publicity to a matter concerning the private life of another is

subject to liability to the other for invasion of his privacy, if the matter

publicized is of a kind that (a) would be highly offensive to a reasonable

person, and (b) is not of legitimate concern to the public.

193

The tort of false light provides a remedy against giving “publicity to a matter

concerning another that places the other before the public in a false light” in a

manner that is “highly offensive to a reasonable person.”

194

Finally, the tort of

appropriation provides: “One who appropriates to his own use or beneﬁt the

name or likeness of another is subject to liability to the other for invasion of his

privacy.”

195

As G. Edward White argues, the “‘tort’ of privacy . . . was in some respects

Prosser’s own invention: he gave privacy a doctrinal unity and continuity that it

had not previously possessed.”

196

Recognition by Prosser gave the tort consider-

able legitimacy. His position as the leading treatise writer, scholar, and casebook

author of his day, along with his position as a reporter of the Restatement, gave

him a unique ability to affect the law at multiple levels. By restating the law of

privacy into a complex of four concrete causes of action, Prosser simpliﬁed and

restricted the case law, excluding related theories of relief from his taxonomy

and thus from being associated with the concept of “privacy.” For example,

although Prosser noted the great overlap between intrusion upon seclusion and

intentional inﬂiction of emotional distress, he opted not to include the latter tort

under the rubric of privacy.

197

More importantly, Prosser excluded from his complex of privacy torts the

emerging American tort of breach of conﬁdentiality. By 1960, a small group of

American cases had recognized a tort for breach of conﬁdentiality

198

or found

breaches of express or implied contracts against nondisclosure.

199

For example,

192. RESTATEMENT (SECOND) OF TORTS § 652B (1977).

193. Id. § 652D.

194. Id. § 652E.

195. Id. § 652C.

196. W

HITE, supra note 28, at 173.

197. P

ROSSER,TORTS SECOND EDITION, supra note 168, at 639 (noting that “[w]hen the ‘new tort’ of

intentional inﬂiction of mental suffering becomes fully developed and receives general recognition, the

great majority of the privacy cases may very possibly be absorbed into it”).

198. See, e.g., Bazemore v. Savannah Hosp., 155 S.E. 194 (Ga. 1930) (breach of conﬁdence for

hospital to leak photo of a deformed child—decided on privacy grounds); Douglas v. Stokes, 149 S.W.

849 (Ky. 1912) (photographer breached implied contract when making extra copies of photos of

father’s dead babies); Smith v. Driscoll, 162 P. 572 (Wash. 1917) (assuming doctors can be liable for

breaching the conﬁdences of their patients while testifying in court).

199. See, e.g., McCreery v. Miller’s Groceteria Co., 64 P.2d 803, 805 (Colo. 1937) (purchase of

photograph by person photographed coupled with statement that no further sale of her photographs was

to be permitted created express contract that further copies of photograph must not be sold).

2007] 151PRIVACY’S OTHER PATH

in the 1920 case of Simonsen v. Swenson,

200

the court held that because

physicians were “bound” by “professional honor and the ethics of [their] high

profession” to maintain patient conﬁdentiality, a “wrongful breach of such

conﬁdence, and a betrayal of such trust, would give rise to a civil action for

damages naturally ﬂowing from such wrong.”

201

And in Fitzsimmons v. Olinger

Mortuary Ass’n,

202

the court found a mortician’s publicity of his use of an

airplane to move a casket violated an implied contract with the decedent’s

widow where she had asked for no “undue publicity or notoriety.”

203

As the

court noted, “[i]f this not be true, there is nothing to prevent the embalming of a

body and the parading of it through the city streets, exposed to the gaze of

curious throngs, while a hired caller calls attention to it as an example of the

undertaker’s skill.”

204

Prosser, however, gave hardly any attention to the conﬁ-

dence cases in his article, and he did not consider them worthy of establishing a

potential ﬁfth privacy tort.

205

Perhaps Prosser did not include breach of conﬁden-

tiality because the cases did not cite Warren and Brandeis as their origin or

because they were less numerous or more contractual than cases involving the

privacy torts. The result was that the four torts Prosser identiﬁed became widely

known as tort law’s way of protecting privacy. Breach of conﬁdentiality was left

out of the picture.

In the third edition of his torts treatise in 1964, Prosser only brieﬂy men-

tioned a few breach of conﬁdentiality tort cases, including Simonsen, but he did

so only in passing in a discussion of the public disclosure tort.

206

Likewise, in

the fourth edition in 1971, the ﬁnal edition before his death in 1972, Prosser

cited Simonsen along with three other breach of conﬁdentiality cases. He noted

the general rule that the public disclosure tort was limited to instances when the

information was disclosed widely to the public “unless there is some breach of

contract, trust or conﬁdential relation which will afford an independent basis for

relief.”

207

He said little else about the breach of conﬁdentiality tort.

Whether intentionally or not, Prosser had the effect of halting the torts’

evolution.

208

Despite the fact that the Warren and Brandeis article spawned four

200. 177 N.W. 831 (Neb. 1920).

201. Id. at 832.

202. 17 P.2d 535 (Colo. 1932).

203. Id. at 535.

204. Id. at 537 (implied contract violated where mortuary association publicized delivery of casket

by aircraft against widow’s wishes).

205. See Prosser, supra note 4, at 393–94 (noting that the disclosure tort is not violated by

communication to a small group of people rather than the public at large “unless there is some breach of

contract, trust, or conﬁdential relation which will afford an independent basis for relief”). Prosser also

noted that the disclosure by an individual of information contained only in “conﬁdential” government

records such as tax records was “not open to public inspection” and could thus be the basis for a

disclosure action. See id. at 395–96.

206. P

ROSSER,TORTS THIRD EDITION, supra note 173, at 807 & n.97.

207. Id. at 810 & n.84.

208. See, e.g., Jonathan P. Graham, Note, Privacy, Computers, and the Commercial Dissemination of

Personal Information, 65 T

EX. L. REV. 1395, 1406 (1987) (“Dean Prosser’s categorization of privacy

152 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

torts in the seventy years since its publication, once Prosser identiﬁed the torts,

no new privacy torts were created in the common law during the nearly ﬁfty

years thereafter. One exception is the right of publicity, a spinoff from appropria-

tion that protects people’s property rights in their name or likeness. The right of

publicity ﬁrst emerged in 1953, when Judge Jerome Frank held that “in addition

to and independent of that right of privacy (which in New York derives from

statute), a man has a right in the publicity value of his photograph.”

209

Appropria-

tion remedies the mental distress caused by the improper exploitation of a

person’s name or likeness. In contrast, the right of publicity enables people

(typically celebrities and other famous individuals) to recover the economic

value of their personas when used commercially without their consent.

210

one commentator summarizes, appropriation is “invaded by an injury to the

psyche” whereas “the right of publicity is infringed by an injury to the pocket

book.”

211

Prosser did not recognize an independent right of publicity, possibly

because he understood appropriation as primarily about property rights rather

than mental distress.

212

Aside from the right of publicity, however, Prosser’s

formulations of the privacy torts ossiﬁed, and, to this day, they have not

changed in any signiﬁcant degree. Prosser’s snapshot of the privacy torts in

1960 thus became a permanent image.

The Prosser formulations of the torts became entrenched in the law in part

because he incorporated them into the Second Restatement of Torts when he was

serving as reporter.

213

Most states currently follow the Restatement’s formula-

tions of the torts.

214

Prosser did not include the breach of conﬁdentiality tort in

the “invasion of privacy” section of the Restatement, which consisted solely of

the four Warren and Brandeis privacy torts. In fact, breach of conﬁdentiality did

not appear in the Restatement at all. Through Prosser, Warren and Brandeis’s

turn from conﬁdentiality became even more frozen into the law.

Following Prosser’s article, the privacy torts continued to ﬂourish, although

along the lines that Prosser had plotted out for them. In 1971, in the fourth

edition of his torts treatise Prosser declared that “[i]n one form or another, the

right of privacy is by this time recognized and accepted in all but a very few

law into four torts, each with several indispensable elements has effectively frozen the development of

privacy law despite the creation of new technologies that detrimentally affect individual privacy.”).

209. Haelan Labs. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953).

210. See Mark P. McKenna, The Right of Publicity and Autonomous Self-Deﬁnition, 67 U. P

ITT. L.

EV. 225 (2005).

211. See J. T

HOMAS MCCARTHY,THE RIGHTS OF PUBLICITY AND PRIVACY § 5:63 (2000); see also id.

§ 5:61.

212. See R

ESTATEMENT (SECOND) OF TORTS § 652C, cmt. a (1977) (“Although the protection of [one’s]

personal feelings against mental distress is an important factor leading to a recognition of the

[appropriation tort], the right created by it is in the nature of a property right . . . .”).

213. Andrew J. McClurg, Kiss and Tell: Protecting Intimate Relationship Privacy Through Implied

Contracts of Conﬁdentiality, 74 U. C

IN. L. REV. 887, 897 (2006). The privacy torts section of the

Second Restatement was completed in 1967. See id. at 897 n.64. Prosser resigned from serving as

reporter in 1970, and he died in 1972. The Second Restatement was ﬁnally published in 1977. Id.

214. Id. at 897.

2007] 153PRIVACY’S OTHER PATH

jurisdictions.”

215

Today, virtually every state recognizes the Warren and Bran-

deis privacy torts in one form or another.

216

However, as Prosser had also

outlined, the privacy torts came under increasing attack from the 1960s onwards

for infringing upon free speech. Three of the four torts were addressed in

Supreme Court cases. In 1967, in Time, Inc. v. Hill,

217

the Court held that the

First Amendment required the actual malice standard to establish a false light

claim.

218

The right of publicity tort was examined by the Court in 1977 in

Zacchini v. Scripps-Howard Broadcasting Co.

219

The Court distinguished appro-

priation from false light, and the branch of the appropriation tort known as the

“right of publicity” narrowly survived a First Amendment challenge.

220

The public disclosure tort came to the Court’s attention in 1975 in Cox

Broadcasting v. Cohn.

221

In Cox Broadcasting, the Court discussed the origins

of the tort in Warren and Brandeis’s article and observed that “the century has

experienced a strong tide running in favor of the so-called right of privacy.”

222

Basing its decision on the First Amendment, the Court held that despite the right

to privacy’s “impressive credentials,” when “true information is disclosed in

public court documents open to public inspection, the press cannot be sanc-

tioned for publishing it.”

223

The Court declined to address “the broader ques-

tion” that would implicate the constitutionality of the tort in all its applications—

namely, “whether the State may ever deﬁne and protect an area of privacy free

from unwanted publicity in the press.”

224

Subsequent Supreme Court cases reiterated the Cox rule. In Smith v. Daily

Mail,

225

the Court held: “If a newspaper lawfully obtains truthful information

about a matter of public signiﬁcance then state ofﬁcials may not constitutionally

punish publication of the information, absent a need to further a state interest of

the highest order.”

226

In Florida Star v. B.J.F.,

227

the Court reiterated the rule in

Daily Mail by concluding that the First Amendment prohibited liability when a

newspaper published the name of a rape victim obtained from a police report.

228

After Florida Star, commentators rushed to give the eulogy for the public

215. PROSSER,TORTS FOURTH EDITION, supra note 173, at 804.

216. See, e.g.,R

OBERT M. O’NEIL,THE FIRST AMENDMENT AND CIVIL LIABILITY 77 (2001) (noting that

only North Dakota and Wyoming fail to recognize any of the privacy torts in some form or another).

217. 385 U.S. 374 (1967).

218. Id. at 387–88 (“[T]he constitutional protections for speech and press preclude the application of

the New York [privacy] statute to redress false reports of matters of public interest in the absence of

proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the

truth.”).

219. 433 U.S. 562 (1977).

220. Id. at 573, 578–79.

221. 420 U.S. 469 (1975).

222. Id. at 488.

223. Id. at 489, 496.

224. Id. at 491.

225. 443 U.S. 97 (1979).

226. Id. at 103.

227. 491 U.S. 524 (1989).

228. Id. at 533–37.

154 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

disclosure tort. One commentator observed: “Given the narrow class of informa-

tion that fulﬁlls the Florida Star requirements, the tort can no longer be an

effective tool for protecting individual privacy.”

229

Another legal scholar wrote:

“The Court paid lip service to the possibility that a private-fact plaintiff may

recover in some cases, but its decisions leave little hope for vindication of such

a plaintiff’s rights.”

230

The apocalyptic declarations about the public disclosure tort were probably

inspired by Justice White’s dissent that the Court’s decision would “obliterate

one of the most noteworthy legal inventions of the 20th century: the tort of the

publication of private facts.”

231

But these statements were signiﬁcant exaggera-

tions, as the Supreme Court repeatedly reiterated that its holding was very

narrow. In fact, the privacy torts by and large survived the First Amendment

challenges and remain viable torts, even though they are infrequently in-

voked.

232

Nevertheless, a number of commentators view the privacy torts as not

very successful because it is very difﬁcult for plaintiffs to prevail under them.

233

And the privacy torts have struggled when addressing emerging privacy prob-

lems in the Information Age, such as the collection, use, and disclosure of

personal data by businesses.

234

Despite these limitations, the impact of Warren, Brandeis, and Prosser on

American privacy law should not be minimized. The privacy torts are recog-

nized in nearly every state, and Warren and Brandeis inﬂuenced the growth of a

tremendous body of law beyond torts. Their conception of privacy as protecting

the dignity of the individual has formed the backbone of privacy law in the

United States. As David Leebron notes, Warren and Brandeis spoke of privacy

229. Jacqueline K. Rolfs, The Florida Star v. B.J.F.: The Beginning of the End for the Tort of Public

Disclosure, 1990 W

IS. L. REV. 1107, 1128.

230. Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice Black, 68 T

EX. L.

EV. 1195, 1207 (1990).

231. Florida Star, 491 U.S. at 550 (White, J., dissenting).

232. Cf. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against

Disclosure, 53 D

UKE L.J. 967, 988–89 (2003) (arguing that the Court has constitutionalized the

newsworthiness test, requiring heightened scrutiny for restrictions on disclosures of public concern but

expressly leaving open the question about the level of scrutiny for restrictions on disclosures of private

concern).

233. See, e.g., Lawrence M. Friedman, Name Robbers: Privacy, Blackmail, and Assorted Matters in

Legal History, 30 H

OFSTRA L. REV. 1093, 1125 (2002) (“In hindsight, it looks as if the Warren and

Brandeis idea of privacy—protection from the despicable nosiness of the media—never got much past

the starting post; and is now effectively dead.”); Richard S. Murphy, Property Rights in Personal

Information: An Economic Defense of Privacy, 84 G

EO. L.J. 2381, 2388 (1996) (describing the invasion

of privacy tort as “alive, but on life support”); Rodney A. Smolla, Accounting for the Slow Growth of

American Privacy Law, 27 N

OVA L. REV. 289, 289–90 (2002) (“If privacy law were a stock, its

performance over the last century would not be deemed impressive.”). But see John A. Jurata, Jr.,

Comment, The Tort That Refuses To Go Away: The Subtle Reemergence of Public Disclosure of Private

Facts, 36 S

AN DIEGO L. REV. 489, 490 (1999) (claiming the invasion of privacy tort “may be on the

verge of a signiﬁcant comeback”).

234. See generally D

ANIEL J. SOLOVE,THE DIGITAL PERSON:TECHNOLOGY AND PRIVACY IN THE INFORMA-

TION AGE (2004); Richards, supra note 9; Daniel J. Solove, Privacy and Power: Computer Databases

and Metaphors for Information Privacy, 53 S

TAN. L. REV. 1393 (2001).

2007] 155PRIVACY’S OTHER PATH

as a general legal right, not merely as a tort law protection.

235

Indeed, Warren

and Brandeis mentioned other remedies to protect the right to privacy—criminal

law and injunctive relief.

236

In 1891, just a year after the Warren and Brandeis

article was published, the “right to be let alone” found its way into constitu-

tional law. The Supreme Court held in Union Paciﬁc Railway Co. v. Botsford,

237

that a court could not compel a plaintiff in a civil suit to undergo a surgical

examination: “As well said by Judge Cooley: ‘The right to one’s person may be

said to be a right of complete immunity; to be let alone.’”

238

In 1928, Brandeis incorporated the “right to be let alone” into Fourth

Amendment law when, sitting as a Supreme Court Justice, he dissented in

Olmstead v. United States.

239

Sternly disagreeing with the Court’s conclusion

that wiretapping was not a Fourth Amendment violation, Brandeis wrote that

the “makers of our Constitution . . . conferred, as against the government, the

right to be let alone—the most comprehensive of rights and the right most

valued by civilized men.”

240

Brandeis further stated that to protect the right to

be let alone, “every unjustiﬁable intrusion by the government upon the privacy

of the individual, whatever the means employed, must be deemed a violation of

the Fourth Amendment.”

241

Modern Fourth Amendment law has since drawn

heavily from Brandeis’s ideas, and Olmstead has long since been overruled.

Moreover, both Botsford and Brandeis’s views of Fourth Amendment privacy

were later used by the Court to help fashion the constitutional “right to privacy.”

In Griswold v. Connecticut

242

and Roe v. Wade,

243

the Court relied on the ideas

ﬁrst articulated in Warren and Brandeis’s article to articulate the scope of the

constitutional protection of privacy rights. Warren and Brandeis’s conception of

privacy thus did not just inﬂuence the privacy torts; it also had a wide-ranging

effect on the law of privacy more generally.

244

3. The Breach of Conﬁdentiality Tort

Slighted by Warren and Brandeis and virtually ignored by Prosser, conﬁdenti-

ality had a stunted development in the United States during the twentieth

century, and it still has not fully penetrated into the culture of American privacy

law. In the United States, the breach of conﬁdentiality tort has grown up in the

shadow of the Warren and Brandeis torts. Not only did Prosser overlook breach

of conﬁdentiality, but also in many privacy cases, breach of conﬁdentiality

235. David W. Leebron, The Right to Privacy’s Place in the Intellectual History of Tort Law, 41

ASE W. RES. L. REV. 769, 807 (1991).

236. Warren & Brandeis, supra note 1, at 219.

237. 141 U.S. 250 (1891).

238. Id. at 251 (quoting C

OOLEY,LAW OF TORTS FIRST EDITION, supra note 31, at 29).

239. 277 U.S. 438 (1928), overruled in part by Katz v. United States, 389 U.S. 347 (1967).

240. Olmstead, 277 U.S. at 478 (Brandeis, J. dissenting).

241. Id.

242. 381 U.S. 479, 484–86 (1965).

243. 410 U.S. 113, 152 (1973).

244. See Richards, supra note 9, at 1104–07.

156 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

could have been an option but often was not explored. Breach of conﬁdentiality

remained ignored and underdeveloped while the Warren and Brandeis torts

enjoyed the spotlight. Although the tort of breach of conﬁdence has seen some

development in recent decades, it remains in a relatively obscure and frequently

overlooked corner of American tort law.

Only in the past few decades has the breach of conﬁdentiality tort begun to

take on more prominence. In 1982, Alan Vickery suggested in a student note

that remains the leading scholarly work on the tort that “courts are just

beginning to formulate an adequate common law remedy for unconsented

disclosures of personal information in breach of conﬁdence.”

245

A 1992 com-

ment by Michael Harvey argued that the “breach of conﬁdence tort has experi-

enced a recent reemergence in American common law.”

246

A plaintiff can establish a breach of conﬁdence action by proving the

existence and breach of a duty of conﬁdentiality. Courts have found the

existence of such a duty by looking to the nature of the relationship between the

parties, by reference to the law of ﬁduciaries, or by ﬁnding an implied contract

of conﬁdentiality.

247

Most commonly, the breach of conﬁdentiality tort applies

to physicians.

248

Courts have also applied it to banks,

249

hospitals,

250

insurance

companies,

251

psychiatrists,

252

social workers,

253

accountants,

254

school ofﬁ-

245. Alan B. Vickery, Note, Breach of Conﬁdence: An Emerging Tort, 82 COLUM. L. REV. 1426, 1426

(1982).

246. G. Michael Harvey, Comment, Conﬁdentiality: A Measured Response to the Failure of Privacy ,

140 U. P

A. L. REV. 2385, 2396 (1992).

247. Susan M. Gilles, Promises Betrayed: Breach of Conﬁdence as a Remedy for Invasions of

Privacy, 43 B

UFF. L. REV. 1, 20–25 (1995).

248. See Alberts v. Devine, 479 N.E.2d 113, 120 (Mass. 1985) (“We hold today that a duty of

conﬁdentiality arises from the physician-patient relationship and that a violation of that duty, resulting

in damages, gives rise to an action sounding in tort against the physician.”).

249. See Peterson v. Idaho First Nat’l Bank, 367 P.2d 284, 290 (Idaho 1961) (“It is implicit in the

contract of the bank with its customer or depositor that no information may be disclosed by the bank or

its employees concerning the customer’s or depositor’s account, and that, unless authorized by law or

by the customer or depositor, the bank must be held liable for breach of the implied contract.”).

250. See Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523 (Ohio 1999) (“[A]n independent tort

exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information

that a physician or hospital has learned within a physician-patient relationship.”).

251. See Ingram v. Mut. of Omaha Ins. Co., 170 F. Supp. 2d 907, 911 (W.D. Mo. 2001) (“When in

possession of medical records shielded by the physician-patient privilege, an insurance company has a

special conﬁdential relationship with its insured—a ﬁduciary relationship—and from that relationship

ﬂows a duty to protect those medical records from unauthorized disclosure.”).

252. See Saur v. Probes, 476 N.W.2d 496, 498 (Mich. Ct. App. 1991) (“The ﬁrst issue presented is

whether a cause of action exists for a psychiatrist’s disclosure of privileged communications. We hold

that such a cause of action does exist.”).

253. See Harley v. Druzba, 169 A.D.2d 1001, 1002 (N.Y. App. Div. 1991) (“[C]ommunications to be

fostered in the social worker/client relationship are conﬁdential and . . . plaintiff is entitled to invoke the

privilege of professional conﬁdence, a breach of which is actionable as a tort even though it arises from

a contractual relationship.”).

254. See Wagenheim v. Alexander Grant & Co., 482 N.E.2d 955, 961 (Ohio Ct. App. 1983) (“It is

implied in every contractual relationship between an accountant and his client that a general duty exists

2007] 157PRIVACY’S OTHER PATH

cials,

255

attorneys,

256

and employees.

257

Some courts have held that liability

under the breach of conﬁdentiality tort also extends to “a third party who

induces a breach of a trustee’s duty of loyalty, or participates in such a breach,

or knowingly accepts any beneﬁt from such a breach.”

258

According to David Elder, the “clear modern consensus of the case law” is to

recognize the breach of conﬁdentiality tort.

259

Despite the development and

growth of the breach of conﬁdentiality tort on the American side of the Atlantic,

the American tort remains much less developed than its English cousin. As one

commentator observed:

The paucity of breach of conﬁdence cases was probably due to the rise of the

private-facts tort following Samuel Warren and Louis Brandeis’s seminal

1890 Harvard Law Review article . . . . Most jurisdictions accepted Warren

and Brandeis’s argument alleging the inherent superiority of the “broader”

right to privacy approach to privacy protection, and the breach of conﬁdence

cause of action fell into a period of dormancy.

260

The American breach of conﬁdentiality tort has yet to come close to reaching

its fullest potential. The tort still applies only to a limited set of relationships,

with most cases involving the patient-physician relationship. Moreover, third-

party liability for inducing or beneﬁting from breaches of conﬁdentiality has

only been recognized in a few cases. Having only recently gained momentum,

the breach of conﬁdentiality tort often has not been raised in many cases where

it might have relevance.

261

B. PRIVACY IN TWENTIETH-CENTURY BRITAIN

The story of privacy in Britain serves as an interesting contrast to the

American experience. English law, like American law, also developed a law of

“private” information. As in America, this English strand of the common law

also traces its origins back to Prince Albert v. Strange. Yet where American law,

not to make extra-judicial disclosures of information acquired in the course of their professional

relationship, and that a breach of that duty by an accountant may give rise to a cause of action.”).

255. See Blair v. Union Free Sch. Dist., 324 N.Y.S.2d 222, 228 (N.Y. D. Ct. 1971) (“Although the

relationship of a student and a student’s family with a school and its professional employees probably

does not constitute a ﬁduciary relationship, it is certainly a special or conﬁdential relationship.”).

256. See Rich v. N.Y. Cent. & Hudson River R.R. Co., 87 N.Y. 382, 390 (1882) (“When such duty

grows out of relations of trust and conﬁdence, as that of the agent to his principal or the lawyer to his

client, the ground of the duty is apparent, and the tort is, in general, easily separable from the mere

breach of contract.”).

257. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 516 (4th Cir. 1999) (“[T]he tort

[breach of duty of loyalty] applies when the employee breaches her employer’s conﬁdences.”).

258. Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 803 (N.D. Ohio 1965); see also Biddle

v. Warren Gen. Hosp., 715 N.E.2d 518 (Ohio 1999).

259. D

AVID A. ELDER,PRIVACY TORTS § 5:2 (2006) (writing in the context of physician and therapist

conﬁdentiality duties).

260. Harvey, supra note 246, at 2398–99.

261. We discuss some examples in Part II.C, infra.

158 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

guided by Warren and Brandeis, focused on the intellectual property part of the

opinion, English law has focused on the breach of conﬁdence part. English

courts ﬂatly rejected Warren and Brandeis’s right to privacy, and created a

separate body of law they referred to as “conﬁdence” or “conﬁdentiality.” As

one leading English study of the law of conﬁdence puts it, an obligation of

conﬁdentiality will attach “whenever information is imparted, either explicitly

or implicitly, for a limited purpose. . . . The obligation of conﬁdence thus

formed extends not only to those conﬁdants who have received conﬁdential

information . . . but also to any third parties to whom the conﬁdant discloses the

information in breach of his obligation.”

262

The English law of conﬁdence is quite different from the American law of

privacy. Consider the case of Barrymore v. News Group Newspapers, Ltd.

263

Actor Michael Barrymore had a homosexual affair with Paul Wincott, who

worked for a company Barrymore jointly owned with his wife. Wincott pro-

vided details of the affair to a newspaper, including letters written by Barry-

more. The court held that there was a breach of conﬁdence: “[W]hen people

enter into a personal relationship of this nature, they do not do so for the

purpose of it subsequently being published in The Sun, or any other newspaper.

The information about the relationship is for the relationship and not for a wider

purpose.”

264

The case of Stephens v. Avery

265

provides another illustration of the English

approach. In a case that received widespread publicity in Britain, one Mr.

Telling murdered his wife after he found her in bed with another woman.

266

The

plaintiff, Rosemary Stephens, conﬁded in a close friend, Anne Avery, that she

was the then-unknown woman having the sexual relationship with Mrs. Telling.

Stephens expressly told Avery that the information was being disclosed in

conﬁdence. Avery then told this fact to a newspaper which published the

information in an article entitled “Rosemary’s Story.” The court concluded that

Avery breached a duty of conﬁdentiality by telling the newspaper.

267

The court

rejected the argument that information loses its conﬁdential nature because a

few others might know about it. If information is “communicated to the world,”

it is no longer conﬁdential, but “this will not necessarily be the case if the

information has previously only been disclosed to a limited part of [the]

public.”

268

The results in these cases would very likely be different under American

262. GURRY, supra note 73, at 4.

263. [1997] F.S.R. 600 (Ch.) (U.K.).

264. Id. at 602.

265. [1988] F.S.R. 510. For additional facts, see also J

OSHUA ROZENBERG,PRIVACY AND THE PRESS

(2004).

266. Stephens, [1988] F.S.R. at 510.

267. Id. at 518.

268. Id. at 516 (quoting Attorney General v. Guardian Newspapers Ltd. (No. 2), (1998) 2 W.L.R.

805, 868).

2007] 159PRIVACY’S OTHER PATH

privacy law. Courts might dismiss the cases, either concluding that the informa-

tion was not private since others knew about it or ﬁnding that the information

was “of legitimate concern to the public.”

269

Beyond the privacy torts, the

American breach of conﬁdentiality tort would have difﬁculty because only a

few courts have held that it can make third parties liable for knowingly using

information obtained via a breach. Moreover, the American tort currently has

been applied only to a limited set of relationships; courts have not yet extended

the tort to friends or lovers. In contrast, English law is much more open-ended

in the relationships it protects. As the court in Stephens stated:

Although the relationship between the parties is often important in cases

where it is said there is an implied as opposed to an express obligation of

conﬁdence, the relationship between the parties is not the determining factor.

It is the acceptance of the information on the basis that it will be kept secret

that affects the conscience of the recipient of the information.

270

Thus, English common law developed a law of conﬁdence which differs

signiﬁcantly from the American privacy torts. This section traces how and why

English law took such a divergent path.

1. Origins and Development

In England, Prince Albert v. Strange is considered to be a primary foundation

for the breach of conﬁdence tort. Although breach of conﬁdence cases existed

before,

271

Prince Albert became the clearest and most well-known precedent for

the establishment of the tort, in part because of its famous plaintiffs and

interesting facts,

272

but also because of its legal importance in establishing that

breach of conﬁdence can be actionable even to third parties.

273

After Prince

Albert, the next major development in the breach of conﬁdence tort occurred

just before the First World War. In 1913, in Ashburton v. Pape,

274

Edward Pape

sought to use letters between his creditor Lord Ashburn and the Lord’s solicitor

in a bankruptcy proceeding. The Master of the Rolls enjoined the use of the

letters because Pape had tricked the solicitor’s clerk into giving him the

letters.

275

The court reasoned that the duty of conﬁdence which ran between

269. RESTATEMENT (SECOND) OF TORTS § 652D (1977). If a disclosure is of legitimate concern to the

public, then a plaintiff cannot prevail under the public disclosure tort.

270. Stephens, [1988] F.S.R. at 517.

271. See supra notes 71–88 and accompanying text.

272. R

EID, supra note 59, at 9.

273. See G

URRY, supra note 73, at 20–21, 48–50; THE LAW OF PRIVACY AND THE MEDIA 6–7 (Michael

Tugendhat & Ian Christie eds., 2003); T

OULSON &PHIPPS, supra note 78, at 9; LORD CHANCELLOR’S

OFFICE,SCOTTISH OFFICE,REPORT OF THE COMMITTEE ON PRIVACY, 1972, Cmnd. 5012, at 296 [hereinafter

“Younger Report”] (ﬁnal report of the “Younger Commission” established by the Labour government in

1970 to study whether Parliament should take legislative action on privacy).

274. (1913) 2 Ch.D. 469 (C.A.) (U.K.).

275. Id. at 472–73.

160 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

lawyer and clerk could equitably be extended to the wrongdoer Pape who was

aware of the conﬁdential nature of the communications.

276

As another of the

judges who heard the case put it, such a ruling was fully consistent with the

Court of Chancery’s practice “for many years . . . to restrain the publication of

conﬁdential information improperly or surreptitiously obtained or of informa-

tion imparted in conﬁdence which ought not to be divulged.”

277

Breach of conﬁdence was cemented as a common law action by the seminal

1948 case of Saltman Engineering Co. v. Campbell Engineering Co.

278

The

court held in that case that “the obligation to respect conﬁdence is not limited to

cases where the parties are in contractual relationship.”

279

Saltman established

breach of conﬁdence as a tort remedy separate and apart from contract.

280

This

conclusion was afﬁrmed for personal conﬁdences as well in Argyll v. Argyll,

281

in which the court clariﬁed that breach of conﬁdence was a remedy in personal

matters, not just commercial ones. There, the court enjoined the Duke of Argyll

from disclosing to reporters his wife’s secrets.

282

It reasoned that “there could

hardly be anything more intimate or conﬁdential than is involved in [a marital]

relationship.”

283

The English tort of breach of conﬁdence crystallized in the 1969 case of Coco

v. Clark.

284

Coco was an action by the inventor of a moped engine against a

moped manufacturer to enjoin the manufacturer’s use of design ideas communi-

cated by the inventor in unsuccessful contract negotiations between the parties.

Although Coco involved a commercial conﬁdence (or what American law

would call a trade secret), it has formed the comprehensive basis under English

law for the analysis of personal as well as commercial conﬁdences.

285

Under the

Coco v. Clark formulation for the breach of conﬁdence tort, plaintiffs must

satisfy three elements. First, the information must have “the necessary quality of

conﬁdence about it.”

286

Second, the information “must have been imparted in

circumstances importing an obligation of conﬁdence.”

287

And third, there must

be an “unauthorised use of that information to the detriment of the party

276. Id.

277. Id. at 475 (opinion of Swinfen-Eady, L.J.).

278. (1963) 3 All E.R. 413 (1948) (U.K.).

279. Id. at 414.

280. See R

EID, supra note 59, at 12–13; TOULSON &PHIPPS, supra note 78, at 16–17.

281. [1967] Ch. 302 (U.K.).

282. Argyll v. Argyll [1967] Ch. 302 (1964). The actual conﬁdences enjoined related to what a

divorce judge had earlier called “disgusting sexual activities to gratify a debased sexual appetite,”

referring to her “infamous sexual liason with a man, generally believed to have been Douglas

Fairbanks, Jr., who was photographed ‘headless.’” R

OZENBERG, supra note 265, at 10.

283. Argyll, [1967] Ch. at 322.

284. Coco v. A.N. Clark (Eng’rs) Ltd., [1969] R.P.C. 41 (U.K.).

285. See, e.g.,R

OZENBERG, supra note 265, at 8–9; THE LAW OF PRIVACY AND THE MEDIA, supra note

273, at 202; Venable v. News Group Newspapers Ltd., [2001] Fam. 430, 447–48.

286. Coco, [1969] R.P.C. at 47 (opinion of Megarry, J.).

287. Id.

2007] 161PRIVACY’S OTHER PATH

communicating it.”

288

Subsequent cases have ﬂeshed out each of the Coco factors in some detail.

With respect to the ﬁrst factor of “quality of conﬁdence,” four categories of

information have been protected as conﬁdential.

289

Three of these categories—

personal conﬁdences, trade secrets, and artistic and literary conﬁdences—track

the earlier cases fairly well, with the fourth category, government conﬁdences,

being a new but fairly limited category.

290

Trade secrets and artistic conﬁdences

have developed along a similar path to the earlier cases discussed above.

291

The

only test established for conﬁdences has been a negative one—that the informa-

tion at issue be neither trivial nor in the public domain.

292

Information held to

have the “quality of conﬁdence” about it has included information about health

and medical treatment, information about a person’s sex life or other intimate

relationships, ﬁnancial information, photographs taken at “private” events, infor-

mation relating to private letter or telephone communications, the contents of

personal diaries, information about involvement in crime, and information

relating to children.

293

Moreover, in cases which have held that a “quality of

conﬁdence” exists, factors relevant to this ﬁnding have included the presence of

a contract calling for conﬁdentiality, the intimate or private nature of the

information, actions taken by the conﬁder or conﬁdant suggesting the existence

of conﬁdentiality, and the foreseeable damage caused by disclosure of the

288. Id.

289. G

URRY, supra note 73, at 89; THE LAW OF PRIVACY AND THE MEDIA, supra note 273, at 205.

290. See, e.g., Attorney Gen. v. Jonathan Cape Ltd. (1976) 1 Q.B. 752, 769–70 (opinion of Widgery,

C.J.) ( “[W]hen a Cabinet Minister receives information in conﬁdence the improper publication of such

information can be restrained by the court, and his obligation is not merely to observe a gentleman’s

agreement to refrain from publication.”); see also T

HE LAW OF PRIVACY AND THE MEDIA, supra note 273,

at 208–13 (noting that the law of conﬁdence applies differently to government secrets because the

government must show that disclosure of a secret would be detrimental to the public interest, whereas

in private cases the party seeking disclosure must show that disclosure would be beneﬁcial to the public

interest); R

OZENBERG, supra note 265, at 9–10, 210–216 (noting that the law of conﬁdence applies to the

publication of government secrets learned in conﬁdence).

291. The doctrine of conﬁdence in trade secrets protects economic rights and interests. Determining

what constitutes protected information is highly contextual, but has previously included customer lists,

technical secrets, production methods, ﬁnancial secrets, prices paid, and business and trading informa-

tion. The underlying rationale for the doctrine is recognition of the need for secrecy for innovation and

progress, but is balanced against public policy concerns of contract and competition. T

HE LAW OF

PRIVACY AND THE MEDIA, supra note 273, at 206–08. The more limited doctrine covering artistic and

literary conﬁdences also protects economic rights and interests, but has been limited drastically by the

law of copyright. Literary and artistic conﬁdences have involved etchings, private letters, plots and

ideas for television and stage, political diaries, and drawings. Because of the diversity of possible types

of information involved in these cases, the remedy will generally track the nature of the interest so that

commercial interests may result in damages while privacy interests may require an injunction. Id. at

228.

292. See Gavin Phillipson, Transforming Breach of Conﬁdence? Towards a Common Law Right of

Privacy Under the Human Rights Act, 66 M.L.R. 726, 732 (2003).

293. See T

HE L AW OF PRIVACY AND THE MEDIA, supra note 273, at 213–28; REID, supra note 59, at

142–54; T

OULSON &PHIPPS, supra note 78, at 38–55, 145–94.

162 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

information.

294

The second Coco factor, the imparting of the information under “circum-

stances importing an obligation of conﬁdence,” goes to the nature of the

relationship that is allegedly conﬁdential. An obligation of conﬁdence is gener-

ally created whenever information is given from one person to another for a

limited purpose.

295

In addition, third parties who obtain information from a

source who has breached conﬁdentiality can also be liable for using the informa-

tion. As long as the third party knows that information she has received is in

conﬁdence, she is bound by the conﬁdence even if she received the material

innocently.

296

English courts have protected a variety of relationships as involv-

ing an obligation of conﬁdence.

297

In addition to express contracts of conﬁdenti-

ality and the categories of trade secrets and marital conﬁdences already discussed,

other relationships given an obligation of conﬁdence have included a wide

variety of personal and professional relationships, including lawyer-client,

298

patient-doctor,

299

employer-employee,

300

customer-banker,

301

accountant-

294. See THE LAW OF PRIVACY AND THE MEDIA, supra note 273, at 228–39; REID, supra note 59, at

30–48; T

OULSON &PHIPPS, supra note 78, at 19–22, 26–31.

295. G

URRY, supra note 73, at 4.

296. Id.; see also Fraser v. Evans, (1969) 1 Q.B. 349, 361 (C.A.) (opinion of Denning, M.R.);

Schering Chems. Ltd. v. Falkman Ltd., [1982] Q.B. 1 (C.A.).

297. See generally,G

URRY, supra note 73, at 122–76; THE LAW OF PRIVACY AND THE MEDIA, supra

note 273, at 248–65; T

OULSON &PHIPPS, supra note 78, at 145–92.

298. See B. v. Auckland Dist. Law Soc’y, (2003) 2 A.C. 736, 757 (U.K.); R. (Morgan Grenfell &

Co.) v. Special Comm’r of Income Tax, (2003) 1 A.C. 563 (U.K.); see also G

URRY, supra note 73, at

149–56; T

OULSON &PHIPPS, supra note 78, at 183–93.

299. See, e.g., Campbell v. MGN Ltd., (2004) 2 A.C. 457, 499 (U.K.) (opinion of Baroness Hale);

Lady Archer v. Williams, [2003] EWHC (QB) 1670 (U.K.) (holding that medical information is

conﬁdential); R. v. Dep’t of Health, [2001] F.S.R. 8 (C.A.) (U.K.) (holding that pharmacists owe a duty

of conﬁdentiality to those to whom they dispense medication); W. v. Egdell, [1990] Ch. 359 (U.K.)

(physician’s duty); see also G

URRY, supra note 73, at 148–49; THE LAW OF PRIVACY AND THE MEDIA,

supra note 273, at 214–15; R

EID, supra note 59, at 145–47; TOULSON &PHIPPS, supra note 78, at

145–56.

300. See, e.g., Faccenda Chicken Ltd. v. Fowler, [1987] Ch. 117(U.K.) (holding that the scope of

employment duties or information determines the scope of conﬁdence); Thomas Marshall (Exports)

Ltd. v. Guinle, [1979] Ch. 227 (U.K.) (recognizing employer-employee conﬁdentiality as well as

contract-based duty); Printers & Furnishers Ltd. v. Holloway, [1965] W.L.R. 239 (U.K.) (recognizing

employer-employee conﬁdentiality as well as contract-based duty); Amber Size & Chemical Co. Ltd. v.

Menzel, (1913) 2 Ch. 239 (U.K.) (recognizing a duty of conﬁdentiality in employment); see also

URRY, supra note 73, at 179–224; TOULSON &PHIPPS, supra note 78, at 171–78.

301. See Tournier v. Nat’l & Provincial Union Bank of Eng., (1924) 1 K.B. 461 (C.A.); see also

Turner v. Royal Bank Scot., [2001] EWCA (Civ) 64 (recognizing the existence of a bank’s duty of

conﬁdentiality known as the “Tournier Rules” although ruling for the bank-defendant); Christoﬁ v.

Barclays Bank Plc., (1999) 4 All E.R. 437 (reafﬁrming the “Tournier Rules” although ultimately ruling

for the defendant-bank because of a statutory right to information); Barclays Bank Plc. v. Taylor, [1989]

1 W.L.R. 1066 (C.A.) (U.K.) (reafﬁrming banker-customer conﬁdentiality).

2007] 163PRIVACY’S OTHER PATH

client,

302

ﬁduciary-beneﬁciary,

303

arbitrator/mediator-litigant,

304

government min-

isters with the government,

305

and cases of artistic or literary conﬁdence.

306

Courts have not limited the tort to speciﬁc categories of relationships. Beyond

marital relationships, for example, courts have extended the tort to lovers and

friends.

307

The third Coco factor requires that there be a “detrimental use” of the

conﬁdential information.

308

At one level, some sort of injury is generally

required before equity would get involved, but subsequent courts have been

relatively reluctant both to deﬁne the requisite level of injury required and even

to state with certainty whether detriment is required as an absolute matter in all

cases.

309

Moreover, it may well be, as one case suggested, that the very breach

of a conﬁdence is inherently detrimental, regardless of any proof of damages.

310

Even if the three Coco factors are satisﬁed, the mere existence of a conﬁ-

302. See Parry-Jones v. Law Soc’y, [1969] 1 Ch. 1 (C.A.) (U.K.) (holding that professional

practitioners such as accountants must hold information in conﬁdence); Evitt v. Price, (1827) 57 Eng.

Rep. 659.

303. See Yates Circuit Foil Co. v. Electrofoils Ltd., [1976] Ch. 345, 394 (U.K.) (Whitford, J.)

(noting that a ﬁduciary relationship is relevant to determining the existence of a duty of conﬁdentiality);

Phipps v. Boardman (1967) 2 A.C. 46 (U.K.) (holding that solicitor to trustees who proﬁted from

information learned in the relationship was a breach of conﬁdence); see also G

URRY, supra note 73, at

158–62.

304. See Dolling-Baker v. Merrett, [1990] W.L.R. 1205 (C.A.) (U.K.) (holding that parties to

arbitration are under a duty of conﬁdentiality); Theodoropoulas v. Theodoropoulas, (1963) 2 All E.R.

772 (U.K.) (holding that for mediation of husband and wife reconciliation all parties were bound by

duty of conﬁdentiality).

305. See cases cited supra note 290.

306. See supra note 37 and accompanying text; Prince of Wales v. Associated Newspapers, [2006]

EWHC (Ch) 522 (U.K.) (granting summary judgment on theories of breach of conﬁdence and

secretary); Ashdown v. Tel. Group Ltd., [2001] Ch. 685 (U.K.) (applying conﬁdence law to protect

political diary); Times Newspapers Ltd. v. Mirror Group Newspapers Ltd., [1993] EMLR 443 (U.K.)

(applying conﬁdence law to protect political diary); Talbot v. Gen. Television Corp., [1981] R.P.C. 1

(U.K.) (applying conﬁdence law to an idea for a television series); Floydd v. Cheney, (1970) 1 All E.R.

446 (defendant enjoined from misusing architectural drawings); Pollard v. Photographic Co., (1888) 40

Ch.D. 345, 349 (U.K.) (defendant enjoined from commercially using a portrait taken of plaintiff); Tuck

& Sons v. Priester, (1887) 19 Q.B.D. 629 (U.K.) (court enjoined defendant from printing copies for own

use of a drawing the plaintiff gave to be copied); Gilbert v. Star Newspaper Co., (1894) 11 T.L.R. 4

(U.K.) (recognizing conﬁdence as grounds to restrain publication of the plot of an unreleased play);

Abernethy v. Hutchinson, (1825) 3 L.J. Ch. 209 (U.K.) (holding that publicly delivered lectures could

not be published); Thompson v. Stanhope, (1774) 27 Eng. Rep. 476 (recognizing conﬁdentiality of

private correspondence); see also T

HE LAW OF PRIVACY AND THE MEDIA, supra note 273, at 225, 228.

307. See Stephens v. Avery, (1988) 1 Ch. 449 (U.K.) (friend liable for breach of conﬁdence);

Barrymore v. News Group Newspapers, [1997] F.S.R. 600 (U.K.) (lover liable for breach of conﬁ-

dence). See generally G

URRY, supra note 73, at 143.

308. Coco v. A.N. Clark (Eng’rs) Ltd., [1969] R.P.C. 41, 47–48 (U.K.).

309. G

URRY, supra note 73, at 407; THE LAW OF PRIVACY AND THE MEDIA, supra note 273, at 264–65

(collecting cases); T

OULSON &PHIPPS, supra note 78, at 70–73.

310. Attorney Gen. v. Guardian Newspapers, (1990) 1 A.C. 109, 265 (opinion of Lord Keith); cf.

Moorgate Tobacco Co. v. Philip Morris Ltd., (1984) 156 C.L.R. 414, 438 (Australian case cited with

approval in T

OULSON &PHIPPS, supra note 78, at 71).

164 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

dence does not mean that courts will protect it under all circumstances.

311

English courts have recognized a number of exceptions to an enforceable

conﬁdence, such as consent, information that is trivial or in the public domain,

and information that is in the public interest.

312

Two of these exceptions are

particularly relevant here. First, conﬁdences contrary to the “public interest,”

such as those used for tortious or criminal purposes, will not be enforced.

313

Thus, in Campbell v. Frisbee,

314

supermodel Naomi Campbell was able to

enforce an obligation of conﬁdence against her assistant Vanessa Frisbee regard-

ing information about Campbell’s personal life that Frisbee learned in the

course of her employment, but the obligation did not extend to information

regarding a violent assault that Campbell allegedly made on her employee.

315

More generally, English courts have repeatedly made clear that a person cannot

be made “the conﬁdant of a crime or fraud.”

316

Second, information in the public domain does not generally qualify for

protection as a conﬁdence.

317

The determination of whether something is in the

public domain, however, is a question of degree and “is not to be defeated

simply by proving that there are other people in the world who know the facts in

question.”

318

Because a conﬁdence is by deﬁnition a sharing of information,

there will always be other people who are aware of the information, and the

question is not whether others are aware of the information but rather whether

so many people are aware of it that it can no longer be said to be a conﬁ-

dence.

319

As one court noted, “information only ceases to be capable of

protection as conﬁdential when it is in fact known to a substantial number of

people.”

320

Moreover, English conﬁdence law also protects collections of data even

where the individual pieces of data are each drawn from the public domain. As

the court put it in Coco v. Clark:

Something that has been constructed solely from materials in the public

domain may possess the necessary quality of conﬁdence: for something new

and conﬁdential may have been brought into being by the application of the

311. GURRY, supra note 73, at 5.

312. T

OULSON &PHIPPS, supra note 78, at 41.

313. G

URRY, supra note 73, at 6.

314. [2002] EWCA (Civ) 1374 (U.K.).

315. Id.; see also G

URRY, supra note 73, at 6.

316. Gartside v. Outram, (1857) 26 L.J. Ch. (n.s.) 113, 114; accord Attorney Gen. v. Guardian

Newpapers, (1990) 1 A.C. 109, 282–283; Lion Labs. Ltd. v. Evans, [1985] Q.B. 526, 550 (C.A.) (U.K.);

Beloff v. Pressdram Ltd. (1973) 1 All E.R. 241, 260 (U.K.).

317. See generally Guardian Newspapers, (1990) 1 A.C. at 282 (opinion of Lord Goff); T

HE LAW OF

PRIVACY AND THE MEDIA, supra note 273, at 239–41; TOULSON &PHIPPS, supra note 78, at 44–45.

318. Franchi v. Franchi, [1967] R.P.C. 149, 152 (U.K.).

319. See T

HE LAW OF PRIVACY AND THE MEDIA, supra note 273, at 239–41; Phillipson, supra note

292, at 736.

320. Stephens v. Avery, [1988] Ch. 449, 454 (U.K.).

2007] 165PRIVACY’S OTHER PATH

skill and ingenuity of the human brain. Novelty depends upon the thing itself

and not upon the quality of its constituent parts.

321

As developed under the Coco test, English conﬁdence law evolved into a

robust and ﬂexible body of law protecting personal and commercial information

from disclosure under a conceptually distinct theory from the one undergirding

American privacy law. Rather than information nondisclosure rules justiﬁed to

protect the feelings and inviolate personalities of plaintiffs, English law justiﬁed

nondisclosure in terms of the trust and reliance in relationships. English law as

it stood in the late 1990s thus protected against betrayal by conﬁdants rather

than embarrassment by strangers. Yet the two separate paths of privacy would

once again begin to converge.

2. The Human Rights Act and the Move Toward “Privacy”

By the late 1990s, the English law of conﬁdence had a very broad scope that

was gradually expanding. Courts had stretched the idea of an obligation of

conﬁdence quite far, interpreting it to include cases where there was not even

any communication between the plaintiff and the recipient of the information,

such as secret photography or wiretapping.

322

And third parties have long had

obligations of conﬁdence imposed upon them when they knowingly received

conﬁdential material from the conﬁdant, even where there was no relationship

between the third party and the conﬁder.

323

Therefore, in many situations, the

law of conﬁdence could be extended to parties outside the relationship in which

the conﬁdence was initially made. While not as unshackled as a more general

law of privacy might be, the law of conﬁdence had the ability to cover a wide

range of cases.

This ﬂexibility in conﬁdence law was paralleled by a steadfast insistence by

courts and Parliament that English law not recognize a general right to privacy

along American lines. For almost a century, some English commentators had

called for the establishment of a Warren-and-Brandeis-style privacy tort to

supplement breach of conﬁdence. But despite the urging of judges,

324

commen-

321. Coco v. Clark, [1969] R.P.C. 41, 47 (U.K.); see also THE LAW OF PRIVACY AND THE MEDIA, supra

note 273, at 207.

322. See Phillipson, supra note 292, at 743 & n.133 (collecting cases).

323. See Ashburton v. Pape, (1913) 2 Ch.D. 469, 472 (opinion of Cozens-Hardy, M.R.); G

URRY,

supra note 73, at 269–71.

324. See Douglas v. Hello! Ltd., [2001] Q.B. 967, 997 (opinion of Sedley, J.) (“[W]e have reached a

point at which it can be said with conﬁdence that the law recognises and will appropriately protect a

right of personal privacy.”); Schering Chems. Ltd. v. Falkman Ltd., [1982] Q.B. 1, 21 (opinion of

Denning, J.) (“Whilst freedom of expression is a fundamental human right, so also is the right of

privacy. Everyone has the right to respect for his private life and his correspondence: article 8 of the

European Convention.”); see also Stephen Sedley, Towards a Right to Privacy,L

ONDON REV. OF BOOKS,

June 8, 2006, at 20 (lamenting that the House of Lords turned down “a paradigmatic opportunity to

acknowledge a true privacy right” when it denied recovery in Wainwright v. Home Ofﬁce, [2001]

EWCA (Civ) 2081).

166 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

tators,

325

and law commissions

326

for stronger protections for conﬁdentiality or

an express right of privacy, Parliament consistently refused to create a statutory

tort.

Courts also consistently refused to recognize an American-style tort in the

common law. The most famous judicial rejection of privacy occurred in the case

of Kaye v. Robertson in 1991.

327

The court refused to prevent the publication of

an interview and photographs of a celebrity recovering in his hospital room

from a brain injury. The court noted that the plaintiff suffered “a monstrous

invasion of his privacy” and that “[i]f ever a person has a right to be let alone by

strangers with no public interest to pursue, it must surely be when he lies in

hospital recovering from brain surgery and in no more than partial command of

his faculties.”

328

However, the court concluded, “[i]t is this invasion of his

privacy which underlies the plaintiff’s complaint. Yet it alone, however gross,

does not entitle him to relief in English law.”

329

By contrast, this fact pattern has

traditionally been an easy case for American privacy law to protect.

330

The Kaye principle persisted until recently, a fact best illustrated by the recent

case of Wainwright v. Home Ofﬁce.

331

In January 1997, when Mary Wainwright

and her handicapped son Alan Wainwright were visiting a prison, they were

illegally strip-searched by guards looking for drugs. The Wainwrights brought

an action against the government for, among other things, battery and trespass

to the person. The trial judge granted their claims, holding that the tort of

trespass to the person protected a common law right of privacy. The government

appealed the judgment of trespass, and the Court of Appeal reversed, holding

that the English common law did not include a stand-alone right of privacy.

332

The sole remedy for the indignities suffered in this case was the claim of

battery, which protects merely physical and not dignitary injuries. This conclu-

325. See, e.g., Gerald Dworkin, Notes of Cases, Privacy and the Press, 24 M.L.R. 185 (1961); Brian

Neill, The Protection of Privacy, 25 M.L.R. 393 (1962); Seipp, supra note 88; Percy H. Winﬁeld,

Privacy, 47 L.Q.R. 23 (1931); T. L. Yang, Privacy: A Comparative Study of English and American Law,

15 I

NT’L &COMP. L.Q. 175 (1966). Numerous commentators have also opposed the creation of an

American-style right of privacy on a variety of grounds. See, e.g.,P

RATT, supra note 8; ROZENBERG,

supra note 265; see also R

AYMOND WACKS,PRIVACY AND PRESS FREEDOM (1995); Raymond Wacks, The

Poverty of “Privacy,” 96 L.Q.R. 73 (1980).

326. Younger Report, supra note 273; L

AW COMMISSION OF ENGLAND AND WALES,BREACH OF

CONFIDENCE, 1981, Cmnd. 8388 [hereinafter LAW COMMISSION REPORT].

327. [1991] F.S.R. 62 (C.A.) (U.K.).

328. Id. at 70.

329. Id.

330. See Prosser, supra note 4, at 392 (“[W]hen [a plaintiff] is conﬁned to a hospital bed . . . the

making of a photograph without his consent is an invasion of a private right, of which he is entitled to

complain.”); Barber v. Time, Inc., 159 S.W.2d 291, 295 (1942) (photograph of woman in hospital room

used to illustrate an article about her condition was actionable as invasion of privacy).

331. [2001] EWCA (Civ) 2081, [2003] All E.R. 943 (U.K.).

332. See id. at 57 (opinion of Mummery L.J.) (“This claim fails as there is no tort of invasion of

privacy. Instead there are torts protecting a person’s interests in the privacy of his body, his home, and

his personal property. There is also available the equitable doctrine of breach of conﬁdence for the

protection of personal information, private communications and correspondence.”).

2007] 167PRIVACY’S OTHER PATH

sion was afﬁrmed by the House of Lords.

333

A variety of reasons have been suggested for England’s unwillingness to

protect “privacy,” including an English reluctance to entrust something as

important as privacy to public authorities,

334

the power of the media lobby

before Parliament,

335

and the reluctance of Parliament to pass such a law for

other political considerations.

336

The leading study of privacy in Britain sug-

gests that a large part of the answer lies in the distinctive British appreciation

for privacy that inheres in the national character and thus paradoxically requires

less protection through formal legal rules.

337

Whatever the reason, despite the

large number of privacy bills and proposals before Parliament since the 1930s,

the legislature declined to enact a privacy law.

338

English law has recently made greater strides toward recognizing an American-

style right to privacy. Yet, ironically, this state of affairs has come not from

American legal inﬂuences but as a result of British legal involvement with

Europe. In 1998, Parliament passed the landmark Human Rights Act (HRA),

339

which came into effect in 2000. The HRA effectively incorporated a Bill of

Rights into English law by requiring that English courts protect the rights

guaranteed by the Council of Europe’s European Convention on Human Rights

(ECHR). Two provisions of the ECHR have proven signiﬁcant for English

conﬁdentiality law. Article 8 provides that “[e]veryone has the right to respect

for his private and family life, his home and correspondence.”

340

Article 10

provides that “[e]veryone has the right to freedom of expression.”

341

The

passage of the HRA has spawned a ﬂurry of cases involving celebrities suing

the media. Although the law remains in a state of ﬂux, English courts responded

to Article 8 not by endorsing a new action for privacy, but by further stretching

the law of conﬁdence. English law responded to Article 10 by holding that

freedom of speech was a factor to be considered in the public interest exception

to the tort.

342

One of the earliest post-HRA cases was brought in November 2000, the same

month that the HRA came into effect, by actors Michael Douglas and Catherine

333. Wainwright v. Home Ofﬁce, [2003] UKHL 53, [2004] A.C. 406 (U.K.).

334. P

RATT, supra note 8, at 206.

335. Gerald Dworkin, The Younger Committee Report on Privacy, 36 M.L.R. 399, 399 (1973).

336. Sedley, supra note 324, at 21.

337. P

RATT, supra note 8, at 16, 206–07.

338. One exception to this trend is the Data Protection Act of 1998, which gives effect to the EU

Data Protection Directive of 1995, Directive 95/46 EC of the European Parliament and the Council.

The Data Protection Act prohibits the wrongful processing of personal data. Although the Data

Protection Act has been interpreted as providing privacy protection to individuals, especially against the

media, it has not proven as popular with litigants as the post-HRA breach of conﬁdence tort. For a

discussion of the relationship between breach of conﬁdence and the English Data Protection Act, see

generally H

ELEN FENWICK &GAVIN PHILLIPSON,MEDIA FREEDOM UNDER THE HUMAN RIGHTS ACT (2006).

339. Human Rights Act, 1998, c. 42.

340. European Convention on Human Rights, § 1, art. 8, Nov. 4, 1950.

341. Id. § 1, art. 10.

342. See Sedley, supra note 324, at 20.

168 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

Zeta-Jones, seeking an emergency injunction against Hello! magazine in order

to protect the exclusive right they had granted to OK! magazine to publish

photographs of their wedding.

343

Although wedding guests had been told not to

take any photographs, a photographer eluded security measures and posed as a

guest in a tuxedo to secretly take nine pictures for Hello! magazine. The trial

court granted the injunction. The Court of Appeal vacated the injunction as

unduly restricting freedom of expression, but held that the celebrity plaintiffs

could pursue a claim for damages.

344

Lord Justice Brooke reasoned that “it

would certainly be arguable, if the appropriate facts were established at trial,

that ‘unauthorised’ images were taken on this private occasion by someone in

breach of his or her duty of conﬁdence, and that they therefore constituted

‘conﬁdential information.’”

345

Lord Justice Sedley went further, making the

case for a right to privacy grounded in existing conﬁdentiality law under

post-HRA English law. He noted that “courts have done what they can, using

such legal tools as were on hand, to stop the more outrageous invasions of

individuals’ privacy; but they have felt unable to articulate their measures as a

discrete principle of law.”

346

With the ﬂourish of a pun, he added, “Neverthe-

less, we have reached a point at which it can be said with conﬁdence that the

law recognizes and will appropriately protect a right of personal privacy.”

347

Sedley went on to argue that privacy recognizes “that the law has to protect not

only those people whose trust has been abused but those who simply ﬁnd

themselves subjected to an unwanted intrusion into their personal lives.”

348

concluded that the law should no longer have to “construct an artiﬁcial relation-

ship of conﬁdentiality between intruder and victim: it can recognise privacy

itself as a legal principle drawn from the fundamental value of personal

autonomy.”

349

The Douglas case returned to the trial court and in 2003 Hello! magazine was

found liable in damages.

350

Unlike the right to privacy theory sketched out by

Lord Justice Sedley in the Court of Appeal, Justice Lindsay based his judgment

on breach of conﬁdence.

351

In the opinion of the court, all three of the Coco

factors were satisﬁed—there was a quality of conﬁdence because the informa-

tion about the wedding was inaccessible, there was an obligation of conﬁdence

because the guests knew or should have known of the wishes of the bridal

couple not to have photos taken, and there was detriment because the couple

suffered both emotional and ﬁnancial distress from the publication of the

343. Douglas v. Hello! Ltd, [2001] Q.B. 967 (2000) (U.K.) [hereinafter Douglas I].

344. Id.

345. Id. at 984 (opinion of Brooke, L.J.).

346. Id. at 997 (opinion of Sedley, L.J.).

347. Id.

348. Id. at 1001.

349. Id.

350. Douglas v. Hello! Ltd, [2003] EWHC (Ch) 786, [182]–[186], [227], (2003) 3 All E.R. 996

[hereinafter Douglas II].

351. Id.

2007] 169PRIVACY’S OTHER PATH

photographs.

352

Although the court noted that the breach of conﬁdence analysis

was affected by the passage of the HRA, it stated that there was still no

free-standing privacy tort under English law.

353

Balancing the protection of

Article 8 privacy through breach of conﬁdence doctrine against the Article 10

guarantee of a free press, the court held that Hello! magazine was not insulated

from liability by its status as part of the press because the pictures were taken in

violation of the relevant press code of professional ethics, they were taken by an

impostor posing as a guest via subterfuge, and there was no public interest in

the publication of the pictures, notwithstanding the fact that Hello! readers

wanted desperately to see them.

354

Perhaps the leading case on post-HRA English privacy and conﬁdence law is

that captioned as A v. B Plc.

355

Garry Flitcroft (A), a Premiership footballer of

limited fame, had extramarital affairs with two women, C and D. He sought and

obtained an interim injunction preventing the People newspaper (B) from

publishing stories by C and D about his affairs. The injunction was set aside by

the Court of Appeal, in which Lord Woolf, the Lord Chief Justice, sat with two

other judges.

356

In his opinion for the Court, Lord Woolf attempted to bring

some order to the confusion surrounding the intersection between HRA privacy

and traditional breach of conﬁdence law. At the outset, he declared that such

cases should appropriately be resolved through the existing doctrinal mecha-

nism of breach of conﬁdence, and that the creation of a new privacy tort would

be unnecessary.

357

Nevertheless, given the number of post-HRA lawsuits, Lord

Woolf attempted to provide some “guidelines” to trial courts dealing with such

cases in the future. Lord Woolf explained that although courts should safeguard

privacy through conﬁdentiality, they must be wary of enjoining the press

because of the importance of protecting freedom of the press. Even in the

absence of a public interest in the news article, injunctions against the press in

the name of privacy must be “justiﬁed.”

358

Nevertheless, the opinion signiﬁcantly broadened the scope of the breach of

conﬁdence tort to include American-style privacy actions, holding that

the need for the existence of a conﬁdential relationship should not give rise to

problems as to the law. . . . A duty of conﬁdence will arise whenever the party

352. Id. at 1045, 1053–54.

353. Id. at 1061–62.

354. Id. at 1055.

355. [2002] EWCA (Civ) 337, [2003] Q.B. 195 (U.K.).

356. Id. at 218.

357. Id. at 205–06 (“It is most unlikely that any purpose will be served by a judge seeking to decide

whether there exists a new cause of action in tort which protects privacy. In the great majority of

situations, if not all situations, where the protection of privacy is justiﬁed . . . an action for breach of

conﬁdence now will, where this is appropriate, provide the necessary protection.”).

358. Id.

170 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

subject to the duty is in a situation where he either knows or ought to know

that the other person can reasonably expect his privacy to be protected . . . .

359

Lord Woolf noted that the free speech rights of the party who wants to gossip

must be balanced against the privacy interests of the party who wants to restrain

the disclosure. The type of relationship at issue would determine the appropriate

balance between privacy and speech. Finally, Lord Woolf cautioned that public

ﬁgures should expect lesser-judicially-enforced privacy

360

and that the courts

should not attempt to act as “censors or arbiters of taste.”

361

Applying these general principles, Lord Woolf concluded A was not entitled

to an injunction. Since A was a “well known premiership football player,” there

was at least a “modicum of public interest” in his off-the-ﬁeld activities.

362

Second, A’s non-marital relationship with C and D would not enjoy the same

level of protection as a marital relationship: “[T]here is a signiﬁcant difference

in our judgment between the conﬁdentiality which attaches to what is intended

to be a permanent relationship and that which attaches to the category of

relationships which A was involved with here.”

363

Nevertheless, the court

concluded that the relationships involved in the case reached the “outer limits of

relationships which require the protection of law.”

364

Balancing the lessened

value of conﬁdentiality in this relationship against freedom of the press, the

court concluded that granting an injunction “would be an unjustiﬁed interfer-

ence with freedom of the press.”

365

A third leading post-HRA case implicating privacy in the guise of conﬁdence

is Campbell v. MGN Ltd.

366

Supermodel Naomi Campbell was photographed

leaving a Narcotics Anonymous meeting, and the photos were used in a tabloid

account of her drug addiction, her attendance at the meeting, and some of the

details about the meetings.

367

In ruling that Campbell was entitled to an

injunction, the Law Lords concluded that there is no free-standing right of

privacy in English law but that the HRA requires the expansion of breach of

conﬁdence law to include invasions of privacy.

368

Campbell, A v. B Plc, and Douglas are the leading, but by no means the only,

post-HRA cases that suggest the movement of English conﬁdence law towards

recognizing a right to privacy in virtually all but name. The captions of other

359. Id. at 207.

360. Id. at 208.

361. Id. at 209.

362. Id. at 217 (“Footballers are role models for young people and undesirable behaviour on their

part can set an unfortunate example. . . . [T]he fact is that someone holding his position was inevitably a

ﬁgure in whom a section of the public and the media would be interested.”).

363. Id. at 216.

364. Id. at 217.

365. Id.

366. [2002] EWCA (Civ) 1373, [2003] Q.B. 633 (U.K.).

367. Id. at 650.

368. Id. at 661; see also Sedley, supra note 324, at 4.

2007] 171PRIVACY’S OTHER PATH

cases read like a “who’s who” of modern British celebrity.

369

Some of the fact

patterns of these cases—photographs of the interior of a home, and the reports

of domestic details—bear a striking similarity to the paradigmatic cases fore-

seen by Warren and Brandeis over a century ago.

370

These cases are signiﬁcant

not only because they signify the possible broadening of the common law

breach of conﬁdence tort, but also because they demonstrate that the new

English privacy cases are grappling with the same tension between the disclo-

sure of private facts and freedom of expression that have plagued analogous

actions in the United States.

Thus, the English law of conﬁdence seems to be in the midst of a transmogri-

ﬁcation, as the passage of the HRA has caused that venerable tort to give birth

to an implicit new law of privacy. As Raymond Wacks notes, under current

English law,

[i]t is unnecessary to show a pre-existing relationship of conﬁdence where

private information is involved. A duty of conﬁdence will arise whenever the

party subject to the duty is in a situation where he either knows or ought to

know that the other person can reasonably expect his privacy to be pro-

tected.

371

Likewise, Joshua Rozenberg observes: “The need for a formal relationship

between two parties has become attenuated almost to the point of non-

existence.”

372

These changes in the law of conﬁdence have led another to

declare that “[t]he time has come to say openly that there is a right to privacy in

English Law.”

373

Nevertheless, despite muddying the conceptual waters, En-

glish courts are enlarging the already expansive breach of conﬁdence tort to

encompass many of the harms redressed by the American right to privacy.

The English experience is instructive, for it demonstrates how the concept of

conﬁdentiality can develop into a powerful protection of personal information.

369. In addition to the reported case denying radio and television presenter Jamie Theakston’s

attempt to prevent publication of reports of his activities in a brothel, see Theakston v. MGN, Ltd.,

[2002] EWHC (QB) 137, [H2], a number of unreported cases have involved lawsuits by: Victoria “Posh

Spice” Beckham to keep nude photographs of herself out of the newspapers, see Phillipson, supra note

292, at 722–27; Posh and her husband David Beckham to prevent photographs of their mansion

“Beckingham Palace” from being published, Beckham v. MGN, June 28, 2001 (Eady, J) (unreported),

cited in Phillipson, supra note 292, at 727; R

OZENBERG, supra note 265, at 26; Cherie Blair to prevent

the publication of the “details of her domestic arrangements,” Blair v. Associated Newspapers, No.

HQ0001236, (unreported), cited in Phillipson, supra note 292, at 727; and radio disc jockey Sara Cox

to prevent the publication of nude sunbathing pictures of her and her husband on their honeymoon, Roy

Greenslade, Sara Cox Wins Key Human Rights Ruling Against Press,T

HE GUARDIAN (LONDON), June 7,

2003, at 1.

370. See cases cited supra note 369.

371. Raymond Wacks, ‘Private Facts’: Is Naomi Campbell a Good Model?, 1 SCRIPT-ed 420, 426

(2004), available at http://www.law.ed.ac.uk/ahrc/script-ed/issue3/wacks.asp.

372. R

OZENBERG, supra note 265, at 15.

373. James Strachan & Rabinder Singh, The Right to Privacy in English Law, 2002 E

UR.HUM.RTS.

L. R

EV. 129, 161.

172 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

Warren and Brandeis rejected conﬁdentiality as too restrictive and narrow a

basis for protecting privacy, but they did not envision just how ﬂexibly the

concept could be used.

C. CONTRASTING CONCEPTIONS OF PRIVACY

Examining the paths of the common law of privacy on both sides of the

Atlantic reveals at least three critical differences in theory and practice. First,

there is a profound contrast between the underlying conceptions of privacy in

American and English tort law. These contrasting conceptions of privacy result

in the law asking very different questions and in producing signiﬁcantly distinct

results. Second, a number of the doctrinal limitations that have restrained the

privacy torts—including the publicity and newsworthiness elements—are inap-

plicable to actions for breach of conﬁdentiality. Third, the First Amendment

critiques that have limited the privacy torts in the United States would have

much less force when applied to breaches of conﬁdentiality. In this section, we

explore these conceptual and practical differences between the two common

law conceptions of privacy.

1. Conceptual Differences

Most fundamentally, the conceptions of privacy underlying English and

American privacy tort law are radically different. Warren and Brandeis’s concep-

tion of privacy is highly individualistic. Their central phrase to describe the

right to privacy—the right to be let alone—emphasizes the isolated individual

and her ability to shut out invaders.

374

To be fair, Warren and Brandeis recog-

nized the negative social effects of the rampant rise in gossip,

375

but they based

the right to privacy on protecting the individual and not social relationships.

They gave short shrift to the extent to which personal information arises within

human interaction and is transmitted between people with various expectations

of conﬁdentiality.

Today, many conceptions of privacy in American law are deﬁned in very

individualistic terms.

376

One court declared: “Privacy is inherently personal.

The right to privacy recognizes the sovereignty of the individual.”

377

Prosser’s

Second Restatement of Torts provides similarly that “[t]he right protected by the

374. See SOLOVE, supra note 234, at 93–97.

375. Gavison, supra note 6, at 441.

376. A group of scholars has begun to attack the individualistic conception of privacy, arguing that

privacy is “constitutive” of society. See, e.g., Julie E. Cohen, Examined Lives: Informational Privacy

and the Subject as Object, 52 S

TAN. L. REV. 1373, 1428 (2000); Robert C. Post, The Social Foundations

of Privacy: Community and Self in the Common Law Tort, 77 C

AL. L. REV. 957, 959 (1989) (privacy

“safeguards rule of civility that in some signiﬁcant measure constitute both individuals and commu-

nity”); Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 V

AND.LREV. 1609, 1613 (1999);

Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. P

A. L. REV. 707, 709 (1987)

(“[P]rivacy considerations no longer arise out of particular individual problems; rather, they express

conﬂicts affecting everyone.”); Solove, supra note 9, at 488.

377. Smith v. City of Artesia, 772 P.2d 373, 376 (N.M. Ct. App. 1989).

2007] 173PRIVACY’S OTHER PATH

action for invasion of privacy is a personal right, peculiar to the individual

whose privacy is invaded.”

378

Thomas Emerson argues: “Generally speaking,

the concept of a right to privacy attempts to draw a line between the individual

and the collective, between self and society.”

379

Edward Bloustein, a leading

defender of the privacy torts, argued that individual dignity was the unifying

theme behind the privacy torts.

380

In contrast to Warren and Brandeis’s individualistic conception of privacy,

the English law of conﬁdentiality focuses on relationships rather than individu-

als. Far from a right to be let alone, conﬁdentiality focuses on the norms of trust

within relationships. Indeed, most of our personal information is known by

other people, such as doctors, spouses, children, and friends, as well as institu-

tions, such as ISPs, banks, merchants, insurance companies, phone companies,

and other businesses. We need to share our secrets with select others, and when

we tell others a secret, we still consider it to be a secret. We conﬁde in others,

we trust them with information that can make us vulnerable, and we expect

them not to betray us. These norms are missing from the Warren and Brandeis

conception of privacy.

The key conceptual difference between the breach of conﬁdence tort and

public disclosure of private facts tort is the nature of what is protected. The

public disclosure tort focuses on the nature of the information being made

public. By contrast, the focus of the tort of breach of conﬁdentiality is on the

nature of the relationship. As one scholar has put it, “while the private-facts tort

focuses on the nature of the information published, the breach of conﬁdence

action focuses on the parties’ obligations to each other.”

381

In many public

disclosure cases, courts have struggled in recognizing that information shared

with other people can still be private.

382

“Privacy” has often been understood to

mean total secrecy.

383

Conﬁdentiality is more nuanced, as it involves the

sharing of information with others and the norms by which people within

relationships handle each other’s personal information.

In applying the American privacy torts, many courts ﬁnd that information is

not private because it is shared with others or exposed in some way to the

378. RESTATEMENT (SECOND) OF TORTS § 652I cmt. a (1977).

379. T

HOMAS I. EMERSON,THE SYSTEM OF FREEDOM OF EXPRESSION 545 (1970).

380. Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39

N.Y.U. L. R

EV. 962, 971 (1964).

381. Gilles, supra note 247, at 10; see also Peter A. Winn, Conﬁdentiality in Cyberspace: The

HIPAA Privacy Rules and the Common Law, 33 R

UTGERS L.J. 617, 652–58 (2002) (contrasting breach

of conﬁdentiality with public disclosure).

382. American Courts have reached highly inconsistent results about this issue. Compare Duran v.

Detroit News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993) (telling a few people extinguishes privacy

claim), with Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Ct. App. 1988) (telling a few

people “does not render private information public”). For an innovative analysis of this issue from a

social networks theory perspective, see Lior Jacob Strahilevitz, A Social Networks Theory of Privacy ,

72 U. C

HI. L. REV. 919 (2005).

383. See S

OLOVE, supra note 234, at 42–44.

174 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

public.

384

For example, in Nader v. General Motors Corp .,

385

the court con-

cluded that information “already known to others could hardly be regarded as

private” and that if a person shares information with others, “he would necessar-

ily assume the risk that a friend or acquaintance in whom he had conﬁded might

breach the conﬁdence.”

386

Conﬁdentiality stands directly at odds with the

notion that when people share information with others they necessarily assume

the risk of betrayal. The very purpose of conﬁdentiality law is to recognize and

enforce expectations of trust.

2. Doctrinal Differences

In some circumstances, English breach of conﬁdence law protects personal

information in ways that resemble the American right to privacy. Conﬁdentiality

and privacy protect related interests, and there is substantial overlap between

them. But there are signiﬁcant doctrinal differences between breach of conﬁ-

dence and the privacy torts that can have a real impact on the outcomes of

cases.

387

First, the American privacy torts have often struggled when applied to

the disclosure of personal data by businesses. Several privacy torts—intrusion

upon seclusion, public disclosure, and false light—require that the information

being publicized must be “highly offensive to a reasonable person.”

388

Many

disclosures of personal information do not meet this high hurdle. This is

especially true with disclosures of personal data by companies, since the

revelation of information about one’s home address, ﬁnances, and shopping

habits might not strike many as deeply embarrassing or humiliating.

389

The

breach of conﬁdentiality tort does not contain a “highly offensive” requirement,

as it views the injury not exclusively in terms of the humiliation caused by the

revelation of information but also in terms of the violation of trust between the

parties. As one court explained, whereas the public disclosure tort “focuses on

the content, rather than the source of the information,” the breach of conﬁdenti-

ality tort focuses on the source and protects conﬁdential information “without

regard to the degree of its offensiveness.”

390

Second, the element of “publicity” provides an additional restriction on the

public disclosure tort that the breach of conﬁdentiality tort lacks. In order for a

public disclosure to be actionable, the disclosure must be widespread. As the

Restatement commentary declares, “it is not an invasion of the right of privacy

. . . to communicate a fact concerning the plaintiff’s private life to a single

384. See Solove, supra note 9, at 534.

385. 255 N.E.2d 765 (N.Y. 1970).

386. Id. at 770.

387. For a discussion of some of these distinctions, see G

URRY, supra note 73, at 14; TOULSON AND

PHIPPS, supra note 78, at 112–16; WACKS, supra note 325, at 57–59 (1995).

388. R

ESTATEMENT (SECOND) OF TORTS §§ 652B, 652D, 652E (1977).

389. See S

OLOVE, supra note 234, at 60.

390. McCormick v. England, 494 S.E.2d 431, 438 (S.C. Ct. App. 1997).

2007] 175PRIVACY’S OTHER PATH

person or even to a small group of persons.”

391

In contrast, a person can be

liable for breach of conﬁdentiality even when information is spread only to a

few others.

Third, the public disclosure tort is also restricted by the newsworthiness

test—the information cannot be of “legitimate concern to the public.”

392

The

newsworthiness test has led to many courts extinguishing public disclosure

cases. Courts have struggled greatly in applying the newsworthiness test, with

many courts simply deferring to the media’s judgment, all but precluding a

plaintiff from ever making a successful claim.

393

Other courts look to the

“customs and conventions of the community” and only conclude that informa-

tion is not newsworthy if it consists of “morbid and sensational prying into

private lives for its own sake.”

394

In addition to the public disclosure tort, the

tort of appropriation has a newsworthiness test of sorts; if a person’s name or

likeness is used to illustrate an “article on a matter of public interest” then there

is no appropriation, even if the photo does not involve the actual people

involved in the matter.

395

There is no such limitation on the breach of conﬁdenti-

ality tort.

Although presumably applicable to the use and disclosure of personal informa-

tion by businesses, the breach of conﬁdentiality tort has rarely been invoked in

this context. It is difﬁcult to know why the tort has not been pled, but one

suspects that the immaturity of the conﬁdentiality tort in America coupled with

the fame of the privacy torts is largely to blame. Nevertheless, in leading

privacy cases, conﬁdentiality has often not been invoked where it would have

been helpful. For example, conﬁdentiality was not pleaded in the Nader case,

even though the plaintiff was suing on a theory that the defendant, General

Motors, was asking his acquaintances details about him.

396

Similarly, the pri-

vacy torts, and not breach of conﬁdentiality, were asserted in Dwyer v. Ameri-

can Express Co.,

397

where American Express peddled information about its

cardholders’ shopping habits to merchants. The court rejected an intrusion upon

seclusion claim because the cardholders “voluntarily” gave their information to

391. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (1977). The requirement of widespread

disclosure is also part of the false light tort. Id. § 652E.

392. Id. § 652D.

393. For example, one court held: “[W]hat is newsworthy is primarily a function of the publisher,

not the courts.” Heath v. Playboy Enters., Inc., 732 F. Supp. 1145, 1149 (S.D. Fla. 1990); see also

Wagner v. Fawcett Publ’ns, 307 F.2d 409, 410–11 (7th Cir. 1962); Jenkins v. Dell Publ’g Co., 251 F.2d

447, 451–52 (3d Cir. 1958). For a general discussion and critique of deference to the press, see Solove,

supra note 232, at 1001–08.

394. R

ESTATEMENT (SECOND) OF TORTS § 652D cmt. h (1977).

395. Finger v. Omni Publ’ns Int’l Ltd., 566 N.E.2d 141, 141–42 (N.Y. 1990); see also Arrington v.

N.Y. Times, 434 N.E.2d 1319, 1332 (N.Y. 1982); Delan ex rel Delan v. CBS, Inc., 458 N.Y.S.2d 608,

613 (App. Div. 1983).

396. See Nader v. Gen. Motors Corp., 298 N.Y.S.2d 137, 138 (App. Div. 1969); Nader v. Gen.

Motors Corp., 292 N.Y.S.2d 514, 515–16 (Sup. Ct. 1968).

397. 652 N.E.2d 1351, 1353 (Ill. App. Ct. 1995).

176 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

American Express.

398

The court also rejected an appropriation claim because

“an individual name has value only when it is associated with one of defen-

dants’ lists.”

399

In a breach of conﬁdentiality action, whether the information

was voluntarily given to American Express would not be a dispositive factor.

Nor would the monetary value of the information be a critical element. Breach

of conﬁdentiality would look to the expectations created in the relationship

between American Express and its cardholders. And of course, the conﬁdential-

ity of ﬁnancial relationships like banker-client has been recognized for some

time.

400

Cases where companies violate their privacy policies could also potentially

beneﬁt from breach of conﬁdentiality claims. Consider, for example, two cases

involving Northwest Airlines after a number of carriers disclosed passenger data

in violation of their privacy policies to the federal government after the Septem-

ber 11th attacks. In In re Northwest Airlines Privacy Litigation,

401

the court

rejected an intrusion upon seclusion claim by a group of passengers because the

passengers “voluntarily provided their personal information to Northwest” and

because “the disclosure here was not to the public at large, but rather was to a

government agency.”

402

In Dyer v. Northwest Airlines Corp.,

403

the court

rejected a breach of contract claim because “broad statements of company

policy do not generally give rise to contract claims” and the passengers failed to

prove damages.

404

Disclosing the passenger information is arguably a breach of

conﬁdentiality regardless of whether the privacy policy amounts to a contract.

The widespread disclosure requirement of the disclosure tort would not apply.

And because the theory of liability is different, the theory of damages would

also differ. Instead of contract damages, which compensate primarily for ﬁnan-

cial losses, the remedy for breach of conﬁdentiality would compensate for any

kind of harm resulting from the breach of trust.

405

Of course, breach of conﬁdence—even in England in the post-HRA peri-

od—is not a super-tort. Breach of conﬁdence will not prevail in every case

where the Warren and Brandeis privacy torts fail. Nor should it. Because

398. Id. at 1354.

399. Id. at 1356. Another court reached a similar holding with regard to appropriation for a

magazine that sold its subscribers’ names to a direct mailing company. See Shibley v. Time, 341 N.E.2d

337, 340 (Ohio Ct. App. 1975).

400. Peterson v. Idaho First Nat’l Bank, 367 P.2d 284, 290 (Idaho 1961).

401. 2004 WL 1278459 (D. Minn. 2004).

402. Id. at *5.

403. 334 F. Supp. 2d 1196 (D.N.D. 2004).

404. Id. at 1200.

405. Although contract damages generally compensate for economic losses, in special cases they

can sometimes encompass emotional distress. See E. A

LLEN FARNSWORTH,ON CONTRACTS §§ 12.1, 12.9,

12.17 (3d ed. 1999). The Restatement of Contracts provides that recovery for emotional distress is

possible if the “breach is of such a kind that serious emotional disturbance was a particularly likely

result.” R

ESTATEMENT (SECOND) OF CONTRACTS § 353 (1981). In contrast, damages for breach of

conﬁdentiality include a wide variety of harms, including emotional distress, reputational damage, and

more. See D

AVID A. ELDER,PRIVACY TORTS § 5.2 (2001).

2007] 177PRIVACY’S OTHER PATH

conﬁdentiality requires the existence of a relationship to which it is reasonable

to impose duties of conﬁdence, it will not apply in many cases where the

American privacy torts might. As Warren and Brandeis themselves recognized

over a century ago, breach of conﬁdence is a poor cause of action to assert

against strangers who take and publish nonconsensual photographs of people.

An action for breach of conﬁdence protects information given by the conﬁder to

the conﬁdant, but not information communicated outside that relationship.

Thus, a third party can freely disclose private facts about a person as long as the

third party did not learn the information from a conﬁdant. Although conﬁdential-

ity can be stretched to include protections against the use of surveillance

devices by third parties,

406

such protections come much more naturally to the

American legal conception of privacy.

407

But in contexts where a conﬁdential

relationship might exist, breach of conﬁdence asks different and germane

questions about whether duties of nondisclosure might be appropriate, an

inquiry that the American conception of privacy law has often failed to make.

3. The First Amendment Critique

Finally, the First Amendment might apply differently to the breach of conﬁden-

tiality tort than it does to the disclosure tort. First Amendment law treats with

suspicion broad claims against personally offensive speech that are enforceable

against the world, and holds a special solicitude for press defendants. Viewed in

this light, it is not surprising that Warren-and-Brandeis-style privacy claims

brought against the press to remedy hurt feelings have encountered the First

Amendment with mixed results.

408

The Florida Star case supplies a useful

example. In that case, a newspaper that published the name of a rape victim

discovered in the public records was immunized from liability by the First

Amendment. The reporter copied down the inadvertently unredacted name in a

report in the police records room despite knowing that she was not supposed to

do so, and despite sitting near signs “making it clear that the names of rape

victims were not matters of public record, and were not to be published.”

409

In a

narrow and fact-speciﬁc ruling, the Supreme Court held that three factors were

dispositive. First, the fact that the government disclosed the name to the reporter

(albeit inadvertently) meant that the newspaper had lawfully obtained the

406. See, e.g., Hellewell v. Chief Constable of Derbyshire, (1995) 4 All E.R. 473 (when telephoto

lenses are used to look into a home, “the law [of conﬁdence] would protect what might reasonably be

called a right of privacy”); Shelley Films Ltd. v. Rex Features Ltd., [1994] E.M.L.R. 134 (Ch.)

(enjoining as a breach of conﬁdence the use of a photo of a costume taken secretly by a photographer

who entered a ﬁlm studio without permission); see also cases cited infra, notes 409–424.

407. See L

AW COMMISSION REPORT, supra note 326, at 117–18 (discussing surreptitious surveillance

devices and noting that “to give a remedy merely because information is acquired by one of these

means would amount to the creation of a right of privacy” and stating that “the creation of a general

right to privacy is beyond the scope of even an expanded law of breach of conﬁdence”).

408. See supra notes 217–234.

409. Florida Star v. B.J.F., 491 U.S. 524, 546 (White, J., dissenting).

178 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

information.

410

Second, because the cause of action against the press took “the

extraordinary measure of punishing truthful publication in the name of privacy,”

strict scrutiny applied.

411

In such a posture, the state interests in protecting the

privacy and security of the victim were insufﬁcient where the state had failed to

use the less restrictive alternative of not inadvertently leaking the information.

Third, the court noted some technical problems in the way that the Florida law

was drafted.

412

Looking at the Florida Star case from a conﬁdentiality perspective is instruc-

tive. The statute in Florida Star provided individual compensation for the

emotional injury stemming from press publication of truthful information. It did

not operate from a relational perspective, enforcing duties of conﬁdentiality

imposed upon reporters as a condition of access to the police ﬁles. Indeed, the

Supreme Court seems to have implied that the very reason the newspaper

prevailed was due to the government’s breach of conﬁdentiality with respect to

the name. Thus, the statute was doomed under strict scrutiny because the

government’s breach of conﬁdentiality rendered the reporter’s acquisition of the

name lawful, whereas preventing such breaches in the ﬁrst place would have

been a substantially less restrictive means to protect the information. Thus, even

Florida Star, arguably the most press-protective Supreme Court case dealing

with privacy torts and the First Amendment, appears to leave room for conﬁden-

tiality.

413

In a subsequent case, Los Angeles Police Department v. United

Reporting Publishing Corp.,

414

the Court held that if the government is not

constitutionally required to make certain information publicly accessible, the

government may impose conditions on those desiring to access it.

415

There is

nothing to bar conﬁdentiality from being one of these conditions. Moreover, in

Seattle Times Co. v. Rhinehart,

416

the Court held that protective orders, which

mandate conﬁdentiality of information received in discovery, do “not offend the

First Amendment.”

417

There is additional support for the proposition that existing First Amendment

law is far more comfortable with enforcing nondisclosure rules in the context of

relationships, even those involving the press.

418

For example, in Cohen v.

Cowles Media Co.,

419

the Supreme Court concluded that a reporter’s promise to

410. Id. at 536–37.

411. Id. at 537, 540.

412. Id. at 540.

413. See Daniel J. Solove, Access and Aggregation, 86 M

INN. L. REV. 1137, 1212 (2002) (arguing

that under the First Amendment, “[g]overnments can make a public record available on the condition

that certain information is not disclosed or used in a certain manner”) (emphasis in original).

414. 528 U.S. 32 (1999).

415. Id. at 40.

416. 467 U.S. 20 (1984).

417. Id. at 37.

418. See Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. R

EV.

1149, 1194–1207 (2005).

419. 501 U.S. 663 (1991).

2007] 179PRIVACY’S OTHER PATH

maintain the conﬁdentiality of a source could be enforced without running afoul

of the First Amendment: “[G]enerally applicable laws do not offend the First

Amendment simply because their enforcement against the press has incidental

effects on its ability to gather and report the news.”

420

Perhaps as a result,

scholars who have asserted First Amendment concerns with the public disclo-

sure tort have conceded that conﬁdentiality might not have similar problems.

421

For example, Eugene Volokh argues that enforcing contractual promises of

conﬁdentiality is “defensible under free speech doctrine.”

422

Andrew McClurg

observes: “If one accepts the proposition that a party to an intimate relationship

impliedly agrees not to breach the other party’s conﬁdence by publishing

private, embarrassing information about them via an instrument of mass commu-

nication, the speech restriction is one that is self-imposed, rather than state-

imposed.”

423

Mapping the contours of information nondisclosure rules and the First Amend-

ment is a difﬁcult task, and we do not mean to suggest that conﬁdentiality

solves all of these problems. For example, even if the government can solve the

Florida Star problem by conditioning press access to certain sensitive police

ﬁles on an express or implied agreement of conﬁdentiality, other problems

might remain such as the effect on public access to information should such

agreements become ubiquitous and be applied to other areas. Nevertheless,

conﬁdentiality law holds out the potential to be more harmonious with modern

First Amendment jurisprudence than the Warren and Brandeis torts.

***

The breach of conﬁdentiality tort in America in many respects resembles the

traditional English tort. It has similar elements, and it has been recognized to

apply to third parties who induce or beneﬁt from the breach. Yet despite its

signiﬁcant power, as demonstrated by English law, the American breach of

conﬁdentiality tort often fails to make an appearance in privacy cases even

when it seems to be highly applicable. It has largely remained dormant and

untapped, yet it has the same early foundation in the common law as the English

tort.

More broadly, since American privacy law often remains focused around

individualistic conceptions of privacy, it has not fully embraced protecting

conﬁdentiality in relationships. In many other contexts, such as trade secrets and

business conﬁdences, American law readily provides remedies against unwar-

420. Id. at 669.

421. See Randall Z. Bezanson, The Right to Privacy Revisited: Privacy, News, and Social Change ,

80 C

AL. L. REV. 1133, 1174 (1992) (“[W]e [should] look to the concept of breach of conﬁdence to

provide legally enforceable protection from dissemination of identiﬁed types of personal informa-

tion.”); Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s

Privacy Tort, 68 C

ORNELL L. REV. 291, 363 (1983) (“[M]ore thought should also be given to increasing

use of legal sanctions for the violation of special conﬁdential relationships.”).

422. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implication of a

Right To Stop People from Speaking About You, 52 S

TAN. L. REV. 1049, 1057 (2000).

423. McClurg, supra note 213, at 938.

180 [Vol. 96:123THE GEORGETOWN LAW JOURNAL

ranted breaches of trust.

424

But in the domain of privacy, American law has not

progressed nearly as far as English law in recognizing and protecting trust in

relationships. An increased recognition of a conﬁdentiality-based conception of

privacy might also have signiﬁcant implications in other areas of American

privacy law that developed under the inﬂuence of Warren and Brandeis.

ONCLUSION:THE PROMISE OF CONFIDENTIALITY

This Article has explored ways in which conﬁdentiality experienced a late

and limited development in American law but ﬂourished in England. We have

argued that the particular social problem that Warren and Brandeis were confront-

ing led them to abandon conﬁdence as a useful concept, despite its deeper legal

pedigree than a right to privacy. Prosser further exiled conﬁdentiality from

privacy when he excluded it in his formulation of tort privacy. As a result,

conﬁdentiality had a stunted growth in America as it developed in the shadow of

the Warren and Brandeis right to privacy.

In contrast to the rather meagerly developed breach of conﬁdentiality tort in

America, the English tort is quite expansive and is enlarging its territory. Even

before the HRA, the English tort was much broader in scope and much more

mature than the American breach of conﬁdentiality tort. Unlike the American

tort, which thus far has been limited to particular relationships, the English tort

has a more open-ended applicability based upon the expectations of the parties

in any given relationship. Moreover, although the American tort has third party

liability, it has only been used in a few cases. In contrast, the English tort has a

more clearly established principle of third party liability. And English courts are

quite willing to infer breaches of conﬁdence when information has been leaked

to the media. In short, the English law of conﬁdence is far more muscular and

developed than the American conﬁdentiality tort.

It is impossible to know precisely what would have happened had Warren and

Brandeis embraced conﬁdentiality. Would American law have developed simi-

larly to English law? How broad would the American law of conﬁdentiality

have been had Warren and Brandeis chosen to infuse it with their genius and

creativity? How would other bodies of privacy law have been inﬂuenced, such

as constitutional law and statutory law? We can only speculate about how the

American law of privacy might have turned out differently.

English law serves as a useful example of an alternative way that the

common law can conceptualize and regulate unwarranted disclosures of per-

sonal information. Speciﬁcally, one of the lessons that American privacy law

424. For example, the Uniform Trade Secrets Act, adopted by over forty states, protects trade secrets

against misappropriation under a theory related to breach of conﬁdence. See Robert G. Bone, A New

Look at Trade Secret Law: Doctrine in Search of Justiﬁcation, 86 C

AL. L. REV. 241, 247 (1998); Sharon

K. Sandeen, Relative Privacy: What Privacy Advocates Can Learn From Trade Secret Law, 2006 M

ICH.

T. L. REV. 667, 687. This should be no surprise since trade secret law is itself a common law cousin to

conﬁdentiality, and in the English common law it is the most common of the four sources of liability

under the breach of conﬁdence tort. See G

URRY, supra note 73.

2007] 181PRIVACY’S OTHER PATH

can draw from the English law of conﬁdence is that not all information

disclosed to others enters the public domain and thereby loses legal protec-

tion.

425

English law recognizes intermediate states between being completely

private (known only to one person) and completely public (in the public

domain). This is in sharp contrast to American privacy law, which has fre-

quently tended to view the private and the public as binary opposites.

426

Moreover, because conﬁdentiality involves enforcing explicit or implicit prom-

ises, it does not have the same First Amendment implications as the public

disclosure tort. The broader lesson to be drawn from the divergent paths of

privacy law in America and England is that both American-style privacy and

English-style conﬁdence protect valuable and related interests. As we both have

argued elsewhere, privacy cannot be reduced to a singular essence; it is a

multiplicity of different yet related things that has room for both Warren-and-

Brandeis-style privacy and English-style conﬁdence.

427

Conﬁdentiality is thus a

key dimension of privacy; it cannot be excised from privacy nor can it serve as

the sum and substance of privacy either. Because they protect distinct dimen-

sions of the ways in which unwanted disclosures of personal information can be

harmful, both conﬁdence and American-style privacy are worth protecting.

Recent developments in the law on both sides of the Atlantic suggest that both

American and English law are coming to this realization. English law seems to

be moving towards encompassing privacy at the same time that the American

conﬁdentiality tort is maturing. English law can learn much from the American

privacy torts; and American law has much to learn from the English conﬁdential-

ity tort. Perhaps with greater recognition, conﬁdentiality will ﬁnally take its

place alongside the Warren and Brandeis privacy torts, and the concept of

conﬁdentiality will become better integrated into the legal and conceptual

landscape of American privacy.

425. Phillipson, supra note 292, at 736.

426. See Solove, supra note 413, at 1177 (“The law often treats information in [a] black-and-white-

manner; either it is wholly private or wholly public.”).

427. See e.g., Richards, supra note 9, at 1121; Daniel J. Solove, Conceptualizing Privacy, 90 C

AL. L.

EV. 1087, 1099 (2002); Solove, supra note 9, at 481–82 (2006).

182 [Vol. 96:123THE GEORGETOWN LAW JOURNAL