Protecting Privacy: The Clifford Chance Lectures - Vol. 4

By Basil S. Markesinis | Go to book overview

or under principles of promissory estoppel. Under the latter theory, a source who lost his job when newspapers reneged on their promise to keep his identity confidential won a $200,000 judgment, and the Supreme Court rejected the newspapers' First Amendment defence.84

There seems to be some movement toward a broader concept of breach of confidence like that in England, where the law recognizes a duty of confidentiality not only in specific relationships like those discussed above, but wherever a relationship of confidence exists between the parties.85 Where an invasion of privacy results from disclosure by an employee, a long-time lover, or someone else from whom there are well-founded expectations of trust, the breach of confidence theory could be an important future source of remedy. But American judges have never been as eager as their English counterparts to treat standards of honour as bases of law, so it is by no means certain that they will be willing to find duties of confidentiality in everyday relationships.

These are the most important supplementary remedies for unwanted disclosure of private facts. There are many other statutes and common-law doctrines that protect in more limited contexts: rape shield statutes, allowing rape victims to use pseudonyms in the proceedings against their attackers, and forbidding officials from disclosing their names, are one example; statutes and court rules requiring officials to maintain confidentiality of adoption, child custody, and paternity proceedings are another.


CONCLUSION

American law promises to protect people against unwarranted disclosures of private information, but it usually fails to do so. Because we are unwilling to deny ourselves the intriguing details of the lives of our heroes, villains, and neighbours, we create an insatiable market for privacy-invading information. The media respond to this market, some eagerly, some reluctantly. Because the law values free speech over privacy, the tort of public disclosure of private facts contains its own severe limitations. Because judges are reluctant to be arbiters of mores, they defer to media decisions as to

____________________
84
Cohen v. Cowles Media Co., 501 U.S. 663 ( 1991).
85
See RESTATEMENT (SECOND) Or TORTS § 874 ( 1977); Elder (n. 82 above), at 350.

-166-

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