Revisiting the American Action for Public Disclosure of Facts, in New Dimensions in Privacy Law: International and Comparative Perspectives (Andrew T. Kenyon & Megan Richardson eds., 2006)

Although the public disclosure tort has had an unpromising past, it appeals to what Anthony Lewis suggests is a sense of basic fairness to ‘those who have not sought power’ but have become illustrations of public issues. The tort’s weakness may be a function of cultural indifference or constitutional qualms, although the most likely explanation is institutional: until recently, the Supreme Court offered no illumination of a core interest. Libel law had reserved the obvious candidate, dignity, for civic contexts. Now, with the court’s decision in Bartnicki and the insights of a number of contemporary thinkers, it may be time to recognise privacy as a dynamic concept involving the self’s interest in growth through unhampered dialogic exchange. At the core of a reconsidered tort should be an idea of freedom - to engage in a ‘web’ of secure relationships that promote an essential task of human experience: creating what Rorty called ‘stable character in an unstable time’.

© 2006 Cambridge University Press. Posted with permission.