Bad Publicity: The Diminished Right of Privacy in the Age of Social Media

The “public disclosure of private facts” tort involves determining if and when publication of truthful, albeit embarrassing, facts warrant liability. Such liability inherently runs into First Amendment concerns. This Note analyzes the background of this tort, its status, and its application in different jurisdictions. Scholarship and jurisprudence have traditionally balanced the right to privacy with First Amendment guarantees by looking at different factors, including whether the disclosed information is properly described as “private” and whether it is newsworthy or a matter of legitimate public interest. However, the line between “public” and “private” has become increasingly blurred with new technology and social media. Additionally, determining what is “newsworthy” is especially difficult in a society obsessed with celebrities, gossip, and entertainment. The approaches used to dictate the actionability of the public disclosure of private facts tort are inconsistent, and thus require courts to determine which types of speech ought to be afforded more or less constitutional protection on a case-by-case basis. This Note discusses these issues and how they are exacerbated in the twenty-first century. It then proposes a statute-based, bright-line approach to protect privacy with minimal intrusion on the press while simultaneously providing more notice and guidance

Everyone Wants to See the Entire History of You

Starting with heavy, immobile cameras and progressing to immediately shareable, discreet cellphone videos, the last century has expanded our ability to record ourselves and others—whenever and wherever—to formerly unfathomable heights. Black Mirror, a technology-based, sci-fi miniseries now produced by digital entertainment giant, Netflix, tracks this trajectory to its logical end in “The Entire History of You.” In this not-so-distant, sci-fi future where Google Glass is replaced by an “Augmented Reality Contact Lens and Grain,” everything we see and hear is immediately recorded and uploaded. Effectively, we no longer need memories to recall the past. But as with all new technologies, and indeed all Black Mirror episodes, the Grain technology reveals an inherent flaw in humans: when everything is recorded, humans cannot relax in the comfort of hazy recollection or secret memories. In the context of the legal system, both government prosecutors and adverse civil parties will seek discovery of everything one has seen and heard. This article examines the constitutional and privacy issues raised by Grain technology, which will undoubtedly be here soon

A Remedy for Online Exposure: Recognizing the Public-Disclosure Tort in North Carolina

North Carolina is one of only a few jurisdictions that does not recognize the tort of public disclosure of private facts—a civil remedy that protects against the offensive and unauthorized publication of private information that is not of legitimate public concern. The absence of this tort has created a gap in privacy protection in the state that is increasingly problematic with the rise of revenge porn and other online injuries made possible by the widespread use of the Internet and online social networking sites. This Comment specifically explores how recognition of the tort of public disclosure of private facts in North Carolina would give victims of revenge porn a viable civil remedy and help close the state’s existing privacy gap

The \u27Blurred Lines\u27 of Marvin Gaye\u27s \u27Here, My Dear\u27: Music as a Tortious Act, Divorce Narrative and First Amendment Totem

In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him$305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first$295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the$600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to that effect. Composed, written (with a few exceptions), and vocalized by Marvin alone, he first thought to do “nothing heavy, nothing even good.” Then he changed his mind. The album that resulted? A brilliantly unsettling poison pen to and about Anna, sardonically titled Here, My Dear. Released in December 1978, Here, My Dear laid bare to the world a marriage gone terribly, terribly wrong. From the double album’s jacket illustrations and lyrics, down to the vocal colors and tones Marvin deploys — Anna is portrayed as greedy, vengeful and manipulative. The work was so upsetting to her that Anna publicly threatened to sue Marvin. This Article explores that threat. Here, My Dear is a rich legal document from which to mine the myriad torts Marvin commits against Anna over the course of its seventy three minutes and 10 seconds length. Moreover, given Marvin’s persona as one of the most preeminent celebrity male sex symbols from the 1960s until his death in 1984, Here, My Dear can also be read as a beguiling take on the ways in which masculine perspectives on divorce are constructed and articulated. Here, My Dear is a fascinating artifact also because its analysis impels application of some of the Supreme Court’s seminal constitutional jurisprudence such as New York Times v. Sullivan, Gertz v. Welch and Time v. Firestone. Each, in some form or to some extent, is relevant to the Gaye divorce saga as it raises issues of free speech and artistic expression, who can be considered “media” or a “public figure,” and rights of privacy versus newsworthiness of divorce. Consequently, Here, My Dear serves to illustrate foundational communication and distress torts principles as shaped by First Amendment doctrine

Comment: Microchipping Employees and Privacy Implications - Does My Boss Know Where I am Right Now?

Existing law surrounding employee privacy does not adequately address privacy concerns raised by microchip programs. A handful of states have passed laws that prohibit mandatory employee microchipping programs, but the vast majority have not passed any preventative legislation. In states that have passed laws, the limited protections that do exist fail to address a wide range of issues that have not yet come up in the context of employer-provided technology. This comment will briefly overview employee privacy law to highlight some of the issues that will arise if the law remains untouched. Then, it will propose solutions that would serve to better protect employees from these issues. As technology continues to develop, it will gather more information and the potential for abuse will only increase. Without legal safeguards, employees will be left nearly defenseless against employers with access to ever-increasing information about their employees

Shopping For Privacy: How Technology in Brick-and-Mortar Retail Stores Poses Privacy Risks for Shoppers

As technology continues to rapidly advance, the American legal system has failed to protect individual shoppers from the technology implemented into retail stores, which poses significant privacy risks but does not violate the law. In particular, I examine the technologies implemented into many brick-and-mortar stores today, many of which the average everyday shopper has no idea exists. This Article criticizes these technologies, suggesting that many, if not all of them, are questionable in their legality taking advantage of their status in a legal gray zone. Because the American judicial system cannot adequately protect the individual shopper from these questionable privacy practices, I call upon the Federal Trade Commission, the de facto privacy regulator in the United States, to increase its policing of physical retail stores to protect the shopper from any further harm

Layered Fiduciaries in the Information Age

Technology companies such as Facebook have long been criticized for abusing customers’ personal information and monetizing user data in a manner contrary to customer expectations. Some commentators suggest fiduciary law could be used to restrict how these companies use their customers’ data.1 Under this framework, a new member of the fiduciary family called the “information fiduciary” was born. The concept of an information fiduciary is that a company providing network services to “collect, analyze, use, sell, and distribute personal information” owes customers and end-users a fiduciary duty to use the collected data to promote their interests, thereby assuming fiduciary liability if it misuses or misappropriates customer data.2 Although the possibility of an information fiduciary has generated significant attention, neither questions about the scope of the information fiduciary’s duty of care nor whether corporate law’s fiduciary duties are compatible with the information fiduciary duty have been satisfactorily answered. In 2021, Facebook was renamed Meta Platforms, Inc., to expand business related to the Metaverse,3 which is expected to bring about many new digital products. The establishment and development of the information fiduciary duty will help prepare the legal framework for this new era of digitization. This Article proposes a model to implement the information fiduciary’s duty of loyalty and duty of care to end-users in today’s information age by imposing these duties on Data Protection Officers (DPOs). First, this Article sketches the contours of information fiduciary duties on DPOs, examines how these duties can be structured, and clarifies how they interact with the duties owed by directors to the company. Second, this paper addresses the use of layered fiduciaries to alleviate the potential conflict caused by the information fiduciary duty. Third, this Article discusses in detail how the fiduciary duties imposed by Delaware corporate law can be applied to the field of digital privacy and consumer data. Directors’ duties of care and loyalty in corporate law have developed over decades to form a useful system that is applicable in developing the information fiduciary duty. Implementing the information fiduciary duty can benefit from and be partially guided by existing law, like the director’s duty to inform under the duty of care and the duty to act in the best interests of the company under the duty of loyalty. Lastly, this Article explores how the information fiduciary duty can efficiently regulate multinational corporations’ international data transfers, a rarely discussed yet important aspect of world economic development