Privacy Through Anonymity: An Economic Argument for Expanding the Right of Privacy in Public Places

Abstract

As a general matter, the right of privacy is a state law tort remedy that attempts to balance two opposing interests. On the one hand, it is generally agreed that all individuals have parts of their lives that they should rightfully be allowed to keep free from public view. On the other hand, there is significant public value in the dissemination of information and the right to free speech. The contours of existing privacy law therefore represent an effort by courts and commentators to define the proper balance between an individual's right to be free from intrusion into his private matters and society's right to obtain information about issues of public concern. Though this somewhat ad hoc approach to legal development has produced a reasonably effective body of law and provides a coherent starting point for analyzing privacy issues, the lack of grounding in an overarching theory for determining what information should be deemed "private" (and therefore allocated to the individual) and what information should be deemed "public" (and therefore allocated to society) leads to improper, inefficient results such as those described above.

This paper explores why the young Arab gentleman, the topless sunbather, and the lost friends described above should be protected under the right to privacy tort. In Part II, I survey the law governing publication of photographs and images within the context of the current four-pronged formulation of the right to privacy. I then explain why and how the law indeed fails to protect our unsuspecting "celebrities." Part III argues that these individuals should be protected by the law, not only because this result seems intuitively correct but because this approach is value-maximizing. I contrast the foregoing to a truly "newsworthy" situation--one in which there is a valid and valuable public interest in the photograph's publication—where the law should allocate this right to the public. Furthermore, I suggest a workable test that courts can use to determine whether a photograph should be deemed newsworthy. Finally, the article addresses the issue of where protection of this right should find its doctrinal home within the current contours of the right of privacy tort, and concludes that there are several viable possibilities.