Confidentiality: a measured response to the failure of privacy.

• Author: Harvey, G. Michael

INTRODUCTION

In the course of a lifetime, an individual necessarily shares with others information that she would like to keep private. To name only a few such situations, an individual may discuss her sexual orientation or proclivities with a potential lover, seek advice from a friend concerning an abortion, or request a loan from a parent for psychotherapy. Similarly, an individual may engage in activities which she would like to keep private, but that require the presence of another person, such as consenting to a doctor disconnecting her irreversibly brain-damaged parent or child from life-support machines, or having an extramarital affair. In addition, sometimes individuals may find it necessary to reveal personal information to institutions. This information is thereafter memorialized in files or databases ranging from police reports indicating that the individual has been raped, to medical records reflecting her cosmetic surgery, to lists showing that she was a member of an AIDS patient therapy group.

The importance of sharing such information with others cannot be doubted. Sometimes the confider of the information has no choice in the matter. A rape victim, for example, has to give her name to the police. Similarly, it is difficult to keep your identity secret from a lover. In many other situations where the confider can choose not to divulge the information, it is important that she does share it. Discussing our fears, problems, and ideas with others is crucial for informed decision-making and self-discovery.

When an individual has disclosed such personal information to persons or institutions, she relies upon notions of trust and civility in social relations to ensure that it is not publicized. Unfortunately, reliance on the goodwill of intimates and strangers may not be sufficient; confidants, whether they be friends or employees of institutions who have access to personal information, may give or sell the personal information to publications(1) or prove so negligent in their protection of the information that the media has easy access to it.(2)

In general, the more unusual or intimate the information, or the more prominent its subject, the more likely it is that the media will desire to publish it.(3) For example, the private lives of political figures have increasingly been the targets of media scrutiny.(4) The alleged affair between Gennifer Flowers and Democratic presidential candidate Bill Clinton(5) is just the latest and most dramatic illustration of a phenomenon that has been termed the "smoking bimbo,"(6) that is, the media exposure of a politician's extramarital lovers.(7) Non-political celebrities are also exposed to intensive media scrutiny. Whether it is information concerning sexual orientation, proclivities, or failing health, personal facts about celebrities sells magazines(8) and drives the editorial judgments of a growing portion of the media.(9) Tantalizing us with an "insider's" look at the personal preferences and kinky lifestyles of public figures are: "Oprah," "Geraldo," "Donahue," "Hard Copy," "A Current Affair," and "Entertainment Tonight" on television; People, Vanity Fair, Star, and the Enquirer on the newsstands; and Kitty Kelley in the bookstores.(10) The privacy of private individuals is also not shielded from the press. Unusual facts about private individuals-whether it be a rare health defect, a twelve-year old mother, or the identity of a rape victim--can also attract the media spotlight.(11)

Although the age of "infotainment"(12) is obviously fueled by a measure of self-promotion on the part of personalities(13) and exhibitionism on the part of private individuals,(14) it has also had its unwilling victims. The subjects of these often merciless press "feeding frenzies" have suffered embarrassment and humiliation as their private lives are exposed to the public,(15) and the very process of political and social debate has been degraded.(16) The response of the legal system to this problem has largely been one of acquiescence. In the interest of upholding the First Amendment's guarantee of freedom of the press,(17) courts have extended to both public and private figures very limited protection from the media. The subjects of media exposes usually have only the "disclosure of private facts" branch of the "invasion of privacy" tort(18) as a legal remedy for the publication of truthful information.(19) The Restatement (Second) of Torts formulates this cause of action as publicity given to private facts that "would be highly offensive to a reasonable person" and that are "not of legitimate concern to the public."(20) In practice courts have rarely found the publication of personal information concerning private figures to be "offensive" because they fear chilling freedom of the press.(21) Public-figures plaintiffs have fared even more poorly in private-facts litigation because most courts believe that they have waived any right to privacy in the process of becoming celebrated personalities. Any public disclosure of facts concerning them is held to be of public concern and therefore nonactionable.(22) The lack of a judicial remedy has been a rude awakening for private individuals,(23) and has left public figures despondent.(24)

This Comment will argue that judicial reluctance to enforce the private-facts tort can be attributed to an inherent flaw in the private-facts tort itself, not in the interests it is trying to protect. By focusing liability on the point of publication(25)--that is, on the media organizations who publicize the personal information--the tort was doomed from the start. The belief in a free and inquisitive press runs deep in this country. Though there has been a public outcry with each new media advance into the realm of the personal,(26) sanctioning newspapers for publishing truthful information and permitting juries to decide what is and is not newsworthy profoundly disturbs journalists, judges, and citizens alike.(27) Unfortunately, the ramifications of such reverence for the First Amendment are no less disconcerting: individuals whose privacy has been invaded by public disclosure of personal information have no viable legal remedy in American jurisprudence.

Lovers of privacy should not concede defeat at this juncture, however. For the law has thus far overlooked the other party who is essential to the public disclosure of personal information but for whom constitutional protection is tenuous in comparison to that of publishers(28)--that is, the source of the information.(29) Sources are key players in the disclosure of personal information: "[t]o meet society's appetite for celebrity revelations,... [a tabloid has] a network of several thousand tipsters worldwide--journalists, hairdressers, cameramen, limo drivers, producers, sometimes even stars...Someone--for either the thrill of the chase or the pleasure of dollars--is always willing to tell."(30) In all the examples discussed above, there was a disclosure of information between the individual and an intimate prior to publicity. The existence of this as yet ignored link in the chain of public disclosure of personal information opens up the possibility of attaching liability at the source of the information leak under a breach of confidence theory.(31) In order to preserve the privacy interests left unprotected by the impotent private-facts tort, this Comment advocates interring the private-facts tort and adopting a new approach to overcoming the tension between privacy interests and the First Amendment: a legally enforceable duty of confidentiality that attaches whenever a person or institution intentionally or negligently engages in an unauthorized disclosure of inaccessible, personal information that she/it has explicitly and voluntarily agreed to hold in confidence, and this disclosure results in the publicity of that information.(32)

Though England has recognized a similar breach of confidence doctrine(33) as the basis of privacy protection in that country,(34) American courts and commentators have rejected such an approach primarily because it would be redundant with the invasion of privacy tort,(35) it would present a myriad of practical(36) and constitutional difficulties,(37) and it would be under-protective of privacy interests.(38) This Comment will demonstrate that an enforceable duty of confidentiality can overcome all of these objections and provide a better balance of privacy and First Amendment interests than the existent private-facts tort.

While a full delineation of the scope and exceptions of the proposed tort must wait until Part III of this Comment, its critical aspects deserve note at this point so as to immediately alleviate the most pressing concerns raised by the breach of confidentiality concept. First, although the proposed tort establishes as a constitutional minimum that an "explicit" and "voluntary" "agreement" of confidentiality must exist between the parties, an oral agreement would be sufficient.(39)

Second, the proposed tort is not intended to overly constrict the natural human propensity to gossip. Rather, its goal is to provide a remedy if there is a public disclosure of confidential information on a widespread basis. The "publicity" requirement will be the pivot on which the tension between these interests will be accommodated.(40)

Third, the "personal" information requirement of the proposed tort would prevent it from being used by the government or other institutional bodies to strangle "whistleblowers."(41)

Fourth, the tort would provide exemptions to the obligation of confidentiality if the confider's revelations concerned activities dangerous to the public health or safety or amounting to fraud or criminal conduct.(42)

Fifth, the proposed breach of confidence tort would not be offensive to the confidant's First Amendment rights because she will have explicitly waived her right to disseminate the confidential information to the public...