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

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

  The full text of this Note may be found here.

32 Fordham Intell. Prop. Media & Ent. L.J. 756 (2022).

Note by Kirby Shilling*

ABSTRACT

[T]

he “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.