William & Mary Journal of Race, Gender, and Social Justice
This Article argues that the current interpretation given to the four-part invasion of privacy framework by the courts is inadequate in the face of modern privacy challenges. In particular, it struggles with claims for privacy over public matters or other ‘non-secret’ matters that an individual may nonetheless have some ongoing privacy interest in. This Article suggests that this struggle is the result of the courts adopting a fixed, binary approach to privacy, which is itself grounded in a liberal-individualistic account of autonomy. While this may be a natural response to concerns about limiting the scope of the tort, it is unnecessarily rigid. Feminist legal theory offers a reconstructed account of autonomy grounded in the importance of supportive social contexts rather than the elimination of external influences. This Article argues that the deep philosophical linkages between autonomy and privacy mean that by drawing on this reconstructed account of the former we can improve our approach to the latter. In turn, this points towards a legal regime that protects privacy not by focusing on a priori definitions of private places or things, but by focusing on the nature of the harm suffered by the claimant and its impact upon their role in the community. Though the courts have not yet recognized this approach by name, this Article suggests that the seeds of it can be found in the expansion of the breach of confidence action used in some common law jurisdictions to protect privacy interests. This expansion has taken an action previously applicable only in the commercial context, and by focusing on the nature of the harm suffered by the claimant, has expanded privacy protections in a way that may in fact be more responsive to a range of modern privacy claims than the traditional freestanding privacy torts used in the United States and replicas of them elsewhere.