Privacy's Other Path: Recovering the Law of Confidentiality

60 Pages Posted: 13 Mar 2007 Last revised: 13 Mar 2013

See all articles by Neil M. Richards

Neil M. Richards

Washington University School of Law; Yale Information Society Project; Stanford Center for Internet and Society

Daniel J. Solove

George Washington University Law School

Abstract

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

Keywords: privacy, confidentiality, Brandeis, Prosser, British law, English law, comparative law, torts

JEL Classification: B30, D80

Suggested Citation

Richards, Neil M. and Solove, Daniel J., Privacy's Other Path: Recovering the Law of Confidentiality. Georgetown Law Journal, Vol. 96, p. 123, 2007, GWU Law School Public Law Research Paper No. 249, Washington U. School of Law Working Paper No. 07-03-02, Available at SSRN: https://ssrn.com/abstract=969495

Neil M. Richards

Washington University School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314.935.4794 (Phone)

HOME PAGE: http://law.wustl.edu/faculty-staff-directory/profile/neil-richards/

Yale Information Society Project ( email )

493 College St
New Haven, CT CT 06520
United States

Stanford Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Daniel J. Solove (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-9514 (Phone)

HOME PAGE: http://danielsolove.com

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