Garry on The Erosion of Common Law Privacy and Defamation @USDKnudsonLaw

Patrick M. Garry, University of South Dakota School of Law, has published The Erosion of Common Law Privacy and Defamation: Reconsidering the Law’s Balancing of Speech, Privacy, and Reputation at 65 Wayne Law Review 279 (2020). Here is the abstract.

Privacy and reputation have come under siege because of new technologies, the general communications practices of society, and the changing journalism environment. At the same time, the common law’s ability to provide an effective remedy for privacy and reputation harms has diminished. A major reason for this shortcoming is that the common law does not give enough weight to privacy and reputation when balanced against speech interests. Even in common law torts — where the constitutional protections of speech may not apply — free speech is seen as a vital foundation in the structure of democratic society. This Article argues that privacy and reputation are also vital foundations. What common law courts almost always fail to recognize are the broader social underpinnings of privacy and reputation, and how a healthy democratic society depends on a vibrant respect for individual privacy and reputation. Therefore, as this Article argues, courts should reconsider the common law’s overweighing of speech in both privacy and defamation torts, because privacy and reputation (like speech) serve vital social roles and important individual interests.

Download the article from SSRN at the link.