1. “The Right to Privacy,” written by Warren and Brandies and published in 1890, laid the
foundation of the law of privacy.1 The article noted that the legal protection of physical body
should be expanded to protect man’s spiritual nature and his personal life.2 Moreover, it not only
first brought up the idea of privacy right by disentangling it from property right, but also
proposed how privacy right’s legal scheme could be. From Warren and Brandies’ legal scheme,
“the law will take cognizant of an injury…even though the damages resulting are exclusively
those of mental anguish.”3 That is to say, Warren and Brandies believed privacy right is a
fundamental right that actual harm is not necessary to be present to constitute infringement. Later
legal professionals hold different opinions on the nature of privacy right: some, like Warren and
Brandies, believe privacy right is a fundamental right that if infringed, strict liability scheme
should be imposed; others believe in privacy infringement cases plaintiff still need to prove
actual harm to receive legal remedies.
These differing viewpoints have shaped privacy law into two different forms.
Specifically, a right-based approach and a harms-based approach. European countries treat
privacy as a fundamental human right, 4 however, in the United States privacy is either protected
by the government via statutory authority, or by private plaintiffs through one of the four
traditional privacy torts: intrusion on seclusion, public disclosure of private facts, false light, and
misappropriation.5 In this blog, I’ll be focusing on comparison of the harms-based approach as
embodied by the privacy torts in relation to the rights-based approach.
Under a right-based approach, a plaintiff doesn’t need to prove what harm has been
resulted from the allegedly infringing activities; infringing itself is illegal per se. As a result, it
will be easier to prove a case and receive remedies. While the rights-based approach offers more
protection to individuals, it can also be over-protective and unnecessarily hinder innovation. On
the other hand, the U.S. harms-based approach has significant drawbacks as well. Specifically,
emotional, psychological, and reputational harms are real and can be significant, but they are
also hard to quantify and typify across a class of people.
One drawback of right-based approach is it fails to consider the purpose of the collection
and the nature of the information. Consider a scenario that a chip maker collects cellphone
performing information to fix bugs, make improvement and finally optimize chip’s performance.
Under right-based approach, without considering the nature of the information being gathered
nor the purpose of collection, such collecting activity would need to consider and address
potential privacy issues, even though such data processing wouldn’t cause any actual harm. If
this is the case, the chip maker may be reticent to collect such feedback despite its value, or
resort to expensive compliance measures despite the lack of clear privacy benefit to the end user.
Both reactions will discourage performance optimization and technology development, which is
certainly not the original intention of protecting privacy.
1 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
2 Id.
3 Erik v. Perk Dog Food Co., 106 N.E.2d 742, 745 (1952).
4 Jenna M. Hauch, Protecting Private Facts in France: The Warren & Brandies Tort is Alive and Well and
Flourishing in Paris, 68 TUL.L. REV. 1219 (1993-1994).
5 NEIL RICHARDS, INTELLECTUAL PRIVACY:RETHINKINGCIVIL LIBERTIESIN THEDIGITALAGE,21-26 (2015).

2. With the same factual scenario, a harms-based approach would result in a different
outcome. Plaintiffs have to prove how such collection of cellphone-oriented data for the purpose
of improving cellphone performance harms their privacy interests. Currently in the U.S., to
succeed the plaintiff must show financial harm in order to provide an infringement of their
privacy interests. While limiting the harms based approach to financial loss provides legal
certainty, in some cases in may not leave plaintiffs whole. That said, there is no inherent reason
a harms-based approach needs to be limited to only recognizing financial harm and there are
many examples of other laws that provide relief for emotional distress, pain and suffering and
other non-tangible harms. From this point of view, a harms-based approach, by offering a closer
nexus between the wrongdoing and the implication of such wrongdoing, provide a more
equitable form of relief.
Moreover, compared to a right-based approach, a harms-based approach is better
adaptable to the ever-changing society. Warren and Brandeis, in their article, highlight the
importance that common law stay “eternal youth.”6 The new technology and business model that
spurred the Warren and Brandeis article was the Kodak instant camera and the tabloid press.7
Had a rights based approach been adopted, would we have the modern cell phone camera? Or
Kim Kardashian? (well, that might be okay). Similarly, the privacy law in the digital age should
evolve pursuant to the social environment. The above simple scenario is the proverbial a tip of
iceberg for the novel problems have emerged in the ever-changing technology-oriented society
we are living in and how a harm-based approach will lead to more desired and reasonable results.
What do you think?
6 Warren and Brandies, supra note 1.
7 Id.