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Golden Gate University Law Review

Abstract

Rugg and Smith encapsulate a transition between two approaches to tort protection of privacy. Rugg reflects the unitary-tort theory, which recognizes a single tort and seeks only to determine if the plaintiff's interest in privacy has been breached by the defendant's behavior. Smith reflects the multiple-tort approach that recognizes four torts, encompassing four ways in which privacy is breached, that have in common only an interference with a loosely defined understanding of privacy. This understanding of the privacy tort was lifted from the Restatement (Second) of Torts (1977), which adopted a construct first proffered by Dean William Prosser in a 1960 law review article. This Comment argues that the flexibility envisioned by the Restatement can best be achieved through an alternative offered by the Government of Ireland in the summer of 2006. The Irish proposal recognizes a single tort for invasion of privacy, defining the degree of privacy that an individual may expect as that which is reasonable under all the circumstances. It lists a series of factors to consider when evaluating all the circumstances, as well as defenses and recognized violations. The Irish integrative approach seeks to incorporate the elasticity of the unitary-tort approach with the clarity of the multiple-tort approach in a single statute. Adoption of the Irish approach would allow American jurisdictions to more clearly articulate the privacy tort and to better channel the adaptive powers of American common law. Part I of this Comment explains that modern American privacy-tort law is the result of the tension between two conflicting viewpoints on invasion-of-privacy torts. Part II shows how the widespread acceptance of the four tort structure in the United States has stunted the development of the privacy tort. Part III surveys the provisions of the Irish proposal, while Part IV analyzes the benefits offered by the Irish integrative approach. Part V explores how an American jurisdiction can utilize a structure like that in the Irish bill to take advantage of these benefits. Finally, Part VI concludes that the Irish proposal offers an opportunity for American privacy-tort jurisprudence to embrace the adaptive and evolutionary power of the common law.

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