ABSTRACT
There is a relationship between privacy and the punitive impulse in American jurisprudence that legal scholarship has previously ignored. The punitive impulse offers one way of explaining the privacy law we have and can inform future policy choices. Through an original study of privacy tort cases, this Article finds a strong correlation between privacy enforcement in the courts and the availability of punitive damages. This corresponds to other intentional torts, such as battery, fraud, and trespass, which have higher rates of award of punitive damages compared to negligence torts. What is more, there are typically crimes with similar elements as intentional torts. While compensation, restitution, and injunctive relief have been discussed as remedies for privacy invasions, there is a gap in the literature when it comes to punitive damages. First, this Article fills this gap, evaluating the potential and challenges of making punitive damages available as remedies for privacy wrongs. The Article goes on to contend that a common law understanding of privacy as an intentional, dignitary, quasi-property tort suggests that legislatures should consider criminalization of a greater number of privacy wrongs and the implementation of a public trust approach for privacy wrongs less susceptible to ex ante specification.
Scholz, Lauren, Privacy and the Punitive Impulse (August 1, 2024).
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