Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures

Abstract

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression - both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This Article addresses this omission by using comparative case studies from the United States, the United Kingdom, France, and Germany to analyze areas of convergence and divergence in privacy rights. The focus of each case study will be the right of privacy afforded to figures, particularly those at the cusp of the classic definition, i.e., involuntary or temporary figures. Though some semblance of a bright-line rule has evolved for voluntary figures, involuntary figures in the United States are accorded spotty protection varying by jurisdiction. Lacking guiding Supreme Court precedent, this has led to divergent practice especially regarding the definition of public interest, which is fundamental to defining the limits of freedom of expression. Thus, this Article draws from the comparative analysis to build a proposal for a clarifying definition of the interest that helps delineate privacy rights, as well as arguing for the adoption of a graduated structure of privacy protections for figures along the lines of the German and European Court of Human Rights models.