The Harms of Privacy

Abstract

This paper aims to identify and order the harms or losses which the law might compensate in actions for breach of privacy. Part I identifies three such harms: pecuniary loss, mental distress and breach of privacy per se. Part II comprises an ordering exercise which requires a theoretical detour in order to explain why the redress of these various heads of detriment answers to two different logics which ought not to be combined. This is because pecuniary loss and mental distress correspond to a ‘bipolar’ model of tort, where the wrong is contrasted with the ensuing losses: on that model, the abstract loss of privacy ought not to be compensated separately. Conversely, the compensation of the right-diminution itself entails switching to a ‘unipolar’ model, whereby wrong and loss collapse onto one another, rendering redundant the redress of harms flowing directly from it. The law of privacy shows itself to be a battlefield between these two analytical frameworks, where the temptation to combine the approaches is a constant one. Part III examines four consequences the choice of model has on (i) the privacy of juridical persons, (ii) that of non-sentient beings, (iii) the meaning of loss in privacy actions and (iv) the relationship between compensating loss of privacy and vindicating the right to privacy.