Trade-Secret Model: Privacy Rights

Abstract

![Figure][1] CREDIT: ISTOCKPHOTO.COM In their Policy Forum “Genomics, Biobanks, and the Trade-secret model” (15 April, p. [309][2]), R. Mitchell and his colleagues suggest that trade-secret law could be applied effectively to manage the use of human genomic information. It would be productive to assess the potential application of two other legal models as well: the individual's right to control his or her name and likeness, and the right to control public disclosure of private facts. Jurisdictions that recognize a right of personal privacy commonly include within that right the ability of an individual to control the use of his/her name and likeness for commercial advantage ([ 1 ][3]). An individual's name and visual image are deemed to be unique and highly personal qualities that each person should have the right to control. This right is viewed by the law as part of the individual's ability to protect the key aspects of his/her personality. Name and likeness have been interpreted to include other characteristics of an individual's personality, including the sound of his or her voice ([ 2 ][4]). It seems reasonable that the legal framework designed to help the individual to protect the integrity of his/her personality should also include the most intimate aspect of an individual's personality—personal genomic information. Personal privacy rights also frequently include the ability to control public disclosure of private facts about an individual ([ 3 ][5]). Arguably, genomic information includes the most private and personal facts associated with any individual. The right to control public disclosure of private facts appears to provide another legal vehicle for management of use of personal genomic information. Application of these traditional privacy rights can supplement legal approaches such as the trade-secret model proposed by Mitchell et al. There may also be circumstances in which the trade-secret model would not be appropriate but the traditional privacy rights could be applied. For example, it is unclear whether an individual can effectively assert a trade-secret claim when the secret he or she possesses is not actually understood by the individual asserting the protection. No such complications arise when a traditional personal privacy right is applied. 1. [↵][6] California Civil Code, Section 3344. 2. [↵][7] Massachusetts General Laws, Chapter 214, Section 1B. 3. [↵][8] California State Constitution, Article I, Section 1B and Florida State Constitution, Article I, Section 23. [1]: pending:yes [2]: http://www.sciencemag.org/content/332/6027/309.full [3]: #ref-1 [4]: #ref-2 [5]: #ref-3 [6]: #xref-ref-1-1 View reference 1 in text [7]: #xref-ref-2-1 View reference 2 in text [8]: #xref-ref-3-1 View reference 3 in text