Abstract
How do we judge whether a violation of someone's privacy is offensive? Currently, U.S. tort law requires privacy violations be "highly offensive to a reasonable person" to afford redress. However, our research reveals that there is no effective analysis--or rhyme or reason--to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness analysis figures prominently in not only the most consequential privacy-related cases of our day, including data collection, geolocation tracking, revenge porn, sexual harassment, and transgender bathroom access, but also in corporate boardrooms, universities and schools, and policymaking bodies. This Article argues that we must develop a systematic mechanism to judge offensiveness, if the concept is to continue as a gatekeeper for privacy violations. Despite the concept's social significance and pervasiveness, alarmingly few legal scholars have written about offensiveness vis-a-vis privacy and its effects in entrenching social privilege and questionable norms. This Article seeks to fill this gap in privacy law with a view towards informing legal reform (including the upcoming Restatement (Third) of Torts) and providing guidelines for an unbiased analysis for judges and other decision-makers who must increasingly decide whether an alleged invasion of privacy is offensive. Guided by social science and philosophy, the Article proposes a factor-based rubric to guide decision-makers in determining whether conduct or content is highly offensive in the privacy context.