Terrell Russell: This Old Network

I just read the most plausible of law review papers suggesting the potential for protection of a private space within social network sites (SNS). Fellow UNC grad student Woodrow Hartzog proposes the use of Promissory Estoppel as a means to protect self-disclosure in online communities. It would create a type of contract or agreement between users of a site whereby a protection would exist for information disclosed in that community or site. If someone else shares the disclosed, private information, with a few caveats, they can be held accountable.

Abstract:
The unprecedented sharing of private information on the Internet is leading some to herald the demise of privacy. It is far too facile, however, to conclude that because people are sharing private data online, they should expect no privacy. The need for confidential disclosure is no more prevalent than when sensitive information such as dating profiles, candid thoughts and past substance abuse is revealed in online communities. What happens when information leaks outside these communities? Traditional remedies will likely fail to protect people when members of an online community violate the confidentiality of other members. In this article, I contend that the law can ensure confidentiality for members of online communities through promissory estoppel. This is the first article proposing the application of promissory estoppel via a website’s terms of use as a method for protecting disclosure in online communities. Under the third-party beneficiary doctrine or the concept of dual agency, these agreements could create a safe place to disclose information due to mutual availability of promissory estoppel.

Hartzog goes on to quote Professor Daniel Solove in a passage on practical implications:

The use of promissory estoppel to protect self-disclosure in online communities is consistent with many legal and public policy considerations besides privacy. Additionally, it could help create a stronger normative culture of confidentiality to protect the well-being of online community denizens. Professor Daniel Solove has asserted that “[p]rivacy, in the form of protection against disclosure, regulates the way people relate to others in society…[I]t promotes one’s ability to engage in social affairs, form friendships and human relationships, communicate with others and associate with groups of people sharing similar value.” … His conclusion underscores the need to create a safe place for disclosure online.

The four part analysis of whether a promissory estoppel should be applied is proposed as:

1) Was there a clear and definite promise?
2) Did the promisor intend to induce reliance on the part of the promisee, and did such reliance occur to the promisee’s detriment?
3) Must the promise be enforced to prevent an injustice?
4) What are the damages?

Hartzog ends his paper:

The proposed theory of recovery advances privacy as control over personal information, one of the foundations of information privacy law. It focuses on reliance instead of a commercial-based bargain theory. It also encourages speech by offering a safe place for sensitive self-disclosure and an easier process by which potential disseminators of information disclosed within a community can determine the appropriate level of discretion to apply to accessed information.

Ideally, if utilized over a significant period of time, the promissory estoppel remedy could create a stronger normative culture of confidentiality through improved channels of internalization of duties of discretion. Additionally, the solution is likely compliant with the First Amendment, as analyzed under the Cohen standard. Finally, although the available damages under promissory estoppel are less than that in tort, the theory could potentially have an effect on other torts, such as the tort for breach of confidentiality.

It is difficult to predict the full impact adoption of the promissory estoppel remedy would have for online communities, but the provision of a safe place for users to disclose personal information online would likely promote both speech and the personal well being of online community denizens.

Tags: disclosure - estoppel - hartzog - law - privacy