Kiss and Tell: Protecting Relationship Privacy through Contract Law

In the tell-all, tell-all-the-time world we live in, more and more people are finding themselves the victims of former intimate partners who disclose private, highly embarrassing information about them, including photos and videotapes, on the internet.

In theory, tort law provides the perfect (and exclusive) remedy when one gives widespread publicity to embarrassing, non-newsworthy private facts about a person in a manner that reasonable persons would consider highly offensive. In practice, however, this claim, known as the tort of “public disclosure of private facts,” offers only a slight chance of recovery by plaintiffs. The tort sustained severe, some have argued mortal, wounds in a series of United States Supreme Court cases culminating in the Court’s 1989 decision in Florida Star v. B.J.F. Given the current state of the law, it is quite possible that the public disclosure tort is “unconstitutional” under the First Amendment.

The demise of the public disclosure tort has left a large gap in privacy protection for victims of offensive disclosures of private information. This Article proposes a theory to partially fill that gap in some public disclosure situations arising from intimate relationships. Specifically, expanding on an argument advanced by Professor Eugene Volokh that the only constitutionally permissible means for enforcing personal information privacy is contract law, the article argues that an implied contract of confidentiality arises in intimate relationships that the parties will not disseminate through an instrument of mass communication private, embarrassing information about the other acquired during the relationship.