Taken in context: an examination of judicial determinations regarding implied obligations of confidentiality Public Deposited

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  • March 21, 2019
  • Hartzog, Woodrow Neal
    • Affiliation: Hussman School of Journalism and Media
  • This study explores how courts analyze claims of implied obligations of confidentiality. Individuals must regularly disclose information that, if misused, could subject them to harm, particularly on the Internet. Yet American courts lack a clear and consistent methodology for protecting self-disclosed information. Traditional privacy remedies often do not cover self-disclosed information. A more promising yet underdeveloped concept is the law of implied confidentiality. Implied confidentiality is a flexible and powerful concept, yet there is no widely adopted methodology to guide courts in determining which actions, language, or designs imply an obligation of confidentiality. This dissertation utilizes Helen Nissenbaum's theory of privacy as contextual integrity as a framework for analyzing factors important to courts in disputes involving implied obligations of confidentiality. The theory of privacy as contextual integrity is the theory that privacy violations occur when the context in which information is disclosed is not respected. According to Nissenbaum, privacy and confidentiality are defined by the informational norms within a given context. Nissenbaum identified four factors relevant to informational norms: 1) context, 2) the nature of the information, 3) actors, and 4) terms of disclosure. The 132 cases analyzed in this dissertation revealed that all four of Nissenbaum's factors were important to courts in analyzing implied obligations of confidentiality. Contextual integrity seems to be a good theory for analyzing both offline and online implied obligations of confidentiality, though the cases supported the collapse of Nissenbaum's four factors into two: context and terms. This dissertation proposes a framework based on the case analysis to help courts ascertain the two most important considerations in implied obligations of confidentiality - party perception and party inequality. Courts presented with claims of an implied obligation of confidentiality should ask: 1) What was the context surrounding the disclosure? 2) What was the nature of the information? 3) Who were the actors and what was their relationship to each other? and 4) What were the internal and external terms of disclosure? This dissertation concludes that the concept of implied obligations of confidentiality is promising as an alternative to traditional privacy remedies, but in need of a unifying framework.
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  • In Copyright
  • "... in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the School of Journalism and Mass Communication."
  • Packer, Cathy Lee
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  • Chapel Hill, NC
  • Open access

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