A-Rod, Rihanna, and Confidentiality
posted by Daniel Solove
Over at Emergent Chaos, Adam Shostack raises an interesting issue regarding Alex Rodriguez (A-Rod) and confidentiality. According to the rules in place about the baseball steroid testing back in 2003, the results of these tests were supposed to be confidential. According to Gregg Doyel at CBS:
In 2003 the deal was simple: The players would submit to anonymous steroid testing, and if more than 5 percent tested positive, real testing with real penalties would begin in 2004.
But in 2003, the tests were going to be (A) anonymous and then (B) destroyed.
Shostack suggests that A-Rod might have an action for breach of contract. He might also have an action for the breach of confidentiality tort. Professor Neil Richards and I have written extensively about breach of confidentiality. The tort is recognized in most states, and it provides for liability whenever one owes a duty of confidentiality and breaches that duty. We observed, however, that the tort has remained “relatively obscure and frequently overlooked” in American law. In contrast, in England, the tort is robust and applies quite broadly. We suggested in our article that the American tort could develop more along the lines of the English tort, and it is, in fact, already beginning to head in that direction. See Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. 123 (2007).
I believe that A-Rod would have a strong case for breach of confidentiality. The A-Rod situation demonstrates why an action under the tort of breach of confidentiality might be preferable to an action for public disclosure of private facts. The public disclosure tort doesn’t apply to newsworthy information, and the fact A-Rod took steroids is newsworthy. The breach of confidentiality tort doesn’t have a newsworthiness limitation. The reason why it doesn’t is that the tort remedies a different kind of harm than the public disclosure tort. Breach of confidentiality protects confidential relationships, which often involve highly newsworthy information. Businesses hire workers and depend upon their keeping information confidential. Doctors, lawyers, accountants, and others form confidential relationships with patients and clients. In a lot of cases, the information is newsworthy, such as when it involves public figures. The law protects patient confidentiality even when the patient is a public figure because of the value of protecting the patient-physician relationship. The public disclosure tort ensures that people’s private information which is not of legitimate concern to the public be protected from disclosure. On the other hand, breach of confidentiality is not only about shielding one’s private life — it is primarily about ensuring trust in relationships and ensuring that promises and expectations of confidentiality are maintained and respected.
The breach of confidentiality tort has significantly different First Amendment implications from the privacy tort of public disclosure of private facts. There’s a fascinating set of First Amendment issues raised by the breach of confidentiality tort, as well as by contracts requiring confidentiality. In fact, these issues raise a much broader and deeper set of issues about how the First Amendment deals with civil liability. Neil and I have just written a new article that explores these issues. We just started to submit it to law reviews and plan to post it on SSRN soon.
A related issue involves the LAPD’s leaked photo of a beaten and bruised Rihanna. According to ABC News:
Reportedly taken by police after Rihanna’s boyfriend, rapper Chris Brown, allegedly assaulted her on the night of the Grammy awards two weeks ago, the photo has sparked an internal investigation within the Los Angeles Police Department, which released a statement saying that leaks from within the department are considered “serious misconduct” that could result in “termination” for those involved.
I believe that the LAPD should be liable for breach of confidentiality (as well as a violation of the constitutional right to information privacy). It is important to vigorously enforce confidentiality, for as the ABC News piece aptly explains, a lack of confidence in confidentiality could deter domestic abuse victims from reporting abuse to police:
Else said she’s also worried that the leak of Rihanna’s photograph may discourage women from coming forward to report their own abuse.
“Victims of domestic violence are so courageous when they come forward, and they expect to have confidentiality when they do that,” said Else. “I do think that this photo leak could be very traumatic for women who have experienced domestic violence to think their privacy could or was compromised in this way.”
February 25, 2009 at 12:43 am
Posted in: Privacy
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Responses (9)
A.W. - February 25, 2009 at 9:00 am
I have to admit I was surprised that baseball’s testing rules were so toothless. “Hey, as long as less than one out of twenty people cheat, it’s okay.” Well, glad you cleared that up. As for the issue, A-rod better not have me on the jury because he would never get a recovery of more than $1 for this if I had my say.
Seriously, why on earth should we respect the “confidentiality” of baseball cheaters? Why should the law see a public interest worth protecting with damages to the Rod?
As for Rhianna, I don’t know. Shouldn’t the other women of the world know what might happen to them if they date Chris Brown?
I guess I am the kind of guy who prefers to know these kinds of things, across the board. I am not saying there are no private facts, but where there is a plausible public interest in knowing, I prefer to know.
David Murakami Wood - February 26, 2009 at 6:40 am
Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled. In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not in mean ‘anything goes.’ My take on this and a couple of other connected stories here: http://ubisurv.wordpress.com/2009/02/16/the-loneliness-of-personal-data/
David Murakami Wood - February 26, 2009 at 6:40 am
Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled. In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not mean ‘anything goes.’ My take on this and a couple of other connected stories here: http://ubisurv.wordpress.com/2009/02/16/the-loneliness-of-personal-data/
A.W. - February 26, 2009 at 12:42 pm
> Why should we ‘respect’ confidentiality? Because that was the condition under which the sample was given. If you agree to something under certain conditions, you should expect those conditions to be fulfilled.
Except that 1) the cheating represents a breach of contract more than likely nullifying the contract in question and 2) if baseball had any, um, balls, they wouldn’t let them play unless they submitted to the testing. Seriously, why should this multi-millionaire cheater get one red cent from anyone over this?
> In addition, morally, I believe it diminishes our dignity as human beings. Sure, Rodriguez’s actions diminish his own dignity but that does not in mean ‘anything goes.’
To know he cheated? Um, no. We should know who cheats and throw them out, so our children are not taught that it is okay to behave immorally.
Really, morality is against the big Rod on this one.
David Murakami Wood - February 26, 2009 at 2:19 pm
Is it okay to cheat to catch a cheat? Is it better to have ‘the truth’ however you obtain it? It seems to be your assumption, AW, that it is. But why is it any better as a lesson to teach children that they have no privacy and that agreements made in confidence mean nothing?
I remember a long time ago when I lived in the States there was a case, I think in Virginia, in which someone had made a secret video recording of their neighhours engaging in a sexual act that happened to be illegal in that state. They sent the video to the police and the couple got prosecuted. I don’t recall the outcome.
Now my view is that the people who spied on their neighbours should have been utterly shunned by everyone. It was an action utterly against the spirit of privacy and human dignity. Do you also think that this action would be justified? How far do you thing surveillance and spying should be allowed to go so long as the outcome is something with which you happen to agree? Where is the line drawn?
The point of the sampling inthe Rodriguez case was to gain a general idea of the level of substance abuse in baseball, it was not to catch individual cheats. I am not making any comment on the issue of drugs or drug-testing of individuals in sports, which is not really the issue here. Neither my nor your opinions on that are really relevant to the case in hand.
Kaimi - February 26, 2009 at 11:01 pm
The document in question is under seal (and the subject of litigation about its confidentiality). The people with access to it are people who have a very serious professional obligation *not* to talk to an SI reporter about it.
The original SI story reported on people (A-Rod) who broke serious rules, thinking that they would not be caught.
Under the same standard, the reporters should name their own confidential sources for the story. Those sources also broke serious rules, thinking they could get away with it. (Unless the reporter’s sources are people other than those required to keep the information confidential.)
A.W. - February 27, 2009 at 10:31 am
David,
> Is it okay to cheat to catch a cheat?
First breach is one of the most basic defenses to breach of contract. And it bears a psychological similarity to the clean hands doctrine. As is the doctrine that one should never profit from their wrong.
> But why is it any better as a lesson to teach children that they have no privacy
A-rod has a much a right to privacy as a worker at Target (they drug test there, you know).
> and that agreements made in confidence mean nothing?
In the law we often say that certain contracts are just unenforceable. A contract with a minor, is unenforceable against the minor. A contract under duress, including a hostage situation, is unenforceable against the person under duress. A contact with an illegal purpose. You can make a deal in confidence to buy drugs or sex, but if you are cheated, well, tough on you. The law will not help you to enforce it.
The fact is that the practical effect is only to keep drug use secret. If someone had leaked that the Rod had not used drugs, no one would have cared and there would have been no case. I fail to see how it can be okay in the law to say we will not enforce a drug deal itself, but it is over some line to say we will enforce a deal to protect a drug user. The only distinction is I am not sure what he juiced himself up with was illegal, but it certainly was immoral.
Which is not to say that the precedents directly require this outcome. But as a matter of policy, that is the shape I would like to see the common law take.
By the way, the sanctity of contracts hasn’t been what it was for years. the further north you go, more or less, the less they are honored when the outcome is disliked. And in general I oppose this trend, but the idea of a rich baseball player who got rich cheating then getting richer because someone revealed his cheating is manifestly unjust.
Like I said the first time, if I was on the jury his maximum recovery would be $1.
> Now my view is that the people who spied on their neighbours should have been utterly shunned by everyone.
Well, how did they do it? how did they find out this was going on? What was the nature of the conduct? Without some details, its really hard to analyze your example.
Kaimi
> Under the same standard, the reporters should name their own confidential sources for the story.
I think there should be zero legal recognition of a “reporter’s privilege.” As the court noted in the Nixon executive privilege case, every privilege defeats the ends of justice, allowing the guilty to go free, and the innocent to suffer.
A.W. - February 27, 2009 at 12:22 pm
David
I will add that this “contractual” privacy, as it is, wouldn’t stand up in a court of law anyway. If the drug records were ever subpoenaed, they couldn’t hold up the contract and assert a privilege. So i see no good reason to say it should nonetheless be upheld if it was revealed by a method less than a subpoena.
Daniel J. Solove - February 27, 2009 at 5:33 pm
A.W. — At the time of the contract, it was known that those testing positive were “cheaters.” Note that at the time of the contract, the league was explicitly agreeing that those testing positive would remain confidential, and this was put into the contract to entice the players to agree to the testing.
If such contracts would be unenforceable, I wonder whether the union would have agreed to the testing. The very arrangement under which the testing took place was premised on the contract. If such contracts are unenforceable under your moral theory, then it would severely impair such testing and might have resulted in an impasse in the bargaining. Although some contracts are held unenforceable because they are unconscionable, most are not. Your approach to contract law would radically alter the law of contracts, allowing courts to decide, based on their own sense of morality, which contracts they like and which they don’t. I wonder whether your regime would really be preferable to the one we have where contracts are generally enforced with only a few narrow exceptions.
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