Woodrow Hartzog, A Promissory Estoppel Theory for Confidential Disclosure in Online Communities

Comment by: Allyson Haynes

PLSC 2009

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473561

Workshop draft abstract:

Revised Abstract:  Is there any safe place to disclose personal information online? Traditional wisdom dictates individuals do not have a legitimate expectation of privacy in information posted online. Nevertheless, Internet users often disclose sensitive information.  The need for confidential disclosure is no more apparent than in online communities, particularly for community members seeking support.  Yet, traditional legal remedies for privacy violations, such as the disclosure tort and intentional infliction of emotional distress, have been generally ineffective in protecting self-disclosed information. This article proposes an alternative theory of protection and recovery for online community members based on an application of the equitable doctrine of promissory estoppel.  In order to ensure mutual accountability, community members could promise to keep other members’ information confidential through a website’s terms of use agreement. 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.  While this remedy will not serve as a panacea for privacy harms online, it could serve to protect some of the privacy interests of online community members while also promoting speech through the promise of confidentiality.