Woodrow Hartzog, The Life, Death, and Revival of Implied Confidentiality
Comment by: Patricia Abril
Workshop draft abstract:
Confidence is implied in many of our face-to-face relationships. Those seeking to disclose in confidence can close doors, speak in hushed tones, and rely on context and other signals to convey a trust in the recipient that has not been explicitly articulated. Yet, according to courts, the same usually cannot be said for our relationships on the Internet. Online relationships are frequently perceived by courts as missing the same implicit cues of confidentiality that are present in face-to-face relationships. Indeed, implied confidentiality is absent in the judicial analysis of Internet-related cases except in the most obvious scenarios. Yet it is clear that Internet users often have implicitly shared expectations of confidentiality. This article posits that the diminished legal relevance of implied confidentiality on the Internet is not solely attributable to the inherent differences between online and offline interaction. Rather, this article argues that implied confidentiality has not been refined enough to be a workable concept in online disputes. The absence of online implied confidentiality as a legal concept is a problem because courts are tasked with ascertaining the actual agreement or relationship between Internet users. Although courts have regularly found implied confidences between parties offline, their analyses have left insufficient direction for future courts to consistently apply doctrine across the myriad of factual scenarios. As a result, the concept of implied confidentiality has, as a practical matter, been rendered too flimsy to play a significant role in Internet jurisprudence. The purpose of this article is to mine the rich history of implied confidentiality doctrine in an attempt to refine the concept with a unifying decision-making framework. This article proposes a technology-neutral framework based on a review of case law to help courts ascertain the two most common and important judicial considerations in implied obligations of confidentiality – party perception and party inequality. A more nuanced framework will better enable the application of implied confidentiality in online disputes than the currently vague articulation of the concept. This framework is offered to demonstrate that the Internet need not spell the end of implied agreements and relationships of trust.