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).
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