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Harvard Journal of Law and Public Policy

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This symposium contribution applies an institutional choice analysis, looking at whether legislatively-driven regulation or judicially-derived common law is better suited at addressing possible privacy violations that result from the disclosure of sensitive information by websites engaged in publishing or aggregating news. The piece proposes using as a measure of effectiveness the level of individual choice that different legal frameworks provide. Taking the litigation in Bollea v. Gawker as a focal point--where Hulk Hogan sued a news site that disclosed an excerpt of a sex tape of which he was unwittingly the subject--the paper shows that the law must balance the loss of choice via reductions of privacy with increases in choice that result for third parties as a result of these reductions. The choices of third parties include the ability to obtain and act on (sometimes unsavory) information about an individual who did not wish to have that information disclosed. The symposium piece concludes that the common law is generally better suited at addressing the heavily context-specific legal issues that arise from the behavior of news sites in this arena.

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