DU Professor Finds Potential in Tort Law to Address Data Privacy Violations
With each recent advance in artificial intelligence (AI), prognosticators have made dire predictions about its potential to eliminate jobs, eradicate creativity, and even end the world. In the meantime, plaintiffs faced with actual privacy harms caused by data collection and AI are challenged to articulate how they have standing in court to pursue a claim under existing legal doctrines. In “Data as Likeness,” forthcoming for publication in the Georgetown Law Journal, University of Denver Sturm College of Law Assistant Professor Zahra Takhshid examines how the privacy tort of appropriation of likeness may offer a solution. “Our digital persona and likeness is our personal data—the modern aspect of identity that third parties are increasingly using for their own benefit without authorization.”
According to Takhshid, “relying on tort law principles in solving new emerging legal issues such as generative AI is a promising approach in light of lack of consensus for regulations in these areas.” A recent conference on "Privacy Torts in the Digital Age" at the Sturm College of Law featured Takhshid and Denver Law faculty members Bernard Chao, Randy Robinson, and Laurent Sacharoff, as well as scholars from universities such as Yale, Harvard, Pennsylvania, NYU and Virginia. The featured panel topics included appropriation of name and likeness, intrusion upon seclusion, publication of private facts, and false light and other dignitary torts, reflecting tort law’s potential to address harms associated with rapidly advancing technologies. In her article, Takhshid uses the historical evolution of the tort of appropriation to ground her argument that “an individual’s personal data is an aspect of a person’s unique digital identity, most-used by third parties in a data driven world that should be covered by this tort.”
In 2021, the U.S. Supreme Court ruled in TransUnion LLC v. Ramirez that only plaintiffs “concretely harmed” had standing to seek damages for a violation of privacy involving a data breach. Takhshid addresses this challenge by “employing the privacy tort of appropriation of likeness and recognizing the concept of digital persona [to allow] plaintiffs to establish standing by identifying a close historical or common-law analogue for their asserted privacy injury.” Furthermore, “similar to other privacy torts, this approach can survive First Amendment objections.” The full article is forthcoming for publication in the Georgetown Law Journal and is available now via SSRN.