Algorithms and the Privacy Torts
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Aileen Nielsen
Abstract
Drawing on recent consumer privacy litigation, this work identifies three recurring doctrinal questions that arise from the interaction between algorithmic activity and privacy tort claims. First, can algorithmic conduct give rise to liability under privacy torts, particularly where intentional conduct is required? Second, can disclosing or holding out information or representations to algorithms fulfill publicity elements of the privacy torts? Third, is use of an algorithm per se offensive or will offensiveness be judged contextually, as for human conduct? A survey of recent case law reveals that courts generally accept algorithmic conduct as sufficient to perpetrate a tortious act – whether intrusion, disclosure, or publication, but they show more skepticism when algorithms are posited as the audience necessary to fulfill a publicity element. Put differently, legally algorithms can act but not see. Further, algorithms are inherently neither aggravating nor mitigating factors as to offensiveness. This work contributes to the growing literature on tort liability and artificial intelligence by surfacing a neglected body of case law in which courts have already long engaged with algorithmic conduct. These privacy torts decisions suggest that AI tort liability is emerging incrementally and contextually. The privacy torts can serve as an informative barometer for likely judicial treatment of future algorithmic use cases.
Funding source: none
Award Identifier / Grant number: none
© 2025 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Articles
- AI Liability Along the Value Chain: Lessons from the Liability of Suppliers of Components in Product Liability Law
- Tort Liability for Failure to Age Gate: A Promising Regulatory Response to Digital Public Health Hazards
- Swords and Shields: Impact of Private Standards for Liability Determinations of Autonomous Vehicles
- Digital Malpractice: The Role of Professional Negligence and Public Policy in the Regulation of Digital Platforms
- Algorithms and the Privacy Torts
- Bailing Out Biometrics
- A Novel Tort Duty for Platforms That Intermediately Produce Real World User Interactions
- Essay
- Virtual Dignitary Torts
Articles in the same Issue
- Frontmatter
- Articles
- AI Liability Along the Value Chain: Lessons from the Liability of Suppliers of Components in Product Liability Law
- Tort Liability for Failure to Age Gate: A Promising Regulatory Response to Digital Public Health Hazards
- Swords and Shields: Impact of Private Standards for Liability Determinations of Autonomous Vehicles
- Digital Malpractice: The Role of Professional Negligence and Public Policy in the Regulation of Digital Platforms
- Algorithms and the Privacy Torts
- Bailing Out Biometrics
- A Novel Tort Duty for Platforms That Intermediately Produce Real World User Interactions
- Essay
- Virtual Dignitary Torts
