Recommendation 15. Governments at all levels should take action to establish the availability of appropriate individual recourse for recognized violations of privacy.


These comments apply whether the source of the violation is in government or in the private sector, although the nature of appropriate recourse varies depending on the source. In the case of government wrongdoing, the doctrine of sovereign immunity generally protects government actors from civil liability or criminal prosecution unless the government waives this protection or is statutorily stripped of immunity in the particular kinds of cases at hand. That is, against government wrongdoers, a statute must explicitly allow civil suits or criminal prosecution for recourse to exist.

Against private sector violators of privacy, a number of recourse mechanisms are possible.21 One approach is for legislatures (federal or state) to create causes for action if private organizations engage in certain privacy-violating practices, as these legislatures have done in the case of unfair and deceptive trade practices. Such laws can be structured to allow government enforcement actions to stop the practice and/or individual actions for damages brought by individuals harmed by the practices.

There are other possibilities as well. When local privacy commissioners or advocates have been legislatively chartered, their charge could include standing to take action on behalf of individuals who have been harmed, either tangibly or intangibly, by some privacy-violating action. Mediators or privacy arbitration boards might be established that could resolve privacy disputes; while this would still require those who thought their privacy had been violated to bring action against the violator, it might reduce the overhead of such actions in a way that would be acceptable to all.

21

In pursuing remedies against private sector invasions of privacy by the news media, publishers, writers, photographers, and others, caution is in order respecting freedoms of speech and press, as noted in Section 4.2.



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