Today, the U.S. Supreme Court in FAA v. Cooper held in a 5-3 decision that the “actual damages” clause in the Privacy Act is not sufficiently clear to authorize the recovery of non-pecuniary damages, such as for mental or emotional distress. While the Court acknowledged that the term “actual damages” is “sometimes understood to include nonpecuniary harm” and that such a reading is not “inconceivable,” it concluded that the term was not sufficient to overcome the sovereign immunity canon of statutory construction, which requires “an unmistakable statutory expression of congressional intent to waive the Government’s immunity.”
In a recent case, the Court of Appeal for Ontario, Canada recognized the privacy torts that are widely-recognized in the United States. Many foreign common law jurisdictions, including the United Kingdom and other countries, have steadfastly refused to recognize the privacy torts spawned by the 1890 law review article by Samuel Warren and Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). These torts – intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness – are known collectively as “invasion of privacy.” In the case of Jones v. Tsige, 2012 ONCA 42 (Jan. 18, 2012), the Court of Appeal for Ontario finally recognized the US privacy tort of intrusion upon seclusion – intentionally intruding upon a person’s seclusion or solitude, or into his private affairs.