The concept of implied confidentiality has deep legal roots, but it has been largely ignored by the law in online-related disputes. A closer look reveals that implied confidentiality has not been developed enough to be consistently applied in environments that often lack obvious physical or contextual cues of confidence, such as the Internet. This absence is significant because implied confidentiality could be one of the missing pieces that help users, courts, and lawmakers meaningfully address the vexing privacy problems inherent in the use of the social web.
This article explores the curious diminishment of implied confidentiality and proposes a revitalization of the concept based on a thorough analysis of its former, offline life. This article demonstrates that courts regularly consider numerous factors in deciding claims for implied confidentiality; they have simply failed to organize or canonize them. To that end, this article proposes a unifying and technology-neutral decision-making framework to help courts ascertain the two most common and important traditional judicial considerations in implied obligations of confidentiality – party perception and party inequality. This framework is offered to demonstrate that the Internet need not spell the end of implied agreements and relationships of trust.