Harvard Law Review
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Vol. IV
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December 15, 1890
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No. 5
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THE RIGHT TO PRIVACY
"It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent ; much more when received and approved by usage."Willes, J., in Millar v. Taylor, 4 Burr. 2303, 2312
THAT the individual shall have full protection in person and in property
is a principle as old as the common law; but it has been found
necessary from time to time to define anew the exact nature and extent
of such protection. Political, social, and economic changes entail the
recognition of new rights, and the common law, in its eternal youth,
grows to meet the new demands of society. Thus, in very early times,
the law gave a remedy only for physical interference with life and
property, for trespasses vi et armis. Then the "right to life"
served only to protect the subject from battery in its various forms ;
liberty meant freedom from actual restraint ; and the right to property
secured to the individual his lands and his cattle. Later, there came a
recognition of man's spiritual nature, of his feelings and his
intellect. Gradually the scope of these legal rights broadened ; and
now the right to life has come to mean the right to enjoy life, — the
right to be let alone ; the right to liberty secures the exercise of
extensive civil privileges ; and the term "property" has grown to
comprise every form of possession — intangible, as well as tangible.
Thus,
with the recognition of the legal value of sensations, the protection
against actual bodily injury was extended to prohibit mere attempts to
do such injury ; that is, the putting another in fear of such injury.
From the action of battery grew that of assault.1
Much later there came a qualified protection of the individual against
offensive noises and odors, against dust and smoke, and excessive
vibration. The law of nuisance was developed.2
So regard for human emotions soon extended the scope of personal
immunity beyond the body of the individual. His reputation, the
standing among his fellow-men, was considered, and the law of slander
and libel arose.3
Man's family relations became a part of the legal conception of his
life, and the alienation of a wife's affections was held remediable.4
Occasionally the law halted, as in its refusal to recognize the
intrusion by seduction upon the honor of the family. But even here the
demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.5
Similar to the expansion of the right to life was the growth of the
legal conception of property. From corporeal property arose the
incorporeal rights issuing out of it ; and then there opened the wide
realm of intangible property, in the products and processes of the mind,6 as works of literature and art,
7 goodwill,
8 trade secrets, and trademarks.
9
This
development of the law was inevitable. The intense intellectual and
emotional life, and the heightening of sensations which came with the
advance of civilization, made it clear to men that only a part of the
pain, pleasure, and profit of life lay in physical things. Thoughts,
emotions, and sensations demanded legal recognition, and the beautiful
capacity for growth which characterizes the common law enabled the
judges to afford the requisite protection, without the interposition of
the legislature.
Recent
inventions and business methods call attention to the next step which
must be taken for the protection of the person, and for securing to the
individual what Judge Cooley calls the right "to be let alone"
10
Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life ; and numerous mechanical
devices threaten to make good the prediction that "what is whispered in
the closet shall be proclaimed from the house-tops." For years there
has been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private persons ;11 and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,
13
directly involved the consideration of the right of circulating
portraits ; and the question whether our law will recognize and protect
the right to privacy in this and in other respects must soon come before
out courts for consideration.
Of
the desirability — indeed of the necessity — of some such protection,
there can, it is believed, be no doubt. The press is overstepping in
every direction the obvious bounds of propriety and of decency. Gossip
is no longer the resource of the idle and of the vicious, but has become
a trade, which is pursued with industry as well as effrontery. To
satisfy a prurient taste the details of sexual relations are spread
broadcast in the columns of the daily papers. To occupy the indolent,
column upon column is filled with idle gossip, which can only be
procured by intrusion upon the domestic circle. The intensity and
complexity of life, attendant upon advancing civilization, have rendered
necessary some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual ; but
modern enterprise and invention have, through invasions upon his
privacy, subjected him to mental pain and distress, far greater than
could be inflicted by mere bodily injury. Nor is the harm wrought by
such invasions confined to the suffering of those who may be the
subjects of journalistic or other enterprise. In this, as in other
branches of commerce, the supply creates the demand. Each crop of
unseemly gossip, thus harvested, becomes the seed of more, and, in
direct proportion to its circulation, results in the lowering of social
standards and of morality. Even gossip apparently harmless, when widely
and persistently circulated, is potent for evil. It both belittles and
perverts. It belittles by inverting the relative importance of things,
thus dwarfing the thoughts and aspirations of a people. When personal
gossip attains the dignity of print, and crowds the space available for
matters of real interest to the community, what wonder that the ignorant
and thoughtless mistake its relative importance. Easy of
comprehension, appealing to that weak side of human nature which is
never wholly cast down by the misfortunes and frailties of our
neighbors, no one can be surprised that it usurps the place of interest
in brains capable of other things. Triviality destroys at once
robustness of thought and delicacy of feeling. No enthusiasm can
flourish, no generous impulse can survive under its blighting influence.
It
is our purpose to consider whether the existing law affords a principle
which can properly be invoked to protect the privacy of the individual ;
and, if it does, what the nature and extent of such protection is.
Owing
to the nature of the instruments by which privacy is invaded, the
injury inflicted bears a superficial resemblance to the wrongs dealt
with by the law of slander and of libel, while a legal remedy for such
injury seems to involve the treatment of mere wounded feelings, as a
substantive cause of action. The principle on which the law of
defamation rests, covers, however, a radically different class of
effects from those for which attention is now asked. It deals only with
damage to reputation, with the injury done to the individual in his
external relations to the community, by lowering him in the estimation
of his fellows. The matter published of him, however widely circulated,
and however unsuited to publicity, must, in order to be actionable,
have a direct tendency to injure him in his intercourse with others, and
even if in writing or in print, must subject him to the hatred,
ridicule, or contempt of his fellowmen, — the effect of the publication
upon his estimate of himself and upon his own feelings nor forming an
essential element in the cause of action. In short, the wrongs and
correlative rights recognized by the law of slander and libel are in
their nature material rather than spiritual. That branch of the law
simply extends the protection surrounding physical property to certain
of the conditions necessary or helpful to worldly prosperity. On the
other hand, our law recognizes no principle upon which compensation can
be granted for mere injury to the feelings. However painful the mental
effects upon another of an act, though purely wanton or even malicious,
yet if the act itself is otherwise lawful, the suffering inflicted is dannum absque injuria.
Injury of feelings may indeed be taken account of in ascertaining the
amount of damages when attending what is recognized as a legal injury ;14
but our system, unlike the Roman law, does not afford a remedy even for
mental suffering which results from mere contumely and insult, but from
an intentional and unwarranted violation of the "honor" or another.15
It
is not however necessary, in order to sustain the view that the common
law recognizes and upholds a principle applicable to cases of invasion
of privacy, to invoke the analogy, which is but superficial, to injuries
sustained, either by an attack upon reputation or by what the civilians
called a violation of honor ; for the legal doctrines relating to
infractions of what is ordinarily termed the common-law right to
intellectual and artistic property are, it is believed, but instances
and applications of a general right to privacy, which properly
understood afford a remedy for the evils under consideration.
The
common law secures to each individual the right of determining,
ordinarily, to what extent his thoughts, sentiments, and emotions shall
be communicated to others.16
Under our system of government, he can never be compelled to express
them (except when upon the witness stand); and even if he has chosen to
give them expression, he generally retains the power to fix the limits
of the publicity which shall be given them. The existence of this right
does not depend upon the particular method of expression adopted. It
is immaterial whether it be by word17 or by signs,18 in painting,19 by sculpture, or in music.20
Neither does the existence of the right depend upon the nature or
value of the thought or emotions, nor upon the excellence of the means
of expression.21
The same protection is accorded to a casual letter or an entry in a
diary and to the most valuable poem or essay, to a botch or daub and to a
masterpiece. In every such case the individual is entitled to decide
whether that which is his shall be given to the public.22
No other has the right to publish his productions in any form, without
his consent. This right is wholly independent of the material on
which, the thought, sentiment, or emotions is expressed. It may exist
independently of any corporeal being, as in words spoken, a song sung, a
drama acted. Or if expressed on any material, as in a poem in writing,
the author may have parted with the paper, without forfeiting any
proprietary right in the composition itself. The right is lost only
when the author himself communicates his production to the public, — in
other words, publishes it.23
It is entirely independent of the copyright laws, and their extension
into the domain of art. The aim of those statutes is to secure to the
author, composer, or artist the entire profits arising from publication ;
but the common-law protection enables him to control absolutely the act
of publication, and in the exercise of his own discretion, to decide
whether there shall be any publication at all.24 The statutory right is of no value, unless there is a publication ; the common-law right is lost as soon as there is a publication.
What
is the nature, the basis, of this right to prevent the publication of
manuscripts or works of art? It is stated to be the enforcement of a
right of property ;25
and no difficulty arises in accepting this view, so long as we have
only to deal with the reproduction of literary and artistic
compositions. They certainly possess many of the attributes of ordinary
property ; they are transferable ; they have a value ; and publication
or reproduction is a use by which that value is realized. But where the
value of the production is found not in the right to take the profits
arising from publication, but in the peace of mind or the relief
afforded by the ability to prevent any publication at all, it is
difficult to regard the right as one of property, in the common
acceptation of that term. A man records in a letter to his son, or in
his diary, that he did not dine with his wife on a certain day. No one
into whose hands those papers fall could publish them to the world, even
if possession of the documents had been obtained rightfully ; and the
prohibition would not be confined to the publication of a copy of the
letter itself, or of the diary entry ; the restraint extends also to a
publication of the contents. What is the thing which is protected?
Surely, not the intellectual act of recording the fact that the husband
did not dine with his wife, but that fact itself. It is not the
intellectual product, but the domestic occurrence. A man writes a dozen
letters to different people. No person would be permitted to publish a
list of the letters written. If the letters or the contents of the
diary were protected as literary compositions, the scope of the
protection afforded should be the same secured to a published writing
under the copyright law. But the copyright law would not prevent an
enumeration of the letters, or the publication of some of the facts
contained therein. The copyright of a series of paintings or etchings
would prevent a reproduction of the paintings as pictures ; but it would
not prevent a publication of list or even a description of them.26 Yet in the famous case of Prince Albert v.
Strange, the court held that the common-law rule prohibited not merely
the reproduction of the etchings which the plaintiff and Queen Victoria
had made for their own pleasure, but also "the publishing (at least by
printing or writing), though not by copy or resemblance, a description
of them, whether more or less limited or summary, whether in the form of
a catalogue or otherwise."27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from privacy.28
That
this protection cannot rest upon the right to literary or artistic
property in any exact sense, appears the more clearly when the
subject-matter for which protection is invoked is not even in the form
of intellectual property, but has the attributes of ordinary tangible
property. Suppose a man has a collection of gems or curiosities which
he keeps private : it would hardly be contended that any person could
publish a catalogue of them, and yet the articles enumerated are
certainly not intellectual property in the legal sense, any more than a
collection of stoves or of chairs.29
The
belief that the idea of property in its narrow sense was the basis of
the protection of unpublished manuscripts led an able court to refuse,
in several cases, injunctions against the publication of private
letters, on the ground that "letters not possessing the attributes of
literary compositions are not property entitled to protection ; "and
that it was "evident the plaintiff could not have considered the letters
as of any value whatever as literary productions, for a letter cannot
be considered of value to the author which he never would consent to
have published."30 But those decisions have not been followed,31
and it may not be considered settled that the protection afforded by
the common law to the author of any writing is entirely independent of
its pecuniary value, its intrinsic merits, or of any intention to
publish the same and, of course, also, wholly independent of the
material, if any, upon which, or the mode in which, the thought or
sentiment was expressed.
Although
the courts have asserted that they rested their decisions on the narrow
grounds of protection to property, yet there are recognitions of a more
liberal doctrine. Thus in the case of Prince Albert v.
Strange, already referred to, the opinions of both the Vice-Chancellor
and of the Lord Chancellor, on appeal, show a more or less clearly
defined perception of a principle broader than those which were mainly
discussed, and on which they both place their chief reliance.
Vice-Chancellor Knight Bruce referred to publishing of a man that he had
"written to particular persons or on particular subjects" as an
instance of possibly injurious disclosures as to private matters, that
the courts would in a proper case prevent ; yet it is difficult to
perceive how, in such a case, any right of privacy, in the narrow sense,
would be drawn in question, or why, if such a publication would be
restrained when it threatened to expose the victim not merely to
sarcasm, but to ruin, it should not equally be enjoined, if it
threatened to embitter his life. To deprive a man of the potential
profits to be realized by publishing a catalogue of his gems cannot per se
be a wrong to him. The possibility of future profits is not a right of
property which the law ordinarily recognizes ; it must, therefore, be
an infraction of other rights which constitutes the wrongful act, and
that infraction is equally wrongful, whether its results are to
forestall the profits that the individual himself might secure by giving
the matter a publicity obnoxious to him, or to gain an advantage at the
expense of his mental pain and suffering. If the fiction of property
in a narrow sense must be preserved, it is still true that the end
accomplished by the gossip-monger is attained by the use of that which
is another's, the facts relating to his private life, which he has seen
fit to keep private. Lord Cottenham stated that a man "is that which is
exclusively his," and cited with approval the opinion of Lord Eldon, as
reported in a manuscript note of the case of Wyatt v. Wilson,
in 1820, respecting an engraving of George the Third during his illness,
to the effect that "if one of the late king's physicians had kept a
diary of what he heard and saw, the court would not, in the king's
lifetime, have permitted him to print and publish it ; "and Lord
Cottenham declared, in respect to the acts of the defendants in the case
before him, that "privacy is the right invaded." But if privacy is
once recognized as a right entitled to legal protection, the
interposition of the courts cannot depend on the particular nature of
the injuries resulting.
These
considerations lead to the conclusion that the protection afforded to
thoughts, sentiments, and emotions, expressed through the medium of
writing or of the arts, so far as it consists in preventing publication,
is merely an instance of the enforcement of the more general right of
the individual to be let alone. It is like the right not be assaulted
or beaten, the right not be imprisoned, the right not to be maliciously
prosecuted, the right not to be defamed. In each of these rights, as
indeed in all other rights recognized by the law, there inheres the
quality of being owned or possessed — and (as that is the distinguishing
attribute of property) there may some propriety in speaking of those
rights as property. But, obviously, they bear little resemblance to
what is ordinarily comprehended under that term. The principle which
protects personal writings and all other personal productions, not
against theft and physical appropriation, but against publication in any
form, is in reality not the principle of private property, but that of
an inviolate personality.32
If
we are correct in this conclusion, the existing law affords a principle
from which may be invoked to protect the privacy of the individual from
invasion either by the too enterprising press, the photographer, or the
possessor of any other modern device for rewording or reproducing
scenes or sounds. For the protection afforded is not confined by the
authorities to those cases where any particular medium or form of
expression has been adopted, not to products of the intellect. The same
protection is afforded to emotions and sensations expressed in a
musical composition or other work of art as to a literary composition ;
and words spoken, a pantomime acted, a sonata performed, is no less
entitled to protection than if each had been reduced to writing. The
circumstance that a thought or emotion has been recorded in a permanent
form renders its identification easier, and hence may be important from
the point of view of evidence, but it has no significance as a matter of
substantive right. If, then, the decisions indicate a general right to
privacy for thoughts, emotions, and sensations, these should receive
the same protection, whether expressed in writing, or in conduct, in
conversation, in attitudes, or in facial expression.
It
may be urged that a distinction should be taken between the deliberate
expression of thoughts and emotions in literary or artistic compositions
and the casual and often involuntary expression given to them in the
ordinary conduct of life. In other words, it may be contended that the
protection afforded is granted to the conscious products of labor,
perhaps as an encouragement to effort.33
This contention, however plausible, has, in fact, little to recommend
it. If the amount of labor involved be adopted as the test, we might
well find that the effort to conduct one's self properly in business and
in domestic relations had been far greater than that involved in
painting a picture or writing a book ; one would find that it was far
easier to express lofty sentiments in a diary than in the conduct of a
noble life. If the test of deliberateness of the act be adopted, much
casual correspondence which is now accorded full protection would be
excluded from the beneficent operation of existing rules. After the
decisions denying the distinction attempted to be made between those
literary productions which it was intended to publish and those which it
was not, all considerations of the amount of labor involved, the degree
of deliberation, the value of the product, and the intention of
publishing must be abandoned, and no basis is discerned upon which the
right to restrain publication and reproduction of such so-called
literary and artistic works can be rested, except the right to privacy,
as a part of the more general right to the immunity of the person, — the
right to one's personality.
It
should be stated that, in some instances where protection has been
afforded against wrongful publication, the jurisdiction has been
asserted, not on the ground of property, or at least not wholly on that
ground, but upon the ground of an alleged breach of an implied contract
or of a trust or confidence.
Thus, in Abernethy v.
Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a
distinguished surgeon, sought to restrain the publication in the
"Lancet" of unpublished lectures which he had delivered as St.
Bartholomew's Hospital in London, Lord Eldon doubted whether there could
be property in lectures which had not been reduced to writing, but
granted the injunction on the ground of breach of confidence, holding
"that when persons were admitted as pupils or otherwise, to hear these
lectures, although they were orally delivered, and although the parties
might go to the extent, if they were able to do so, of putting down the
whole by means of short-hand, yet they could do that only for the
purposes of their own information, and could not publish, for profit,
that which they had not obtained the right of selling."
In Prince Albert v.
Strange, I McN. & G. 25 (1849), Lord Cottenham, on appeal, while
recognizing a right of property in the etchings which of itself would
justify the issuance of the injunction, stated, after discussing the
evidence, that he was bound to assume that the possession of the etching
by the defendant had "its foundation in a breach of trust, confidence,
or contract," and that upon such ground also the plaintiff's title to
the injunction was fully sustained.
In Tuck v.
Priester, 19 Q.B.D. 639 (1887), the plaintiffs were owners of a
picture, and employed the defendant to make a certain number of copies.
He did so, and made also a number of other copies for himself, and
offered them for sale in England at a lower price. Subsequently, the
plaintiffs registered their copyright in the picture, and then brought
suit for an injunction and damages. The Lords Justices differed as to
the application of the copyright acts to the case, but held unanimously
that independently of those acts, the plaintiffs were entitled to an
injunction and damages for breach of contract.
In Pollard v.
Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a
lady's photograph under the ordinary circumstances was restrained from
exhibiting it, and also from selling copies of it, on the ground that it
was a breach of an implied term in the contract, and also that it was a
breach of confidence. Mr. Justice North interjected in the argument of
the plaintiff's counsel the inquiry: "Do you dispute that if the
negative likeness were taken on the sly, the person who took it might
exhibit copies?" and counsel for the plaintiff answered: "In that case
there would be no trust or consideration to support a contract." Later,
the defendant's counsel argued that "a person has no property in his
own features ; short of doing what is libellous or otherwise illegal,
there is no restriction on the photographer's using his negative." But
the court, while expressly finding a breach of contract and of trust
sufficient to justify its interposition, still seems to have felt the
necessity of resting the decision also upon a right of property,34 in order to bring it within the line of those cases which were relied upon as precedents.35
This
process of implying a term in a contract, or of implying a trust
(particularly where a contract is written, and where these is no
established usage or custom), is nothing more nor less than a judicial
declaration that public morality, private justice, and general
convenience demand the recognition of such a rule, and that the
publication under similar circumstances would be considered an
intolerable abuse. So long as these circumstances happen to present a
contract upon which such a term can be engrafted by the judicial mind,
or to supply relations upon which a trust or confidence can be erected,
there may be no objection to working out the desired protection though
the doctrines of contract or of trust. But the court can hardly stop
there. The narrower doctrine may have satisfied the demands of society
at a time when the abuse to be guarded against could rarely have arisen
without violating a contract or a special confidence ; but now that
modern devices afford abundant opportunities for the perpetration of
such wrongs without any participation by the injured party, the
protection granted by the law must be placed upon a broader foundation.
While, for instance, the state of the photographic art was such that
one's picture could seldom be taken without his consciously "sitting"
for the purpose, the law of contract or of trust might afford the
prudent man sufficient safeguards against the improper circulation of
his portrait ; but since the latest advances in photographic art have
rendered it possible to take pictures surreptitiously, the doctrines of
contract and of trust are inadequate to support the required protection,
and the law of tort must be resorted to. The right of property in its
widest sense, including all possession, including all rights and
privileges, and hence embracing the right to an inviolate personality,
affords alone that broad basis upon which the protection which the
individual demands can be rested.
Thus,
the courts, in searching for some principle upon which the publication
of private letters could be enjoined, naturally came upon the ideas of a
breach of confidence, and of an implied contract ; but it required
little consideration to discern that this doctrine could not afford all
the protection required, since it would not support the court in
granting a remedy against a stranger ; and so the theory of property in
the contents of letters was adopted.36
Indeed, it is difficult to conceive on what theory of the law the
casual recipient of a letter, who proceeds to publish it, is guilty of a
breach of contract, express or implied, or of any breach of trust, in
the ordinary acceptation of that term. Suppose a letter has been
addressed to him without his solicitation. He opens it, and reads.
Surely, he has not made any contract ; he has not accepted any trust.
He cannot, by opening and reading the letter, have come under any
obligation save what the law declares ; and, however expressed, that
obligation is simply to observe the legal right of the sender, whatever
it may be, and whether it be called his right or property in the
contents of the letter, or his right to privacy.37
A
similar groping for the principle upon which a wrongful publication can
be enjoined is found in the law of trade secrets. There, injunctions
have generally been granted on the theory of a breach of contract, or of
an abuse of confidence.38
It would, of course, rarely happen that any one would be in possession
of a secret unless confidence had been reposed in him. But can it be
supposed that the court would hesitate to grant relief against one who
had obtained his knowledge by an ordinary trespass, — for instance, by
wrongfully looking into a book in which the secret was recorded, or by
eavesdropping? Indeed, in Yovatt v. Winyard, I J.&W. 394
(1820), where an injunction was granted against making any use or of
communicating certain recipes for veterinary medicine, it appeared that
the defendant while in the plaintiff's employ, had surreptitiously got
access to his book of recipes, and copied them. Lord Eldon "granted the
injunction, upon the ground of there having been a breach of trust and
confidence;" but it would seem difficult to draw any sound legal
distinction between such a case and one where a mere stranger wrongfully
obtained access to the book.39
We
must therefore conclude that the rights, so protected, whatever their
exact nature, are not rights arising from contract or from special
trust, but are rights as against the world ; and, as above stated, the
principle which has been applied to protect these rights is in reality
not the principle of private property, unless that word be used in an
extended and unusual sense. The principle which protects personal
writings and any other productions of the intellect of or the emotions,
is the right to privacy, and the law has no new principle to formulate
when it extends this protection to the personal appearance, sayings,
acts, and to personal relation, domestic or otherwise.40
If the invasion of privacy constitutes a legal injuria,
the elements for demanding redress exist, since already the value of
mental suffering, caused by an act wrongful in itself, is recognized as a
basis for compensation.
The
right of one who has remained a private individual, to prevent his
public portraiture, presents the simplest case for such extension ; the
right to protect one's self from pen portraiture, from a discussion by
the press of one's private affairs, would be a more important and
far-reaching one. If casual and unimportant statements in a letter, if
handiwork, however inartistic and valueless, if possessions of all sorts
are protected not only against reproduction, but also against
description and enumeration, how much more should the acts and sayings
of a man in his social and domestic relations be guarded from ruthless
publicity. If you may not reproduce a woman's face photographically
without her consent, how much less should be tolerated the reproduction
of her face, her form, and her actions, by graphic descriptions colored
to suit a gross and depraved imagination.
The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.41
It
remains to consider what are the limitations of this right to privacy,
and what remedies may be granted for the enforcement of the right. To
determine in advance of experience the exact line at which the dignity
and convenience of the individual must yield to the demands of the
public welfare or of private justice would be a difficult task ; but the
more general rules are furnished by the legal analogies already
developed in the law of slander and libel, and in the law of literary
and artistic property.
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The right to privacy does not prohibit any publication of matter which is of public or general interest.
In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.42 There are of course difficulties in applying such a rule ; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law, — for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever ; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend, concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow-citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for public office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.
The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is likely to be withdrawn.43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case, — a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.
In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition ; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.44 -
The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies ; in municipal assemblies, or the committees of such assemblies, or practically by any communication in any other public body, municipal or parochial, or in any body quasi public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest ; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.46 -
The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.48 -
The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided establish also what should be deemed a publication, — the important principle in this connection being that a private communication of circulation for a restricted purpose is not a publication within the meaning of the law.49 -
The truth of the matter published does not afford a defence. Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.50
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The absence of "malice" in the publisher does not afford a defence.
Personal ill-will is not an ingredient of the offence, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an action for libel or slander at common law, except in rebuttal of some defence, e.g., that the occasion rendered the communication privileged, or, under the statutes in this State and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is equally complete and equally injurious, whether the motives by which the speaker or writer was actuated are taken by themselves, culpable or not ; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even thought they care committed with no sinister intent ; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offences.
The
remedies for an invasion of the right of privacy are also suggested by
those administered in the law of defamation, and in the law of literary
and artistic property, namely: —
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An action of tort for damages in all cases.51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.
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An injunction, in perhaps a very limited class of cases.52
It
would doubtless be desirable that the privacy of the individual should
receive the added protection of the criminal law, but for this,
legislation would be required.53
Perhaps it would be deemed proper to bring the criminal liability for
such publication within narrower limits ; but that the community has an
interest in preventing such invasions of privacy, sufficiently strong to
justify the introduction of such a remedy, cannot be doubted. Still,
the protection of society must come mainly through a recognition of the
rights of the individual. Each man is responsible for his own acts and
omissions only. If he condones what he reprobates, with a weapon at
hand equal to his defence, he is responsible for the results. If he
resists, public opinion will rally to his support. Has he then such a
weapon? It is believed that the common law provides him with one,
forged in the slow fire of the centuries, and to-day fitly tempered to
his hand. The common law has always recognized a man's house as his
castle, impregnable, often, even to his own officers engaged in the
execution of its command. Shall the courts thus close the front
entrance to constituted authority, and open wide the back door to idle
or prurient curiosity?
Samuel D. Warren,
Louis D. Brandeis.
BOSTON, December, 1890.
[Originally published in the Harvard Law Review, V. IV, No. 5, December 1890.]
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