Harvard Law Review
The Right To Privacy
- by Samuel D. Warren and Louis D. Brandeis
Harvard Law Review - Vol. IV - December 15, 1890 - No. 5
"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 our 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" of 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 word[17] 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.
1. 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]
2. 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]
3. 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]
4. 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]
5. 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]
6. 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: --
1. 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.
2. 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.
