"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 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 trade-marks.[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 the 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 made 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 a 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 fellow-men,--the effect of the publication upon his
estimate of himself and upon his own feelings not 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
_damnum 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, 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 emotion, 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, or
the means by which, the thought, sentiment, or emotion 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 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 a 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 piracy.[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 these decisions have not been followed,[31] and it
may now 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 both of 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 placed 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 property, 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 entitled to be protected in the exclusive use and enjoyment of
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 to be assaulted
or beaten, the right not to 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 be 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 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 recording 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, nor 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 at St.
Batholomew'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, 1 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 etchings 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 the contract is written, and where there 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 through
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 of 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 the 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, 1 J. & W. 394 (1820), where an injunction was granted against
making any use of or 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
to be 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 or of 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 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
political 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 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 made 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]