The Right to Privacy
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]
Fourth. 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 established also what should be deemed a publication–the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law.[49]
Fifth. The truth of the matter published does not afford a defense.
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]
Sixth. The absence of “malice”in the publisher does not afford a defense.
Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at Common law , except in rebuttal of some defense, 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 casually 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 the 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 though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses.
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 defense, 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 today fitly tempered to his hand. The common law has always recognized a man’s house as his castle, impregnable, often even to its own
officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
[1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault.
[2] These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations.
[3] Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander.
[4] Winsmore v. Greenbank, Willes, 577 (1745).
[5] Loss of service is the gist of the action; but it has been said that “we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages.”Cassoday, J., in Lavery v. Crooke, 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387 (1912). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl, 3 Esp. 119 (1800); Andrews v. Askey, 8 C. & P. 7 (1837); Phillips v. Hoyle, 4 Gray 568 (1855); Phelin v. Kenderdine, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent’s person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R.R. Co., 10 La.Ann. 33 (1855); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872).
[6] “The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover may be true in an early stage of society, when property is in its simple form and the remedies for violation of it also simple, but is not true in a more civilized state, when the relation of life and the interests arising therefrom are complicated.”Erle, J., in Jefferys v. Boosey, 4 H.L.C. 815, 869 (1845).
[7] Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright 54, 61.
[8] Gibblett v. Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property.
[9] Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742, Lord Hardwicke refused to treat a trademark as property for infringement upon which an injunction could be granted. Blanchard v. Hill, 2 Atk. 484.
Conclusion
Notes
See Also
References and Further Reading
About the Author/s and Reviewer/s
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