THE RIGHT TO
PRIVACY
BY
SAMUEL WARREN
AND LOUIS D. BRANDEIS
Originally published
in 4 Harvard Law Review 193 (1890)
"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
good-will,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 man 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,14
in ascertaining the amount of damages when attending what is recognized as a
legal injury; 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,l8
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
questions, 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
hear 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 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. 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 shorthand, 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 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 anyone 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 lay 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 relations, 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.
First. The right to
privacy does not prohibit any publication of matter which is of public or general
interest.
In determining the scrope 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
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
Second. 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 committee of such assemblies, or practically by any communication made
in airy 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
Third. 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
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?
FOOTNOTES:
14. Though the legal value of
"feelings" is now generally recognized, distinctions have been drawn
between the several classes of cases in which compensation may or may not be
recovered. Thus, the fright occasioned by an assault constitutes a cause of
action, but fright occasioned by negligence does not. So fright coupled with
bodily injury affords a foundation for enhanced damages; but, ordinarily,
fright unattended by bodily injury cannot be relied upon as an element of
damages, even where a valid cause of action exists, as in trespass quare
clausum fregit. Wyman v. Leavitt, 71 Me. 227; Canning v.
Williamstown, 1 Cush. 451. The allowance of damages for injury to the
parents' feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All. 118), or removal of the corpse of
child from a burial-ground (Meagher v. Driscoll, 99
Mass. 281), are said to be exceptions to a general rule. On the other hand,
injury to feelings is a recognized element of damages in actions of slander and
libel, and of malicious prosecution. These distinctions between the cases,
where injury to feelings does and where it does not constitute a cause of
action or legal element of damages, are not logical, but doubtless serve well
as practical rules. It will, it is believed, be found, upon examination of the
authorities, that wherever substantial mental suffering would be the natural
and probable result of the act, there compensation for injury to feelings has
been allowed, and that where no mental suffering would ordinarily result, or if
resulting, would naturally be but trifling, and, being unaccompanied by visible
signs of injury, would afford a wide scope for imaginative ills, there damages
have been disallowed. The decisions on this subject illustrate well the
subjection in our law of logic to common-sense.
15. "Injuria, in the narrower sense, is every
intentional and illegal violation of honour, i.e., the whole
personality of another." "Now an outrage is committed not only when a
man shall be struck with the fist, say, or with a club, or even flogged, but
also if abusive language has been used to one." Salkowski, Roman Law, p. 668 and p. 669, n. 2.
16. "It is certain every man has a right to keep
his own sentiments, if he pleases. He has certainly a right to judge whether he
will make them public, or commit them only to the sight of his friends."
Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379
(1769).
17. Nichols v. Pitman, 26 Ch.
D. 374 (1884).
18. Lee v. Simpson, 3 C.B.
871, 881; Daly v. Palmer, 6 Blatchf. 256.
19. Turner v. Robinson, 10 Ir.
Ch. 121; S. C. ib. 510.
20. Drone on Copyright, 102.
21. "Assuming the law to be so, what is its
foundation in this respect? It is not, I conceive, referable to any
consideration peculiarly literary. Those with whom our common law originated
had not probably among their many merits that of being patrons of letters; but
they knew the duty and necessity of protecting property, and with that general
object laid down rules providently expansive -- rules capable of adapting
themselves to the various forms and modes of property which peace and
cultivation might discover and introduce.
"The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be 'For the encouragement of learning,' and using the words 'taken the liberty,' in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849).
"The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be 'For the encouragement of learning,' and using the words 'taken the liberty,' in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849).
22. "The question, however, does not turn upon
the form or amount of mischief or advantage, loss or gain. The author of
manuscripts, whether he is famous or obscure, low or high, has a right to say
of them, if innocent, that whether interesting or dull, light or heavy, salable
or unsalable, they shall not, without his consent, be published." Knight
Bruce, V.C., in Prince Albert v. Strange, 2 DeGex &
Sm. 652, 694.
23. Duke of Queensbury v. Shebbeare,
2 Eden 329 (1758); Bartlett v. Crittenden, 5 McLean 32,
41 (1849).
24. Drone on Copyright, pp. 102, 104; Parton v. Prang, 3 Clifford 537, 548 (1872); Jefferys v. Boosey, 4 H.L.C.815, 867, 962 (1854).
25. "The question will be whether the bill has
stated facts of which the court can take notice, as a case of civil property,
which it is bound to protect. The injunction cannot be maintained on any
principle of this sort, that if a letter has been written in the way of
friendship, either the continuance or the discontinuance of the friendship
affords a reason for the interference of the court." Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, 413 (1818).
"Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695.
"It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of, his correspondent." Duer, J., in Woolsey v. Judd, 4 Duer 379, 384 (1855).
"Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695.
"It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of, his correspondent." Duer, J., in Woolsey v. Judd, 4 Duer 379, 384 (1855).
26. "A work lawfully published, in the popular
sense of the term, stands in this respect, I conceive, differently from a work
which has never been in that situation. The former may be liable to be
translated, abridged, analyzed, exhibited in morsels, complimented, and
otherwise treated, in a manner that the latter is not.
"Suppose, however -- instead of a translation, an abridgment, or a review -- the case of a catalogue -- suppose a man to have composed a variety of literary works ('innocent,' to use Lord Eldon's expression), which he has never printed or published, or lost the right to prohibit from being published -- suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does that law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also.
"By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped.
"Again, the manuscripts may be those of a man on account of whose name alone a mere list would be a matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale! Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 693.
"Suppose, however -- instead of a translation, an abridgment, or a review -- the case of a catalogue -- suppose a man to have composed a variety of literary works ('innocent,' to use Lord Eldon's expression), which he has never printed or published, or lost the right to prohibit from being published -- suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does that law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also.
"By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped.
"Again, the manuscripts may be those of a man on account of whose name alone a mere list would be a matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale! Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 693.
27. "A copy or impression of the etchings would
only be a means of communicating knowledge and information of the original, and
does not a list and description of the same? The means are different, but the
object and effect are similar; for in both, the object and effect is to make
known to the public more or less of the unpublished work and composition of the
author, which he is entitled to keep wholly for his private use and pleasure,
and to withhold altogether, or so far as he may please, from the knowledge of
others. Cases upon abridgments, translations, extracts, and criticisms of
published works have no reference whatever to the present question; they all
depend upon the extent of right under the acts respecting copyright, and have
no analogy to the exclusive rights in the author of unpublished compositions
which depend entirely upon the common law right of property." Lord
Cottenham in Prince Albert v. Strange, 1 McN. & G.
23, 43 (1849).
"Mr. Justice Yates, in Millar v. Taylor, said that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Everyone, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances.
"I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion -- an unbecoming and unseemly intrusion -- an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man -- if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life -- into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697.
"Mr. Justice Yates, in Millar v. Taylor, said that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Everyone, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances.
"I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion -- an unbecoming and unseemly intrusion -- an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man -- if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life -- into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697.
28. Kiernan v. Manhattan Quotation
Co., 50 How. Pr. 194 (1876).
29. "The defendants' counsel say that a man
acquiring a knowledge of another's property without his consent is not by any
rule or principle which a court of justice can apply (however secretly he may
have kept or endeavored to keep it) forbidden without his consent to
communicate and publish that knowledge to the world, to inform the world what
the property is, or to describe it publicly, whether orally or in print or
writing.
"I claim, however, leaving to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property.
"It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples. . . .
"It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another -- may be not only an ideal calamity -- but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 689, 690.
"I claim, however, leaving to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property.
"It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples. . . .
"It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another -- may be not only an ideal calamity -- but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 689, 690.
30. Hoyt v. Mackenzie, 3 Barb.
Ch. 320, 324 (1848); Wetmore v. Scovell, 3 Edw. Ch. 515
(1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813).
31. Woolsey v. Judd, 4 Duer.
379, 404 (1855). "It has been decided, fortunately for the welfare of
society, that the writer of letters, though written without any purpose of profit,
or any idea of literary property, possesses such a right of property in them,
that they cannot be published without his consent, unless the purpose of
justice, civil or criminal, require the publication." Sir Samuel Romilly, arg.,
in Gee v. Pritchard, 2 Swanst. 402, 418 (1818). But see
High on Injunctions, 3d ed., §1012, contra.
32. "But a doubt has been suggested, whether mere
private letters, not intended as literary compositions, are entitled to the
protection of an injunction in the same manner as compositions of a literary
character. This doubt had probably arisen from the habit of not discriminating
between the different rights of property which belong to an unpublished
manuscript, and those which belong to a published book. The latter, as I have
intimated in another connection, is a right to take the profits of publication.
The former is a right to control the act of publication, and to decide whether
there shall be any publication at all. It has been called a right of property;
an expression perhaps not quite satisfactory, but on the other hand
sufficiently descriptive of a right which, however incorporeal, involves many
of the essential elements of property, and is at least positive and definite.
This expression can leave us in no doubt as to the meaning of the learned
judges who have used it, when they have applied it to cases of unpublished
manuscripts. They obviously intended to use it in no other sense, than in
contradistinction to the mere interest of feeling, and to describe a substantial
right of legal interest." Curtis on Copyright, pp. 93, 94.
"The resemblance of the right to prevent publication of an unpublished manuscript to the well recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.
"There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, he seized by his creditors as property. McLean, J., in Bartlett v. Crittenden, 5 McLean 32, 37 (1839).
It has also been held that even where the sender's rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N.Y.) 198 (1861).
"The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived -- proprius -- is 'one's own.' Drone on Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal.
"The resemblance of the right to prevent publication of an unpublished manuscript to the well recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.
"There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, he seized by his creditors as property. McLean, J., in Bartlett v. Crittenden, 5 McLean 32, 37 (1839).
It has also been held that even where the sender's rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N.Y.) 198 (1861).
"The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived -- proprius -- is 'one's own.' Drone on Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal.
33. "Such then being, as I believe, the nature
and the foundation of the common law as to manuscripts independently of
Parliamentary additions and subtractions, its operation cannot of necessity be
confined to literary subjects. That would be to limit the rule by the example.
Wherever the produce of labor is liable to invasion in an analogous manner,
there must, I suppose, be a title to analogous protection or redress."
Knight Bruce, B.C., in Prince Albert v. Strange, 2
DeGex & Sm. 652, 696.
34. "The question, therefore, is whether a
photographer who has been employed by a customer to take his or her portrait is
justified in striking off copies of such photograph for his own use, and
selling and disposing of them, or publicly exhibiting them by way of
advertisement or otherwise, without the authority of such customer, either
express or implied. I say 'express or implied,' because a photographer is
frequently allowed, on his own request, to take a photograph of a person under
circumstances in which a subsequent sale by him must have been in the
contemplation of both parties, though not actually mentioned. To the question
thus put, my answer is in the negative, that the photographer is not justified
in so doing. Where a person obtains information in the course of a confidential
employment, the law does not permit him to make any improper use of the
information so obtained; and an injunction is granted, if necessary, to
restrain such use; as, for instance, to restrain a clerk from disclosing his
master's accounts, or an attorney from making known his client's affairs,
learned in the course of such employment. Again, the law is clear that a breach
of contract, whether express or implied, can be restrained by injunction. In my
opinion the case of the photographer comes within the principles upon which
both these classes of cases depend. The object for which he is employed and
paid is to supply his customer with the required number of printed photographs
of a given subject. For this purpose the negative is taken by the photographer
on glass; and from this negative copies can be printed in much larger numbers
than are generally required by the customer. The customer who sits for the
negative thus puts the power of reproducing the object in the hands of the
photographer; and in my opinion the photographer who uses the negative to
produce other copies for his own use, without authority, is abusing the power
confidentially placed in his hands merely for the purpose of supplying the customer;
and, further, I hold that the bargain between the customer and the photographer
includes, by implication, an agreement that the prints taken from the negative
are to be appropriated to the use of the customer only." Referring to the
opinions delivered in Tuck v. Priester, 10 Q.B.D. 639,
the learned Justice continued: "Then Lord Justice Lindley says: 'I will
deal first with the injunction, which stands, or may stand, on a totally
different footing from either the penalties or the damages. It appears to me
that the relation between the plaintiffs and the defendant was such that,
whether the plaintiffs had any copyright or not, the defendant has done that
which renders him liable to an injunction. He was employed by the plaintiffs to
make a certain number of copies of the picture, and that employment carried
with it the necessary implication that the defendant was not to make more
copies for himself, or to sell the additional copies in this country in
competition with his employer. Such conduct on his part is a gross breach of
contract and a gross breach of faith, and, in my judgment, clearly entitled the
plaintiffs to an injunction whether they have a copyright in the picture or
not.' That case is the more noticeable, as the contract was in writing; and yet,
it was held to be an implied condition that the defendant should not make any
copies for himself. The phrase 'a gross breach of faith' used by Lord Justice
Lindley in that case applies with equal force to the present, when a lady's
feelings are shocked by finding that the photographer who was employed to take
her likeness for her own use is publicly exhibiting and selling copies
thereof." North, J., in Pollard v. Photographic Co.,
40 Ch.D. 345, 349-352 (1888).
"It may be said also that the cases to which I have referred are all cases in which there was some right of property infringed, based upon the recognition by the law of protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the person for or on whose behalf the same shall have been made or executed.
"The result is that in the present case the copyright in the photograph is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be entitled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common law right of action against the defendant for his breach of contract and breach of faith. This is quite clear from the cases of Morison v. Moat [9 Hare 241] and Tuck v. Priester [19 Q.B.D. 629] already referred to, in which latter case the same act of Parliament was in question." Per North, J., ibid., p. 352.
This language suggests that the property right in photographs or portraits may be one created by statute, which would not exist in the absence of registration; but it is submitted that it must eventually be held here, as it has been in the similar cases, that the statute provision becomes applicable only when there is a publication, and that before the act of registering there is property in the thing upon which the statute is to operate.
"It may be said also that the cases to which I have referred are all cases in which there was some right of property infringed, based upon the recognition by the law of protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the person for or on whose behalf the same shall have been made or executed.
"The result is that in the present case the copyright in the photograph is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be entitled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common law right of action against the defendant for his breach of contract and breach of faith. This is quite clear from the cases of Morison v. Moat [9 Hare 241] and Tuck v. Priester [19 Q.B.D. 629] already referred to, in which latter case the same act of Parliament was in question." Per North, J., ibid., p. 352.
This language suggests that the property right in photographs or portraits may be one created by statute, which would not exist in the absence of registration; but it is submitted that it must eventually be held here, as it has been in the similar cases, that the statute provision becomes applicable only when there is a publication, and that before the act of registering there is property in the thing upon which the statute is to operate.
35. Duke of Queensberry v. Shabbeare,
2 Eden 329; Murray v. Heath, 1 B. & Ad. 804; Tuck v. Priester, 19 Q.B.D. 629.
36. See Mr. Justice Story in Folsom
v. Marsh, 2 Story 100, 111 (1841):
"If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and a fortiori, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. . . . The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. A fortiori, third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."
"If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and a fortiori, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. . . . The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. A fortiori, third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."
37. "The receiver of a letter is not a bailee,
nor does he stand in a character analogous to that of a bailee. There is no
right to possession, present or future, in the writer. The only right to be
enforced against the holder is a right to prevent publication, not to require
the manuscript from the holder in order to a publication of himself." Per
Hon. Joel Parker, quoted in Grigsby v. Breckenridge, 2
Bush 480, 489 (1867).
38. In Morison v. Moat, 9 Hare
241, 255 (1851), a suit for an injunction to restrain the use of a secret
medical compound, Sir George James Turner, V.C., said: "That the court has
exercised jurisdiction in cases of this nature does not, I think, admit of any
question. Different grounds have indeed been assigned for the exercise of that
jurisdiction. In some cases it has been referred to property, in others to
contract, and in others, again, it has been treated as founded upon trust or
confidence -- meaning, as I conceive, that the court fastens the obligation on
the conscience of the party, and enforces it against him in the same manner as
it enforces against a party to whom a benefit is given, the obligation of
performing a promise on the faith of which the benefit has been conferred; but
upon whatever grounds the jurisdiction is founded, the authorities leave no
doubt as to the exercise of it."
39. A similar growth of the law showing the
development of contractual rights into rights of property is found in the law
of good-will. There are indications, as early as the Year Books, of traders
endeavoring to secure to themselves by contract the advantages now designated
by the term "good-will," but it was not until 1743 that good-will
received legal recognition as property apart from the personal covenants of the
traders. See Allan on Goodwill, pp. 2, 3.
40.
The application of an existing principle to a new state of facts is not
judicial legislation. To call it such is to assert that the existing body of
law consists practically of the statutes and decided cases, and to deny that
the principles (of which these cases are ordinarily said to be evidence) exist
at all. It is not the application of an existing principle to new cases, but
the introduction of a new principle, which is properly termed judicial
legislation.
But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever-changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.
"I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature." 1 Austin's Jurisprudence, p. 224.
The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule.
But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever-changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.
"I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature." 1 Austin's Jurisprudence, p. 224.
The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule.
41. Loi Relative á la Presse. 11 Mai 1868.
"II. Toute publication dans un écrit périodique relative á un fait de la vie privée constitue une contravention punie d'un amende de cinq cent francs.
"La poursuite ne pourra être exercée que sur la plainte de la partie intéressée."
Rivière, Codes Français et Lois Usuelles, App. Code Pen., p. 20.
"II. Toute publication dans un écrit périodique relative á un fait de la vie privée constitue une contravention punie d'un amende de cinq cent francs.
"La poursuite ne pourra être exercée que sur la plainte de la partie intéressée."
Rivière, Codes Français et Lois Usuelles, App. Code Pen., p. 20.
42. See Campbell
v. Spottiswoode, 3 B. & S. 769, 776; Henwood v.
Harrison, L.R. 7 C.P. 606; Gott v. Pulsifer, 122
Mass. 235.
43. "Nos moeurs n'admettent pas la prétention
d'enlever aux investigations de la publicité les actes qui relèvent de la vie
publique, et ce dernier mot ne doit pas être restreint à la vie officielle ou Ã
celle du fonctionnaire. Tout homme qui appelle sur lui l'attention ou les
regards du publique, soit par une mission qu'il a reçue ou qu'il se donne, soit
par le rôle qu'il s'attribue dans l'industrie, les arts, le theâtre, etc., ne
peut plus invoquer contre la critique ou l'exposé de sa conduite d'autre
protection que les lois qui repriment la diffamation et l'injure." Circ.
Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles, App. Code
Pen., 20 n(b).
44. "Celui-la seul a droit au silence absolu qui
n'a pas espressément ou indirectment provoqué ou authorisé l'attention,
l'approbation ou le blâme." Circ. Mins. Just., 4 Juin, 1868. Rivière,
Codes Français et Lois Usuelles, App. Code Pén., 20 n(b).
The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not entitled to the "silence absolu" which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection.
The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not entitled to the "silence absolu" which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection.
45. Wason v. Walters, L.R. 4
Q.B. 73; Smith v. Higgins, 16 Gray 251; Barrows v. Bell, 7 Gray 331.
46. This limitation upon the right to prevent the publication
of private letters was recognized early:
"But consistently with the right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom v. Marsh, 2 Story 100, 110, 111 (1841).
The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright, pp. 136-139.
"But consistently with the right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom v. Marsh, 2 Story 100, 110, 111 (1841).
The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright, pp. 136-139.
47. Townshend on Slander and Libel, 4th ed., §18;
Odgers on Libel and Slander, 2d ed., p. 3.
48. "But as long as gossip was oral, it spread,
as regards any one individual, over a very small area, and was confined to be
immediate circle of his acquaintances. It did not reach, or but rarely reached,
those who knew nothing of him. It did not make his name, or his walk, or his
conversation familiar to strangers. And what is more to the purpose, it spared
him the pain and mortification of knowing that he was gossipped about. A man
seldom heard of oral gossip about him which simply made him ridiculous, or trespassed
on his lawful privacy, but made no positive attack upon his reputation. His
peace and comfort were, therefore, but slightly affected by it." E. L.
Godkin, "The Rights of the Citizen: to His Reputation." Scribner's Magazine, July, 1890, p. 66.
Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.
Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.
49. See Drone on Copyright, pp. 121, 289, 290.
50. Compare the French law.
En probitant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur la vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles, App. Code Pen., 20 n(a).
En probitant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur la vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles, App. Code Pen., 20 n(a).
51. Comp. Drone on Copyright, p. 107.
52. Comp. High on Injunctions, 3d ed., §1015;
Townshend on Libel and Slander, 4th ed., §§417a-417d.
53. The following draft of a bill has been prepared by
William H. Dunbar, Esq., of the Boston bar, as a suggestion for possible
legislation:
"Section 1. Whoever publishes in any newspaper, journal, magazine, or other periodical publication any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement or any statement concerning him, shall be punished by imprisonment in the State prison not exceeding five years, or by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars; provided, that no statement concerning the conduct of any person in, or the qualifications of any person for, a public office or position which such person holds, has held, or is seeking to obtain, or for which such person is at the time of such publication a candidate, or for which he or she is then suggested as a candidate, and no statement of or concerning the acts of any person in his or her business, profession, or calling, and no statement concerning any person in relation to a position, profession, business, or calling, bringing such person prominently before the public, or in relation to the qualifications for such a position, business, profession, or calling of any person prominent or seeking prominence before the public, and no statement relating to any act done by any person in a public place, nor any other statement of matter which is of public and general interest, shall be deemed a statement concerning the private life or affairs of such person within the meaning of this act.
"Section 2. It shall not be a defence to any criminal prosecution brought under Section 1 of this act that the statement complained of is true, or that such statement was published without a malicious intention; but no person shall be liable to punishment for any statement published under such circumstances that if it were defamatory the publication thereof would be privileged."
"Section 1. Whoever publishes in any newspaper, journal, magazine, or other periodical publication any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement or any statement concerning him, shall be punished by imprisonment in the State prison not exceeding five years, or by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars; provided, that no statement concerning the conduct of any person in, or the qualifications of any person for, a public office or position which such person holds, has held, or is seeking to obtain, or for which such person is at the time of such publication a candidate, or for which he or she is then suggested as a candidate, and no statement of or concerning the acts of any person in his or her business, profession, or calling, and no statement concerning any person in relation to a position, profession, business, or calling, bringing such person prominently before the public, or in relation to the qualifications for such a position, business, profession, or calling of any person prominent or seeking prominence before the public, and no statement relating to any act done by any person in a public place, nor any other statement of matter which is of public and general interest, shall be deemed a statement concerning the private life or affairs of such person within the meaning of this act.
"Section 2. It shall not be a defence to any criminal prosecution brought under Section 1 of this act that the statement complained of is true, or that such statement was published without a malicious intention; but no person shall be liable to punishment for any statement published under such circumstances that if it were defamatory the publication thereof would be privileged."
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