wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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concluded:
. . . There is no precedent for such an action to be found in the decisions of this court. . . .
Mention of such a right is not to be found in Blackstone, Kent, or any other of the great
commentators upon the law; nor, so far as the learning of counsel or the courts in this case
have been able to discover, does its existence seem to have been asserted prior to about the
year 1890. . . .
The legislative body could very well interfere and arbitrarily provide that no one should
be permitted for his own selfish purpose to use the picture or the name of another for
advertising purposes without his general consent. In such event no embarrassment would
result to the general body of law, for the law would be applicable only to cases provided for
by statute. The courts, however, being without authority to legislate, are required to decide
cases upon principle, and so are necessarily embarrassed by precedents created by an
extreme, and therefore unjustifiable, application of an old principle. . . . [W]hile justice in a
given case may be worked out by a decision of the court according to the notions of right
which govern the individual judge or body of judges comprising the court, the mischief
which will finally result may be almost incalculable under our system, which makes a
decision in one case a precedent for decisions in all future cases which are akin to it in the
essential facts. . . .
Shortly after the decision, a note in the Yale Law Journal criticized the
Roberson decision because it enabled the press “to pry into and grossly
display before the public matters of the most private and personal
concern.”31 One of the judges in the majority defended the opinion in the
Columbia Law Review.32
In 1903, the New York legislature responded to the explicit invitation in
Roberson to legislate by creating a privacy tort action by statute. See N.Y.
Civ. Rights Act § 51. This statute is still in use today. As you will see again
later in this text, courts are frequently engaged in a dialogue with
legislatures about the scope of privacy rights.
In the 1905 case Pavesich v. New England Life Insurance Co., 50 S.E.
68 (Ga. 1905), Georgia became the first state to recognize a common law
tort action for privacy invasions. There, a newspaper published a life
insurance advertisement with a photograph of the plaintiff without the
plaintiff’s consent. The court held:
. . . The right of privacy has its foundation in the instincts of nature. It is recognized
intuitively, consciousness being the witness that can be called to establish its existence. Any
person whose intellect is in a normal condition recognizes at once that as to each individual
member of society there are matters private, and there are matters public so far as the
individual is concerned. Each individual as instinctively resents any encroachment by the
public upon his rights which are of a private nature as he does the withdrawal of those of his
rights which are of a public nature. A right of privacy in matters purely private is therefore
derived from natural law. . . .
All will admit that the individual who desires to live a life of seclusion cannot be
compelled against his consent, to exhibit his person in any public place, unless such
exhibition is demanded by the law of the land. He may be required to come from his place of
seclusion to perform public duties — to serve as a juror and to testify as a witness and the
like; but, when the public duty is once performed, if he exercises his liberty to go again into
seclusion, no one can deny him the right. One who desires to live a life of partial seclusion
has a right to choose the times, places, and manner in which and at which he will submit
himself to the public gaze. Subject to the limitation above referred to, the body of a person
cannot be put on exhibition at any time or at any place without his consent. . . .
It therefore follows from what has been said that a violation of the right of privacy is a
direct invasion of a legal right of the individual. . . .
In 1960, Dean William Prosser wrote his famous article, Privacy,
examining the over 300 privacy tort cases decided in the 70 years since the
Warren and Brandeis article.
WILLIAM PROSSER, PRIVACY
48 Cal. L. Rev. 383 (1960)
. . . The law of privacy comprises four distinct kinds of invasion of four
different interests of the plaintiff, which are tied together by the common
name, but otherwise have almost nothing in common except that each
represents an interference with the right of the plaintiff, in the phrase coined
by Judge Cooley, “to be let alone.” Without any attempt at exact definition,
these four torts may be described as follows:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. . . .
Judge Briggs has described the present state of the law of privacy as
“still that of a haystack in a hurricane.” Disarray there certainly is; but
almost all of the confusion is due to a failure to separate and distinguish
these four forms of invasion and to realize that they call for different things.
. . .
Taking them in order — intrusion, disclosure, false light, and
appropriation — the first and second require the invasion of something
secret, secluded or private pertaining to the plaintiff; the third and fourth do
not. The second and third depend upon publicity, while the first does not,
nor does the fourth, although it usually involves it. The third requires falsity
or fiction; the other three do not. The fourth involves a use for the
defendant’s advantage, which is not true of the rest. Obviously this is an
area in which one must tread warily and be on the lookout for bogs. Nor is
the difficulty decreased by the fact that quite often two or more of these
forms of invasion may be found in the same case, and quite conceivably in
all four.
NOTES & QUESTIONS
1.
The Restatement of Torts. Prosser’s analytical framework imposed
order and clarity on the jumbled line of cases that followed the Warren
and Brandeis article. The Restatement of Torts recognizes the four torts
Prosser described in his article. These torts are known collectively as
“invasion of privacy.” The torts are: (1) intrusion upon seclusion, (2)
public disclosure of private facts, (3) false light, and (4) appropriation.
2.
The Interests Protected by the Privacy Torts. In response to Prosser’s
assertion that the privacy torts have almost “nothing in common,”
Edward Bloustein replied that “what provoked Warren and Brandeis to
write their article was a fear that a rampant press feeding on the stuff of
private life would destroy individual dignity and integrity and
emasculate individual freedom and independence.” This underlying
principle is a protection of “human dignity” and “personality.”33
In contrast to Bloustein, Robert Post contends that the privacy torts

concluded:

. . . There is no precedent for such an action to be found in the decisions of this court. . . .

Mention of such a right is not to be found in Blackstone, Kent, or any other of the great

commentators upon the law; nor, so far as the learning of counsel or the courts in this case

have been able to discover, does its existence seem to have been asserted prior to about the

year 1890. . . .

The legislative body could very well interfere and arbitrarily provide that no one should

be permitted for his own selfish purpose to use the picture or the name of another for

advertising purposes without his general consent. In such event no embarrassment would

result to the general body of law, for the law would be applicable only to cases provided for

by statute. The courts, however, being without authority to legislate, are required to decide

cases upon principle, and so are necessarily embarrassed by precedents created by an

extreme, and therefore unjustifiable, application of an old principle. . . . [W]hile justice in a

given case may be worked out by a decision of the court according to the notions of right

which govern the individual judge or body of judges comprising the court, the mischief

which will finally result may be almost incalculable under our system, which makes a

decision in one case a precedent for decisions in all future cases which are akin to it in the

essential facts. . . .

Shortly after the decision, a note in the Yale Law Journal criticized the

Roberson decision because it enabled the press “to pry into and grossly

display before the public matters of the most private and personal

concern.”31 One of the judges in the majority defended the opinion in the

Columbia Law Review.32

In 1903, the New York legislature responded to the explicit invitation in

Roberson to legislate by creating a privacy tort action by statute. See N.Y.

Civ. Rights Act § 51. This statute is still in use today. As you will see again

later in this text, courts are frequently engaged in a dialogue with

legislatures about the scope of privacy rights.

In the 1905 case Pavesich v. New England Life Insurance Co., 50 S.E.

68 (Ga. 1905), Georgia became the first state to recognize a common law

tort action for privacy invasions. There, a newspaper published a life

insurance advertisement with a photograph of the plaintiff without the

plaintiff’s consent. The court held:

. . . The right of privacy has its foundation in the instincts of nature. It is recognized

intuitively, consciousness being the witness that can be called to establish its existence. Any

person whose intellect is in a normal condition recognizes at once that as to each individual

member of society there are matters private, and there are matters public so far as the

individual is concerned. Each individual as instinctively resents any encroachment by the

public upon his rights which are of a private nature as he does the withdrawal of those of his

rights which are of a public nature. A right of privacy in matters purely private is therefore

derived from natural law. . . .

All will admit that the individual who desires to live a life of seclusion cannot be

compelled against his consent, to exhibit his person in any public place, unless such

exhibition is demanded by the law of the land. He may be required to come from his place of

seclusion to perform public duties — to serve as a juror and to testify as a witness and the

like; but, when the public duty is once performed, if he exercises his liberty to go again into

seclusion, no one can deny him the right. One who desires to live a life of partial seclusion

has a right to choose the times, places, and manner in which and at which he will submit

himself to the public gaze. Subject to the limitation above referred to, the body of a person

cannot be put on exhibition at any time or at any place without his consent. . . .

It therefore follows from what has been said that a violation of the right of privacy is a

direct invasion of a legal right of the individual. . . .

In 1960, Dean William Prosser wrote his famous article, Privacy,

examining the over 300 privacy tort cases decided in the 70 years since the

Warren and Brandeis article.

WILLIAM PROSSER, PRIVACY

48 Cal. L. Rev. 383 (1960)

. . . The law of privacy comprises four distinct kinds of invasion of four

different interests of the plaintiff, which are tied together by the common

name, but otherwise have almost nothing in common except that each

represents an interference with the right of the plaintiff, in the phrase coined

by Judge Cooley, “to be let alone.” Without any attempt at exact definition,

these four torts may be described as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. . . .

Judge Briggs has described the present state of the law of privacy as

“still that of a haystack in a hurricane.” Disarray there certainly is; but

almost all of the confusion is due to a failure to separate and distinguish

these four forms of invasion and to realize that they call for different things.

. . .

Taking them in order — intrusion, disclosure, false light, and

appropriation — the first and second require the invasion of something

secret, secluded or private pertaining to the plaintiff; the third and fourth do

not. The second and third depend upon publicity, while the first does not,

nor does the fourth, although it usually involves it. The third requires falsity

or fiction; the other three do not. The fourth involves a use for the

defendant’s advantage, which is not true of the rest. Obviously this is an

area in which one must tread warily and be on the lookout for bogs. Nor is

the difficulty decreased by the fact that quite often two or more of these

forms of invasion may be found in the same case, and quite conceivably in

all four.

NOTES & QUESTIONS

1.

The Restatement of Torts. Prosser’s analytical framework imposed

order and clarity on the jumbled line of cases that followed the Warren

and Brandeis article. The Restatement of Torts recognizes the four torts

Prosser described in his article. These torts are known collectively as

“invasion of privacy.” The torts are: (1) intrusion upon seclusion, (2)

public disclosure of private facts, (3) false light, and (4) appropriation.

2.

The Interests Protected by the Privacy Torts. In response to Prosser’s

assertion that the privacy torts have almost “nothing in common,”

Edward Bloustein replied that “what provoked Warren and Brandeis to

write their article was a fear that a rampant press feeding on the stuff of

private life would destroy individual dignity and integrity and

emasculate individual freedom and independence.” This underlying

principle is a protection of “human dignity” and “personality.”33

In contrast to Bloustein, Robert Post contends that the privacy torts