wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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the individual; and, if it does, what the nat
protection is.
Owing to the nature of the instruments by which privacy is in-
vaded, 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 lower-
ing 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 writingr or in print,
must subject him to the hatred, ridicule, or contempt of his fellow-
men,- the effect of the publication upon his estimate of himself
and upon his own feelings not forming an essential element in
the cause of action. In short, the wrongs and correlative rights
recognized by the law of slander and libel are in their nature
material rather than spiritual. That branch of the law simply
extends the protection surrounding physical property to certain
of the conditions necessary or helpful to worldly prosperity. On
the other hand, our law recognizes no principle upon which
compensation can be granted for mere injury to the feelings.
However painful the mental effects upon another of. an act, though
purely wanton or even malicious, yet if the act itself is otherwise
lawful, the suffering inflicted is damnum absque injuria. Injury of
feelings may indeed be taken account of in ascertaining the amount
of damages when attending what is recognized as a legal injury ;
1 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 foulndation 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. Wvman v. Leavitt, 7I Me. 227; Can-
ning 7. Williamstown, I Cush. 451. The allowance of damages for injury to the parents'
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I98 HAR VARD LA W RE VIE W.
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.'
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 deter-
mining, ordinarily, to what extent his thoughts, sentiments, and
emotions shall be communicated to others.2 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 giveni them.
The existence of this right does not depend upon the particular
feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All. i I8), o
removal of the corpse of child from a burial-ground (Meagher v. Driscoll, 99 Ma
28I), are said to be exceptions to a general rule. On the other hand, injury to feelin
is a recognized element of damages in actions of slander and libel, and of malicio
prosecution. These distinctions between the cases, where injury to feelings does
where it does not constitute a cause of action or legal element of damages, are not lo
cal, but doubtless serve well as practical rules. It will, it is believed, be found, upon
amination of the authorities, that wherever substantial mental suffering would be
natural and probable result of the act, there compensation for injury to feelings has be
allowed, and that where no mental suffering would ordinarily result, or if resulting, wo
naturally be but trifling,and,being unaccompanied by visible signs of injury,would affo
a wide scope for imaginative ills, there damages have been disallowed. The decisions
this subject illustrate well the subjection in our law of logic to common-sense.
1" 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.
2 61 It is certain every man has a right to keep his own sentiments, if he
He has certainly a right to judge whether he will make them public, or commi
only to the sight of his friends." Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379
(1769).
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THE RIGHT TO PRIVACY. I99
method of expression adopted. It is immaterial whether it be by
word 1 or by signs,2 in painting,3 by sculpture, or in music.4
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.5 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 slhall be given to the public.6 No other has the right to
publish his productions in any form, without his consent. This

the individual; and, if it does, what the nat

protection is.

Owing to the nature of the instruments by which privacy is in-

vaded, 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 lower-

ing 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 writingr or in print,

must subject him to the hatred, ridicule, or contempt of his fellow-

men,- the effect of the publication upon his estimate of himself

and upon his own feelings not forming an essential element in

the cause of action. In short, the wrongs and correlative rights

recognized by the law of slander and libel are in their nature

material rather than spiritual. That branch of the law simply

extends the protection surrounding physical property to certain

of the conditions necessary or helpful to worldly prosperity. On

the other hand, our law recognizes no principle upon which

compensation can be granted for mere injury to the feelings.

However painful the mental effects upon another of. an act, though

purely wanton or even malicious, yet if the act itself is otherwise

lawful, the suffering inflicted is damnum absque injuria. Injury of

feelings may indeed be taken account of in ascertaining the amount

of damages when attending what is recognized as a legal injury ;

1 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 foulndation 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. Wvman v. Leavitt, 7I Me. 227; Can-

ning 7. Williamstown, I Cush. 451. The allowance of damages for injury to the parents'

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

I98 HAR VARD LA W RE VIE W.

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.'

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 deter-

mining, ordinarily, to what extent his thoughts, sentiments, and

emotions shall be communicated to others.2 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 giveni them.

The existence of this right does not depend upon the particular

feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All. i I8), o

removal of the corpse of child from a burial-ground (Meagher v. Driscoll, 99 Ma

28I), are said to be exceptions to a general rule. On the other hand, injury to feelin

is a recognized element of damages in actions of slander and libel, and of malicio

prosecution. These distinctions between the cases, where injury to feelings does

where it does not constitute a cause of action or legal element of damages, are not lo

cal, but doubtless serve well as practical rules. It will, it is believed, be found, upon

amination of the authorities, that wherever substantial mental suffering would be

natural and probable result of the act, there compensation for injury to feelings has be

allowed, and that where no mental suffering would ordinarily result, or if resulting, wo

naturally be but trifling,and,being unaccompanied by visible signs of injury,would affo

a wide scope for imaginative ills, there damages have been disallowed. The decisions

this subject illustrate well the subjection in our law of logic to common-sense.

1" 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.

2 61 It is certain every man has a right to keep his own sentiments, if he

He has certainly a right to judge whether he will make them public, or commi

only to the sight of his friends." Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379

(1769).

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. I99

method of expression adopted. It is immaterial whether it be by

word 1 or by signs,2 in painting,3 by sculpture, or in music.4

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.5 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 slhall be given to the public.6 No other has the right to

publish his productions in any form, without his consent. This