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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." I 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.
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214. HARVARD LAW REVIEW.
ments in a letter, if handiwork, however inartistic and valueless,
if possessions of all sorts are protected not only against repro-
duction, 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 re-
produce 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.'
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.
I. The right to privacy does not prohibit any publication of
matter which is of public or general interest.
In determining the scope of this rule, aid would be afforded by
the analogy, in the law of libel and slander, of cases which deal
with the qualified privilege of comment and criticism on matters
of public and general interest.2 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
I Loi Relative a la Presse. ii Mai i868.
" I i. Toute Dublication dans un &crit periodique relative iL un fait de la vie prive6
constitue une contravention punie d'un amende de cinq cent francs.
" La poursuite ne pourra 6tre exercee que sur la plainte de la partie interess6e."
Rivi6re, Codes Francais et Lois Usuelles. App. Code Pen., p. 20.
2 See Campbell v. Spottiswoode, 3 B. & S. 769, 776; Henwood v. Harrison, L. R.
7 C. P. 6o6; Gott v. Pulsifer, 122 Mass. 235.
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THE RIGHT TO PRIVACY. 2( 5
properly prefer to keep private, made public against their will.
It is the unwarranted invasion of individtual privacy which is
reprehended, and to be, so far as possible, prevented. The dis-
tinction, 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 vary-
ing- 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 indi-
vidual 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 con-
gressman 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 con-
sideration has been made, to that extent the protection is to be
withdrawn.' 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 circum-
stances of each case, -a necessity which unfortunately renders
such a doctrine not only more difficult of application, but also to
"' Nos moeurs n'admettent pas la prdtention d'enlever aux investigations de la pub-
licitd les actes qui rel6vent de la vie publique, et ce dernier mot ne doit pas etre restreint
i la vie officielle ou h celle du fonctionnaire. Tout homme qui appelle sur lui l'atten-
tion ou les regards du publique, soit par une mission qu'il a revue ou qu'il se donne, soit
par le r8le qu'il s'attribue dans l'industrie, les arts, le theatre, etc., ne peut plus invoquer
contre la critique ou l'expos6 de sa conduite d'autre protection que les lois qui repriment
la diffamation et l'injure. " Circ. Mins. Just., 4 Juin, i868. Rivi&re Codes Franqais et
Lois Usuelles, App. Code Pen. 20 n (b).
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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." I 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.

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

214. HARVARD LAW REVIEW.

ments in a letter, if handiwork, however inartistic and valueless,

if possessions of all sorts are protected not only against repro-

duction, 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 re-

produce 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.'

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.

I. The right to privacy does not prohibit any publication of

matter which is of public or general interest.

In determining the scope of this rule, aid would be afforded by

the analogy, in the law of libel and slander, of cases which deal

with the qualified privilege of comment and criticism on matters

of public and general interest.2 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

I Loi Relative a la Presse. ii Mai i868.

" I i. Toute Dublication dans un &crit periodique relative iL un fait de la vie prive6

constitue une contravention punie d'un amende de cinq cent francs.

" La poursuite ne pourra 6tre exercee que sur la plainte de la partie interess6e."

Rivi6re, Codes Francais et Lois Usuelles. App. Code Pen., p. 20.

2 See Campbell v. Spottiswoode, 3 B. & S. 769, 776; Henwood v. Harrison, L. R.

7 C. P. 6o6; Gott v. Pulsifer, 122 Mass. 235.

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THE RIGHT TO PRIVACY. 2( 5

properly prefer to keep private, made public against their will.

It is the unwarranted invasion of individtual privacy which is

reprehended, and to be, so far as possible, prevented. The dis-

tinction, 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 vary-

ing- 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 indi-

vidual 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 con-

gressman 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 con-

sideration has been made, to that extent the protection is to be

withdrawn.' 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 circum-

stances of each case, -a necessity which unfortunately renders

such a doctrine not only more difficult of application, but also to

"' Nos moeurs n'admettent pas la prdtention d'enlever aux investigations de la pub-

licitd les actes qui rel6vent de la vie publique, et ce dernier mot ne doit pas etre restreint

i la vie officielle ou h celle du fonctionnaire. Tout homme qui appelle sur lui l'atten-

tion ou les regards du publique, soit par une mission qu'il a revue ou qu'il se donne, soit

par le r8le qu'il s'attribue dans l'industrie, les arts, le theatre, etc., ne peut plus invoquer

contre la critique ou l'expos6 de sa conduite d'autre protection que les lois qui repriment

la diffamation et l'injure. " Circ. Mins. Just., 4 Juin, i868. Rivi&re Codes Franqais et

Lois Usuelles, App. Code Pen. 20 n (b).

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