wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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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.”24
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 housetops.” For years there has been a
feeling that the law must afford some remedy for the unauthorized
circulation of portraits of private persons; and the evil of invasion of
privacy by the newspapers, long keenly felt, has been but recently discussed
by an able writer. The alleged facts of a somewhat notorious case brought
before an inferior tribunal in New York a few months ago, 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.25 Injury of feelings may
indeed be taken account of 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.
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. 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 or by signs, in painting, by
sculpture, or in music. 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. 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

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.”24

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 housetops.” For years there has been a

feeling that the law must afford some remedy for the unauthorized

circulation of portraits of private persons; and the evil of invasion of

privacy by the newspapers, long keenly felt, has been but recently discussed

by an able writer. The alleged facts of a somewhat notorious case brought

before an inferior tribunal in New York a few months ago, 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.25 Injury of feelings may

indeed be taken account of 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.

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. 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 or by signs, in painting, by

sculpture, or in music. 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. 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