wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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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.
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, not 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 to effort. 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. . . .
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 be 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. 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 or property in the contents of the letter, or his right to privacy. . . .
We must therefore conclude that the rights, so protected, whatever their

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.

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, not 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 to effort. 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. . . .

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 be 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. 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 or property in the contents of the letter, or his right to privacy. . . .

We must therefore conclude that the rights, so protected, whatever their