wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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exact nature, are not rights arising from contract or from special trust, but
are rights as against the world; and, as above stated, the principle which has
been applied to protect these rights is in reality not the principle of private
property, unless that word be used in an extended and unusual sense. The
principle which protects personal writings and any other productions of the
intellect of or the emotions, is the right to privacy, and the law has no new
principle to formulate when it extends this protection to the personal
appearance, sayings, acts, and to personal relation, domestic or otherwise.
If the invasion of privacy constitutes a legal injuria, the elements for
demanding redress exist, since already the value of mental suffering, caused
by an act wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his
public portraiture, presents the simplest case for such extension; the right to
protect one’s self from pen portraiture, from a discussion by the press of
one’s private affairs, would be a more important and far-reaching one. If
casual and unimportant statements in a letter, if handiwork, however
inartistic and valueless, if possessions of all sorts are protected not only
against reproduction, 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 reproduce 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.
1. 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. 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 properly prefer to keep private, made public
against their will. It is the unwarranted invasion of individual privacy which
is reprehended, and to be, so far as possible, prevented. The distinction,
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 varying 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 individual should
be free from comment, may acquire a public importance, if found in a
candidate for public 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 congressman 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 consideration 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 circumstances of
each case, — a necessity which unfortunately renders such a doctrine not
only more difficult of application, but also to a certain extent uncertain in its
operation and easily rendered abortive. Besides, it is only the more flagrant
breaches of decency and propriety that could in practice be reached, and it
is not perhaps desirable even to attempt to repress everything which the
nicest taste and keenest sense of the respect due to private life would
condemn.
In general, then, the matters of which the publication should be
repressed may be described as those which concern the private life, habits,
acts, and relations of an individual, and have no legitimate connection with
his fitness for a public office which he seeks or for which he is suggested,
or for any public or quasi public position which he seeks or for which he is
suggested, and have no legitimate relation to or bearing upon any act done
by him in a public or quasi public capacity. The foregoing is not designed as
a wholly accurate or exhaustive definition, since that which must ultimately
in a vast number of cases become a question of individual judgment and
opinion is incapable of such definition; but it is an attempt to indicate
broadly the class of matters referred to. Some things all men alike are
entitled to keep from popular curiosity, whether in public life or not, while
others are only private because the persons concerned have not assumed a
position which makes their doings legitimate matters of public
investigation.
2. The right to privacy does not prohibit the communication of any
matter, though in its nature private, when the publication is made under
circumstances which would render it a privileged communication according
to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication

exact nature, are not rights arising from contract or from special trust, but

are rights as against the world; and, as above stated, the principle which has

been applied to protect these rights is in reality not the principle of private

property, unless that word be used in an extended and unusual sense. The

principle which protects personal writings and any other productions of the

intellect of or the emotions, is the right to privacy, and the law has no new

principle to formulate when it extends this protection to the personal

appearance, sayings, acts, and to personal relation, domestic or otherwise.

If the invasion of privacy constitutes a legal injuria, the elements for

demanding redress exist, since already the value of mental suffering, caused

by an act wrongful in itself, is recognized as a basis for compensation.

The right of one who has remained a private individual, to prevent his

public portraiture, presents the simplest case for such extension; the right to

protect one’s self from pen portraiture, from a discussion by the press of

one’s private affairs, would be a more important and far-reaching one. If

casual and unimportant statements in a letter, if handiwork, however

inartistic and valueless, if possessions of all sorts are protected not only

against reproduction, 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 reproduce 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.

1. 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. 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 properly prefer to keep private, made public

against their will. It is the unwarranted invasion of individual privacy which

is reprehended, and to be, so far as possible, prevented. The distinction,

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 varying 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 individual should

be free from comment, may acquire a public importance, if found in a

candidate for public 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 congressman 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 consideration 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 circumstances of

each case, — a necessity which unfortunately renders such a doctrine not

only more difficult of application, but also to a certain extent uncertain in its

operation and easily rendered abortive. Besides, it is only the more flagrant

breaches of decency and propriety that could in practice be reached, and it

is not perhaps desirable even to attempt to repress everything which the

nicest taste and keenest sense of the respect due to private life would

condemn.

In general, then, the matters of which the publication should be

repressed may be described as those which concern the private life, habits,

acts, and relations of an individual, and have no legitimate connection with

his fitness for a public office which he seeks or for which he is suggested,

or for any public or quasi public position which he seeks or for which he is

suggested, and have no legitimate relation to or bearing upon any act done

by him in a public or quasi public capacity. The foregoing is not designed as

a wholly accurate or exhaustive definition, since that which must ultimately

in a vast number of cases become a question of individual judgment and

opinion is incapable of such definition; but it is an attempt to indicate

broadly the class of matters referred to. Some things all men alike are

entitled to keep from popular curiosity, whether in public life or not, while

others are only private because the persons concerned have not assumed a

position which makes their doings legitimate matters of public

investigation.

2. The right to privacy does not prohibit the communication of any

matter, though in its nature private, when the publication is made under

circumstances which would render it a privileged communication according

to the law of slander and libel.

Under this rule, the right to privacy is not invaded by any publication