wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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made in a court of justice, in legislative bodies, or the committees of those
bodies; in municipal assemblies, or the committees of such assemblies, or
practically by any communication made in any other public body, municipal
or parochial, or in any body quasi public, like the large voluntary
associations formed for almost every purpose of benevolence, business, or
other general interest; and (at least in many jurisdictions) reports of any
such proceedings would in some measure be accorded a like privilege. Nor
would the rule prohibit any publication made by one in the discharge of
some public or private duty, whether legal or moral, or in conduct of one’s
own affairs, in matters where his own interest is concerned.
3. The law would probably not grant any redress for the invasion of
privacy by oral publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written
publications of private matters, as is afforded in the law of defamation by
the restricted liability for slander as compared with the liability for libel.
The injury resulting from such oral communications would ordinarily be so
trifling that the law might well, in the interest of free speech, disregard it
altogether.
4. The right to privacy ceases upon the publication of the facts by the
individual, or with his consent.
This is but another application of the rule which has become familiar in
the law of literary and artistic property. The cases there decided establish
also what should be deemed a publication, — the important principle in this
connection being that a private communication of circulation for a restricted
purpose is not a publication within the meaning of the law.
5. The truth of the matter published does not afford a defence.
Obviously this branch of the law should have no concern with the truth or
falsehood of the matters published. It is not for injury to the individual’s
character that redress or prevention is sought, but for injury to the right of
privacy. For the former, the law of slander and libel provides perhaps a
sufficient safeguard. The latter implies the right not merely to prevent
inaccurate portrayal of private life, but to prevent its being depicted at all.
6. The absence of “malice” in the publisher does not afford a defence.
Personal ill-will is not an ingredient of the offence, any more than in an
ordinary case of trespass to person or to property. Such malice is never
necessary to be shown in an action for libel or slander at common law,
except in rebuttal of some defence, e.g., that the occasion rendered the
communication privileged, or, under the statutes in this State and elsewhere,
that the statement complained of was true. The invasion of the privacy that
is to be protected is equally complete and equally injurious, whether the
motives by which the speaker or writer was actuated are, taken by
themselves, culpable or not; just as the damage to character, and to some
extent the tendency to provoke a breach of the peace, is equally the result of
defamation without regard to the motives leading to its publication. Viewed
as a wrong to the individual, this rule is the same pervading the whole law
of torts, by which one is held responsible for his intentional acts, even
though they are committed with no sinister intent; and viewed as a wrong to
society, it is the same principle adopted in a large category of statutory
offences.
The remedies for an invasion of the right of privacy are also suggested
by those administered in the law of defamation, and in the law of literary
and artistic property, namely: —
1. An action of tort for damages in all cases. Even in the absence of
special damages, substantial compensation could be allowed for injury to
feelings as in the action of slander and libel.
2. An injunction, in perhaps a very limited class of cases.
It would doubtless be desirable that the privacy of the individual should
receive the added protection of the criminal law, but for this, legislation
would be required. Perhaps it would be deemed proper to bring the criminal
liability for such publication within narrower limits; but that the community
has an interest in preventing such invasions of privacy, sufficiently strong to
justify the introduction of such a remedy, cannot be doubted. Still, the
protection of society must come mainly through a recognition of the rights
of the individual. Each man is responsible for his own acts and omissions
only. If he condones what he reprobates, with a weapon at hand equal to his
defence, he is responsible for the results. If he resists, public opinion will
rally to his support. Has he then such a weapon? It is believed that the
common law provides him with one, forged in the slow fire of the centuries,
and to-day fitly tempered to his hand. The common law has always
recognized a man’s house as his castle, impregnable, often, even to its own
officers engaged in the execution of its command. Shall the courts thus
close the front entrance to constituted authority, and open wide the back
door to idle or prurient curiosity?
NOTES & QUESTIONS
1.
The Need for a New Right. The article argued for the creation of a new
right — the right to privacy. Why did the authors believe that other
legal claims were inadequate? For example, why does the law of
defamation or the law of contracts not provide a sufficient remedy for
the harm described by the authors? Why do Warren and Brandeis reject
property rights and copyright as tools to protect privacy?
2.
Deriving a Right to Privacy in the Common Law. How do Warren and
Brandeis derive a right to privacy from the common law? Under what
principle do they locate this right? In a footnote in the article, Warren
and Brandeis observe:
The application of an existing principle to a new state of facts is not judicial legislation.
To call it such is to assert that the existing body of law consists practically of the statutes
and decided cases, and to deny that the principles (of which these cases are ordinarily
said to be evidence) exist at all. It is not the application of an existing principle to new
cases, but the introduction of a new principle, which is properly termed judicial
legislation.
But even the fact that a certain decision would involve judicial legislation should not
be taken against the property of making it. This power has been commonly exercised by
our judges, when applying to a new subject principles of private justice, moral fitness,
and public convenience. Indeed, the elasticity of our law, its adaptability to new
conditions, the capacity for growth, which has enabled it to meet the wants of an ever
changing society and to apply immediate relief for every recognized wrong, have been its
greatest boast. . . .
Why do they include this footnote? Do you agree with their

made in a court of justice, in legislative bodies, or the committees of those

bodies; in municipal assemblies, or the committees of such assemblies, or

practically by any communication made in any other public body, municipal

or parochial, or in any body quasi public, like the large voluntary

associations formed for almost every purpose of benevolence, business, or

other general interest; and (at least in many jurisdictions) reports of any

such proceedings would in some measure be accorded a like privilege. Nor

would the rule prohibit any publication made by one in the discharge of

some public or private duty, whether legal or moral, or in conduct of one’s

own affairs, in matters where his own interest is concerned.

3. The law would probably not grant any redress for the invasion of

privacy by oral publication in the absence of special damage.

The same reasons exist for distinguishing between oral and written

publications of private matters, as is afforded in the law of defamation by

the restricted liability for slander as compared with the liability for libel.

The injury resulting from such oral communications would ordinarily be so

trifling that the law might well, in the interest of free speech, disregard it

altogether.

4. The right to privacy ceases upon the publication of the facts by the

individual, or with his consent.

This is but another application of the rule which has become familiar in

the law of literary and artistic property. The cases there decided establish

also what should be deemed a publication, — the important principle in this

connection being that a private communication of circulation for a restricted

purpose is not a publication within the meaning of the law.

5. The truth of the matter published does not afford a defence.

Obviously this branch of the law should have no concern with the truth or

falsehood of the matters published. It is not for injury to the individual’s

character that redress or prevention is sought, but for injury to the right of

privacy. For the former, the law of slander and libel provides perhaps a

sufficient safeguard. The latter implies the right not merely to prevent

inaccurate portrayal of private life, but to prevent its being depicted at all.

6. The absence of “malice” in the publisher does not afford a defence.

Personal ill-will is not an ingredient of the offence, any more than in an

ordinary case of trespass to person or to property. Such malice is never

necessary to be shown in an action for libel or slander at common law,

except in rebuttal of some defence, e.g., that the occasion rendered the

communication privileged, or, under the statutes in this State and elsewhere,

that the statement complained of was true. The invasion of the privacy that

is to be protected is equally complete and equally injurious, whether the

motives by which the speaker or writer was actuated are, taken by

themselves, culpable or not; just as the damage to character, and to some

extent the tendency to provoke a breach of the peace, is equally the result of

defamation without regard to the motives leading to its publication. Viewed

as a wrong to the individual, this rule is the same pervading the whole law

of torts, by which one is held responsible for his intentional acts, even

though they are committed with no sinister intent; and viewed as a wrong to

society, it is the same principle adopted in a large category of statutory

offences.

The remedies for an invasion of the right of privacy are also suggested

by those administered in the law of defamation, and in the law of literary

and artistic property, namely: —

1. An action of tort for damages in all cases. Even in the absence of

special damages, substantial compensation could be allowed for injury to

feelings as in the action of slander and libel.

2. An injunction, in perhaps a very limited class of cases.

It would doubtless be desirable that the privacy of the individual should

receive the added protection of the criminal law, but for this, legislation

would be required. Perhaps it would be deemed proper to bring the criminal

liability for such publication within narrower limits; but that the community

has an interest in preventing such invasions of privacy, sufficiently strong to

justify the introduction of such a remedy, cannot be doubted. Still, the

protection of society must come mainly through a recognition of the rights

of the individual. Each man is responsible for his own acts and omissions

only. If he condones what he reprobates, with a weapon at hand equal to his

defence, he is responsible for the results. If he resists, public opinion will

rally to his support. Has he then such a weapon? It is believed that the

common law provides him with one, forged in the slow fire of the centuries,

and to-day fitly tempered to his hand. The common law has always

recognized a man’s house as his castle, impregnable, often, even to its own

officers engaged in the execution of its command. Shall the courts thus

close the front entrance to constituted authority, and open wide the back

door to idle or prurient curiosity?

NOTES & QUESTIONS

1.

The Need for a New Right. The article argued for the creation of a new

right — the right to privacy. Why did the authors believe that other

legal claims were inadequate? For example, why does the law of

defamation or the law of contracts not provide a sufficient remedy for

the harm described by the authors? Why do Warren and Brandeis reject

property rights and copyright as tools to protect privacy?

2.

Deriving a Right to Privacy in the Common Law. How do Warren and

Brandeis derive a right to privacy from the common law? Under what

principle do they locate this right? In a footnote in the article, Warren

and Brandeis observe:

The application of an existing principle to a new state of facts is not judicial legislation.

To call it such is to assert that the existing body of law consists practically of the statutes

and decided cases, and to deny that the principles (of which these cases are ordinarily

said to be evidence) exist at all. It is not the application of an existing principle to new

cases, but the introduction of a new principle, which is properly termed judicial

legislation.

But even the fact that a certain decision would involve judicial legislation should not

be taken against the property of making it. This power has been commonly exercised by

our judges, when applying to a new subject principles of private justice, moral fitness,

and public convenience. Indeed, the elasticity of our law, its adaptability to new

conditions, the capacity for growth, which has enabled it to meet the wants of an ever

changing society and to apply immediate relief for every recognized wrong, have been its

greatest boast. . . .

Why do they include this footnote? Do you agree with their