Leila Mohaghegh

Introduction

“The Right to privacy” is written by Samuel Warren and Louis Brandeis, and published in the 1890 Harvard Law Review. The authors state the purpose of the article:

“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 are.”[1]

Warren and Brandeis begin their article with this sentence that individuals shall have full protection in person and in the property that is a principle as old as the common law, but it has been found necessary from time to time to define again the nature and extent of such protection. They state that the political, social, and economic changes entail the recognition of new rights, and the common law, grows to meet the demands of society. [2]

They examined the evolution of the common law and expressed that in very early times, the law gave a remedy only for physical interference with life and property. The “right to life” only protect the subject from battery in its different forms; liberty meant freedom from actual restraint; and the property right secured the individual’s lands and cattle, but then gradually the scope expanded; the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” expanded to protect every form of possession — intangible, as well as tangible.[3]

They mentioned that the flexibility of United States law, its adaptability to new conditions, and the capacity for growth, enabled it to meet the wants of an ever-changing society and to apply immediate relief for every recognized wrong.[4]

They recognized the invention at that time (instantaneous photographs and newspaper enterprise) as a threat to private life. They state:

“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 house-tops.”[5]

They blamed the practices of journalists of their time. They state:

“The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and 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.” [6]

They believed that the results of inappropriate gossip will lower social standards and morality. They declared that even gossip harmless, when widely and persistently circulated, is potent for evil. According to the article, modern enterprise and invention have, through invasions upon people’s privacy, subjected them to mental pain and distress, far greater than bodily injury. [7]

They revealed their disappointment with the intrusions into individual privacy by nineteenth-century journalists armed with the latest technological innovations. They urged courts to combat this threat to individual privacy by adding a broad new right to the common law means the “right to be let alone” or “right to privacy.”[8]

“Brandeis and Warren’s work is almost universally regarded as the origin of the four invasions of privacy torts:

unreasonable intrusion upon the seclusion of another
appropriation of the other’s name or likeness
unreasonable publicity given to the other’s private life, and
the publicity that unreasonably places the other in a false light before the public.”[9]

Their opinion for the existing legal framework

They examined the law of slander and libel and they stated 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. They express that the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual and therefore the law is insufficient to protect mere injury to the feelings. According to them, the law recognizes no principle upon which compensation can be granted for mere injury to the feelings. They state “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”.[10] Damnum absque iniuria means loss without wrong. It is the damage not caused by the wrong, negligence, fault, or injustice of any person or state.[11]

They mentioned the legal system does not afford a remedy for mental suffering which results from mere insult and intentional and unwarranted violation of the “honor” of another.[12]

They also examined the property law and found it insufficient to protect privacy as well. They explained that the right of the property provides the basis for the right to prevent publication when it deals with the “profits”, but where the value of the production is found not in the right to take the profits arising from publication, and for the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term.[13] They state “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.”[14]

Also, Warren and Brandies believe that copyright law “would not prevent an enumeration of the letters or the publication of some of the facts contained therein”. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures, but it would not prevent a publication of a list or even a description of them.”[15] Although, in the case of Prince Albert v. Strange, the court held that the common law rule prohibited not merely the reproduction of the etchings which the plaintiff had made for their pleasure, but also “the publishing (at least by printing or writing), though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalog or otherwise.”[16]

They analyzed the issue where a recipient, who did not request the correspondence, receives a letter and then opens and reads it. They mentioned this is not a violation of the contract. Receiving, opening, and reading a letter does not create any contract. He has not accepted any trust. The receiver of a letter is not a bailee. There is no right to possession, present or future, in the writer. The receiver cannot come under any obligation.[17] They state the principle which has been applied to protect these rights is not the principle of private property unless that word is used in an extended and unusual sense, therefore, the principle which protects personal writings and any other productions of the intellect or the emotions, is the right to privacy.[18]

They mentioned that thoughts, emotions, and sensations demanded legal recognition, and the common law enabled the judges to afford required protection, without the interposition of the legislature.[19]

They analyzed the decisions of courts. They found that the courts have protected the right of privacy by using other parts of the law, such as the law of slander and libel, property, contract, and copyright.[20]

As mentioned earlier, they analyzed Prince Albert v. Strange case. In short, the Royal Family, Queen Victoria, and Prince Albert became the subject of a court case over privacy after they discovered that their printer had been selling impressions of the etchings to the public. They had entrusted the copper plates to John Brown, a printer in Windsor, to make copies for their friends and family. But one of Brown’s employees sold a set of 63 prints for the princely sum of £5 to writer Jasper Tomsett Judge, who planned to exhibit them publicly. After creating a catalog for the exhibition, which was printed by his publisher William Strange, two copies were sent to Windsor Castle, for the royal couple to look at. Prince Albert went to the High Court and was granted an injunction for the surrender of the etchings, prohibition of the exhibition, and banning any publication.[21] Warren and Brandies expressed, “Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had “its foundation in a breach of trust, confidence, or contract,” and that upon such ground also the plaintiff’s title to the injunction was fully sustained.”[22]

They also analyzed Pollard v. Photographic Co., that a photographer who had taken a lady’s photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence.[23] Because a woman who agreed to have her photograph taken did not agree to have it published. They state “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.”[24]

Limitations of the right to privacy

Warren and Brandeis consider the limitations of the right to privacy. The applicable limitations under their view are:

1. Public or general interest

“The right to privacy does not prohibit any publication of matter which is of public or general interest.”[25] They mentioned an unusual manner, which in the ordinary individual should be free from comment, may acquire public importance if found in a candidate for public office.[26] They state, “in general, 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.”[27]

2. Privileged communication

“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”, such as those made to a public or legislative body.[28] They state under this rule, “the right to privacy is not invaded by any publication 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 anybody 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 the conduct of one’s own affairs, in matters where his own interest is concerned.”[29]

3. Oral publication in the absence of special damage

The law would not grant any remedy for the invasion of privacy by oral publication in the absence of special damage.[30] They mentioned the injury resulting from such oral communications would ordinarily be so worthless that the law might well, in the interest of free speech, disregard it altogether.[31]

4. Consent

“The right to privacy ceases upon the publication of the facts by the individual, or with his consent”.[32]

5. Truth of the matter

“The truth of the matter published does not afford a defense.” They state that the law should have no concern with the truth or falsehood of the matters published. It is not for the injury to the individual’s character that remedy or prevention is sought, but for injury to the right of privacy.[33]

6. Absence of malice

“The absence of “malice” in the publisher does not afford a defense.” According to the article, the invasion of privacy is injurious, whether the motives by which the speaker or writer was actuated are taken by themselves, culpable or not.[34]

Authors Suggestion

They suggested the remedies for an invasion of the right of privacy as follow:

“An action of tort for damages in all cases.” They stated that “even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel”.[35]
“An injunction, in perhaps a very limited class of cases.” They mentioned, “the privacy of the individual should receive the added protection of the criminal law, but for this, the legislation would be required.” [36]

Conclusion

This article is one of the most influential articles in the history of the law in the United States that has defended the right to privacy.

Warren and Brandeis did not invent the right to privacy but instead charted a new path for American privacy law.[37] The privacy principle, they believed, was already part of common law and the protection of one’s home as one’s castle, but new technology made it important to separately recognize this protection under the name of privacy.[38] In other words, Warren and Brandeis saw the right to privacy as an existing principle that had already been applied in many other contexts without constitutional problems: protections of one’s home, prohibitions of the publication of one’s private papers, and prohibitions against slander and libel.[39]

Although their article is not complete, Warren and Brandeis could not have been expected to predict society’s and law’s changes in the next century. “They wrote it in 1890 to respond to the needs of the society in the era during which they wrote and lived.”[40]

Different opinions have been expressed about this article and various criticisms have been made to it. Including:

“They did not provide sufficient structure for the development of privacy laws”,[41]
“They did not discuss confidential relations”,[42]
“They did not expressly reject breach of confidentiality as a remedy for invasions of privacy, but instead of developing this concept and line of cases, they shifted to a different path. They explained the goal of privacy protections not as enforcing the norms and morality of relationships but as protecting an “inviolate personality” and the feelings of the individual from injury”,[43]
“They did not mention commercial use of one’s identity as one of the harms to which they were responding”,[44]
They made no effort to identify the prima facie elements of the tort, gave no guidance for measuring damages, and failed to express the degree of fault, if any, required to hold defendants liable,[45]
They failed to give any consideration to the concept of freedom of the press,[46]
They did not define personal and non-personal information,
They did not mention government surveillance.

In my opinion, today, privacy faces threats from increasing government surveillance which could allow some governments to widespread human rights violations and defend it as national security.

Bibliography

Bratman, Benjamin E, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” (2002) 69 Tennessee Law Review, online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334296>.

DeCew, Judith, “Privacy” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, spring 2018 ed (Metaphysics Research Lab, Stanford University, 2018).

Fellmeth, Aaron X & Maurice Horwitz, “Damnum absque iniuria” in Guide to Latin in International Law (Oxford University Press, 2009).

Green, Michael, “Privacy and the Private Law”, (12 April 2018), online: Philosophy of Law <http://carneades.pomona.edu/2018-Law/24.WarrenBrandeis.html>.

Joseph, Claudia, “An exhibition of private drawings by Queen Victoria and Prince Albert”, (25 May 2019), online: Mail Online <https://www.dailymail.co.uk/home/event/article-7062111/The-ntimate-prints-etchings-Victoria-Albert-offer-portrait-domestic-bliss.html>.

Kramer, Irwin R, “The Birth of Privacy Law: A Century Since Warren and Brandeis” (1990) 39:3 Catholic University Law Review 23.

McKenna, Mark P, “The Right of Publicity and Autonomous Self-Definition” (2005) 67:1 Notre Dame Law School, online: <http://lawreview.law.pitt.edu/ojs/index.php/lawreview/article/view/73>.

Nelson, Kristopher A, “The Right to Privacy by Warren and Brandeis”, (December 2011), online: <https://inpropriapersona.com/articles/the-right-to-privacy-by-warren-and-brandeis/>.

Pember, Don R, Privacy and the Press: The Law, the Mass Media, and the First Amendment (University of Washington Press, 1972).

Richards, Neil M & Daniel J Solove, “Privacy’s Other Path: Recovering the Law of Confidentiality” (2007) 96:1 Geo LJ 123–182.

Serwin, Andrew B, “Privacy 3.0-The Principle of Proportionality” (2009) 42 University of Michigan Journal of Law Reform 63.

Warren, Samuel D & Louis D Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193–220.

[1] Samuel D Warren & Louis D Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193–220 at 197.

[2] Ibid at 193.

[3] Ibid.

[4] Ibid at 213.

[5] Ibid at 195.

[6] Ibid at 196.

[7] Ibid.

[8] Irwin R Kramer, “The Birth of Privacy Law: A Century Since Warren and Brandeis” (1990) 39:3 Catholic University Law Review 23 at 703.

[9] Benjamin E Bratman, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” (2002) 69 Tennessee Law Review, online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334296> at 624.

[10] Warren & Brandeis, supra note 1 at 197.

[11] Aaron X Fellmeth & Maurice Horwitz, “Damnum absque iniuria” in Guide to Latin in International Law (Oxford University Press, 2009) at 72.

[12] Warren & Brandeis, supra note 1 at 198.

[13] Ibid at 200–201.

[14] Ibid at 205.

[15] Ibid at 201.

[16] Ibid at 202.

[17] Ibid at 212.

[18] Ibid at 213.

[19] Ibid at 195.

[20] Michael Green, “Privacy and the Private Law”, (12 April 2018), online: Philosophy of Law <http://carneades.pomona.edu/2018-Law/24.WarrenBrandeis.html>.

[21] Claudia Joseph, “An exhibition of private drawings by Queen Victoria and Prince Albert”, (25 May 2019), online: Mail Online <https://www.dailymail.co.uk/home/event/article-7062111/The-ntimate-prints-etchings-Victoria-Albert-offer-portrait-domestic-bliss.html>.

[22] Warren & Brandeis, supra note 1 at 208.

[23] Ibid.

[24] Ibid at 210.

[25] Ibid at 214.

[26] Ibid at 215.

[27] Ibid at 216.

[28] Ibid at 216.

[29] Ibid at 216–217.

[30] Ibid at 217.

[31] Ibid.

[32] Ibid at 218.

[33] Ibid.

[34] Ibid.

[35] Ibid at 219.

[36] Ibid.

[37] Neil M Richards & Daniel J Solove, “Privacy’s Other Path: Recovering the Law of Confidentiality” (2007) 96:1 Geo LJ 123–182 at 125.

[38] Judith DeCew, “Privacy” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, spring 2018 ed (Metaphysics Research Lab, Stanford University, 2018).

[39] Kristopher A Nelson, “The Right to Privacy by Warren and Brandeis”, (December 2011), online: <https://inpropriapersona.com/articles/the-right-to-privacy-by-warren-and-brandeis/>.

[40] Bratman, supra note 10 at 651.

[41] Andrew B Serwin, “Privacy 3.0-The Principle of Proportionality” (2009) 42 University of Michigan Journal of Law Reform 63 at 871.

[42] Ibid at 881.

[43] Ibid at 882.

[44] Mark P McKenna, “The Right of Publicity and Autonomous Self-Definition” (2005) 67:1 Notre Dame Law School, online: <http://lawreview.law.pitt.edu/ojs/index.php/lawreview/article/view/73> at 240.

[45] Kramer, supra note 8 at 722.

[46] Don R Pember, Privacy and the Press: The Law, the Mass Media, and the First Amendment (University of Washington Press, 1972) at 57.