“The Right To Privacy”
Samuel Warren
Louis Brandeis
Evolution of legal protections of persons:
Stage 1: Protection from direct physical interference with life,
involving laws against battery, kidnapping, murder, etc..
Stage 2: Protection from attempts at physical injury (“assault”
as opposed to “battery”)
Stage 3: Protection from nuisances (excessive noise, smoke,
dust, etc.)
Stage 4: Protection of reputation, involving laws against slander
and libel.
The evolution of protections against property proceeded in a similar
way, beginning with laws against physical theft and vandalism, and
eventually extending to protection of “intellectual property.”
“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 privelges; and the term “property” has grown to
comprise every form of possession – intangible, as well as
tangible”
“This development of the law was inevitable…only a part of the
pain, pleasure, and profit of life lay in physical things.
Thoughts, emotions, and sensations demanded legal
recognition, and the beautiful capacity for growth which
characterizes the common law enabled the judges to afford the
requisite protection, without the interposition of the legislature.”
In other words, these new legal protections were interpreted into
existence by judges, rather than legislated (see also footnote on
bottom of p. 213)
Stage 5: The right to privacy (i.e. the right “to be let alone”).
It is argued that recent inventions and business methods (in 1890!)
make it necessary to go to stage 5. Instant photographs and
dissemination of information have “invaded the sacred precincts of
private and domestic life”.
“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.”
Two kinds of harms are cited:
Harm to the individuals whose privacy has been invaded (humiliation,
harm to reputations, etc.)
Harm to society, through “a lowering of social standards and of
morality”. It inverts “the relative importance of things” in people’s
minds, and “crowds the space available for matters of real interest to
the community.”
The right of privacy would preclude the unauthorized distribution of
photographs (of persons) and private information.
This principle would apply to the modern business practice of selling
customer databases. It would also apply to the practice of “outing”
people’s sexual orientation, releasing their phone numbers in order to
generate hate calls, etc.
What basis is there in the law for extending such a right?
Slander and libel law. This is similar in that it involves legal remedies
for passing on harmful information about an individual. But the victim
must show that the libel has “a direct tendency to injure him in his
intercourse with others…and must subject him to the hatred, ridicule,
or contempt of his fellow men.” This is really an extension of the
protection of physical property, since it involves material harm. An
invasion of privacy, on the other hand, may not involve any of this, yet
may still be harmful to a person’s feelings or self-esteem. (Also,
when something is said to be “libelous”, there is a presumption that it
is false. Conversely, if something is an “invasion of privacy”, there is
a presumption that it is true.)
Breach of contract.
Part of an “impled contract” with another individual might be that the
other individual not use my private information for things other than
the business transaction we are engaged in.
“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…this doctrine could not afford all the protection
required, since it would not support the court in granting a
remedy against a stranger”
This can’t be the source of the right to privacy, because it doesn’t
explain why we would have the right against those with whom we
don’t have contracts.
Three kinds of rights of expression:
1) The right to protect what one has publicly expressed, through
copyright. This prohibits others from copying and distributing
one’s publication without permission, but it does not prohibit
others from freely exchanging information about what the work
contains.
2) The freedom to express what one wants to (what is normally
called “freedom of speech” or “freedom of expression”).
3) The right to not express oneself publicly (i.e. the right to refrain
from publishing).
Right 1 begins where 3 ends. If you choose to publish, then you give
up right 3, meaning that the expression is no longer private. But until
you publish, the information is private. “The statutory right [copyright]
is of no value, unless there is a publication; the common law right
[privacy] is lost as soon as there is a publication.”
Q: Does this mean that those who put personal information in
publicly assessible places (e.g. a “blog” or a publicly viewable page
on “MySpace”) have given up their right to privacy with regard to that
information? What if they take the site down and attempt to remove
the information?
As far as this right is concerned, it does not matter which form the
expression takes (words, paintings, music, etc.) or its quality. “In
every such case the individual is entitled to decide whether that which
is his shall be given to the public.”
Examples of privacy rights recognized in common law:
The content of a personal letter could not be divulged to the
public by the recipient or a third party.
If someone writes a dozen letters to different people, no one
would be permitted to publish a list of the letter recipients
(including the recipients themselves).
Note that such a protection goes beyond whatever “intellectual
property” might be contained therein. Basic facts about or
descriptions of pieces of intellectual property can be freely
disseminated – if they have been published.
Example: Suppose someone poses nude for photographs in a
private session, and retains ownership of the photographs. Were the
photos published, it would be an infringement of copyright for another
party to make and sell copies of them without permission. If they are
not published, it would be a violation of privacy not only to do that, but
even to describe the photos or reveal their existence.
The difference (between IP and privacy rights) stems from the fact
that the former are a protection of property, whereas the latter are a
protection of persons – the right “to be let alone”.
An important exception to the right of privacy: public persons.
People who have, in essence, published their lives.
“There are others who, in varying degrees, have renounced the
right to live their lives screened from public observation.”
“Peculiarities of manner and person, which in the ordinary
individual should be free from [public] comment, may acquire a
public importance, if found in a candidate for political office.”
“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.”
Questions: In the modern world, what constitutes a “publication”?
Should e-mail be considered private? Can a web page be
considered private?