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Dec 15, 1890 — The Right to Privacy Samuel D. Warren; Louis D. Brandeis Harvard Law Review, Vol. 4, No. 5. (Dec. 15, 1890), pp. 193-220. Stable URL: http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C Harvard Law Review is currently published by The Harvard Law Review Association. STOR Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/journals/harvardlaw.html. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. Ⓡ JSTOR is an independent not-for-profit organization dedicated to and preserving a digital archive of scholarly journals. For more information regarding JSTOR, please contact [email protected]. http://www.jstor.org Mon Jan 22 14:25:43 2007 HARVARD LAW REVIEW. VOL. IV. DECEMBER 15, 1890. THE RIGHT TO PRIVACY. "It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage." NO. 5. WILLES, J., in Millar v. Taylor, 4 Burr. 2303, 2312. THAT HAT the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the in- dividual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now 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" has grown to comprise every form of possession-intangible, as well as tangible. Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in HARVARD LAW REVIEW. 194 fear of such injury. From the action of battery grew that of as- sault.¹ Much later there came a qualified protection of the indi- vidual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose.³ Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affec- tions was held remediable. Occasionally the law halted,— as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents' feelings, an ade- quate remedy was ordinarily afforded.5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,6 ¹ Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault. 2 These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recogni- tion of the value of human sensations. 3 Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander. 4 Winsmore v. Greenbank, Willes, 577 (1745). 5 Loss of service is the gist of the action; but it has been said that " we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, J., in Lavery v. Crooke, 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387 (1812). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl, 3 Esp. 119 (1800); Andrews v. Askey, 8 C. & F. 7 (1837); Phillips v. Hoyle, 4 Gray, 568 (1855); Phelin v. Kenderdine, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g, the suffering of the parent in case of physical injury to the child. Fleming- ton v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R. R. Co., 10 La. Ann. 33 (1855); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872). 6 "The notion of Mr. Justice Yates that nothing is property which cannot be ear- marked and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple, but is not true in a more civilized state, when the relations of life and the interests arising there. from are complicated." Erle, J., in Jefferys v. Boosey, 4 H. L. C. 815, 869 (1854). THE RIGHT TO PRIVACY. 195 as works of literature and art, ¹ goodwill, ² trade secrets, and trade- marks. 3 This development of the law was inevitable. The intense in- tellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in phys- ical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which character- izes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature. " 4 Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone. Instantaneous photographs and news- paper 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. For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; 5 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, directly involved the consideration 1 Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright, 54, 61. 2 Gibblett v. Read, 9 Mod. 459 ( 1743 ), is probably the first recognition of goodwill as property. 3 Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742 Lord Hardwicke refused to treat a trade-mark as property for infringement upon which an injunction could be granted. Blanchard v. Hill, 2 Atk. 484. 4 Cooley on Torts, 2d ed., p. 29. 58 Amer. Law Reg. N. S. 1 (1869); 12 Wash. Law Rep. 353 ( 1884); 24 Sol, J. & Rep. 4 (1879). 6 Scribner's Magazine, July, 1890. "The Rights of the Citizen: To his Reputa- tion," by E. L. Godkin, Esq., pp. 65, 67. 7 Marion Manola v. Stevens & Myers, N. Y. Supreme Court, “New York Times ” of June 15, 18, 21, 1890. There the complainant alleged that while she was playing in the Broad- way Theatre, in a rôle which required her appearance in tights, she was, by means of a flash light, photographed surreptitiously and without her consent, from one of the boxes by defendant Stevens, the manager of the "Castle in the Air " company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued ex parte, and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition. 196 of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration. Of the desirability — indeed of the necessity of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. 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. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, re- sults in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circu- lated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthu- siasm can flourish, no generous impulse can survive under its blighting influence. HARVARD LAW REVIEW.

Jun 1, 1975 — Judith Jarvis Thomson, The Right to Privacy, Philosophy & Public Affairs, Vol. 4, No. 4 (Summer, 1975), pp. 295-314

Feb 5, 2020 — The Christian moral tradition provides a solid foundation for the right to privacy by linking it to the act of communication and sharing information, a fundamentally relational activity oriented toward both the personal and common good. The failures of Capital One, Ring, and others illustrate that i

Oct 30, 2019 — Critically examining current journalistic practices using both theoretical and applied approaches, this book addresses the interplay between the right to free expression (and what that means to a free press) and the right to privacy. Privacy, and the criticism that journalists unreasonably and regularly invade it in order to get a “good story”, is the most significant ethical dilemma for journalists, alongside accurately reporting the truth. Where is the line between fair exposure in the public interest and interesting the public? This book explains what privacy is, why we need it and why we go to some lengths to protect it. The law, the regulators, the key court cases and regulator complaints are covered, as well as issues raised by new technological developments. The book also briefly examines regulators in Ireland as well as privacy and free expression elsewhere in Europe and in North America, considering the contrary cultures of the two continents. This insightful exploration of privacy and journalism combines theory and practice to provide a valuable resource for both Media and Journalism students and working journalists.

Oct 4, 2019

Aug 4, 2019 — Panel One, "Introduction: Why Privacy Matters" Roger Berkowitz, with Leon Botstein. Why Privacy Matters: What Do We Lose When We Lose Our Privacy? Thursday, October 15th, 2015 Olin Hall Auditorium Bard College, Annandale-on-Hudson, NY.

Aug 3, 2019 — Panel Seven, "The Home as Public and Private" - Anita Allen Anita Allen. Moderated by Josh Cohen. Why Privacy Matters: What Do We Lose When We Lose Our Privacy? Thursday, October 15th, 2015 Olin Hall Auditorium Bard College, Annandale-on-Hudson, NY.

Aug 2, 2019 — Panel Eleven, "Watched, Tracked, and Distracted: Can We Still Experience Solitude?" - Michael Mandiberg and Carol Becker Michael Mandiberg and Carol Becker. Moderated by Roger Berkowitz. Why Privacy Matters: What Do We Lose When We Lose Our Privacy? Friday, October 16th, 2015 Olin Hall Auditorium Bard College, Annandale-on-Hudson, NY.

Jun 29, 2019