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    HARVARD LAW REVIEW


    VOL. IV

    1890-91

    CAMBRIDGE, MASS.
    PUBLISHED BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION
    1891


    _Copyright, 1891_
    BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION


    HARVARD LAW REVIEW.

    VOL. IV. DECEMBER 15, 1890. NO. 5.




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."

              WILLES, J., in Millar _v._ Taylor, 4 Burr. 2303, 2312.


That 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
individual 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 fear of
such injury. From the action of battery grew that of assault.[1] Much
later there came a qualified protection of the individual 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 affections was held remediable.[4] 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 adequate 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] as works of literature and art,[7] goodwill,[8] trade secrets,
and trade-marks.[9]

This development of the law was inevitable. The intense intellectual
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 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.

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."[10] 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." For
years there has been a feeling that the law must afford some remedy for
the unauthorized circulation of portraits of private persons;[11] and
the evil of the invasion of privacy by the newspapers, long keenly felt,
has been but recently discussed by an able writer.[12] The alleged facts
of a somewhat notorious case brought before an inferior tribunal in New
York a few months ago,[13] directly involved the consideration 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, results in a lowering of social
standards and of morality. Even gossip apparently harmless, when widely
and persistently circulated, 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 enthusiasm can flourish, no generous impulse can
survive under its blighting influence.

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 is.

       *       *       *       *       *

Owing to the nature of the instruments by which privacy is invaded, the
injury inflicted bears a superficial resemblance to the wrongs dealt
with by the law of slander and of libel, while a legal remedy for such
injury seems to involve the treatment of mere wounded feelings, as a
substantive cause of action. The principle on which the law of
defamation rests, covers, however, a radically different class of
effects from those for which attention is now asked. 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. The matter published of him, however widely circulated,
and however unsuited to publicity, must, in order to be actionable, have
a direct tendency to injure him in his intercourse with others, and even
if in writing or in print, must subject him to the hatred, ridicule, or
contempt of his fellow-men,--the effect of the publication upon his
estimate of himself and upon his own feelings not forming an essential
element in the cause of action. In short, the wrongs and correlative
rights recognized by the law of slander and libel are in their nature
material rather than spiritual. That branch of the law simply extends
the protection surrounding physical property to certain of the
conditions necessary or helpful to worldly prosperity. On the other
hand, our law recognizes no principle upon which compensation can be
granted for mere injury to the feelings. 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_. Injury of feelings may indeed be taken account
of in ascertaining the amount of damages when attending what is
recognized as a legal injury;[14] but our system, unlike the Roman law,
does not afford a remedy even for mental suffering which results from
mere contumely and insult, from an intentional and unwarranted violation
of the "honor" of another.[15]

It is not however necessary, in order to sustain the view that the
common law recognizes and upholds a principle applicable to cases of
invasion of privacy, to invoke the analogy, which is but superficial, to
injuries sustained, either by an attack upon reputation or by what the
civilians called a violation of honor; for the legal doctrines relating
to infractions of what is ordinarily termed the common-law right to
intellectual and artistic property are, it is believed, but instances
and applications of a general right to privacy, which properly
understood afford a remedy for the evils under consideration.

The common law secures to each individual the right of determining,
ordinarily, to what extent his thoughts, sentiments, and emotions shall
be communicated to others.[16] Under our system of government, he can
never be compelled to express them (except when upon the witness-stand);
and even if he has chosen to give them expression, he generally retains
the power to fix the limits of the publicity which shall be given them.
The existence of this right does not depend upon the particular method
of expression adopted. It is immaterial whether it be by word[17] or by
signs,[18] in painting,[19] by sculpture, or in music.[20] Neither does
the existence of the right depend upon the nature or value of the
thought or emotion, nor upon the excellence of the means of
expression.[21] The same protection is accorded to a casual letter or an
entry in a diary and to the most valuable poem or essay, to a botch or
daub and to a masterpiece. In every such case the individual is entitled
to decide whether that which is his shall be given to the public.[22] No
other has the right to publish his productions in any form, without his
consent. This right is wholly independent of the material on which, or
the means by which, the thought, sentiment, or emotion is expressed. It
may exist independently of any corporeal being, as in words spoken, a
song sung, a drama acted. Or if expressed on any material, as a poem in
writing, the author may have parted with the paper, without forfeiting
any proprietary right in the composition itself. The right is lost only
when the author himself communicates his production to the public,--in
other words, publishes it.[23] It is entirely independent of the
copyright laws, and their extension into the domain of art. The aim of
those statutes is to secure to the author, composer, or artist the
entire profits arising from publication; but the common-law protection
enables him to control absolutely the act of publication, and in the
exercise of his own discretion, to decide whether there shall be any
publication at all.[24] The statutory right is of no value, _unless_
there is a publication; the common-law right is lost _as soon as_ there
is a publication.

What is the nature, the basis, of this right to prevent the
publication of manuscripts or works of art? It is stated to be the
enforcement of a right of property;[25] and no difficulty arises in
accepting this view, so long as we have only to deal with the
reproduction of literary and artistic compositions. They certainly
possess many of the attributes of ordinary property: they are
transferable; they have a value; and publication or reproduction is a
use by which that value is realized. But where the value of the
production is found not in the right to take the profits arising from
publication, but in 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. A man
records in a letter to his son, or in his diary, that he did not dine
with his wife on a certain day. No one into whose hands those papers
fall could publish them to the world, even if possession of the
documents had been obtained rightfully; and the prohibition would not be
confined to the publication of a copy of the letter itself, or of the
diary entry; the restraint extends also to a publication of the
contents. What is the thing which is protected? Surely, not the
intellectual act of recording the fact that the husband did not dine
with his wife, but that fact itself. It is not the intellectual product,
but the domestic occurrence. A man writes a dozen letters to different
people. No person would be permitted to publish a list of the letters
written. If the letters or the contents of the diary were protected as
literary compositions, the scope of the protection afforded should be
the same secured to a published writing under the copyright law. But the
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.[26] Yet in the famous 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 and
Queen Victoria had made for their own 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 catalogue or otherwise."[27] Likewise, an unpublished
collection of news possessing no element of a literary nature is
protected from piracy.[28]

That this protection cannot rest upon the right to literary or
artistic property in any exact sense, appears the more clearly when the
subject-matter for which protection is invoked is not even in the form
of intellectual property, but has the attributes of ordinary tangible
property. Suppose a man has a collection of gems or curiosities which he
keeps private: it would hardly be contended that any person could
publish a catalogue of them, and yet the articles enumerated are
certainly not intellectual property in the legal sense, any more than a
collection of stoves or of chairs.[29]

The belief that the idea of property in its narrow sense was the basis
of the protection of unpublished manuscripts led an able court to
refuse, in several cases, injunctions against the publication of private
letters, on the ground that "letters not possessing the attributes of
literary compositions are not property entitled to protection;" and that
it was "evident the plaintiff could not have considered the letters as
of any value whatever as literary productions, for a letter cannot be
considered of value to the author which he never would consent to have
published."[30] But these decisions have not been followed,[31] and it
may now be considered settled that the protection afforded by the common
law to the author of any writing is entirely independent of its
pecuniary value, its intrinsic merits, or of any intention to publish
the same, and, of course, also, wholly independent of the material, if
any, upon which, or the mode in which, the thought or sentiment was
expressed.

Although the courts have asserted that they rested their decisions on
the narrow grounds of protection to property, yet there are recognitions
of a more liberal doctrine. Thus in the case of Prince Albert _v._
Strange, already referred to, the opinions