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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