Brandeis 1890 The Right to Privacy

Summary

• Thus in very early times, ... the law gave remedy only to the physical interference with life and property .... (193)
• From the action of battery grew that of assault. (194)
• The law of nuisance was developed.
• ... and the law of slander and libel arose.
• 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, as works of liturature and art, goodwill, trade secrets, and trademarks.
• Recent innovations and business methods call attention to the next step which must be taken for the protection of the person, and for securing what Judge Cooley calls the right "to be let alone." (195)
• It is our purpose to whether the existing law affords a principle which can be properly invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.
• 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.
• To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, ....
• These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. [emphasis added]
• ... no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person--the right to one's personality.
• A similar groping for the principle upon which a wrongful publication can be enjoined is found in [property, contract, breach of trust, trade secrets]
• The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, ....
• It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right.
• 1. The right to privacy does not prohibit any publication of matter which is of public or general interest.
• 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.
• 2. 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 according to the law of slander and libel.
• 3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
• 4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
• 5. The truth of the matter published does not afford a defense.
• It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy.
• 6. The absence of "malice" in the publisher does not afford a defense.
• The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:--
• 1. An action of tort for damages in all cases. Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.
• 2. An injunction, in perhaps a very limited class of cases.