Privacy

Prosser,Wade & Schwartz,Torts

The recognition and development of the “right of privacy” is perhaps the outstanding illustration of the influence of legal journals upon the courts.Prior to 1890,no English or American court had ever granted relief expressly based upon the invasion of this right,although there were cases that seem in retrospect to have been groping in that direction,and Judge Cooley had coined the phrase “the right to be let alone.” See,e.g.,DeMay v.Roberts;Hardin v.Harshfield,12 S.W.779(Ky.1890) (loss of marriage engagement caused by defendant’s spreading a true tale of plaintiff’s embarrassing combination of expelling flatus in a public place and her lapsus lingua – treated as slander).

In 1890 there appeared in 4 Harvard Law Review 1893 a noted article,“The Right to Privacy,” written by Samuel D.Warren and Louis D.Brandeis,which reviewed a number of older cases in which relief had been afforded on the basis of defamation,or breach of confidence or of an implied contract,in the publication of letter,portraits and the like.The article concluded that these cases were in reality founded upon a broader principle entitled to separate recognition.This principle it stated to be the right of a private individual to be let alone and protected from unauthorized publicity in essentially private affairs.

One of the first states to consider the doctrine advanced by Warren and Brandeis was New York.After two lower courts apparently had accepted the article and recognized the right of privacy,it fell into the unfriendly hands of the Court of Appeals in Roberson v.Rochester Folding Box Co.,171 N.Y.538,64 N.E.442(1902),where the defendant had made an unauthorized use of the picture of an attractive young lady to advertise its flour.The court proceeded to reject the entire doctrine,denying the existence of any “right of privacy” at common law,and expressing a fear of a “vast amount of litigation” that would involve not only pictures,but “a comment upon one’s looks,conduct,domestic relations or habits.” It said that any such change in the law must be left for the legislature to make.

The immediate result of this decision was a lively public disapproval,leading to the enactment in 1903 of a statute,now New York Civil Rights Law §§50～51.This statute prohibits the use of the name,portrait or picture of any living person without prior written consent for “advertising purposes” or for “purposes of trade.” Similar statutes were adopted in Virginia,Oklahoma,and Utah.(https://www.daowen.com)

Three years later the same question was presented in Pavesich v.New England Life Ins.Co.,122 Ga.190,50 S.E.68 (1905),when the defendant’s insurance advertising made use of plaintiff’s name and picture,together with a spurious testimonial purportedly from him.The court rejected the Roberson case,accepted the view of Warren and Brandeis,and recognized the existence of a distinct right of privacy.This became the leading case.For a time authority was divided;but in the 1930’s the tide set in strongly in favor of recognition.

At the present time,the right of privacy is clearly recognized,in one form or another,in all but two or three states.It is limited by statute to commercial uses of the plaintiff’s name or likeness in some states.

This has been a fertile field for legal writing.Two classic articles are Larremore,The Law of Privacy,12 Colu.L.Rev.693 (1912);Prosser,PRIVACY,48 Calif.L.Rev.383 (1960).