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THE RIGHT OF PRIVACY.
BY JOHN GILMER SPEED.
Now, when gossip has become a recognized trade in which large capital is invested and many men engaged, it is most proper that we should consider and determine how far incursions may be made into the private life of the men and women of this country. A supreme court judge in the State of New York, in a recent noted case, decided that when a man became an artist, engaged in literature, or offered himself as a candidate for office, he parted with his right of privacy. I do not believe that this judge was more than partly right, and I do not believe that gossip as a trade has any greater rights because it has become a trade. Moreover, I believe that the definite establishment of this right of privacy is at this time of the greatest possible moment; for, without such a right and the easy enforcement of it, civilization must deteriorate, and modesty and refinement be crushed by brutality and vulgar indecency.
What is the right of privacy ? Judge Cooley, in his admirable work on Torts, calls it the “ right to be let alone." The ancients of our American institutions included it in that declaration which expressed the pledge of their lives and honors to defend the inalienable rights of “ life, liberty, and the pursuit of happiness.” As man comes into the world alone, goes out of it alone, and is alone accountable for his life, so may he be presumed to have by the law of his nature full right to live alone when, to what extent, and as long as he pleases. If he admit others to his society, if he share his thoughts with any, or work for the benefit of his fellow-man, he establishes no prescription against his privacy, and until the morality of his acts is duly and decently disputed, the modesty of good and common nature sets between him and the modern inquisition the protecting shield of
that knightly order whose motto has been aptly termed the elev. enth commandment—"Mind your own business.” That our laws do not afford complete and adequate protection of the right is neither argument against its validity nor objection that they should not be so adjusted as to accomplish that purpose.
Sir Henry Sumner Maine not long ago, in his Oxford lectures, i called attention to the fact that law is a progressive science, and that new relations give rise to or develop new or inchoate rights, and a long line of cases in American and English courts gives proof that the application of remedies has from the very earliest time kept pace with the ever-shifting cunning of human aggression.
But has the right of privacy ever received recognition in the forum of administrative justice? We have rights of property, rights of life and bodily integrity. Do these enumerate all the personal rights? The laws of human community from long time recognized the inherent privilege of vindicating personal honor against slander and libel. The growth of this action, as such a proceeding is called in the law of English-speaking races, shows very clearly that by its very reason of existence that system provided for the possibility of modified relations and the invention of ingenious wrongs. Early in the application of common law the rigor of its rule was softened and the power of the remedy for wrong done with force and arms upon person and property was extended to injuries which were effected by trespass on the case. That was to say, if a man trespass, though he use not weapons in the doing of it nor apply physical force, yet shall the injured one have an equal right to damages, if any measure thereof can be found, with him whose person or property suffers actual wounding. By a similar reason the assault or attempt was made commensurate with the actual striking or battery, as a man would be damaged if he were obliged to put up his defence to ward off overtly threatened blows.
The doing of many acts to the injury of a person or of his property, which came not fully within the notion of violence, was included in the term “nuisance," and so had more or less effective remedy in judgment of damages. It was found that the healthy and common-sense rule that a man must so use his own as not to injure the goods or person of his neighbor was a rery good one to follow in dealing out the rugged justice of our tribal
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ancestors. Even the loss of services of wife, husband, or children became by a kind of uncouth courtesy a reason for the recovery of damages, which were often assessed at a figure expressly punitive of the wrong-doer in the killing, maiming, seducing, abducting, or grievously injuring of one or other of these relatives.
As the simple seagirt people of the western islands began to extend the scope of their operations beyond seas, it soon became certain that other rights existed, against the infringement of which their common law ought to protect them. Trade secrets and marks began to be regarded as property, and the fruits of invention came in a like manner to the care of the law. With the increase of books by aid of movable types came the idea of copyright. So many and complex became the relations which an extended commerce and tremendously increased activity soon laid upon the English people, that first they were constrained to aid the force of their traditional law by statutory additions and enlargement, and then to engraft upon their procedure some of the best methods of the Roman or Imperial codes. This was very satisfactorily arranged by setting up the Lord Chancellor as the keeper of the sovereign's conscience, and through him obtaining from that ever-flowing fountain of justice such helps as the wisdom of the civil law afforded.
The exclusive right to multiply copies of written or printed books has been one of the most edifying results of the long discussion, and is a declaration that a man has full right to the exclusive ownership of his written thought by common law. A familiar example of the enforcement of this view is the inviolability of property in correspondence. The contents of a letter may not be published without the consent of the writer. Another instance less familiar but not less forcible is the integrity of property in plays retained in manuscript, which is preserved notwithstanding their never so frequent presentation to the public.
The law of France, which follows the rule of the Roman Code, has explicitly declared the right of privacy, and provided measures for its vindication in the statutes relative to the control of the public press. The Penal Code of France has, since May, 1868, declared that any publication in newspaper or periodical of facts relating to one's private life shall be punished as a criminal offence.
It must readily be seen from these instances that the law, not only of our own but of other races, stands ready to assert enforceable privileges entirely apart from those which affect property and bodily safety. With the instantaneous photograph, the untamable reporter, and the Röentgen ray prying busily into the daily affairs of men, it becomes more than ever a serious problem whether man can be made secure from impertinent curiosity and mischievous or malicious spying.
Ever since the middle of the last century, when the courts of England declared that the writer of a private letter was entitled to prevent the receiver from publishing the contents thereof (Pope vs. Curl, 1741), the application to the right of privacy of the rules of law and equity has engaged the most serious attention of judges on both sides of the Atlantic. As early as 1820 the English courts, as is evidenced by the case of Youatt vs. Winyard, and other judgments, following the rule there declared, enjoined the publication of secrets obtained in the course of confidential employment, and they have, within a few months past, most emphatically reasserted the rule. In the case of Prince Albert vs. Strange, 1849, the defendaut was prevented from selling or describing in print certain etchings made by Queen Victoria and the Prince Consort, and in that case the judge redeclared the governing principle which forms one of the chiefest beauties of our common-law system-that its rules are “providentially expansive and capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce.” The Lord Chancellor in the same case declared that the personal right invaded by the defendant was the right of privacy.
The right of heirs or children to protect the graves and monuments of their dead, asserted as long ago as the time of the learned Coke, and more recently exhaustively discussed in New York in the Beekman Street case (1854–1856), is established as sacred and inherent and independent of any considerations of property whatever. The exclusive use of one's own name was made the subject of recent decision in New York, when the late Sir Morell Mackenzie was allowed an injunction in 1891 against a certain Mineral Springs Company to prevent the use of his name and portrait, under the judicial declaration that their unauthorized use by the defendant was an injury to the physician. Numerous cases have grown out of the unauthorized use of photography, and the right of privacy has been emphatically declared in cases where photographs have been either openly or surreptitiously obtained. In comparison to these cases there is afforded an excellent opportunity to note the difference between rights which are by nature inherent and those which arise from contract, actual or implied. In the English case of Pollard vs. Photographic Company, while the Court discussed at large the subject of the law of privacy, yet it appeared clearly that defendant's use of the plaintiff's portrait was a breach of an implied coutract, for the photograph was made with the latter's consent and for private use. On the other hand, the recent American case of Manola vs. Stevens (1890) enjoined the use of a photograph of the plaintiff, an actress, taken without her consent by the use of the surreptitious flash light. This case, it is to be regretted, did not pass into the ranks of precedent, for the defendant submitted to the rule of the lower court. There would have been an excellent opportunity here to review the entire question of the right of privacy in its strictest construction, as the plaintiff was engaged in an occupation which devoted certain hours of her time to the portrayal of character before the public in drama. It would have been a nice point to distinguish between the voluntary relinquishment of so much of a person's right of privacy as must be laid aside by the actor when engaged in playing and the bestowal by that act of a general privilege to any and all to make and have pictures of the actor. It needs no citation from law or reason to establish the rule that the habit indulged in by so many actors of thrusting their portraits before the public, and filling the columns of daily newspapers with the most intimate as well as most trivial of their private affairs, does not take away from any member of the profession the right to be let alone when the curtain which hides his assumed character from the world is drawn close.
It is too bad, in fact, that in dealing with this vitally important subject of the enforcement of the right of privacy the ultimate courts have so often been, or seemed to be, obliged to decide the cases before them, in which this right was an important element, upon some point which left the larger subject unaffected by their judgment. It yet remains for some one to present a case in which a full and broad decision can be had. Two most