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familiar in the law of literary and artistic property. The cases
there decided establish also what should be deemed a publication,
- the important principle in this connection being that a private
communication of circulation for a restricted purpose is not a pub-
lication within the meaning of the law.1
5. The truth of the matter published does not afford a defence.
Obviously this branch of the law should have no concern with the
truth of falsehood of the matters published. It is not for injury
to the individual's character that redress or prevention is sought,
but for injury to the right of privacy. For the former, the law of
slander and libel provides perhaps a sufficient safeguard. The
latter implies the right not merely to prevent inaccurate portrayal
of private life, but to prevent its being depicted at all.2
6. The absence of " malice" in the publisher does not afford
a defence.
Personal ill-will is not an ingredient of the offence, any more
than in an ordinary case of trespass to person or to property.
Such malice is never necessary to be shown in an action for libel
or slander at common law, except in rebuttal of some defence,
e. g., that the occasion rendered the communication privileged, or,
under the statutes in this State and elsewhere, that the statement
complaiined of was true. The invasion of the privacy that is to
be protected is equally complete and equally injurious, whether
the motives by which the speaker or writer was actuated are,
taken by themselves, culpable or not; just as the damage to char-
acter, and to some extent the tendency to provoke a breach of the
peace, is equally the result of defamation without regard to the
tnotives leading to its publication. Viewed as a wrong to the in-
dividual, this rule is the same pervading the whole law of torts, by
which one is held responsible for his intentional acts, even though
they are committed with no sinister intent; and viewed as a wrong
1 See Drone on Copyright, pp. 121, 289, 290.
2 Compare the French law.
" En prohibant l'envahissement de la vie priv6e, sans qu'il soit n6cessaire d'6tablir l'i
tention criminelle, la loi a entendue interdire toute discussion de la part de la d6fense sur
la v6ritd des faits. Le rem6de eut 6te pire que le mal, si un ddbat avait pu s'engager sur
ce terrain." Circ. Mins. Just., 4 Juin, i868. Rivi6re Code Franqais et Lois Usuelles, App.
Code Penn. 20 n(a).
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THE RIGHT TO PRIVACY. 219
to society, it is the same principle adopted in a large category of
statutory offences.
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:
i. 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.2
It would doubtless be desirable that the privacy of the individual
should receive the added protection of the criminal law, but for
this, legislation would be required.3 Perhaps it would be deemed
proper to bring the criminal liability for such publication within
narrower limits ; but that the community has an interest in pre-
venting such invasions of privacy, sufficiently strong to justify
the introduction of such a remedy, cannot be doubted. Still, the
protection of society must come mainly through a recognition of
1 Comp. Drone on Copyright, p. I07.
2 Comp. High on Injunctions, 3d ed., ? IOI5; Townshend on Libel and Slander,
4th ed., ?? 4I 7a--417d.
3 The following draft of a bill has been prepared by William H. Dunbar, Esq., of the
Boston bar, as a suggestion for possible legislation: -
"SECTION I. Whoever publishesin aiy newspaper,journal,magazine.or other period-
ical publication any statement concerning the privatelife or affairs of another, after being
requested in writing by such other person not to publish such statement or any statement
concerning him, shall be punished by imprisonment in the State prison not exceeding
five years, or by imprisonment in the jail inot exceeding two years, or by fine not exceed-
ing one thousand dollars; provided, that no statement concerning the conduct of any
person in, or the qualifications of any person for, a public office or position which such
person holds, has held, or is seeking to obtain, or for which such person is at the time of
such publication a candidate, or for which he or she is then suggested as a candidate, and
no statement of or concerning the acts of any person in his or her business, profession,
or calling, and no statement concerning any person in relation to a position, profession,
business, or calling, bringing such person prominently before the public, or in relation
to the qualifications for such a position, business, profession, or calling of any person
prominent or seekingprominence before the public, and no statement relating to any act
done by any person in a public place, nor any other statement of nmatter which is of
public and general interest, shall be deemed a statement concerning the private life or
affairs of such person within the meaning of this act.
" SECT. 2. It shall not be a defence to any criminal prosecution brought under section
I of this act that the statement complained of is true,or that such statement was
published without a malicious intention; but no person shall be liable to punishment for
any statement published under such circumstances that if it were defamatory the publica-
tion thereof would be privileged."
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220 HARVARD LAW RE VIEW.
the rights of the individual. Each man is responsible for his own
acts and omissions only. If he condones what he reprobates, with
a weapon at hand equal to his defence, he is responsible for the
results. If he resists, public opinion will rally to his support.
Has he then such a weapon ? It is believed that the common law
provides him with one, forged in the slow fire of the centuries,
and to-day fitly tempered to his hand. The common law has
always recognized a man's house as his castle, impregnable, often,
even to its own officers engaged in the execution of its commands.
Shall the courts thus close the front entrance to constituted

familiar in the law of literary and artistic property. The cases

there decided establish also what should be deemed a publication,

- the important principle in this connection being that a private

communication of circulation for a restricted purpose is not a pub-

lication within the meaning of the law.1

5. The truth of the matter published does not afford a defence.

Obviously this branch of the law should have no concern with the

truth of falsehood of the matters published. It is not for injury

to the individual's character that redress or prevention is sought,

but for injury to the right of privacy. For the former, the law of

slander and libel provides perhaps a sufficient safeguard. The

latter implies the right not merely to prevent inaccurate portrayal

of private life, but to prevent its being depicted at all.2

6. The absence of " malice" in the publisher does not afford

a defence.

Personal ill-will is not an ingredient of the offence, any more

than in an ordinary case of trespass to person or to property.

Such malice is never necessary to be shown in an action for libel

or slander at common law, except in rebuttal of some defence,

e. g., that the occasion rendered the communication privileged, or,

under the statutes in this State and elsewhere, that the statement

complaiined of was true. The invasion of the privacy that is to

be protected is equally complete and equally injurious, whether

the motives by which the speaker or writer was actuated are,

taken by themselves, culpable or not; just as the damage to char-

acter, and to some extent the tendency to provoke a breach of the

peace, is equally the result of defamation without regard to the

tnotives leading to its publication. Viewed as a wrong to the in-

dividual, this rule is the same pervading the whole law of torts, by

which one is held responsible for his intentional acts, even though

they are committed with no sinister intent; and viewed as a wrong

1 See Drone on Copyright, pp. 121, 289, 290.

2 Compare the French law.

" En prohibant l'envahissement de la vie priv6e, sans qu'il soit n6cessaire d'6tablir l'i

tention criminelle, la loi a entendue interdire toute discussion de la part de la d6fense sur

la v6ritd des faits. Le rem6de eut 6te pire que le mal, si un ddbat avait pu s'engager sur

ce terrain." Circ. Mins. Just., 4 Juin, i868. Rivi6re Code Franqais et Lois Usuelles, App.

Code Penn. 20 n(a).

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. 219

to society, it is the same principle adopted in a large category of

statutory offences.

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:

i. 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.2

It would doubtless be desirable that the privacy of the individual

should receive the added protection of the criminal law, but for

this, legislation would be required.3 Perhaps it would be deemed

proper to bring the criminal liability for such publication within

narrower limits ; but that the community has an interest in pre-

venting such invasions of privacy, sufficiently strong to justify

the introduction of such a remedy, cannot be doubted. Still, the

protection of society must come mainly through a recognition of

1 Comp. Drone on Copyright, p. I07.

2 Comp. High on Injunctions, 3d ed., ? IOI5; Townshend on Libel and Slander,

4th ed., ?? 4I 7a--417d.

3 The following draft of a bill has been prepared by William H. Dunbar, Esq., of the

Boston bar, as a suggestion for possible legislation: -

"SECTION I. Whoever publishesin aiy newspaper,journal,magazine.or other period-

ical publication any statement concerning the privatelife or affairs of another, after being

requested in writing by such other person not to publish such statement or any statement

concerning him, shall be punished by imprisonment in the State prison not exceeding

five years, or by imprisonment in the jail inot exceeding two years, or by fine not exceed-

ing one thousand dollars; provided, that no statement concerning the conduct of any

person in, or the qualifications of any person for, a public office or position which such

person holds, has held, or is seeking to obtain, or for which such person is at the time of

such publication a candidate, or for which he or she is then suggested as a candidate, and

no statement of or concerning the acts of any person in his or her business, profession,

or calling, and no statement concerning any person in relation to a position, profession,

business, or calling, bringing such person prominently before the public, or in relation

to the qualifications for such a position, business, profession, or calling of any person

prominent or seekingprominence before the public, and no statement relating to any act

done by any person in a public place, nor any other statement of nmatter which is of

public and general interest, shall be deemed a statement concerning the private life or

affairs of such person within the meaning of this act.

" SECT. 2. It shall not be a defence to any criminal prosecution brought under section

I of this act that the statement complained of is true,or that such statement was

published without a malicious intention; but no person shall be liable to punishment for

any statement published under such circumstances that if it were defamatory the publica-

tion thereof would be privileged."

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

220 HARVARD LAW RE VIEW.

the rights of the individual. Each man is responsible for his own

acts and omissions only. If he condones what he reprobates, with

a weapon at hand equal to his defence, he is responsible for the

results. If he resists, public opinion will rally to his support.

Has he then such a weapon ? It is believed that the common law

provides him with one, forged in the slow fire of the centuries,

and to-day fitly tempered to his hand. The common law has

always recognized a man's house as his castle, impregnable, often,

even to its own officers engaged in the execution of its commands.

Shall the courts thus close the front entrance to constituted