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2I6 HAR VARD LA WV RE VIE WV.
a certain extent uncertain in its operation and easily rendered
abortive. Besides, it is only the more flagrant breaches of decency
and propriety that could in practice be reached, and it is not per-
haps desirable even to attempt to repress everything which the
nicest taste and keenest sense of the respect due to private life
would condemn.
In general, then, the matters of which the publication shouid
be repressed may be described as those which concern the pri-
vate life, habits, acts, and relations of an individual, and have no
legitimate connection with his fitness for a public office which he
seeks or for which he is suggested, or for any public or quasi
public position which he seeks or for which he is suggested, and
have no legitimate relation to or bearing upon any act done by
him in a public or quasi public capacity. The foregoing is not
designed as a wholly accurate or exhaustive definition, since that
which must ultimately in a vast number of cases become a ques-
tion of individual judgment and opinion is incapable of such
definition; but it is an attempt to indicate broadly the class of
matters referred to. Some things all men alike are entitled to
keep from popular curiosity, whether in public life or not, while
others are only private because the persons concerned have not
assumed a position which makes their doings legitimate matters
of public investigation.'
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.
Under this rule, the right to privacy is not invaded by any
publication made in a court of justice, in legislative bodies, or the
committees of those bodies; in municipal assemblies, or the com-
mittees of such assemblies, or practically by any communication
made in any other public body, municipal or parochial, or in any
body quasi public, like the large voluntary associations formed
"Celui-la seul a droit au silence absoluqui n'a pas expressdment ou indirectm
provoqu6 ou authoris6 l'attention, l'approbation ou le blame." Circ. Mins. Just., 4 Juin,
i868. Rivi&re Codes Franqais et Lois Usuelles, App. Code Pen. 20 n ( b).
The principle thus expressed evidently is designed to exclude the wholesale investiga-
tions into the past of prominent public men with which the American public is too fa-
miliar, and also, unhappily, too well pleased; while not entitled to the " sil nce absolu "
which less prominent men may claim as their due, they may still demand that all the de-
tails of private life in its most limited sense shall not be laid bare for inspection.
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THE RIGHT TO PRIVACY. 21 7
for almost every purpose of benevolence, business, or other general
interest ; and (at least in many jurisdictions) reports of any such
proceedings would in some measure be accorded a like privilege.,
Nor would the rule prohibit any publication made by one in the dis-
charge of some public or private duty, whether legal or moral, or
in conduct of one's own affairs, in matters where his own interest
is concerned.2
3. The law would probably not grant any redress for the inva-
sion of privacy by oral publication in the absence of special
damage.
The same reasons exist for distinguishing between oral and
written publications of private matters, as is afforded in the law of
defamation by the restricted liability for slander as compared with
the liability for libel.3 The injury resulting from such oral com-
munications would ordinarily be so trifling that the law might well,
in the interest of free speech, disregard it altogether.4
1 Wason v. Walters, L. R. 4 Q. B. 73; Smith v. Higgins, i6 Gray, 25I; Barrows v.
Bell, 7 Gray, 331.
2 This limitation upon the right to prevent the publication of private letters was recog-
nized early: -
" But, consistently with this right [of the writer of letters], the persons to w
are addressed may have, nay, must, by implication, possess, the right to publish
or letters addressed to them, upon such occasions, as require, or justify, the publication
or public use of them ; but this right is strictly limited to such occasions. Thus, a person
may justifiably use and publish, in a suit at law or in equity, such letter or letters as are
necessary and proper, to establish his right to maintain the suit, or defend the same. So,
if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a
public manner, he may publish such parts of such letter or letters, but no more, as may
be necessary to vindicate his character and reputation, or free him from unjust obloquy
and reproach." Story, J., in Folsom v. Marsh, 2 Story, I00, ito, i i i (1841).
The existence of any right in the recipient of letters to publish the same has been stren-
uously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem
satisfactory. Drone on Copyright, pp. 136-139.
3Townshend on Slander and Libel, 4th ed., ? i8; Odgers on Libel and Slander,
2d ed., p. 3.
4 " But as long as gossip was oral, it spread, as regards any one individual, over a very
small area, and was confined to the immediate circle of his acquaintances. It did not
reach, or but rarely reached, those who knew nothing of him. It did not make his
name, or his walk, or his conversation familiar to strangers. And what is more to the
purpose, it spared him the pain and mortification of knowing that he was gossipped
about. A man seldom heard of oral gossip about him which simply made him ridiculous,
or trespassed on his lawful privacy, but made no positive attack upon his reputation.
His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The
Rights of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66.
Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex & Sm.
652, 694, that a distinction would be made as to the right to privacy of works of art
between an oral and a written description or catalogue.
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2I8 IiARVARD LA'W REVIEW.
4. The right to privacy ceases upon the publication of the
facts by the individual, or with his consent.
This is but another application of the rule which has become

2I6 HAR VARD LA WV RE VIE WV.

a certain extent uncertain in its operation and easily rendered

abortive. Besides, it is only the more flagrant breaches of decency

and propriety that could in practice be reached, and it is not per-

haps desirable even to attempt to repress everything which the

nicest taste and keenest sense of the respect due to private life

would condemn.

In general, then, the matters of which the publication shouid

be repressed may be described as those which concern the pri-

vate life, habits, acts, and relations of an individual, and have no

legitimate connection with his fitness for a public office which he

seeks or for which he is suggested, or for any public or quasi

public position which he seeks or for which he is suggested, and

have no legitimate relation to or bearing upon any act done by

him in a public or quasi public capacity. The foregoing is not

designed as a wholly accurate or exhaustive definition, since that

which must ultimately in a vast number of cases become a ques-

tion of individual judgment and opinion is incapable of such

definition; but it is an attempt to indicate broadly the class of

matters referred to. Some things all men alike are entitled to

keep from popular curiosity, whether in public life or not, while

others are only private because the persons concerned have not

assumed a position which makes their doings legitimate matters

of public investigation.'

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.

Under this rule, the right to privacy is not invaded by any

publication made in a court of justice, in legislative bodies, or the

committees of those bodies; in municipal assemblies, or the com-

mittees of such assemblies, or practically by any communication

made in any other public body, municipal or parochial, or in any

body quasi public, like the large voluntary associations formed

"Celui-la seul a droit au silence absoluqui n'a pas expressdment ou indirectm

provoqu6 ou authoris6 l'attention, l'approbation ou le blame." Circ. Mins. Just., 4 Juin,

i868. Rivi&re Codes Franqais et Lois Usuelles, App. Code Pen. 20 n ( b).

The principle thus expressed evidently is designed to exclude the wholesale investiga-

tions into the past of prominent public men with which the American public is too fa-

miliar, and also, unhappily, too well pleased; while not entitled to the " sil nce absolu "

which less prominent men may claim as their due, they may still demand that all the de-

tails of private life in its most limited sense shall not be laid bare for inspection.

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. 21 7

for almost every purpose of benevolence, business, or other general

interest ; and (at least in many jurisdictions) reports of any such

proceedings would in some measure be accorded a like privilege.,

Nor would the rule prohibit any publication made by one in the dis-

charge of some public or private duty, whether legal or moral, or

in conduct of one's own affairs, in matters where his own interest

is concerned.2

3. The law would probably not grant any redress for the inva-

sion of privacy by oral publication in the absence of special

damage.

The same reasons exist for distinguishing between oral and

written publications of private matters, as is afforded in the law of

defamation by the restricted liability for slander as compared with

the liability for libel.3 The injury resulting from such oral com-

munications would ordinarily be so trifling that the law might well,

in the interest of free speech, disregard it altogether.4

1 Wason v. Walters, L. R. 4 Q. B. 73; Smith v. Higgins, i6 Gray, 25I; Barrows v.

Bell, 7 Gray, 331.

2 This limitation upon the right to prevent the publication of private letters was recog-

nized early: -

" But, consistently with this right [of the writer of letters], the persons to w

are addressed may have, nay, must, by implication, possess, the right to publish

or letters addressed to them, upon such occasions, as require, or justify, the publication

or public use of them ; but this right is strictly limited to such occasions. Thus, a person

may justifiably use and publish, in a suit at law or in equity, such letter or letters as are

necessary and proper, to establish his right to maintain the suit, or defend the same. So,

if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a

public manner, he may publish such parts of such letter or letters, but no more, as may

be necessary to vindicate his character and reputation, or free him from unjust obloquy

and reproach." Story, J., in Folsom v. Marsh, 2 Story, I00, ito, i i i (1841).

The existence of any right in the recipient of letters to publish the same has been stren-

uously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem

satisfactory. Drone on Copyright, pp. 136-139.

3Townshend on Slander and Libel, 4th ed., ? i8; Odgers on Libel and Slander,

2d ed., p. 3.

4 " But as long as gossip was oral, it spread, as regards any one individual, over a very

small area, and was confined to the immediate circle of his acquaintances. It did not

reach, or but rarely reached, those who knew nothing of him. It did not make his

name, or his walk, or his conversation familiar to strangers. And what is more to the

purpose, it spared him the pain and mortification of knowing that he was gossipped

about. A man seldom heard of oral gossip about him which simply made him ridiculous,

or trespassed on his lawful privacy, but made no positive attack upon his reputation.

His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The

Rights of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66.

Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex & Sm.

652, 694, that a distinction would be made as to the right to privacy of works of art

between an oral and a written description or catalogue.

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

2I8 IiARVARD LA'W REVIEW.

4. The right to privacy ceases upon the publication of the

facts by the individual, or with his consent.

This is but another application of the rule which has become