NORTHWESTERN LAW REVIEW

VOL. III.

OCTOBER, 1894.

THE RIGHT TO PRIVACY.

No. 1.

In 1890, there appeared in the Harvard Law Review an article on the right to privacy.' The arguments advanced in that article in favor of the existence of a right to privacy were largely based upon certain dicta of Sir Knight Bruce in the celebrated case, Prince Albert v. Strange? Coming as it did at a time when public interest had been aroused in this question by an article3 in one of our popular monthlies on the subject of reportorial invasion of the privacy of life, the Harvard Law Review article created considerable discussion in the legal world as to whether the existence of the right to privacy could be justified on sound legal principles. The right to privacy, for the protection of which an injunction was claimed, was said to consist in the right "to be let alone;" the right to enjoy the seclusion of the home, the study or the studio, free from the interference of an inquisitive public; the right to prevent the unwarranted circulation of one's photograph; and, in short, the right to maintain inviolate and undisclosed, all that pertains to the privacy of one's personality.

The arguments employed to show why the right to privacy does, or should be recognized and protected, were that courts of equity in preventing the publication of letters, of photographs, or attempts at literature or art, had adopted the theory of property rights therein as a mere fiction, and that the real basis of the jurisdiction consisted in the protection of "personal feelings," the protection of the "sanctity of private life," and a general attention

14 Har. Law Rev., 193.

22 De Gex & Sm., 652.

3 Scribner's Mag. July 1890: "The Rights of the Citizen: to His Reputation," by E. F. Godkin, Esq.

• See Cooley on Torts, 2 ed. p. 29.

5 Har. Law Rev. 204, 205, 206.

to that important trait of character and culture, which Matthew Arnold says the English people and their American cousins so essentially lack-amenity. And further, that the second ground on which courts of equity had taken jurisdiction in the protection of literary productions and the prevention of the publication of photographs, viz: an implied contract or trust, was also a mere fiction of the law, and that the real basis of this argument was a recognition by the courts of the necessity and "moral fitness" of preserving inviolate to the individual the right to a private personality, whether that personality consisted in manners, appearance, habits of life, or productions of the mind.'

Copious excerpts were made from Prince Albert v. Strange,? and Pollard v. Photograph Co., which on first blush seems to justify the contention that in these and other similar cases the courts of equity had been induced to grant an injunction for the protection of the feelings of the individual in recognition of the "moral fitness" in so doing, rather than on the old established grounds of equity jurisdiction, protection of rights of property. But it is to be remembered that no position, however extreme, can want for support and justification in the dicta of decisions.

After extensive review, comment and argument, the writers suggest their conclusions in the form of a code for the protection of the right to privacy. It is as follows:

1. "The right to privacy does not prohibit any publication of matter which is of public or general interest." And those matters are to be considered of "public or general interest" which have any connection with a person's "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." But all matters, which have no legitimate connection with a person's fitness for those positions should be kept free from public intrusion. The question as to who are to be considered public or quasi public characters is not answered.

2. "The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication

14 Har. Law Rev., 207, 208, 209.

22 DeGex & Sm. 652, 1 MacN. & G. 25.

840 Ch. D. 345 (1888.)

44 Har. Law Rev. 214, 215, 216.

is made under circumstances which would, render it a privileged communication according to the law of slander and libel." The question, whether such privilege exists, would, in each instance, have to be determined by the court or jury, and it may be confi. dently asserted that when a person offers for sale to the public his literary or artistic productions, the public have a right to know something of his life and habits and individuality.'

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." The effect of this proposition as to literary and artistic property is well defined and clearly understood; but whether a person would be considered to have "published " his peculiarities of habits, speech and manner by appearing in public among people would be a difficult question to decide.

Two other rules are given but they are suggested in regard to grounds of defense."

If the law should become established in pursuance with these suggestions, it is submitted that the "right" would be found to be so completely pruned away that the shadow remaining would hardly furnish sufficient substance to interest the ordinary man or woman in this busy world of ours. Yet it is also submitted that the courts could not, in accordance with well established principles of the law of defamation, and the rights of free speech secured to all by our constitutions, establish the right to privacy, should they establish it at all, outside the lines suggested. The small class who would thus be entitled to enjoy the privilege of privacy and seclusion would probably find that their habits of life and appearance would be of as little importance to the general public as would the right to privacy itself, if established within these limitations.

The writer believes that the right to privacy does not exist;

14 Har. Law Rev.

25. “The truth of the matter published does not afford a defense. 6. The absence of malice in the publisher does not afford a defense.”

& Life Ass. Co. v. Boogher, 3 Mo. App. 173; Boston Diatate Co. v. Florence Mfg. Co., 114 Mass. 69; Brandreth v. Lance, 8 Paige, 23; Cooley Const. Lim. 6 Ed. 578; Colt, Cir. J., in Corliss v. Walker Co., 57 Fed. Rep. 434-436.

that the arguments in favor of its existence are based on a mistaken understanding of the authorities cited in its support; that the jurisdiction of courts of equity does not on principle recognize the right to privacy, the right to be free from personal unpleasantness; that equity has no concern with the feelings of the individual or with considerations of "moral fitness" except as the inconvenience or injury that a person may suffer is connected with the enjoyment or possession of property.

For a clearer understanding of the position assumed a short review of the nature and history of equity jurisdiction will not be inappropriate or unprofitable.

The work of the courts of equity in that great dual system of jurisprudence which has distinguished the English speaking people consists in the giving of other and fuller relief than can be found in the courts of law. That our jurisprudence developed into a dual system, instead of one harmonious and consistent whole, as did the Roman law, has resulted in conflicts, confusion and misunderstandings. The result, however, was inevitable, from the historical circumstances under which it came into being. The Anglo-Saxon law was arbitrary and crude. "The word was the law." A precedent was of more importance than a principle and the procedure, based upon writs limited in number, was the root from which the common law developed. An inevitable consequence of this condition was that many rights were invaded with impunity, and many remedies were barred through accident, technicalities and a lack of attention to forms arbitrary in the extreme.

Thus, it was necessary that some softening, broadening influence should come to the assistance of the common law just as it was found necessary in Rome two thousand years ago, to modify by Preatorian edicts the rigor of the Twelve Tables. This relief was found in an appeal to the conscience of the King, the fountain source of justice. All common law writs came from the Chancellor and his clerks, but the common law judges had the right to pass upon their validity.'. The King, however, had the right to issue writs in accordance with his sense of justice and right to

1 The chancellor and his clerks issued the common law writs, but the common law judges assumed the jurisdiction to decide upon their validity; nor could the chancellors decide what was a sufficient defense. Spence Eq. Jur., 325.

relieve the misfortune or hardships of his subjects.' This relief, based upon certain general principles of justice, and accomplished by writs from the Chancellors, formed the foundation of modern equity jurisprudence. Though all law traced its origin to the King, the two systems did not coalesce, as the power to judge of the validity of the common law writs gave to the common law judges the control of those writs, and the Chancellors soon issued writs on their own motion without reference of the case to the King,'

As the Chancellors were usually ecclesiasts and gave justice in accordance with their own ideas of "equity," based upon a study of the principles of the Roman law, the opposition and conflict. between the Catholic church and the English people resulted in many instances in a conflict between the two systems of jurisprudence. This separation and conflict continued down to a time within the memory of man now living when statutory legislation attempted to unite the two into one harmonious whole, as was the Fus Gentium of the Romans.*

8

Thus it is seen that equity jurisdiction was at its inception limited only by what seemed right and just to the conscience of the chancellor.5 But as equity modified in many ways the common law, it was but natural that the conservative spirit of the English people, as manifested in the common law, should in time have influenced the exercise of equity jurisdiction. The idea of 1Henricus Rex Anglorum Dapifero et Hugoni, de Bock, Spelman voce Dapifer, p. 1636.

"In the reign of Henry III, that monarch, by ordinance, referred all matters as were of grace to the chancellor or keeper of the privy seal. (Introd. to close rolls, p. XXVIII 32 Ed. III.) This ordinance gave to the chancellors authority to give relief in all matters requiring the prerogative grace; while the common law judges were limited to the writs."

The judges in the reign of Rich. II prohibited the citation of Roman law in common law tribunals (Rot. Par. 11 Rich. II, pref. to Sir J. Davis' Rep. and Ducks XXVI, VIII.)

4 Judicature act (1873), 36, 37, Vict. c. 66. Legislation in many of our states has abolished the distinctions between law and equity.

"Equity is a roguish thing. 'Tis all one as if they should make the standard for measure of a chancellor's foot." Selden's Table Talk, Eq. Oper. Tom. IV, p. 2028. "Selden, better than any man living, perhaps, knew what equity really was." Spence 413. "No doubt the court of chancery was not originally limited by any other terms," (what should seem "reasonable and just.") Jessel, M. R., in Beddon v. Beddon, 9 Ch. D. 89.