The most influential source of privacy as a part of American
legal culture was an article called The Right to Privacy in the
1890 Harvard Law Review. Written by Samuel D. Warren and Louis D. Brandeis,
the article was inspired by the rise of newspapers, photography, and other
technologies with the potential to expose peopleís images and personal
information to the public. Warren and Brandeis compared privacy to the
law of defamation, to physical property rights, to intellectual property,
and to the law of contract.
Their key concern, it is important to note, was with publicity
given to sensitive personal information ó undesirable and embarrassing
scrutiny of private life by the press and public. Privacy as discussed
by Warren and Brandeis did not extend to matters that were of legitimate
public or general interest. And publication of facts by the individual
concerned, or with that personís consent, cut off that personís right to
privacy in that information.
In 1960, eminent legal scholar William L. Prosser documented
how privacy as a legal concept had come to constitute four distinct torts.
That is, a person whose privacy has been invaded could sue the invader
for damages. These torts still exist today, and are contoured as four
- Intrusion upon seclusion or solitude, or into private affairs;
- Public disclosure of embarrassing private facts;
- Publicity which places a person in a false light in the public eye; and
- Appropriation of name or likeness.
The privacy torts are often forgotten or deliberately ignored by some privacy
advocates. They should not be. Litigation is arguably far superior to administrative
regulation as a means to protect privacy while preserving innovation. And as the U.S.
Department of Commerce said in a July, 2000 memorandum to the European Commission,
"The right to recover damages for invasion of personal privacy is well established
under U.S. common law."
Damages for Breaches
of Privacy, Legal Authorizations and Mergers and Takeovers in U.S. Law Memorandum
to European Commission, U.S. Department of Commerce (July 14, 2000)
Regulation Through Litigation: Assessing the Role of Bounty Hunters and
Bureaucrats in the Quest For Consumer Protection And Human Health And Safety,
Institute for Legal Reform, U.S. Chamber of Commerce (February 23, 2000) (PDF transcript
available from the Manhattan Institute)
The Right to Privacy by Samuel D. Warren & Louis D. Brandeis, Harvard Law Review (December 15, 1890)