Overview[edit | edit source]

The tort of invasion of privacy is rooted in a common law right to privacy first described in an 1890 law review article by Samuel Warren and Louis Brandeis.[1] The article posited that the common law has always protected an individual's person and property, with the extent and nature of that protection changing over time. The fundamental right to privacy is both reflected in those protections and grows out of them:

Thus, in the very early times, the law gave a remedy only for physical interference with life and property, for trespass vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of a man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession — intangible, as well as tangible.[2]

Although no English cases explicitly articulated a "right to privacy," several cases decided under theories of property, contract, or breach of confidence also included invasion of privacy as a basis for protecting personal violations.[3] The article encouraged recognition of the common law right to privacy, as the strength of our legal system lies in its elasticity, adaptability, capacity for growth, and ability “to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong.”[4]

Judicial decisions[edit | edit source]

The first jurisdiction to recognize the common law right to privacy was Georgia. In Pavesich v. New England Life Ins. Co.,[5] the Georgia Supreme Court determined that the "right of privacy has its foundation in the instincts of nature," and is therefore an "immutable" and "absolute" right "derived from natural law."[6] The court emphasized that the right of privacy was not new to Georgia law, as it was encompassed by the well-established right to personal liberty.[7]

Many other jurisdictions followed Georgia in recognizing the tort of invasion of privacy, citing Warren and Brandeis' article and Pavesich. Today, the vast majority of jurisdictions now recognize some form of the right to privacy. Only North Dakota and Wyoming have not yet recognized any of the four privacy torts.[8] New York and Nebraska courts have declined to recognize a common law basis for the right to privacy and instead provide statutory protection,[9] The right to privacy is inherent in the English protections of individual property and contract rights and the "right to be let alone" is recognized as part of the common law across this country. Thus, it is within the province of the judiciary to establish privacy torts in this jurisdiction.

References[edit | edit source]

  1. Samuel D. Warren & Louis D. Brandeis, "The Right to Privacy", 4 Harv. L. Rev. 193 (1890).
  2. Id. at 193.
  3. Id. at 203-10.
  4. Id. at 213 n.1.
  5. 122 Ga. 190, 50 S.E. 68 (1905).
  6. Id., 50 S.E. at 69-70.
  7. Id. at 70.
  8. The four privacy torts are intrusion into seclusion, public disclosure of private facts, the appropriation of name or likeness and casting someone in a false light.
  9. Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 447 (1902); Brunson v. Ranks Army Store, 161 Neb. 519, 73 N.W.2d 803, 806 (1955).
Community content is available under CC-BY-SA unless otherwise noted.