one to exhibit himself to the public at all | ancient law recognized that a person had a proper times, in all proper places, and in a legal right "to be let alone," so long as he proper manner is embraced within the right was not interfering with the rights of other of personal liberty. The right to withdraw individuals or of the public. This idea has from the public gaze at such times as a per- been carried into the common law, and apson may see fit, when his presence in public pears from time to time in various places; is not demanded by any rule of law, is also a conspicuous instance being in the case of embraced within the right of personal lib- private nuisances resulting from noise which erty. Publicity in one instance, and privacy interferes with one's enjoyment of his home, in the other, are each guaranteed. If per- and this, too, where the noise is the result sonal liberty embraces the right of publicity, of the carrying on of a lawful occupation. it no less embraces the correlative right of Even in such cases where the noise is unprivacy; and this is no new idea in Georgia necessary, or is made at such times that law. In Wallace v. Georgia, C. & N. R. Co. one would have a right to quiet, the courts 94 Ga. 732, 22 S. E. 579, it was said: "Lib- have interfered by injunction in behalf of erty of speech and of writing is secured by the person complaining. See 2 Wood, Nuithe Constitution, and incident thereto is the sances, 3d ed. pp. 827 et seq. It is true that correlative liberty of silence, not less im- these cases are generally based upon the portant nor less sacred." The right of pri- ground that the noise is an invasion of a vacy within certain limits is a right derived property right, but there is really no infrom natural law, recognized by the princi- jury to the property, and the gist of the ples of municipal law, and guaranteed to wrong is that the individual is disturbed in persons in this state both by the Consti- his right to have quiet. Under the Roman tutions of the United States and of the state law, "to enter a man's house against his of Georgia, in those provisions which declare will, even to serve a summons, was regarded that no person shall be deprived of liberty as an invasion of his privacy." Hunter, except by due process of law. Roman Law, 3d ed. p. 149. This conception is the foundation of the common-law maxim that "every man's house is his castle;" and in Semayne's Case, 5 Coke, 91, 1 Smith, Lead. Cas. 228, where this maxim was applied, one of the points resolved was "that the house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose." "Eavesdroppers, or such as listen under walls or windows or the eaves of a house to hearken after discourse, and thereupon to frame slanderous and mischievous tales," were a nuisance at common law, and indictable, and were required, in the discretion of the court, to find sureties for their good behavior. 4 Bl. Com. 168. The offense consisted in lingering about dwelling houses and other places where persons meet for

While, in reaching the conclusion just stated, we have been deprived of the benefit of the light that would be shed on the question by decided cases and utterances of law writers directly dealing with the matter, we have been aided by many side lights in the law. The injuria of the Roman law, sometimes translated "injury," and at other times "outrage," and which is generally understood at this time to convey the idea of legal wrong, was held to embrace many acts resulting in damage for which the law would give redress. It embraced all of those wrongs which were the result of a direct invasion of the rights of the person and the rights of property which are enumerated in all of the commentaries on the common law, and which are so familiar to everyone at this time. But it included more. An out-private intercourse, and listening to what is rage was committed, not only by striking with the fists or with the club or lash, but also by shouting until a crowd gathered around one, and it was an outrage or legal wrong to merely follow an honest woman or young boy or girl; and it was declared in unequivocal terms that these illustrations were not exhaustive, but that an injury or legal wrong was committed "by numberless other acts." Sandars, Justinian, Hammond's ed. 499; Poste's Inst. of Gaius, 3d ed. 449. The punishment of one who had not committed any assault upon another, or impeded in any way his right of locomotion, but who merely attracted public attention to the other as he was passing along a public highway or standing upon his private grounds, evidences the fact that the

said, and then tattling it abroad. 10 Am. & Eng. Enc. Law, 2d ed. p. 440. A common scold was at common law indictable as a public nuisance to her neighborhood. 4 Bl. Com. 168. And the reason for the punishment of such a character was not the protection of any property right of her neighbors, but the fact that her conduct was a disturbance of their right to quiet and repose; the offense being complete even when the party indicted committed it upon her own premises. Instances might be multiplied where the common law has both tacitly and expressly recognized the right of an individual to repose and privacy. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, which is so

whatever upon the question as to his competency for the office, or the propriety of bestowing it upon him. One who holds public office makes a waiver of a similar character, -that is, that his life may be subjected at all times to the closest scrutiny in order to determine whether the rights of the public are safe in his hands,-but beyond this the waiver does not extend. So it is in refer

fully protected both in the Constitutions of the United States and of this state (Civil Code 1895, §§ 6017, 5713), is not a right created by these instruments, but is an ancient right, which, on account of its gross violation at different times, was preserved from such attacks in the future by being made the subject of constitutional provisions. The right to search the papers or houses of another for the purpose of enforc-ence to those belonging to the learned proing a claim of one individual against another in a civil proceeding, or in the maintenance of a mere private right, was never recognized at common law, but such search was confined entirely to cases of public prosecutions; and even in those cases the legality of the search was formerly doubted, and it has been said that it crept into the law by imperceptible practice. 25 Am. & Eng. Enc. Law, 2d ed. p. 145. The refusal to allow such search as an aid to the assertion of a mere private right, and its allowance sparingly to aid in maintaining the rights of the public, is an implied recognition of the existence of a right of privacy, for the law on the subject of unreasonable searches cannot be based upon any other principle than the right of a person to be secure from invasion by the public into matters of a private nature, which can only be properly termed his right of privacy.

The right of privacy, however, like every other right that rests in the individual, may be waived by him, or by anyone authorized by him, or by anyone whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of a purely private nature which express law or public policy demands shall be kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose, and still asserted for another; it may be waived in behalf of one class, and retained as against another class; it may be waived as to one individual, and retained as against all other persons. The most striking illustration of a waiver is where one either seeks or allows himself to be presented as a candidate for public office. He thereby waives any right to restrain or impede the public in any proper investigation into the conduct of his private life which may throw light upon his qualifications for the office, or the advisability of imposing upon him the public trust which the office carries. But even in this case the waiver does not extend into those matters and transactions of private life which are wholly foreign, and can throw no light

fessions, who by their calling place themselves before the public, and thereby consent that their private lives may be scrutinized for the purpose of determining whether it is to the interest of those whose patronage they seek to place their interests in their hands. In short, any person who engages in any pursuit, or occupation, or calling, which calls for the approval or patronage of the public submits his private life to examination by those to whom he addresses his call, to any extent that may be necessary to determine whether it is wise and proper and expedient to accord to him the approval or patronage which he seeks.

It may be said that to establish a liberty of privacy would involve in numerous cases the perplexing question to determine where this liberty ended, and the rights of others and of the public began. This affords no reason for not recognizing the liberty of privacy, and giving to the person aggrieved legal redress against the wrongdoer, in a case where it is clearly shown that a legal wrong has been done. It may be that there will arise many cases which lay near the border line which marks the right of privacy, on the one hand, and the right of another individual or of the public, on the other. But this is true in regard to numerous other rights which the law recognizes as resting in the individual. In regard to cases that may arise under the right of privacy, as in cases that arise under other rights where the line of demarcation is to be determined, the safeguard of the individual, on the one hand, and of the public, on the other, is the wisdom and integrity of the judiciary. Each person has a liberty of privacy, and every other person has, as against him, liberty in reference to other matters, and the line where these liberties impinge upon each other may in a given case be hard to define; but that such a case may arise can afford no more reason for denying to one his liberty of privacy than it would to deny to another his liberty, whatever it may be. In every action for a tort it is necessary for the court to determine whether the right claimed has a legal existence, and for the jury to determine whether such right has been invaded, and to assess the damages if their finding is in favor of the plaintiff. This burden which rests upon

the law authorizes a recovery of damages for wounded feelings in other torts of a similar nature, such damages would be recoverable in an action for a violation of this right.

the court in every case of the character referred to is all that will be imposed upon it in actions brought for a violation of the right of privacy. No greater difficulties will be encountered in such cases in determining the existence of the right than often will be The stumbling block which many have enencountered in determining the existence of countered in the way of a recognition of the other rights sought to be enforced by ac- existence of a right of privacy has been that tion. The courts may proceed in cases in- the recognition of such right would inevivolving the violation of a right of privacy tably tend to curtail the liberty of speech as in other cases of a similar nature, and and of the press. The right to speak and the juries may in the same manner pro- the right of privacy have been coexistent. ceed to a determination of those questions Each is a natural right, each exists, and which the law requires to be submitted for each must be recognized and enforced with their consideration. With honest and fear- due respect for the other. The right to conless trial judges to pass in the first instance vey one's thoughts by writing or printing upon the question of law as to the existence grows out of, but does not enlarge in any of the right in each case, whose decisions are way, the natural right of speech. It simply subject to review by the court of last resort, authorizes one to take advantage of those and with fair and impartial juries to pass mediums of expression which the ingenuity upon the questions of fact involved, and of man has contrived for broadening and assess the damages in the event of a recov-making more effective the influences of that ery, whose verdict is, under our law, in which was formerly confined to mere oral all cases subject to supervision and scrutiny utterances. by the trial judge, within the limits of a legal discretion, there need be no more fear that the right of privacy will be the occasion of unjustifiable litigation, oppression, or wrong than that the existence of many other rights in the law would bring about such results.

The right to speak and write and print has been at different times in the world's history seriously invaded by those who, for their own selfish purposes, desired to take away from others such privileges, and consequently these rights have been made the subject of provisions in the Constitutions of the United States and of this state. The Constitution of the United States prohibits Congress from passing any law "abridging the freedom of speech or of the press." Civil Code 1895, § 6014. The Constitution of this state declares: "No law shall ever be passed to curtail or restrain the liberty of speech or of the press." Civil Code 1895, § 5712. Judge Cooley says: "The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, ex

The liberty of privacy exists, has been recognized by the law, and is entitled to continual recognition. But it must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern. Publicity in many cases is absolutely essential to the welfare of the public. Privacy in other matters is not only essential to the welfare of the individual, but also to the well-being of society. The law stamp-cept so far as such publications, from their ing the unbreakable seal of privacy upon communications between husband and wife, attorney and client, and similar provisions of the law, is a recognition, not only of the right of privacy, but that, for the public good, some matters of private concern are not to be made public, even with the consent of those interested.

It therefore follows from what has been said that a violation of the right of privacy is a direet invasion of a legal right of the individual. It is a tort, and it is not necessary that special damages should have accrued from its violation in order to entitle the aggrieved party to recover. Civil Code 1895, § 3807. In an action for an invasion of such right the damages to be recovered are those for which the law authorizes a recovery in torts of that character, and, if

blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply, not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted." Cooley, Const. Lim. 5th ed. p. 521. In King v. St. Asaph, 3 T. R. 428, note, Lord Mansfield said: "The

liberty of the press consists in printing with- | rily make the publication of the truth the out any previous license, subject to the con- legal right of every person, nor prevent it sequence of law." Chancellor Kent, while from being in some cases a legal wrong. The judge of the supreme court of New York, 394, truth may be spoken, written, or printed People v. Croswell, 3 Johns. Cas. 337, 394, about all matters of a public nature, as well Appx., adopted as a definition of the phrase as matters of a private nature in which "liberty of the press" what was said by Gen. the public has a legitimate interest. The Hamilton in his brief in that case, where it truth may be uttered and printed in referwas set forth that "the liberty of the press ence to the life, character, and conduct of consists in the right to publish, with im- individuals whenever it is necessary to the punity, truth, with good motives, and for full exercise of the right to express one's justifiable ends, whether it respects gov- sentiments on any and all subjects that may ernment, magistracy, or individuals;" and be proper matter for discussion. But there the learned jurist declared that this defini- may arise cases where the speaking or printtion was perfectly correct, comprehensive, ing of the truth might be considered an and accurate. Mr. Justice Story defined the abuse of the liberty of speech and of the phrase to mean "that every man shall have press, as in a case where matters of purely a right to speak, write, and print his opin- private concern, wholly foreign to a legitiions upon any subject whatsoever, without mate expression of opinion on the subject any prior restraint, so, always, that he does under discussion, are injected into the disnot injure any other person in his rights, cussion for no other purpose and with no person, property, or reputation, and so, al- other motive than to annoy and harass the ways, that he does not thereby disturb the individual referred to. Such cases might public peace or attempt to subvert the gov- be of rare occurrence, but, if such should ernment." 2 Story, Const. § 1880. See also arise, the party aggrieved may not be with18 Am. & Eng. Enc. Law, 2d ed. p. 1125. out a remedy. The right of privacy is unquestionably limited by the right to speak and print. It may be said that to give liberty of speech and of the press such a wide scope as has been indicated would impose a very serious limitation upon the right of privacy, but, if it does, it is due to the fact that the law considers that the welfare of the public is better subserved by maintaining the liberty of speech and of the press than by allowing an individual to assert his right of privacy in such a way as to interfere with the free expression of one's sentiments, and the publication of every matter in which the public may be legitimately interested. In many cases the law required the individual to surrender some of his natural and private rights for the benefit of the public, and this is true in reference to some phases of the right of privacy as well as other legal rights. Those to whom the right to speak and write and print is guaranteed must not abuse this right; nor must one in whom the right of privacy exists abuse this right. The law will no more permit an abuse by the one than by the other. Liberty of speech and of the press is and has been a useful instrument to keep the individual within limits of lawful, decent, and proper conduct; and the right of pri

The Constitution of this state declares what is meant by "liberty of speech" and "liberty of the press" in the following words: "Any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." Civil Code 1895, § 5712. The right preserved and guaranteed against invasion by the Constitution is therefore the right to utter, to write, and to print one's sentiments, subject only to the limitation that in so doing he shall not be guilty of an abuse of this privilege, by invading the legal rights of others. The Constitution uses the word "sentiments," but it is used in the sense of thoughts, ideas, opinions. To make intelligent, forceful, and effective an expression of opinion, it may be necessary to refer to the life, conduct, and character of a person; and, so long as the truth is adhered to, the right of privacy of another cannot be said to have been invaded by one who speaks, or writes, or prints, provided the reference to such person, and the manner in which he is referred to, is reasonably and legitimately proper in an expression of opinion on the subject that is under investigation. It will therefore be seen that the right of privacy must in some particulars yield to the right of speech and of the press. It is well rec-vacy may be well used within its proper limognized that slander is an abuse of the liberty of speech, and that a libel is an abuse of the liberty to write and print; but it is nowhere expressly declared in the law that these are the only abuses of such rights. And that the law makes the truth in suits for slander and in prosecutions and suits for libel a complete defense may not necessa

its to keep those who speak and write and print within the legitimate bounds of the constitutional guaranties of such rights. One may be used as a check upon the other. but neither can be lawfully used for the other's destruction.

There is nothing in the ruling made in the present case to conflict with the deci

sion in Chapman v. Western U. Teleg. Co. | writings, and etchings, which the complain88 Ga. 763, 17 L. R. A. 430, 30 Am. St. ant in each case alleged were either pubRep. 183, 15 S. E. 901. It was held in that lished, or about to be published, without his case that in an action against a telegraph consent; and an injunction was granted in company for a failure to deliver a message the first case upon the ground that the pubin due time, and thereby preventing the lication of the recipes was the result of the sender from going to bedside of his sick breach of trust and confidence, and in the brother, damages on account of mental pain other two cases upon this ground as well and suffering could not be recovered. The as upon the ground that the complainant effect of that decision is simply that in an had a property right in the writings and action upon a contract, or in an action etchings. The Tuck and Pollard Cases dealt sounding in tort for a breach of duty with the publication of pictures; the former growing out of the contract, damages for being where one was employed to make copmental pain and suffering cannot be recov-ies of a picture owned by the plaintiff, and ered, when no other damages have been sustained. Mr. Justice Lumpkin, in his opinion, distinctly recognizes that where there has been an invasion of a right, from which the law would presume damages to flow, additional damages for pain and suffering might be recovered.

the latter where a photographer was employed to take a photograph of the complainant; the defendant in each instance being about to use the copies in his possession without the consent of the plaintiff. An injunction was granted in the Tuck Case on the ground that the sale of the copies would be a breach of contract, and in the Pollard Case the decision was rested upon the right of property, although a finding that the publication would be a breach of contract and of trust was authorized. Attention is called to the fact that in Prince Albert's Case [1 Macn. & G. 25] while the decision was put upon the ground above stated, Lord Cottenham declared that, with respect to the acts of the defendants, "pri

It seems that the first case in this country where the right of privacy was invoked as the foundation for an application to the courts for relief was the unreported case of Manola v. Stevens, which was an application for injunction to the supreme court of New York, filed on June 15, 1890. The complainant alleged that while she was playing in the Broadway Theatre, dressed as required by her role, she was, by means of a flash light, photographed surreptitious-vacy is the right invaded." ly and without her consent, from one of the boxes, by the defendant, and she prayed that an injunction issue to restrain the use of the photograph. An interlocutory injunction was granted ex parte. At the time set for a hearing there was no appearance for the defendant, and the injunction was made permanent. See 4 Harvard Law Rev. 195, note 7. The article in this magazine which refers to the case above mentioned appeared in 1890, and was written by Samuel D. Warren and Louis D. Brandeis. In it the authors ably and forcefully maintained the exist ence of a right of privacy, and the article attracted much attention at the time. It was conceded by the authors that there was no decided case in which the right of privacy was distinctly asserted and recognized, but it was asserted that there were many cases from which it would appear that this right really existed, although the judgment in each case was put upon other grounds when the plaintiff was granted the relief prayed. The cases especially referred to were Yovatt v. Wingard (1820) 1 Jac. & W. 394; Abernethy v. Hutchinson (1825) 3 L. J. Ch. 209; Prince Albert v. Strange (1849) 2 De G. & S. 652; Tuck v. Priester (1887) L. R. 19 Q. B. Div. 639; Pollard v. Photographic Co. (1888) L. R. 40 Ch. Div. 345. The first three of these cases related respectively to the publication of recipes,

It must be conceded that the numerous cases decided before 1890 in which equity has interfered to restrain the publication of letters, writings, papers, etc., have all been based either upon the recognition of a right of property, or upon the fact that the publication would be a breach of contract, confidence, or trust. It is well settled that, if any contract or property right or trust relation has been violated, damages are recoverable. There are many cases which sustain such a doctrine. Cases involving the right of privacy that have arisen since 1890 will now be considered:

In Mackenzie v. Soden Mineral Springs Co. (1891) 27 Abb. N. C. 402, 18 N. Y. Supp. 240, an injunction was granted by the New York supreme court, special term, at the instance of a physician, to restrain the publication of an unauthorized recommendation of a medicinal preparation under his name, upon the grounds that such publication would be injurious to his professional reputation, and "an infringement of his right to the sole use of his own name," and prejudicial to public interest. While this case was not based upon the right of privacy, that right was impliedly recognized.

The first reported ease in which the right of privacy was expressly recognized was the case of Schuyler v. Curtis (1891) 27 Abb.