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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 concepWhile, in reaching the conclusion just tion is the foundation of the common-law stated, we have been deprived of the benefit maxim that “every man's house is his casof the light that would be shed on the ques- tle;” and in Semayne's Case, 5 Coke, 91, 1 tion by decided cases and utterances of law Smith, Lead. Cas. 228, where this maxim writers directly dealing with the matter, we was applied, one of the points resolved was have been aided by many side lights in the "that the house of everyone is to him as his law. The injuria of the Roman law, some- castle and fortress, as well for his defense times translated “injury,” and at other against injury and violence as for his retimes “outrage,” and which is generally un pose.” “Eavesdroppers, or such as listen derstood at this time to convey the idea of under walls or windows or the eaves of a legal wrong, was held to embrace many acts house to hearken after discourse, and thereresulting in damage for which the law would upon to frame slanderous and mischievous give redress. It embraced all of those tales,” were a nuisance at common law, and wrongs which were the result of a direct in indictable, and were required, in the discrevasion of the rights of the person and the tion of the court, to find sureties for their rights of property which are enumerated in good behavior. 4 Bl. Com. 168. The offense all of the commentaries on the common law, consisted in lingering about dwelling houses and which are so familiar to everyone at and other places where persons meet for this time. But it included more. An out- private intercourse, and listening to what is rage was committed, not only by striking said, and then tattling it abroad. 10 Am. with the fists or with the club or lash, but & Eng. Enc. Law, 2d ed. p. 440. A common also by shouting until a crowd gathered scold was at common law indictable as a around one, and it was an outrage or legal public nuisance to her neighborhood. 4 Bl. wrong to merely follow an honest woman Com. 168. And the reason for the punishor young boy or girl; and it was declared in ment of such a character was not the prounequivocal terms that these illustrations tection of any property right of her neighwere not exhaustive, but that an injury or bors, but the fact that her conduct was a legal wrong was committed "by numberless disturbance of their right to quiet and reother acts.” Sandars, Justinian, Ham- pose; the offense being complete even when mond's ed. 499; Poste's Inst. of Gaius, 3d the party indicted committed it upon her ed. 449. The punishment of one who had own premises. Instances might be multinot committed any assault upon another, or plied where the common law has both tacitly impeded in any way his right of locomotion, and expressly recognized the right of an inbut who merely attracted public attention dividual to repose and privacy. The right of to the other as he was passing along a the people to be secure in their persons, public highway or standing upon his pri- houses, papers, and effects, against unreavate grounds, evidences the fact that the sonable searches and seizures, which is so
fully protected both in the Constitutions of whatever upon the question as to his compethe United States and of this state (Civil | tency for the office, or the propriety of beCode 1895, $8 6017, 5713), is not a right stowing it upon him. One who holds public created by these instruments, but is an an office makes a waiver of a similar character, cient right, which, on account of its gross —that is, that his life may be subjected at violation at different times, was preserved all times to the closest scrutiny in order to from such attacks in the future by being determine whether the rights of the public made the subject of constitutional provi- are safe in his hands,-but beyond this the sions. The right to search the papers or waiver does not extend. So it is in referhouses of another for the purpose of enforc-ence to those belonging to the learned proing a claim of one individual against an- fessions, who by their calling place themother in a civil proceeding, or in the main selves before the public, and thereby consent tenance of a mere private right, was never that their private lives may be scrutinized recognized at common law, but such search for the purpose of determining whether it is was confined entirely to cases of public pros- to the interest of those whose patronage ecutions; and even in those cases the le- they seek to place their interests in their gality of the search was formerly doubted, hands. In short, any person who engages in and it has been said that it crept into the any pursuit, or occupation, or calling, which law by imperceptible practice. 25 Am. & calls for the approval or patronage of the Eng. Enc. Law, 2d ed. p. 145. The refusal public submits his private life to examinato allow such search as an aid to the as- tion by those to whom he addresses his call, sertion of a mere private right, and its al- to any extent that may be necessary to delowance sparingly to aid in maintaining the termine whether it is wise and proper and rights of the public, is an implied recogni- expedient to accord to him the approval or tion of the existence of a right of privacy, patronage which he seeks. for the law on the subject of unreasonable It may be said that to establish a liberty searches cannot be based upon any other of privacy would involve in numerous cases principle than the right of a person to be the perplexing question to determine where secure from invasion by the public into mat- this liberty ended, and the rights of others ters of a private nature, which can only and of the public began. This affords no be properly termed his right of privacy. reason for not recognizing the liberty of
The right of privacy, however, like every privacy, and giving to the person aggrieved other right that rests in the individual, may legal redress against the wrongdoer, in a be waived by him, or by anyone authorized case where it is clearly shown that a legal by him, or by anyone whom the law empow. wrong has been done. It may be that there ers to act in his behalf, provided the effect will arise many cases which lay near the of his waiver will not be such as to bring border line which marks the right of pribefore the public those matters of a purely vacy, on the one hand, and the right of anprivate nature which express law or public other individual or of the public, on the policy demands shall be kept private. This other. But this is true in regard to numerwaiver may be either express or implied, but ous other rights which the law recognizes the existence of the waiver carries with it as resting in the individual. In regard to the right to an invasion of privacy only to cases that may arise under the right of prisuch an extent as may be legitimately nec- vacy, as in cases that arise under other essary and proper in dealing with the mat- rights where the line of demarcation is to ter which has brought about the waiver. It be determined, the safeguard of the indimay be waived for one purpose, and still vidual, on the one hand, and of the public, asserted for another; it may be waived in on the other, is the wisdom and integrity of behalf of one class, and retained as against the judiciary. Each person has a liberty of another class; it may be waived as to one privacy, and every other person has, as individual, and retained as against all other against him, liberty in reference to other persons. The most striking illustration of matters, and the line where these liberties à waiver is where one either seeks or allows impinge upon each other may in a given case himself to be presented as a candidate for be hard to define; but that such a case may public office. He thereby waives any right arise can afford no more reason for denying to restrain or impede the public in any prop. to one his liberty of privacy than it would er investigation into the conduct of his pri- to deny to another his liberty, whatever it vate life which may throw light upon his may be. In every action for a tort it is qualifications for the office, or the advisa- necessary for the court to determine whethbility of imposing upon him the public trust er the right claimed has a legal existence, which the office carries. But even in this case and for the jury to determine whether such the waiver does extend into those mat. right has been invaded, and to assess the ters and transactions of private life which damages if their finding is in favor of the are wholly foreign, and can throw no liglit plaintiff. This burden which rests upon
the court in every case of the character re- | the law authorizes a recovery of damages ferred to is all that will be imposed upon for wounded feelings in other torts of a it in actions brought for a violation of the similar nature, such damages would be reright of privacy. No greater difficulties will coverable in an action for a violation of this be encountered in such cases in determining right. 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. The right to speak and write by the trial judge, within the limits of a and print has been at different times in the legal discretion, there need be no more fear world's history seriously invaded by those that the right of privacy will be the occa- who, for their own selfish purposes, desired sion of unjustifiable litigation, oppression, to take away from others such privileges, or wrong than that the existence of many and consequently these rights have been other rights in the law would bring about made the subject of provisions in the Consuch results.
stitutions of the United States and of this The liberty of privacy exists, has been rec- state. The Constitution of the United States ognized by the law, and is entitled to con- prohibits Congress from passing any law tinual recognition. But it must be kept "abridging the freedom of speech or of the within its proper limits, and in its exercise press.” Civil Code 1895, § 6014. The Conmust be made to accord with the rights of stitution of this state declares: "No law those who have other liberties, as well as shall ever be passed to curtail or restrain the rights of any person who may be proper- the liberty of speech or of the press.” Civil ly interested in the matters which are Code 1895, § 5712. Judge Cooley says: claimed to be of purely private concern. “The constitutional liberty of speech and Publicity in many cases is absolutely es- of the press, as we understand it, implies a sential to the welfare of the public. Pri- right to freely utter and publish whatever vacy in other matters is not only essential the citizen may please, and to be protected to the welfare of the individual, but also against any responsibility for so doing, exto the well-being of society. The law stamp- cept so far as such publications, from their ing the unbreakable seal of privacy upon blasphemy, obscenity, or scandalous characcommunications between husband and wife, i ter, may be a public offense, or as by their attorney and client, and similar provisions falsehood and malice they may injuriously of the law, is a recognition, not only of the affect the standing, reputation, or pecuniary right of privacy, but that, for the public interests of individuals. Or, to state the good, some matters of private concern are same thing in somewhat different words, we not to be made public, even with the con- understand liberty of speech and of the sent of those interested.
press to imply, not only liberty to pubIt therefore follows from what has been lish, but complete immunity from legal censaid that a violation of the right of privacy sure and punishment for the publication, so is a direet invasion of a legal right of the long as it is not harmful in its character, individual. It is a tort, and it is not neces- when tested by such standards as the law sary that special damages should have ac-affords. For these standards we must look crued from its violation in order to entitle to the common-law rules which were in force the aggrieved party to recover. Civil Code when the constitutional guaranties were es1895, § 3807. In an action for an invasion tablished, and in reference to which they of such right the damages to be recovered have been adopted.” Cooley, Const. Lim. are those for which the law authorizes a 5th ed. p. 521. In King v. St. Asaph, 3 T. recovery in torts of that character, and, if '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 dis. not 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 un
The Constitution of this state declares questionably limited by the right to speak what is meant by “liberty of speech” and and print. It may be said that to give lib. “liberty of the press" in the following words: erty of speech and of the press such a wide “Any person may speak, write, and publish scope as has been indicated would impose a his sentiments on all subjects, being respon- very serious limitation upon the right of sible for the abuse of that liberty.” Civil privacy, but, if it does, it is due to the Code 1895, $ 5712. The right preserved and fact that the law considers that the welfare guaranteed against invasion by the Consti- of the public is better subserved by maintution is therefore the right to utter, to taining the liberty of speech and of the press write, and to print one's sentiments, sub- than by allowing an individual to assert his ject only to the limitation that in so doing right of privacy in such a way as to inter. he shall not be guilty of an abuse of this fere with the free expression of one's senprivilege, by invading the legal rights of timents, and the publication of every matter others. The Constitution uses the word in which the public may be legitimately in. “sentiments,” but it is used in the sense of terested. In many cases the law required thoughts, ideas, opinions. To make intel the individual to surrender some of his ligent, forceful, and effective an expression natural and private rights for the benefit of of opinion, it may be necessary to refer to the public, and this is true in reference to the life, conduct, and character of a person; some phases of the right of privacy as well and, so long as the truth is adhered to, the as other legal rights. Those to whom the right of privacy of another cannot be said right to speak and write and print is guarto have been invaded by one who speaks, or anteed must not abuse this right; nor must writes, or prints, provided the reference to one in whom the right of privacy exists such person, and the manner in which he is abuse this right. The law will no more perreferred to, is reasonably and legitimately mit an abuse by the one than by the other. proper in an expression of opinion on the Liberty of speech and of the press is and subject that is under investigation. It will ' has been a useful instrument to keep the therefore be seen that the right of privacy individual within limits of lawful, decent, must in some particulars yield to the right and proper conduct; and the right of priof speech and of the press. It is well rec- vaey may be well used within its proper limognized that slander is an abuse of the lib. its to keep those who speak and write and erty of speech, and that a libel is an abuse print within the legitimate bounds of the of the liberty to write and print; but it is constitutional guaranties of such rights. nowhere expressly declared in the law that One may be used as a check upon the other, these are the only abuses of such rights. And but neither can be lawfully used for the that the law makes the truth in suits for other's destruction. slander and in prosecutions and suits for There is nothing in the ruling made in libel a complete defense may not necessa- the present case to contlict with the decis
sion in Chapman r. 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 sus- the latter where a photographer was tained. Mr. Justice Lumpkin, in his opin- ployed to take a photograph of the comion, distinctly recognizes that where there plainant; the defendant in each instance has been an invasion of a right, from which being about to use the copies in his posthe law would presume damages to flow, ad session without the consent of the plaintiff. ditional damages for pain and suffering An injunction was granted in the Tuck might be recovered.
Case on the ground that the sale of the It seems that the first case in this coun- copies would be a breach of contract, and try where the right of privacy was invoked in the Pollard Case the decision was rested as the foundation for an application to the upon the right of property, although a findcourts for relief was the unreported case ing that the publication would be a breach of Manola v. Stevens, which was an appli- of contract and of trust was authorized. Atcation for injunction to the supreme court of tention is called to the fact that in Prince New York, filed on June 15, 1890. The Albert's Case [1 Macn. & G. 25] while the complainant alleged that while she was decision was put upon the ground above playing in the Broadway Theatre, dressed stated, Lord Cottenham declared that, with as required by her role, she was, by means respect to the acts of the defendants, "priof a flash light, photographed surreptitious- vacy is the right invaded.” ly and without her consent, from one of the It must be conceded that the numerous boxes, by the defendant, and she prayed that cases decided before 1890 in which equity an injunction issue to restrain the use of the has interfered to restrain the publication of photograph. An interlocutory injunction letters, writings, papers, etc., have all been was granted er parte. At the time set for based either upon the recognition of a right a hearing there was no appearance for the of property, or upon the fact that the publidefendant, and the injunction was made per- cation would be a breach of contract, conmanent. See 4 Harvard Law Rev. 195, note fidence, or trust. It is well settled that, if 7. The article in this magazine which re- any contract or property right or trust relafers to the case above mentioned appeared in tion has been violated, damages are recov1890, and was written by Samuel D. Warren erable. There are many cases which sustain and Louis D. Brandeis. In it the authors such a doctrine. Cases involving the right ably and forcefully maintained the exist- of privacy that have arisen since 1890 will ence of a right of privacy, and the article now be considered: attracted much attention at the time. It In Mackenzie v. Soden Mineral Springs was conceded by the authors that there was Co. (1891) 27 Abb. N. C. 402, 18 N. Y. no decided case in which the right of pri- Supp. 240, an injunction was granted by the vacy was distinctly asserted and recognized, New York supreme court, special term, but it was asserted that there were many at the instance of a physician, to restrain cases from which it would appear that this the publication of an unauthorized recomright really existed, although the judgment mendation of a medicinal preparation under in each case was put upon other grounds his name, upon the grounds that such pubwhen the plaintiff was granted the relief lication would be injurious to his profesprayed. The cases especially referred to sional reputation, and "an infringement of were Yovatt v. Wingard (1820) 1 Jac. & his right to the sole use of his own name,” W. 394; Abernethy v. Hutchinson (1825) and prejudicial to public interest. While 3 L. J. Ch. 209; Prince Albert v. Strange this case was not based upon the right of (1849) 2 De G. & S. 652; Tuck v. Priester privacy, that right was impliedly recog(1887) L. R. 19 Q. B. Div. 639; Pollard v. nized. Photographic Co. (1888) L. R. 40 Ch. Div. The first reported case in which the right 345. The first three of these cases related of privacy was expressly recognized was the respectively to the publication of recipes, case of Schuyler v. Curtis (1891) 27 Abb.