wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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" Tf he [the recipient of a letter] attempt to publish such letter or letters on ot
occasions, not justifiable, a court of equity will prevent the publication by an injunct
as a breach of private confidence or contract, or of the rights of the author; and a f
tiori, if he attempt to publish them for profit; for then it is not a mere breach of confid
or contract, but it is a violation of the exclusive copyright of the writer. . .. The gen
property, and the general rights incident to property, belong to the writer, whether
letters are literary compositions, or familiar letters, or details of facts, or letter
business. The general property in the manuscripts remains in the writer and his rep
sentatives, as well as the general copyright. Afortiori, third persons, standing in
privity with either party, are not entitled to publish them, to subserve their own pri
purposes of interest, or curiosity, or passion."
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2I2 HAR VARD LAW REVIEW.
the letter, have come under any obligation save what the law
declares; and, however expressed, that obligation is simply to
observe the legal right of the sender, whatever it may be, and
whether it be called his right of property in the contents of the
letter, or his right to privacy.1
A similar groping for the principle upon which a wrongful pub-
lication can be enjoined is found in the law of trade secrets.
There, injunctions have generally been granted on the theory of
a breach of contract, or of an abuse of confidence.2 It would, of
course, rarely happen that any one would be in the possession of
secret unless confidence had been reposed in him. But can it be
supposed that the court would hesitate to grant relief against one
who had obtained his knowledge by an ordinary trespass,- for
instance, by wrongfully looking into a book in which the secret
was recorded, or by eavesdropping ? Indeed, in Yovatt v. Win-
yard, I J. & W. 394 (1820), where an injunction was granted
against making any use of or communicating certain recipes for
veterinary medicine, it appeared that the defendant, while in the
plaintiff's employ, had surreptitiously got access to his book of
recipes, and copied them. Lord Eldon "granted the injunction,
upon the ground of there having been a breach of trust and con-
fidence;" but it would seem to be difficult to draw any sound
legal distinction between such a case and one where a mere stran-
ger wrongfully obtained access to the book.
1 "The receiver of a letter is not a bailee, nor does he stand in a character analogous to
that of a bailee. There is no right to possession, present or future, in the writer. The
only right to be enforced against the holder is a right to prevent publication, not to re-
quire the manuscript from the holder in order to a publication of himself." Per Hon. Joel
Parker, quoted in Grigsby v. Breckenridge, 2 Bush. 480, 489 (1857).
2 In Morison v. Moat, 9 Hare, 241, 255 (185i), a suit for an injunction to restrain
the use of a secret medical compound, Sir George James Turner, V. C., said: "That the
court has exercised jurisdiction in cases of this nature does not, I think, admit of any
question. Different grounds have indeed been assigned for the exercise of that jurisdic-
tion. In some cases it has been referred to property, in others to contract, and in others,
again, it has been treated as founded upon trust or confidence,-meaning, asl conceive,
that the court fastens the obligation on the conscience of the party, and enforces it
against him in the same manner as it enforces against a party to whom a benefit is given,
the obligation of performing a promise on the faith of which the benefit has been con-
ferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no
doubt as to the exercise of it."
8 A similar growth of the law showing the development of contractual rights into
rights of property is found in the law of goodwill. There are indications, as early as
the Year Books, of traders endeavoring to secure to themselves by contract the advantages
now designated by the term "' goodwill," but it was not until I743 that goodwill received
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209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00
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THE RIGHT TO PRIVACY. 213
We must therefore conclude that the rights, so protected, what-
ever their exact nature, are not rights arising from contract or
from special trust, but are rights as against the world; and, as
above stated, the principle which has been applied to protect
these rights is in reality not the principle of private property, un-
less that word be used in an extended and unusual sense. The
principle which protects personal writings and any other produc-
tions of the intellect or of the emotions, is the right to privacy,
and the law has no new principle to formulate when it extends this
protection to the personal appearance, sayings, acts, and to per-
sonal relation, domestic or otherwise.'
If the invasion of privacy constitutes a legal injfirica, the elements
for demanding redress exist, since already the value of mental
suffering, caused by an act wrongful in itself, is recognized as a
basis for compensation.
The right of one who has remained a private individual, to pre-
vent his public portraiture, presents the simplest -case for such ex-
tension; the right to protect one's self from pen portraiture, from
a discussion by the press of one's private affairs, would be a more
important and far-reaching one. If casual and unimportant state-
legal recognition as property apart from the personal covenants of the traders. See
Allan on Goodwill, pp. 2, 3.
'The application of an existing principle to a new state of facts is not judicial legis
lation. To call it such is to assert that the existing body of law consists practically
of the statutes and decided cases, and to deny that the principles (of which these cases
are ordinarily said to be evidence) exist at all. It is not the application of an existing
principle to new cases, but t-he introduction of a new principle, which is properly
termed judicial legislation.
But even the fact that a certain decision would involve judicial legislation should
not be taken as conclusive against the propriety of making it. This power has been
constantly exercised by our judges, when applying to a new subject principles of private
justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its
adaptability to new conditions, the capacity for growth, which has enabled it to meet the
wants of an ever changing society and to apply immediate relief for every recognized
wrong,have been its greatest boast.
" I cannot understand how any person who has considered the subject can suppose that
society could possibly have gone on if judges had not legislated, or' that there is any

" Tf he [the recipient of a letter] attempt to publish such letter or letters on ot

occasions, not justifiable, a court of equity will prevent the publication by an injunct

as a breach of private confidence or contract, or of the rights of the author; and a f

tiori, if he attempt to publish them for profit; for then it is not a mere breach of confid

or contract, but it is a violation of the exclusive copyright of the writer. . .. The gen

property, and the general rights incident to property, belong to the writer, whether

letters are literary compositions, or familiar letters, or details of facts, or letter

business. The general property in the manuscripts remains in the writer and his rep

sentatives, as well as the general copyright. Afortiori, third persons, standing in

privity with either party, are not entitled to publish them, to subserve their own pri

purposes of interest, or curiosity, or passion."

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

2I2 HAR VARD LAW REVIEW.

the letter, have come under any obligation save what the law

declares; and, however expressed, that obligation is simply to

observe the legal right of the sender, whatever it may be, and

whether it be called his right of property in the contents of the

letter, or his right to privacy.1

A similar groping for the principle upon which a wrongful pub-

lication can be enjoined is found in the law of trade secrets.

There, injunctions have generally been granted on the theory of

a breach of contract, or of an abuse of confidence.2 It would, of

course, rarely happen that any one would be in the possession of

secret unless confidence had been reposed in him. But can it be

supposed that the court would hesitate to grant relief against one

who had obtained his knowledge by an ordinary trespass,- for

instance, by wrongfully looking into a book in which the secret

was recorded, or by eavesdropping ? Indeed, in Yovatt v. Win-

yard, I J. & W. 394 (1820), where an injunction was granted

against making any use of or communicating certain recipes for

veterinary medicine, it appeared that the defendant, while in the

plaintiff's employ, had surreptitiously got access to his book of

recipes, and copied them. Lord Eldon "granted the injunction,

upon the ground of there having been a breach of trust and con-

fidence;" but it would seem to be difficult to draw any sound

legal distinction between such a case and one where a mere stran-

ger wrongfully obtained access to the book.

1 "The receiver of a letter is not a bailee, nor does he stand in a character analogous to

that of a bailee. There is no right to possession, present or future, in the writer. The

only right to be enforced against the holder is a right to prevent publication, not to re-

quire the manuscript from the holder in order to a publication of himself." Per Hon. Joel

Parker, quoted in Grigsby v. Breckenridge, 2 Bush. 480, 489 (1857).

2 In Morison v. Moat, 9 Hare, 241, 255 (185i), a suit for an injunction to restrain

the use of a secret medical compound, Sir George James Turner, V. C., said: "That the

court has exercised jurisdiction in cases of this nature does not, I think, admit of any

question. Different grounds have indeed been assigned for the exercise of that jurisdic-

tion. In some cases it has been referred to property, in others to contract, and in others,

again, it has been treated as founded upon trust or confidence,-meaning, asl conceive,

that the court fastens the obligation on the conscience of the party, and enforces it

against him in the same manner as it enforces against a party to whom a benefit is given,

the obligation of performing a promise on the faith of which the benefit has been con-

ferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no

doubt as to the exercise of it."

8 A similar growth of the law showing the development of contractual rights into

rights of property is found in the law of goodwill. There are indications, as early as

the Year Books, of traders endeavoring to secure to themselves by contract the advantages

now designated by the term "' goodwill," but it was not until I743 that goodwill received

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. 213

We must therefore conclude that the rights, so protected, what-

ever their exact nature, are not rights arising from contract or

from special trust, but are rights as against the world; and, as

above stated, the principle which has been applied to protect

these rights is in reality not the principle of private property, un-

less that word be used in an extended and unusual sense. The

principle which protects personal writings and any other produc-

tions of the intellect or of the emotions, is the right to privacy,

and the law has no new principle to formulate when it extends this

protection to the personal appearance, sayings, acts, and to per-

sonal relation, domestic or otherwise.'

If the invasion of privacy constitutes a legal injfirica, the elements

for demanding redress exist, since already the value of mental

suffering, caused by an act wrongful in itself, is recognized as a

basis for compensation.

The right of one who has remained a private individual, to pre-

vent his public portraiture, presents the simplest -case for such ex-

tension; the right to protect one's self from pen portraiture, from

a discussion by the press of one's private affairs, would be a more

important and far-reaching one. If casual and unimportant state-

legal recognition as property apart from the personal covenants of the traders. See

Allan on Goodwill, pp. 2, 3.

'The application of an existing principle to a new state of facts is not judicial legis

lation. To call it such is to assert that the existing body of law consists practically

of the statutes and decided cases, and to deny that the principles (of which these cases

are ordinarily said to be evidence) exist at all. It is not the application of an existing

principle to new cases, but t-he introduction of a new principle, which is properly

termed judicial legislation.

But even the fact that a certain decision would involve judicial legislation should

not be taken as conclusive against the propriety of making it. This power has been

constantly exercised by our judges, when applying to a new subject principles of private

justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its

adaptability to new conditions, the capacity for growth, which has enabled it to meet the

wants of an ever changing society and to apply immediate relief for every recognized

wrong,have been its greatest boast.

" I cannot understand how any person who has considered the subject can suppose that

society could possibly have gone on if judges had not legislated, or' that there is any