Page:Right to Privacy.djvu/25

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217
THE RIGHT TO PRIVACY.
  1. for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.[1] Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.[2]

  2. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.

    The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.[3] The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.[4]


  1. Wason v. Walters, L. R. 4 Q. B . 73; Smith v. Higgins, 16 Gray, 251; Barrows v. Bell, 7 Gray 331.
  2. This limitation upon the right to prevent the publication of private letters was recognized early:—

    "But, consistently with this right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them ; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom v. Marsh, 2 Story, 100, 110, 111 (1841).

    The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright, pp. 136–139.

  3. Townshend on Slander and Libel, 4th ed., § 18; Odgers on Libel and Slander, 2d ed., p. 3.
  4. "But as long as gossip was oral, it spread, as regards anyone individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The Rights of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p . 66 .

    Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.