Page:Right to Privacy.djvu/26

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218
HARVARD LAW REVIEW.
  1. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

    This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided establish also what should be deemed a publication,—the important principle in this connection being that a private communication of circulation for a restricted purpose is not a publication within the meaning of the law.[1]

  2. The truth of the matter published does not afford a defence.

    Obviously this branch of the law should have no concern with the truth of falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.[2]

  3. The absence of "malice" in the publisher does not afford a defence.

    Personal ill-will is not an ingredient of the offence, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an action for libel or slander at common law, except in rebuttal of some defence, e.g., that the occasion rendered the communication privileged, or, under the statutes in this State and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is equally complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong


  1. See Drone on Copyright, pp. 121, 289, 290.
  2. Compare the French law.

    "En prohibant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'in' tention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur la vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, i868. Rivière Code Français et Lois Usuelles, App. Code Penn. 20 n(a).