The Right to Privacy

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Privacy, meaning the right to be left alone, has intellectual roots tracing back to the 19th century. On December 15, 1890, Samuel D. Warren and Louis D.

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Brandeis had their article “The Right to Privacy” published in the Harvard Law Review. This article was highly regarded as one of the exceptional examples of the effect legal journals have on American law, and was the first of many future law review discussions. “It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and if it does what the nature and extent of such protection is” (Gregory, Kalven, and Epstein 1133). Warren and Brandeis stressed the importance and necessity for some form of protection for the private individual when the press is overstepping their boundaries and the indecency their gossip creates. Several decades later, in August of 1960, William L. Prosser published his article “Privacy” in the California Law Review. In this article he outlined the four classifications of privacy law which are as follows:

  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. The second classification refers to publication of private matters, which will be the main focus of research and analysis for this paper. The most common definition of public disclosure of private facts is set forth in the Restatement (Second) of Torts and is adopted by many states: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that, a.) would be highly offensive to a reasonable person, and b.) is not of legitimate concern to the public” (Gregory, Kalven, and Epstein 1152). This particular issue of invasion of privacy is weighed against the First Amendment’s protections of free speech. Many judges and legal scholars find this particular tort to be the least favorable out of the four because it goes against the certain First Amendment principles. “There is an undoubted freedom of the press, guaranteed by the constitution, which justifies the publication of news and all other matters of legitimate public interest and concern” (Prosser 642). Unlike libel or slander (defamation) truth of the private matter and disclosed information is not necessarily a defense. The second requirement, “is not of legitimate concern to the public” gives the media what might be called the “newsworthiness defense”. However, a plaintiff must prove that an article isn’t newsworthy despite its publication, this is because the public interest of the subject is not presumed by the matter’s publication.

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