It took nearly 50 years for Justice Brandeis‘ ground-breaking law review article on the right to privacy to begin to widely influence judicial decisions. By 1948, though, a dozen or so states had begun to recognize the right as a part of common law — i.e., not as a Constitutional right nor as a statutory right, but rather as part of judge-made (or, in the sense of an earlier era, judge-recognized law).
But what was the right that judges were beginning to recognize? Wilfred Feinberg‘s 1948 “Recent Developments in the Law of Privacy” suggests that the doctrine had developed further even as it was applied by judges:
[I]n addition to the interest in “privacy” as ordinarily understood, at least three separate interests were protected: interest in one’s history, interest in one’s likeness, interest in one’s name.
Interestingly, none of the interests Feinberg decides encapsulates a sense of a “right to privacy” as being the right of a citizen to be free from governmental interference in their private life or as an extension of, say, the Fourth Amendment. Instead, they are quite evidently an extension of Brandeis’ original reaction against newspapers digging into an individual’s life and sharing that for the prurient interest of a growing public.
So, first, the protection of “life history” is the right of a person to “keep private life private,” but it does not extend to protection against disclosure if “the public interest in obtaining information outweighs protection of his personal interest.”
Second, Feinberg describes the interest held by a person “in his likeness [which] can be injured either by disclosure or appropriation.” Disclosure via publication of a photograph of a person in public is not actionable. He posits a theory of waiver: “by exposing your countenance to public view, you waive the right to protest disclosure to others of your likeness caught in a photograph.” (Compare this idea to the idea of a “reasonable expectation of privacy” as developed later in Katz.)
Appropriation, on the other hand, is actionable, since any waiver only implies “consent to having others see your face, not consent to having the defendant use it for his own financial benefit.” Additionally, enforcement (unlike with disclosure) is easier, and likelihood of actual harm increased, so so many more people are exposed to the image.
Thirdly, Feinberg discusses the “Interest in Name”: appropriation of a person’s name without their consent is actionable on the basis of a privacy violation. Thus, it is not merely “fraudulent” (and thus actionable on a criminal basis or on the basis of reliance or similar by the recipient), but also on the basis of violating a person’s interest in their own name per se.
And finally, Feinberg returns to discuss what is meant by the more “normal” definition of a “right to privacy”: “i.e., not to be looked at, not to be followed, not to be written to, etc.” (He refers to Pritchett v. Board of Comm’rs (1908), Hawks v. Yancey (1924), and Shultz (1913) to support his description.)
This right does include protection from eavesdropping devices, “entirely apart from trespass” (see McDaniel v. Atlanta Coca-Cola Bottling Co. (1939)). Nonetheless, Feinberg’s discussion situations the right as being quite similar to trespass in many respects.
Feinberg’s discussion is an intriguing look into the state of privacy law as of 1948, and situate it squarely in line with Brandeis’ article, which also reacted to prevent the potential harm of new technologies:
The possibilities of injury to the interests [the privacy doctrine] protects will increase with wide commercialization of such new means of communication as television and facsimile newspapers.
- Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
- Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
- Do We Have a Right to Privacy? (socyberty.com)