Source/Privacy Rights

History

What is the oldest source in any country that mentions this right?

Most sources say that the first mention of this right is The Right to Privacy written by Samuel Warren and Louis Brandeis and published in the Harvard Law Review in 1890. Both were Boston attorneys and Brandeis would go on to serve as a United States Supreme Court Justice for 23 years (Louis Brandeis, n.d.). In this essay, they note that the legal scope of rights broadens over time and posit that the right to life has expanded to “the right to be let alone,” which had become an increasingly difficult feat with new technologies (Warren & Brandeis, 1890, 193, 195).

Warren and Brandeis (1890) acknowledge that, at the time, there was little-to-no legal protection of this right. They look at defamation law and determine while it alludes to privacy law, there are limitations to privacy protection from this area of law as it only considers a damaged reputation, not instances in which an individual wishes something remained secret (Warren & Brandeis, 1890, 197; Bycer, 2014). They also looked at copywriting and publishing law, which only applies to one’s own work (Warren & Brandeis, 1890, 199). They determine that the right to privacy can extend beyond these areas of law as the right should be able to wholly prevent the depiction of private life (Warren & Brandeis, 1890, 218). In the last part of this essay, they set out limitations to the right of privacy – privileged information remains under defamation law (to allow for the operation of courts), privacy ceases with consent to publish, gossip is not in the realm of privacy law, and intention and truth do not prevent a breach of such right.

However, Warren and Brandeis cite at least two instances that predate The Right to Privacy which discuss the right to privacy. The earliest is the citing of an 1820 statement from Lord Cottenham, who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014). Additionally, they acknowledge that the right to privacy has already been regulated in France since 1868. Section 11 of the 1868 Loi Relative à la Presse (Press Law) says that all periodic writings about a private fact of life are violations punishable by a fine of 500 francs. Pursuit of the violation may only be undertaken by the affected party (Warren & Brandeis, 1890, 214, footnote 1).

Resources

Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx Louis Brandeis. (2020, Nov. 9). Britannica. Retrieved Sept. 8, 2021, from https://www.britannica.com/biography/Louis-Brandeis Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C