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The Privacy Torts

The most influential source of privacy as a part of American legal culture was an article called The Right to Privacy in the 1890 Harvard Law Review. Written by Samuel D. Warren and Louis D. Brandeis, the article was inspired by the rise of newspapers, photography, and other technologies with the potential to expose people’s images and personal information to the public. Warren and Brandeis compared privacy to the law of defamation, to physical property rights, to intellectual property, and to the law of contract.

Their key concern, it is important to note, was with publicity given to sensitive personal information — undesirable and embarrassing scrutiny of private life by the press and public. Privacy as discussed by Warren and Brandeis did not extend to matters that were of legitimate public or general interest. And publication of facts by the individual concerned, or with that person’s consent, cut off that person’s right to privacy in that information.

In 1960, eminent legal scholar William L. Prosser documented how privacy as a legal concept had come to constitute four distinct torts. That is, a person whose privacy has been invaded could sue the invader for damages. These torts still exist today, and are contoured as four separate branches:

1. Intrusion upon seclusion or solitude, or into private affairs;
2. Public disclosure of embarrassing private facts;
3. Publicity which places a person in a false light in the public eye; and
4. Appropriation of name or likeness.