Personal Injury Law
How did the invasion of privacy tort originate?
Invasion of privacy has a very unusual beginning—a law review article. Boston lawyer Samuel Warren became upset that some of the local press reported about the conduct of Warren’s wife at Beacon Hill parties. Warren believed that the press should not be allowed to write about such private matters. He asked his law partner and former Harvard law classmate Louis Brandeis (a future United States Supreme Court Justice) to draft an article arguing for a right of privacy.
Brandeis and Warren published their article “A Right to Privacy” in the 1890 edition of the Harvard Law Review. They argued that the law should protect a person’s right to be let alone. They warned:
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.”. Of the desirability — indeed of the necessity — of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.
Courts at first were reluctant, fearing that there would be too many frivolous lawsuits of dubious character. However, gradually the courts began to recognize invasion of privacy. Today nearly every state recognizes all four privacy sub-torts in its common law.