Notes on The Right To Privacy

Common Law

Common law is the body of law, based on local custom and enacted by judges. It is law made at the bench. Contrast statutory law, which are laws decreed by legislators. Common law is practiced in political systems of English patrimony, such as America and England. It is not part of the legal structure of Continental Europe, for instance.

English common law began with the Norman Conquest of 1066. Previously, England had Saxon laws. By way of contrast, Saxon laws treated crime as a personal wrong for which (monetary) compensation was due to the injured; under Norman reforms, serious crimes, prosecuted as public affairs, for which the guilty might forfeit life or property. Although the Normans came across the English channel from France, and spoke French, Norman law in England was created fresh. Neither French legal precedent nor French local customs were ever referred to. Norman law was centralized in the Curia Regis (King's court) and judges from the central authority "rode circuit" to administer consistently this law throughout the King's dominion, i.e. all of England.

Common versus Statutory Law

The tension between common and statutory law in England and the United States is an important feature in the development of law. Common law was generally supported by the lawyers, an occupation invented during Edward I, 1272-1307, and circled around the Inns of Court in London, where a practical education in law was given to barristers. More recently, Sir Edward Coke's 4 volume Institutes of the Lawes of England, 1628-1644 and Sir William Blackstone's Commentaries on the Laws of England, 1765-1769, came to the support of common law.

However, fifteenth century civil unrest in England and the Continent applied pressure in the other direction: for a formally reasoned body of legislative laws. Among the great written documents codifing English common law are the Magna Carta of 1215, the English Bill of Rights of 1689, and the American Bill of Rights of 1789.

Notes on The Right to Privacy

• Warren and Brandeis claim that we do have a right to privacy.
• They argue that this right comes out of the fundamental common law principal "that the individual shall have full protection in person and in property".
• That the definition of person and property must expand according to the times, and in particular, at this time (1890), in response to "recent inventions and business methods."
• That such expansion has precedent in libel and copyright law, where person and property were extended to mean reputation and intellectual property.
• However, privacy cannot be subsumed under libel and copyright law:
  • not libel, since "the law of slander and libel are in their nature material rather than spiritual";
  • not copyright, since "the aim of those statutes is to secure to the author ... the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication."
• Hence privacy invokes a new principle, "not the principle of private property, but that of an inviolate personality".
• They then describe and delimit the right to privacy further:
  1. "The right to privacy does not prohibit any publication of matter which is of public or general interest."
  2. "The right to privacy does no prohibit the communication ... when the publication is made under circumstances which would renter it a privileged communication".
  3. "The law would probably not grant any redress for the invasion of privacy by oral publication."
  4. "The right to privacy ceases upon the publication of the facts by the individual, or with his consent".
  5. "The truth of the matter published does not afford a defense."
  6. "The absence of 'malice' in the publisher does not afford a defence."