The Right to Privacy

Nicholas Carroll
August 21, 2013

The concept of "right to privacy" is a relatively new one in American law, flowing from a paper written by Samuel Warren and Louis Brandeis for the Harvard Law Review in 1890, long before Brandeis became a U.S. Supreme Court justice. It gradually became part of American law, expressed in the Supreme Court case Olmstead v. U.S. (1928).

The right to privacy is an odd creation. It gets lumped together with laws against defamation, but it's almost the opposite. Basically, the right to privacy says you have the right to keep your private life private – including the truth.

The right to privacy might be useful when a kook makes a hobby out of you. I write "might" because most cases involving right to privacy relate to government intrusion into individual privacy, usually in areas such as abortion, marriage, or medical records. I don't see it used as a cause for action much in defamation. Where it seems most likely to come into play is when a kook is after you.

Let's imagine that a kook has taken the trouble to interview all your former co-workers for the last 10 years (they say you're lazy), check out your elementary school report cards (C average), your credit rating (poor), and your weight (over-weight as compared to the maximum recommended weight for your height), and then published all this on the Internet. Libel? Possibly not – if it's all fact. As mentioned, if the kook has $50,000 to defend themselves in court, "truth" might hold up as a defense. But – a violation of your right to privacy? Probably so. I can spend ten years researching the life of former President Bill Clinton, write a book about it, and it doesn't violate his right to privacy. Clinton is a public figure for the rest of his life.

If I do the same to you, a court could find that I'm way over the line. However, the specific cause of action is likely to flow right back to defamation law, specifically painting in a false light – assembling facts in a way that injure your reputation.

After which you'll probably be right back to the two effective causes for collecting damages in defamation cases, emotional distress and financial harms. All that is assuming that you are a private figure. If you're a "public figure", you have a lot less right to privacy.

(I've seen other interpretations of violating the right to privacy, such as "appropriating the plaintiff's identity for the defendant's benefit" or "unreasonably intruding upon the seclusion or solitude of the plaintiff." However these may be primarily criminal matters, not civil. Appropriating identity – if it was done as fraud – is now commonly seen as identity theft, and unreasonably intruding is called stalking these days. Note, though, that criminal charges are often followed by a lawsuit, as when a murder trial is followed by a "wrongful death" lawsuit – even if the person charged with murder was found innocent in criminal court. The poster boy example of that would be the O.J. Simpson case, in which the victim's family won their lawsuit even after a criminal court had aquitted Simpson.)

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