The Right to Privacy
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>> Hey everyone? Welcome back to the course.
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I'm Chris Stevens
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>> and I'm Cybrarian's instructor
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>> for US Information Privacy course.
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>> In less than 1.3, we're going to
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examine a landmark essay written by
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Samuel Warren and Louis Brandeis in
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the Harvard Law Review on December 15th of 1890,
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entitled the right to privacy.
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This assay, many believed for the first time,
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will examine the role of
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privacy as it applied
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to common law's practice at the turn of the century.
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No, it was Louis Brandeis and
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Samuel Warren that were dismayed about
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the lack of privacy protections
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that Americans had under common law.
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They were concerned about the intrusive nature
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of newspapers, yellow journalism.
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They were concerned about the advances in technology,
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the ability to take photographs
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without consent and then use that information,
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oftentimes for financial purposes.
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They were equally concerned about
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the lack of privacy protection from privacy harms and
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privacy invasions that were created by
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the invasion of an individual's personal life.
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Now, initially when they wrote this essay,
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they first examined property in the self,
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and then later that extended
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to private intellectual property.
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As always, we're going to have learning objectives.
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We're going to delve into more,
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in Brandeis' right to privacy.
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Later these men would become Supreme Court Justices.
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We'll examine the invasion of privacy and then we're
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talking about common law and privacy.
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Let's delve into it.
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This essay itself really shed light that
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individuals at times because of malicious intent,
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victims of embarrassment,
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mental anguish didn't have
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the proper protection under
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common law in the United States.
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Although we had defamation law at the time,
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still it was hard for individuals,
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American citizens that had been harmed in
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the mentions that I previously mentioned,
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to have redress under the law.
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What Warren and Brandeis positive was that,
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again from a common law perspective that courts
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needed to look more closely
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at the impact of these privacy invasions,
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privacy harms on the average American citizen.
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As I stated previously, again,
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they examined and stated that under common law,
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you have protections in person and in property.
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Even in looking at
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intellectual property
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itself, there were some protections,
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but they didn't think they went far
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enough to protect us from again, I said,
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malicious intent, embarrassment, mental anguish,
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and other types of privacy harms.
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It was Warren and Brandeis that looked to
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British common law cases as well as
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to American common law cases to support their argument.
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It was really, as you move through the essay,
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there was a focus on intellectual property.
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Their determination was that in certain cases,
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the invasive nature of the news media,
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the ability to make use of this information, images,
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photographs,
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didn't provide the adequate privacy protections
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for American citizens.
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Now, they later stated in the essay
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that it would take probably
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an act of Congress to amend
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the common law to incorporate these practices.
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But they realized that it might be
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a bridge too far here in
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the United States because
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to address this from a criminal perspective,
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They highlighted that the French
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had made it possible and incorporated into
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their version of common law
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the ability for French citizens to
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find protections under the law
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for the invasion of someone's privacy.
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Malicious publishing in the newspapers
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of content that could embarrass,
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an individual or cause mental anguish,
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but those rights did not exist here in
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United States expressively as it
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applied to certain types of communications.
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We saw this over the years,
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and what Warren and Brandeis suggested was that,
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especially as it applied to defamation law,
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the remedies for those privacy invasion themselves
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know could be something they looked at from deformation,
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casting someone in a false light,
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slander, and libel giving them some type of protections.
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This is an extremely important essay.
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What it highlights is that here in
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the United States at the turn of the 20th century,
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that there was a strong argument for American citizens to
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have privacy protections here in the United States,
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under the law and under common law.
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What Warren and Brandeis had hope was that over
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time we would have common-law evolve.
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We had these societal changes,
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as I mentioned earlier,
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technological advances like the ability to take
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photos and ensure that
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in those cases that we had as average
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Americans more controls over how
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that information was being used.
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I encourage you to read the essay, it's a great read.
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It's a little over 7,000
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words and so it won't take all day to read it,
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but I think it's important for privacy professionals
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to understand the intent and
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desire of Warren and Brandeis as it applied to
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privacy protections under American common law.
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As always, we're going to have a series of questions.
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Question 1 asks,
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which landmark essay did Brandeis and
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Warren published in the "Harvard Law Review"?
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You don't have to know the date, December 15th,
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1890, that would be B.
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Summary, this landmark essay
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really examined the protections under
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American common law than individuals have when they
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experience a privacy invasion or privacy harm,
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they might result in embarrassment,
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mental anguish that might have been done at
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a spite or malice as we've seen with yellow journalism.
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What they wanted was the course you look at
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evolving common-law to provide
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American cities with greater privacy protections.
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Now again, Warren and Brandeis we're realists,
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they understood that it
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would take an act of Congress relative
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pass all laws that
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give greater protection of American citizens.
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Also, in the cases of many criminal law,
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they thought that, that might be a bridge too far.
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