The Right to Privacy

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Time
7 hours 2 minutes
Difficulty
Intermediate
CEU/CPE
7
Video Transcription
00:01
Hey everyone, Welcome back to the course,
00:04
I'm Chris Davis and I'm cyberia instructor for US
00:08
Information privacy course.
00:10
You know, in less than 1.3, we're going to examine
00:14
a landmark essay written by
00:17
Salmon Warren and louis BRANDEIS and the Harvard Law Review
00:21
On December 15, 1890 entitled The Right to Privacy.
00:27
This essay, you know, many believe for the first time really examined
00:32
the role of privacy
00:34
as it applied to common large practice at the turn of the century.
00:40
You know, it was uh Louis BRANDEIS and Samuel warn, there were somewhat Despatie about the dismayed about the lack of
00:49
privacy protections that americans had
00:52
under common law.
00:55
They were concerned about the intrusive nature of
00:59
newspapers, yellow journalism.
01:03
They were concerned about the advances in technology,
01:06
the ability to take photographs without consent and then use that information. Oftentimes for financial purposes,
01:15
they were equally concerned about
01:18
the lack of privacy protections from privacy harms and privacy invasions that were created about the invasion of an individual's
01:30
personal life.
01:33
Now, initially, when they wrote this essay,
01:36
you know, they first examined uh
01:38
you know, property and the self. And then later that extended the private
01:42
intellectual property.
01:48
As always, we're gonna have learning objectives,
01:52
We're going to delve into warren and BRANDEIS is uh right to privacy. Later, these men would become Supreme Court justices,
02:00
we'll examine the invasion of privacy and then we're talking about
02:04
Common law and privacy.
02:07
So let's delve into it. You know, this essay itself
02:12
really shared like that individuals at times because of malicious intent,
02:19
victims of embarrassment, mental anguish
02:23
had didn't have the appropriate protections under common law in the United States,
02:29
although, you know, we had defamation law at the time. Still it was hard for individuals.
02:36
American citizens that have been harmed in the mentions that I previously mentioned
02:42
to have redress under the law.
02:46
And so what worn and brand guys,
02:49
you know, positive was that again, from a common law perspective that, you know, courts needed to look more closely at the impact of these privacy invasions, privacy harms on the average american citizen,
03:04
as I stated previously. Again, they examine and stated that under common law, you know, you have protections in person and in property
03:15
and even in looking at intellectual property itself, there were some protections, but they didn't think they went far enough
03:23
to protect us from. Again, like I said, malicious intent,
03:29
uh, embarrassment,
03:30
mental anguish
03:34
and other types of privacy harms,
03:38
you know, was
03:39
warren and BRANDEIS that looked to british common law cases as well as to
03:46
american common law cases to support their argument.
03:53
You know, it was really as you move through the S. A it was a focus on intellectual property
04:02
and, you know, their determination was that in certain cases, you know, the invasive nature of
04:10
the news media,
04:13
the ability to, you know, make use of this information, images, photographs,
04:19
um, didn't provide the adequate privacy protections
04:23
for american citizens.
04:27
Now, they later stated in the essay that,
04:30
uh, you know, it would take probably an act of Congress
04:35
to amend the law, Common law
04:39
to incorporate these practices,
04:42
but they realized that it might be
04:45
a bridge too far
04:46
here in the United States, because to
04:50
addresses from a criminal
04:53
perspective,
04:55
they highlighted that the french had made it possible and incorporate into their version of common law, the ability for french citizens to find protections under the law
05:08
for the invasion of someone's privacy.
05:11
You know, malicious publishing in the newspapers
05:15
of content that could embarrass an individual or cost
05:19
uh, mental anguish.
05:21
But those rights did not exist here in the United States, especially as it applied to certain types of communications.
05:32
And so,
05:34
you know, we saw this,
05:36
you know, over the years, and what Warren and BRANDEIS suggests it was that,
05:42
you know, especially as it applied to defamation law,
05:47
um, the remedies for those private invasion themselves.
05:53
No, it could be something that looked at from defamation. You know, casting someone in a false light,
05:59
you know, slander and libel, giving them some type of protections.
06:03
This is an extremely
06:06
important essay.
06:09
You know, what it highlights is that, you know, here in the United States at the turn of the 20th century,
06:15
that there was a strong argument for american citizens to have
06:19
privacy protections here in the United States under the law
06:23
and under common law.
06:27
And so what Warren and BRANDEIS had hoped was that over time that we would have common law evolved
06:34
when we had the societal changes. As I mentioned earlier,
06:39
technological advances, like the ability to take photos
06:44
and ensure that in those cases that we had as average americans more controls over how that information was being used.
06:54
I encourage you to read the essay.
06:55
It's a great read.
06:57
It's a little over 7000 words and so it won't take all day to read it. But I think it's important for privacy professionals to understand the intent
07:05
uh and desire of Warren and BRANDEIS as it applied to privacy protections under american common law.
07:15
As always, we're gonna have a series of questions
07:18
Question one asked which landmark asset at BRANDEIS and Warren published in the Harvard Law Review.
07:26
You don't have to know the date, December 15, 1890.
07:30
Yeah,
07:31
that would be being
07:35
and summary this landmark essay really examined
07:40
the protections under american common law that individuals have when they experience a privacy invasion or privacy harm,
07:46
they might result in embarrassment,
07:49
mental anguish
07:51
that might have been done out of spite
07:54
or malice, as we've seen with yellow journalism.
07:59
And so what they wanted was, you know, the course you look at
08:03
evolving common law provide american cities with with greater privacy protections.
08:11
Now again, warren and BRANDEIS were realist.
08:15
They understood that, you know, it would take an act of Congress really to pass those laws that give greater protection to american citizens,
08:26
and also in the cases of, you know, men in criminal law, they thought that that might be a bridge too far.
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