lunedì 9 aprile 2012

Right to privacy (from Wikipedia)

Brandeis and Warren Article

The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." More specifically, they also shift their focus on newspapers:
"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....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; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."
They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is."
Warren and Brandeis write that privacy rights should protect both businesses and private individuals. They describe rights in trade secrets and unpublished literary materials, regardless whether those rights are invaded intentionally or unintentionally, and without regard to any value they may have. For private individuals, they try to define how to protect "thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts." They describe such things as personal diaries and letters needing protection, and how that should be done: "Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract." They also define this as a breach of trust, where a person has trusted that another will not publish their personal writings, photographs, or artwork, without their permission, including any "facts relating to his private life, which he has seen fit to keep private." And recognizing that technological advances will become more relevant, they write:
"Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation."

In the United States today, "invasion of privacy" is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy:
  1. Intrusion of solitude: physical or electronic intrusion into one's private quarters.
  2. Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
  3. False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
  4. Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits.

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