The concept of a legal right to privacy is a relatively recent and uniquely American invention. Privacy was not recognized as a common law right in England, Australia, New Zealand, Canada or other jurisdictions with which we share a common legal heritage.[1] The recognition of privacy rights has spread rapidly in recent years, however, as the result of influences such as the globalization of information via the Internet, the European Union’s Convention on Human Rights and the United Kingdom’s Human Rights Act of 1998.
Most legal commentators and scholars agree that the legal concepts underlying modern privacy rights were first articulated in an 1890 Harvard Law Review article entitled “The Right to Privacy” written by two young Boston lawyers, Samuel Warren and Louis Brandeis.[2] Because the Warren-Brandeis article had a significant impact on the recognition and development of the four "invasion of privacy" torts, it has been called the most influential law review article in history.[3] Much of its prestige undoubtedly stems from the subsequent personal fame of Brandeis, who became a legendary justice of the Supreme Court of the United States. When “The Right to Privacy” was published, however, Brandeis was only 33 years old. Moreover, in recent years the underlying premise of the article — i.e., that the Boston newspapers of the 1880s were scandal sheets that pried incessantly into the private lives of prominent persons — has been significantly discredited by several legal and historical scholars.[4]
Despite the questions that have been raised concerning the validity of “The Right to Privacy” in recent years, its influence has been undeniable, and state after state has recognized claims for invasion of privacy since its publication.
[1] Frederick Davis, What do We Mean By "Right To Privacy"?, 4 S. Dak. L. Rev. 1,4 (1959). See also, Rodney A. Smolla, Suing the Press, 123 (1986).
[2] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.. 193 (1890).
[3] Dean Prosser cites the article as “perhaps the outstanding illustration of the influence of legal periodicals upon the courts,” William L. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971), and Justice Thurgood Marshall has referred to it as “the most famous of all law review articles.” Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 80 (1971) (dissenting opinion). One commentator suggests that no “other law review article, before or since, has achieved greater fame or recognition.” Davis, supra note 1.
[4] See, e.g.,James Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 183: Demystifying A Landmark Citation, 13 Suffolk U.S. Rev. 875 (1979); Don R. Pember, Privacy and the Press: The Law, the Mass Media, and the First Amendment (1970).
