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 PRIVACY.

T HE misadventures of a famous amateur golfer a few months

ago in the law Courts make it worth while to investigate
the position of privacy in law. He was the plaintiff in Tolley
v. J. S. Fry Sons, Ltd. [1930] 1 K. B. 467, and brought an
action for libel against a firm of chocolate manufacturers who
had published, without his knowledge or consent, as an adver-
tisement of their goods, a caricature of him in which he was
depicted as playing golf, with a packet of their chocolate pro-
truding from his pocket. A caddy was also represented with him,
and he too had a packet of chocolate, the excellence of which he
likened in some deplorable doggerel verse to the excellence of
the plaintiff's drive. The gist of the plaintiff's action was that
this advertisement reflected adversely on his status as an amateur
golfer, for it implied that he had, for gain and reward, allowed
his portrait to be used for advertising purposes, and that he had
thus prostituted his reputation as an amateur. Acton J. held
that the advertisement was reasonably capable of bearing the
meaning alleged by the plaintiff. The jury returned a verdict
for £1,000 damages. The Court of Appeal (Greer and
Slesser L.JJ., Scrutton L.J. dissenting) held that the defendants
were not liable, as there was no evidence of any special facts
known to those to whom the advertisement was published
causing them to attach to it the meaning alleged in the
innuendo; and that the advertisement was therefore incapable
of a defamatory meaning. The whole Court held that, in any
event, the damages were excessive.
Now, so far as the law of defamation is concerned, Tolley's
Case calls for no comment except the respectful one that it was
rightly stated; and whether that law was correctly applied to
the facts of the case (which was the real point on which the
Court of Appeal differed) is also beside the mark here. The
question before us is whether there is, or ought to be, a 'right
of privacy,' infringement whereof constitutes a tort which is
altogether independent of the tort of defamation.
English law is pretty nearly destitute of literature on the
topic, and the writers who have dealt with it have drawn no
24 The Law Quarterly Review. [No. CLXXXV.

distinction between privacy with respect to one's property and

privacy with respect to one's person.'
We had better begin with a definition of 'privacy,' and our
law of tort is cast so much more in terms of breaches of duties
rather than in positive statements of rights that we may approach
the definition by the former path in preference to the latter, and
say that infringement of privacy is unauthorized interference
with a person's seclusion of himself or of his property from the
prublic. So far as it refers to seclusion of oneself (as distinct
from one's property), it differs from defamation in two respects.
It does not necessarily affect a person's reputation as that word
is understood in the law of libel and slander; and it need not
be a 'statement' of any sort, e.g. staring in the window of a
man's private house. As the definition indicates, the invasion
may be with respect to one's property or to one's person, and
these must be separately considered.
(1) Privacy of property. This needs much more explanation
in connexion with land, in the wide sense in which that word
is understood by real property lawyers, than in connexion with
personal property. Not that it is less important in relation to
personal property, but the law there stands out much more
starkly and has been thoroughly expounded. The law of copy-
right, patents, designs, trade-marks and trade names adequately
protects those species of property, and it is sufficient to call
attention to covenants in restraint of trade as a mode of securing
a trade secret and to the wider principle which enables the
Courts to restrain anyone in a confidential position from dis-
closing information with which he has become acquainted in
that relation. 2
The main question, then, is: ' How far can one person restrain
another from invading the privacy of land which he occupies,
where such invasion does not involve actual entry on the land? '
Where there is actual entry, the law of trespass is very nearly,
but not entirely, adequate for this purpose. Such of the reported
cases as are here relevant deal with loitering on the highway
in order to spy upon an adjacent landowner or to disturb him
in the enjoyment of his property. If a man's land abuts upon
the highway and he owns the soil over which the highway goes,
he can .maintain an action of trespass against anyone who
injures him by using the highway in an unreasonable manner.

' Kenny, Cases on Tort (4th ed. 1926), note to Roberson v. Rochester Folding
Box Co. Gatley, Libel and Slander (2nd ed. 1929), 31, n. 6.
' 17 Laws of England, §4 543.-544. Prince Albert v. Strange (1849) 2 De G.
& Sn. 652, has some references in the arguments and judgment to privacy, but
the decision proceeded on other grounds.
Jan., 19311 Privacy. 25

Thus in Harrison v. Duke of Rutland,3 the Duke owned

moors including the soil of a highway which intersected them.
Harrison, who had some grievance against the Duke, revenged
himself by standing on the highway near to some shooting butts
on the moors and scaring off grouse as they were flying towards
the butts, when the Duke had shooting parties there. The Court
of Appeal held that Harrison was a trespasser. Lopes L.J.
seems to have put the right of the landowner too high in one
respect and too low in another when he said: 'The interest of
the public in a highway consists solely in the right of passage ' ";
for the highway may be used for other purposes than mere
passing and repassing without committing a legal wrong against
an adjacent landowner; and, as will be seen shortly, even passing
and repassing may amount to an unlawful wrong in certain
circumstances. A broader and more acceptable statement was
that of Lord Esher M.R. : 'Highways are, no doubt, dedicated
prima facie for the purpose of passage; but things are done upon
them by everybody which are recognized as being rightly done,
and as constituting a reasonable and usual mode of using a high-
way as such. If a person on a highway does not transgress such
reasonable and usual mode of using it, I do not think that he
will be a trespasser.' 5 But Lord Esher had no more doubt than
either of his legal brethren that Harrison's employment of the
highway was unreasonable and unusual,' His statement was
cited with approval in Hickman v. Maisey,7 where the Court
of Appeal also held that the defendant had committed trespass.
He had walked to and fro on the highway for a space of some
fifteen yards during about one and a half hours in order to watch
and take notes of some racehorse trials which were taking place
on the plaintiff's land adjoining the highway. Of course it is
likely to be a puzzling question of fact whether a particular user
of the highway is reasonable or not. Making a sketch from it
was put by A. L. Smith L.J. in Hickman's Case as something
that would not be a trespass." Again, a shop window may
reasonably attract prolonged inspection but not indefinite

[1893] 1 Q. B. 142.
Ibid. 152.
Ibid. 146-147. Unless 'and usual' is merely pleonastic, it is difficult to
see why it was tacked to 'reasonable.' If I crawl rapidly on all fours on the
highway past X's land, it is not a trespass against him, though it is a very
unusual ' mode of travelling.
' In the New York case of Adams v. Rivers (1851) 11 Barb. 390, defendant
was held to be a trespasser because he had stopped on the highway in front
of the house of plaintiff (who owned that part of the highway) and had uttered
abusive and insulting language of the plaintiff there.
[1900] 1 Q. B. 752, 755, 758.
Ibid. 756.
26 'he Lawu Quarterly Reviw. [No. CLXXXV.

staring. We are confining attention here to user of the high-

way qua the adjacent landowner. ]1t it must be noted that
some uses of it which would be no legal wrong against him,
may nevertheless be a nuisance or obstruction to the highway.
An artist who chooses to make a sketch froin it may he guilty of
obstruction, having regard to the state of the traftic, however
innovent he may be of trespass to the neighbouring landowner.
i one direction the law laid down in the two decisions just
considered will not, help the injured party. It covers the case
where the plaintiff is oi'ner of the soil of the highway, hut
aiplarently it does not help anyone who has a less title than
ownership or who has none at all. Thus the plaintiff has no
reinedy in trespass (i) where he owns land on one side only of
the road, and the trespass is committed on the other side of the
road; for he owns the soil of the highway only ad ,nedium filu ;
(ii) where he does not own the land adjoining the highway, hut
is inetrel a tenant of it from the owner, or an occupier. Yet
the grievance itay well he the same in both these cases. Would
the annoyance to the trainer of racehorses in Hic-'man v. Maisey
have beeni any less if the defendant had walked up and down the
t}her side of the road which did not belong to the plaintiff?
\nd if an inquisitive person stops on the pavement and stares
nio the room of a dwelling-house of which I am tenant, but
itot owner, I suffer just as much as if I were owner of the
touse. Perhaps the tort of nuisance would cover such cases,
bitt the cheapest and most effective way of dealing with such
conduct would be to make it punishable on summary conviction.
At present, however, there is no offence under which it can be
classified. Loitering on a highway by night for felonious
put-poses justifies arrest without a warrant, ' and it is possible
to imagine loitering which would amount to obstruction of
the highway, but one who stares in- at my window will not
ordinarily commit that offence. However, borough and county
councils have statutory powers to make by-laws for the good
rule and government of the borough or county and for the
prevention anl sup)ression of nuisances which are not already
summarily punishable,"' and aggravated instances of this annoy-
ance might be stopped by local legislation. Its validity might,
however, have to be tested in the higher Courts.
Privacy of land is also guarded in some measure by the law of
nuisance. The most obvious application of this is the preven-
tion of an unreasonable amount of noise by an action for

Larceny Act, 1916, s. 41.

'o Encyclopedia of Local Government Law (1907) vol. 4, p. 615.
Ja~n., 19311 Privacy.
nuisance. But more expeditious remedies exist on the criminal
side for checking noises of particular kinds, such as those of the
itinerant organ-grinder or the raucous newsboy. A borough
by-law has been held valid which forbade anyone to play a
musical or noisy instrument, or to sing in any public place or
highway within fifty yards of a dwelling-house, after being
required by the inmate of such house to desist ; so too has a
by-law prohibiting outcries, noises, or disturbances in the market
or streets of a borough to the annoyance of even one inhabitant."
A curious invasion of privacy, recorded by the late Professor
Kenny, was a case of 1904 in which a family in Balham, by
placing in their garden an arrangement of large mirrors, were
enabled to observe all that passed in the study and operating-
-room of a neighbouring dentist, who sought in vain for legal
protection against 'the annoyance and indignity' to which he
was thus subjected.' 3 This is all that is given of the case, and,
as there is no further reference, it is worthless as an authority.
Why should it not have been actionable as a nuisance? It was
something very like watching and besetting the dentist's house
so as to compel him to do or not to do something which he was
lawfully entitled not to do or to do; and this was held to be a
common law nuisance in Lyons and Sons v. Wilkins. 4 Sub-
sequent trade union legislation may have affected the decision
in that case, but not the principle underlying it, which is that
such conduct seriously interferes with the ordinary comfort of
human existence and the ordinary enjoyment of the house beset.
Indeed, the Balham family behaved worse than the defendants
in Lyons' Case, for there was some economic excuse for the acts
of the trade union officials there, while none whatever existed
in the Balham case.
Some forms of interference with privacy occur for which it
is hard to think of any legal remedy at the instance of the person
annoyed. A not uncommon form of practical joke is to ring up
a person on the telephone and to give him some insulting
message which does not amount to defamation. No doubt this
is some sort of offence against the Post Office, but what remedy
has the receiver of the message? Unfortunately, too, the
perpetrator runs little risk of detection if he uses a public call
office.
The law certainly will not redress another infringement of

" Kruse v. Johnson [1898] 2 Q. B. 91. See other cases cited in Stone's
Justices' Manual (61st ed. 1929), 405-406.
IInnes v. Newman [18941 2 Q. B. 292.
Cases on Tort (4th ed. 1926), 367.
C
" [1899] 1 Ch. 255.
28 The Law, Qu'tcrhlt Review. LNo. CLXXXV.

priv y which has ipel trequenily illustrated in the reports.

ei lher it law lor ill equity will a* Court ijiterfere to prevent a
l,111dowlier ftiol)opening new windows which ciit.tItaltd a view
ot his ineighhour's premises."' At one time 1here were traces tf
I
a difeiiet doctrine. In C'Icrrilg v. Al(..," all ill-reported
case (if' 1709, it was held that lights in a new house must be in
the sane place and of the saine dimensions as the ancient lights
in the old house for which it is substituted. ' It is certain they
cannot alter the sane to the prejudice of the owner of' the soil
asifi 1h fie so high, as they could not look out of them into the
yard, siall not make ihem lower and tile like; for privacy is
valimle.' Anid Le lilane ,I. in 1811 alinitted that an action
for opening a window to disturb lhe llaintill's Iprivacy was to be
fouid in the books; but lie added that lie hld never known such
an action to he naintained, and that he had heard Eyre L.C.J.
lay it, down that the action did not lie.", At. any rate opinion
hardened against any such remedy in the latter halt of last
century,' and the rule was well stated by Lord Westbury C.
in Tapliry v. Jones ' There is another form of words which
is (tften found in the cases . . . "invasion of privacy by
opening windows." This is not treated by the law as a wrong
for wht ich any remedy is given. If A is the owner of beautiful
gardens and pleasure grounds, and 13 is the owner of an
adjoining piece of land, II may build on it a nianufactory with
a hundred windows overlooking the pleasure grounds, and A
has neither more nor less than the right, which he previously
had, of erecting on his land a building of such height and
extent as will shut ouit the windows of the newly-erected
manufactory.'
On the same principle the overlooking of premises by persons
using a railway platform or train is no ground for compensa-
tion, '" nor is the building of a wall twenty-three feet high, which
interferes with a neighbour's enjoyment of his garden, any cause
of action " ; and the sante applies to loss of privacy from the
construction of a public road adjoining the land of the
complainant .22
.I)rivaey of this sort can, of course, be secured to a certain
" Turner v. Spooner (1861) 30 L. J. Ch. 801.
2
( Vern. 646.
Chandler v. Thompson, 3 Camp. 80.
" Turner L.J. in Johnson v. Wyatt (1863) 2 De G. J. & S. 18, 27.
(1865) 11 H. L. C. 290, 305. So too Lord Cranworth at p. 311, and Lord
Chelinsford at p. 317.
', Re Penny (1857) 7 E. & B. 660.
2 Potts v. Smith (1868) Ij. R. 6 Eq. 311.
22 Duke of Buccleuch v. Metropolitan Board of Works (1870) L. R. 5 Ex.
221, 2,.37.
Jan., 19311 Privac y ,
extent by.contract, and the contract may imply the right without
any express stipulation; e.g. a covenant that an act shall not be
done the doing of which causes the invasion of privacy. 2 In
spite of this, the rule has created hardship in circumstances
where it was highly improbable that the plaintiff could have
foreseen the particular invasion of privacy which actually
occurred."4
In British India, where the conditions of domestic life differ
markedly from those in England, it is possible to acquire, under
the Indian Easements Act, 1882, s. 18, an easement of privacy
in virtue of a local custom (which must be reasonable and
certain). Thus, a custom may exist in a particular town that no
owner or occupier of a house can open a new window therein
so as substantially to invade his neighbour's privacy.25 But,
quite apart from the Act, such a right of privacy may arise
from what may be styled the customary law of India. In the
Province of Gujerat and in the N.W. Provinces, such custom
has been invoked and upheld in order to safeguard the seclusion
of parda-nashin women. " The leading case on this is Gokal
Prasadv. Radho," in which Edge C.J. examined all the previous
authorities. The plaintiff successfully sued the defendant, who
had built a house in such a way that a verandah and certain
doors of the house interfered with the privacy of those parts
of the plaintiff's house and premises which were occupied by
females of the plaintiff's family who were parda-nashinwomen.
The Indian Easements Act had not been applied to the province
in question, and it was therefore necessary to have recourse to
the customary law as a foundation of the plaintiff's right.
Edge C.J. pointed out that the custom of the parda had been
strictly observed for centuries in the N.W. Provinces by all
Hindus except those of the lowest castes, and by all Moharn-
medans except the poorest; and that the male relations of a
parda-nashin woman, and the woman herself, would consider
it a disgrace if her face were to be exposed to the gaze of male
strangers. The learned judge held it to be more reasonable to
uphold the custom by forbidding the defendant to erect new
buildings or to open or extend doors or windows in old buildings
in such a way as would substantially interfere with this custom,
than to leave the plaintiff with no protection except the ability

" Lord Manners v. Johnson (1875) 1 Ch. D. 673; bay windows erected beyond
building line.
', Browne v. Flower [1911] 1 Ch. 219.
Whitley Stokes, Anglo-Indian Codes (1887) i, 907.
Maneklal Motilal v. Mohanlal Narotumdas (1919) I. L. R. 44 Bombay 496.
21 (1888) I. L. B. 10 Allahsbad 358.
30 The Law Quarterly Review. [No. CLXXXV.

to build a screening wall on his2 own land which might deprive

his own house of light and air. 1

Where the right is established by custom, it vests in the

plaintiff irrespective of his religion," ' or of his ownership of the
premises; a lessee or other person in lawful possession of them
may sue."' On the other hnind, it does not extend beyond the
l)articular alartments secluded from general observation ";
much less does it apply to a place which is not part of the house
at all, e.g. an open courtyard." Moreover, the privilege, being
an exceptional one, requires strong evidence to support it,3" and
its local character is marked by the fact that in other provinces,
e.g. Madras, the invasion of privacy in this way is not an
actionable wrong. 34
The Indian cases have been referred to not, of course, for the
purpose of urging their application to the different particular
circumstances which prevail in England, but as an illustration
of the pliability of Indian law where the need of protecting
privacy has been felt. It will be seen when we pass to consider
personal privacy that our law probably lags behind the needs
of a community in which intrusion on privacy is apt to take
offensive forms owing to the modern development of instan-
taneous photography and of methods of advertisement which, to
say the least of them, are totally indifferent to the feelings of
private individuals.
As to privacy of property, in contrast with personal privacy,
we can sum up the foregoing analysis by saying that it appears
to be tolerably well protected, allowing for the necessity of
meeting the requirements of society at large as well as those of
the person whose privacy is in question. He can, to a certain
extent, secure seclusion of his property by contract. Infringe-
ment of it, where there is no contract of this sort, is not regarded
as an independent tort, but is redressible by actions for nuisance
or for trespass or for negligence or for some other appropriate
tort, or (where the property is personal property) for breach of
copyright, breach of patent, and the like. And in some
instances the criminal law provides remedies.
(2) Personal privacy. Here the question is whether there is

21 Ibid. 385--386.
Abdul Rahman v. Emile (1893) I. L. R. 1f Allahabad 69.
21
Kundan v. Bidhi Chand (1906) 1. L. R. 29 Allahabad 64.
Nathubai v. Chhaganlal (1900) 2 Bombay L. It. 454.
Keshav v. Ganpat (1871) 8 Bombay H. C. 42.
Shriniras v. Reid (1872), 9 Bombay H. C. 266.
Sajyyad Aznf v. A'neerubibi (1894) I. Ij.il. 18 Madras 163. gee gencrallv
hatanlal Itanchhoddas and Dhirajlal Kesbavlal Thakoje, Law of Torts (sth ed.
1M21) 325-327.
Jan., 1981] Privacy.
any legal redress for invading the personal seclusion of an
individual, irrespective of his occupancy of land or his holding
of personal property.
No direct answer to this is traceable in the law reports, though
there are several cases on the publication of a person's portrait
or opinions without his consent.
In Pollard v. Photographic Co.,"3 a photographer, who had
taken the plaintiff's likeness under a contract to supply her with
copies, was restrained from selling or exhibiting copies without
her consent. North J. based his decision partly on the ground
that the defendant's conduct was a breach of an implied term
in the contract, partly on the ground that he had abused 'the
power confidentially placed in his hands merely for the purpose
of supplying tle customer.' 3 But looked at either way the
case is useless for determining any point on unauthorised
photography or advertisement.
In Monson v. Tussauds, Ltd. 37 Collins J. declined to express
any opinion obiter on the question whether a private person can
restrain the publication of a portrait or an effigy of himself,
which has been obtained without his authority.3 ' Lord
Halsbury, in referring to waxwork exhibitions, deprecated the
argument that 'everything which has once been known may be
reproduced in print with impunity,' s but his remark was
obiter.
Dockrell v. Dougall 4' merely decided that a man has not an
unqualified right to prevent others from using his name. He
cannot sue for the use of his name to puff the sale of a medicine,
unless the publication is defamatory or injures him in his
property, business, or profession. The question of privacy was
not argued, and the only matters left to the jury were: (i) Was
the publication complained of libellous? (ii) If libellous, was
it true? To the first question they replied, 'No.' On the
second they expressed no opinion. The significance of the case
lies in the fact that plaintiff's counsel either never thought of
trying ' invasion of privacy ' as an alternative claim to defama-
tion, or else considered that it was hopeless to do so.
In Corelli v. Wall," 1 the defendants published and sold,

" (1888) 40 Ch. D. 345.

' Ibid. 349. Semble, there would be no remedy against a bona fide transferee
for value of the photograph from the defendant; Copinger, Copyright (6th ed.
1927) 31.
[1894] 1 Q. B. 671.
' Ibid. 679.
" Ibid. 687.
"(1899) 80 L. T. 556.
" (1906) 22 T. L. R. 532.
32 The Law Quarterly Review. [No. CLXXXV.

without the consent of the plaintiff, Miss Corelli the novelist,

coloured postcards depicting bad portraits of her in imaginary
incidents of her life. The plaintiff sued for an injunction on
two grounds: (i) Libel. (ii) Publication of her portrait without
her consent. Swinfen Eady J. refused to issue it on either
ground. As to (i), he found that the evidence of the alleged
libel was not clear enough to justify the grant of an injunction.
As to (ii) he said: ' It was also argued that the plaintiff as a
private person was entitled to restrain the publication of a
portrait of herself which had been made without her authority
and which, although professing to be her portrait, was totally
unlike her. No authority in support of this proposition was
cited.' He then referred to the dictum of Collins J. (supra),
and went on: 'The plaintiff has not established, for the purpose
oj this motion, 2 that she has any such right.'
This case calls for two remarks. First, it is important to
notice that the learned judge carefully confined his decision to
the issue before him,--whether an injunction could be issued.
iBe did not say that an action for invasion of personal privacy
(as distinct from defamation) would not lie in any circumstances,
but only that an injunction would not be granted; at the same
time it is idle to deny that the first quotation from his judgment
seems to indicate his opinion that no right of personal privacy
exists, because no authority could be found for it. That, how-
ever, would not be, and never has been, a self-sufficient reason
for denying any remedy in tort.43 Secondly, Corelli v. Wall
cannot be regarded as any basis for the inference that a plaintiff
can never obtain an injunction in an action for libel agiainst a
defendant who publishes a bad portrait of him. Swinfen
Eady J.'s judgment does not warrant such a conclusion, and the
later decision of the House of Lords in the Irish appeal, Dunlop
Rubber Co., Ltd. v. Dunlop,"' is proof positive the other way.
There, the late Mr. Dunlop obtained from an Irish Court an
injunction against the Dunlop Rubber Co. for libel in using for
adveriising purposes, and without his consent, portraits falsely
displaying hin as a foppish old gentleman. The House of Lords
held that the discretion of the Court below in issuing the injunc-
tion had been properly exercised; but they naturally refrained
from expressing any views on the merits of the case which
was eventually settled out of Court.
In Palmer v. National Sporting Club, Ltd., 45 the plaintiff, a
The emphasis is ours. " 27 Columbia Law Review 1-11.
" [1921] 1 A. C. 367.
(19 ) Macgillivray, Copyright Cases (1905-1910) 55. I am indebted to my
friend, Mr. Edward Potton, for calling my attention to this case.
Jan., 19311 Privacy.
noted pugilist, was defeated in a prize-fight with another noted
pugilist. He sued for an injunction against the defendants to
restrain them from exhibiting a photographic film of the fight,
on the ground that the exhibition would damage his reputation
and would cause him personal annoyance and indignity. The
defence was that the only annoyance which he had suffered arose
from the fact that he had been beaten. Warrington J. accepted
this view and refused to issue an injunction. As the plaintiff
had no contract with reference to the photographs and no
property in them, he could complain only if they were
defamatory, and they were not that, because they were true
representations of the contest. Annoyance and injury to the
feelings were not grounds upon which the Court, apart from
property or contract, would interfere.
This case did not, however, decide that no action will lie for
an offlensive invasion of personal privacy. Even if invasion of
privacy were recognized as a tort within the limits hereafter
suggested, Palmer would have had no remedy. If he chose to
take part in a big public prize-fight, he had to that extent
waived his privacy, and any sane system of law would no more
give him a remedy because he was represented as having been
defeated than it would give one to a jockey who had been
correctly photographed as hopelessly beaten on his mount in
the Derby.
In Sports, etc. Agency, Ltd. v. 'Our Dogs' Publishing Co.,
Ltd.4 Horridge J. held that an exclusive right to take photo-
graphs does not exist, in law, as property. But this tells us
nothing as to the duty not to make an offensive use of a
photograph of one's person, and though the learned judge said
that no one has a right to prevent a person from photographing
him, provided that the description is not libellous, or otherwise
wrongful," we can only guess at what he meant to include in
'otherwise wrongful.'
Finally,' there is the opinion of Greer L.J., one of the two
majority judges in Tolley's Case" when it came before the
Court of Appeal "O: 'I have no hesitation in saying that in my
judgment the defendants in publishing the advertisement in
question, without first obtaining Mr. Tolley's consent, acted in
a manner inconsistent with the decencies of life, and in so doing

" [1916] 2 K. B. 880: affirmed [1917] 2 K. B. 125.

Ibid. 884.
Other casescited in Gatlev. Libel and Slander (2nd ed. 1929) 81, n. 6, from
the Times Newspaper of various dates can scarcely be regarded as authorities.
" [1930] 1 K. B. 467; ante, p. 23.
s, The report, at p. 478.
V L.
xT,vT. 3
 The Law Quarterly Review. [No. CLXXXV.

they were guilty of an act for which there ought to be a legal

remedy. But unless a man's photograph, caricature, or name
be published in such a context that the publication can be said
to be defamatory within the law of libel, it cannot be made the
subject-matter of complaint by action at law: Dockrell v.
Dougall and Corelli v. Wl7all.' 12 It may be doubted, with
great respect, whether the two cases cited by the learned Lord
Justice, and already noticed in this article, were any real fetter
on the power of the Court of Appeal to create, or to recognize,
a remedy for what Greer L.J. himself regarded as a discredit-
able intrusion on individual privacy; but such criticism might
be met by the retort that what Mr. Tolley was suing was an
action for defamation, and not one for invasion of privacy, and
that the statement of Greer L.J. lent no weight to his actual
decision.
The cases which have been examined make it difficult to
predict whether an English Court would hold that invasion of
personal privacy exists as an independent tort, supposing the
point were raised before it in a neat form. The balance of
existing dicta seems to incline against an affirmative decision
not only in the Courts of first instance, but probably also in the
Court of Appeal. The House of Lords, however, certainly have
a free hand and it is submitted that social exigencies at the
present day would justify them in recognizing such a tort.
But before we develop arguments in this direction it will be
helpful to notice how the law stands in other countries.
In the United States there have been, in marked contrast with
England, a fair amount of litigation and a considerable mass of
literature on the right of personal privacy." Of the former,
we can speak only of what seem to be the more important cases.
In several States the right has been recognized, and the trend
of opinion appears to be in favour of the right, though decisions
against it are to be found in other States.
So far the Supreme Court of the United States has expressed
no views upon it. In Peck v. Tribune Co. " the defendants
published as a newspaper advertisement, without the plaintiff's

(1899) 80 L. T. 556; ante, p. 31.

3, (1006) 22 T. L. R. 532; ante, p. 31.
" See title 'Privacy' in Index to Legal Periodicals (now edited by Eldon R.
James). Much of the literature is not available to English readers, as libraries
here take in only a few of the leading American law journals. The most
important of the earlier articles are the joint one of Samuel D. Warren and
Louis D. Brandeis (now a Judge of the Supreme Court of the U. S.) in 4 Harvard
Law Review (1890) 193-220, and that of Professor Pound in 28 Harvard Law
Review (1915) 343, 361 seq. See too Professor Wigmore's note to Henry v.
Cherry and Webb in his Select Cases on Torts (1912) vol. i, 762-763.
" (1908) 214 U. S. 185.
Jan., 19311 Privacy.
authority, a portrait of her, to which was appended a description
of her as ' Mrs. Schuman,' a nurse who recommended defendants'
whisky for her patients and who used it .herself. In fact, the
plaintiff was not Mrs. Schuman, was not a nurse, and was a
teetotaler. She brought an action for libel, and added a count
for publishing her likeness without her leave. The Supreme
Court held that she could recover damages for libel, but found
it unnecessary to consider whether the publication of her like-
ness was a tort per se.
In the New York jurisdiction, the law has veered about until
the Legislature decisively settled it in favour of recognizing the
right of privacy. In 1895,5s the Supreme Court of New York
apparently regarded the right as existing, but held (Gray J.
dissenting) that it dies with a person and that her surviving
relatives cannot restrain strangers from erecting a statue to her
memory, provided that the motive of the act is to honour her and
that the work is done in an appropriate manner. Such right of
privacy as the relatives had on their own acQount could not be
violated in connexion with the deceased, unless there were
'some reasonable and plausible ground' for the mental distress
which they suffered. 5' But in two subsequent decisions the same
Court dismissed as mere obiter dicta anything which had been
said in 1895 indicating the existence of the right. The later
of these decisions, Roberson v. Rochester Folding Box Co.' has
been much discussed in the Courts of other States. The defen-
dants had published 25,000 excellent likenesses of the plaintiff,
without her knowledge or consent, as an advertisement of flour.
The Court dismissed the action, holding that the right of privacy
founded upon the claim that a man has a right to pass through
this world without having bii jicture published, his business
enterprises discussed, or his eccentricities commented upon,
whether the comment be favourable or otherwise, is not recog-
nised in law, and cannot be enforced in equity. They thought
that to allow such an action would be to encourage a vast
amount of trumpery litigation. But their decision was much
weakened by the powerful dissenting judgment of Gray 3. (in
which two other judges concurred) and was stultified by the
New York Legislature in the very next year, which made such
conduct as that of the defendants both punishable as a
misdemeanour and actionable as a tort, with the possibility of
obtaining exemplary damages."
Schuller v. Curtis (1895) 49 Am. St. Rep. 671.
"Ibid. 879.
" (1902) 89 Am. St. Rep. 828.
" N. Y. Civil Rights Law, 1903, §5 -51.
 The Law Quarterly Review. [No. CLXXXV.

In Georgia, the Supreme Court has preferred the opinion of

Gray J. and has emphatically approved the right of privacy in
its decision in Pavesich v. New Enyland Life Insurance Co.,"'
where it held that publication of one's picture for advertising
purposes without one's consent is a tort actionable without proof
of special damage; for, if it were permissible to use it for
advertising purposes, ' it may be reproduced and exhibited any-
where. . . . It may ornament the bar of the saloon-keeper,
or decorate the walls of a brothel.' 60 The Court conceded that
the right might be waived either expressly or impliedly, but
confined the waiver to such invasion of the right as is legiti-
mately necessary and proper in dealing with the matter which
has brought about the waiver. Thus, a candidate for, or a
holder of, public office 'waives any right to restrain or impede
the public in any proper investigation into the conduct of his
private life which may throw light upon his qualifications for
the office or the advisability of imposing upon him the public
trust which the office carries. But even in this case the waiver
does not extend into those matters and transactions of private life
which are wholly foreign and can throw no light whatever upon
the question as to his competency for the office or the propriety
of bestowing it upon him.' "
In Kentucky also, the Supreme Court has held that the
unauthorised publication in a directory, having -a circulation of
eight million copies, of a picture of the plaintiff, together with
a sketch of his life and a forged recommendation (purporting
to be his) of a patent medicine, was a violation of his right of
privacy 'and was actionable without proof of special damage."2
More recently still, the 'placarding' of a debtor has been held
in the same State to be an infringement of the right of privacy.
The defendant exhibited in a public show window a placard
stating that the plaintiff was indebted to him, and that 'if
promises could pay an account, this account would have been
paid long ago.' The plaintiff admitted the truth of the state-
ment, but recovered damages for the mental suffering and
humiliation which had been inflicted on him. 3 Similar
(1905) 106 Am. St. Rep. 104.
*' Ibid. 129. But note that mere geographical situation of a man's portrait
may possibly amount to another tort-defamation; e.g. misplacement of his
effigy in a waxwork show.
S" Ibid. 112.
" Foster-Milburn Co. v. Chinn (1909) 135 Am. St. Rep. 417.
" Brents v. Morgan (1927) 299 S. W. 967. New trial was granted on another
ground. See notes on this decision in 41 Harvard Law Review (1928) 1070-
1071, and 37 Yale Law Journal (1928) 835--836. See other references in Professor
Pound's ed. of Ames and Smith's Cases on the Law .of Torts (1919), note to
Roberson's Case, p. 806.
Jan., 19311 Privacy.

decisions with respect to these singular methods of debt recovery

have been given in Iowa, Minnesota, New Hampshire and New
York. 6"
On the other hand, the Supreme Court of Rhode Island has
refused to recognize a right of privacy, and in Henry v. Cherry
and Webb "' it dismissed an action by the plaintiff for the
unauthorized publication of his photograph as an advertisement.
And the Court said that in jurisdictions where the right of
privacy has been upheld, it must be regarded as a tort infringing
a right of the person and not a right of property. This is
scientifically correct of personal privacy, and some upholders of
it have rather embarrassed discussion of the topic by attempts
to treat it as a property right."
The Supreme Court of Michigan has also expressed itself
against the existence of a right of privacy."
In some of the British dominions, invasion of personal privacy
seems to have been recognized as unlawful in certain circum-
stances, though nothing is said of a 'right of privacy' and the
liability, where it exists, is referable to other torts.
Thus, in Ontario, a 'placarded' debtor has sued successfully
for libel, because the creditor and debt collector could not prove
the truth of the facts placarded."' The inference is that there
would have been no remedy if truth had been proved, and hence
that the Courts there do not look upon invasion of privacy as an
independent tort.
In South Africa, according to the definition of contumelia,6"
it might be thought to include infringement of personal privacy,
but actual decisions halt short of this. The shadowing of a
person by private detectives in such a manner as to attract public
attention has been held to be iniuria,0; and false 'placarding '
of a debtor in a newspaper advertisement is defamation,' pro-
vided there be animus iniuriandi." It has also been held in
Natal that to solicit a modest woman in a private letter to
commit immoral conduct is injurious and actionable."3 On the

4 They are cited in 37 Yale Law Journal (1928) 835.

(1909) 136 Am. St. Rep. 928.
E.g. Gray J. in Roberson's Case (1902) 89 Am. St. Rep. 828.
' Atkinson v. Doherty (1899) 80 Am. St. Rep. 507.
" Green v. Minnes (1891) 22 Ont. R. 177.
Ignominious treatment inflicted by one person upon another under circum-
stances which render it offensive to good morals.' But see Nathan, Common
Lain of South Africa (1906) iii, § 1499.
" Epstein v. Epstein (1906) T. H. 87.
" Conroy v. Bennett, 4 H. C. 0t. 201.
" Piering v. Bridger (1884) 1 C. L. J. 289.
" Banks v. Ayres, 9 N. L. R. 34, and comment thereon in South African. Law
Journal (1904) 183.
 The Law Quarterly Review. [No. CLXXXV.

other hand, mistaken identification of the plaintiff as a criminal

by police dogs is not iniuria.4
Of French and Gernian law, almost nothing that is use) il
can be said here, because nothing but elementary or institujoitl
books are available. Section 11 of the French Loi relative ,ila
Presse of May 11, 1868, enacts: 'Toute publication dans un
6crit p6riodique relative Z un fait de ]a vie privie constitue une
contravention punie d'un amende de cinq cent francs. La
poursuite ne pourra ftre exerc6e que sur la plainte de ha
partie interessee.' It would seem, however, that this has
been repealed by Loi sur la Presse of July 29, 1881." In the
German Civil Code, there is a section which, on the face of
it, might be interpreted to cover invasions of personal privacy,"
but the commentaries within our reach do not encourage
such an inference.7 German copyright law, however,
enables individuals to object to any representation of
their personality, whether in ordinary pictorial form or as
living pictures. Representations of an historical nature are
excepted, provided no injury is caused to the person who
is portrayed. 5 A curious and important recent decision on
this has been noted by Professor H. C' Gutteridge in the Journal
of Comparative Legislation."° The ex-Emperor William sued
the proprietors of a Berlin theatre for damages under this
branch of the law on the ground that he had been presented in
an unfavourable light in the play Rasputin. Judgment was
given for him.
Such are the results of examining some of the systems of law
outside England as well as English law itself. Except in the
United States, they are somewhat meagre, and the reason why
they are more substantial there is because questionable methods
of advertisement are commoner in that country than elsewhere.
" Mentor v. Union Government (1927) C. P. D. 11. Mr. Edward Potton has
been so kind as to consult the Annual) Digests of the Australian and New Zealand
Reports for the last 20 or 25 years, as I have not ready access to these. His
search has been fruitless.
Truth is useless as a defence.
Section 68 apparently repeals all preceding press laws. Section 29 makes
attacks 'h lhonneur ou & la consideration' of any one defamation. Planiol,
Droit Civil (1925-1926) ii, §868 bis (Le dommage moral), includes a note on
atteintes port6es & Ihonneur,' but I have no means of pursuing the author's
references.
" Section 826. Wer in einer gegen die guten Sitten verstossenden Weise
einem Anderen vorsdtzlich 8chaden zuffigt, ist dem Anderen zum Ersatze des
Schadens verpflichtet.
' Nothing of the sort is mentioned in Enecerrus, Kipp and Wolff, Lehrbuch
des biirgerlichen Rechts, vol. ii, pt. i (1930) §230; Fischer-Henle, Bdrgerliches
Gesetzbuch Handausgabe (1927) §826; Engelmann, Das bfirgerliche Recht
Deutschlands (1913) §334; privacy with respect to the use of one's name is
treated in §335 ibid. See note at the end of this article.
" Kunstschutzgesetz, as. 22, 23. -0 (1928) 204.
Jan., 19311 Privacy.
The conclusion is that, where invasion of personal privacy is
of this sort, it ought to be a tort in English law, if it is not one
already. A gap in our system which leaves the plaintiff in a
case like Tolley v. J. S. Fry 4 Sons, Ltd."' without a remedy
places any well-known man or woman at the mercy of unscrupu-
lous and vulgar advertisement quite as painful in its way to the
victim as a personal assault. The verdict of the jury in that
case is a fair indication of what the average person thinks of
such conduct. And though the Court of Appeal were unanimous
in regarding £1,000 as excessive damages, Greer L.J., who was
one of the majority judges against the plaintiff on the main
issue, thought that there ought to be a remedy, and regretted
that he could not deprive the defendants of their costs."2
We have said that the House of Lords is perhaps the only
judicial body which can set the matter right. They might do
so in either of two ways. First, they might hold the wrong to
be defamation as did Scrutton L.J., the dissentient Lord Justice
in Tolley's Case. The defendants had not a particle of defence
except that the innuendo was not made out, and if a case of this
type were fought to the Ihouse of Lords, that tribunal would
do no violence to any previous decision of their own (as distinct
from dicta) if they held the defendant liable for defamation.
Alternatively and preferably, they might hold the defendant's
act to be a tort sui generis,-offensive invasion of personal
privacy. 'Preferably,' because the law of defamation is really
inadequate to cope with the situation; for the defence of truth
would deprive the plaintiff of any civil remedy for defamation
in circumstances not a whit less exasperating than the untrue
statements in Tolley's Case; e.g. those in Roberson v. Rochester
Folding Box Co. 8 3 If the House of Lords should prefer to leave
the matter to the Legislature, then Parliament ought to inter-
fere. But whether the reform is to be judicial or legislative, we
are far from suggesting that it should be a sweeping recognition
of a general 'right of personal privacy.' Even in the United
States, where the grievance is felt more strongly than it is here,
no such incautious step has been taken. The New York
Legislature expressly restricted its amendment of the law to
forbidding unauthorized reproduction of a person's portrait or
name for purposes of trade or advertisement, and where the right
of privacy has been recognized in American law Courts, the

' [1930j I K. B. 467. Ante, p. 23.

83 The report, at p. 482.
(1902) 89 Am. t. Rep. 828. Ante, p. 35.
 The Law Quarterly Review. (No. CLXXXV.

judges have not, so far as we know, in actual decision gone

beyond that."'
On principle, there is no reason why the duty should not be
made wider than one to refrain from abuse of trading or of
advertising, and yet fall far short of any unqualified statement
that a person has a ' right to be let alone.' And it is here again
that the insufficiency of the law of defamation is apparent. Not
only is it helpless (as was said above) to deal with offensive
statements of fact which happen to be true, but it is equally
powerless where the statement, though false, does not tend to
bring the plaintiff into hatred, contempt, or ridicule, or where
the defendant's acts are not ' representations ' or 'statements'
at all, within the law of defamation. Each of these three pointR
may be illustrated. If a newspaper, in describing a cricket
match, states truly that 'Jones slouched to the wickets,
unshaven, unwashed and with a patch in his trousers,' this is
offensive enough, but it is not a civil libel. Again, writing a
letter to a person prophesying ill-luck to him unless he writes in
similar terms to ten other people is certainly not defamatory,
though it may possibly be a private nuisance. Then invasion
of privacy which is not a ' representation ' may be exemplified
in forcing one's conversation or company on a total stranger in
a public place. An unpleasant variation of this occurred within
the writer's own knowledge. A lady walking home at night
was accosted by a stranger driving a car who urged her to come
for a ride with him. She declined, but he persisted in driving
the car at a slow pace by her side until she told him that she
had taken the number of his car and would report him to the
police. Behaviour of this sort ought to be punishable on sum-
mary conviction rather than actionable as a tort, for the delay
and expense of civil proceedings would probably prevent anyone
from taking them."5
If, then, a fairly broad statement of principle be sought,

" It has been said that 'placarding' a debtor does so, but it is difficult to
see why it should not be regarded as a ' trade ' purpose; 41 Harvard) Law Review
(1928) 1070-1071.
a It might be an attempted offence under the Criminal Law Amendment Act,
1885, s. 3, sub-s. 2, but the evidence of intent would be weak. A municipal
by-law that ' no person shall wilfully annoy passengers in the streets ' has been
held bad for uncertainty; Nash v. Finlay (1902) 66 J. P. 183. Writing a letter
to a modest woman, who is a stranger to the writer, suggesting carnal intercourse
with her for a sum of money is a criminal libel; R. v. Adams (1888) 22 Q. B. D.
66. Soliciting by prostitutes is punishable under the Towns Police Clauses Act,
1847, s. 28. The Indian Penal Code, s. 509, punishes anyone who (inter alia)
'intrudes upon the privacy' of a woman. This covers both infringement of
privacy of property (e.g. entrance into her room at midnight) and infringement
of personal privacy (e.g. by sending to a woman a letter containing indecent
overtures); Ratanlal and Dhirajlal, Law of Crimes (11th ed. 1928) 1194-1195.
Jan., 19311 Privacy.
perhaps it is to be found in the suggestion that offensivve invasion
of the personal privacy of another is (or ought tv be) a tort.
Where the invasion is in the form of a representation or state-
ment, it ought to be immaterial whether it is true or false.
And, representation or no representation, the invasion ought to
be actionable without proof of special damage. 'Offensive
is, of course, vague, but it seems to be impossible to substitute
any word more exact. The difficulty is to select a test which
will not unduly hamper the freedom of the press or of harmless,
if somewhat silly or trivial, comment, but which will put a stop
to outrages on the respect of a man and his friends for himself.
Some concession must be made to the facts that newspapers are
not Blue Books and that curiosity is much more human than
indifference. To describe what Lady X wore at Ascot, or even
to remark that a Football League goalkeeper 'chewed gum
imperturbably' during a match, is not offensive; it is merely
news. But there is a difference between 'saltness and bitter-
ness.' It may be true to say of the chief guest at a public dinner
that he drank three whiskies and soda and ate peas with his
knife, but this would surely be very offensive. Border-line
examples can easily be imagined. Suppose that a picture news-
paper publishes a snapshot photograph of ' Lord A at Blankton
Races in conversation with Mrs. B, whose husband is taking
divorce proceedings against her,' can this be styled an offensive
invasion of Lord A's privacy? In any event the question of
offensiveness ought to be one for the jury, subject to the judge's
power to rule that there is no evidence of it sufficient to allow
the question to go to them. This should be enough to check
frivolous or blackmailing litigation.
We have urged that truth ought to be no defence to an action
for invasion of personal privacy. It has been suggested in a
highly authoritative American article that privilege, as it is
understood in the law of defamation, ought to be a defence; and
also that fair comment in the law of defamation ought to be
analogically applied so as to make 'any publication of matter
which is of public or general interest' no invasion of privacy.8
But if invasion of personal privacy is to be treated on the broader
basis for which we are contending, this suggestion is open to two
criticisms. First, it has no bearing on invasions which are not
( representations ' or ' statements.' Secondly, it would make
the law too severe, unless the law as to fair comment were
applied very cautiously. Doubtless, nothing would be a breach
8" 4 Harvard Law Review (1890) 193-220: the article has been constantly
cited in the American decisions on privacy. See pp. 214-217.
42 The Law Quarterly Review. [No. CLXXXV.

of privacy which would be fair comment in the law of defama-

ion; but it does not follow that every statement which is not
fair coinment wouli be an offensive invasion of privacy. State-
iuents are miade about public persons every day in the newspapers
which are quite outside fair comment, but which are innocuous
trivialities and ought not to be actionable. In fact, any attempt
to import wholesale into the law of privacy principles of the law
of defamation is likely to confuse both topics, at any rate on this
side of the Atlantic. Another source of confusion has been
deprecated earlier in this article,-the idea that the invasion of
personal privacy is a wrong to one's property rather than to
one's person. Finally, the right corresponding to the duty
ought to be capable of express or implied abandonment on the
lines indicated in the Pavesich Case. '
To sum up the conclusions under (2): offensive invasion of
personal privacy ought to be an independent tort classified under
• Torts to the person,' and actionable without proof of special
damage. Its truth, where it takes the shape of a representa-
tion, ought to be immaterial. As a matter of law, the judge
ought to be entitled to settle whether there is or is not sufficient
-vidence of offensiveness for a jury to decide, as a matter of fact,
vhether the invasion was, in the circumstances, offensive. The
eight of privacy should be capable of express or implied waiver.
Fair comment and privilege, as known in the law of defamation,
ihould be applied only sparingly and, at most, by way of
analogy.
PEICY H. WINFIELD.

NOT.-I hope that my friend, Professor H. C. Gutteridge, K.C., will be able

to supplement this article by another which will deal much more fully with the
attitude of the leading Continental systems towards privacy. He bad been so kind
as to express an interest in the topic, but had been unable to procure from abroad
sufficient material for fuller references before mny own article was in paged proof.
I have indicated in it the difficulty of obtaining access to the relevant case law
of the chief Continental countries, a difficulty which, it is hoped, will soon
disappear.-P. H. W.

" (1905) 106 Am. St. Rep. 104. Ante, p. 14.