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15 Vand. L. Rev. 1093 (1961-1962)
Defamation and the Right of Privacy

handle is hein.journals/vanlr15 and id is 1109 raw text is: Defamation and the Right of Privacy JOHN W. WADE* In this article Dean Wade discusses the scope of the tort of un- warranted invasion of the right of privacy, comparing and contrasting it with the tort of defamation. He observes that the action for invasion of the right of privacy may come to supplant the action for defamation and that this development should be welcomed by the courts and writers. Finally, he concludes that the whole law of privacy may someday be- come a part of the larger, more comprehensive tort of intentional in- fliction of mental suffering. I. INTRODUOTMON The history of the two torts of defamation and unwarranted invasion of the right of privacy has been greatly different. Defamation developed over a period of many centuries, with the twin torts of libel and slander having completely separate origins and historical growth. Professor Street summarizes this history by declaring that there was a perversion of evolutionary processes, with the result that there was produced a rather heterogeneous pile which should normally have gone to form a consistent body of legal doctrine, but which on the contrary, comprises many dis- connected fragments moving in a confused way under the impulse of different principles. He concludes that the verdict which must be reached regarding this branch of the law is that it was marred in the making.1 Efforts at judicial and legislative reform have not proved very successful.2 The right of privacy, on the other hand, is of quite recent development. Its origin is the remarkable law review article of Messrs. Warren and Brandeis, published in 1890,3 and the first decision of a court of last resort recognizing the right was in the current century.4 At the start the judicial Dean, Vanderbilt University School of Law. 1. 1 STnEET, FOUNDATIONS OF LEGAL LrLnmrry 273 (1960). For treatment of the history of defamation see Donnelly, History of Defamation, 1949 Wis. L. 1k~v. 99; Green, Slander and Libel 6 AM. L. REv. 593 (1872); Lovell, The Reception of De- famation by the Common Law, p. 1051 supra; Veeder, History and Theory of the Law of Defamation I, 3 CoLum. L. REV. 546 (1903); Veeder, History and Theory of the Law of Defamation 11, 4 CoLum. L. REv. 33 (1904). 2. The most ambitious attempt at legislative reform is the English Defamation Act, 1952, 15 & 16 GEo. 6 & 1 ELiz. 2, c. 66. See REPORT OF THE CoMMirrEE ON THE LAW OF DEFAMATION, Cmd. 7536 (1948). 3. Warren & Brandeis, The Right to Privacy, 4 HARv. L. REv. 193 (1890). Slightly earlier, Judge Cooley had spoken of the right to be let alone. COOLEY, TORTS 29 (2d ed. 1888). 4. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). 1093

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