The Ninth Circuit's Invasion of the Tort of Invasion of Privacy
![handle is hein.journals/cconsp11 and id is 245 raw text is: THE NINTH CIRCUIT'S INVASION OF THE TORT OF
INVASION OF PRIVACY
Harvey L. Zuckman*
I. INTRODUCTION**
The tort of invasion of privacy has had a short
but tortuous development made even more tortu-
ous by a number of recent rulings by the United
States Court of Appeals for the Ninth Circuit. This
common law tort does not begin with the normal
judicial iterations that created and sculpted other
torts.' Rather, it began life as a law review article
prompted by personal pique.2
One of the co-authors of the law review article
was Samuel D. Warren, a socially prominent Bos-
ton lawyer who felt that he was being unfairly
hounded by the news media. The final straw for
Warren was the press' encampment around his
home during a party for his daughter. When he
returned to his law office still fuming over the in-
cident, he is alleged to have said to his law partner
Louis D. Brandeis, who would later become ajus-
tice of the United States Supreme Court, that
there must be some basis in the law to protect
himself and his family from such intrusiveness by
the press.3 Out of Warren's pique and Brandeis'
sympathy for his partner's plight came the famous
article that gave birth to the tort of invasion of pri-
vacy.
* AB University of Southern California, 1956, LLB New
York University, 1959, and Ordinary Professor of Law and
former Director of the Institute for Communications Law
Studies at the Columbus School of Law of The Catholic Uni-
versity of America.
** Portions of sections I and IV are reprinted from
Chapter Four in HARVEY L. ZUCKMAN, ROBERT CORN-REVERE,
ROBERT M. FRIEDEN and CHARLES H. KENNEDY, MODERN
COMMUNICATIONS LAW (West Group 1999) with permission of
the West Group.
I E.g., assault (I. de S. Wife v. W. de S. [1348 or 1349]
Y.B., Liber Assisarum, folio 99, placitum 60); intentional in-
fliction of emotional distress (shock) (Wilkinson v.
Downton, [1897] 2 Q.B. 57); modern negligent infliction of
harm (Brown v. Kendall, 60 Mass. 292 (1850)).
2 Samuel D. Warren & Louis D. Brandeis, The Right to Pri-
vacy, 4 HARV. L. REv. 193 (1890).
3 Id.
In the article published in the Harvard Law Re-
view, the two men argued that historically, the
common law protected personal privacy. But their
central authority for this proposition is doubtful
at best. The case they relied on was Prince Albert v.
Strange.4 There, Queen Victoria's consort brought
an action to enjoin not only the reproduction of
etchings made by the royal couple for their own
pleasure but also the publication of a summary
description of the works. The court went beyond
established common law protection of intellectual
property because a mere summary description or
simple listing of the etchings would hardly have
qualified as an invasion of any property interest.5
Vice-Chancellor Knight Bruce said that the courts
in proper cases would prevent injurious disclo-
sures as to private matters.6
It does not appear to have occurred to Warren
and Brandeis that Prince Albert v. Strange may just
have been a sui generis hometown decision favor-
ing the nominal ruler of the court handing down
the decision. Up until recently, the English courts
have not recognized an independent right of pri-
vacy as to all the mere subjects of the realm.7
Given its dubious birthright, it was little wonder
that the first court to consider the claim of com-
4 2 De Gex & Sm 652, 64 Eng. Rep. 293 (V.C. 1848), on
appeal I McN. & G. 25, 64 Eng. Rep. 293 (1849).
5 Id.
G Id.
7 SeeAnderson v. Fisher Broad. Co., 712 P.2d 803, 808-09
(1986); REPORT OF THE COMMITTEE ON PRIVACY, CMND. 5, No.
5012 (1972); Diane L. Zimmerman, Requiemfor a Heavyweight:
A Farewell to Warren and Brandeis's Pivacy Tort, 68 CORNELL L.
REV. 291, 342 n.268 (1983). Only in 2001, was a nascent right
of privacy apparently recognized. See Douglas v. Hello! Ltd.,
[2001] W.L.R. 992, 1033, para. 110 ([W]e have reached a
point at which it can be said with confidence that the law
recognizes and will appropriately protect a right of personal
privacy.) (per Sedley, L.J.); Stephen Boyd, Does English Law
Recognize the Concept of an Image or Personality Right?, 13 ENT.
L. REV. 1, 7-8 Uan. 2002) (English courts have not moved
with the times.).](ViewImageLocal?handle=hein.journals/cconsp11&div=21&collection=&method=preview&ext=.png&size=3)
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The Ninth Circuit's Invasion of the Tort of Invasion of Privacy
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