Privacy then and now – a French connection to supplement #Leveson’s history lesson

By MARK PEARSON

Lord Justice Brian Leveson – who delivered his 2,000 page report on the British press on November 29 – addressed us in Sydney yesterday on ‘Privacy and the Internet’.

He steered well clear of commentary about his landmark report and its recommendations.

Instead, he drew upon some of the historical foundations of privacy law as a platform for an exploration of the issues surrounding privacy regulation in the Internet era.

His concluding comments demonstrated that link:

“(W)hile established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed.

“The rise of the media produced Warren and Brandeis’s famous dissertation on privacy law.

“The internet may well – and no doubt will – require us to think as creatively as they did.

“Only if we do so will we properly understand the role and values which underpin privacy and freedom of expression, the balance to be struck between them and the means to ensure that they are both safeguarded in an internet age.

“The answers we reach might differ from those we have reached in the past.”

Lord Justice Leveson devoted the first several minutes of his speech backgrounding the interface between nineteenth century technological innovations contributing to the famous Harvard Law Review article – ‘The Right to Privacy’ – by lawyers Samuel Warren and Louis Brandeis.

I also recently explored some of the historical background to privacy in my book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – and discovered a French connection in the process.

Here is an edited excerpt for those who may be interested.

Privacy rights and protections are a fairly recent legal development. For centuries gentlemen in Europe (and later North America) settled personal embarrassments and insults using the strictly codified practice of the duel – well documented in Best Served Cold – Studies in Revenge. Even today the tribal laws of many indigenous peoples invoke a physical punishment such as a beating or stoning for causing another to ‘lose face’ in a community – actions covered by both privacy and defamation laws in the developed world. While French courts were developing privacy law in the 1860s there was no notion of a formal ‘right to privacy’ in the English speaking world. Laws in the US, Britain and its former colonies had evolved over centuries to protect the individual’s space and reputation in several ways, including defamation, copyright, trespass, nuisance and confidentiality.

Let’s journey back to Paris in 1867, when gentlemen still duelled to the death over matters of pride. The practice was masterfully recorded by the writer Alexandre Dumas père in his novel The Three Musketeers. In real life, Dumas lived the extravagant lifestyle of the famous author in an era when the stars of print were the equivalent of screen idols today. He was besotted with 32-year-old actress Adah Isaacs Menken – the Paris Hilton of her time – regarded by some as the first female cult celebrity. The lovebirds posed for some saucy photographs (she in her underwear and he without the compulsory gentleman’s jacket) but the photographer then tried to trade on their celebrity by registering copyright in the images. Dumas felt aggrieved but, as James Q. Whitman explained in the Yale Law Journal, the court held his property rights had not been infringed. However, the judge decided Dumas did have a right in privacy that trumped any property right the photographer might have held. With that decision, privacy was born as a right in the legal world.

Across the Atlantic two decades later, in 1888, Michigan Supreme Court Justice Thomas Cooley wrote of a ‘right to be let alone’. Then, in a landmark Harvard Law Review article in December 1890, the great US jurist Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis announced a new ‘right to privacy’ in an article by that very name. Warren had been angered when a daily newspaper had published the guest list of a high society dinner party his family had hosted at his Boston mansion, which he saw as a gross invasion of his privacy. The right to privacy owes its existence to a wealthy lawyer who resented the media prying into his personal life.

Warren and Brandeis wrote: ‘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’. Their words were chillingly similar to those used by the critics of celebrity gossip mags and websites today, particularly in the wake of London’s News of the World scandal which triggered the Leveson Inquiry.

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

[Media: For review copies please contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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