Development of Privacy Rights
The preservation of privacy rights is a relatively recent phenomenon in this country. Before 1850, privacy was basically a manifestation of geography, architecture, town and rural planning, heritage, and so on. Personal privacy was an issue concerning the circumstances of an individual immediate to the environment and home, rather than a moral, natural and legal right.
Today, however, privacy includes the aspects of personal autonomy – an individual’s ability to choose the circumstance and time under which and the extent to which their attitudes, beliefs, behavior and opinion are to be shared with or withheld from others. Recently, this has been dubbed “disclosural privacy.”
The right of privacy is closely related to the law of libel. Libel protects primarily a person’s character and reputation. The right of privacy protects a person’s peace of mind, feelings, sensibilities and spirit. Furthermore, libel always involves falsity. Invasion of privacy may involve disclosure of the truth.
Privacy is subjective, which makes it impossible to develop a single statute to protect it without infringing on other values of our society, i.e. freedom of information. Therefore, federal and state laws have been aimed at the protection of the types of information available rather than assuring a more broad right to privacy.
Today, the closest the U.S. Constitution comes to defining and discussing privacy is the Fourth Amendment, which grants individuals the right to be secure in “their persons, houses, papers, and effects from unreasonable searches and seizures.” This amendment is the reason why government officials must get a warrant any time they want to obtain information by searching homes, tapping phone lines, opening mail, or placing “bugs” for surveillance.
The Fourteenth Amendment also provides constitutional guarantees of personal privacy to activities relating to marriage, procreation, contraception, child rearing and the home:
“… no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fifth Amendment provides protection against disclosural privacy by preventing government from compelling testimony from an individual for use in his criminal prosecution that may lead to self-incrimination. It does not forbid compulsion of testimony that is not incriminating or when immunity from prosecution is granted.
Recent Supreme Court rulings have stated that an individual's written records are not covered by the Fifth Amendment's testimonial privilege. The Fifth Amendment does not protect private information, only compelled self-incrimination.
The courts have sorted out divisions between individuals and groups who are entitled to rights or privacy. Public officials have no right to this with regard to their conduct in public office. Corporations and public institutions have no right to privacy, unless there is another, separate statute protecting them.
According to the Supreme Court's findings, the right to privacy only exists for living persons, of which possess feelings and sensibilities. Therefore, the right of privacy dies with the person. The Court has recognized rare instances where protection of celebrities’ privacy is granted to the heirs after death, whereas a commercial exploitation change exists.
Generally, a person’s privacy can be invaded in one of four generalized ways:
- Intrusion (physically or otherwise) upon the solitude/seclusion of another, or in their private affairs or concerns. Actual publication of information is irrelevant to an “intrusion” claim. This is usually a “newsgathering” offense.
- Publicizing private matter would offend the normal sensibilities, such as sensational disclosures. In this violation, private facts must be disclosed.
- Publicizing in a false light is closely related to libel because it involves the element of falsity.
- Appropriation involves using a person’s name, likeness, or personality for advertising/commercial purposes or for one’s own use or benefit (a.k.a. “Right of Publicity”).
When the purposes of sacrificing privacy for public interest are selfish ones or other considerations determine the use to be not in the public interest. The rights of privacy prevail.
Source:
Illinois Press Association Guide to First Amendment & Illinois Access Laws (1995)
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