The Gazette 1975

mation to the public". (Bridge, ed.,

Fundamental

Rights,

1973, 44.)

The

purpose

of a right to privacy was described in an

influential article on privacy by Warren and Brandeis

(1890) in which it was defined as being ".. . to protect

those persons with whose affairs the community has no

legitimate concern from being dragged into an undesir-

able and undesired publicity and to protect all persons,

whatsoever their position or station from having matters

which they may properly prefer to keep private made

public against their will". (4

Harvard

Law

Review,

193, at 214-215).

There are four major areas which call for considera-

tion : (i) where there is an intrusion upon a plaintiff's

seclusion or solitude or into his private affairs; (ii)

where there is public disclosure of embarrassing private

facts about a plaintiff; (iii) where the publication

places a plaintiff in a false light in the public eye; (iv)

where a plaintiff's name or likeness has been appro-

priated for a defendant's advantage. (See O'Hann-

rachain :

Privacy and Broadcasting

1971 I.L.T. 225).

To an extent the civil law action for Breach of Con-

fidence may protect the plaintiff in one or more of the

above situations. In an appropriate case an injunction

can be granted to restrain disclosure of information

which has originated in a Breach of Confidence. The

remedy is half-way between recognition of a right to

privacy and no right at all. It is interesting to note the

early case of

Prince Albert

Strange

(1849) 2 De G.

& Sm. 652, in which the Prince Consort successfully

sued for an injunction to prohibit the publication of a

ciftalogue of etchings drawn by the Prince and Queen

Victoria for their own private use. The judgment of the

old High Court of Chancery might be said to recognise

an embyonic right to privacy although subsequent

developments at Common Law would disprove this.

Some attempts are at present being made to broaden

the scope of the Tort of Breach of Confidence. For

example, Ungoed-Thomas J. in

Argyll

(1967)

Ch. 302, stated that "An injunction may be granted to

restrain the publication of confidential information not

only by the person who was party to the confidence

but by other persons into whose possession that infor-

mation has improperly come". In that case, the Duke

of Argyll was prohibited from disclosing marital con-

fidences between the Duke and Duchess of Argyll

which had taken place during their marriage.

In the United States, "freedom of speech or of the

press" is guaranteed in the First Amendment and this

constitutional provision has there influenced the de-

velopment of the right to privacy and the law of de-

famation. In

Melvin

Reid

112 Cal. App. 285 (1931)

a Californian court restrictively interpreted the freedom

to encroach upon an individual's private life—although

this could not be described as a predominant trend in

United States case-law. In the case in question, a

woman had in her early years led the life of a prostitute

and been, among other things, acquitted in a murder

trial. A film was made portraying all this at a time

when the plaintiff had "taken her place as a respected

and honoured member of society". The facts came as a

surprise to many of her friends. The court held for the

plaintiff against the film company on the basis that

society's interest in rehabilitation of the character out-

PLEA

When writing to your colleague it is not only

good business but good manners to quote his re-

ference. The failure to quote references particul-

arly when writing to large firms means that any-

thing from twenty* four to forty eight hours can

be lost in dealing with the letters through the

inability to trace the particular person who is

dealing with the case.

Even if you don't quote the reference we would

suggest that you should head the letter "Your

client—Our client" which helps in most cases.

Solicitors are not the only defaulters in this

respect. Banks and Government Offices are also

major defaulters. If you want your client's affairs

dealt with promptly quote your Colleague's re-

ference so as to make certain that the letter gets to

your opposite number and can be dealt with.

weighed any public curiosity in knowing about the past

indiscretions of the rehabilitated. In at least 35

States, a right to Privacy has been recognised either by

Statute or at Common Law. At the same time United

States case-law tends to the view that while the lives

and actions of private individuals should be protected

from unwanted interference, nevertheless the public has

a right to information about matters and people whose

lives and activities are of genuine

public

interest.

The case of

Time Incorporated

Hill

(ante) illus-

trates this point. Hill was a private citizen in no way

desirous of attracting public attention who had been

held hostage along with his family in his own house by

three escaped convicts. At the time the incident had

received widescale newscoverage but subsequently Hill

had once more sought and managed to maintain the

obscurity of private life. Three years after the incident,

Life

magazine published an article about a new play,

The Desperate Hours.

The play portrayed a fictionalised

account of a family being held hostage by escaping

convicts. The play differed from the real life episode

in that it was an exaggerated and sensational revival

of the facts. The courts had to determine whether Hill

was entitled to damages for breach of the New York

privacy statute which allowed a civil action for the

unauthorised use of a person's "name, portrait or

picture" for "advertising purposes, or for the purpose

of trade" without that person's written consent. Al-

though at first instance

Life

were held liable, on appeal

the Supreme Court by a majority held that the subject

matter of the article, the opening of a new play linked

to an actual incident, was a matter of legitimate public

interest. As such it was protected by the First Amend-

ment; this protection would not be granted if the

publisher knew of the falsity of the material or acted

recklessly as to its truth or otherwise. The case is

unsatisfactory if one looks for guidelines in it as to

what constitutes a matter of legitimate public interest.

The dissenting opinion of Fortas J. deserves mention.

.225