Anglo-American privacy law: An economic analysis

I~terna~jona~ Review of Law and Economics

ANGLO-AMERICAN

(1985), 5 (133-152)

PRIVACY LAW: AN ECONOMIC ANALYSIS

CHARLES

3. HARTMANN AND

STEPHEN

M. RENAS*

Wright State ~~~vers~ty, Dayton, Ohio, USA I. INTRODUCTION The law of privacy has enjoyed almost a full century’s growth in the courts of the USA from its early recognition in the seminal 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis.’ Prior to the appearance of this in~uential article, Prosser states that ‘. . . no English or American Court ever had granted relief expressly based on the invasion of such a right. . . ‘.2 It is said that English Courts have refused to date to recognize the right of privacy as a separately protected interest, although protection is afforded under other theories such as nuisance, defamation, and breach of confidence where the incidental effect is to protect privacy.3 The view that English law does not afford separate pureprivacy protection has been the basis of the conventional wisdom,4 until very recently. In an important new article in the Oxford Journal of Legal Studkq5

however, Seipp suggests that English courts have now begun to recognize a free standing, separate right to privacy, and finds that ‘the right to priv_acy, now a fixture of English law, will prove fruitful for decades to come.“j This definitive work may provide British and Commonwealth Courts with a legal rationale for the further development of the right to privacy similar to that afforded to American courts by the Warren and Brandeis article a century ago.’ As the privacy* theory has developed in the USA, four recognizable interests have been identified in the case law: unreasonable intrusion upon one’s seclusion, appropriation of one’s name or likeness, unreasonable publicity given to one’s private life, and publicity that places one in a false light before the public.9 These categories, first identified by Prosser,go provide a classification system to sort the rapid development of American case law. This paper will first discuss these categories of American law and the American defenses. We will then compare the English case law which ‘relates to the American categories. We will next turn to the rich body of *The authors acknowledge the research assistance of Teresa Mueller Cochran, Esq. and Jose Rodriguez of Wright State University and the constructive ediroriai comments of Cosmo Graham of the University of Sheffield and Michael Solimine of the law firm of Porter, Wright, Morris and Arthur of Dayton, Ohio. A grant from the University Research Council of Wright State University made it possible to conduct a portion of the research for this paper at the Institute of Advanced Legal Studies, The University of London. The assistance of the staff at the Institute is gratefully acknowledged. 01~8188/85/02

0133-20 $03.50 0 1985 Butterworth & Co (Pub~ishers~ Ltd

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economic analysis of American privacy law,11 and in particular, the economic analysis by Judge Posner. l2 Finally, by applying the principles of economic analysis to English law, we will attempt to determine which body of law, the American or the English, seems to be more economically efficient. 11. THE LAW OF PRIVACY IN THE UNITED STATES The recognition and development of the American law of privacy was said by Prosser to be an outstanding illustration of the influence of legal periodicals upon the courts.13 The well-known article by Warren and Brandeist4 suggested that the recognition of an independent tort action in the protection of one’s right to privacy would provide broader protection than previous decisions which afforded relief on the basis of defamation, invasions of a property right or breach of confidence or an implied contract.r5 Others have argued that the Warren and Brandeis article, which was essentially a protest against press abuse of the boundaries of propriety and decency in describing the intimate details of the lives of prominent persons, did not ‘invent’ privacy; it merely signified its emergence as a common concern in the more heterogeneous and crowded society of the late 19th century. 16Indeed the claim is made that the law of privacy was Prosser’s own invention more so than Warren and Brandeis. ‘. . . He gave privacy a doctrinal unity and continuity that it had not previously possessed.‘t7 Currently, by statute or common law decision, the right of privacy is recognized in virtually every state of the union and is expanding to cover an ever widening group of physical and emotional harms.18 To date, four distinct categories of complaints sounding in an invasion of privacy theory have been recognized by the authoritative Restatement of the Law of Torts,t9 which is published by the American Law Institute. Each category will be considered in the order of its common law recognition. AppropriationZo The emerging tort of privacy encompassed different types of complaints. The earliest form, emphasized by Warren and Brandeis, dealt with wrongful appropriation of one’s likeness or name for commercial gain. Thus in an early case, Roberson v. Rochester Folding Box CO.,~’ the New York Court of Appeals failed to provide relief when a young woman’s likeness was used to advertise the defendant’s flour. The public outcry against this decision forced the New York legislature to enact a statute providing for criminal and civil penalties to make use of one’s name or likeness for advertising purposes without their consent.22 Shortly thereafter, the Supreme Court of Georgia in vindication of the Warren and Brandeis article found a common law right of privacy on similar facts when an insurance company appropriated not only plaintiff’s name and likeness but attributed to him a commercial endorsement. 2s Wrongful appropriation has come to mean that the defendant attempts to gain some personal advantage by trafficking in plaintiff’s identity. Thus plaintiff must show not just the use of his name or likeness, but that defendant has attempted to tie to plaintiff’s identity for commercial gain. The plaintiff is said to have a right to license his own identity.24 Accordingly, recovery has been granted against a dog food seller for a photograph portraying a blind plaintiff and her guide dog,2s and against a photocopy equipment company for an advertisement which identified an attorney as a satisfied customer.26 But, in the absence of statutes, the estates of deceased persons may not recover in wrongful

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cases,27 nor may family members recover unless their own privacy is In trusionz9

A second type of privacy complaint involves intrusions into one’s solitude or seclusion through defendant’s persistent prying. The privacy interest protected in the appropriation complaints is to protect the plaintiff’s property in his own identity and thus the element of secrecy is not at issue. In the intrusion complaints, plaintiff seeks freedom from unwanted invasion of his personal space or a right to be left alone.30 The thing into which defendant may not pry must be private, as when plaintiff is in the confines of his home. Recovery has been permitted against a landlord who installed listening and recording devices in a tenant’s bedroom,31 and against the news media for unpermitted entry into plaintiff’s home to interview and photograph her minor children.32 In most circumstances, the plaintiff loses his right to be left alone when he enters the public arena, although one case permitted recovery when defendant photographed a woman whose skirt had blown up in a public fun house.33 Public disclosure of private facts34 By the early 1930s a third privacy cause of action was recognized in the public disclosure of private facts. Two leading ‘disclosure’ cases serve as examples. A reformed prostitute and defendant in a murder trial recovered against a defendant who used her actual name in a motion picture seven years later.s5 And, in an earlier Kentucky case, defendant was liable when he put up a notice that the plaintiff owed him money and would not pay.36 In both cases, the information made public was truthful and accurate so that an action in defamation would not lie, and the defendant’s conduct was not sufficiently extreme to permit a successful action in intentional infliction of emotional distress. The recovery here is for public disclosure, and the case elements require an element of publicity. Similarly the facts disclosed must be private and such that disclosure would be offensive by an objective test. Accordingly, recovery was denied where an article was published describing plaintiff’s eccentric adult life in the context of his earlier success as a child prodigy and genius.37 Publicity that places plaintiff in a false light in the public eyg8 The last of the four categories to emerge is said to date to 1955 when Prosser added the ‘false light’ privacy cases to his work.3g The principle cases involve publicity which places the plaintiff in a false light in the public consciousness when the publicity would be highly offensive and the defendant had knowledge of or acted in reckless disregard as to the falsity and the false light in which plaintiff would be placed. While Prosser cites an early 18 16 casea involving the circulation of a bad poem falsely attributed to Lord Byron as an example of this tort, the cause of action had not been recognized by him at all in his 1941 work and in 1955 he identified false light cases as an offshoot of infliction of mental distress. In his 1964 edition, he recognized false light privacy as capable of ‘swallowing up and engulfing the whole law of defamation.‘41 According to the Restatement, 42 the tort depends upon the giving of publicity to portray the defendant in an objectionable false light or false position, otherwise than he is. The defendant had knowledge of the falsity or acted in reckless disregard of the falsity and the false light in which the plaintiff would be viewed.43

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The action will lie notwithstanding a separate possible action in defamation, but the existence of defamation is not necessary to the tort, as where defendant wrongfully attaches plaintiff’s name to a bad poem which is published.G Other cases have allowed recovery where the public could see that plaintiff’s automobile tires were removed by seller who believed the buyer in default,45 where the plaintiff was shown as a cheating taxicab driver,46 or where plaintiff’s name was signed to a petition4’ or a telegram.48 Defenses Absolute privileges The similarity of actions sounding in defamation and in privacy have resulted in comparable defenses. An absolute privilege to publish defamatory material also applies to the publication of matters that invade privacy.49 Absolute privileges are afforded to publish testimony in judicial proceedings, even if they involve the personal, private affairs of the defendant so as to be of a highly offensive and embarrassing nature. These absolute privileges are in a sense ‘immunities’ because they are based on the personal position or status of the defendant. The privileges recognize that because of defendant’s special status they should be as free as possible from liability from privacy infringement. Therefore, the privilege is absolute for the protection of such persons as judges and judicial officers,5o attorneys,51 parties,52 witnesses,53 and jurors,54 who act in judicial proceedings in which they have some relation to the proceedings; legislatorG5 in performance of their legislative functions, and witnesses as part of a legislative proceeding in which they have a relation to the proceeding.56 The privileges also attach to executive and administrative offices in the performance of their duties;57 spouses in their communication to each other concerning a third person;58 and persons such as media defendants which are required by law to publish certain kinds of communications, such as political messages.59 Inferior public officers who lack the requisite position to qualify under absolute privilege rules may rely on a qualified privilege when their communication is required or permitted in performance of their official duties.” Qualified privileges

A qualified or conditional privilege is available when the defendant and the audience share a sufficiently important interest to justify a publication made without malice. Thus, the defenses of qualified privilege not only allow the publication of defamation but also allow the publication of any material which is an invasion of privacy.61 The reasoning follows that if we permit the publication of that which is false and defamatory, we should also permit the publication of that which is an invasion of privacy, yet truthful. Warren and Brandeis 62 held this view and seem to have persuaded Prosser as we11.e3 Thus defendants have a qualified privilege to protect and further their own interest where the recipient’s knowledge of the material will be of use in the protection of the defendant’s interest,64 as where a telephone company has been permitted to monitor calls, or the defendant was allowed to use plaintiff’s name for purposes of insuring the latter’s life, or creditors have made reasonable investigations of an applicant’s credit .65 Other qualified privileges attach when defendant reasonably believes that there is information that affects a third party’s interest and the recipient is one to whom the

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defendant is under a duty to publish or is a person to whom its publication is within the standards of decent conduct .66 In determining whether a publication falls within the decency standards, it is significant that the publication be made in response to a request rather than volunteered, or that a family relationship exists between the publisher and the person whose interest is involved.67 This privilege depends upon the reasonable belief of the publisher that a sufficiently important interest exists to justify a publication and that the recipient is a proper party to receive the publication. Thus statements made for the reasonable protection of a business or domestic interest are within the privilege if made to a proper recipient. Credit agencies have been granted a privilege to report to their subscribers unless they abuse the privilege by negligence or reckless conduct.68 Persons holding common interests69 or family relationships’O are granted qualified privileges based on the interest and well being of members of the groups, as are persons who communicate to a proper party the reasonable belief that the information affects an important public interest.” Special privileges Special privileges exist, in addition to the absolute and qualified privileges heretofore discussed, for the protection of the publication of fair and accurate reports of official actions or proceedings, or of meetings open to the public that deal with matters of public concern.‘* The interest protected here is of the public to know what occurs in official and public meetings. The privilege is lost by a failure to provide a fair and accurate summary or report. Similarly, secondary publishers of material have a qualified privilege if the original publisher was privileged or the secondary publisher believed the original publisher was privileged. An exception is made to permit a telegraph company to publish without inquiring into the original publisher’s privilege because the necessity for prompt transmission precludes the obligation to inquire into privilege.73 Consent The plaintiff’s consent to an invasion of privacy will bar recovery.74 Consent may be expressly or implicitly given as by posing for a photograph with knowledge of the use to which it will be put, or through the plaintiff’s own pursuit of publicity.7s Gratuitous consent is revocable if done before the invasion is complete, whereas a valid contract destroys the plaintiff’s right to revoke consent. An honest mistake by the defendant of plaintiff’s consent is not a defense but may be offered in mitigation of damages. Uniform Single Publication Act Finally, in defense of a privacy action, defendant may raise in many jurisdictions, the Uniform Single Publication Act which provides that there shall be no more than one cause of action for defamation or privacy on a single publication or presentation. Judgment for or against the plaintiff is res judicata on alternative actions arising from a single publication, thus encouraging plaintiff to use alternative theories of recovery in a single suit .‘6 III. THE PROTECTION

OF PRIVACY IN THE ENGLISH COURTS

English courts have been slow to react to the call for the recognition of a right to

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privacy made in 1890 by Warren and Brandeis. ” Many 20th century compendiums of

English law, even those of recent publication, fail to mention privacy as a recognizable interest to be protected under tort theory.7s British publications which do mention privacy take the position that English law does not, and, following the view of the Committee on Privacy (The Younger Committee, 1972),79 should not recognize any general right to privacy.s0 British courts have been accused of judicial inertia in comparison to the initiative in the USAs’ so as to cause the leading English authority on the tort of defamation to state that a general right to privacy does not exist under English Law, and that no judicial or legislative progress had been made in the decade following the Younger Report, except the Rehabilitation of Offenders Act (1974) and a provision in the Consumers Credit Act (1974) entitling persons to a copy of their credit data.s2 The incidental effect of some other English tort theories is to protect what American courts would call a privacy interest. Cases have found a trespass violation for secretly installing a microphone in another’s bedroom,s3 a nuisance for repeated overflights to observe sunbathers,s4 a defamation for the publication of false intimate details of one’s sex lifes5 and a breach of confidence to sell the intimate matrimonial details of life with one’s former spouse.s6 On the other hand, that which American courts would recognize as an invasion of privacy may not fall into any of the existing English tort categories; for example, spying on a bedroom with a telescopic camera, placing a listening device in a hotel bedroom to overhear conversations, publication of one’s embarrassing past acts, and intruding upon another’s conversations in a pub.s7 In this regard, the English courts seem strangely out of step with their Continental counterparts, where the invasion of privacy is generally recognized as a civil wrong in Germany,ss Switzerlands9 and France. 90 In all three countries, the right is well developed, and French privacy law is said to have influenced the development of Warren and Brandeis’s views in the USA.91 Various reasons have been advanced for the reluctance of English courts to assert a general right to privacy. Comment is made about the level of skepticism among English lawyers concerning the effectiveness of general declarations for the protection of rights.92 Others claim that the British possess a stronger tradition of respect for the privacy of individual existence and thus require fewer protections from its abuse.93 While of questionable validity, still others argue against the recognition of a right to privacy because it would open a floodgate of litigation.94 In the period since 1972, following the Younger Report, there has been little legislative reaction to the issues raised therein and the discussion of privacy has become ‘less audible,’ even though there is said to be ‘continuing public concern for privacy’ even in the absence of any new legal protection.95 While the right to privacy remains deeply embedded in the British character, the legal protection afforded it is in confusion. This is itself an anomalous condition worthy of further study. Thus those who have traditionally advocated a general right to privacy and have attempted to identify its existence in English case law have been forced to find it embedded in other traditional legal theories: protection of property interests,96 nuisance theory ,g7 breach of an implied contrac@ or a breach of confidence or trust.9 It is said to be ‘definid that in England the courts do not recognize a right to privacy,’ according to one English barrister. English indeed,

law does not redognize a right to privacy. Without his leave, much, against his will, a famous amateur golfer was photographed when

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making a lusty drive. The resulting picture served to draw attention to an advertisement of somebody’s cocoa. The golfer could only point to an implied libel that being, in fact, as an amateur he made money out of his golfing prowess. It was hopeless to sue in respect of the photography. As Horridge, J. said in Sporr v. ‘Our Dogs’(K. B., 1916), ‘No one possesses a right of preventing another person from photographing him; any more than he has a right of preventing another from giving a description of him.’ If my camera, during a choppy Channel crossing catches the Prime Minister in the throes of sickness, and the picture is used as an adjunct to the announcement of a sure guard against sea-sickness, what then? Why; the Prime Minister might grin, but he would have to bear it.roo

Curiously, Warren and Brandeis were among the earliest to assign to English-case law the protection of a general right to privacy. lo1 To the extent that they relied on English case law to support their conclusions they are now said to be in error.‘02 They relied on the broad interpretation of the ‘right to life’ to mean ‘a right to enjoy life’ by means of a ‘right to be left alone’.rOJ This view has been criticized as a misreading of earlier worksrr“’ in which the ‘right to be left alone’ referred to freedom from assault and battery intrusions. Thus, the right to be left alone, which was central to the Warren and Brandeis argument, originally had no relation in English law to privacy protection.lo5 In contrast to this conventional wisdom which holds that English case law offered no basis upon which Warren and Brandeis could find their right of privacy in 1890, and that English law today, neither by legislative act nor precedence, establishes a right to privacy,‘06 there is now emerging anew the argument that some level of protection of a general right to privacy is extant in England. The most recent exponent of this view takes the position that in the last several years English courts have invoked a right to privacy without taking the final step of creating a new legal right of action in tort, and that privacy law is no longer an incidental by-product of other torts.r07 We will examine, for purposes of comparison, the four categories of privacy protections recognized by the Restatement and Prosser in American law and apply them against English case law to determine to what extent if at all, privacy protection is indeed found in England. Appropriation

in England

There appears to be limited traditional tort theory protection available in England comparable to the privacy appropriation theory*O* in the USA. Under theories of a common law copyright or a right of first publication theory, Prince Albert was spared the commercial exploitation and embarrassment of unwanted publication of sketches by him of his family. lo9 On similar property theories, damages were awarded against a bridal party photographer who sold a negative which included the image of a murdered relative and the publication was intended to cause distress to the family.rrO Defamation theory is available as an alternative theory as in the case of the golfer whose amateur reputation was said to be injured when an advertisement portrayed him as endorsing a chocolate bar.111 In other cases of appropriation of another’s likeness for commercial purposes, English law would grant relief under unfair competition theory, particularly in instances where the plaintiff would be in a position to exploit his likeness in his own interest, as in the case of an entertainer or sports personality who would suffer an economic loss by the defendant’s wrongful appropriation. This wrong is said to be

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similar to palming off one’s own goods as those of the plaintiff’s and thus appropriating, wrongfully, the plaintiff’s own interest in his good will.rr* It appears that English law will protect only the commercially active plaintiff who can exploit his own likeness, whereas under the American theories of appropriation a non-commercial plaintiff would have a cause of action. One case involved a successful action under English law by a non-commercial plaintiff whose image had been exhibited for sale on Christmas cards. The case was decided under breach of contract and abuse of confidence theories against a commercial photographer, and an injunction, not damages, was awarded. The use of a person’s name without his authority may be restrained by injunction under a passing off theory if it is calculated to cause him pecuniary loss.rrs One searches without success for an English case in which anon-commercial plaintiff can recover in damages for wrongful appropriation of his name or likeness. This is in marked contrast with the case law in the USA and the rule of the Restatement. Thus appropriation protection is possible under the English law of property, defamation and unfair competition, but English law does not appear to include within its definition of property the right of a non-commercial person to damages for wrongful appropriation of a name or likeness. Intrusion in England Protection again intrusions upon one’s seclusion or solitude in England is provided by the traditional tort theory of trespass to person or property which prohibits entry onto private territory in the absence of consent or authority. Thus case law abounds with prohibitions against the publication of photographs obtained by breaking into a home or crashing a party, II4 but it is the surreptitious and unlawfu1 presence of the photographer rather than the affront to the plaintiff’s seclusion which is the gist of the wrong. No remedy is presently given to one who complains that his photograph has been taken without his permission, unless the intrusion is by way of a technical trespass, or the publication is defamatory.l*5 Thus the publication of telephoto pictures of Princess Margaret in a swimsuit was actionable because they were taken from the Queen’s private grounds, rather than because of the intrusion upon her privacy.“6 There appears to be no common law protection against the interception of private telephone messages, nor against blatant commercial espionage except under circumstances of trespass, or other individual tort theories.rr7 In the absence of actual wrongful entry, nuisance theory is available to restrain certain intrusions such as the constant watching of a plaintiff or persistent telephone calls. But no remedy appears to exist against many annoyances on neighboring property such as the obstruction of a view, or the use of a high structure to overview and broadcast reports of a plaintiff’s race course, neither under an unfair competition nor injurious trade practices theory and certainly not in privacy.“* Criticism of this lack of protection is abundant in the literature. ‘There is clearly a need for some development of the law here if the right of individual freedom is to be safeguarded properly in an age of such scientific achievements as microminiature radio transmitters, subliminal and subaudial projection of images, truth drugs, the tape recorder, telescopic cameras and television, ‘i19 To the extent that the lack of protection is to be removed, it appears more likely to be by way of legislative relief than court recognition of a general right to privacy.

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Public disclosure of private facts in England This area is said to provide the most notable gap in legal protection under the existing law. English defamation law provides adequate protection against the disclosure of false information. But, unlike America and some other Commonwealth jurisdictions, English law affords no privacy remedy even where the publicity serves no sound public purpose.120 Thus English law would provide co privacy remedy against a newspaper which published truthful but sordid facts from the past about a reformed prostitute and murder defendant who had rehabilitated her life, while American courts would recognize that plaintiff’s right to privacy had been invaded. Arguably, the public interest in plaintiff’s rehabilitation was advanced by the California court which awarded damages, while the English court would provide no reinforcement for the public interest since the facts were true and not actionable under defamation. Only under the 1974 Rehabilitation of Offenders Act would a remedy be available on these facts.‘*’ A formula for balancing the interests of the press in commenting on past facts and the interests of persons to have their past histories protected was proposed in Lord Mancroft’s The Right to Privacy Bill (1961), which was defeated in the House of Lords because of strong press opposition.122 The proposed bill drew heavily on the American law of privacy and would have excepted certain persons from privacy protection such as public figures and those who either sought publicity or had it thrust upon them by some public event. Thus through rejection of privacy actions by both the courts and parliament, the individual need for protection against media disclosure of past true facts remains largely unrecognized. In the absence of legislation, the protection is said to be interstitial; falling between other related torts with significant gaps in coverage. False light in England English law offers no direct protection to plaintiffs who seek protection against publicity which holds them out to the public in a false or misleading way. As in the other categories of American privacy protection, English courts look to other traditional tort theories in affording limited protections. Thus defamation theory rather than privacy protection appears to be the only current theory available against attempts to broadcast secretly recorded television film of a hotel’s interior.123 Dictum in the case refers to the possibility of bringing the action on the ‘emergent iort’ of privacy but then the judge offers an unwillingness ‘to be the first to break new ground on that front.’ In older cases, English defamation theory was clearly the protection afforded even though false light privacy actions would have been available in America. Thus a man acquitted of murder succeeded in defamation theory in having an effigy of himself removed from Madam Tussaud’s wax museum in London.124 When defamation is the protection afforded, courts are faced with a variety of defenses; truth, fair comment, and absolute and qualified privilege among others. English courts inclined to provide privacy protection are forced to look for inaccuracies or lack of privileges to defeat these defenses in defamation theory.125 In addition to defamation, English courts have used the traditional tort theories of copyright infringement’*6 and passing off’*7 to provide protection against false light privacy invasions.

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Two recent opinions have been heard on the question of whether English law is likely to recognize a general right to privacy similar to that in America. Street unequivocally denies that any English court has yet recognized that a pure infringement of privacy is a tort in the absence of some other traditional theory.tZ8 His view is that such a tort is unlikely to emerge from a common law and chat only by statute will such protection be afforded. In the opinion of Seipp, Enghsh courts ‘have come closer and closer to recognition of a general privacy interest. . . as one of the rights of every Engiish subject, ‘1.~9He attributes the failure of Parliament to establish a legislative remedy to the organized power of the British press, Furthermore, he thinks English legal scholars and lawyers have provided obstacles to common law recognition by their criticisms of the breadth of privacy law in the USA. Nevertheless, Seipp thinks English courts have built up piecemeal the broad right to privacy previousiy rejected in earlier cases.i3* It is clear that even if Seipp is correct in anticipating that English courts are about to recognize a unified law of privacy, considerable protections exist in America which are not found under English law. This paper now proceeds to describe the views of the leading economic analyst of US privacy law, Judge Richard Posner. We attempt to describe the approach Posner uses to analyze the US law and then apply Posner’s theories to Engfish law to determine whether Seipp’s promise of the emergence of a new privacy tort in England would receive a welcome response from the field of economic analysis. IV. ECONOMIC

ANALYSIS

The economic analysis of privacy law, like the economic analysis of tort law in general, centers on the efficiency of various competing rules of liability. Richard Posner-previously Professor of Law at the University of Chicago and former editor of the Journal of Legal Studies, now a Federal Judge-is generally recognized as one of the leading spokesmen for the position that tort law ought to be consistent with the requirements of economic efficiency, and, indeed, is consistent with these requirements in a large percentage of cases in the USA. Although Posner is the leading spokesman for this position, a number of other scholars, including Brown, Green, Polinsky and Shaveil, share similar views. The term ‘economic efficiency’ refers to a situation in which finite resources are utilized to produce products and/or to provide services to meet the needs of society most effectively. Economically efficient liability rules in tort law refer to rufes which most effectively achieve a desired objective (given the distribution of income). The objective may be the maximization of a mathematically constructed sociai welfare function. Or it may be the provision of information which is necessary to make rational and informed judgments. The approach that will be taken in this section is to compare English and American privacy law and to determine whether English law or American law is more consistent with the requirements of economic efficiency.

The economic issues inherent in appropriation cases are discussed by PosnerConcerning trade secrets and commercially usefu1 information, Posner writes: The interest in encouraging valuable information presents

in the production of socially the strongest case for granting rights in

investment

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secrets. This is the economic rationale for according legal protection to the variety of commercial ideas, plans, and infarmation encompassed by the term ‘trade secret.‘r3r Concerning the use of someone’s consent, Posner argues:

name

or likeness

for commercial

gain without

In the earliest cases involving a distinct right of privacy [in the USA], an advertiser uses someone’s name or photograph without his or her consent. The classification of these as ‘privacy’ cases is sometimes criticized because often what the law protects is an aversion not to publicity but to not being remunerated for it. Many of the cases involve celebrities avid for publicity. But this characteristic of the cases is an embarrassment only to a tort theory that seeks to base the right to privacy on a social interest in concealment of personal information-an unattractive approach. . . There is a perfectly good economic reason for assigning the property right in a photograph used for advertising-purposes to the photographed individual; this assignment assures that the advertiser to whom the photograph is most valuable will purchase it. Making the photograph the communal property of advertisers would not achieve this goal.“? The law in the USA is broadly consistent with the economist’s view of efficiency in the appropriation area. In a well-known case,133 aerial photography of a competitor’s plant under construction was actionable; the term ‘commercial privacy’ was used to

describe the interest protected. If such an action were not tortious, the information obtained from the aerial photographs may have yielded information to a competitor that could have prevented the pIaintiff from capturing the full social benefit of its activities. The result would have been a suboptimal level of investment activity. Also, failure to make such an action tortious would have resulted in the plaintiff utilizing additional resources to prevent the sensitive portion of the plant from being visible from above. The court’s decision in this case liberated the resources which would have been used for this purpose to be used elsewhere. The finding in this case, therefore, was economically efficient. Also, use of one’s name and/or likeness for commercial gain in the USA is actionable. This is true whether the plaintiff is a private person or a public person. The court in Eick found for the plaintiff and granted recovery against a dog food seller for a photograph portraying a blind plaintiff and her guide dog. 134The court found similarly in Fairfield, wherein a photocopy equipment company ran an advertisement which identified an attorney as a satisfied customer.tss Appropriation may be actionable in England under common law copyright, right to first publication, breach of contract, and other legal theories. However, in general, English law provides less protection against appropriation than US law, and is therefore less in agreement with the economics of the issue. There appears to be no common law protection against blatant commercial espionage in Britain except under circumstances of trespass or other tort theories. 136This is not the case in the USA. In England, using a nearby high structure to overview and broadcast reports of plaintiff’s race course is not actionable ,t3’ whereas it would be actionable in the USA. What is particularly puzzling about English law in the appropriation area is that relief is granted when one appropriates the name or likeness of a commercially active plaintiff, but not when one appropriates the name or likeness of a plaintiff who is not commercially active. The theory behind this distinction appears to be that the commercially active plaintiff is in a position to exploit his name or likeness in his own interest, and that he suffers an economic loss by the defendant’s wrongful appropri-

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ation. it is assumed that a non-commercially active plaintiff suffers no loss when his name or likeness is appropriated for commercial gain; yet, there is no economic basis for such a distinction. If an advertiser uses the likeness of an unknown person for commercial gain, it is clear that the person’s likeness is of commercial value to the advertiser. The fact that the advertiser uses the photograph of a specific person suggests that this person’s photograph was considered to be of particular value. If this is the case, then the person whose likeness was used in the advertisement may possess certain characteristics which make him marketable. But instead of speculating about his marketability and the value of his photograph to advertisers, why not let the market decide? In this way, an individu~ is given a property right in his own likeness, and the market will insure that if there is potential commercial value in the person’s photograph, the firms which can use the photograph most efficiently will be licensed to do so, and those that cannot use the photograph as efficiently will not be so licensed. To grant the property right in one’s likeness to advertisers in general may result in several competing firms using the same person’s photograph, thereby reducing its value to near zero. ‘38If, in fact, the unknown person’s likeness is of no more value to the advertiser than anyone else’s likeness, the market will reflect this fact also. Intrusion and publicdisclosure ofprivate facts The privacy interests concerning intrusion and public disclosure of private facts will be discussed together, for reasons that will become clear in this section. The economic position on public disclosure of private facts is expressed in the following passage by Posner: We would think it wrong (and inefficient) if the law permitted a seller in hawking his wares to make false or incomplete representation of their quality. But people ‘sell’ themselves as well as their goods by professing high standards of behavior to induce others to engage in advantageous social or business dealings with them, while concealing facts that these acquaintances need in order to evaluate their character. There are practical reasons for not imposing a general legal duty of full and frank disclosure of one’s material personal shortcomings. But, shouldn’t a person be allowed to protect himself from disadvantageous transactions by ferreting out concealed facts about individuaIs which are material to the implicit or explicit representations that these individuals make concerning their moraf qualities? It is no answer that people have ‘the right to be Ieft alone,’ for few people want to be left alone. Rather, they want to manipulate the world around them by selective disclosure of facts about themseIves.‘39 In the economic view, public disclosure of private facts serves an important social function-it allows individuals to form a more accurate picture of those with whom they transact or with whom they are considering transacting. Yet would not public disclosure of embarrassing private facts about someone provoke irrational reactions by prospective employers, creditors, friends, and Icvers? The economic position is that it would not, since ‘this overlooks the opportunity costs of shunning people for stupid reasons, or, stated otherwise, the gains from dealing with someone whom others shun irrationally.‘140 It will be to an individual’s advantage to attach to a piece of discrediting information the weight that it deserves and only the weight that it deserves in attempting to predict a person’s future behavior and actions. The manner in which the private facts come to light is also important:

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Prying,by means of casual interrogation of acquaintances of the object of the prying must be distinguished from eavesdropping, electronically or otherwise, on a person’s conversation. A in a conversation with B disparages C. If C has a right to hear this conversation, A, in choosing the words he uses to B, will have to consider the possible reactions of C. Conversation will be more costly because of the external effects, and the increased costs will result in less, and less effective, communication. After people adjust to this new world of public conversation, even the C’s of the world will cease to derive much benefit in the way of greater info~ation from conver~tion~ publicity, for people will be more guarded in their speech. The principal effect of publicity wil1 be to make conversation more formal and communication less effective rather than to increase the knowledge of interested third parties.r4’

Information has social utility; however, if there is no legal protection for information communicated in private conversation, people will show considerably more reluctance to engage in such conversations. The economic position, therefore, is that public disclosure of private facts (other than commercially useful information) is desirable as long as the information is not obtained surreptitiously, that is, as long as the information is not obtained in such a fashion as to inhibit private discourse. This analysis is easily extended to efforts to obtain other people’s notes, diaries, and letters since such actions also impede communication. Publicity of the intimate details of one’s marriage or former marriage falls into a similar category. Privacy law in the USA provides a cause of action when information is obtained by intrusion, which is consistent with the economics of the issue. Installation of listening and recording devices in a tenant’s bedroom by a landlord is tortious,t42 as is unauthorized entry by the media into a plaintiffs home to interview and photograph her minor chiidren~43 Privacy in the home allows one to conduct oneself without considering the reactions of others; if the interior of the home were placed in the public domain, this informality, which conserves resources, would be lost.r44 The problem from an economist’s point of view is that US law also provides a cause of action in some cases in which the information was obtained without intrusion. Recovery was allowed in Melvin v. Reid145 in which the defendant in the privacy action had used the actual name of a reformed prostitute who was a defendant in a murder trial in a motion picture seven years later, In Brenfs v. Morgan, I46the act of displaying a notice that the plaintiff owed money and would not pay is also tortious. In both situations, the information conveyed was useful to anyone contemplating transacting with the plaintiff, and was not obtained surreptitiously. The trend in the USA, in fact, is to make it easier for p~~ntiffs to recover in such situations. Daily Times Democri.zt v. Grahami47 provides an interesting caveat from an economic perspective. Here, a woman accompanied her children into a fun house and was photographed at precisely the moment when a jet of air, which she had not known about, had blown her dress up around her waist. A newspaper later published the photograph without her consent. The court held that the newspaper had invaded her right of privacy, and she recovered. Posner indicates that this is the correct finding even though the information was obtained without intrusion .148The woman was not attempting to suppress any information, and the photograph could not allow her friends and acquaintances to correct any false impressions that they may have had about her. English law, unlike the law in the USA, is generally in accord with economic analysis in its treatment of public disclosure of private facts not involving intrusion. The 1974 Rehabilitation of Offenders ActI may provide some remedy if an English court today were presented with the same facts as those in Melvin v. Reid, in which

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the name of and sordid facts from the past about a reformed prostitute and murder defendant were revealed. In general, however, publication of embarrassing past acts of an individual does not fall into any of the existing English tort categories and is not actionable. In cases involving intrusion, English law is in consonance with economic analysis when technical trespass or some other breach can be invoked, but not necessarily in other situations. The secret installation of a microphone in another’s bedroom is a trespass violation and is actionable. 150Publication of photographs taken from within a home without permission or from the photographed person’s private grounds falls into a similar category. The sale of the intimate matrimonial details of life with one’s former spouse is also actionable under breach of c6nfjdence.1s1 On the other hand, spying on a private bedroom while standing on public property and pfacing a listening device in a hotel bedroom are not actionable since there was no technical trespass. Economic analysis would suggest that such behavior should be actionable since intrusion, if not in the technical sense, at least in the practical sense, has taken place. In England, common law protection does not exist when private telephone messages are intercepted from a transmission line on a public street. If the same telephone message were intercepted by placing a listening device on private property, however, recovery would be possible under trespass. In the USA, recovery is possible in either situation. If I know that my telephone conversation will be overheard, I will be reticent to speak, and the value of my private communication will be diminished, regardless of whether my phone is tapped on private property or along a transmission line crossing public property. English courts have found for the defendant in nuisance cases involving repeated overflights to observe sunbathers,is2 constant watching of a plaintiff, or persistent telephone calls. This is the correct decision, based on economic analysis, since such actions serve less as a means of obtaining information, and become more a method of intimidation and distraction. Posner reaches a similar conclusion in the US case involving an aggressive photographer and Mrs Onassist The methods used to obtain the photographs ‘impaired her freedom of movement to a degree impossible to justify in terms of the additional information he could obtain thereby.‘is4 Fake

light

Posner examines the issue of false Iight in the following passage: The existence of a tort of defamation, which as the commentators have noted, covers much of the same ground as the false light privacy tort, may seem to compel the conclusion that portraying someone in a false light shouid be actionable. There is, however, an economic argument that no legal remedy is either necessary or appropriate, because the law can and should leave the determination of truth to competition in the marketplace of ideas. What this argument overlooks, however, is that competition among the news media may not take into account the full costs of being placed in a false light land may therefore not be counted on to correct the distortion] _. . The economic argument may not seem decisive in light of the earlier point that the publication of newsworthy articles generates external benefits which might justify allowing the newspaper or magazine to externalize some of its costs [implying that false light should not be actionable at least in some instances]. However, encouraging cost externalization in the form of distortion of

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the truth

would be inefficient since distortion would reduce the social benefits as wet1 as costs of publication [implying that false light should be actionable] .Is

In the USA, injury to reputation, which can be presumed inperse cases, but which must be demonstrated in per quad cases, must exist to show defamation. Injury to reputation is not a requirement for false light to be actionable, however. The tort of defamation protects a person from losing advantageous transactions because of impaired reputation, whereas false light protects a person from unwanted attention; that is, protects a seclusion interest .ts6 If portraying a person in a false light also impairs reputation, it would be actionable as defamation. From an economic perspective, defamation should, as a rule, be actionable since it involves an external cost, similar to environmental pollution, in which one party injures another.ls7 To insure that potential defamers consider the impact of their actions on others, and behave in a socially optimal manner, those who are injured by defamation should be allowed to recover damages. But suppose that a false light action is brought in which there is no injury to reputation. An economic argument for damages or for an injunction still exists. Unlike public disclosure of private facts that allows individuals to form more accurate pictures of those who are the object of the disclosure, false light, because it involves distortions, provides no such social benefit. What it does is to thrust upon the object of the distortion unwanted attention-it violates what may be a true seclusion interest. Recovery or injunction may therefore be economically justified. Tort law in the USA is consistent with the economics of the issue since false light is actionable absent any reputational injury. Unlike the USA, England does not recognize a cause of action brought under false light. Other tort theories such as defamation must be invoked in order to obtain relief. In this respect, English law is less in accord with the economics of the issue than US law, since the former affords no protection in a situation in which facts about someone have been distorted and publicized, yet injury to reputation has not occurred. In such a situation, a privacy interest has been breached, one which is unrelated to a desire to conceal facts in order to mislead others, yet English law has not considered the costs imposed simply because of the unwanted attention.

V. CONCLUSIONS We have examined the four categories of privacy recognized by the Restatement and Prosser in American law and have used this system of classification to determine the extent to which privacy interests are recognized and protected in England. We then subjected the English and American treatment of these interests to the test of economic efficiency. We discovered that American law is more economically efficient than English law in the area of appropriation: English law makes an economically unjustified distinction between public and private person interests in cases involving appropriation of one’s name or likeness; also, English law offers significantly less protection than American law in safeguarding commercially valuable information, and requires that other legal theories, such as technical trespass, be invoked in order to protect the interests involved. English law, on the other hand, is more economically efficient than American law in the area of public disclosure of private facts, by virtue of the fact that English law offers significantly less protection. American law recognizes a specific privacy interest in the area of intrusion, and is thus more economically efficient than English law, which offers protection only when some other legal interest has been breached. American law also

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recognizes a specific privacy interest in the false light area, which is consistent with the requirements of economic efficiency. English Iaw offers a right of action only under defamation or some other traditional tort theory. Development in English law of a free-standing privacy interest, which has been advocated in a number of quarters, would meet with the approval of economic analysis in the areas of appropriation, intrusion and false light. The practice of affording protection under other theories such as technical trespass, defamation, and breach of confidence is inadequate to satisfy the requirements of economic efficiency. The major inconsistency between American privacy law and economic analysis lies in the amount of protection that American law provides against public disclosure of discrediting private information. While economic analysis calls for less protection, the law in the USA, largely in response to political pressure, is providing more protection in this area. REFERENCES

AND NOTES

1. Warren and Brandeis, ‘The Right to Privacy’, 4 (1890) Harv. L. R. 193. For a treatment of 19th century American law of privacy prior to Warren and Brandeis, see Note, ‘The Right to Privacy in Nineteenth Century America’, (1981), 94 Harv. L. R. 1982. 2. W. Prosser and W. Keeton, The Law of Torts (5th ed.-1984) at p. 849. 3. See H. Street, The Law of Torts, (7th ed.-1983) at p. 410. This conclusion may be supported in theory by the philosophical writings of Professor Judith Thompson. See Thompson, ‘The Right to Privacy’, (1975) 4 Phil & Pub. Aff. 295 and the responses to Thompson which follow. 4. See Weeks, ‘Comparative Law of Privacy’, 12 Clev.-Mar. L. Rev. 484, Brittan, ‘The Law of Privacy in England and the United States’, (1963) 37 Tulane L. R. 235, Wedderburn, ‘Privacy and the Public’, (1971) 34 Mod. L.R. 288, J. Fleming, An Inrroduction to the Law of Torts (1969). 5. Seipp, ‘English Judicial Recognition of a Right to Privacy’, (1983) 3 Ox. J. Legal Stud. 325. 6. Ibid., p. 370. 7. See Presser, supra, note 2, p. 8.51. 8. The scope of this paper is limited to civil intrusions upon privacy by private parties. Criminal offenses, government intrusions and constitutional issues are beyond the scope of this inquiry. 9. Restatement (Second) of Torts 0 562a. 10. Presser, supra, note 2, at pp. 851-866. on law and the economics of privacy, (1978) 12 Georgia L. R. 11. See the two s~posiums 393, and ‘The Law and Economics of Privacy’ (1980) 9 J. Legal Stud. 621. 12. R. Posner, ‘The Right of Privacy,’ (1978) 12 Georgia L. R. 393. 13. Presser, supra note 2, p. 849. 14. Warren and Brandeis, supra, note 1. 15. Prosser, supra, note 2, p. 849. 16. G. White, Tort Law in America (1980) p. 173. 17. Ibid. 18. 3 Dooley, Modern Torf Law (1977) p. 1. 19. Supra, note 9. Expansions in the law of privacy which trace to constitutional protections against government intrusions may be said to add additional categories. These subjects are beyond the scope of inquiry of this article. 20. Supra, note 9, 8 652C. 21. 171 N.Y. 538 (1902). 22. Prosser, supra, note 2, p_ 850. 23. Pavesich v. New England Life Insurance Co., 122 Ga. 190 (1904).

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24. Prosser, supru, note 2, p. 854. 25. Eick v. Perk Dog Food Co., 347 111App 293, 106 NE 26 742 (1952). 26. Fairfieldv.AmericanPhotocopyEquipmentCo., 13%CalApp2d82,291P2dl94(19~~). 27. Young v. That Was the Week that Was, 423 F 2d 265 (6th, 1970). Loft v. Fuller, 40% So 2d 619 (1981). Lugosi v. Universal Pictures, 25 Cal. 3d 813, 160 Cal. Rpts. 323 (1979). 28. Bazemore v. Savannah Hospital 155 S. E. 194 (1930). 29. Supra, note 9, $652B. 30. G. White, supru, note 16, p. 174. 31. Hambenger v. Eastman, 106 N. H. 107,206 A. 2d 239 (1964). 32. Cantrell v.Forest City Pub. Co., 484 F. 2d 150 (CA. 6th, 1973). Punitive but not compensatory damages reversed by the Supreme Court in 419 U.S. 245 (1974). 33. Daily Times Democrat v. Graham, 276 Ala. 380, 162 So. 2d 474 (1964). 34. Supra, note 9, $6521). 35. Melvin v. Reid, 112 Cal App 285 (1931). 36. Brents v. Morgan, 221 Ky. 765, 299 S.W. 867 (1927). 37. Sidis v. F-R Pub. Corp. 113 F. 2d 806 (CA 2d, 1940) Cert denied 311 U.S. 711 (1940). 38. Supra, note 9, Q652E. 39. C. White, supra, note 16, p. 175. 40. Lord Byron v. Johnson, 2 Mar. 29, (1816) 35 Eng. Rep. 851. 41. Prosser, The Law of Torts (3rd ed.-1964) at p. 175. 42. Supra, note 9, § 652E. 43. As to whether liability would extend to defendants for mere negligence in placing a plaintiff in a false light, courts continue to apply the knowledge or reckless disregard standard if the plaintiff is a public official or a pub&t figure; see Fitzgerald v. Penthouse Intern Ltd., 525 F. Supp. 585, 602, reversed in part, affirmed in part 691F. 2d 666 (4th Cir. 1982) Cert-denied 103 S. Ct. 1277 (1983). If plaintiff is not a public official or a public figure it is speculated that a negligence standard would be applied to privacy and false light cases, similar to the standard in Gertz v. Robert Welch, 41% U.S. 323 (1974) for defamation. In N. Y. Times v. Sufiivan, 376 U.S. 254 (1964) it was held that a public party plaintiff could not recover on a defamation action against a media defendant unless the plaintiff could show the defendant acted with scienter or reckless disregard of the truth. In Times Inc. v. Hill, 385 U.S. 534 (1967) the Supreme Court applied the Sullivan standard to false light privacy cases, however, the effect of the Gertz decision on the Hill case is still uncertain. For a discussion of the economic efficiency of the reckless disregard versus the negligence standards in defamation, see our previous works, Renas, Kumar, Hartmann and Shankland, ‘Toward an Economic Theory of Defamation, Liability and the Press,’ (1983) 50 S. Econ. J. 451; Hartmann, Solimine, Renas, Kumar, ‘Relaxed Liability: A Proposed New Standard for Defamation by the Press,’ (1984) 21 Am. Bus. L. J. 93; Hartmann and Renas, ‘Anglo American Defamation Law: A Comparative Economic Analysis,’ (1984) 4 Media Law and Practice 3. 44. Supra, note 40. 45. Santiesieban v. Goodyear Tire and Rubber Co., 306 F. 2d 9 (CA 5th) 1%2. 46. Pea_vv. Curtis Pub. Co., 7% F. Supp. 305 (DDC 1948). 47. Schwarrzv. Edrington, 133 La. 23.5, 62 So 660(1913). 4%. MaGoul v. Western Union Tel. Co., 79 Miss. 632,31 So. 206 (1902); Hinnish v. Meier & Frank Co., 166 Or. 482, 113 P. 2d 424 (194). 49. Supra, note 9, 0 652F and Street, supra, note 3, p. 819. 50. Supra, note 9, $ 585. 51. Ibid., 3 586. 52. 53. 54. 55. 56. 57.

Ibid., Ibid., ibid., ibid., Ibid., Ibid.,

5 $ $ 0 5 0

587. 588. 589. 590. 59OA. 591.

150

58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78.

79.

80. 81. 82.

83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93.

Anglo-American privacy law Ibid., $ 592. Ibid., Q 592A. Ibid., !j 598A. Ibid., 0 6526. Warren and Brandeis, supra, note 1 p. 216. Prosser, supra, note 2, p. 868. Supra, note 9, 0 594. Prosser, supra, note 2, p. 868. Supra, note 9, $ 595. Ibid. Ibid., D 588, (h). Ibid., 0 596. Ibid., 5 597. Ibid., Q 598. Ibid., 0 611. Ibid., Q 612. Prosser, supra, note 2, p. 867. Ibid. 3 Dooley, supru, note 18, at p. 11. Warren and Brandeis, supra, note 1. Stephen’s Commentaries on the Laws of England, (21st ed.-1950), W. Gelhart, Elements of English Law, (7th ed.-1966), Jenks, The Book of English Law, (6th ed.-1967), Newton, General Principles of Lnw, (2nd ed.-1977), P.W.D. Redmond, General Principles of English Law, (5th ed.-1979). Cmnd. 5012 (1972) paras. 44 and 92. The committee was appointed in 1970 ‘. . . To consider whether legislation is needed to give further protection to the individual citizen and to commercial and industrial interests against intrusions into privacy. . and to make recommendations.’ 794 Hansard, 5th series, H.C. Col. 941 (23 January 1970). After a two-and-one-half-year inquiry, the committee, with two dissenting members (Lyons and Ross) failed to recommend a general right to privacy and took the position that courts should intervene only if traditional protections were inadequate to protect against perceived abuses. R.F.V. Heuston, Salmond on the Law of Torts, (17th ed.-1977) at p. 33. Fleming, supra, note 4, p. 208. P. Lewis, Gatley on Libel and Slander, (8th ed.- 1981) at p. 40, n. 44. Subsequent to the publication of 8th edition in 1981, Parliament has enacted the Data Protection Act of 1984 and the Telecommunications Act of 1984 which protect persons against the wrongful disclosure of personal data in automatically processed information systems and the intentional disclosure of intercepted messages sent through a public telecommunications system. Street, supra, note 3. Bernstein of Leigh v. Skyways and General Ltd. [19781 Q.B. 479. Street, supru, note 3. Duchess of Argyll v. Duke of Argyll [ 1%71 Ch. 302. Street, supra, note 3. Gutteridge, (1931) 47 L.Q.R. 203. Ibid., p. 211. S. H. Hofstadter and G. Hordwitz, The Right of Privacy (1964), p. 11. Ibid. Weeks, supra, note 4, p. 34. For a full treatment of the historical ‘Biography’ of the right to privacy in Britain, see Pratt, Privacy in Britain, (1979) in which the author cites (among others) Ralph Waldo Emerson in English Traits (1856) ‘. . the motive and end of their trade and empire is to guard the independence and privacy of their homes;’ and an unidentified German scientist who lived in Britain ‘ . . I consider the British spirit to be distinguished by a deep

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reluctance to intrude unnecessarily into a man’s privacy, by a great respect towards a single personality, and by a complete understanding that it may be a valuable one in spite of-or even because of-its being an individual phenomenon, deviating strongly or even greatly from all the others,’ (1935) and finally George Orwell’s identification of a ‘characterization which is so much a part of us that we barely notice it, and that is the addiction to hobbies and sparetime occupations, the privateness of English life’ (1940-43). 94. Weeks, supra, note 4. 95. Pratt, supra, note 93, p. 206. But seesupru, note 82, The Data Protection Act of 1984 and the Telecommunications Act of 1984. 96. Prince Albert v. Strange (1848) 2 De G & Sm. 652; 64 E.R. 293 (v. Ch.): (1849) 1 Mac & G.25; 41 E.R. 1171 (Ch.) (a showing of another’s etchings). 97. St. Helen’s Smelting Co. v. Tipping (1865) 11 H.L.C. 642; 11 E.R. 1483 and Tod-Heatly v. Benham (1888) 40 Ch. D. 80 (C.A.). 98. Abernathy v. Hutchinson (1825) 3 L.J. (O.S.) Ch. 209 (Publication of another’s lectures by one in the audience) Pollard v. Photographic Co. (1888) 40 Ch. D. 395 (Sale of a customer’s photographs). 99. Pratt, supra, note 93, and supra, note 97. See also Franecome v. Daily Mirror reported in The Times, 17 March 1984 in which the newspaper was enjoined from publishing a report of plaintiff’s telephone conversation which had been obtained by an electronic listening device. 100. Hofstadter and Hordwitz, supra, note PO,p. 13, citing W. S. Weston, Barrister at Law, ‘An Intrusion on Privacy’, Country Life, 31 March 1950, citing the text above, [ 191612 K.B. 880, 884. 101. Warren and Brandeis, supra, note 1. 102. Pratt, supra, note 93, p. 19. 103. Warren and Brandeis, supru, note 1, p. 193. 104. Cooley, A Treatise on the Law of Torts (2nd ed.--1888). 105. Pratt, supra, note 93, p. 21. 106. Fleming, supra, note 4. 107. Seipp, supra, note 5, p. 362. 108. Supra, note 9, 5 652C. 109. Supra, note 96. 110. Fleming, supra, note 4, p. 210. 111. Toolleyv. Fry, 119311 A.C. 333. 112. Heuston, supra, note 80, p. 36. 113. Routh v. Webster, (1846) 10 Beav. 561. 114. Pollard v. Photographic Co. (1888) 40 Ch. D. 345. 115. Fleming, supra, note 4, p. 208. 116. Fleming, supru, note 4, p. 209. 117. Heuston, supra, note 80, p. 35. 118. Fleming, supra, note 4, p. 209. 119. Heuston, supra, note 80, p. 35. 120. Fleming, supra, note 4, p. 211. 121. Heuston, supra, note 80, p. 36. 122. Weeks, supra, note 4, p. 494. 123. SUVOYHotel v. BBC, The Times 18 December 1982 (granting the injunction) reversed in an unreported decision of the court of appeal, 20 December 1982, as reported in Seipp, supra, note 5, p. 350. 124. Monson v. Tussauds Ltd. [19841 1 Q.B. 671. 125. Wilson v. Reed (1860) 2 F & F 149, 175 E. R. 1000 and Punkhursr v. Hamilton (1887) 3 T.L.R. 500., as reported in Seipp, supra, note 5, p. 343. 126. The Copyright Act 1956 s. 43, false attribution of authorship would have been available to a latter day Lord Byron as per the Warren and Brandeis article’s treatment of his action to enjoin an unflattering poem attributed to him. See also Moore v. News of the World

1 Q.B. 441. 127. Byron v. Johnston (1816) 2 Mar. 29. 128. Street, The Law of Torts. (7th ed.-1983) p. 410. 129. Seipp, supra, note 5, p. 326. 130. Ibid, p. 327. 131. Posner, supra, note 12, p. 397. 132. Ibid., p. 411. 133. E. I du Pont de tVemours & Co. v. Christopher, 431 F. 2d 1012, 1016 (5th cir. 1970). 134. Supra, noie 25. 135. Supra, note 26. 136. See the text accompanying note I16 supra. 137. See the text accompan~ng note I18 supra. 138. Posner, supra, note 12, p. 411. 139. R. Posner, TheEconomics of Justice (1981) at pp. 233-234. 140. Ibid., p. 235. 141. Posner, supra, note 12, p. 401. 142. Hambenger v. Eastman, 106 N. H. 107,206 A. 2d 239 (1964). 143. Cantretl v. Forest City Publishing Co., 484 F. 2.d. 150 (CA. 6th, 19731, punitive but not

compensatory damages reversed by the Supreme Court in 419 U.S. 245 (1974). Posner, supra, note 139, pp. 247-248. Melvin v. Reid, 112 Cal. App. 285 (1931). Brents v. Morgan, 221 Ky. 765,299 S.W. 867 (1927). Daily Times Democrat v. Graham, 276 Ala. 380, 162 So. 2d 474 (1964). Posner, supra, note 139, p. 259. Fleming, supra, note 4, p. 211. Street, supra, note 3. Duchess of Argyll Y. Duke of Argyle I 19671Ch . 302. Berstein ofLeigh v. Skyways and General Ltd. 119781 Q-B. 479. Galeha v. Onassis, 487 F. 26 986 (2d cir. 1973). Posner, supra, note 139, p. 266. Ibid., pp. 264-265. Ibid., p. 337. 157. Supra, note 43, in which we cite previous works in which we analyze the economic efficiency of liability rules in cases of press defamation.

144. 145. 146. 147. 148. 149. 150. 15 I. 152. 153. 154. 155. 156.