Law Review Article Vs Essay

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The authors state the purpose of the article: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is." First, Warren and Brandeis examine the law of slander and libel (forms of defamation) to determine if it adequately protects the privacy of the individual.

The authors conclude that this body of law is insufficient to protect the privacy of the individual because it "deals only with damage to reputation." In other words, defamation law, regardless of how widely circulated or unsuited to publicity, requires that the individual suffer a direct effect in his or her interaction with other people.

As a result, the ability to prevent publication did not clearly exist as a right of property.

The authors proceed to examine case law regarding a person's ability to prevent publication.

But at the time the right of property only protected the right of the creator to any profits derived from the publication.

The law did not yet recognize the idea that there was value in preventing publication.

Warren and Brandeis take this opportunity to excoriate the practices of journalists of their time, particularly aiming at society gossip pages: 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.

If this conclusion is correct, then existing law does afford "a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds." Furthermore, Warren and Brandeis suggest the existence of a right to privacy based on the jurisdictional justifications used by the courts to protect material from publication.

The article states, "where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence." Warren and Brandeis proceed to point out that: "This protection of implying a term in a contract, or of implying a trust, is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule." In other words, the courts created a legal fiction that contracts implied a provision against publication or that a relationship of trust mandated nondisclosure.


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