The Gazette 1975

Fundamental

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

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 v. 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 v 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 v 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 v 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