Pavesich v New England Life Insurance
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[edit] 1 Pavesich v New England Life Insurance Co
Case Name: Pavesich v New England Life Insurance Co
Keywords: Privacy, Likeness in an advertising, freedom of speech, deceased person
Country: U.S.A., State of Georgia
Citation: 50 SE 68 (1905)
Court: Supreme Court of Georgia
Date: 03.03.1905
Case N°: -
Importance: Recognition of an absolute right of privacy derived from natural law
Facts: The plaintiff was an artist who found a picture of him used in an advertisement. The ad compared two photographs, one of him smiling because, according to the advertisement, he had bought a life insurance, and one picturing someone miserable because he had not. The plaintiff was not named in the ad, and more importantly had never bought insurance to this company, or consented to the use of such photograph. He sued for defamation and violation of the right of privacy.
[edit] 2 Decision and Reasoning
Cobb J delivered the unanimous judgement, considering the privacy point first:
[edit] 2.1 Recognition of a right of privacy
[edit] 2.1.1 The rationale: Privacy is a natural right
Cobb J reminded that no right of privacy as such had been recognised. That does not necessarily mean that it should not be protected. “Although there be no precedent, the common law will judge according to the law of nature and the public good”. Individuals have surrendered some of their rights which they would otherwise exercise freely in a state of nature to society in exchange for the benefits a member of the society receives. But that does not include all of their rights. The question was therefore where to place the right of privacy. The test applied was the answer of “any person whose intellect is in a normal condition”. For the court, such person would immediately recognise that such right has not been surrendered. Some matters are public, others are private and each individual must be able to withdraw private matters from the public. Therefore a right of privacy “in matters purely private” is derived from natural law.
Furthermore, the right of personal security and the right of personal liberty can be interpreted as recognising a right of privacy. The former includes the enjoyment of someone’s own body, health and reputation, the latter includes the power of changing situation given anyone’s own inclination. The term liberty must be used in its broader sense, and does not only embrace physical restraint.. An individual has a right to enjoy life in any way he thinks pleasant to him, according to his temperament. Therefore, “each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from him his liberty”. (p. 70) The right to exhibit himself to the public gaze is thus embraced within the right of personal liberty
An illustration is given: the idea of privacy has been the foundation of many other rights. The protection against nuisance is usually based on a right to property but there is no injury to the property, it is actually based on privacy as Roman law already recognised it, “to enter a man’s house against his will was regarded as an invasion of his privacy”. Similarly, the right of the people to be secure in their persons, papers, houses…against unreasonable searches was an implied recognition of a right of privacy.
[edit] 2.1.2 The instrument: the role of the judges and the juries
The fact that no right of privacy as such had been previously recognised did not mean that it was not time now to do so. Cobb J stated that the courts have to be cautious but it was its role, referring to §4929 of the Civil Code “For every right there shall be a remedy, every court having jurisdiction of the one may, if necessary, frame the other”. But the judge gives the warning that because the right of privacy has some limits and counterweights, the safeguard of its boundaries “is the wisdom and integrity of the judiciary”. So long as the judges and the juries are fair and impartial, the balance between the diverse rights will be maintained and therefore there need to be no more fear that the right of privacy will lead to unjustifiable litigation or wrong than that the existence of many other rights in the law would bring about such results.
[edit] 2.1.3 The Roberson case
Cobb J reminded that the Roberson case denied the injunction because there was no previous case recognising a right of privacy, no case involving this right in any sense, that the existence of such recognised right would bring about a vast amount of litigation and that the demarcation line between this right of privacy and the well-established rights of the others and the public would be too difficult to determine.
He disagreed to this majority view, because even if the right of privacy as such was not mentioned in earlier cases, it was an underlying principle. Those cases did not consider the existence of such a right but rested on arguments derived from law of property, trust or contract. But because of this conservatism of the judiciary, judges must not conclude that the right claimed did not exist, “this conservatism should not go to the extent of refusing to recognize a right which the instincts of nature prove to exist”.
[edit] 2.2 The attributes of this new right
[edit] 2.2.1 The limits of the right of privacy
- There will be some situations where a person who seeks a life of seclusion will have to exhibit his person in a public place when the law demands it, for example to serve a public duty, like juror or witness in a trial…
- The right of privacy may be waived by the person, or someone authorized by this person.(p. 72) The waiver can be express or implied but will always be limited to the extent which is necessary and proper in dealing with the matter. If the artist had displayed his works in public, then he would subject his works and character as an artist to scrutiny and criticism. But the mere fact that he is an artist does not establish a waiver of his right.
- But the main limit to the newly recognised right is that its enjoyment must not invade the rights of the others, i.e. it is first subject to such restraints as necessary for the common welfare. The liberty ends and the right of others begins. That is precisely the problem when someone is properly interested in the matters which is claimed to be pf purely private nature. Cobb J recognized that there, liberty of the speech and of the press will counterbalance privacy: to use the right to speak, write and print properly, someone will sometimes have to refer to the life, conduct or character of a person. Both interests are then coexistent.
[edit] 2.2.2 Defamation
Freedom of speech and of the press can diminish the right of privacy as it cannot be said that an invasion has taken place when the truth is used for the integrity of a statement and with reasonable reference. The correlative effect of such interaction is that slander is an abuse of the liberty of the press ad libel an abuse of the right to write and print. Truth will be a complete defence against for statements of a public nature as well as private, so long as the public has a legitimate interest in it. Therefore, liberty of speech has been a useful instrument to keep the individual within the limits of lawful and decent conduct, the right of privacy may be well used within its proper limits to keep those who speak and write within the legitimate bounds of the guarantees of this right.
[edit] 2.2.3 Privacy and personality
It is worth noting that by recognising the right of privacy with the right of personal liberty, Cobb J opens the door to the right of personality. The right declared is the right to withdraw from the public gaze as such times as the person may sees fit. (p. 70) Publicity and privacy are both guaranteed at the same time as correlative rights.
[edit] 2.3 Result
Although cases may sometimes be difficult to decide because of the interactions between privacy and well-established other rights, the judges here had no difficulty in concluding that privacy had been invaded and that the invasion is not authorised by any consent or defence related to freedom of speech.
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