The Origins of the Right to Privacy

A seminal article written in 1890 provides a definition for the ages.

As I write this, nine judges of the Supreme Court of India are deliberating whether we have a Constitutional right to privacy in the country. By the time this piece sees the light of day, we might even have the said right.

In these giddy times, one could be forgiven for wondering why a debate is even necessary on the subject. After all, a right to privacy has an element of the commonsensical about it. Anybody with a liberal bent of mind would swear by it. And yet, it is interesting that the idea of privacy is of relatively recent origin. One of the earliest writings on the subject can be found in the now seminal Harvard Law Review article titled, quite fittingly, The Right to Privacy. Written by Samuel D Warren and Louis D Brandeis in 1890, a time when instant photography was becoming a nuisance for high society, the article’s musings on the subject of privacy resonate even in the digitised world of today.

Warren and Brandeis looked at privacy in the common law tradition, as a right identified by judges over the years. The violation of this right would then entitle an individual to seek damages or an injunction, similar to the relief granted in a civil suit. They did not venture into the murky task of interpreting the US Constitution to see if privacy had a place in it. In fact, debates around the Constitutional nature of privacy didn’t figure in the discourse until the 20th century was well underway. Despite this limited scope of the article, the formulation of privacy it presents is remarkably prescient.

This formulation endows a few distinctive features to a right to privacy. First, a right to privacy is the right to be left alone. This is a classic turn on a negative right, where other people have a responsibility to not interfere in your affairs. Second, the right to privacy is a right in rem. You do not need to know an individual for him to not interfere in your right to privacy. The right exists against the world at large. And third, the right is part of an individual’s inviolate personality. You have the right by virtue of being a person.

This definition of a right to privacy is brilliant in its simplicity and clarity. Warren and Brandeis eschewed the use of legalese for something far more accessible; one doesn’t have to be a lawyer to understand their idea of privacy. However, what makes the article even more remarkable is the way the authors explained what a right to privacy is not. This is where their acumen for legal reasoning comes to the fore.

They wrote that a right to privacy is not the same as a right to intangible property, such as, intellectual property. A right to property has, at its core, the right to get a profit from the property in question. But there may be no tangible value in having one’s privacy protected. Instead, the value is in protecting privacy itself. In a similar vein, the right to privacy is not the same as defamation. Unlike the latter, a violation of one’s right to privacy may not lead to a loss of reputation. A right to privacy is also not a right accruing from a breach of trust, confidence or contract. As mentioned earlier, privacy is a right available against everyone. A breach of trust, confidence or contract only arises between individuals who are aware of each other.

The use of this method of elimination by the authors deserves credit. Not only does it lend more clarity about what a right to privacy entails, it also set it apart from other existing rights. In the process, it reinforces the formulation of privacy set out above. Privacy is a right inherent to every individual and is available against the world at large.

It is telling that the arguments being made for privacy in the Supreme Court right now hew close to this idea. The petitioners are contending that a right to privacy is an inherent part of liberty and dignity. These two traits are inseparable from a right to life under the Indian Constitution. If the Supreme Court accepts this and holds that Indians do have a Constitutional right to privacy, we can thank Warren and Brandeis for their role in sparking off an idea that has endured over the years.