Review of *Right to Privacy: Origins and Influence of a Nineteenth Century Idea*

Particularly relevant in a digital era when data is hackable and everything is shareable Megan Richardson’s The Right to Privacy examines when and how privacy “emerge[d] as a social, cultural and ultimately legal idea” in the British common law world (1).  Equal parts intellectual, legal and cultural history, the book traces the symbiotic relationships between philosophical ideas about privacy, the juridical processes that enshrined those ideas into law, and the ways the popular press presented these issues to the public.  A series of court cases frame Richardson’s organization, evidencing a slow shift in how legal systems articulated the right to privacy: from conceptions rooted in private property through ideas about the sanctity of domestic life to an understanding of the right to be “let alone” as a necessary component of “inviolate personality” (Warren and Brandeis, “The Right to Privacy,” quoted on Richardson 88).  Richardson concludes by demonstrating the relevance of this conception of privacy to twenty-first-century life.

Richardson begins this narrative by looking at privacy as property.  She examines court cases from 1817 and 1818 involving the publication of poems and letters without the permission of the author.  Here, rulings show an emerging concern with protecting private secrets from what Jeremy Bentham had called the “public opinion tribunal” (Jeremy Bentham, First Principles Preparatory to Constitutional Code, quoted on Richardson 23).  In one ruling, for example, a judge upheld a mother’s property rights in letters she had written to her estranged son when he later threatened to publish them.  The cases Richardson discusses demonstrate a steady broadening of the conception of privacy, using private property to protect a person’s ability to maintain personal secrets.

A later case illustrates the emergence of privacy as the right to a domestic life away from the public eye.  Amateur etchers Queen Victoria and Prince Albert created images of their domestic lives for their own pleasure.  In 1849 a third party wished to display these private etchings for public viewing.  How the etchings came into the possession of the third party is unknown, but appears to have been nefarious.  The court case ruled in favor of the Queen and Prince, relying on both “breach of confidence” in how the etchings were either procured or retained, and on the amateur etchers’ right to property in their etchings.  Here, property rights were deployed in the interest of protecting not just personal secrets, but also the privacy of the Queen’s intimate sphere.  Most notably for Richardson’s purposes, the press agreed with the Royal family that they possessed the right to a private domestic life away from public examination.

Under-analyzed in Richardson’s study is the intimate relationship between domestic privacy and the cultivation of a private, interior, inviolable self.  As nineteenth-century thinkers like John Stuart Mill and Ralph Waldo Emerson articulated the importance of self-fashioning as fundamental to human freedom and happiness, the home was increasingly imbued with value because it provided privacy for intimate and, more importantly for the shift Richardson traces, the privacy required for self-fashioning.  In the privacy of the home, people could think, speak, behave and constitute relationships in whatever way they pleased away from public view or comment.  The home was venerated as a primary location where self-fashioning happened.

Richardson points out that the French, not the British, were the first to enshrine privacy in terms of the “right of personality,” the right to fashion a unique self, into law, though still relying on private property to do so (64).  Across Europe, the invention of photographic techniques introduced new challenges to defenders of privacy, posing new questions about who owned an image.  In France, a series of court cases located the “right of personality” in the possession of one’s image, ruling that the subject of a photograph retained rights to it.  That is, a photograph of a person in the process of self-fashioning belonged to that person—be it Alexander Dumas in his shirtsleeves with an American actress or a woman in an “intimate outfit” while patronizing a bathing pool.  While these cases happened in France, the British press paid close attention, covering them closely and with much sympathy for the plaintiffs whose privacy had been violated.  Property was still an operative concept, but was used to protect an emerging right to self-fashioning.

Richardson argues that similar developments in Britain became part of an emerging European and American consensus that citizens needed room for self-fashioning and nations suffered when they did not have it.  Yet this idea of privacy became more and more central to privacy law just as the line between public and private life became more and more blurred, particularly for Britain’s more noted citizens.  In what Richardson calls “the age of the spectacle,” the late nineteenth-century British press made this notion of privacy virtually impossible for British celebrities, at least, to achieve (113).  In this context, Richardson examines U.S. jurists Samuel Warren and Louis Brandeis’s reasoning in their famous 1890 essay, “The Right to Privacy” that fully articulated a right to privacy apart from private property.  Warren and Brandeis argued that people’s private products and behaviors were protected not by property but by the principle of “inviolate personality.”  Ironically, Warren and Brandeis’s conceptions of privacy were more successfully enshrined into European, rather than American law; American commitments to freedom of expression often overrode the right to privacy, while in most of the rest of the English-speaking world, privacy won.

Richardson’s concluding chapter explores the implications of the nineteenth-century developments she discusses in the twenty first century.  Richardson’s conclusion shows how the conception of privacy which Warren and Brandeis articulated was fully developed in the twentieth century.  Their reasoning provided legal teeth behind the right to privacy included in the Universal Declaration of Human Rights in 1948 and in later cases adjudicated in the wake of technologies that facilitated new ways of listening to and observing private activity.  Ultimately, Richardson ends her book with a call to reinvigorate late nineteenth-century conceptions of privacy.  As she claims, we all might benefit from “a right to be ‘let alone’ – or not to be accountable to ‘them’, and a right to interiority, intimacy and self-fashioning” (118).