Article by Jeanne M. Hauch
Recent Supreme Court jurisprudence has assigned to freedom of expression a preeminent role, leaving modern American society with little choice other than providing no protection for private information. Nonetheless, this Article suggests that an important value is lost when the balance between press informational rights and privacy rights of individuals becomes skewed entirely against common-law privacy rights. Rather, there exists a certain, very narrow body of personal information that should be shielded from public disclosure, at least in the case of private figures. The critics who bemoan the problem of defining privacy may be enlightened by how the French have generated a defined sphere of private facts and a jurisprudence to support it. Through tracing the development of privacy rights in France, this Article demonstrates that workable standards for privacy rights can be, and have been, achieved in a highly pluralistic Western democracy with a strong tradition of vigorous public debate. This is not to say that the protection of private facts does not carry with it a considerable cost.
This Article, therefore, scrutinizes how French law and society protect privacy. Such an analysis allows us to evaluate critically how the French privacy right, acknowledged favorably by Warren and Brandeis, sheds light on the Warren and Brandeis privacy tort and to consider how the methodological seeds of the French system would germinate in American soil.
Part I of this Article explores the history, development, and application of the right of privacy in France. Detailed analysis of French case law provides insight into how the privacy right has been applied and how the competing concerns of the press and artists have been accommodated. Part II analyzes the scope of the privacy right, then examines the area of liability for republication of private facts, and next explores fiction and privacy rights. Part III briefly sketches the state of privacy law in the United States, with particular emphasis on recent decisions and commentary which suggest that the private-facts tort has been abrogated. Finally, the Article attempts to draw lessons from the French experience and suggests the form in which the Warren and Brandeis privacy tort should be received at home in the United States more than one hundred years after its creation.
About the Author
Jeanne M. Hauch. Associate, Gibson, Dunn & Crutcher, Washington D.C.J.D., Yale University, 1988.
Citation
68 Tul. L. Rev. 1219 (1994)