I dissent. Dean William L. Prosser, in his article on Privacy, published in the August 1960 issue of the California Law Review, makes this statement (48 Cal. L.Rev. 418) : “ One troublesome question, which cannot be said to have been fully resolved, is that of the effect of lapse of time, during which the plaintiff has returned to obscurity.” The rule to govern in this state, in the absence of legislation, is being developed in the customary fashion; that is, as eases arise, each is decided upon its facts. The final decision in this case should, I believe, recognize the limitation in comment c, *124section 867, Restatement of the Law of Torts, where, speaking of those who have sought the public eye, as does a candidate for public office, and of those unwillingly brought into public view, charged with crime, it is said: “Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.” (Emphasis added.)
The courts of this state have already taken a decisive step in writing the rule. The plaintiff, in Melvin v. Reid (1931), 112 Cal.App. 285 [297 P. 91], had been a prostitute and was the central figure in a murder trial. Acquitted of the murder charge and having quit her immoral life, she was enjoying a life of obscurity when the defendant, some eight years later, to entertain the public, brought the past to life in a motion picture. The court, reversing the judgment that followed the sustaining of a demurrer, stated (p. 292) : “We believe that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Whether we call this a right of privacy or give it any other name is immaterial. ...”
It has been pointed out that “The dividing line between the individual right and the so-called public right is not easily drawn and must be determined in every instance by the facts of each case.” (Stryker v. Republic Pictures Corp. (1951), 108 Cal.App.2d 191, 194 [238 P.2d 670, 671, 672].) In the case now under review, plaintiff’s prospective marriage was news, but much of the rest of the story had no relevancy whatever to the news; that was but the occasion for digging up the unsavory past, much of it over 20 years old. It is my conviction that this court should not hold that in the conflict between plaintiff’s right of privacy and the admitted right of the defendant to print that which some, perhaps many, of its subscribers will avidly read, the former must give way under the facts of this case. The judgment should be reversed.
Appellant’s petition for a hearing by the Supreme Court was denied August 9, 1961. Schauer, J., Peters, J., and Booling, J., were of the opinion that the petition should be granted.
Assigned by Chairman, of Judicial Council.