Rights of Personality in Scots Law: A Comparative Perspective 9780748699544

Citation preview

ta b l e of cas e s

RIGHTS OF PERSONALITY IN SCOTS LAW A Comparative Perspective

i

ii

r i ght s of p e rs o n al i t y



ta b l e of cas e s

RIG H T S O F PERS ON A L I T Y IN S COTS L AW A Comparative Perspective

editors niall r whitty and reinhard zimmermann

dundee university press 2009

iii

iv

r i ght s of p e rs o n al i t y First published in Great Britain in 2009 by Dundee University Press University of Dundee Dundee DD1 4HN www.dup.dundee.ac.uk

Copyright © John Blackie, Gert Brüggemeier, Jonathan Burchell, Hazel Carty, Graeme Laurie, Hector L MacQueen, Kenneth McK Norrie, Elspeth Reid, David Vaver, Charlotte Waelde, Niall R Whitty and Reinhard Zimmermann

ISBN 978–1–84586–027–1

All rights reserved. No part of this publication may be reproduced, stored, or transmitted in any form, or by any means, electronic, mechanical or photocopying, recording or otherwise, without the express written permission of the publisher.

The rights of the Contributors to be identified as the authors of this work have been asserted in accordance with the Copyright, Designs and Patents Act 1988.

No natural forests were destroyed to make this product; only farmed timber was used and replanted.

British Library Cataloguing-in-Publication Data A catalogue record for this book is available on request from the British Library.

Typeset by Waverley Typesetters, Fakenham Printed and bound by Bell & Bain Ltd, Glasgow



ta b l e of cas e s

v

  contents

Foreword

vii

Preface

xi xiii

List of Contributors

xv

Table of Cases Table of Legislation and Other Instruments

xliii

Table of Abbreviations

lv

1 Rights of Personality in Scots Law: Issues and Options Niall R Whitty and Reinhard Zimmermann

1

2 Unity in Diversity: the History of Personality Rights in Scots Law John Blackie 3

Overview of Rights of Personality in Scots Law Niall R Whitty

31 147

4 Protection of Personality Rights in the Modern Scots Law of Delict 247 Elspeth Reid 5 Protection of Personality Interests in Continental Europe: the Examples of France, Germany and Italy, and a European Perspective 313 Gert Brüggemeier 6

Personality Rights in South Africa: Re-affirming Dignity Jonathan Burchell v

349

r i ght s of p e rs o n al i t y

vi

7

Personality Rights and English Law Hazel Carty

8 Does Intellectual Property Have Personality? David Vaver 9 The Scots Law of Defamation: Is there a Need for Reform? Kenneth McK Norrie

383 403

433

10 Personality, Privacy and Autonomy in Medical Law Graeme Laurie

453

11 A Rights of Personality Database Charlotte Waelde and Niall R Whitty

485

12 A Hitchhiker’s Guide to Personality Rights in Scots Law, Mainly with Regard to Privacy Hector L MacQueen

549

Index

589



ta b l e of cas e s

vii

  foreword by The Rt Hon The Lord Hope of Craighead, PC, FRSE

When I welcomed the participants to the Conference at the University of Strathclyde on 5 and 6 May 2006 which was the genesis of this remarkable collection of essays, I said that the programme that they were about to embark on was quite startling to someone like myself who rarely has the time or the opportunity to study subjects of this kind in such detail and in such company. The judges, especially those like me who sit in the appeal courts, move from one subject to another almost as frequently as one day follows another. The intensity of debate which we experience does, of course, stimulate the thought processes. But the issues with which we deal are intensely focused and predetermined by the facts of the case which are rarely as neat and tidy as they appear in academic problem-solving. Left to ourselves in an increasingly complex world, it would be all too easy to lose touch with the structure of the law. We might indeed not give any thought to it at all. This is where the academic branch of the profession makes what is perhaps its most significant contribution. The attention which it gives to the law’s structure and its orderly development is a vital corrective factor. Times have long passed by when resort to guidance of this kind was a somewhat surreptitious process, rather as we used, when children, to read books with the use of a torch under the bedclothes. Nobody was supposed to know what was happening. Now people on my side of the profession are quite frank about what we are doing. We welcome the guidance that is to be found in academic writings. That is especially so when it addresses a topic of such importance and current interest as the rules and principles that protect a person’s rights of personality. Treating a topic in a dedicated collection of this kind is not new. But in the case of personality rights it is an innovation, at least in Scots law. A light is being cast on an area of our law which is to a large extent undeveloped and in other respects unexplored. Giving it a title – describing the rights as rights of personality – is an important vii

viii

r i ght s of p e rs o n al i t y

step, just as the existence and importance of the distinctive system of Scots property law was revealed and reaffirmed only a few years ago by describing it as such for the first time since the lectures which Baron Hume delivered to the students of Edinburgh University between 1786 and 1822. Rights of personality are revealed as the rights which protect who a person is rather than what a person has – for example, his or her bodily integrity, reputation, privacy and dignity. The problems that confront Scots private law as it seeks to address these issues are the subject of this book. That rights of personality demand closer attention is not in doubt. It is an area of the law, after all, which affects everybody. To take one example, the law that regulates the intrusion into private lives by the media is still in process of development. Prying into the behaviour of celebrities, reputable or disreputable, is part of human nature. It sells newspapers. It is attractive to broadcasters too, as they compete for approval ratings with other methods of disseminating information through the internet. And it is not only celebrities who are exposed to this process. Everyone in public life is at risk if there is a good enough story. So too are people who are not active in public life and might reasonably expect privacy. The law that affords reparation for defamation or verbal injury offers some protection if the facts that are reported by the media are untrue. But a person may be as justifiably aggrieved by the revelation of information that is true but which he or she wishes to keep private. How should Scots law respond to these and other similar challenges? One response, which Elspeth Reid in her contribution to this book aptly describes as “a new imperative”, is to look at the jurisprudence that Article 8 of the European Convention on Human Rights has given rise to. At first sight an appeal to a person’s right to respect for his private life provides the answer. But it is a qualified right, and there is the competing right to freedom of expression under Article 10 to contend with. Taking on the media to establish the principles that must be applied for resolving this conflict is not a task that is within the means of the ordinary citizen. But we are fortunate that Naomi Campbell, Princess Caroline of Monaco and J K Rowling could afford to litigate. Their cases, all of which feature in this book, have helped to settle the direction in which the law on this matter should be travelling. But it will not have escaped attention that the intrusion into their infant son’s private life that J K Rowling and her husband complained of on his behalf took place only a short distance from the Court of Session in Edinburgh. The fact that they were advised to litigate in England may have been due to the fact there is a specialist Bar that deals with cases of this kind in London. This has consequences for Scots law itself as well as for practitioners. The law which the English courts applied, as to whether there was



ta b f or l e eof wocas rd e s

ix

a reasonable expectation of privacy and how it was to be balanced against the rights of the publisher, ought to be capable of being applied without difficulty in Scotland. But the horizontal effect of the Convention rights is a subject that has scarcely been touched on in Scotland. Increasing awareness of this issue is one of the aims of this book. Another aim is to look to comparative law for solutions that might inform the development of Scots law. Civil law legal systems such as those of France and Germany, and some “mixed” systems such as those of South Africa, have systems of personality rights. The common law jurisdictions, even those in the United States where a right to privacy was recognised over a century ago, do not. Instead, they tend to rely on specific torts or equitable wrongs to protect interests in personality. In this book the main features of both approaches are described by several contributors from their different standpoints. There are also differences between the approach to privacy in the United States and that of continental Europe, and there are differences between the European systems too. It is those of continental Europe and of South Africa that are more likely to offer assistance in developing a system of personality rights. Several chapters in this book are devoted to this subject. In another there is an exploration of the extent to which privacy-related legislation such as the Protection from Harassment Act 1997 and the Data Protection Act 1998 can guide the development of the common law by the judges. Other contributors address special subjects, such as the question how far intellectual property rights protect an individual’s personality in English law, the reform of the Scots law of defamation and the role of a patient’s personality right of autonomy in medical law. The book finds its anchor in a study of the historical development of personality rights in Scots law in its comparative context. This is important not only as an immensely thorough and scholarly work of history. It is an essential tool for anyone who seeks to understand the shape of the modern law. There are differences of opinion between the contributors who have examined the historical roots of the law on personality rights as to whether the civilian delict of injury has survived today. But they are all agreed that Scots law has the flexibility to recognise new causes of action protecting personality rights. So the book addresses three key issues to assist this development: how the right to privacy is to be affirmed and implemented in Scots law; whether Scots law should develop an exclusive right to the commercial exploitation of a person’s image and identity; and whether or how rights of personality are to be systematised. When we met in May 2006 at the opening of the conference at Strathclyde University I offered my congratulations to Niall Whitty

x

r i ght s of p e rs o n al i t y

and his organising committee for all the work that they had put into creating the programme. It is due to his enterprise and energy and those of his co-editor Reinhard Zimmermann that those discussions have resulted in a book which is so full of ideas and rich in scholarship. So I renew my congratulations to them both. It is a book that deserves to be read widely, outside as well as within Scotland. But it is Scots law as a living system that has most to gain from it. I believe that it will make a major and lasting contribution to its development. David Hope June 2009



ta b l e of cas e s

xi

  preface  

This book grew out of an international conference of lawyers held in the Lord Hope Building in The Law School, University of Strathclyde, Glasgow on 5 and 6 May 2006. The participating judges, legal practitioners and academic lawyers were drawn mainly from Scotland but also from such centres of legal learning outside Scotland as the Universities of Bremen, Cape Town, Manchester, Montreal, Oxford, Stellenbosch and Utrecht. The title of the Conference was the same as the title of this book: “Rights of Personality in Scots Law: A Comparative Perspective”. The Conference considered and discussed, in a comparative perspective, important trends and issues affecting the private law on rights to privacy and other rights of personality in jurisdictions drawn from the families of common law, civilian and mixed legal systems. The main aim was to assist Scotland’s legal system to develop this important but relatively undeveloped branch of Scots private law and that in a manner which would interest lawyers from other legal systems as well as Scotland. The Conference represented a collaboration between The Law School, University of Strathclyde; The School of Law, University of Edinburgh and the AHRC (Arts and Humanities Research Council) Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh. These three sponsoring bodies and the British Academy gave generous grants which made the Conference possible. Thanks are due to them and also to Nadine ErikssonSmith, then of Edinburgh University AHRC Research Centre, and Linda Ion of Strathclyde Law School, for organising the Conference so efficiently. We as editors are grateful to all the other contributors to this book all of whom gave papers at the above Conference. Some chapters are based closely on those papers while others (especially Chapters 2, 3, 4 and 11) reflect further research conducted since May 2006. We are much indebted to Professor Adrian Popovici of the University of Montreal and Professor Jim Murdoch of the University of Glasgow xi

xii

r i ght s of p e rs o n al i t y

who gave valuable papers at the Conference but were unable to contribute to the book. We are especially grateful to Professor Popovici for crossing the Atlantic from Montreal at short notice to give a most interesting paper at the Conference on rights of personality in Quebec. He took the place of Professor Vernon Palmer, Louisiana, who had to call off when Hurricane Katrina devastated his home city of New Orleans and severely disrupted his teaching at Tulane University. We gratefully acknowledge generous financial assistance towards the production of this book provided by the Law School, University of Strathclyde, the Max-Planck-Institute for Comparative and International Private Law in Hamburg and especially the primary donor, the AHRC Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh. We are most grateful to Dr Carole Dalgleish, Law Publisher, of Dundee University Press for her expert advice and assistance especially at the stage of planning the book. We are particularly indebted to Ms Karen Howatson, Managing Editor (Law), Dundee University Press for patiently and cheerfully bearing the brunt of editing the text and managing the project. We have also benefited greatly from the professional skill of Sean Redmond, our indexer. Finally, we wish to thank Lord Hope of Craighead, one of the Scottish Lords of Appeal in Ordinary, who not only opened the Conference on 5 May 2006, but also provided a Foreword to this volume. The law is stated as at 1 October 2008 but account has been taken where possible of subsequent cases and developments. Niall R Whitty Reinhard Zimmermann Editors May 2009



ta b l e of cas e s

xiii

  list of contributors

john blackie Professor of Law at the University of Strathclyde.

gert brüggemeier Emeritus Professor of Private Law, European Economic Law and Comparative Law at the University of Bremen.

jonathan burchell Professor of Criminal Law at the University of Cape Town.

hazel carty Reader in Law at the University of Manchester.

graeme laurie Professor of Medical Jurisprudence, and a Director of the Arts and Humanities Research Council Centre for Studies in Intellectual Property and Technology Law, at the University of Edinburgh.

hector l macqueen Professor of Private Law, and a Co-Director of the Arts and Humanities Research Council Centre for Studies in Intellectual Property and Technology Law, at the University of Edinburgh.

kenneth norrie Professor of Law at the University of Strathclyde.

elspeth reid Senior Lecturer in Law at the University of Edinburgh. xiii

xiv

r i ght s of p e rs o n al i t y

david vaver Emeritus Professor of Intellectual Property & IT Law, University of Oxford; Emeritus Director, Oxford Intellectual Property Research Centre; and Professor of Intellectual Property Law at Osgoode Hall Law School, York University, Toronto.

charlotte waelde Professor of Intellectual Property Law, and a Co-Director of the Arts and Humanities Research Council Centre for Studies in Intellectual Property and Technology Law, at the University of Edinburgh.

niall r whitty Visiting Professor at the University of Edinburgh.

reinhard zimmermann Director of the Max-Planck-Institute for Comparative and International Private Law in Hamburg, and Professor of Roman Law, Comparative Legal History and Private Law at the University of Regensburg.



ta b l e of cas e s

xv

  table of cases

Argentina Cámara Nacional de Apelaciones en lo Civil, Sala A, 24 January 1966, Revista Jurídica El Derecho................................................................................................   527 Ekmedjian vs Sofovich, Corte Suprema de Justicia de la Nación, 7 July 1992, Fallos 315:1992.....................................................................................................   497 Váldez vs Editorial Perfil, Váldes Cámara Nacional de Apelaciones en lo Civil, Sala F, 14 October 1999, Jurisprudencia Argentina, 2000, T. III, p. 457................   512 Australia Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199;   [2001] HCA 63; (2001) 185 ALR 1 (HCA)............................   161, 193, 414, 531, 583 Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd [2004] FCAFC 201 (Full Fed Ct, Aust) [2003] FCA 878...................................................   419 Battersby v Tottman (1985) 37 SASR 524 (South Australia Sup Ct)...........................   472 Campomar Soc Ltd v Nike International Ltd (2000) 202 CLR 45.............................   517 Christodoulo v Disney Enterprises Inc [2006] FCA 902 (Fed Ct, Aust); [2005] FCA 1401.......................................................................................................................   426 Cummins v Vella [2002] FCAFC 218 (Full Fed Ct, Aust)...........................................   415 De Reus v Gray [2003] 9 VR 432, [2003] VSCA 84..................................................   301 Grosse v Purvis [2003] Aust Torts Reports §81-706..................................................   531 Henderson v Radio Corporation Pty Ltd [1960] SR (NSW) 576 (NSW Full Sup Court) [1969] RPC 218....................................................   24, 389, 499, 514, 517, 537 Heublein Inc v Continental Liqueurs Pty Ltd (1960) 103 CLR 435............................   427 Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187; (1988) 12 IPR 508 (Fed Ct of Australia)...........................................................................................   389, 517, 537 — v Pacific Dunlop Ltd (1989) 14 IPR 398 (Full Federal Court)................................   517 Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (High Ct of Australia)...............................................................................................................   444 Leather Cloth Co v American Leather Cloth Co (1865) 9 HLC 523..........................   427

xv

xvi

r i ght s of p e rs o n al i t y

Melbourne University Student Union Inc (in Liq) v Ray [2006] VSC 205 (Vic)..........   431 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414.....   495, 517 Musidor BV v Tansing (1994) 123 ALR 593 (Full Fed Ct, Aust)................................   426 Pacific Dunlop v Hogan (1989) 87 ALR 14 (Fed Ct of Australia)..............................   389 Picasso v Thomas [2001] ATMO 84 (Aust TM Off)..................................................   419 Roland Corp v Lorenzo & Sons Pty Ltd (1992) 23 IPR 376 (Full Fed Ct, Aust); (1991) 22 IPR 245.................................................................................................   418 Tame v New South Wales (2002) 211 CLR 317.........................................................   498 Theophanus v H & W Times (1994) 124 ALR 1.......................................................   444 Twentieth Century Fox Corporation v South Australian Brewery Co Ltd (1996) 34 IPR 225.............................................................................................................   537 Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479...................................................................................................   386, 414 Woolworths Ltd v Olson [2004] NSWCA 372; (2004) 63 IPR 258............................   412 Canada 682330 Ont Inc v Cineplex Odeon Corp (1990) 33 CPR (3d) 408............................   416 Athans v Canadian Adventure Camps Ltd (1977) 80 DLR (3d) 583; (1977) 17 OR (2d) 425..............................................................................   496, 514, 518, 538 Aubry v Éditions Vice –Versa see Les Éditions Vice-Versa v Aubry Balanyk v University of Toronto (1999) 1 CPR (4th) 300..........................................   410 Cheerio Toys & Games Ltd v Dubiner [1966] SCR 206 (Can)...................................   429 Cohen v Queenswear International Ltd [1989] RRA 570 (CS)...................................   539 Deschamps v Renault Canada Inc, unreported case discussed at (1977) 18 Cahiers de droit 937...........................................................................................................   539 Dyne Holdings Ltd v Royal Insurance Co of Canada (1996) 135 DLR (4th) 142 (PEI AD)................................................................................................................   414 Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA)...   496, 499, 513, 518, 538 Hung v Gardiner 2003 BCCA 257;2002 BCSC 1234.................................................   414 Joseph v Daniels (1986) 11 CPR (3d) 544 (BCSC).....................................   496, 518, 538 Kraft Canada Inc v Euro Excellence Inc 2007 SCC 37; [2006] 3 FCR 91 (CA); [2004] 4 FC 410.....................................................................................................   418 Krouse v Chrysler Canada Ltd (1974) 1 OR (2d) (CA)......................   496, 514, 518, 538 Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14 (SCC)........   526 Laoun v Malo Malo, No 500-09-009227-000, 23 January 2003 (QCA)....................   540 Les Éditions Vice-Versa v Aubry [1998] 1 SCR 591; (Can); (1998) 157 DLR (4th) ................................................................ 506, 513, 532, 539, 545, 577 Manning v Hill (1995) 126 DLR (4th) 129................................................................   437



ta b l e of cas e s

xvii

Mattel Inc v 3894207 Canada Inc [2006] 1 SCR 772; 2006 SCC 22.........................   407 Mazatti v Acme Products Ltd [1930] 4 DLR 601.......................................................   276 NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC) Perron v Éditions des Intouchables Inc, REJB 2003-46170 (QSC)..............................   540 Picasso, succession v PRC Inc [1996] FCJ No 969 (Fed Ct, Can)...............................   419 Planet Earth Productions Inc v Rowlands (1990) 69 DLR (4th) 715..........................   409 Podolej v Rogers Media [2004] JQ 13889..................................................................   540 Productions Avanti Ciné-Vidéo Inc v Favreau (1999) 1 CPR (4th) 129 (Que CA)......   416 R v Dyment [1988] 2 SCR 417..................................................................................   299 — v Monney (1999) 6 BHRC 336.............................................................................   301 — v Pohoretsky [1987] 1 SCR 945............................................................................   301 — v Tessling 2004 SCC 67.........................................................................................   299 — v Wise [1992] 1 SCR 527......................................................................................   299 Rebeiro v Shawinigan Chemicals [1973] CS 389........................................................   539 Snow v Eaton Centre Ltd (1982) 70 CPR (2d) 105 (Ont)...........................................   410 Valliquette v The Gazette (Division Southam Inc) [1996] A Q 4045 (QCA).......   525, 533 England and Wales A v B & C [2003] QB 195 (CA).................................................................................   553 — v B plc [2002] EWCA Civ 337; [2003] QB 195; [2002] 3 WLR 550 (CA)....................................................................................   250, 468, 524 AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB); [2005] QB 506 ......................................................................................   474, 477, 478 — v Tameside and Glossop Health Authority (1997) 35 BMLR 79 (CA)...................   481 Abernethy v Hutchison (1825) 3 LJ (Ch) 209............................................................   296 Advocaat. See Erven Warnink BV v J Townend & Sons (Hull) Ltd (No.1) Antiquesportfolio.com v Rodney Fitch & Co [2001] FSR 345; [2001] ECDR 5 (Ch).........................................................................................................   420 Argyll (Duchess of) v Duke of Argyll [1967] 1 Ch 302...............................   187, 289, 294 Arsenal FC plc v Reed [2003] EWCA Civ 696; [2003] RPC 39..........   386, 392, 518, 539 Ash v McKennitt. See McKennitt v Ash Ashdown v Telegraph Group Ltd [2001] Ch 685.......................................................   579 Asprey & Garrard Ltd v WRA (Guns) Ltd [2001] EWCA Civ 1499; [2002] ETMR 47 (CA); [2001] IP & T 1273 (Ch)..........................................   405, 422 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL)...............   184, 185, 186, 187, 235, 289, 290, 291, 295, 296, 297, 559 Banks v Ablex Ltd [2005] ICR 819............................................................................   568 Barrymore v News Group Newspapers Ltd [1997] FSR 600 (Ch D)..........................   289 Bernstein v Skyviews Ltd [1978] 1 QB 479................................................................   196 Biba Group Ltd v Biba Boutique [1980] RPC 413 (Ch)..............................................   422 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.....   459, 460, 472 Bolitho v Hackney Health Authority [1998] AC 232.................................................   460 Bonnick v Morris [2003] 1 AC 300....................................................................   446, 449 Bradford (Mayor of) v Pickles [1895] AC 587...........................................................   274 Branson v Bower (No 2) [2002] QB 737....................................................................   450 British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch 383.............................................   412 British Telecommunications plc v One In A Million Ltd [1998] EWCA Civ 1272; [1999] 1 WLR 903; [1991] FSR 1 (CA)..........................................................   386, 422

xviii

r i ght s of p e rs o n al i t y

Broadfoot, Re (1743) Fost 154; 168 ER 76................................................................   121 Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2007] 3 WLR 289.................................................................   189, 289, 291, 293, 307 Burberrys v Cording & Co (1909) 26 RPC 693.........................................................   385 C v D [2006] EWHC 166...........................................................................................   256 Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1981] 1 WLR 193 (PC)............................................................................................   386, 391 Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457; [2004] WLR 1232; [2004] 2 All ER 995 (HL(E)).........................................   7, 14, 20, 159, 160, 174, 175, 184, 187, 188, 189, 192, 193, 196, 250, 289, 290, 291, 292, 293, 294, 299, 307, 353, 393, 394, 395, 396, 397, 406, 414, 420, 455, 498, 504, 513, 515, 516, 524, 525, 533, 534, 545, 553, 554, 555, 556, 558, 559, 573, 583 Capital and Counties Bank v Henty (1882) 7 App Cas 741...............................   437, 441 Cassell and Co Ltd v Broome [1972] AC 1027..........................................................   312 CC v AB [2007] EMLR 11 (QB)........................................................................   557, 568 Cembrit Blunn Ltd v Apex Roofing Services LLP [2007] EWHC 111 (Ch)................   412 Chappell & Co Ltd v Columbia Graphophone Co [1914] 2 Ch 745 (CA).........   413, 419 Charman v Orion Publishing Group Ltd [2007] EWCA Civ 972; [2008] 1 All ER 750...............................................................................................   446 Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134.................................   28, 454, 455, 457, 460, 461, 462, 463, 464, 466, 467, 472 Church of Jesus Christ of the Latter Day Saints v Price [2004] EWHC 3245.............   568 Clark v Associated Newspapers Ltd [1998] RPC 261 (Ch)........................................   410 Clifford v Brandon (1807) 2 Camp 357; 170 ER 1183..............................................   106 Coco v A N Clark (Engineers) Ltd [1969] RPC 41; [1968] FSR 415.................   184, 185, 189, 191, 290, 393, 521 Conn v Sunderland City Council [2008] IRLR 324............................................   567, 568 Corelli v Wall (1906) 22 TLR 532.............................................................................   386 Creation Records v Newsgroup Newspapers [1997] EMLR 444................................   398 Cropp v Tillney (1693) 3 Salk 225.............................................................................   268 Cummins v Bond [1927] 1 Ch 167.............................................................................   415 D v East Berkshire Community NHS Trust [2004] QB 558........................................   478 Daly v Cannon [1954] 1 WLR 261 (DC)...................................................................   404 Derbyshire CC v Times Newspapers [1993] 1 All ER 1011.......................................   438 DPP v Collins [2006] 1 WLR 2223 (HL)....................................................................   566 Douglas v Hello! Ltd (No 1) [2001] QB 967; [2001] 2 WLR 992 (CA) [21 December 2000].......................................................   197, 284, 293, 393, 394, 501 — v — (No 2) [2003] EWCA Civ 139; [2003] EMLR 28 [12 February 2003]...........   197 — v — (No 6) [2003] EWHC 786; [2003] 3 All ER 996; [2003] EMLR 31 (Ch) [11 April 2003]..............................................................   384, 393, 515, 519, 520, 573 — v — (No 6) [2005] EWCA Civ 595; [2006] QB 125 (CA) [18 May 2005]..............................................   185, 189, 197, 198, 241, 292, 353, 393, 395, 396, 397, 414, 498, 515, 519, 520, 541, 555, 573 — v — (HL) [2007] UKHL 1 [2 May 2007]. See OBG Ltd v Allan Du Boulay v Du Boulay (1869) LR 2 PC 430.............................................................   417 Durand v Molino, unreported, 30 July 1999, Ch D...................................................   421 Durant v Financial Services Authority [2003] EWCA Civ 1746; [2004] FSR 28 (CA)...............................................................................   541, 570, 571 Elvis Presley Trade Marks, Re [1999] RPC 567 (CA).........   281, 389, 391, 418, 419, 426 — [1997] RPC 543 (Ch)............................................   386, 388, 389, 390, 418, 419, 426



ta b l e of cas e s

xix

Erven Warnink BV v J Townend & Sons (Hull) Ltd (No 1) [1979] AC 731..................................................................................   200, 387, 388, 423, 565 Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119 (CA).......................................................................................................................   417 Fine Cotton Spinners & Doublers’ Association Ltd v Harwood Cash & Co Ltd [1907] 2 Ch 184.............................................................................................   405, 422 Ford v Foster (1872) LR 7 Ch App 611.....................................................................   428 Francome v Mirror Group Newspapers [1984] 1 WLR 892 (CA)..............................   575 Fraser v Evans [1969] 1 QB 349........................................................................   186, 298 Galloway v The Telegraph Group Ltd [2006] EWCA Civ 17; [2004] EWHC 2786 (QB).......................................................................................................   446, 449, 450 Georgallides v Etzin [2005] EWHC 1790...................................................................   568 GMG Radio Holdings Ltd v Tokyo Project Ltd [2005] EWHC 2188 (Ch); [2006] ECDR 3.................................................................................................................   416 Gold v Haringey Health Authority [1987] 3 WLR 649 (CA).....................................   459 Green Corns Ltd v Claverly Group Ltd [2005] EMLR 31..........................................   574 Hall v Barrows (1863) 4 De GJ & S 150 (LC)............................................................   428 Hellewell v Chief Constable [1995] 1 WLR 806........................................................   394 Hepworth Mfg Co Ltd v Ryott [1920] Ch 1..............................................................   405 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2007] 2 All ER 139 (CA)......................................................   291, 293, 294, 307, 397 — v — (No 3) [2006] EWHC 522 (Ch).....................   291, 293, 294, 307, 556, 580, 584 Horrocks v Lowe [1975] AC 135 (HL)......................................................................   212 Howlett v Holding (No 4) [2006] EWHC 41 (QB)....................................   568, 577, 583 Hulton v Jones [1910] AC 20.............................................................................   440, 441 Hunter v Canary Wharf Ltd [1997] AC 655..............................   173, 214, 256, 309, 553 Hyde Park Residence Ltd v Yelland [2001] 1 Ch 143 (CA)........................................   413 I N Newman Ltd v Adlem [2005] EWCA Civ 741; [2006] FSR 16............................   429 Irvine v Talksport [2002] EWHC 367; [2003] FSR 60 (Ch); [2003] FSR 943.....   24, 200, 284, 390, 391, 392, 499, 514, 518, 539 — v — (Damages) [2003] EWCA Civ 423; [2003] 2 All ER 881 (CA).................  24, 200, 281, 283, 284, 390, 499, 514, 518, 539 Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359................................   263, 446 Janvier v Sweeney [1919] 2 KB 316...........................................................................   256 John v Associated Newspapers Ltd [2006] EMLR 722..............................................   554 Johnson v Evans (1799) 2 Esp 32; 170 ER 528..........................................................   115 — v Medical Defence Union Ltd [2006] EWHC 321 (Ch).........................................   571 Jones v Warwick University [2003] 3 All ER 760...............................................   299, 300 Joseph Rodgers & Sons Ltd v W N Rodgers & Co (1924) 41 RPC 277 (Ch).............   422 Joyce v Sengupta [1993] 1 WLR. 337........................................................................   268 Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465..................................   516, 563 Kaye v Robertson [1991] FSR 62...............................................................................   196 Keegan v Chief Constable of Merseyside Police [2003] EWCA Civ 936; [2003] 1 WLR 2187...............................................................................................   213 Khodaparast v Shad [2000] 1 WLR 618....................................................................   268 Khorasandjian v Bush [1993] QB 727........................................................   173, 309, 553 Kingston Miller & Co Ltd v Thomas Kingston & Co Ltd [1912] 1 Ch 575...............   422

xx

r i ght s of p e rs o n al i t y

Lindley v Rutter [1981] 1 QB 128 (CA).............................................................   302, 564 London General Holdings Ltd v USP plc [2005] EWCA Civ 931; [2006] FSR 6........   412 L’Oréal SA v Bellure NV [2006] EWHC 2355 (Ch); [2007] ETMR 1................   416, 417 Loutchansky v Times Newspapers [2002] EMLR 14.................................................   446 Lyngstad v Anabas Products Ltd [1977] FSR 62........................................................   388 M v Secretary of State for Work and Pensions [2006] 2 AC 91..................................   584 McCulloch v Lewis A May [1947] 65 RPC 58...................................................   282, 388 McKennitt v Ash [2005] EWHC 3003; [2006] EMLR 10 (QB)..................   555, 583, 584 — v — [2006] EWCA Civ 1714; [2008] QB 73; [2007] 3 WLR 194;   [2007] EMLR 4 (CA).................................................  9, 250, 289, 291, 293, 294, 297, 307, 397, 414, 555, 557, 584 Mainstream Properties Ltd v Young [2007] UKHL 21 Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224.....................   253, 567 Malone v Metropolitan Police Commissioner [1979] Ch 344............................   298, 575 Marengo v Daily Sketch & Sunday Graphic Ltd [1992] FSR 1 (CA, 1946)................   415 — v — (1948) 65 RPC 242 (HL)...............................................................   404, 419, 422 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 (HL).......   459 Mbasogo v Logo Ltd (No 1) [2007] 2 WLR 1062......................................................   256 Merchandising Corp of America Inc v Harpbond [1983] FSR 32 (CA)......................   417 Mills v MGN Ltd [2001] EMLR 41...........................................................................   395 MK (a child) v Oldham NHS Trust [2003] Lloyd’s Rep Med 1..................................   478 Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25..............................   274 Morrison v Moat (1851) 9 Hare 241.........................................................................   393 Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)......................   560, 585 — v — (No 2) [2008] EWHC 1777; [2008] EMLR 20 (QB).......................   14, 243, 250,   289, 293, 294, 295, 307, 353, 554, 559, 586, 587 Murray v Big Pictures (UK) Ltd. See Murray v Express Newspapers plc (2008) — v Express Newspapers plc and Big Pictures (UK) Ltd [2008] EWCA Civ 446; [2008] EMLR 12 (CA)....................................................   14, 293, 294, 353, 397, 498, 513, 515, 548, 554, 558, 562, 570, 571, 584, 585, 586 — v Express Newspapers plc [2007] EWHC 1908; [2007] EMLR 22 (Ch D)...........   170, 202, 498, 515, 516, 525, 544, 545, 548, 558, 571, 573, 582, 585, 586 Musical Fidelity Ltd v Vickers [2002] EWCA Civ 1989; [2003] FSR 50 (CA)............   412 — v — [2002] EWHC 1000; (2002) 25(8) IPD 25054 (Ch).......................................   412 Nicholls v Ely Beet Sugar Co [1936] 1 Ch 343 (CA)..................................................   208 Norowzian v Arks Ltd (No 2) [2000] FSR 363 (CA)..................................................   415 Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002]  EWHC 409 (Ch); [2002] RPC 962 (Ch).................................................................   412 OBG Ltd v Allan; sub nom Douglas v Hello! Ltd (No 6); Mainstream Properties  Ltd v Young [2007] UKHL 21; [2008] 1 AC 1; [2007] 2 WLR 920 (HL)........   25, 197, 198, 199, 285, 292, 353, 397, 398, 400, 401, 414,499, 501, 504, 514, 515, 519, 520, 521, 523, 548, 554, 555, 559, 583, 584 Panini SpA v Halliwell, unreported (1997) Ent LRev 8(5) E94–5.......................   389, 391 Parker Knoll Ltd v Knoll International Ltd [1962] RPC 265 (HL).....................   422, 423 Parmiter v Coupland (1840) 6 M & W 105...............................................   131, 263, 268 Pearce v United Bristol Healthcare NHS Trust (1999) 48 BMLR 118........................   459 Phones4u Ltd v Phone4u.co.uk [2006] EWCA Civ 244; [2007] RPC 5......................   428 Pollard v Photographic Co (1888) 40 Ch D 345................................   288, 420, 421, 580 Potter v Price [2004] EWHC 781...............................................................................   568



ta b l e of cas e s

xxi

Prince Albert v Strange (1849) 2 De G & Sm 652; (1849) 1 H & Tw 1 (LC)............   393,   413, 419 Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2007] 2 All ER 139 (CA); [2006] EWHC 522 (Ch); [2006] ECDR 20 (Ch)..........   413 Pullman v W Hill & Co Ltd [1891] 1 QB 524...........................................................   239 Queen Diana Trade Mark [1991] RPC 395................................................................   425 R v Broadcasting Standards Commission, ex p BBC [2001] QB 885....................   20, 353 — v Chief Constable of North Wales, ex p AB [1998] 3 All ER 310..........................   394 — v HM Advocate [2002] UKPC D 3; 2003 SC (PC) 21....................................   352, 355 — v Ireland [1998] AC 147........................................................................................   253 — v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736..............................................   426 — v Meade and Belt (1823) 1 Lew 184......................................................................   253 R (on the application of Ahmed) v Secretary of State for the Home Department [2004] EWHC 158 (Admin); [2005] 1 Prison LR 6................................................   420 R (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15...............................................................................................................   173 R (on the application of Burke) v General Medical Council; [2006] QB 273 (CA); [2004] 3 FCR 579 (QB).................................................................................   456, 479 R Griggs Group Ltd v Evans [2005] EWCA Civ 11; [2005] ECDR 30 (CA); [2003] EWHC 2914; [2004] ECDR 15 (Ch)..................................................   418, 421 Ratcliffe v Evans [1892] 2 QB 524.............................................................................   268 Reckitt & Colman Products v Borden Inc [1990] 1 WLR 491; [1990] RPC 341 (HL)............................................................................   200, 281, 387 Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159; [2004] ETMR 56...................................................................................................   423 Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] AC 309 (HL)..   21, 28, 160, 202, 214, 454, 455, 464, 465, 466, 467, 472, 473 Reynolds v Times Newspapers [2001] 2 AC 127; [1999] 4 All ER 609 (HL).....  150, 209, 444, 445, 446, 447, 449, 450 Richardson v Howie [2005] Personal Injuries and Quantum Reports Q3..................   251 Riding v Smith [1876] 1 Ex D 91...............................................................................   268 Routh v Webster (1847) 50 E.R. 698; (1847) 10 Beav 561 (Ch) Rowling v Mail on Sunday, PCC adjudication of 6 May 2008...................................   289 S (FC) (A Child, Re) [2004] UKHL 47; [2005] 1 AC 593...................................   307, 554 Saltman Engineering Co v Campbell Engineering Co [1963] 3 All ER 413 (Note); (1948) 65 RPC 203................................................................................................   290 Secretary of State for the Home Dept v Wainwright [2003] WLR 1137 (HL)............  394, 395, 397 Seaga v Harper [2008] 1 All ER 965..........................................................................   445 Semayne’s Case (1604) 77 ER 194; 5 Co Rep 91.......................................................   299 Service Corporation International plc v Channel Four Television Corporation [1999] EMLR 83...............................................................................................................   580 Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134 (Ch)....................   398, 416, 579 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 .........  459, 460, 461, 462, 464, 472 Sim v Stretch [1936] 2 All ER 1237; (1936) 52 TLR 669...................................   269, 439 Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94................................   230 Sir Robert McAlpine Ltd v Alfred McAlpine plc [2004] EWHC 630; [2004] RPC 36 (Ch)...............................................................................................   424 Smith v Stemler [2001] CLY 2309..............................................................................   268 Southey v Sherwood (1817) 2 Mer 435 (Ch)..............................................................   411

xxii

r i ght s of p e rs o n al i t y

Spring v Guardian Assurance plc [1995] 2 AC 296; [1994] 3 All ER 129 (HL)..  213, 441 Stephens v Avery [1988] Ch 449................................................................................   289 Stringfellow v McCain Foods (GB) Ltd [1984] RPC 501............................................   388 T, Re (1992) [1992] 4 All ER 649 9 (CA)...................................................................   454 T v BBC [2007] EWHC 1683 (QB); [2008] 1 FLR 281..............................................   250 Taittinger SA v Allbev Ltd [1993] FSR 641 (CA)...............................................   283, 392 Tate v Fullbrook [1908] 1 KB 821 at 832 (CA)..........................................................   416 Tennant v Associated Newspapers Group Ltd [1979] FSR 278 (Ch)..........................   413 Theakston v MGN Ltd [2002] EWHC 137; [2002] EMLR 22...........................   292, 524 Thomas v Mirror Group Newspapers Ltd [2002] EMLR 4 (CA)...............................   568 — v Pearce [2000] FSR 718.......................................................................................   298 Times Newspapers v Mirror Group Newspapers Ltd [1993] EMLR 442...................   579 Tolley v Fry & Sons Ltd [1931] AC 333 (HL)............................................................   196 Turton v Turton (1888) Ch D 128 at 136 (CA)..........................................................   404 Venables v News Group Newspapers Ltd [2001] Fam 430, [2001] 2 WLR 1038, [2001] 1 All ER 908.......................................................................   167, 235, 289, 306 Vitof Ltd v Altoft [2006] EWHC 1678 (Ch)..............................................................   418 Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 (HL)..............   162, 190, 191, 207, 256, 295, 299, 301, 302, 306, 308, 414, 468, 561, 562, 564, 565, 566, 567, 568, 582 Ward v Beeton (1874) LR 19 Eq 207.........................................................................   428 Watkins v Home Office [2006] 2 AC 395..................................................   561, 565, 587 — v Home Secretary [2006] UKHL 17; [2006] 2 AC 395 (HL).........................  208, 239, 242, 243, 301 Weldon v Home Office [1990] 3 WLR 465................................................................   260 Wilkinson v Downton [1897] 2 QB 57......................................................................   256 Wong v Parkside Health NH Trust [2003] 3 All ER 932............................................   256 Wood v Metropolitan Police Commissioner [2008] EWHC 1105 (Admin)................  554, 560, 585 Woodward v Hutchins [1997] WLR 760 (CA)...........................................................   513 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581...................   263 European Court of Human Rights AS v Poland, 20 June 2006.........................................................................................   261 Bladet Tromsø v Norway (2000) 29 EHRR 125........................................................   444 Boyle and Rice v United Kingdom (1988) 10 EHRR 425...........................................   301 Copland v United Kingdom (2007) 45 EHRR 37.......................................................   301 Evans v United Kingdom, 7 March 2006...................................................................   470 Friedl v Austria (A/305-B) (1996) 21 EHRR 833...............................................   173, 470 Guerra and Others v Italy (1998) 26 EHRR 357.........................................................   470 Halford v United Kingdom (1997) 24 EHRR 523..............................................   301, 575 HL v United Kingdom (2005) 40 EHRR 32...............................................................   261 Keegan v United Kingdom (Application no 28867/03) (2007) 44 EHRR 33......   213, 214 Khan v United Kingdom (2001) 31 EHRR 45............................................................   300



ta b l e of cas e s

xxiii

Lloyd v United Kingdom (Application No 29798/96), 1 Mar 2005............................   261 McGinley v United Kingdom (1999) 27 EHRR 1........................................................   470 Niemietz v Germany (1993) 16 EHRR 97..................................................................   299 Oberschlick v Austria (1995) 19 EHRR 389..............................................................   450 Peck v United Kingdom (2003) 36 EHRR 41; [2003] EMLR 15.................   17, 174, 293, 295, 305, 397, 534, 554, 559, 566, 572 Peers v Greece (2001) 33 EHRR 51...........................................................................   301 PG v United Kingdom (2008) 46 EHRR 51...............................................................   299 Pretty v United Kingdom (2002) 35 EHRR 1; [2002] 2 FCR 97..........   29, 455, 469, 470 Radio France v France (App no 53984/00) (30 March 2004).....................................   414 Reid v United Kingdom (2003) 37 EHRR 9...............................................................   262 Sciacca v Italy (2006) 43 EHRR 20 (ECHR)..............................................................   552 Storck v Germany (2006) 43 EHRR 6........................................................................   262 Szeloch v Poland (App No 39510/98) (2003) 37 EHRR 46........................................   261 Tolstoy v United Kingdom (1995) 20 EHRR 442.......................................................   239 von Hannover v Germany (2005) 40 EHRR 1..............................   6, 174, 189, 196, 250, 299, 342, 344, 345, 396, 347, 499, 515, 516, 525, 527, 528, 534, 542, 545, 552, 554, 556, 558 Wainwright v United Kingdom (App No 12350/04) (2007) 44 EHRR 40; [2006] ECHR 807..................................   162, 207, 295, 301, 301, 395, 468, 469, 563 Whiteside v UK (Application No 20357/92,76-A DR 80 (1994) DR).........................   173 Wieser v Austria (2007) 45 EHRR 44........................................................................   301 X and Y v Netherlands (1986) 8 EHRR 235..............................................................   474 YF v Turkey (2004) 39 EHRR 34..............................................................................   301 European Court of Justice Continental Shelf 128 Ltd’s Trade Mark, Re (Appn No 2161562B), 3 November 2006 (Appointed Person).......................................................................................   427 Eden v OHMI (Case T–305/04) 27 October 2005.....................................................   417 Emanuel (Approximation of laws) (Case C-259/04) [2006].......................   427, 428, 429 European Parliament v Council of the European Union (Case C–540/03) [2006] ECR I–5769................................................................................................   341 Hauer (Case 44/79) [1979] ECR 3727.......................................................................   340 Internationale Handelsgesellschaft (Case 11/70), [1970] ECR 1125...........................   341 Nichols plc v Registrar of Trade Marks (Case C–404/02) [2004] ECR I–8499...........   425 Nold (Case 4/73) [1974] ECR 491; [1974] 2 CMLR 338...........................................   340 Stauder (Case 29/69) [1969] ECR 419; [1970] CMLR 112........................................   340

xxiv

r i ght s of p e rs o n al i t y France

CA, Paris, 2.12.1897, Ann prop ind 1899, 63............................................................   319 CA, Paris, 1.2.1900, S Jur II 121................................................................................   320 CA, Paris, 16.3.1955, Marlene Dietrich, D Jur 1955 jur 295.....................................   321 CA Paris, 13.3.1965, Gérard Philippe, 1965 JCP II 14223, D 1965 somm 114.........   310 CA Paris, 27.2.1967, Bardot, D 1967 jur 450............................................................   310 CA, Paris, 11.02.1987, Arche Pub vs Sitruk, D 1987, somm 385...............................   535 CA, Paris, 6.5.1997, D, Jur P 596..............................................................................   511 CA, Paris, 24.2.1998, D 1998, D 1998......................................................................   511 CA, Rennes, 31.5.1951, D 1951, 484........................................................................   511 CA, Versailles, 31.1.1991, Edi vs Belmondo, D 1991................................................   535 CC, 16.7.1971, decision 71-44 DC (“Liberté d’association”)....................................   322 Cass civ, 14.3.1900, Eden vs Whistler, DP 1900, I 497..............................................   579 Cass civ, 12.7.1966, Philipe, DS Jur 1967, 181..........................................................   321 Cass civ, 13.1.1999, D 1999, J 120............................................................................   535 Cass civ, 14.12.1999, JCP 2000, II, 10241.................................................................   277 Cass civ, 20.12.2000, Erignac, JCP 2001, D 2001 885...............................................   511 Cass civ, 20.12.2000, [2001] D 872...........................................................................   324 Cass civ, 9.7.2003, [2004] D 1634; [2004] Gaz Pal 3112...........................................   324 Cass civ, 4.11.2004, [2004] JCP II 10186..................................................................   324 Cass civ, 31.1.2006, Fressange vs Inès de la Fressange SA..........................................   429 Cass civ, 13.6.2006, Bsiri-Barbir vs Haarmann & Reimer [2006] ECDR 380............   416 Cass civ, 27.2.2007, D 2007 AJ 804..........................................................................   277 Cass crim, 28.2.1874, D 1874,1,233..........................................................................   319 Cass crim, 20.10.1998, Mitterrand, D 1999. 106.......................................................   511 TGI, Aix-en-Provence, 24 11.1988, Raimu, JCP 1989, II, 21329...............................   325 TGI, Marseille, 6.6.1984, Izzo vs Seppin, D 1985, somm 323...................................   535 TGI, Nanterre, 6.4.1995, Cantona, Gaz Pal 1995, 1, 285..........................................   535 TGI, Paris, 9.3.1987 Gaz. Pal. 6.3.1987.....................................................................   535 TGI, Paris, 2.6.1993, Gaz Pal 1994, 1, 133................................................................   535 TGI, Paris, 16.11.2000, Gaz Pal 2000, 2, 2434..........................................................   511 TGI, Riom, 26.2.2004, Gaz Pal 2004 no 328, p 14....................................................   325 Trib civ Seine, 16.6.1858, Rachel, D.1858,3,62.........................................   318, 319, 323 Trib civ Seine, 15.2.1882, D.1884,2,22 note Labbé...................................................   319 Trib civ Seine, 28.1.1896, Ann prop ind 1897, 89......................................................   319 Trib civ Seine, 11.3.1897, D.1898,2,359....................................................................   320 Germany RG, 27.6.1882, RGZ 7, 295......................................................................................   327 RG, 28.12.1899, RGZ 45, 170..................................................................................   328 RG, 29.5.1902, RGZ 51, 369....................................................................................   329 RG, 7.11.1908, RGZ 69, 401, 403 (Nietzsche letters).......................................   325, 329 RG, 15.11.1909, RGZ 72, 175..................................................................................   329 RG, 12.5.1926, RGZ 113, 413..................................................................................   329 RG, 13.1.1927, RGZ 115, 416..................................................................................   329 RG, 18.10.1939, RGZ 162, 7....................................................................................   329 BVerfG, 15.1.1958, BVerfGE 7, 198; NJW 1958, 257; JZ 1958, 119 (Lüth).............   330 BVerfG, 24.2.1971, BVerfGE 30, 173; NJW 1971, 1645 (Mephisto).........   333, 511, 512 BVerfG, 5.6.1973, BVerfGE 35, 203 (Lebach)...................................................   356, 360 BVerfG,12.10.1993, BVerfGE 89, 155; NJW 1993, 3047..........................................   341 BVerfG, 15.12.1999, BVerfGE 101, 361; NJW 2000, 1021...............................   241, 344



ta b l e of cas e s

xxv

BVerfG, 15.12.1999, AfP 2000, 163 (Kundenzeitschrift)...........................................   536 BVerfG, 22.8.2006, NJW 2006, 3409................................................................   509, 510 BVerfG, 26.2.2008, NJW 2008, 1793 (Caroline von Hannover)................................   346 BGH, 17.6.1953, BGHZ 10, 104...............................................................................   239 BGH, 25.5.1954, BGHZ 13, 334; NJW 1954, 1404; JZ 1954, 698 (Schachtbrief)....  311, 330 BGH, 26.11.1954, BGHZ 15, 249 (Cosima Wagner).................................................   330 BGH, 8.5.1956, BGHZ 20, 345 (Paul Dahlke)..........................................................   333 BGH, 2.4.1957, BGHZ 24, 72; NJW 1957, 1146......................................................   331 BGH, 14.2.1958, BGHZ 26, 349; NJW 1958, 827; JZ 1958, 571 (Herrenreiter)......  311, 331, 333, 377 BGH, 18.3.1959, BGHZ 30, 7; NJW 1959, 1269 (Caterina Valente).........................   331 BGH, 20.3.1968, BGHZ 50, 133; NJW 1968, 1773 (Mephisto)................   333, 511, 512 BGH, 14.10.1986, GRUR 1987, 128 (Nena).............................................................   509 BGH, 19.12.1995, BGHZ 131, 332; NJW 1996, 1128; JZ 1997, 39 (Caroline von Monaco II).............................................................................................   241, 343, 344 BGH, 1.12.1999, BGHZ 143, 214; NJW 2000, 2195; JZ 2000, 1056 (Marlene Dietrich I)......................................................................................   333, 510, 511, 512 BGH, 1.12.1999, NJW 2000, 2301; GRUR 2000, 715 (Der blaue Engel).................   333 BGH, 14.5.2002; BGHZ 151, 26; NJW 2002, 2317; VersR 2002, 903; GRUR 2002, 690 (Marlene Dietrich II).......................................................................................   536 BGH, 6.3.2007, BGHZ 171, 275 (Caroline von Hannover).......................................   346 Kammergericht Berlin, 28.5.1921, JW 1921, 901 no 2..............................................   329 OLG Kiel, 9.7.1929, JW 1930, 78 no 5.....................................................................   329 OLG Hamburg, 11.06.1998, NJWE-WettbR 99, 169................................................   536 Kammergericht Berlin, 28.08.1998, KG-Report 1999, 74..........................................   507

Hong Kong Oriental Press Group Ltd v Apple Daily Ltd [1998] HKCFA 32; [1997] HKCFI 49...   420

Ireland Burke v Central Independent Television [1994] 2 ILRM 161 (Irish Sup Ct).......   167, 235 Sterling-Winthrop Group Ltd v Farbenfabriken Bayer AG [1976] RPC 469 (HC Ire).................................................................................................................   428

Italy Cass 10 August 1953 no 2696, Giustizia civile 1953, 2687. VII, 1960......................   337 Cass civ 22 December 1956 no 4487, Foro italiano 1957, I, 4...................................   336 Cass 27 May 1975 no 2129, Foro italiano 1976 I 2895.............................................   337 Cass 10 November 1979 no 5790, Giustizia civile 1980 I 1372.................................   338 Cass 22 June 1985 no 3769, Foro italiano 1985 I 2211.............................................   338 Cass 16 April 1991 no 4031, Nuova giurisprudenza civile commentata 1992 I 44....   338 Cass 12 May 2003 no 7281, Foro italiano 2003 I 2272.............................................   338 Cass 12 May 2003 no 7283, Foro italiano 2003 I 2272.............................................   338 Cass 31 May 2003 no 8827, Foro italiano 2003 I 2272.............................................   338 Cass 31 May 2003 no 8828, Foro italiano 2003 I 2272.............................................   338

xxvi

r i ght s of p e rs o n al i t y

Corte Cost 14 July 1986 no 184, Foro italiano 1986 I 2053......................................   338 Pret Roma, ord 18 April 1984, Foro italiano 1984 I 2030.........................................   338 Netherlands Kecofa BV v Lancôme Parfums et Beauté et Cie SNC [2006] ECDR 363 (SC Netherlands, 1st Chamber)..............................................................................   417 Naturiste case: 9 HR 30 October 1987, NJ 1988, 277...............................................   507 Vondelpark case: HR 1 July 1988, NJ 1988, 1000 m nt.............................................   530 New Zealand Auckland Medical Aid Trust v Commr of Police [1976] 1 NZLR 485 (SC)...............   412 Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1...........................  161, 190, 193, 307, 396, 414, 531, 562, 583, 585 Lange v Atkinson [1998] 3 NZLR 424 (New Zealand CA); [2000] 1 NZLR 257 (PC).......................................................................................   444 P v D [2000] 2 NZLR 591.........................................................................................   193 Rogers v Television New Zealand Ltd [2007] NZSC 91..........................   8, 12, 414, 562 Scotland A v B (1875) 12 SLRep 621.......................................................................................   240 — v B’s Trs 1905 13 SLT 830 (OH)...........................................................................   256 AB v CD (1851) 14 D 177.................................................................................   238, 287 Aberdeen Magistrates v Irvine (1673) Scott-Moncrieff, Justiciary Records, vol 1, 170.................................................................................................................   45 Adam v Allan (1841) 3 D 1058..........................................................................   211, 449 Adamson v Gillibrand 1923 SLT 328.........................................................................   203 — v Martin 1916 SC 319 (2nd Div).......   3, 4, 11, 12, 196, 236, 287, 288, 506, 533, 560 Advocate (HM) v Guthrie (1661).................................................................................   82 — v Higgins 2006 SLT 946 (J)...................................................................................   173 — v Lord Balmerino (1634) Cobbett’s State Trials 591................................................   82 — v Samuel (1742) Hume, Commentaries, vol 1, p 85.................................................   79 — v Vervuren 2002 SLT 555 (J).................................................................................   170 Advocate (HM) and Munro v Earl of Caithness (1668) Scott-Moncrieff, Justiciary Records, vol 1, 264..................................................................................................   63 Advocate (Lord) v Glengarnock Iron and Steel Co 1909, 1 SLT 15............................   208 — v Scotsman Publications Ltd 1989 SC (HL) 122....   185, 188, 235, 288, 289, 295, 557 Agnew (1513) 1(1) Pitcairn 90.....................................................................................   84 Agnew v Laughlan 1948 SLT 512..............................................................................   203 Aikman v Magistrates of Arbroath (1673): Scott-Moncrieff, Justiciary Records, vol 2, 189.................................................................................................................   63 Aitken v Gourley and McNab (1903) 5 F 585............................................................   229 Al Fayed, Petr 2004 SLT 319.....................................................................................   166 Alexander v Mackenzie (1847) 9 D 748.....................................................................   408



ta b l e of cas e s

xxvii

Allan v Douglas (1810) Hume 639.............................................................................   239 Amullekyne (orse Amullegane and Amullekin) (1578) 1(2) Pitcairn 78..................   70, 83 Anderson v Marshall (1835) 13 S 1130......................................................   237, 251, 253 Anderson and HM Advocate v Fferguson (1673) Scott-Moncrieff, Justiciary Records, vol 2, 177..................................................................................................   76 Andrew v Macara 1917 SC 247.................................................................................   270 — v Murdoch (1808) Mor Appx, sv “Wrongous Imprisonment”, 5...........................   113 Angus (1636) Gillon, Justiciary Cases, vol 1, 263........................................................   46 Angus (Earl of) (1584) 1(3) Pitcairn 119................................................................   59, 61 Anon v Erskine (1672): Scott-Moncrieff, Justiciary Records, vol 2, 103.......................   64 Anstruther (1529)1(1) Pitcairn 141..............................................................................   62 Arbuckle v Taylor (1815) 3 Dow 160................................................   114, 115, 123, 135 Argyll (Duke of) v Duchess of Argyll 1962 SC (HL) 88..............................................   294 Argyllshire Weavers Ltd v A Macaulay (Tweeds) Ltd 1965 SLT 21 (OH)...................   267   154, 171 Armestrang (1535) 1(1) Pitcairn 171............................................................................   58 Auld v Shairp (1874) 2 R 191............................   138, 203, 219, 220, 221, 222, 225, 227 B v Forsey 1988 SC (HL) 28..............................................................................   120, 261 Baigent v BBC 2001 SC 281...............................................................................   240, 435 Baird v Baird (1662) Mor 12630............................................................................   69, 70 Bannatyne (1596) 1(2) Pitcairn 379.............................................................................   60 Bannerman v Fenwick (1817) 1 Mur 247...................................................................   136 Barclay (1576) 1(2) Pitcairn 65....................................................................................   58 Barclay v Chief Constable, Northern Constabulary 1986 SLT 562............................   230 Barratt International Resorts Ltd v Barratt Owners Group, unreported, 20 December 2002 (OH)........................................   171, 183, 212, 266, 275, 435, 449 — v — 2003 GWD 1-19............................................................................................   276 Bartlett (1612) Littlejohn, Aberdeenshire Sheriff Court, 179..................................   47, 78 Beaton v Ivory (1887) 14 R 1057...............................................................................   258 Beatson v Drysdale (1819) 2 Mur 151...............................................................   105, 110 Beck v Chief Constable, Strathclyde Police 2005 1 SC 149........................................   258 Beggs v Scottish Ministers 2007 SLT 235 (HL)..........................................................   562 Beith (1742): Hector, Renfrewshire Sheriff Court, 14...................................................   78 Bell v Black and Morrison (1865) 3 M 1026..............................................................   260 Bern’s Executor v Montrose Asylum (1893) 20 R 859 (Court of Seven Judges).................................................   217, 222, 223, 224, 225, 226, 227, 228 Bernhardt v Abrahams 1912 SC 748..........................................................................   208 Bile Bean Mfg Co v Davidson (1906) 8 F 1181; (1906) 23 RPC 725 (Ct Sess)...........   428 Black v Cadell (1804) Mor 13905..............................................................................   110 — v Duncan 1924 SC 738..........................................................................................   203 — v North British Railway Co 1908 SC 444 (Court of Seven Judges)........................   242 Blair (1576–77) 1(2) Pitcairn 71...................................................................................   78 Blazquez v Lothians Racing Club (1889) 16 R 893....................................................   172 Bonnier Media Ltd v Smith 2003 SC 36 (OH)...........................................................   282 Bourhill v Young 1942 SC (HL) 78....................................................................   221, 256 Boyd v BBC 1969 SLT (Sh Ct) 17...............................................................................   234 Bradley v Menley and James Ltd 1913 SC 923...................................................   208, 234 Brodye (1550) 1(1) Pitcairn 356...................................................................................   51 Broom v Ritchie (1904) 6 F 942; (1904) 12 SLT 205.........................................   203, 204 Broune (1605) 2 Pitcairn 463.................................................................................   65, 85 Brown v Gibson-Craig (1834) 13 S 697.....................................................................   109 — v Macgregor 26 February 1813 FC................................................................   214, 215 Brown’s Trs v Hay (1898) 25 R 1112.................................................................   287, 296

xxviii

r i ght s of p e rs o n al i t y

Brownes v Symsone (1640), Irvine Smith, Justiciary Cases, vol 2, 392.........................   54 Bruce v Craigie (Town of Perth intervening) (1663) Scott-Moncrieff, Justiciary Records, vol 1, 75....................................................................................................   64 — v J M Smith (1898) 1 F 327...................................................................   154, 210, 212 Buchan v Walch (1857) 20 D 222..............................................................................   154 Buchanan v Macnab (1785) Mor 13918....................................................................   125 Burke v Burke 1983 SLT 331 (OH)............................................................   172, 238, 240 Burnett’s Trs v Grainger [2004] UKHL 8; 2004 SC (HL) 19......................................   523 Cadell and Davies v Stewart (1804) Mor Appx sv “Literary Property”, 13; 5 Paton 493............................................................................................   2, 4, 127, 287 Caird v Syme (1887) 14 R (HL) 37............................................................................   287 Calder (1606) 2 Pitcairn 516..................................................................................   58, 59 Calder v Mackenzie’s Relict and Representatives (1776) Mor “Personal and Transmissible” Appx No 2.....................................................................   218, 219, 220 Calders v Mackenzie (1776) Mor 10363....................................................................   138 Cameron (1707): Imrie, Argyll Justiciary, vol 2, 207........................................   85, 86, 87 Campbell (1630): Gillon, Justiciary Cases, vol 1, 148......................................   46, 61, 62 — (1677) Cameron, Argyll Justiciary 78......................................................................   79 — (1710) Imrie, Argyll Justiciary, vol 2, 248.......................................................   55, 108 — (1716) Imrie, Argyll Justiciary, vol 2, 314.......................................................   54, 107 — v Ramsay (1736) Mor 17067................................................................................   111 Campbell of Ederline v Lamont 10 December 1728 Hermand 122..............................   69 Canochsone (1535) 1(1) Pitcairn 170...........................................................................   49 Carnagie (1672) Scott-Moncrieff, Justiciary Records, vol 2, 116............   53, 76, 107, 108 Carnegie (Lord) v Lord Cranburn (1662) Mor 10339................................................   137 Carter v Crighton (1778) (not reported), referred to in Mor “Delinquency” Appx No 4.......................................................................................................................   239 Cassidy v Connachie 1907 SC 1112...........................................................................   208 Castlelaw v Agnew (11 March 1719) Hermand 68................................................   66, 93 Cellular Clothing Co Ltd v Maxton & Murray (1899) 1 F (HL) 29...........................   281 Cheyne (1642) Irvine Smith, Justiciary Cases, vol 2, 468.......................................   49, 52 Chirnesyde (1616) 3 Pitcairn 402.......................................   55, 56, 58, 59, 61, 62, 68, 81 Clark v Fairweather (1727) Hermand 95...........................................................   172, 240 Cleland v Mack (1829) 5 Mur 70..............................................................................   234 Clerk v Fairweather (18 October 1727) Hermand 68.............................................   66, 67 Cocburne (1493) 1(1) Pitcairn 15.................................................................................   84 Cochran (1717) Hector, Renfrewshire Sheriff Court, 218......................................   54, 78 Cole-Hamilton v Boyd 1963 SC (HL) 1 sub nom Purden’s CB v Boyd 1963 SLT 157.................................................................................   227, 228, 229, 505 Common Services Agency v Scottish Information Commissioner [2008] UKHL 47; [2008] 1 WLR 1550; 2008 SC 184 (HL)................................................................   570 Connor v HM Advocate 2002 JC 255; 2002 SLT 671(J)....................................   173, 286 Conoco (UK) Ltd v The Commercial Law Practice 1997 SLT 372..............................   289 Conway v Dalziel (1901) 3 F 918.........................................................   21, 204, 210, 475 Couper, Petr (1674) Scott-Moncrieff, Justiciary Records, vol 2, 224............................   56 Craig v Collie (1828) 6 S 1147...................................................................................   287 — v Hunter & Co 29 June 1809, FC.........................................................   213, 440, 448 — v Inveresk Paper Merchant Ltd 1970 SLT (Notes) 50 (OH)...........................   154, 435 Craufurd (1550) 1(2) Pitcairn 349...................................................................   58, 59, 60 Crawford (1598) 2 Pitcairn 44.....................................................................................   58 Cristiansdochter v Coghill 1 August 1616, Shetland Court Book 1615–1629..............   44 Crocket v Tantallon Golf Club 2005 SLT 663 (OH)..................................................   172 Crombie (1638) Gillon, Justiciary Cases, vol 1, 290.....................................................   47



ta b l e of cas e s

xxix

Cruickshanks v Forsyth (1747) Mor 4034...................................   86, 141, 215, 237, 252 Cummyng (1555) 1(1) Pitcairn 374..............................................................................   49 Cunningham v Glasgow City Council [2008] CSOH 113..........................................   567 — v Phillips (1868) 6 M 926.......................   133, 175, 182, 183, 193, 268, 269 273, 279 Cushnie v Tailzour (1649) Littlejohn, Aberdeenshire Sheriff Court, 48........................   47 Dahl v Chief Constable, Central Scotland Police 1983 SLT 420 (OH).......................   258 Dalgleish v Lothian and Borders Police Board 1992 SLT 721 (OH)...........................   289 Dalmahoy (1579) 1(2) Pitcairn 83................................................................................   58 Darling v Gray & Sons (1892) 19 R (HL) 31.............................................................   225 Dauidsoune (1498)1(1) Pitcairn 27..............................................................................   70 Davis v Miller & Fairly (1855) 17 D 1166; (1855) 17 D 1050...................   175, 411, 579 Delaney v Edinburgh and Leith Children’s Refuge (1891) 19 R 8..............................   203 — v Stirling (1893) 20 R 506.....................................................................................   203 Dempsey v Parole Board for Scotland 2004 SLT 1107 (OH)......................................   170 Dewar v Baxter (1662) Scott-Moncrieff, Justiciary Records, vol 1, 50.............   50, 54, 87 Dick v Burgh of Falkirk 1976 SC (HL) 1....................................................................   150 Dickie v Dickie (1825) 3 Mur 509.....................................................................   118, 119 Dickson Minto WS v Bonnier Media Ltd 2002 SLT 776 (OH)...................................   235 Dodsley v McFarquhar (1775) Mor 8308; (1775) Mor Appx sv “Literary Property”, 1; (1775) 5 BS 508 (Tait sv “Literary Property”) 509...................   128, 287 Dowie v Douglas (1822) 1 Shaw App 125.................................................................   102 Downie v Chief Constable, Strathclyde Police 1998 SLT 8 (Note)......................   240, 260 Drew v Mackenzie &Co (1862) 24 D 649.................................................................   175 Drummond v Sir Alexander Hope (2 August 1744) Hermand 68...........................   66, 92 Dunbar (1513) Pitcairn 96...........................................................................................   84 — (1536–37) Pitcairn 181............................................................................................   51 Duncan 19 February 1608...........................................................................................   88 Duncan v Cumming (1714) 5 BS 104...................................................................   70, 203 Dunlop Pneumatic Tyre Co Ltd v Dunlop Motor Co [1907] AC 430; 1907 SC (HL) 15 (HL)...................................................................................   281, 422 Durkie v Cairns (1678) Mor 17065.............................................................................   63 Dyce v Kerr 2 July 1816 FC...............................................................   131, 178, 180, 273 Edgley v Barbour 1995 SLT 711................................................................................   286 Eglintoune (Earl of) (1511) 1(1) Pitcairn 74...........................................................   58, 84 Eisten v N B Rly Co (1870) 8 M 980.........................................................................   158 Epril (Glasgow) Ltd v E & F Richardson Ltd 1950 SLT (Notes) 35 (OH)..................   268 Evans v Stool (1885) 12 R 1295.................................................................................   221 Ewing v Earl of Mar (1851) 14 D 314.......................   107, 109, 136, 137, 168, 252, 254 F v F 1995 SCLR 289 (Notes) (Sh Ct)........................................................................   196 Fairbairn v SNP 1980 SLT 149 (OH).........................................................................   234 Fairlie v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200 (OH)...........   213, 478 Ffendraucht (Viscount of) (1664): Scott-Moncrieff, Justiciary Records, vol 1, 100.......  60, 61, 76 Fferguson (1673) Scott-Moncrieff, Justiciary Records, vol 2, 177..........................   45, 53 Fferleir and Bisset and HM Advocate v Watson (1673) Scott-Moncrieff, Justiciary Records, vol 2, 134..................................................................................................   54 Finburgh v Moss’ Empires Ltd 1908 SC 928..............................................................   267 Finlay v Ruddiman (1763) Mor 3436..........................................................   91, 215, 440 Fleming (1596) 1(2) Pitcairn 377.....................................................................   60, 62, 68 Fleming v Newton see Newton v Fleming — v Strathclyde Regional Council 1992 SLT 161.......................................................   230

xxx

r i ght s of p e rs o n al i t y

Flemyn (1508) 1(1) Pitcairn 60....................................................................................   65 Forbes (1626) Gillon, Justiciary Cases, vol 1, 45..........................................................   46 Ford v Muirhead (1858) 20 D 949.............................................................................   122 Forgie v Henderson (1818) 1 Mur 410.......................................................................   136 Fork v Fyffe (1673) Mor 7316.....................................................................................   81 Forlong, Petr (1880) 7 R 910.....................................................................................   196 Forrest & Barr v Henderson (1869) 8 M 187.............................................................   296 Fraser v Mirza 1993 SC (HL) 27................................................................................   212 Friend v Skelton (1855) 17 D 548..............................................................................   273 Fulton v Stubbs Ltd (1903) 5 F 814...........................................................................   290 G v S 2006 SLT 795 (OH)..................................................................................   256, 567 Gairdin v Lammye 5 May 1543 Liber Officialis Sancti Andree 84...................   66, 83, 92 Gairns v Jones (17 April 1736) Hermand 115..............................................................   67 Garden v Tenants and Servants of the Earl of Aboyne (1674) Scott-Moncrieff, Justiciary Records, vol 2, 273...................................................................................   46 Gardiner v Main (1894) 22 R 100.............................................................................   229 Gardner v Fergusons (1795) (unreported) Advocates’ Library Session Papers, Hume Collection vol 87, No 97; Campbell Collection No 79 No 8..................................   223 Gleneagles Hotels Ltd v Quillco 100 Ltd 2003 SLT 812 (OH)...........................   281, 282 Gloag v Perth & Kinross Council 2007 SCLR 530 (Sh Ct).........................................   566 Goddard v Haddaway (1816) 1 Mur 156..................................................................   109 Goorkani v Tayside Health Board 1991 SLT 94; (1991) 3 Med LR 33 (OH).......  21, 169, 201, 214, 238, 459, 467 Gordon v Stewart (1842) 5 D 8..................................................................................   107 Gordoun (1580–81) 1(2) Pitcairn 94............................................................................   61 Gorne v Irwing 1 August 1616, Shetland Court Book 1615–1629...............................   44 Graeme and Skene v Cunningham (1765) Mor 13923.......................................   210, 214 Graham v Duke of Hamilton (1868) 6 M 965...................................................   208, 242 — v Strathern 1924 SC 699.......................................................................................   238 Grahame (1577) 1(1) Pitcairn 74.................................................................................   78 Grahame v Burn (1685) Mor 8472............................................................................   126 Grant v Harper 6 February 1810 FC..........................................................................   102 Gray (Procurator Fiscal of Edinburgh Dean of Guild Court) v Paxton’s Representatives (1773) Mor 10361........................................................................   218 Gribben v Gribben 1976 SLT 266..............................................................................   169 Griffin v Divers 1922 SC 605.....................................................................................   270 Gulane (1550) 1(1) Pitcairn 356.............................................................................   56, 58 Gunstone v Scottish Women’s AAA 1987 SLT 611 (OH)...........................................   172 Gyb (1590) 1(2) Pitcairn 187.......................................................................................   56 Haddaway v Goddard (1816) 1 Mur 148..................................................................   105 Haggart’s Trs v Lord President Hope (1824) 2 Shaw’s Appeals 125...........   2, 3, 138, 203 Halliday v Ireland (1672) Scott-Moncrieff, Justiciary Records, vol 2, 104...................   53 Hallowell v Niven (1843) 5 D 759.............................................................................   109 Halyburton (1640) Irvine Smith, Justiciary Cases, vol 2, 389.......................................   48 Hamilton v Arbuthnot (1750) Mor 13923.........................................................   267, 435 — v Blair (1724): Hector, Renfrewshire Sheriff Court, 105..........................................   78 — v Fife Health Board 1993 SC 369; 1993 SLT 624..........................................   166, 168 — v Rutherford (1771) Mor 13924; Hailes 716.........................................................   180 — v Stevenson (1822) 3 Mur 75................................................................................   234 Hardey v Russel and Aitken, unreported, 9 January 2003 (OH)...................   17, 21, 289, 290, 304, 564, 586



ta b l e of cas e s

xxxi

Harkness v Daily Record Ltd 1924 SLT 759..............................................................   442 Harper v Provincial Newspapers Ltd 1937 SLT 462 (OH).........................................   442 — v Robinson (1821) 2 Mur 383.......................................................................   123, 124 Harpers v Greenwood and Batley (1896) 4 SLT 116..................................................   154 Hay (1560–61) 1(1) Pitcairn 408.................................................................................   49 — (1598) 2 Pitcairn 43...........................................................................................   39, 62 Heart (1637) Irvine Smith, Justiciary Cases, vol 2, 332..........................................   51, 52 Henderson v Chief Constable, Fife Police 1988 SLT 361; 1988 SCLR 77 (OH)..................   18, 21, 207, 238, 240, 255, 302, 303, 469, 564, 565 — v HM Advocate 2005 SLT 429(J)..........................................................................   174 — v Robertson (1853) 15 D 292................................................................................   123 — v Scott (1793) Mor 17072.....................................................................................   114 Hepburn v Maclachlan (1751) Mor 10357................................................   138, 218, 220 Hervie (1627) Gillon, Justiciary Cases, vol 1, 67..........................................................   47 Hester v MacDonald 1961 SC 370.............................................................   210, 211, 212 Hislop v Ker (1696) Mor 13908............................................................................   67, 92 Hogg v Gow 27 May 1812 FC...................................................................   125, 126, 127 Hoppringill (1555) 1(1) Pitcairn 374............................................................................   49 Hughes v Robertson 1913 SC 394.......................................................   21, 204, 210, 475 Hunter (1565–1566) 1(1) Pitcairn 470.........................................................................   84 Hunter v Hanley 1955 SC 200...................................................................................   459 Hutchison v Naismith (1808) Mor “Delinquency” Appx No 4; 18 May 1808 FC; Hume 614 (note)....................................................................................................   239 Hyslop v Miller (1816) 1 Mur 43.......................................................   105, 108, 221, 242 — v Staig (1816) 1 Mur 15................................................................................   107, 136 Innes (1561) 1(1) Pitcairn 411..........................................................................   56, 58, 62 Innes v Magistrates of Edinburgh (1798) Mor 13189........................................   110, 223 — v Sir Alexander Forbes (1664) Scott-Moncrieff, Justiciary Records, vol 1................   44 Ireland, unreported, February 1731.............................................................................   93 Irvine v Hamilton (13 July 1706) Hermand 67......................................................   66, 92 Jackson v McKechnie (1875) 3 R 130................................................................   228, 233 Jamieson v Napier (1747) Mor 17070.......................................................................   114 Johnnestoune (1605) 2 Pitcairn 461.......................................................................   54, 87 Johnson v Secretary of State for the Home Office 2005 SLT 393................................   169 Johnston v Pasley (1770) Mor 13916.................................................................   125, 127 Keddie v Walker (1822) 3 Mur 38.............................................................................   234 Keith v Keir 10 June 1812 FC....................................................................................   110 Kelly v Cox unreported, 8 July 2004 (OH)................................................................   162 — v Kelly 1997 SC 285..............................................................................................   166 Kennedy (1537) 1(1) Pitcairn 182................................................................................   60 — (1558) 1(1) Pitcairn 403..........................................................................................   58 — 15 December 1630..................................................................................................   88 Kennedy v Aldington [2005] CSOH 58......................................................................   267 — v Glenbelle Ltd 1996 SC 95...................................................................................   193 Kennertie v Pantoun (1649) Littlejohn, Aberdeenshire Sheriff Court, 50......................   47 Ker (1528–29) 1(1) Pitcairn 139..................................................................................   47 — (1649), Irvine Smith, Justiciary Cases, vol 3, 826....................................................   59 — 23 November 1649 (Hume, Commentaries, vol 1, p 83).......................................   141 Ker v Cunningham, unreported, 6 February 1640........................................................   60 — v Hay (1774) Mor 7420..........................................................................................   37 Kerr v Duke of Roxburgh (1822) 3 Mur 126.............................................   129, 135, 287

xxxii

r i ght s of p e rs o n al i t y

Khaliq v HM Advocate 1984 JC 23; 1983 SCCR 483; 1984 SLT 137...............   109, 236 Kincaid (1562) 1(1) Pitcairn 421............................................................................   50, 65 — (1601) 2 Pitcairn 336...............................................................................................   60 Knight v Wedderburn (1778) Mor 14545..................................................................   117 Knowis (1554) 1(1) Pitcairn 365..................................................................................   49 Kyncaid (1601) 2 Pitcairn 336...............................................................................   83, 84 Lamond v Daily Record (Glasgow) Ltd 1923 SLT 512 (OH).............   154, 182, 210, 435 Lang v Goldwell 1980 SC 237...................................................................................   281 — v Lillie (1826) 4 Mur 82........................................................................   109, 221, 253 Law Hospital NHS Trust v Lord Advocate 1996 SC 301 (IH)...........................   167, 474 Leigh’s Executrix v Caledonian Railway Co 1913 SC 838.........................   222, 223, 226 Leith (1649) Littlejohn, Aberdeenshire Sheriff Court, 51.............................................   47 Lennox v Rose (1824) 2 S 650...................................................................................   106 Lermont 8 March 1685................................................................................................   88 Lesly v Nairne 12 June 1712 Hermand 120.................................................................   69 Leven v Young (1818) 1 Mur 350..............................................................................   115 Lever Brothers Ltd v The “Daily Record,” Glasgow, Ltd 1909 SC 1004....................   270 Levin v Caledonian Produce (Holdings) Ltd 1975 SLT (Notes) 69.............   185, 290, 586 Lewars v Carmichael (1711) Mor 10348...................................................................   138 Leyis (1569) 1(2) Pitcairn 8..........................................................................................   53 Lightbody v Gordon (1882) 9 R 934..........................................................................   212 Lindsay v Maxwell (1667) Scott-Moncrieff, Justiciary Records, vol 1, 225..................   63 — v Watson (1843) 5 D 1194....................................................................................   120 Linen v Hamilton (1748), reported sub nom Linning v Hamilton (1748) Mor 13909...............................................................................................................   93 Linning v Hamilton (1748) Mor 13909.............................................................   125, 172 Lochead (1687) Hector, Renfrewshire Sheriff Court, 35...............................................   77 Lovi v Wood (1802) Hume 613.................................................................................   239 M, Petr 2003 SLT 219 (OH)..............................................................................   168, 169 M v C 2002 SLT (Sh Ct) 82.......................................................................................   196 McCandie v McCandie (1827) 4 Mur 198.................................................................   239 McColl v Strathclyde Regional Council 1983 SC 225 (OH).......................................   168 McCormack v Glasgow Corporation 1910 SC 562....................................................   212 McCosh v Crow & Co (1903) 5 F 670......................................................   288, 296, 580 McCrone v Sawyers (1835) 13 S 443.........................................................................   260 McDonald v Dickson 2003 SLT 467 (J).....................................................................   170 Macdonald v Macdonald, 2 June 1813 FC.................................................................   273 Macdonnell v Bank of Scotland (1834) 13 S 701.......................................................   122 MacDonnell v Mcdonald (1813) 2 Dow 66...............................................   102, 104, 108 McFarlane v Black & Co (1887) 14 R 870................................................................   278 — v Tayside Health Board [2000] 2 AC 59; 2000 SC (HL) 1.........................  21, 28, 166, 167, 214, 238, 455, 464, 465, 466, 477 McGlennan v McKinnon 1998 SCCR 285.................................................................   169 McGowan v Scottish Water [2005] IRLR 167............................................   173, 300, 564 McGregor v McLaughlin (1905) 8 F 70.....................................................................   212 McGregour, Irvine Smith, Justiciary Cases, vol 3, 576............................................   62, 84 McIntosches, Irvine Smith, Justiciary Cases, vol 3, 769....................................   61, 62, 83 McIntoshes (1674) Scott-Moncrieff, Justiciary Records, vol 2, 270..............................   53 Mack v Glasgow City Council [2006] CSIH 18; 2006 SLT 556.................................   230 Mackay v McCankie (1883) 10 R 537...............................................   171, 238, 239, 438 — v Scottish Electric plc 2000 SC 87.........................................................................   208



ta b l e of cas e s

xxxiii

McKeen v Chief Constable, Lothian and Borders Police 1994 SLT 93 (OH)......   202, 203 Mackellar v Duke of Sutherland (1859) 21 D 222.............   132, 157, 180, 181, 271, 272 McKendrick v Sinclair 1972 SC (HL) 25............................................   158, 159, 192, 233 Mackenzie v Cluny Hill Hydropathic Co 1908 SC 200......................................   237, 262 — v Earl of Marchmont (1704) 4 BS 595...................................................................   112 — v Macfarlane (1897) 5 SLT 292 (OH)...........................................................   238, 240 — v Young (1902) 10 SLT 231...................................................................................   262 McKie v Chief Constable of Strathclyde 2003 SC 317 (IH (Ex Div)); 2002 Rep LR 137; 2002 GWD 7-246 (OH)...................................   168, 213, 258, 302 — v Orr 2003 SC 317; 2002 Rep LR; 2002 GWD 7-246 (OH).........   168, 213, 564, 583 Mackie v Wight (1822) 3 Mur 23..............................................................................   106 McKinney v Chief Constable, Strathclyde Police 1998 SLT (Sh Ct).............   80, 258, 260 Mackintosh v Fraser (1859) 21 D 783; (1860) 22 D 421...................................   120, 261 — v Weir (1875) 2 R 877...........................................................................................   119 Mackkinze (1513) 1(1) Pitcairn 93...............................................................................   84 McLaren v Ritchie, The Scotsman. 9 July–2 August 1856..................   133, 175, 182, 278 McLauchlan v Monach (1823) 2 S 590......................................................................   110 M’Laughlan v Orr, Pollock & Co (1894) 22 R 38......................................   270, 278, 279 McLean v Bernstein & Ors (1900) 8 SLT 42..............................................................   444 MacLeod v MacAskill 1920 SC 72.............................................................................   172 Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555.....................................   279 McLeod v Shaw 1981 SLT (Notes) 93........................................................................   259 McLeod of Assynt (1674) Scott-Moncrieff, Justiciary Records, vol 2, 224.............   62, 63 McLure [McLucas] (1650) Irvine Smith, Justiciary Cases, vol 3, 838...........................   46 Macnaughton v Robertson 17 Feb 1809 FC.......................................   105, 110, 138, 219 McNiccoll (1680) Cameron, Argyll Justiciary, 128......................................................   87 Macrae v Wicks (1886) 13 R 732......................................................................   210, 212 McWilliams v Lord Advocate 1992 SLT 1045 (OH)..................................................   168 Magge (Mcghie) (1508) 1(1) Pitcairn 54......................................................................   56 Manuel v Fraser (1818) 1 Mur 386............................................................................   122 Martin: Littlejohn, Aberdeenshire Sheriff Court, 93.....................................................   86 Martin v McGuiness 2003 SLT 1424; 2003 SCLR 548 (OH)................   17, 21, 173, 286, 300, 304, 473, 533, 564, 569, 577, 585 Mathousone (1511) Littlejohn, Aberdeenshire Sheriff Court, 59............................   49, 86 Maxwell v Montgomery (1787) Mor 13919..............................................................   125 Mearns v Smedvig Ltd 1999 SC 243 (OH).................................................................   286 Megot (1569) 1(2) Pitcairn 4..................................................................................   45, 49 Mellor v William Beardmore & Son 1927 SC 597.....................................................   242 Micosta SA v Shetland Islands Council 1986 SLT 193...............................................   308 Millar & Lang Ltd v Macniven & Cameron Ltd (1908) 16 SLT 56 (OH)..................   419 Miller v Mackay 18 Nov 1811 FC.............................................................................   239 Milne v Gauld’s Trs (1841) 3 D 345...........................................................   221, 229, 505 Milton (Lady) v Lord Milton (1667) Mor 12636.........................................................   70 Milton (Laird of) v Lady Milton (1671) Mor 12105....................................................   70 Mitchell v Glasgow City Council 2008 CSIH 19; 2008 SLT 368 (Extra Div);   reversing 2005 SLT 1100 (OH)..............................................................................   166 Monro v Wishart (1582) Mor 10337.........................................................................   138 Moffat v London Express Newspapers Ltd 1950 SLT (Notes) 46 (OH).....................   268 — v West Highland Publishing Co Ltd 2000 SLT 335 (OH)......................................   450 Montgomery v Walker’s Representatives (1752) Mor 10360..............................   138, 219 Monypenny (1543) 1(1) Pitcairn 328...........................................................................   51 Morison v Dunlop (13 October 1756) Hermand 68.............................................   67, 240 Morrison v Cameron 25 May 1809 FC..............................................................   218, 219 — v Ritchie (1902) 4 F 645........................................................................................   444

xxxiv

r i ght s of p e rs o n al i t y

Morton & Co v Muir Brothers & Co 1907 SC 1211.................................................   288 Mowat (1596) 1(2) Pitcairn 388..................................................................................   58 —, 15 July 1672 and 29 July 1642 25 August 1642.....................................................   88 Moyes v Lothian Health Board 1990 SLT 444 (OH)..........................................   169, 459 Muckarsie v Dickson (1848) 11 D 4..................................................................   110, 221 Muir v Shand (1778) Mor 7421...................................................................................   37 Muir’s Tr v Braidwood 1958 SC 169.........................................................................   228 Mulcaster (1716), Imrie, Argyll Justiciary, vol 2, 236..................................................   54 Muldoon, Applicant 2005 SLT (Sh Ct) 52..................................................................   261 Murdison v Scottish Football Union (1896) 23 R 449................................................   172 Murdoch v Murdoch 1973 SLT (Notes) 13................................................................   169 Murphey (1732) Imrie, Argyll Justiciary, vol 2, 452.....................................................   54 Murray v Beaverbrook Newspapers, unreported, 18 June 1957 (2nd Div).................   586 — v Cranston 11 May 1748, Hermand 102 sv “Disclamation”.................................   127 — v Fraser 1916 SC 623............................................................................................   172 Napier v Scottish Ministers 2004 SLT 555 (OH)........................................................   169 Neill v Miller (1739) 2 Elchies 522............................................................................   113 Neilson v Rodger (1853) 16 D 325............................................   220, 221, 225, 226, 227 Neville v C & A Modes 1945 SC 175........................................................................   262 Newton v Fleming (1846) 8 D 677; 18 Sc Jur 346 (Full Court); reversed sub nom Fleming v Newton (1848) 6 Bell 175; 20 Sc Jur 229..........................   4, 129, 130, 131, 133, 151, 176, 181, 183, 208, 212, 234, 276, 354, 564 North of Scotland Banking Co v Duncan (1857) 19 D 881................................   267, 438 Notman v Commercial Bank of Scotland 1938 SC 522..............................................   212 Oliphant (1571) 1(1) Pitcairn 24......................................................................   56, 58, 59 Oliphant v Wemyss (1661) Scott-Moncrieff, Justiciary Records, vol 1, 5.....................   63 Oliver & Son, Petr 1999 SLT 1039............................................................................   235 Ormiston (Lady) v Hamilton (1711) Mor 10343.......................................................   138 Outram & Co v Reid (1852) 14 D 577..............................................................   440, 448 Page v Buchan (1855) 17 D 1079...............................................................................   116 Parlane v Templeton (1896) 4 SLT 153..............................................................   154, 274 Paterson v Anderson (1736) Mor 17069....................................................................   112 — v Bone (1803) Mor 13920.....................................................................................   125 — v Welch (1893) 20 R 744...............................................................   157, 180, 181, 182 Patersoun (1506) Littlejohn, Aberdeenshire Sheriff Court, 92......................................   86 Patrik (1570) 1(2) Pitcairn 11......................................................................................   70 Pattison v Fitzgerald (1823) 2 S 536...........................................................................   235 Peacock v Allan (1704) Mor 17065...........................................................................   134 Pearson v Anderson (1833) 11 S 1008.......................................................................   122 Pebble Beach Co v Lombard Brands Ltd 2002 SLT 1312 (OH)..................................   282 Pennycuik (1596) 1(2) Pitcairn 372..............................................................................   78 Percy v Glasgow Corporation 1922 SC (HL) 144......................................................   262 Philp v Morton (1816) Hume 865......................................................................   154, 267 Pitcairn v Umphry (1775) Mor 3161..........................................................................   135 Pitcairne v Bishop of Brechin 19 June 1546 Liber Officialis Sancti Andree 147...........   83 Pollok v Workman (1900) 2 F 354...............................................   21, 204, 210, 475, 476 Potter v Scottish Ministers [2007] CSOH 56; 2007 SLT 363 (OH)............................   174 — v Scottish Prison Service 2007 SLT 1019 (IH); 2007 SLT 363 (OH)..............   301, 562 Pringle v Bremner and Stirling (1867) 5 M (HL) 55...................................................   260 Quilty v Windsor 1999 SLT 346 (OH)...............................................   188, 189, 250, 296



ta b l e of cas e s

xxxv

R v HM Advocate [2002] UKPC D 3; 2003 ASC (PC) 21..........................................   173 Raffaelli v Heatly 1949 JC 101..................................................................................   174 Rait (1570) 1(2) Pitcairn 16.........................................................................................   51 Ralstoun v Mason (1674) Scott-Moncrieff, Justiciary Records, vol 2, 287...................   54 Ramsay v Coulter (1799) Mor App sv “Wrongous Imprisonment”, 1........................   114 — v MacLay & Co (1890) 18 R 130.................................................................   238, 438 Rankine v McLaren (1825) 3 Mur 494......................................................................   135 Rawlinson v Initial Property Maintenance Ltd 1998 SLT (Sh Ct) 54..........................   286 Reekie v Norrie (1842) 15 Sc Jur 150; (1842) 5 D 368......................................   105, 136 Reid (1640) Gillon, Justiciary Cases, vol 1, 387...........................................................   50 Reid and HM Advocate v Taylour (1674) Scott-Moncrieff, Justiciary Records, vol 2, 219.....................................................................................................   57, 63, 64 Response Handling Ltd v BBC [2007] CSOH 102; 2008 SLT 51 (OH)......   165, 299, 235 Riley v Ellis 1910 SC 934...........................................................................................   226 Rob v Buchanan (19 March 1760) Hermand 97..........................................................   68 Robertson v Keith 1936 SC 29...................................   173, 258, 287, 306, 309, 583, 585 — v Pedison (1705) Mor 17067.........................................................................   122, 134 — v Scottish Ministers [2007] CSOH 186..........................................................   256, 567 Robertson Group (Construction) Ltd [2006] CSOH 107...........................................   167 Robieson v Hamilton (1739) 2 Elchies 523................................................................   114 Roger (1641) Irvine Smith, Justiciary Cases, vol 2, 505................................................   48 Rogers v Rennie (1737) 2 Elchies 522........................................................................   112 Rois (1638) Gillon, Justiciary Cases, vol 1, 363...........................................................   47 Roise (1571) 1(2) Pitcairn 25.................................................................................   58, 62 Rorrison v West Lothian College 2000 SCLR 245.....................................................   256 Ross v fforbes (1667) Scott-Moncrieff, Justiciary Records, vol 1, 218..........................   52 — v Stirling Council, 23 April 2008   (accessible at http://www.scotcourts.gov.uk/opinions/ross.html).............................   566 Rothiemay (Lady) (1637) Gillon, Justiciary Cases, vol 1, 282......................................   53 Roxburgh v McArthur (1841) 3 D 556......................................................................   287 Rutherford v Boak (1836) 14 S 732...........................................................................   287 — v Chief Constable for Strathclyde Police 1981 SLT (Notes) 119 (OH)...................   251 Rynd (1557) 1(1) Pitcairn 399.....................................................................................   49 Scot (1675) Cameron, Argyll Justiciary 68.............................................................   87, 88 Scot v Earl of Eglintoune (1511) 1(1) Pitcairn 74...................................................   59, 62 Scotlands v Thomson; Mor App’x “Delinquency” No 3; Hailes 716...........................   81 — v — (1776) Mor 13934.................................................................................   131, 178 Scott (1566) 1(1) Pitcairn 480..........................................................................   56, 59, 62 — (1605) Gillon, Justiciary Cases, vol 1, 168...............................................................   87 — (1618) 3 Pitcairn 454.......................................................................................   46, 137 Scott v Johnston (1885) 20 R 859..............................................................................   228 Scottish Milk Marketing Board v Ferguson 1935 SC 25.............................................   242 Seymour v McLaren (1828) 6 S 969...................................................................   102, 106 Sheppeard v Fraser (1849) 11 D 446..................................................................   115, 116 Sheridan v News of the World, unreported, 6 August 2006 (OH)..............................   447 Sheriff v Wilson (1855) 17 D 528; (1855) 27 Sc Jur 232...........................   133, 175, 182,   193, 238, 268, 269, 278 Sinclair v Sir James Sinclair (1742) 2 Elchies 523...............................................   114, 134 — v Swanney (1929) 45 Sh Ct Rep 80.......................................................................   171 Sinclair and HM Advocate v Barclay (1668) Scott-Moncrieff, Justiciary Records, vol 1, 270.................................................................................................................   54 Sivright v Lockhart (1746) Maclaurin 96...................................................................   109

xxxvi

r i ght s of p e rs o n al i t y

Smith v Comrie’s Exrs 1944 SC 499...........................................................................   237 — v Green (1854) 16 D 429; (1853) 15 D 549..........................................   115, 116, 117 — v O’Reilly (1800) Hume 605.................................................................................   218 — v Stewart & Co 1960 SC 329 (Court of Seven Judges)..........................   150, 221, 226 — v Stoddart (1850) 12 D 1185.................................................................................   233 Snowie v Stirling Council 2008 SLT (Sh Ct) 61..........................................................   566 Somervile (1534) 1(1) Pitcairn 167.............................................................   46, 47, 49, 78 Somerville v Thomson (1896) 3 SLT 298...................................................................   240 Sommerveil (1669) Scott-Moncrieff, Justiciary Records, vol 2, 1...........................   50, 52 Sproll v Walker (1900) 2 F 73....................................................................................   234 Steedman v Coupar (1743) Mor 7337; sub nom Stedman v Stedman (1743) Mor 13909.............................................................................................................   124 Steele v Scottish Daily Record and Sunday Mail Ltd 1970 SLT 53.....................  157, 180, 181, 182, 183, 193, 194, 195, 211, 238, 266, 269, 270, 271, 275 Stevens v Yorkhill NHS Hospital Trust [2006] CSOH 143; 2006 SLT 889 (OH).........  18, 21, 79, 159, 162, 204, 210, 211, 238, 239, 304, 381, 474, 477, 564 Stevenson v Pontifex and Wood (1887) 15 R 125......................................................   229 Stewart v Grant (11 December 1753) Elchies sv “Damage and Interest” No 3; (1753) 5 BS 256.....................................................................................................   123 — v LMS Railway Co 1943 SC (HL) 19...........................................   150, 159, 217, 219, 221, 223, 225, 226, 227, 229 — v Whiteford 1 January 1677; sub nom Steuarts v Whitefoord (1677) Mor 16489.............................................................................................................   112 Stewart Nicholson v Stewart Nicholson (1770) Mor 16770.......................................   117 Stirling (1692) Cameron, Argyll Justiciary, 145...........................................................   87 Stormont (Viscount of) v Herreis [or Herries] (1667) Scott-Moncrieff, Justiciary Records, vol 1, 223............................................................................................   53, 84 Strachan v Monro (1844) 7 D 178 and (1845) 7 D 399.............................................   115 — v Munro (1844) 7 D 178...............................................................................   115, 117 Straitton (otherwise Straiton) v Doig (1672) Scott-Moncrieff, Justiciary Records, vol 2, 133.................................................................................................................   77 Strang v Strang (1849) 11 D 378................................................................   119, 120, 261 Striueling [sic] (1577) 1(2) Pitcairn 73..........................................................................   51 Stuart v Earl of Bute (1712) Mor 10351....................................................................   219 Sutherland v Sir James Sinclair (1737) 2 Elchies 522..........................................   111, 134 Suthirland (1539) 1(1) Pitcairn 222..................................................................   56, 58, 59 Swayne v Fife Banking Co (1835) 13 S 1003..............................................................   115 Symonds v Magistrates of Montrose (1747) 2 Elchies 523.........................................   113 Symple (Lady) (1555) 1(1) Pitcairn 381.................................................................   58, 62 Tenent (1543–44) 1(1) Pitcairn 330.......................................................................   47, 51 Thom v Bridges (1857) 19 D 721.......................................................................   222, 228 — v Cameron (1813) Hume 646................................................................................   239 Thompson v Gillie May 16, 1810 FC.........................................................................   115 Thomson v Adam (1865) 4 M 29...............................................................................   116 — v Fifeshire Advertiser 1936 SN 56.........................................................................   154 Topps Co Inc v Hannah Agencies Ltd (1 December 1999) (OH)................................   200 Traill v Boswell (1673) Scott-Moncrieff, Justiciary Records, vol 2, 180.......................   64 — v Dalbeattie (1904) 6 F 798...........................................................................   226, 227 Trapp v Mackie 1979 SC (HL) 38; 1977 SLT 194 (OH)............................   210, 267, 275 Treadwell’s Drifters Inc v RCL Ltd 1996 SLT 1048....................................................   281 Tullis v Glenday (1834) 13 S 698; (1834) Sc Jur 503.........................................   109, 168 Turner v Cuthbert (1831) 9 S 774......................................................................   135, 233



ta b l e of cas e s

xxxvii

Van Mehren v Van Mehren 1948 SLT (Notes) 61 (OH).............................................   240 Waddell v BBC 1973 SLT 246....................................................................................   234 — v Forsyth unreported, 2 June 1836........................................................................   119 Walker v Robertson (1821) 2 Mur 516......................................................................   203 Ward v Chief Constable, Strathclyde Police 1991 SLT 292.........................................   212 — v Scotrail Railways Ltd 1999 SC 255 (OH).........................  17, 21, 55, 169, 173, 214, 250, 253, 467, 553, 563, 568, 586 Warrand v Falconer (1771) Mor 13933.....................................................................   115 Watson (1508) Littlejohn, Aberdeenshire Sheriff Court, 95..........................................   81 Watson v Thompson 1991 SLT 683;1990 SLT 374 (OH)...................................   225, 228 Watson, Laidlaw & Co v Ltd v Pott, Cassels and Williamson 1914 SC (HL) 18........   242 Watson of Damhead (Creditors of) v Cruickshank (1681) Mor 330......................   69, 70 Waverley Housing Management Ltd v BBC 1993 GWD 17-1117..............................   165 Weir v Robertson Group (Construction) Ltd [2006] CSOH 107................................   167 Westcrowns Contracting Services v Daylight Insulation Ltd [2005] CSOH 55...........  171, 212, 266 White v Dickson (1881) 8 R 896................................................................   287, 289, 296 —v Smith (sub nom AB v CD) (1851) 14 D 177........................................................   128 Whitehall v Whitehall 1958 SC 252...........................................................................   168 Wight v Burns (1883) 11 R 217; (1883) 21 S L Rep 160....................................   110, 222 Wilkie v Wallace (1765) Mor 7360......................................................................   91, 215 William Grant v Glen Catrine Bonded Warehouse 2001 SC 901................................   281 William Morton & Co v Muir Brothers & Co 1907 SC 121..............................   186, 296 Wilson v Procurator Fiscal, Glasgow, unreported, 2 September 2005 (HCJ, Appeal Court)........................................................................................................   162 Wise Property Care Ltd v White Thomson Preservation Ltd [2008] CSIH 44; 2008 GWD 28-440................................................................................................   281 Wishaert v Patersone, 4 September 1628, Shetland Court Book 1615–1629, 131........   83 Wishart v Hamilton (1669) Scott-Moncrieff, Justiciary Records, vol 1, 297................   63 — v Viscount of Ffendraught (orse Ffendraucht) (1669) Scott-Moncrieff, Justiciary Records, vol 1, 298..................................................................................................   64 Wod (1601) 2 Pitcairn 360...........................................................................................   84 Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342 (OH)............  212, 258, 259, 260 Wragg v DC Thomson & Co Ltd 1909 2 SLT 315 (OH)...................................   441, 442 Wray v Associated Newspapers Ltd 2000 SLT 869 (Note) (OH)................................   240 X v BBC 2005 SLT 796; 2005 SCLR 740 (OH).................................  235, 250, 293, 307, 506, 533, 559, 565, 573, 585 Yeo v Wallace (1867) 5 SLRep 253............................................................................   154 Young (1642), Irvine Smith, Justiciary Cases, vol 2, 529..............................................   48 Young v Alison (1820) 2 Mur 228.............................................................................   105 — v Leven (1822) 1 Sh App 179................................................................................   114 — v Reid (1722) Hector, Renfrewshire Sheriff Court, 218...................................   79, 107

South Africa August v Electoral Commission 1999 (3) SA 1 (CC)..................................................   356 Bande v Muchinguru [1999] JOL 5205 (ZH).............................................................   363 Bennett v Minister of Police 1980 (3) SA 24 (C).........................................................   363

xxxviii

r i ght s of p e rs o n al i t y

Bentley v McPherson 1999 (3) SA 854 (E).................................................................   363 Bernstein v Bester NO 1996 (2) SA 751 (CC).....................................................   352, 358 Blanchard v Minister of Justice, Legal and Parliamentary Affairs 1999 (4) SA 1108 (ZS)....................................................................................................   356 Boswell v Minister of Police 1978 3 SA 268(E)..........................................................   256 — v Union Club of South Africa (Durban) 1985 (2) SA 162 (D)........................   172, 363 Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus (Pty) Ltd [1986] FSR 479 (SA AD); [1985] FSR 434 (N).......................................................................................   424 Brandon v Minister of Law and Order 1997 (3) SA 68 (C)........................................   156 Brenner v Botha 1956 (3) SA 257 (T).........................................................................   363 Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC).......................   364 Cape Town (City of) v Rudolph 2004 (5) SA 39 (C)..................................................   366 Cele v Cele [2005] JOL 14977 (D).............................................................................   363 Chituku v Minister of Home Affairs [2004] JOL 12724 (ZH)...................................   356 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC).................................................   368 De Lange v Costa 1989 (2) SA 857 (A)..............................................   156, 359, 369, 372 Dendy v University of Witwatersrand, Johannesburg 2005 (9) BCLR 901 (W).......................................................................   359, 369, 370, 372, 373 Du Plessis v De Klerk 1996 (3) SA 850 (CC)..............................................................   358 Epstein v Epstein 1906 TH 87....................................................................................   363 Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A)............................   156 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)....................................   358 Gardener v Whittaker 1996 (4) SA 337 (CC); 1995 (2) SA 672 (E)....................   358, 369 Goldberg v Minister of Prisons 1979 (1) SA 14 (A)....................................................   355 Government of Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)....   366, 378 Groengras Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants 2002 (1) SA 125 (T).....................................................................................................   365, 366 Harksen v Lane NO 1998 (1) SA 300 (CC)................................................................   361 Henning v S [2004] JOL 13038 (E)............................................................................   363 Hermanus v Department of Land Affairs; In Re Erven 3535 and 3536 Goodwood 2001 (1) SA 1030 (LCC)........................................................................................   367 Heyns v Venter 2004 (3) SA 200 (T)..........................................................................   363 Hlophe v Constitutional Court of South Africa [2009] 2 All SA 72 (W)............   374, 375 Huey Extreme Club v McDonald t/a Sport Helicopters 2005 (1) SA 485 (C).............   352 Innes v Visser 1936 WLD 44......................................................................................   363 Jackson v NICRO 1976 3 SA 1(A).............................................................................   160 Jafta v Schoeman; Van Rooyen v Stolz 2005 (2) SA 140 (CC)...................   361, 364, 365 Jansen van Vuuren v Kruger 1993 4 SA 842(A).................................................   162, 193 Katzenellenbogen v Katzenellenbogen & Joseph 1947 (1) SA 622 (W)......................   363 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC)...............................................................   367, 368 Khumalo v Holomisa 2002 (8) BCLR 711; (2002) (5) SA 401 (CC)..................  351, 358, 361, 362, 377, 380, 444



ta b l e of cas e s

xxxix

La Grange v Schoeman 1980 1 SA 885 (E).................................................................   534 Laugh It Off Promotions v South African Breweries International [2005] BCLR 743...........................................................................................   541, 542 Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC).........   368 Lombo v African National Congress 2002 (5) SA 668 (SCA).....................................   363 Lu Qin Png v Aani Eoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W)......   363 Manase v Minister of Safety and Security 2003 (1) SA 567 (Ck)................................   363 Mbilini v Minister of Police 1981 (3) SA 493 (E).......................................................   363 Media 24 Ltd v Grobler 2005 (6) SA 328 (SCA) ((2005) 26 ILJ 1007)..............   360, 363 Mhlongo v Bailey 1958 1 SA 30 (W)..........................................................................   534 Mineworkers’ Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W).................   233 Minister of Correctional Services v Kwakwa 2002 (4) SA 455 (SCA).........................   361 — v Tobani 2003 (5) SA 126 (E)................................................................   260, 363, 378 Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (Nicro) 2005 (3) SA 280 (CC).....................................   357 — v Watchenuka 2004 (4) SA 326 (SCA)...................................................................   376 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A)...................................................   356 Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC).........................................................................................................   352 Mogale v Seima [2005] JOL 16040 (SCA).................................................................   358 Mohamed v President of the Republic of South Africa 2003 (4) SA 64 (C)................   376 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA)...............   358, 379 Namujenpo v Commanding Officer, Windhoek Prison 2000 (6) BCLR 671 (NmS)....   356 National Coalition for Gay and Lesbian Equality v The Minister of Justice 1999 (1) SA 6 (CC).......................................................................................   352, 358, 361, 370 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)............   351, 358, 377, 379, 444 — v Jooste 1996 (3) SA 262 (AD)......................................................................   150, 415 Ndebele v Ncube [1998] JOL 2418 (ZS)....................................................................   363 NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) (2007) (7) BCLR 751 (CC)................................................   352, 358, 362, 379 O’Keeffe v Argus Printing & Publishing Co Ltd 1954 (3) SA 244 (C)................  194, 351, 415, 534 Palmer v Minister of Safety and Security 2002 (1) SA 110 (W)..................................   363 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)............   365, 375 President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).......   357, 361, 362 Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T).....................   352, 355 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC).......................................................   361 Purshotam Dagee v Durban Corporation 1908 NLR 391..........................................   355 R v Umfaan 1908 TS 62.............................................................................................   352 Ralekwa v Minister of Safety and Security 2004 (2) SA 342 (T).................................   363 Ramsay v Minister van Polisie 1981 (4) SA 802 (A)...................................................   363 S v Hammer 1994 (2) SA SACR 496 (C)....................................................................   352 — v Hoho 2009 (1) SACR 276 (SCA)........................................................................   353 — v I 1976 (1) SA 781 (R AD)...................................................................................   415 — v Jana 1981 (1) SA 671 (T)....................................................................................   363 — v Makwanyane 1995 (3) SA 391 (CC)...................................................................   361 — v Mcapazelli [2004] JOL 12470 (Tk)....................................................................   363 — v Seweya 2004 (1) SACR 387 (T)..........................................................................   353

xl

r i ght s of p e rs o n al i t y

S v Steenberg 1999 (1) SACR 594 (N)........................................................................   363 — v Volkman 2005 (2) SACR 402 (C).......................................................................   357 Seymour v Minister of Safety and Security [2005] 2 All SA 296 (W)..................   358, 363 Shenker Brothers v Bester 1952 (3) SA 655 (C)..........................................................   363 Sibiya v NUM [1996] 6 BLLR 794 (IC).....................................................................   363 Sievers v Bonthuys 1911 EDL 525.....................................................................   350, 367 Stansfield v Minister of Correctional Services 2004 (4) SA 43 (C)..............................   357 Tarloff v Olivier 2004 (5) BCLR 521 (C)...................................................................   363 Thukwane v Minister of Correctional Services 2003 (1) SA 51 (T)............................   355 Tiffen v Cilliers 1925 OPD 23....................................................................................   363 Treatment Action Campaign (2) 2002 (5) SA 721 CC................................................   361 Van Heerden v Cronwright 1985 (2) SA 342 (T)........................................................   363 Van Vuuren v Kruger 1993 (4) SA 842 (AD)..............................................................   415 Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92......   211, 355 Spain Doña Ana Garcia Obregón v Editorial Origen SA (Constitutional Court, 2d Chamber) case 117/1994........................................................................................   508 Doña Isabel Pantoja Martín v Prographic SA 19881223 BOE num.307.....................   512 United Kingdom Nominet UK Dispute Resolution Service Owen v Alliance of Enfeld, DRS No 03411 (23 Mar 2006) (Nominet UK Dispute Resolution Service).................................................................................................   430 Stoneygate 48 Ltd & Rooney v Marshall, DRS No 03844 (5 Oct 2006) (Nominet UK Dispute Resolution Service)..............................................................................   430 UK Trade Mark Office Alex Ferguson’s Application, 26 Mar 2006 (LCAP); 23 Sep 2005 (TMO).................   425 Anne Frank Trade Mark [1998] RPC 379 (TMO).....................................................   419 Diana, Princess of Wales’ Trade Mark Appn [2001] ETMR 25 (TMO)......................   425 United States of America Ali v Playgirl, Inc 447 F Supp 723 (728ss) (D N Y 1978)...........................................   242 Canterbury v Spence 464 F 2d 772 (DC, 1972)..........................................................   472 Carson v Here’s Johnny Portable Toilets Inc 698 F 2d 831 (6th Cir, 1983)................   384 Cockrum v Baumgartner 477 NE 2d 385 (Ill 1983)...................................................   166 Dye v Wargo 253 F 3d 296 (7th Cir, 2001)................................................................   404 Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir, 1953).....  25, 197, 496, 502, 522 INS v Associated Press 248 US 215 (1918) US Sup Ct................................................   386



ta b l e of cas e s

xli

Kent v Norman v Reagan 95 FRD 476 (D Ore, 1982)...............................................   418 Lamparello v Falwell 420 F 3d 309 (4th Cir, 2005), cert den 2006 WL 283870........   431 Linkin Park LLC’s Appn (7 Feb 2005, LC Appointed Person)....................................   425 Lorna Morgan Trade Mark (15 Oct 2004, LC Appointed Person).............................   425 Miles v City Council of Augusta, Georgia 710 F 2d 1542 (11th Cir, 1983)................   404 Muller & Co v New York Arrows Soccer Team Inc 802 F 2d 989 (8th Cir, 1986).....   418 New York Times v Sullivan 376 US 254 (1964).........................................................   443 Pavesich v New England Life Insurance Co 50 SE 68 (Ga SC 1905)........   8, 11, 414, 496 Polar Music International AB, Re 714 F 2d 156 (Fed Cir, 1983)................................   426 Roberson v Rochester Folding Box Co 64 NE 442 (NY AD 1902)............................   414 Triggs v Sun Printing Association (1904) 179 NY 144...............................................   280 Zacchini v Scripps-Howard Broadcasting Co 433 US 564 (1977)..............   496, 502, 522 WIPO (World Intellectual Property Organization) Arbitration and Mediation Center Asper v Communication X Inc, Case No D2001-0540 (11 Jun 2001) (WIPO Arb Center).................................................................................................................    431 De Bernières v Old Barn Studios Ltd, Case No D 2001-0122 (26 Mar 2001) (WIPO Arb Center)............................................................................................................   430 Rowling v Collazo, Case No D2004-0787 (22 Nov 2004) (WIPO Arb Center).........   430 Stoneygate 48 Ltd & Rooney v Marshall, Case No D2006-0916 (6 Oct 2006) (WIPO Arb Center)................................................................................................   430 Turner v Fahmi, Case No 2002-0251 (4 Jul 2002) (WIPO Arb Center).....................   431  

xlii

r i ght s of p e rs o n al i t y



ta b l e of cas e s

xliii

  table of legislation and other instruments

Argentina 1869 Código Civil (Civil Code)  Art 1071b..................................................................................................   492 1933 Copyrights Act   s 31............................................................................................   497, 508, 526 Australia 1974 Trade Practices Act (Cth)...............................................................................   497 Canada 1975 Quebec Charter of Human Rights and Freedoms..................................   496, 532   s 49............................................................................................................   525 1979 Saskatchewan Privacy Act.............................................................................   532   s 3..............................................................................................................   537   s 4(1)(e)(i)..................................................................................................   532 1982 Constitution..................................................................................................   496 Charter of Rights and Freedoms............................................................   496, 532   s 7..............................................................................................................   532 1987 Manitoba Privacy Act....................................................................................   532 1990 Newfoundland Privacy Act............................................................................   532 1994 Civil Code of Quebec....................................................................................   532   Book 1, Title 1...........................................................................................   493   Title 2.....................................................................................................   493  Art 2..........................................................................................................   506  Art 3..........................................................................................   493, 505, 506  Arts 10–49.................................................................................................   493  Art 36........................................................................................   532, 533, 540  Art 1493....................................................................................................   525  Art 1621....................................................................................................   525 1996 British Columbia Privacy Act.........................................................................   532 2000 Personal Information Protection and Electronic Documents Act (c 5)....   531, 532   s 4(2)(c)......................................................................................................   532 France 1789 Déclaration des droits de l’homme et du citoyen (26 August)............   5, 322, 326  Art 2..................................................................................................   318, 324  Art 11................................................................................................   318, 324

xliii

xliv

r i ght s of p e rs o n al i t y

1791 Constitution du 3 septembre..........................................................................   326  Art 17........................................................................................................   319 1804 Code civil (Civil Code)..........................................................   321, 323, 327, 334  Art 9......................................   8, 198, 277, 310, 322, 324, 345, 492, 527, 535       (1).....................................................................................................   322  Art 16................................................................................................   323, 324  Art 16.1.....................................................................................................   323  Art 1382....................................   162, 277, 310, 319, 320, 323, 334, 492, 527  Art 1383............................................................................................   323, 334 1868 Press Act (11 May)........................................................................................   319   s 11............................................................................................................   319 1881 Loi du 29 juillet 1881 sur la liberté de la presse (Freedom of the Press Act of 29 July).................................................................................   320, 323, 324  Art 35........................................................................................................   319 1946 Constitution of 1946.....................................................................................   322   preamble....................................................................................................   322 1946 Le Statut Général des Fonctionnaires Publics  Art 26........................................................................................................   497 1953 Code de la Santé Publique (Public Health Code)  Art L1111-1...............................................................................................   497 1958 Constitution  Art 55........................................................................................................   323  Arts 56–63.................................................................................................   322  Art 61........................................................................................................   322 1970 Loi No 70-643 (JO 17.7.1970, p 6751).................................   310, 321, 324, 492 1994 Code Pénal (Criminal Code)  Art 226-13.................................................................................................   497 2002 Code de Déontologie Medicale (Law 2002-203 of 4 March 2002)................   497 Germany 1848 Paulskirchen-Constitution.............................................................................   326 1871 Constitution (enacted at Versailles)................................................................   326 Penal Code (StGB)   §§185 et seq.......................................................................................   327, 334 1900 Bürgerliches Gesetzbuch (Civil Code)............................  238, 310, 325, 326, 327, 328, 330, 331, 334, 335, 494, 527   §12....................................................................................................   328, 492   §249(1)......................................................................................................   334   §§249–253.................................................................................................   327   §253..................................................................................   239, 311, 335, 336      (2)......................................................................................................   239   §812..................................................................................................   241, 525   §823..........................................................................................................   492      (1)..............................................................................   311, 329, 331, 332      (2)......................................................................................................   334   §824..........................................................................................................   328   §825..........................................................................................................   328   §826..........................................................................................................   329   §847..........................................................................................................   239      (1)......................................................................................................   327      (2)......................................................................................................   328   §1004................................................................................................   331, 334

ta b le o f l e gi sl at ta i ob n l eaof nd cas o t hees r i n s t ru m e n t s xlv 1907 Kunsturhebergesetz (Act of Copyright in Works of Visual Arts; Artists’ Copyrights Act)..................................................................   328, 492, 497, 509, 527   §22....................................................................................   328, 342, 344, 527   §§22–24.....................................................................................................   385   §23............................................................................................................   342     (1)........................................................................   328, 343, 344, 527, 528        (i).....................................................................................................   343     (2)........................................................................................................   528 1919 Weimar Constitution.....................................................................................   329 1949 Grundgesetz (Basic Law; Bonn Constitution)....   8, 329, 330, 337, 343, 360, 494  Art 1..................................................................................................   160, 492      (1)..............................................................................................   330, 333      (3)......................................................................................................   329  Art 2(1)..............................................................................   329, 330, 333, 492  Art 5(1)..............................................................................................   333, 343       (2)(2)(d)  Art 6..........................................................................................................   344  Art 10........................................................................................................   329  Art 13........................................................................................................   330 1965 Urheberrechtsgesetz (Copyrights Act)............................................................   328 1990 Bundesdatenschutzgesetz (Federal Data Protection Act)................................   497 2002 Zweite Gesetz zur Änderung schadensersatzrechtlicher Vorschriften (Second Act on the Amendment of Provisions on the Law of Delict and Damages) BGB1.2002 I 2674ss..................................................................................   239 Italy 1865 Civil Code.....................................................................................................   334  Art 1151............................................................................................   334, 335 1941 Copyrights Act, Law of 22 April (no 633)  Art 96................................................................................   497, 512, 528, 536  Art 97........................................................................................   508, 529, 536 1942 Codice Civile.................................................................................   334, 335, 492  Art 5..................................................................................................   336, 493  Arts 5–10...................................................................................................   335  Art 6..........................................................................................................   493  Arts 6–7.....................................................................................................   336  Arts 8–9.....................................................................................................   336  Art 10........................................................................................   336, 493, 528  Art 2043....................................................................................................   336  Art 2059....................................................................................   336, 338, 492 Trade Mark Act, RD of 21 June (no 929)......................................................   528 1948 Constitution..............................................................................................   8, 337  Art 2..........................................................................................   337, 493, 529  Art 3..........................................................................................................   337      (2)......................................................................................................   493  Art 21.1.....................................................................................................   529  Art 21.2.....................................................................................................   529  Art 32........................................................................................................   338  Art 41........................................................................................................   337 1996 Law of 31 December (Data Protection Act) (no 676).............................   338, 497 2003 Legislative Decree of 30 June (no 196)..........................................................   497 2005 Legislative Decree 10 February (no 30)..........................................................   528 Codice dei diritti di proprietà industriale (Code on industrial property law)...........................................................................................................   528

xlvi

r i ght s of p e rs o n al i t y Netherlands

Trademark Law.............................................................................................   493 1912 Auteurswet (Copyrights Act).........................................................................   493  Art 19........................................................................................................   529  Arts 19–21.................................................................................................   497  Art 20........................................................................................................   529  Art 21................................................................................................   529, 536 1983 Constitution..................................................................................................   493  Art 10(1)....................................................................................................   493  Art 11........................................................................................................   493  Art 12........................................................................................................   493  Art 13........................................................................................................   493 1992 Burgerlijk Wetboek (Civil Code)............................................................   493, 512  Art 6:106(c)...............................................................................................   512  Art 6:162(1)...............................................................................................   493    (2)..........................................................................................................   493 Scotland Acts prior to 1424 1384 Act 2 Rob 2 Cap 11.........................................................................................   88 Acts of the Parliament of Scotland 1424 to 1707 1457 Act on remissions (APS record edn c 19; 12mo edn c 74)................................   45 1528 Act on assythment (APS record edn c 3; 12mo edn c 7)...................................   45 1535 Act on burgh officers (APS record edn c 35; 12mo edn c 26)...........................   53 1551 Act on punishment of notour adultery (APS record edn c 12; 12mo edn c 20)......................................................................................................   69, 83 1563 Act on punishment of notour adultery (APS record edn c 10; 12mo edn c 74)............................................................................................................   69 1567 Act concerning shooting and bearing of culverins and dags (APS record edn c 23; 12mo edn c 9).....................................................................................   50 1584 Act on murders (APS record edn c 14; 12mo edn c 138)..................................   51 1587 Act for punishment of the committers of disorders in the kirk in time of divine service or forcers of ministers in their office and function (APS record edn, c 6; 12mo edn, c 27)...........................................................   50, 84 1593 Act on assault in courts (APS record edn c 22; 12mo edn c 177).....................   50 1594 Act on leasing makers (APS record edn c 15; 12mo edn c 209)........................   51 1609 Act on Commissariots (APS record edn c 8; 12mo edn c 6).............................   41 1621 Bankruptcy Act (APS record edn c 18; 12mo edn c 18).....................   73, 74, 354 1661 Act on justices of the peace (APS record edn c 338; 12mo edn c 38)................   64 1689 Claim of Right (APS record edn c 28; 12mo edn c 13)...........................   112, 257 1693 Act on registration (APS record edn c 24; 12mo edn c 15).............................   225 1701 Act anent Wrongous Imprisonment (Act for preventing wrongous imprisonment and against undue delays in trials also known as Criminal Procedure Act) (APS record edn c 6; 12mo edn c 6).....   7, 40, 57, 99,                     101, 111, 112, 113, 114, 118, 134, 257 Acts of the Scottish Parliament 1999 to the present 2000 Adults with Incapacity (Scotland) Act (asp 4)................................................   261 Regulation of Investigatory Powers (Scotland) Act (asp 11)...................   566, 575   s 1(2)..........................................................................................................   576     (3)–(5)...................................................................................................   577

ta b le o f l e gi sl at i ob n nd cas o t hees r ta l eaof i n s t ru m e n t s xlvii 2000 Regulation of Investigatory Powers (Scotland) Act (asp 11) (cont.)   s 1(6)..........................................................................................................   577     (7).........................................................................................................   577     (8)(a).....................................................................................................   576     (9).........................................................................................................   576   s 5..............................................................................................................   576    (2)..........................................................................................................   576   ss 6–8.........................................................................................................   577   s 9..............................................................................................................   577   s 10............................................................................................................   577   s 30............................................................................................................   577 2003 Land Reform (Scotland) Act 2003 (asp 2)   s 6..............................................................................................................   566 Mental Health (Care and Treatment) (Scotland) Act (asp 13)........................   261 2006 Human Tissue (Scotland) Act (asp 4).............................................................   472 2007 Legal Profession and Legal Aid (Scotland) Act (asp 5)   s 71............................................................................................................   266 South Africa 1944 Magistrates’ Courts Act (no 32)   s 66(1)(a)...................................................................................................   365   s 67............................................................................................................   365 1951 Prevention of Illegal Squatting Act (no 52)....................................................   365 1956 Labour Relations Act (no 28)   s 46(9)........................................................................................................   364 1991 Aliens Control Act (no 96)....................................................................   368, 376   s 25(9)(b)...................................................................................................   368   s 26(2)(a)...................................................................................................   368 1994 Restitution of Land Rights Act (no 22)..........................................................   367 1995 Labour Relations Act (no 65)   s 194(1)......................................................................................................   364 1996 Constitution..................   303, 354, 357, 358, 360, 363, 364, 368, 369, 371, 372   s 9(3)..................................................................................................   367, 368   s 10............................................................................................   354, 358, 369   s 14....................................................................................................   352, 357   s 26....................................................................................................   378, 379         (3)................................................................................................   364, 365   s 27....................................................................................................   378, 379          (1)........................................................................................................   367   s 35(3)(a)...................................................................................................   375   s 39(2)................................................................................................   359, 372 Bill of Rights....................................................................................   16, 303, 496 1998 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act   (no 19)...............................................................................................   364, 365   s 6..............................................................................................................   365 Electoral Act (no 73)   s 8(2)(f)......................................................................................................   357 2000 Promotion of Administrative Justice Act (no 3)   s 7(2)(a).....................................................................................................   374 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act (no 32)   s 18............................................................................................................   353   s 24............................................................................................................   353

xlviii

r i ght s of p e rs o n al i t y

Spain 1889 Código Civil (Civil Code)  Art 32........................................................................................................   512  Art 1902ff..................................................................................................   493 1978 Constitution of 1978  Art 18.1.....................................................................................................   494 1982 La Ley Orgánica 1/1982 de 5 de Mayo de protección del derecho al honor,   la intimidad personal y familiar y la propria imagen (Organic Law)..........   537  Art 2.1.......................................................................................   491, 494, 530  Art 3..........................................................................................................   505  Art 7..........................................................................................................   537  Art 32........................................................................................................   512 2002 Act 41/2002 (regulating patients’ rights and obligations)...............................   497 United Kingdom (Acts of the Parliament of the United Kingdom, including Acts extending to Scotland only) 1719–20 Act for the further preventing of Robbery, Burglary and other Felonies, and for the more effectual Transportation of Felons (6 Geo I c 23)   s 11............................................................................................................   100 1774 Act for Regulating Madhouses (14 Geo II c 49).............................................   119 1775 Act 15 Geo III c 42........................................................................................   131 1786 Madhouses Law Perpetuation Act (28 Geo III c 91)......................................   119 1792 Libel Act (32 Geo III c 60) (“Fox’s Libel Act”)..............................................   131 1798 Act to secure and deter such Persons as His Majesty shall suspect are conspiring against his Person and Government (Geo III c 36)   s 2..............................................................................................................   112 1799 Bail in Criminal Cases (Scotland) Act (39 Geo III c 49).................................   112 1800 Criminal Lunatics Act (39 and 40 Geo III c 94).............................................   118 1808 Lunatic Paupers or Criminals (Act for the better Care and Maintenance of Lunatics being Paupers or Criminals) (48 Geo III c 96).............................   119 1811 Lunatic Paupers etc (England) Act (51 Geo III c 79.......................................   119 1815 Jury Trials (Scotland) Act (55 Geo III c 42)...........................................   249, 264 Act to Regulate Madhouses in Scotland (55 Geo III c 69)......................   118, 120 1819 Jury Trials Act (60 Geo III & 1 Geo IV c 35).................................................   105   s 1..............................................................................................................   105 1822 Act 3 Geo IV c 32..........................................................................................   137 1823 Commissary Courts (Scotland) Act (4 Geo IV c 97).................................   41, 265 1825 Court of Session Act (6 Geo IV c 120) (Judicature Act).........................   105, 249   s 28............................................................................................   105, 152, 252 1828 Madhouses Act (9 Geo IV c 34).....................................................................   120 1830 Court of Session Act (11 Geo IV & 1 Will IV c 69).................................   41, 264 1836 Commissary Court of Edinburgh etc Act (6 & 7 Will IV c 41)................   41, 265 1841 Madhouses etc (Scotland) Act (4 & 5 Vict c 60)............................................   120 1843 Libel Act (6 & 7 Vict c 96)............................................................................   233 1857 Lunacy (Scotland) Act (20 & 21 Vict c 71)....................................................   120 1862 Lunacy (Scotland) Act (25 & 26 Vict c 54)....................................................   120 1906 Statute Law Revision Act (8 Edw VII c 49)....................................................   111 1911 Copyright Act (1 & 2 Geo V c 46)........................................................   420, 421   s 1(1)(b).....................................................................................................   413   s 5(1)(a).....................................................................................................   420   First Sch.....................................................................................................   413 1938 Trade Marks Act (1 & 2 Geo VI c 22)...........................................................   423

ta l eaof i n s t ru m e n t s xlix ta b le o f l e gi sl at i ob n nd cas o t hees r 1952 Defamation Act (15 & 16 Geo VI & 1 Eliz II c 66)   s 4..............................................................................................................   234 1960 Mental Health (Scotland) Act   s 107..........................................................................................................   261 1961 Human Tissue Act (9 & 10 Eliz II c 54).................................................   475, 476 1964 Statute Law Revision Act (c 79).....................................................................   111  Sch 2..........................................................................................................   111 1968 Social Work (Scotland) Act (c 49)   s 13ZA.......................................................................................................   261 1973 Prescription and Limitation (Scotland) Act (c 52)..........................................   567   s 17............................................................................................................   230  Sch 1, para 1(d)..........................................................................................   165 1976 Damages (Scotland) Act (c 13).......................................   227, 228, 230, 231, 567   s 1(4)..........................................................................................................   166   s 2........................................................................................................   227, 26     (2)..................................................................................................   166, 227     (4)..........................................................................................................   231       (a)......................................................................................................   227   s 8..............................................................................................................   475 Divorce (Scotland) Act (c 39)   s 10............................................................................................................   201          (1)........................................................................................................   203 1977 Patents Act (c 37)   s 13(1)........................................................................................................   410 1980 Criminal Justice (Scotland) Act (c 62)   s 2..............................................................................................................   259 1984 Anatomy Act (c 14).......................................................................................   476 Law Reform (Husband and Wife) (Scotland) Act (c 15)   s 1(1)..........................................................................................................   202   s 2(2)..........................................................................................................   203 Mental Health (Scotland) Act (c 36)   s 122(1)......................................................................................................   261 1985 Interception of Communications Act (c 56)...................................................   575 Bankruptcy (Scotland) Act (c 66)   s 32(6)........................................................................................................   228 1988 Malicious Communications Act (c 27)...........................................................   566 Court of Session Act (c 36)............................................................................   152   s 11....................................................................................................   152, 234 Copyright, Designs and Patents Act (c 48)...............................  26, 165, 412, 420, 540, 566, 578, 582   Ch IV.................................................................................................   201, 405   s 1..............................................................................................................   578   s 3..............................................................................................................   578   ss 3–5B.......................................................................................................   578   s 9..............................................................................................................   541            (4)..........................................................................................................   579      (5)..........................................................................................................   579   ss 9–11.......................................................................................................   578   s 11............................................................................................................   541         (1)........................................................................................................   420         (2)........................................................................................................   420   s 12(3)........................................................................................................   579          (4)........................................................................................................   579

l

r i ght s of p e rs o n al i t y

1988 Copyright, Designs and Patents Act (c 48) (cont.)   s 13B(3)–(5)...............................................................................................   579   ss 16–21.....................................................................................................   579   s 19(2)(b)...................................................................................................   412   s 29............................................................................................................   580   s 30............................................................................................................   580        (1)................................................................................................   413, 580       (1A).............................................................................................   413, 580   s 57............................................................................................................   579   ss 77–83.....................................................................................................   579   ss 77–89.....................................................................................................   237   s 84............................................................................................................   580   s 85....................................................................................................   420, 580   ss 90–93.....................................................................................................   578   s 94............................................................................................................   409   s 95............................................................................................................   409   s 97(2)........................................................................................................   237   s 171(3)......................................................................................................   580   s 172..........................................................................................................   412   s 191A.......................................................................................................   409   s 191B........................................................................................................   409   s 192A.......................................................................................................   409   s 192B........................................................................................................   409   s 205F........................................................................................................   410   s 205G.......................................................................................................   410 1993 Damages (Scotland) Act (c 5).................................................................   227, 230   s 3......................................................................................   166, 227, 231, 266 1994 Trade Marks Act (c 26).................................................   384, 423, 427, 540, 541   s 1(1)..........................................................................................................   417   s 11(2)(a)...................................................................................................   423 1995 Private International Law (Miscellaneous Provisions) Act (c 42)   s 13............................................................................................................   266 Criminal Procedure (Scotland) Act (c 46)   s 13............................................................................................................   259   s 14............................................................................................................   259 1996 Defamation Act (c 31)...................................................................................   234   ss 2–4.........................................................................................................   234 1997 Protection from Harassment Act (c 40)...................  26, 165, 253, 551, 562, 566, 567, 568, 569, 578, 581, 582, 583, 586   s 1..............................................................................................................   567      (3)(a).....................................................................................................   578   s 7(3)..........................................................................................................   568   s 8................................................................................   21, 167, 169, 173, 256       (1).........................................................................................................   567       (2).........................................................................................................   567       (3).................................................................................................   567, 568       (4).........................................................................................................   567       (5).........................................................................................................   567       (6).........................................................................................................   567       (8).........................................................................................................   567   s 10............................................................................................................   567 1998 Data Protection Act (c 29).......................  26, 165, 472, 497, 540, 541, 558, 562, 566, 569, 570, 573, 574, 581, 582, 583, 586, 587

ta b le o f l e gi sl at i ob n nd cas o t hees r ta l eaof i n s t ru m e n t s

li

1998 Data Protection Act (c 29) (cont.)  Pt IV..........................................................................................................   572   s 1(1)..................................................................................................   570, 571   s 2......................................................................................................   572, 574   s 3..............................................................................................................   571   s 4(4)..........................................................................................................   570   s 10....................................................................................................   571, 573   s 13............................................................................................................   571       (2)........................................................................................................   571       (3)........................................................................................................   572   s 32............................................................................................................   572  Sch 1, Pt I...................................................................................................   570    para 1.....................................................................................................   570    para 6.....................................................................................................   571  Sch 3, para 1..............................................................................................   572    para 5.....................................................................................................   572 Human Rights Act (c 42).....................................  12, 17, 18, 188, 190, 393, 406, 454, 456, 459, 540, 551, 553   s 3..............................................................................................................   566   s 6..............................................................................................................   188     (1)............................................................................................................   12      (3)............................................................................................................   12   s 8(4)..........................................................................................................   242   s 12(3)........................................................................................................   234                  (4)...............................................................................................   235, 554 Scotland Act 1998 (c 46)...............................................................   199, 355, 406  Sch 5............................................................................................................   13   Head C4.................................................................................................   199 2000 Regulation of Investigatory Powers Acts (c 23)................   26, 165, 566, 574, 575  Pt II....................................................................................................   575, 578   s 1(3)..........................................................................................................   575   s 2..............................................................................................................   575   s 3(1)..........................................................................................................   575      (2).........................................................................................................   576   s 5..............................................................................................................   575   s 21(2)........................................................................................................   576       (3)........................................................................................................   576   s 80............................................................................................................   577 2003 Communications Act (c 21)...........................................................................   566 2004 Human Tissue Act (c 30)...............................................................................   472 2005 Serious Organised Crime and Police Act (c 15)   s 125(7)(b).................................................................................................   568 2006 Performances (Moral Rights, etc) Regulations (SI 2006/18)...........................   411   reg 6...........................................................................................................   410 United States of America 1787 Constitution..................................................................................................   326 First Amendment...........................................................................................   404 1791 Bill of Rights..................................................................................................   326 1977 American Law Institute, Restatement, Second, Torts.....................   161, 254, 494   §18............................................................................................................   255   §44............................................................................................................   260   §652A........................................................................................................   494

lii

r i ght s of p e rs o n al i t y

1977 American Law Institute, Restatement, Second, Torts (cont.)   §§625A–625E............................................................................................   161   §652B........................................................................................................   299   §652C........................................................................................................   414   §652D........................................................................................   192, 277, 583 European Directives 1989 Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks [1989] OJ L40/1  Art 3(1)(g)..................................................................................................   427  Art 6(1)(a)..................................................................................................   423 1995 EU Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31....................................................................   497, 569 2001 Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10  Art 5(3)(d).................................................................................................   413 2002 Directive 2002/58/EC of the European Parliament and the Council of 12.7.2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37.....   497 European Regulations 1994 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark [1994] OJ L11/1  Art 12(a)............................................................................................   423, 427 European Conventions and Treaties 1950 European Convention on Human Rights...............  2, 8, 9, 12, 13, 15, 16, 17, 18, 22, 190, 207, 213, 245, 250, 261, 286, 303, 310, 311, 323, 332, 339, 340, 341, 342, 347, 393, 406, 413, 414, 454, 469, 496, 498, 524, 533, 546, 551  Art 2..........................................................................................................   166       (1)......................................................................................................   166  Art 3..........................................................................................   169, 301, 355  Art 5..................................................................................   170, 258, 261, 262       (1)......................................................................................................   170       (4)......................................................................................................   262        (5).............................................................................................   170, 261  Art 6..........................................................................................................   585  Art 8................................................  3, 7, 8, 9, 12, 13, 14, 15, 19, 24, 26, 150, 158, 162, 168, 173, 174, 182, 183, 184, 188, 189, 190, 192, 193, 200, 209, 214, 250, 257, 262, 277, 284, 289, 291, 292, 294, 300, 301, 302, 303, 305, 306, 309, 311, 312, 316, 324, 355, 392, 393, 394, 395, 396, 397, 400, 434, 468, 469, 470, 474, 492, 496, 504, 524, 525, 528, 533, 541, 544, 545, 547, 548, 551, 552, 555, 560, 563, 568, 569, 574, 585       (1)..................................................   8, 322, 333, 339, 342, 344, 345, 413       (2)......................................................................   301, 471, 560, 569, 578  Art 9..................................................................................................   162, 173  Art 10..............................................  9, 19, 192, 193, 209, 250, 279, 294, 310, 324, 333, 393, 434, 504, 524, 525, 552, 560           (1)....................................................................................................   342

ta b le o f l e gi sl at i ob n nd cas o t hees r ta l eaof i n s t ru m e n t s

liii

1950 European Convention on Human Rights  Art 13................................................................................................   306, 468  Art 14........................................................................................................   173  Art 41........................................................................................................   243  Art 43(1)....................................................................................................   344  Art 46(1)....................................................................................................   340        (2)........................................................................................................   340 First Protocol to ECHR.................................................................................   392  Art 1....................................................................................   24, 200, 284, 299 1957 Treaty establishing the European Community...............................................   340  Art 220......................................................................................................   341 1973 European Patents Convention........................................................................   410 1981 European Convention for the protection of individuals with regard to automatic processing of personal data.......................................................   497 1986 Single European Act......................................................................................   341 1992 Treaty on European Union............................................................................   341  Art 6(2)......................................................................................................   341 1997 European Convention on Human Rights and Biomedicine............................   497 2000 European Patent Convention  Art 62........................................................................................................   410 International Conventions 1883 Paris Convention for the Protection of Industrial Property  Art 10bis............................................................................................   384, 385 1948 United Nations Universal Declaration on Human Rights...............................   454 1969 American Convention on Human Rights (Pact of San José, Costa Rica)........   496 1971 Berne Convention for the Protection of Literary and Artistic Works..............   410  Art 6bis(1).................................................................................................   411 1996 WIPO Performances and Producers Treaty....................................................   411  Art 5(1)......................................................................................................   410 2005 UNESCO Universal Declaration on Bioethics and Human Rights.................   454

liv

r i ght s of p e rs o n al i t y



ta b l e of cas e s

lv

  table of abbreviations

A.  Works Cited in Abbreviated Form Arnot, Criminal Trials = H Arnot, Celebrated Criminal Trials in Scotland (1536–1784) (1785; 1812) Bankton, Institute = Lord Bankton, An Institute of the Laws of Scotland in Civil Rights: With Observations upon the Agreement or Diversity between them and the Laws of England, 3 vols (1751–53) (reprint Stair Society, vols 41–43) (1993–1995) Bayne, Institutions = A Bayne, Institutions of the Criminal Law of Scotland (1st edn, 1730) Bell, Commentaries = G J Bell, Commentaries on the Law of Scotland and the Principles of Mercantile Jurisprudence (7th edn, 1871) (ed Lord McLaren) Bell, Principles = G J Bell, Principles of the Law of Scotland (10th edn, 1899) Berlichius, Conclusiones Practicabiles = Berlichius, Matthias, Conclusiones practicabiles secundum ordinum constitutionum Augusti Electoris Saxoniae (Arnhem 1644) Beverley-Smith et al, Privacy, Property and Personality = H BeverleySmith, A Ohly and A Lucas-Schloetter, Privacy, Property and Personality Civil Law Perspectives on Commercial Appropriation (2005) Burchell, Personality Rights = J M Burchell, Personality Rights and Freedom of Expression – The Modern Actio Injuriarum (1998) Cameron, Argyll Justiciary = J Cameron (ed), Justiciary Records of Argyll and the Isles vol 1 (1664–1705) (Stair Society, vol 12) (1949) Clarus = Clarus, Julius, Liber Quintus Sententiarum Receptarum (first published 1568) lv

lvi

r i ght s of p e rs o n al i t y

Dirleton, Doubts = Sir John Nisbet, Lord Dirleton, Some Doubts and Questions in the Law; Especially in the Law of Scotland (1698) Erskine, Institute = J Erskine, An Institute of the Law of Sotland (8th edn, 1871) Farinacius = Farinacius, Prosper, Praxis et theorica criminalium rerum – Variarum Quaestionum ac Communium Criminalium (complete first publication 1614) Gillon, Justiciary Cases vol 1 = S A Gillon (ed), Selected Justiciary Cases 1624–1650 vol I (Stair Society, vol 16) (1953) Gordley, Foundations of Private Law = J Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006) Hector, Renfrewshire Sheriff Court = W Hector, Selections from the Judicial Records of Renfrewshire, illustrative of the Laws of the County and Manners and Conditions of the Inhabitants in the 17th and 18th centuries, 1st and 2nd series, 1876–1878 Hermand = F P Walton (ed), Lord Hermand’s Consistorial Decisions 1684–1777 (Stair Society, vol 6) (1940) Hume, Commentaries = D Hume, Commentaries on the Law of Scotland respecting Crimes (4th edn, 1844) (1st edn, 1797) Hume, Lectures = G C H Paton (ed), Baron David Hume’s Lectures 1786–1822, 6 vols (Stair Society, vols 5, 13, 15, 17, 18 and 19) (1939–1958) Imrie, Justiciary Argyll, vol 2 = J Imrie (ed), The Justiciary Records of Argyll and the Isles, vol 2 (1705–1742) (Stair Society, vol 25) (1969) Irvine Smith, Justiciary Cases, vol 2 = J Irvine Smith (ed), Selected Justiciary Cases 1624–1650, vol II (Stair Society, vol 27) (1972) Irvine Smith, Justiciary Cases, vol 3 = J Irvine Smith (ed), Selected Justiciary Cases 1624–1650, vol III (Stair Society, vol 29) (1974) Koziol and Warzilek (eds), The Protection of Personality Rights against Invasions by Mass Media = H Koziol and A Warzilek (eds), Persönlichkeitsschutz gegenüber Massenmedien – The Protection of Personality Rights against Invasions by Mass Media (2005) Laurie, Genetic Privacy = G T Laurie, Genetic Privacy: A Challenge to Medico–Legal Norms (2002)



ta b l e ta o fb laeb bof r e cas vi ate iso n s

lvii

Lee = R W Lee, An Introduction to Roman-Dutch Law (5th edn, 1953) Liber Officialis Sancti Andree = Liber Officialis Sancti Andree Curie Metropolitane in Scotia – Sententiarum in Causis Consistorialibus qui extant (Abbotsford Club, 1846) Littlejohn, Aberdeenshire Sheriff Court = D Littlejohn (ed), Records of the Sheriff Court of Aberdeenshire, vol 2 (1896) (printed for New Spalding Club) Mackenzie, Criminals = Sir George Mackenzie, Laws and Customs of Scotland in Matters Criminal (2nd edn, 1699) McLaurin, Justiciary Cases = J McLaurin, Lord Dreghorn, Arguments and Decisions in Remarkable Cases before the High Court of Justiciary etc 1670–1773 (1774) Markesinis and Unberath, The German Law of Torts = S Markesinis and H Unberath, The German Law of Torts – A Comparative Treatise (4th edn, 2002) Matthaeus = Matthaeus (II), Antonius, De Criminibus ad lib XLVII et XLVIII digesti commentarius (Amsterdam 1644; 1665) (1761 edition; edited with English translation by M L Hewett and B C Stoop, 4 vols, 1987–1996) Neethling’s Law of Personality = J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005) Norrie, Defamation = K Norrie, Defamation and Related Actions in Scots Law (1995) Pitcairn = R Pitcairn, Scottish Criminal Trials, from 1488 to 1625. First series, Parts I-VIII, 1568 to 1625; Second series (Parts IX and X with Index to whole) 1493 to 1568; (Maitland and Bannatyne Clubs) (3 vols) Pitmedden I = Sir Alexander Seton, Lord Pitmedden, Treatise of Mutilation and Demembration and their Punishments (1699) Reid and Zimmermann (eds), A History of Private Law in Scotland = K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) (2 vols) Renton and Brown, Criminal Procedure = C Gane and G H Gordon (eds), Renton and Brown, Criminal Procedure (6th edn, looseleaf) Scott-Moncrieff, Justiciary Records, vol 1 = W G Scott-Moncrieff, The Records of the Proceedings of the Justiciary Court Edinburgh 1661–1678, vol I (1661–1669) (Scottish History Society) (1905)

lviii

r i ght s of p e rs o n al i t y

Scott-Moncrieff, Justiciary Records, vol 2 = W G Scott-Moncrieff, The Records of the Proceedings of the Justiciary Court Edinburgh 1661–1678, vol II (1669–1678) (Scottish History Society) (1906– 1908) Shetland Court Book 1615–1629 = G Donaldson (ed), Court Book of Shetland 1615–1629 (1991) Smith, Short Commentary = T B Smith, A Short Commentary on the Law of Scotland (1962) Stair, Institutions = J Dalrymple, Viscount Stair, Institutions of the Law of Scotland (6th or Tercentenary edn, based on 2nd edn, 1693) (ed D M Walker) SME = The Laws of Scotland, Stair Memorial Encyclopaedia, vols 1–25 (1987–96) SME Reissue = The Laws of Scotland, Stair Memorial Encyclopaedia Reissue (1999-continuing) (titles reissued separately; collated in binders) Von Bar, “Damage without Loss” = C von Bar, “Damage without Loss” in W Swadling and G Jones (eds), The Search for Principle, Essays in Honour of Lord Goff of Chieveley (1999) 23 Von Bar, The common European law of torts (vol 2) = C von Bar, The common European law of torts, vol 2 (Damage and Damages, Liability for and without Personal Misconduct, Causality and Defences) (2000) Walker, Delict = D M Walker, The Law of Delict in Scotland (1st edn, 1966) (2nd edn, 1981) White and Fletcher, Delictual Damages = R M White and M J Fletcher, Delictual Damages (2000) Zimmermann, Law of Obligations = R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990, reprinted 1996) Zimmermann, Visser and Reid (eds), Mixed Legal Systems in Comparative Perspective = R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective – Property and Obligations in Scotland and South Africa (2005)



ta b l e ta o fb laeb bof r e cas vi ate iso n s

lix

B.  Other Abbreviations AC Appeal Cases (House of Lords and Privy Council) [UK] AD Appellate Division Reports [South Africa] AHRC Arts and Humanities Research Council AIPJ Australian Intellectual Property Journal All ER All England Reports ALR Australian Law Reports Amer J Comp Law American Journal of Comparative Law APS (record edn) T Thomson and C Innes (eds), Acts of the Parliament of Scotland 1424–1707 (1875) (Record Commission) APS (12mo edn) Laws and Acts of Parliament 1424–1704 (1682–1731) (duodecimo) [Scotland] AQ Advocates Quarterly [Canada] Aust Torts Reports Australian Torts Reports asp Acts of the Scottish Parliament (from 2000) BCCA British Columbia Court of Appeal BCLR Butterworths Constitutional Law Reports [South Africa] BCSC British Columbia Supreme Court Bell Bell’s Reports (Appeals from Scotland to the House of Lords) BGB Bürgerliches Gesetzbuch (German Civil Code) BGH Bundesgerichtshof (Federal Supreme Court) [Germany] BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen (Decisions of the Federal Supreme Court in civil cases) [Germany] BHRC Butterworths Human Rights Reports [Commonwealth] BLLR Butterworths Labour Law Reports [South Africa] BMLR Butterworths Medico–Legal Reports [England and Wales] BOE Boletin Oficial del Estado [Spain] BS Brown’s Supplement (Morison’s Dictionary) Bull.civ Bulletin des Arrets de la Chambre Civile de la Cour de Cassation

lx



r i ght s of p e rs o n al i t y BVerfG Bundesverfassungsgericht (Federal Constitutional Court) [Germany] BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) [Germany]

C CA Case West Res LRev C civ California LR Cambrian LRev Camp Cass civ Cass crim Cciv CC CCQ CC CDPA

Ch CILSA



Cleveland St LR CLJ CLP CLR CLY CMLR CMLRev Co Rep



Cornell L Rev CPR CS CSIH

Codex or Code [Justinian] Court of Appeal (England and Wales) Cour d’Appel [France] Case Western Reserve Law Review Code civil (Civil Code) [France] California Law Review Cambrian Law Review Campbell’s Nisi Prius Cases [England and Wales] Cassation, chambre civile [France] Cassazione, corte civile [Italy] Cassation, chambre criminelle [France] Code civil [France] Codice Civile [Italy] Civil Code of Quebec Constitutional Court of South Africa Copyright, Designs and Patents Act 1988 (UK) Chancery Reports [England and Wales] Comparative and International Law Journal of South Africa Cleveland State Law Review Cambridge Law Journal Current Legal Problems Commonwealth Law Reports [Australia] Current Law Yearbook Common Market Law Reports Common Market Law Review Coke’s King’s Bench Reports [England and Wales] Cornell Law Review Canadian Patent Reporter Quebec Official Reports, Superior Courts Court of Session, Inner House [neutral citation]



ta b l e ta o fb laeb bof r e cas vi ate iso n s

lxi

CSOH Court of Session, Outer House [neutral citation]

D Digest [Justinian] Dunlop (Session Cases, Scotland) Recueil Dalloz [France] DC Dalloz critique [France] DCFR C von Bar, E Clive and H Schulte-Nölke (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR) (Outline edn) (2008) De G J & S De Gex, Jones & Smith’s Chancery Reports [England and Wales] DLR Dominion Law Reports [Canada] DOSL Dictionary of the Older Scottish Tongue Dow Dow’s Reports (Appeals from Scotland to the House of Lords) DS Jur Recueil Dalloz-Sirey; jurisprudence DSL Dictionary of the Scottish Language ECDR European Copyright and Design Reports ECHR European Convention on Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ECJ European Court of Justice ECR European Court Reports Edin LR Edinburgh Law Review EDL Eastern District Local Division, Supreme Court [South Africa] EHRR European Human Rights Reports EIPR European Intellectual Property Review Elchies Lord Elchies (ed W P Morison), Court of Session Cases EMLR Entertainment and Media Law Reports [UK] Enc dir Enciclopedia del diritto [Italy] Ent LR Entertainment Law Review EPC European Patent Convention ER English Reports ERCL European Review of Contract Law ETMR European Trade Mark Reports Eur Rev Pte Law European Review of Private Law

lxii

r i ght s of p e rs o n al i t y

EWCA Court of Appeal of England and Wales [neutral citation] EWHC High Court of England and Wales [neutral citation] Ex D Law Reports, Exchequer Division [England and Wales] F Fraser (Session Cases, Scotland) Federal Reporter [USA] F (2d) Federal Reporter, Second Series [USA] FC Faculty Collection (Session Cases, Scotland) Federal Court of Canada [neutral citation] FCA Federal Court of Australia [neutral citation] FCA Federal Court of Canada: Appeal Division [neutral citation] FCAFC Federal Court of Australia: Full Court [neutral citation] FCR Family Court Reporter [England and Wales] Federal Court Reports [Australia] FLR Family Law Reports [England and Wales] FRD Federal Rules Decisions [USA] Fost Foster’s Crown Cases [England and Wales] FSR Fleet Street Reports Gaz Pal Gazette du Palais [France] Georgetown LJ Georgetown Law Journal GG Grundgesetz (Bonn Constitution) [Germany] GRUR Gewerblicher Rechtsschutz und Urheberrecht (Industrial Property Law and Copyright Law) [Germany] GWD Greens Weekly Digest [Scotland] HR Hooge Raad (Supreme Court of the Netherlands) Hailes Lord Hailes (ed MP Brown), Decisions of the Court of Session Hare Hare’s Chancery Reports [England and Wales]



ta b l e ta o fb laeb bof r e cas vi ate iso n s

lxiii

Harv L Rev Harvard Law Review HKCFA Hong Kong Court of Final Appeal [neutral citation] HKCFI Hong Kong Court of First Instance [neutral citation] HLC Clark & Finnelly’s House of Lords Reports HRA Human Rights Act 1998 (UK) Hume D Hume, Decisions of the Court of Session ICA Italian Copyright Act ICLQ International and Comparative Law Quarterly IH Inner House (of the Court of Session) IIC International Review of Intellectual Property and Competition Law Intl J L & IT International Journal of Law and Information Technology I P & T Intellectual Property and Technology IPQ Intellectual Property Quarterly IRLR Industrial Relations Law Reports [UK]



JCL Journal of Contract Law JCP La Semaine Juridique: Juris Classeur périodique [France] JIPLP Journal of Intellectual Property Law and Practice J LegStud Journal of Legal Studies JLSS Journal of the Law Society of Scotland JO Journal officiel [France] JOL Judgements on line law report service [South Africa] JQ Quebec Judgments (Quicklaw) JR Juridical Review JZ JuristenZeitung [Germany] KB King’s Bench (Law Reports) [England and Wales] KUG Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und Photographie (Artists’ Copyrights Act) [Germany]

lxiv

r i ght s of p e rs o n al i t y

Law & Contemp Law and Contemporary Problems Problems LQR Law Quarterly Review La L Rev Louisiana Law Review M Macpherson (Session Cases, Scotland) McGill LJ McGill Law Journal M&W Meeson & Welby’s Exchequer Reports [England and Wales] Med L International Medical Law International Med LR Medical Law Reports [UK] Med L Rev Medical Law Review Melbourne UnivLR Melbourne University Law Review MLR Modern Law Review Mer Merivale’s Chancery Reports [England and Wales] Mor Morison’s Dictionary [Scotland] Mur Murray’s Jury Court Cases [Scotland] NE (2d) North Eastern Reporter [USA] New York ULRev New York University Law Review NJ Nederlandse Jurisprudentie NJW Neue Juristische Wochenschrift [Germany] NLR Natal Law Reports NY New York Reports NZCA New Zealand Court of Appeal NZLR or NZLRep New Zealand Law Reports OH Outer House (of the Court of Session) OJLS Oxford Journal of Legal Studies OLG Oberlandesgericht (Regional Court of Appeal) [Germany] OPD Orange Free State Provincial Division OR Ontario Reports Osgoode Hall LJ Osgoode Hall Law Journal PCC Press Complaints Commission PETL European Group on Tort Law (ed), Principles of European Tort Law (PETL) Text and Commentary (2005)

QB Queen’s Bench (Law Reports) [England and Wales]



ta b l e ta o fb laeb bof r e cas vi ate iso n s



QCA Quebec Court of Appeal

lxv

R Rettie (Session Cases, Scotland) RD Reale Decreto (Royal Decree) [Italy] Rep LR Reparation Law Reports [Scotland] Rev Trim Droit Civ Revue Trimestrielle de Droit Civil [France] RG Reichsgericht (Imperial Supreme Court) [Germany] RGZ Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the Imperial Supreme Court in civil cases) [Germany] RPC Reports of Patent, Design and Trademark Cases [UK] RRA Recueil en Responsibilité et Assurance [Quebec] S Shaw (Session Cases, Scotland) SA South African Law Reports SACR South African Criminal Law Reports SAJHR South African Journal of Human Rights SALJ South African Law Journal SASR South Australian State Reports SC Session Cases [Scotland] Statutes of Canada SCA Supreme Court of Appeal of South Africa SCC Supreme Court of Canada SC(HL) Session Cases (House of Lords) SC(PC) Session Cases (Privy Council) Sc Jur Scottish Jurist SCLR Scottish Civil Law Reports SCCR Scottish Criminal Case Reports SCR Supreme Court Reports [Canada] SE South Eastern Reporter [USA] Shaw App P Shaw, Appeals to House of Lords from Scotland Sh Ct Reps Sheriff Court Reports [Scotland] S L Rep Scottish Law Reporter (Court of Session, Scotland) S L Rev Scottish Law Review SLT Scots Law Times SME The Laws of Scotland, Stair Memorial Encyclopaedia

lxvi

r i ght s of p e rs o n al i t y

SR(NSW) State Reports (New South Wales) Stellenbosch L Rev Stellenbosch Law Review StGB Strafgesetzbuch (Penal Code) [Germany] TGI Tribunal de Grande Instance [France] TLR Times Law Reports [England and Wales] TMA Trade Marks Act 1994 (UK) Trib civ Tribunal, chambre civile Tul L Rev Tulane Law Review Tul Eur & Civ LF Tulane European and Civil Law Forum TS Transvaal Supreme Court UDRP Uniform Dispute Resolution Procedure UKHL United Kingdom House of Lords [neutral citation] UKPC United Kingdom Privy Council [neutral citation] UNESCO United Nations Educational, Scientific and Cultural Organisation US Reports of Cases in the Supreme Court [USA] VR Victorian Reports VSCA Victoria Supreme Court of Appeal VUWLR Victoria University of Wellington Law Review WIPO World Intellectual Property Organization WLD Witwatersrand (Transvaal) Local Division WLR Weekly Law Reports [England and Wales] Yale LJ Yale Law Journal



i ssue s a nd o p t i o n s

1

chapter 1 rights of personality in scots law: issues and options niall R Whitty and Reinhard Zimmermann

1.1  PRELIMINARY 1.2  THE IMPORTANCE OF RIGHTS OF PERSONALITY 1.2.1 What are rights of personality? 1.2.2 The latecoming of privacy as a legally protected interest 1.2 3 The modern need for rights of privacy 1.2.4 The importance of personality rights in comparative law 1.2.5 The constitutionalisation of private law (a) National constitutions protecting fundamental rights (b) The European Convention on Human Rights (ECHR) (c) Indirect horizontal effect of ECHR 1.3  THE HISTORICAL AND POLITICAL BACKGROUND 1.3.1 The Scottish historical background (Chapter 2) 1.3.2 The United Kingdom political and legislative background 1.4  SOME KEY ISSUES 1.4.1 How to integrate the Convention right of privacy in Scotland’s mixed system of private law? (a) General (b) One possible approach: modernise the actio iniuriarum (Chapter 3) (c) Criticism of the actio iniuriarum approach (Chapter 4) (d) A neutral assessment of the actio iniuriarum approach (Chapter 12) (e) Alternative approaches: breach of privacy as a new category of delictual liability (Chapter 4); principled eclecticism (Chapter 12) 1.4.2 How to protect rights of personality? 1.4.3 Whether to introduce a right of publicity? (a) The dignitary and patrimonial aspects of rights of personality (b) Passing off

1

2

r i ght s of p e rs o n al i t y (c) Waiver, licensing, reification of licensee’s right; right of publicity 1.4.4 Statutory options for developing Scots law: statutory code; statutory provisions; statutory analogies? (Chapter 12)

1.5  SPECIAL SUBJECTS 1.5.1 The protection of personality by intellectual property rights (Chapter 8) 1.5.2 Reform of defamation (Chapter 9) 1.5.3 Personality, privacy and autonomy in medical law (Chapter 10)

1.1  PRELIMINARY On 5 and 6 May 2006 in the Lord Hope Building at the University of Strathclyde, a conference was held of judges, legal academics and practitioners to consider and discuss, in a comparative perspective, important trends and issues affecting the law on rights of personality in Scotland and in other jurisdictions drawn from the families of Common law, Civilian and mixed legal systems. Almost all the eleven following chapters of this book are based on the papers delivered at the conference. Five of the chapters deal with the modern law of personality rights in Scotland,1 one examines its historical development in Scotland 2 and five consider personality rights in other Western legal systems.3 It is hoped that this extended look into the mirror of comparative law will assist in the development of this branch of Scots private law and at the same time will be of interest to lawyers in other legal systems. The primary aim of this book is to consider how best to develop a right of privacy and other rights of personality in Scots private law. Though personality rights – such as rights to bodily integrity, reputation and dignity – have been well established since Roman law, the expression “rights of personality” is relatively modern and has only recently begun to be used in writing on Scots private law.4 The incorporation of the European Convention on Human Rights (ECHR) into United Kingdom domestic law in 2000 has created an urgent need to fill the gaps in the protection of Convention rights left   Chapters 3, 4, 9, 10 and 12.   Chapter 2. 3   Chapter 5 (France, Germany, Italy and European law); Chapter 6 (South Africa); Chapters 7 and 8 (England and Wales), and Chapter 11 (comparative case studies in 12 legal systems). 4  See Section 1.2.1 below. 1 2



i ssue s a nd o p t i o n s

3

by shortcomings in Scots private law. At present the most important and well-known gap is the right to privacy conferred by ECHR, Art 8 but, as we shall see, there are other gaps. There are issues as to whether this gap-filling is best achieved by developing a systematic and comprehensive doctrine of personality rights; or by recognising new delictual causes of action (such as breach of privacy); or by relying on the historic action of real and verbal injury (actio iniuriarum); or by some other approach. At stake is the capacity of Scots law, as an autonomous mixed system of private law, to renew itself in order to be able to respond adequately to the new challenges presented by the 21st century. 1.2  THE IMPORTANCE OF RIGHTS OF PERSONALITY 1.2.1  What are rights of personality? It is commonly said that rights of personality protect the nonpatrimonial or dignitary aspects of the human person – who a person is rather than what a person has. That is the core of personality rights. The concept of rights of personality is primarily a creation of the Civil law and was unknown, or at any rate unarticulated, in Common law systems until very recently.5 As originally conceived, personality rights protect only the personal attributes of individual human beings.6 So, for example, in Chapter 11 it is said that under Argentine law7 “the right to one’s own image and the right to privacy are among those called ‘derechos personalísimos’ – absolutely inalienable rights – together with the rights to honour, to identity, to physical, mental and moral integrity, to freedom, etc”. They are “inherent to a person for the sole fact of being a person; not awarded by human power, not transferable to another [person], and incapable of repudiation, as they are essential and not deemed part of one’s property”. In all regimes of personality rights, however, this conception has had to be modified because certain personal or dignitary interests, such as a person’s name, image or voice, may be capable of commercial exploitation and may therefore acquire a patrimonial (ie economic) aspect. How Scots law should regulate

 See Section 1.4.2 below. For modern judicial use of the concept in Scots law, see, eg, Chapter 3, Section 3.1.1, n 3. 6  A full typology would consist of or include: life; bodily integrity; personal security; physical liberty; reputation; dignity; privacy; identity (image); moral rights to copyright; autonomy in various contexts; family relationships; and rights of deceased’s relatives. See typology in Chapter 3, Sections 3.3 and 3.4. 7   One of 12 legal systems in the “Comparative Personality Research Survey” of the Edinburgh University AHRC Centre examined in that chapter. 5

4

r i ght s of p e rs o n al i t y

the relationship between the dignitary and patrimonial aspects of personality rights is a recurring theme in this volume. 1.2.2  The latecoming of privacy as a legally protected interest In Scotland until the early 18th century, the main general remedy protecting personality rights, namely the action for “injury” (actio iniuriarum), applied to a broad range of cases such as insult, actual or threatened bodily injury, deprivation of liberty and harm to reputation but not to privacy.8 Privacy did not much matter then.9 People lived together very closely – to an extent hardly imaginable today. Individuals scarcely possessed any “private sphere”. When and how privacy came to be highly valued is not clear but the change seems to have begun no later than the 18th century, with the increased sensibilities of the Enlightenment, when the Scottish middle and upper classes aspired to become a “cultivated” and “polished” (and incidentally “North British”) society10 and to attain the higher living standards associated with the urban developments11 emblematic of “the age of improvement”.12 In Scotland these cultural and environmental trends assisted the development of particular delicts (eg nuisance) which may protect privacy incidentally13 but they did not inspire the creation of a doctrine of privacy as such. In the 1840s, responding to the growth of newspapers, periodicals and the like, the Court of Session came within an ace of creating a right of informational privacy protected by the delict of real or verbal injury (iniuria).14 But the moment passed without a decisive break-through. It seems that the right to privacy is one of the last personality rights to be recognised in the history of many legal systems, but its recognition occurred much later in the United Kingdom systems and Commonwealth Common law systems than in other Western legal systems. This is amply attested by the advances in recognising and protecting a right of privacy made by France, Germany and Italy

 See, eg, Figure A in Chapter 2, Section 2.1.2.  See John Blackie in Chapter 2, Section 2.2.5. 10  Eg D Daiches, The Paradox of Scottish Culture: The Eighteenth-Century Experience (1964). 11  See, eg, A J Youngson, The Making of Classical Edinburgh 1750–1840 (1966). 12  A Briggs, The Age of Improvement 1783–1869 (2nd edn, 1999). 13   On the distinctive history of nuisance in Scotland, see Stair Memorial Enyclopaedia Reissue sv “Nuisance” (2001), paras 7–16 (N R Whitty). 14   Newton v Fleming (1846) 8 D 677; 18 Sc Jur 346 (Full Court); reversed sub nom Fleming v Newton (1848) 6 Bell 175; 20 Sc Jur 229. See Chapter 2, Section 2.3.6(b); Chapter 3, Section 3.4.7. 8 9



i ssue s a nd o p t i o n s

5

since the 19th century illuminated by Gert Brüggemeier in Chapter 5;15 by the United States since the 1890s; by South African law since the 1950s, as described by Jonathan Burchell in Chapter 6; and by the database survey of 12 legal systems described in Chapter 11. These advances were unmatched in the United Kingdom until this 21st century. 1.2.3  The modern need for rights of privacy The modern need to affirm and protect a right of privacy is the consequence of deep-seated trends which have been described by Zweigert and Kötz under the heads of media news; advertising; data collection; and surveillance.16 As regards media news, while the modern press, radio and television perform necessary functions of entertainment, and of informing and educating the public so as to allow the formation of public opinion in a manner essential to the proper functioning of a democracy in a free society, yet these functions may conflict with the equally deserving interests of individuals in their privacy. Moreover, modern advertising campaigns or memorabilia merchandising sometimes unjustifiably and without permission use the name and portrait or image of persons, usually celebrities. Again, modern methods of the bulk collection, storage and retrieval of personal data increase the risk that large organisations can compile dossiers containing comprehensive and detailed information on the life of almost every individual. Finally, modern technology has developed devices allowing unprecedented possibilities for intrusion and surveillance. We now live in a “surveillance society” that is to say: “a society which is organised and structured using surveillance-based techniques. To be under surveillance means having information about one’s movements and activities recorded by technologies, on behalf of the organisations and governments that structure our society. This information is then sorted, sifted and categorised, and used as a basis for decisions which affect our life chances. Such decisions concern our entitlement and access to benefits, work, products and services and criminal justice; our health and well-being and our movement through public and private spaces.”17

 See Section 5.2.  See K Zweigert and H Kötz, An Introduction to Comparative Law (3rd edn, 1998), Chap 43 “Invasions of the Right of Personality” 685 at p 687. See R Zimmermann, The Law of Obligations (1990), p 1082. 17   K Ball and D M Wood (eds), Summary Report (2006) relating to A Report for the Information Commissioner by the Surveillance Studies Network on the Surveillance Society (2006). 15 16

6

r i ght s of p e rs o n al i t y

Moreover, as Jonathan Burchell has remarked: “The powers of a ‘Big Brother’ are no longer restricted to governments, political parties or the wealthy but extend to ordinary individuals. Accessible technological advances place greater opportunities for surreptitious surveillance in the hands of ordinary persons who access personal information for their own use . . . ”.18 In short: “Threats to individual privacy are greater now than ever envisaged, even by an Aldous Huxley or George Orwell.”19 We describe below how the United Kingdom Parliament and Government responded to this need. 20 1.2.4  The importance of personality rights in comparative law Some chapters of the book are devoted to comparative law and legal systems outside Scotland, including Chapter 5 on “Protection of Personality Interests in Continental Europe: the Examples of France, Germany and Italy and a European Perspective”; Chapter 6 on “Personality Rights in South Africa: Re-affirming Dignity”; and Chapter 7 on “Personality Rights and English Law”. Finally, Chapter 11 on “A Rights of Personality Database” analyses the results of the Edinburgh University AHRC Research Centre “Comparative Personality Research Survey” in which contributors from 12 jurisdictions (or groups of jurisdictions21) provide answers to the legal questions raised in eight case studies. As these chapters show, rights of privacy in particular and personality rights in general are of great importance in comparative law because of the considerable differences which exist both between and within the Civil law and Common law “families” of legal systems. Civil law legal systems such as France, Germany and Italy, and some “mixed systems”, for example South Africa, have regimes of personality rights.22 English law and other Common law countries do not.23 Within the Civil law tradition, there are differences between the major systems: for example, French law gives one a stronger right to control the publication of one’s image than does German law.24   J Burchell, “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” [2009] Electronic Journal of Comparative Law: http://www.ecjl.org. 19   Ibid. 20  Section 1.3.2. 21  The Australian states and Canadian provinces have their own separate legal systems. In Spain the states have varying degrees of autonomy; Catalonia, for example, has its own Civil Code. 22  See, eg, Chapters 5, 6 and 11. 23  See, eg, Chapters 7 and 11. 24  See Princess Caroline von Hannover v Germany (2005) 40 EHRR 1 at paras 44 and 46; G Brüggemeier, Chapter 5, Section 5.3.3; C Waelde and N R Whitty, Chapter 11, Section 11.7.2(a) (Germany: Olaf Weber). 18



i ssue s a nd o p t i o n s

7

Then there are differences between the libertarian approach to privacy in the USA and the dignitarian approach to privacy in continental Europe. 25 US law has had four “privacy torts” since the early 20th century26 whereas English law had none till ECHR, Art  8 in effect forced the English courts in 200427 to create a wrong of misuse of private information. Personality rights are also of some importance for the movement towards the harmonisation of European private law whose supporters wish to draw together the principles and rules of the Common law and Civil law within Europe in order to create a new European ius commune. 28 The development of a genuinely European legal scholarship will require the establishment of an intellectual connection between the Civil law and Common law traditions. European legal scholars may well be interested to see that such a connection has already been forged in a number of “mixed systems” on a practical as well as an intellectual plane. 29 So, for instance, in the domain of privacy and personality rights, a connection has been made with great success in the mixed legal system of South Africa30 but not, or not yet, in Scotland’s mixed system which in this respect is backward and increasingly isolated. A principal aim of this book is to find the reasons for this backwardness and the best way of remedying it. 1.2.5  The constitutionalisation of private law (a)  National constitutions protecting fundamental rights Personality rights have long had a constitutional dimension, since it has always been possible for attacks on an individual’s life, limb or liberty, and in modern times on his or her privacy, to be made by the State. So, for example, the pre-1707 Scottish Parliament enacted the Act anent Wrongous Imprisonment 1701 which introduced a remedy designed to be the Scottish equivalent of the famous English writ 25   J Q Whitman, “The Two Cultures of Privacy: Dignity versus Liberty” (2004) 113 Yale LJ 1151. 26  Intrusion upon seclusion; public disclosure of private facts; false light publicity; and misappropriation of indicia of identity: defined by W L Prosser, “Privacy” (1960) 48 California LRev 383 at p 389; see also Restatement, Second, Torts, §§625A–625E. 27   Campbell v MGN Ltd [2004] UKHL 22. 28  See J Smits, The Making of European Private Law: towards a Ius Commune Europaeum as a mixed Legal system (2002); J Smits (ed), The Contribution of Mixed Systems to European Private Law (2001). 29  R Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2000), pp 126–127. 30  See Chapter 6.

8

r i ght s of p e rs o n al i t y

of habeas corpus.31 In many legal systems, since at least the 1950s, the law on privacy and other personality rights has been strongly influenced by a trend towards the constitutionalisation of private law. In Chapter 5, Gert Brüggemeier describes that trend as it operated in France after 1970 and how the private laws on personality rights in Germany and Italy have been influenced by their post-totalitarian national constitutions.32 Chapter 11 analyses the impact of national constitutional guarantees protecting fundamental rights not only in Germany and Italy but also in other restored democracies such as post-dictatorship Argentina, post-Franco Spain and post-apartheid South Africa as well as in the long-established democracies of the Netherlands and Quebec. Some lawyers regard it as paradoxical that the United Kingdom and Common-law Commonwealth countries that helped to free Europe from Nazi and Fascist tyranny should lag behind continental Civil law systems in protecting dignitary attributes of personality such as image and privacy.33 Part of the answer seems to lie in the wide interpretation given to the countervailing constitutional principle of freedom of expression and the vital role played by investigative journalism and a free press in a democratic society. (b)  The European Convention on Human Rights (ECHR) Chapters 5 and 11 also show that for several decades the European Convention on Human Rights (ECHR) has been infusing new life into personality rights throughout the many (now 47) signatorystates of the Council of Europe. Article 8(1) provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.” In 1970, France inserted a new Art 9 in its Code civil, based on ECHR, Art 8(1). 34 Since the incorporation of the ECHR into the United Kingdom legal systems in 2000, Art 8 has in effect induced the English courts to create a new tort (or possibly equitable wrong) of breach of informational privacy. The implications are described by Hazel Carty in Chapter 7. As Elspeth Reid states in Chapter 4, ECHR, Art 8, as construed by the European Court of Human Rights (ECtHR), has introduced “a new imperative” into private law. In Scotland the ECHR has raised the question of how our mixed system of private law should accommodate breach of privacy and structure the private law on  See Chapter 2, Sections 2.2.3 and 2.3.3 on “Liberty of the person”.  Section 5.2.2(d) (Federal Republic of Germany; Basic Law 1949); Section 5.2.3(d) (Italy: Constitution of 1948). 33  See, eg, C van Dam, European Tort Law (2006), p 150, quoted in Chapter 11, n 282 below. 34  See Gert Brüggemeier in Chapter 5, Section 5.2.1(c) and (d). 31

32



i ssue s a nd o p t i o n s

9

rights of personality. These key issues are summarised in Section 1.4 below and considered in more detail in Chapters 3, 4, 10 and 12. (c)  Indirect horizontal effect of ECHR Direct application of ECHR, Art 8, to a private law dispute between individuals is not competent (ie legally possible); the ECHR is addressed to states, not individuals. So the application of the ECHR to private law disputes between individuals is by way of indirect horizontal effect. A person objecting to (say) a tabloid newspaper’s unauthorised disclosure of private and personal facts in breach of privacy cannot simply allege an infringement of Art 8. Since the newspaper is not a “public authority”, it is not “directly” bound by Art 8. So, before the person’s case can get into court at all, and before Art 8 can be relied on for a private law remedy, the case must be founded on some other cause of action than that article. 35 It follows that, within the United Kingdom, the ECHR impacts on three different systems of private law, namely English law, Northern Irish law and the “mixed” system of Scots law, each of which can in theory respond in its own way reflecting differences in the relevant causes of action. There may be strong indirect horizontal effect; or weak indirect horizontal effect. Under the former the courts must act compatibly with Convention rights, while under the latter the courts need only “have regard to” or “take into account” those rights. Strong indirect horizontal effect imposes a duty, and weak indirect horizontal effect confers a power, on the courts. 36 The English courts once favoured weak indirect horizontal effect but now seem fully to have accepted a duty to act compatibly with Convention rights and (as mentioned above) in order to comply with Art 8 have even created a new tort (or possibly equitable wrong) of misuse of private information for that purpose. They have held that “in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of Arts 8 and 10” which “are the very content of the domestic tort that the English court has to enforce”.37

 H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006), pp 129 and 130. 36  A L Young, “Horizontality and the Human Rights Act 1998” in K S Ziegler (ed), Human Rights and Private Law, Privacy as Autonomy (2007) 35 teases out as many as seven models of indirect horizontality by identifying detailed variations on the strong and weak models described here in our text. 37   McKennitt v Ash [2006] EWCA Civ 1714; [2007] 3 WLR 194 at para 123 per Buxton LJ. 35

10

r i ght s of p e rs o n al i t y

1.3  THE HISTORICAL AND POLITICAL BACKGROUND 1.3.1  The Scottish historical background (Chapter 2) In order to make a properly informed choice on the development of the law on privacy and other personality rights, it is necessary, in John Blackie’s words, to look backwards (to doctrinal history) as well as sideways (to comparative law) and forward (to law reform proposals).38 The law of what we now call personality rights in Scotland is the rather unsatisfactory product of a long and chequered history. The doctrinal history from the 16th century to the mid-19th century is explored in rich detail by John Blackie in Chapter 2. That chapter not only helps to explain the historical background to modern legal doctrine but, as befits a true work of history, seeks to understand the legal mind in the period studied and to examine doctrines which fell by the wayside (such as the crimen privati carceris) as well as those which survived into the modern law.39 There is space here to point to only a few of Blackie’s findings and that only so far as they throw light on the modern law. First, the concept of personality rights is relatively modern but in Roman law and the ius commune, many of these rights were subsumed within the broad heads of corpus, fama and dignitas (body, reputation and dignity) and protected by the delict of iniuria which became in Scots law the crime and delict of “injury” in a special sense of that term. As Blackie explains, this delict was divisible into second-level sub-categories by reference to the means used to inflict the delict, that is to say, “real injury” (iniuria realis) for injury caused by an act (re) and “verbal injury” (iniuria verbalis) for injury caused by words (verbis).40 Blackie’s research reveals that, within the taxonomy of the delict of “injury”, the second-level category of “real injury” was in practice routinely divided into particular third-level sub-categories such as mutilation or demembration,41 whereas “verbal injury” did not have any sub-categories at all (at least until the rise of defamation as a separate delict in the 19th century). It was therefore a fortuitous circumstance that on the one hand “verbal injury” had no subcategories and so was frequently used whereas on the other hand

38   J W G Blackie and N R Whitty, “Scots Law and the New Ius Commune” in H L MacQueen (ed), Scots Law into the 21st Century (1996) 65 at p 67. 39  It should be read along with the author’s highly acclaimed history of the Scots law of defamation: J Blackie, “Defamation” in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000), vol 2, 633. The result is a very significant step forward in our historical knowledge. 40   Justinian, Institutes IV,4,1; D.47,10,2; see Chapter 2, n 455. 41  The contrast is shown graphically in Chapter 2 for 1700 in Figure A at Section 2.1.2 and for 1850 in Figure B at Section 2.3.2.



i ssue s a nd o p t i o n s

11

“real injury” had many high-profile sub-categories and so was not itself frequently used. It is this accident of legal history, rather than any rational argument, which explains why there is no doubt that the high-profile concept of verbal injury has survived into modern Scots law whereas (at least on the surface) there is doubt whether the low-profile concept of real injury has survived. Second, the complex history wherein the term “verbal injury” operated both as a second-level category and a third-level category within the taxonomy of the delict of “injury” also goes far to explain the confusion in the usage of the term “verbal injury” in the modern law.42 Nevertheless Blackie shows that the Institutional writers and others affirmed the existence of injury as a unitary field of delictual liability. Third, as Blackie points out, until the early 19th century the distinction between real and verbal injury was accentuated by the divide between the Justiciary Court’s hybrid criminal and civil jurisdiction in real injury and the Commissary Courts’ special jurisdiction in verbal injury. The domain of real injury was “invaded” in the early 18th century by wrongous imprisonment (infringing the right of physical liberty) and again in the early 19th century by assault (infringing the right of bodily integrity), both of which could be regarded as new delicts. At the same two points in time, the “real injuries” of wrongous imprisonment and assault moved into the jurisdiction of the ordinary civil courts of law (the Court of Session and the sheriff court) and the old criminal law categories tended to be forgotten. This left an empty space filled by the new law governing these two delicts. The result was uncertainty among modern lawyers as to the relationship between the new delicts and the Civilian law on real and verbal injury. We revert to this below. Blackie shows beyond any doubt that the Scots law on real and verbal injuries in the 17th and 18th centuries was thoroughly imbued by principles, rules and concepts derived from the ius commune. In the law governing personality rights, as in many other branches of Scots private law, a seismic change occurred in legal doctrine beginning in the late 18th century and reaching a tipping point in the early or mid 19th century. The intellectual hinterland provided by the ius commune up to the late 18th century declined and in a somewhat untidy transition was replaced in the 19th century by a new intellectual hinterland consisting of the English law of torts and equitable wrongs. From this new English source, legal transplants were made not only of particular rules but also of the approach to the development of the architecture of the law of delict  The variety of meanings ascribed to “verbal injury” is analysed in Chapter 3, Sections 3.2.2–3.2.5. 42

12

r i ght s of p e rs o n al i t y

so far as it protects personality rights. Chapters 3 and 4 reveal a difference of opinion as to the implications of these changes for the modern law. 1.3.2  The United Kingdom political and legislative background In the late 20th century, the widespread concern within the United Kingdom over media intrusion into privacy led to the introduction in the Westminster Parliament of at least five private members’ Bills on privacy between 1961 and 1989,43 all of which were abortive. Several United Kingdom advisory bodies and government departments considered the introduction of rights of privacy by statute44 but no specific legislation safeguarding privacy resulted. As mentioned above,45 the matter was resolved by the Human Rights Act 1998 (HRA) which, as from 2 October 2000, incorporated Art 8 (protection of privacy) and other specified articles of the European Convention on Human Rights into the three United Kingdom legal systems.46 The substantive effect of ECHR is in part governed by HRA, s 6(1) which provides “[that i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”. For this purpose “public authority” is defined by s 6(3) to include “a court or tribunal”. This gives, or purports to give, effect to a policy embodied in ministerial statements during the passage of the Bill. So, for instance, in the House of Lords Second Reading Debate, the Lord Chancellor said: “We decided first of all that a provision of this kind [making it unlawful to contravene a Convention right] should apply only to public authorities . . . and not to private individuals. . . . The Convention had its origin in a desire to protect people from the misuse of power by the state, rather than from the actions of private individuals.”47 43  Viz Bills introduced by Lord Mancroft (1961); Mr Alexander Lyon, MP (1967); Mr Brian Walden, MP (1969); Mr William Cash, MP (1987); and Lord Stoddart (1989). For commentary from a Scottish standpoint, see Anon, “The Invasion of Privacy” (1961) 77 S L Rev 61. 44 See Report of the Departmental Committee on Privacy (Cmnd 5012, 1972) (chairman: Rt Hon Kenneth Younger); Report of the Departmental Committee on Privacy and Related Matters (Cm 1102, 1990) (chair: Mr David Calcutt, QC); Report of the Committee on the Review of Press Self-Regulation (Cm 2135, 1993) (chair Sir David Calcutt, QC); National Heritage Select Committee Fourth Report on Privacy and Media Intrusion (1993); Lord Chancellor’s Department and Scottish Office, Infringement of Privacy; Consultation Paper (1993). 45  Section 1.2.4. 46  As mentioned above, England and Wales; Scotland; and Northern Ireland each have distinct legal systems. 47   Hansard, HL, vol 582, col 1232 (3 November 1997) (Lord Irvine LC).



i ssue s a nd o p t i o n s

13

In similar vein, in the House of Commons the Home Secretary said: “When we were drawing up the Bill, we noted that the convention had its origins in a desire to protect the individual against the abuse of power by the state, rather than to protect one individual against the actions of another. The history of the establishment of the Council of Europe and the great desire at the end of the war that states in Europe should never again be able to oppress their citizens as Nazi Germany and the axis powers had done, explain why the convention places on the state responsibilities in respect of its treatment of residents and citizens.  We decided that Convention rights should be available in proceedings involving what might very broadly described as ‘the state’, but that they would not be directly justiciable in actions between private individuals”.48

The Act does not mention private law at all. While Ministers gave the impression that the ECHR only applied to protect the individual from the State (the “vertical effect”), in its practical operation the ECHR has been frequently applied in litigation between individuals (the “horizontal effect”), for example in actions by celebrities against the tabloid press and their paparazzi for damages for breach of privacy. This surprising consequence and the then Government’s apparent lack of candour have fuelled the indignation of the media against ECHR and lend credence to their complaint that the provisions of ECHR, Art 8 lack democratic legitimacy. In 2003, a House of Commons Select Committee (which no longer had responsibility for the Scots law of privacy after devolution)49 recommended legislation to clarify the protection that individuals can expect from unwarranted intrusion by the press and others into their private lives.50 The question was whether privacy law should be developed by case law or legislation. The UK Government rejected legislation on the ground that “a free press is best served by unfettered self-regulation”, a proposition which overlooks the fact that ECHR, Art 8 requires the creation of a privacy law. As Hector   Hansard HC, vol 314, col 406 (17 June 1998) (Rt Hon Mr Jack Straw, MP).  Under the Scotland Act 1998, Sch 5, legislative competence over data protection and broadcasting was reserved to Westminster but the private law on privacy and other rights of personality was devolved. 50   For a useful discussion of the evidence given to the Committee, see J Rozenberg, Privacy and the Press (2004), pp 248–251. The Press Complaints Commission (PCC) and some commentators (eg A J Bonnington, “Privacy: letting the right alone” 1992 SLT (News) 289) argued that a privacy law would be a law for the rich and could make the press withdraw co-operation with the PCC, thus depriving ordinary people of their only avenue for redress. 48 49

14

r i ght s of p e rs o n al i t y

MacQueen remarks in Chapter 12,51 it seems unlikely that the Scottish Government and Scottish Parliament would react differently. At present, protection against invasion of privacy by public disclosure of private facts is made by case law. This has been criticised as “a creeping, backdoor privacy law” and most recently has been bitterly attacked as undemocratic by Paul Dacre, editor-in-chief of the Daily Mail,52 in the wake of the Mosley case;53 Mr Dacre accused the judge in that case of making “arrogant and amoral” decisions. In 2008 another House of Commons Select Committee began a new investigation into “Press standards, privacy and libel”.54 1.4  SOME KEY ISSUES 1.4.1  How to integrate the Convention right of privacy in  Scotland’s mixed system of private law? (a)  General A major issue addressed in this book is to find the best way in which Scots private law may protect a person’s privacy in a manner which is compatible with ECHR, Art 8. In the domain of public disclosure (usually in the media) of private information (usually about celebrities) the English courts initially responded by extending existing wrongs55 so as to accommodate invasions of privacy56 but since 2004 they have, by stages, come to recognise the existence of a new tort (or possibly equitable wrong) of misuse of private information.57 In Scotland, where the cases are few and inconclusive, it is not yet clear

 See Section 12.2.  Speech to the Society of Editors’ annual conference in November 2008; see The Scotsman, 10 November 2008. 53   Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (£60,000 damages to claimant for public disclosure of sado-masochistic sexual activities with consenting prostitutes on private property) in which Eady J (at para 7) observed: “the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem. It is not simply a matter of ‘unaccountable’ judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts”. 54   On 18 November 2008 the House of Commons Select Committee on Culture, Media and Sport invited written evidence concerning inter alia the media’s response to the case of the kidnapped child, Madeleine McCann, and their defamation of her parents. 55  Viz torts such as passing off or equitable wrongs such as breach of confidence. 56  See especially the analysis of the English law by Hazel Carty in Chapter 7. 57  See, eg, Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) at para 181, discussed in Chapters 3, 4, 7, 11 and 12. 51

52



i ssue s a nd o p t i o n s

15

which course the courts will adopt.58 So this book seeks to identify and explore the main options.59 Since ECHR, Art 8 does not by itself introduce a new cause of action into Scots private law, the next question is: what cause of action would or does give effect to that article? In general, Art 8 must be given effect either through the adaptation of an existing common law cause of action or through the creation (at common law or by statute) of a new cause of action for that purpose. On that basis the following options are discussed in this book, namely to modernise the actio iniuriarum; or to acknowledge breach of privacy as a new category of delictual liability in Scots law; or an eclectic approach combining elements of these and other options. (b)  One possible approach: modernise the actio iniuriarum     (Chapter 3) One possible option is to affirm and develop the actio iniuriarum, or to be more precise the delict of real or verbal injury, as a source of causes of action for infringement of all rights of personality, including the right to informational privacy, which are not already protected by existing delicts. These causes of action would then operate as a vehicle for all provisions of ECHR which affect rights of personality, including Art 8. This option is supported by Chapters 3 and 6. In Chapter 3, one of us (N R Whitty) argues that at all periods of legal history – including modern Scots law – the delict of real or verbal injury (iniuria) has existed for the protection of rights of personality. In Roman law and the ius commune the rights of personality consisted of rights to bodily integrity, reputation and dignity (corpus, fama, dignitas). These rights are primary and inalienable. Infringement of a personality right, or a wrong to personality, constituted the delict of real or verbal injury. In modern Scots law, rights of personality have evidently become more complex than the Roman triad, need more precise individuation and urgently require a modern re-statement. Sections 3.3 and 3.4 set out for consideration a provisional typology of such rights based mainly on Scottish cases but structured expressly on the model of the modern South African delict of iniuria (which covers infringements of rights to personality); this is also recommended as a model for Scots law by Jonathan Burchell in Chapter 6 and in other writings which complement it.60 Chapter 3 argues that the Scottish delict of real  See Chapter 4, Section 4 1.4; Chapter 12, Section 12.5.  As summarised in this section below and considered in subsequent chapters. 60   J Burchell, “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” [2009] Electronic Journal of Comparative Law http://www.ecjl.org; J Burchell and K McK Norrie, “Impairment of Reputation, Dignity and Privacy” 58

59

16

r i ght s of p e rs o n al i t y

or verbal injury has an explanatory role as a category over-arching existing causes of action and, equally importantly, a creative residual role as the source of new causes of action protecting personality rights. Avowedly in the hope of finding new territory – and possibly common ground between South Africa and Scotland – Jonathan Burchell in Chapter 6 expressly shuns “the relatively well-trodden paths of defamation and privacy” and concentrates on the potential growth of the modern South African actio iniuriarum in providing a comprehensive remedy for the impairment of dignity in such modern contexts as rights to housing; social security; family life; administrative justice and due process; and protection of vulnerable refugees and deportees. Chapter 6 thereby tacitly refutes the shallow taunt that the re-vitalised actio iniuriarum belongs in a glass case or a Civilian theme park. Chapter 6 is primarily concerned de lege ferenda with future development in South Africa beyond privacy rights. Scots law, however, is trying to catch up on a legal path of development of privacy which, though well trodden in South Africa, is not at all well trodden in Scotland. Even more pertinent to Scotland’s current position therefore may be Burchell’s complementary articles contending that the South African hybrid law of privacy is suitable for transplanting to Scots law.61 Given the South African experience, Burchell is well entitled to observe: “What may appear in the United Kingdom to be a step into the unknown is actually not.”62 (c)  Criticism of the actio iniuriarum approach (Chapter 4) In Chapter 4 Elspeth Reid takes the view that the South African actio iniuriarum is most unlikely to form a good guide to the formation of the structure of personality rights in Scots law, though it may provide examples of their content. First, she points to important differences between the South African Bill of Rights and the ECHR. Second, it is the existence of a rich and dynamic modern South African case law rooted in the Roman–Dutch tradition that has enabled South African law to use the actio iniuriarum as the primary medium for the protection of personality rights. This is not replicated in Scots law which (she argues) is unlikely to appropriate it. Without that jurisprudence she finds it “difficult to see how in in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) 545. 61  See previous note and Chapter 6 below; see also J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005). 62  See “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” (n 60 above), last sentence.



i ssue s a nd o p t i o n s

17

Scotland the actio iniuriarum could now be revived and reformed so as to apply not only to the traditional concerns on which the Roman law concentrated in terms of corpus, fama and dignitas, but also, for example, to the potential intrusions into privacy made by modern technology in collecting and disseminating information and images”. Third, the actio iniuriarum as received in Scots law required malice in the sense of intention to injure or deliberate affront. In Ms Reid’s view, however, liability under ECHR, Art 8 cannot be restricted to malicious infringement in that sense:63 She remarks: “a spectrum of relevant degrees of fault must be recognised, ranging from malicious to negligent infringement and encompassing those situations where in the pursuit of other interests the defender has wilfully disregarded the pursuer’s privacy . . . This complex balancing process – between level of fault, injuriousness of the intrusion and the persuasiveness of the countervailing interests served by the defender – requires the kind of ‘intense focus’ on the circumstances as is now found in the ‘new methodology’ of English and European jurisprudence”.64

(d)  A neutral assessment of the actio iniuriarum approach     (Chapter 12) The cautious approach of Hector MacQueen in Chapter 12 towards the actio iniuriarum as a model for the Scots law of privacy lies somewhere in the middle between the favourable argument of Whitty in Chapter 3 and the critical assessment of Elspeth Reid in Chapter 4.65 MacQueen finds it significant that, since the passage of the HRA, at least three Scots privacy cases have referred to the actio iniuriarum:66 two concerned with issues that could not be reached by breach of confidence, namely stalking67 and surveillance,68 and the third a case where uncertain rules about third party havers69 raised doubts about the applicability of breach of confidence.70   Citing Peck v UK (2003) 36 EHRR 41.  See Chapter 4, Section 4.5.4(c) [footnote omitted]. 65   Chapter 12, Sections 12.5.1 and 12.5.2. 66  See further H L MacQueen, “Searching for privacy in a mixed jurisdiction” (2006) 21 Tulane European & Civil Law Forum 73 at pp 88–94. 67   Ward v Scotrail Railways Ltd 1999 SC 255 (OH). 68   Martin v McGuiness 2003 SLT 1424 (OH). 69  The noun “haver” (cognate verb “to have”) is a legal term of art for a “person having documents in his possession which he is required to produce as evidence in a litigation. Pronounced ‘havver’”: A G M Duncan, Green’s Glossary of Scottish Legal Terms (3rd edn, 1992) sv “haver”. 70   Hardey v Russel & Aitken, 9 January 2003 (OH). 63

64

18

r i ght s of p e rs o n al i t y

Another case involving strip searches71 is explicable on the basis of the principles underlying the actio iniuriarum. While the Scottish judicial reaction to the actio iniuriarum in privacy-type cases has been tentative, in no case has the argument about the actio iniuriarum been comprehensively rejected, and the actual outcomes of the cases are consistent with the application of the action beyond verbal injury or insult. In MacQueen’s view the decision in Stevens v Yorkhill NHS Trust,72 that the actio iniuriarum forms the juridical basis of a relative’s claim for solatium for the unauthorised removal and retention of organs from a dead human body,73 will undoubtedly strengthen the arguments for also using the actio as a means of protection against intrusions upon individual privacy. The great attraction of a generalised actio iniuriarum is that it can tackle invasions other than the publication of private information, such as humiliating strip searches and interference with correspondence as well as stalking and surveillance. In his balanced assessment, however, MacQueen remarks that “the cases on the actio iniuriarum in Scotland, whether before or since the [Human Rights Act 1998], cannot yet be said to form a very solid platform of either principle or precedent for further development of the common law of Scotland relating to the protection of privacy”.74 (e)  Alternative approaches; breach of privacy as a new category of    delictual liability (Chapter 4); principled eclecticism (Chapter 12) If, as Elspeth Reid argues in Chapter 4, the actio iniuriarum were to be rejected, what should be the vehicle for protecting privacy and other rights of personality?75 Like most commentators, she also rejects the former English strictly incremental approach of extending existing torts or equitable wrongs to meet new situations. She argues that instead the Scottish courts should acknowledge expressly that privacy is a protected interest in the Scots law of delict. In her view, acknowledgement of breach of privacy as a category of delictual liability would provide “a solid basis for constructing a taxonomy of privacy interests, directly informed by jurisprudence in other jurisdictions bound by the ECHR”. It would also assist us “to articulate clearly how other considerations should be weighed against privacy – issues of legitimate public interest and, perhaps most notably, freedom of expression as enshrined in

  Henderson v Chief Constable of Fife 1988 SLT 361 (OH).   2006 SLT 889 (OH). 73   Ibid, para 62. 74   Chapter 12, Section 12.6.1, first sentence. 75   Chapter 4, especially Section 4.5.4(c). 71

72



i ssue s a nd o p t i o n s

19

Art 10 ECHR”.76 Ms Reid finds authority for this approach in the general nature of the Scots law of delict. While “in Scotland, as in England, protection for personality interests in the modern law has been achieved largely through the medium of discrete categories of delictual/tortious liability”, nevertheless “the historical constraints of the forms of action clearly have no relevance”. She argues that “[i]n keeping with its Civilian roots, the Scots law of delict has always been rights-based, and specific categories of delictual liability are underpinned by general principle”; and that “the list of protected rights may exceptionally be capable of further development if there are cogent reasons why a particular category should be recognised”.77 Accordingly, “there is little historical basis in Scots law for the kind of structural difficulties which have restricted English law to protection of informational privacy only. If it is accepted that other aspects of the right to private life are worthy of protection in terms of ECHR, Art 8 and that the common law must develop so as to achieve this, the inherent flexibility of the Scots law of delict allows a remedy to be found”.78 In Chapter 12, writing in the inclusive tradition of principled eclecticism which is sometimes reckoned to be a hallmark of a mixed system, Hector MacQueen argues: “that the Scottish courts can fashion from available material a structure of principle and remedy by which the Convention right to privacy may be protected in a modern and not excessively restrictive way. The developing English case law extending breach of confidence can be brought into play alongside the actio iniuriarum so long as the underlying principles rather than the local and historic details of each are brought into the foreground of thinking, along with an awareness of the direction of contemporary legal policy apparent from both the jurisprudence of the European Court of Human Rights and the lawmaking activities (as distinct from the rhetoric) of government and legislature”.79

1.4.2  How to protect rights of personality? While the absence of a private law right of privacy is now generally acknowledged as a serious gap, it is less widely appreciated that there are other gaps of a not dissimilar kind. In the modern European Civil law tradition, for example, the right to privacy is but one of a number of non-patrimonial rights or interests which are collectively known   Chapter 4, Section 4.5.4(c) (footnote omitted).   Ibid. 78   Ibid. 79   Chapter 12, Section 12.7.5. 76

77

20

r i ght s of p e rs o n al i t y

as rights of personality. So linked to the issue of accommodating privacy within the Scots law of delict is the wider issue of whether Scots law should develop a doctrine of rights of personality of which the right to privacy would form part. The doctrine of personality rights – developed mainly by German authors in the late 19th century80 – has proved to be an immensely successful idea. The historical background is described by Gert Brüggemeier in Chapter 5. As the Edinburgh University Comparative Personality Rights Survey (described in Chapter 11) shows, the doctrine has been received in most Civil law countries and in Commonwealth mixed systems (such as Quebec and South Africa).81 Even English judges are beginning to use the language of rights of personality in appropriate cases.82 At least two of the Scots lawyers contributing to this volume agree that development of a doctrine of personality rights is desirable and feasible. Chapter 3 sets out a detailed typology of rights of personality designed to fit Scots law, which is largely based on the systematic and detailed typology framed by the South African comparative lawyer, Johan Neethling.83 Chapter 4 by Elspeth Reid assesses the extent to which Convention rights, in so far as they address rights of personality, already find protection in the Scots common law, and considers from a comparative perspective the means by which any gaps in that protection might be made good. She emphasises the need to look to Europe in developing rights of personality. In Chapter 12, Hector MacQueen remarks that the great attraction of a generalised actio iniuriarum is that it can tackle not only the publication of private information but other invasions as well.84 On the other hand, in his view: “it does not seem yet to be necessary – if indeed it is possible for courts – to locate the protection of privacy within a still broader concept of   For a short account in English of the work of these authors (Gareis; Kohler; and von Gierke), see J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005), pp 6–10. See also Zimmermann, Law of Obligations, p 1083, n 256. 81  See Brüggemeier in Chapter 5 on France, Germany and Italy; Burchell in Chapter 6 on South Africa; Waelde and Whitty in Chapter 11 on Argentina, France, Germany, Italy, Netherlands; Spain; Quebec and South Africa. 82  See, eg, R v Broadcasting Standards Commission, ex p BBC [2001] QB 885 at 900G, para 48 per Lord Mustill: “An infringement of privacy is an affront to the personality . . .”; Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 (HL(E)); see also medical cases cited in n 92 below. 83  See J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005). 84  Section 12.5, last sentence. 80



i ssue s a nd o p t i o n s

21

personality rights. Juristic and comparative reflection upon the obvious relationships between a privacy law and such other topics as defamation and liability for the distress caused by the post mortem removal and retention of organs from human bodies may, however, eventually take us down that attractive if still somewhat uncertain path”.85

The case for a systematic doctrine of personality rights is illustrated by situations where, in the absence of such a doctrine, the Scottish courts have had to rely on the historic actio iniuriarum; or otherwise have been unable to articulate a doctrinal explanation for decisions which Civilian legal systems would explain by reference to a doctrine of personality rights. Some of these clearly relate to invasions of privacy.86 Others are perhaps on the margin of privacy but are best regarded as invasions of some other personality right such as the right to dignity87 or the right to personal security.88 Other invasions of personality clearly fall outside privacy, such as claims by relatives in respect of unauthorised operations on dead bodies89 or unauthorised retention of organs at post mortem;90 or a doctor’s infringement of his patient’s right to receive full disclosure of medical risks (a breach of the patient’s autonomy);91 or the award in an action for wrongful pregnancy of a conventional sum as solatium for the wrongful affront to the parent’s autonomy.92 Cases such as these are discussed in Chapters 3, 4, 10, 11 and 12. The power of the doctrine of rights of personality to explain existing Scottish case law is of considerable significance. Moreover, the doctrine would enable Scots private law to identify what other interests of personality require legal protection and help to counteract the balkanisation of the subject by the haphazard enactment of specific statutes.93   Chapter 12, Section 12.7.5.  Eg unwarranted disclosure of medical records to strangers: Hardey v Russel and Aitken, 9 January 2003, unreported (OH); or the defender’s surveillance of the pursuer: Martin v McGuiness 2003 SLT 1424; 2003 SCLR 548 (OH). 87 Eg strip searches by police: Henderson v Chief Constable, Fife Police 1988 SLT 361; 1988 SCLR 77 (OH). 88  Eg molestation or harassment: Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 258G (harassment of an employee by another employee). 89   Pollok v Workman (1900) 2 F 354; Conway v Dalziel (1901) 3 F 918; Hughes v Robertson 1913 SC 394. 90   Conway v Dalziel (1901) 3 F 918; Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH). 91   Goorkani v Tayside Health Board 1991 SLT 94; [1991] 3 Med LR 33 (OH). 92   McFarlane v Tayside Health Board 2000 SC (HL) 1 at 44, 45 per Lord Millett; cf Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] AC 309 (HL), at paras 8 (Lord Bingham); 17–19 (Lord Nicholls); and 123–125 (Lord Millett). 93  Eg Protection from Harassment Act 1997, s 8. 85

86

22

r i ght s of p e rs o n al i t y

A pluralistic law of rights of personality (which is the South African model)94 consists of generalised rights on the Civil law pattern which, at the operational level, are protected by specific delicts or causes of action, with some rules of their own, akin to the Common law torts. However a specific delict (such as malicious prosecution; or abuse of civil process) may protect a right to personality (eg reputation) and at the same time some other important private or public interest (eg the integrity of criminal or civil proceedings). It does not follow, however, that it is the specific delicts which alone are important or that the underlying generalised personality rights are otiose. So, for instance, it is the fact that the primary right invaded is an extra-patrimonial right of personality which explains why an award of solatium (moral damages) is or ought to be competent. Moreover, the primary rights of personality are in principle imprescriptible, actively intransmissible and unattachable though secondary rights to claim damages for an infringement of the primary right are extinguishable by negative prescription, transmissible and attachable. Furthermore, where a right of personality is not completely protected by specific delicts, it ought in principle to be possible for the injured party to found directly on an infringement of a personality right. Filling gaps between specific delicts in this way is especially useful where the personality right infringed is also a Convention right under the ECHR.95 Finally, recognising a primary right of personality (such as privacy) to which diverse remedial or obligational consequences can be tied, enables the legal system to provide remedies other than compensatory damages, such as an obligation to reverse unjustified enrichment in order to strip intrusive magazines and tabloid newspapers of their ill-gotten gains.96

1.4.3  Whether to introduce a right of publicity? (a)  The dignitary and patrimonial aspects of rights of personality As originally conceived, personality rights in the Civil law tradition protect only the personal attributes of individual human beings, that is to say, who they are rather than what they have. This understanding emerges from the Civil law and mixed system national reports in the Edinburgh University Comparative

 That is a regime acknowledging several specific rights of personality as distinct from the monistic model of a single, general right of personality as in German law. 95  See Chapter 3, Section 3.3. 96  See Chapter 3, Section 3.7.7 (disgorgement of gains). 94



i ssue s a nd o p t i o n s

23

Personality Research Survey described in Chapter 11.97 In all the legal systems surveyed, however, this conception has had to be modified because certain personal or dignitary interests such as a person’s name, image or voice, may be capable of commercial exploitation and may therefore acquire a patrimonial or economic aspect. As Hazel Carty remarks in Chapter 7,98 “the celebrity image is perceived to be a commercial magnet by those who use it: hence the phenomenal sums that are paid to the likes of David Beckham for authorised use of his image in an advertising campaign”.99 In the Common law tradition, three of the four influential US privacy torts (intrusion into seclusion; false-light publicity; and public disclosure of private information) are wholly or mainly concerned with personal attributes. The fourth and last however – namely misappropriation of the indicia of identity for commercial purposes – is concerned wholly or mainly with patrimonial or economic interests. Likewise, the false light and public disclosure torts can have patrimonial aspects to some extent. Perhaps the main value of the Comparative Personality Research Survey as described and amplified in Chapter 11 lies in the light which it throws on the relationship between the dignitary and patrimonial or economic aspects of personality attributes in the 12 legal systems surveyed. The nature and effect of this relationship is also a major theme in Chapters 3, 4, 7 and 8 of this book. Chapter 11 reveals that on this matter the structure of the Civil law systems based on generalised rights differs considerably from the structure of the Common law systems which are based on specific (equitable and tortious) wrongs.100 Furthermore, in Civil law systems consent to use of an individual’s image, and the circumstances in which consent can be waived for a fee, are the first stages in the development of commercial (patrimonial) rights in image whereas in the Common law, consent seems relatively unimportant.101 Rather, the analysis in the Common law focuses on how specific wrongs can be extended in order to protect both dignitary and commercial interests in an individual’s image and similar indicia of identity.

 See, eg, Argentinian law quoted in Section 1.2.1 above.   Chapter 7, Section 7.2.1. 99  She continues: “. . . Once it is conceded that such an image has commercial value, it is clear that the celebrity industry will demand legal protection against any unauthorised use of that ‘valuable intangible’”. 100  See Section 11.4.3 (Civil law) ; Section 11.4.4 (Common law). 101  It is scarcely mentioned in the Australian case studies. It does bulk larger in the Canadian Common law case studies but this seems to reflect the Civil law influence emanating from Quebec. 97 98

24

r i ght s of p e rs o n al i t y

(b)  Passing off In Australian law since 1960102 and in English law (which eventually began to follow Australia’s lead in the Irvine case in 2002)103 a main remedy against commercial exploitation of a person’s image has been and is the tort of passing off extended to cover cases of “false endorsement”. This extension is critically examined by Hazel Carty in Chapter 7104 and, from the standpoint of the Scots delict of passing off, by Elspeth Reid in Chapter 4.105 Hazel Carty shows how the English courts have been developing the tort of passing off as a remedy against one person’s misappropriation of another’s identity or image for unauthorised advertising, merchandising by false endorsement, or the like.106 These are not traditional cases of passing off since they among other things do not involve any confusion in the public mind as to the source of the goods or services; and they involve misappropriation rather than misrepresentation. In Ms Carty’s view the English courts need to explore the modern rationale of the tort of passing off. She argues that if the purpose of the tort in future is to protect celebrities against unauthorised use of the magnetism of their image, it would be preferable for the courts to abandon the fiction of misrepresentation; to recognise the new role of preventing “freeriding” per se; and to protect promotional glamour. In Chapter  4 Elspeth Reid comments that it might be more straightforward “to use the ‘impetus’ of ECHR, Art 8 and Art 1 of the First Protocol in order to reconceptualise such cases of commercial plagiarism”.107 (c)  Waiver, licensing, reification of licensee’s right; right of publicity An extra-patrimonial right of privacy is recognised in continental Civil law systems either as a separate right of personality or as a component of a general right of personality. In Common law systems,108 it can be deduced from the extended equitable wrong of breach of confidence or its offshoot the new English tort (or equitable wrong) of misuse of private information.109 The extra-patrimonial 102  See Section 11.7.3, para (b); Henderson v Radio Corporation [1960] SR(NSW) 576. 103  See Section 11.7.3, para (b); Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2003] EWCA Civ 423. 104   Chapter 7, Section 7.2. 105   Chapter 4, Section 4.4.1. 106  The leading case is Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2003] EWCA Civ 423 (CA). See Hazel Carty, Chapter 7, Section 7.2. For the Scots law, see Elspeth Reid, Chapter 4, Section 4.4.1. 107   Chapter 4, Section 4.4.1. 108  Viz the three Common law systems surveyed in Chapter 11, namely Australia; the Canadian Common law provinces; and England and Wales. 109  See para (b) in Section 11.7.2.



i ssue s a nd o p t i o n s

25

right to privacy, which protects private information relating to one’s personality (including one’s name and image), carries with it the right to keep this information to oneself, which in turn entails the right to prohibit others from disclosing or disseminating it. The question then arises whether this right of prohibition designed to protect one’s dignity should be extended so as to include a right of a patrimonial character to control by waiver or licensing the commercial exploitation of the personal information. This issue is discussed in several chapters.110 In the USA such a right – called there a right of publicity – has been recognised since the 1950s111 and, given the global reach of the celebrity industry and culture, is under consideration in several legal systems.112 There are, however, difficulties in reconciling a right of publicity with a right of privacy. In a case like Douglas v Hello! Ltd113 it is unclear why the celebrity claimants should be entitled to obtain the protection of the law for their privacy and at the same time be entitled to sell it. Moreover, any right of “exclusive” licensees to sue third parties infringing their rights under the licence seems to be in the nature of a new type of incorporeal property right resembling intellectual property and the Scottish courts do not have jurisdiction to create new types of property right.114 On the other hand, the commercial pressures of the globalised celebrity culture, and the fact that the law generally protects money earned in lawful trades, have to be weighed against those considerations. 1.4.4  Other options for developing Scots law: statutory code;  statutory provisions; statutory analogies (Chapter 12) For the reasons stated at Section 1.3.2 above, it seems highly unlikely that in the foreseeable future either the Westminster or the Holyrood Government would introduce a Bill protecting the right of privacy, still less a statutory code on rights of personality generally. Although all continental European legal systems are codified, the jurisprudence concerning personality rights is not codified. No one

  Chapter 3, Section 3.4.9; Chapter 4, Section 4.4.2; Chapter 5, Sections 5.2.1(e) and 5.2.2(e); Chapter 7, Section 7.3.3; and Chapter 11, Section 11.4.3(d); 11.4.4(e). 111   Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir 1953); M B Nimmer, “The Right of Publicity” (1954) 19 Law & Contemp Problems 203. 112  See, eg, Chapter 11, Section 11.4. 113   [2007] UKHL 21, discussed in Chapter 3, Section 3.4.9; Chapter 4, Section 4.4.2; Chapter 7, Section 7.3.3; and Chapter 12, Section 12.3.3. 114   Because of the principle of the numerus clausus of real rights. 110

26

r i ght s of p e rs o n al i t y

would seriously think of codifying it.115 The idea of personality rights has been received without statutory intervention in South Africa where, as Jonathan Burchell shows in Chapter 6, its reception has contributed to the flowering of the right to privacy. Already in the United Kingdom, the courts are perforce giving horizontal effect to Art 8 – and that is certain to continue. This is not to say that statute law cannot contribute through analogical reasoning to the development of the common law. Several statutes are capable of being used to protect privacy.116 In Chapter 12117 Hector MacQueen considers privacy-related legislation to assess among other things what indirect guidance can be gleaned from it in developing the common law. In this project he expressly adopts the “analogical use of statute” to aid in the development of common law principles, that is, to consider statutory texts as a potential source for common law doctrine. He observes that “in this approach, statute should be seen, not as damming the flow of the common law, but rather as diverting it into fresh courses and creating new possibilities for exploitation of existing resources more consonant with current legal policy and social need”. 1.5  SPECIAL SUBJECTS 1.5.1  The protection of personality by intellectual property rights (Chapter 8) In Chapter 8, David Vaver addresses the question of how far intellectual property (IP) rights protect an individual’s personality. He points out that whereas personality is inalienable, intellectual property is rightly classified as property. “IP is a commodity that can be transferred, bought and sold, along with any personality aspects it contains. How much personality hangs back when its ambient IP is sold is not always clear.”118 Focusing on English law (which strongly influences the Scots law), Vaver illuminates the extent to which intellectual property laws – mainly copyright (including neighbouring and moral rights), trade mark and passing-off law – protect one’s personal features such 115  So, for instance, it was not even suggested for inclusion in the recent reform of the German law of obligations. 116 See, eg, the Copyright, Designs and Patents Act 1988; the Protection from Harassment Act 1997; the Data Protection Act 1998; and the Regulation of Investigatory Powers Acts 2000 considered by Hector MacQueen in Chapter 12. 117   Chapter 12, Section 12.6. 118  David Vaver in Chapter 8, Section 8.4.



i ssue s a nd o p t i o n s

27

as one’s name, voice or image. The chapter sheds light on how far personality theory can compete with utilitarian and natural rights theories to justify the whole field of intellectual property. 1.5.2  Reform of defamation (Chapter 9) In Chapter 9, Kenneth Norrie argues that the law of defamation should be reformed as follows. First, a clear distinction should be drawn between the two main types of actionable harm: patrimonial loss on the one hand and, on the other, non-patrimonial harm (commonly called affront) arising from infringement of personality rights. The type of harm should govern the nature of the fault which forms the basis of liability. Second, if the pursuer suffers patrimonial loss through false communications, liability should no longer be strict as under the present law but should instead depend on negligence, or in cases of patrimonial verbal injury (slander of title or of property or of business) on wrongful intent to injure (animus iniuriandi). Finally, if the pursuer suffers affront or infringement of his dignitary non-patrimonial personality right, liability should depend on defamation if the words complained of are false and defamatory, or non-patrimonial verbal injury (hatred, ridicule or contempt) if the words are false and non-defamatory. The fault forming liability would be intent to injure (animus iniuriandi). This intent should not be presumed because strict liability, developed in patrimonial loss cases, is not appropriate in personality rights cases. Norrie argues that the result, though diminishing somewhat the existing protections of dignitary personality rights, would be structurally more coherent in that it would avoid confusion between different interests and would allow the courts to strike the appropriate balance between the parties to a defamation action. Defamation would develop as a protection against personality infringement but subject to the same constraints as those with other personality actions rather than those imposed upon it which are designed for cases involving patrimonial loss: “Ridding personality rights as protected by defamation of its unsustainable accretions may well help the Scottish courts to become more open to the idea of embracing the European and South African models of personality rights for use in the modern world.” 1.5.3  Personality, privacy and autonomy in medical law (Chapter 10) In Chapter 10 Graeme Laurie considers how autonomy has been constructed in medical law in the United Kingdom, and in particular

28

r i ght s of p e rs o n al i t y

how this has involved an increasing emphasis on as-yet-to-be-defined notions of human dignity. He argues that we stand at a crossroads in the protection of autonomy and dignity-related interests.119 Rulings from the European Court of Human Rights have confirmed that autonomy is an important underlying aspect of the right to respect for private life, and the Court has always stated that dignity itself underpins the entire Convention, albeit with precious little guidance on how these concepts should be defined. Recognising that the concept of dignity is important but so far has eluded successful description, Laurie accepts that the protection of autonomy through dignity is an option of increasing interest in many quarters.120 Examining controversial House of Lords decisions121 which purport to recognise and promote interests in autonomy and dignity through the negligence action, Laurie “takes a somewhat sceptical view of dignitarian-based models – either subjectively or objectively assessed – and questions the extent to which it can be said that current developments reflect anything approximating a principled approach”.122 His chief concern is how wide a sense of the term “dignity” would or should be adopted. He detects a change in medical law from an unhealthy deference to the medical profession to a potentially unhealthy concern with patient autonomy which in a legal context, where sets and sub-sets of rights and interests interact, should not be allowed to dominate personality rights in the medico-legal sphere. He remarks that at “this current crossroads we still have the opportunity to shape and guide future developments in autonomy and dignity protection in the broader context of personality rights”.123 He ends Chapter 10 with a discussion of how we should be sceptical about some of the assumptions that underpin the concrete cases. In Chapter 10 Laurie also critically examines an argument124 that a revitalised actio iniuriarum (or action of solatium for hurt to personality) could help the courts to give proper and appropriate effect to patients’ rights. He points to many practical deficiencies in the application of the action (“assuming it does exist”) in a medical context, noting that “from a practical point of view we [ie Scots lawyers] are very much starting with a blank sheet”. Despite this well-warranted scepticism, his overall conclusion is that it is

 Section 10.12.  Section 10.1. 121   McFarlane v Tayside Health Board 2000 SC (HL) 1; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] AC 309; and Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. 122  Section 10.1. 123   Chapter 10.12. 124  Presented in SME Reissue, “Medical Law” (2006) (M Earle and N R Whitty). 119

120



i ssue s a nd o p t i o n s

29

probably too early to say whether a viable actio iniuriarum can or will be developed by the courts, but that there is certainly scope for this to happen. Indeed, he observes that there may be a need for such a development now that “the notion of autonomy” has been recognised within the human rights regime125 and adequate remedies must be found or created.

125

  Pretty v United Kingdom [2002] 2 FCR 97.

30

r i ght s of p e rs o n al i t y



uni t y i n di ve rs i t y

31

chapter 2 unity in diversity: the history of personality rights in scots law John Blackie*

2.1 INTRODUCTION 2.1.1 The concept of personality rights 2.1.2 Criminal law and consistorial law as the historical basis of personality rights protection in Scots law 2.1.3 The consequences for the law and its history of consistorial law continuing, and criminal courts ceasing, to have a role 2.2  FROM THE 16TH TO THE MIDDLE OF THE 18TH CENTURY 2.2.1 The nature of criminal actions, including remedies for the private party, in cases of bodily injury and deprivation of physical liberty 2.2.2 Protection of the rights of bodily integrity and physical liberty – criminal law categories as sub-categories of iniuria and Aquilian liability (a) Bodily integrity (b) The sub-categories of bodily injury based on the nature of the impact on the body (c) The mechanism (d) Additional sub-categories related to the status of the party injured, or to the place of the iniuria (e) The ius commune background (f) The emergence of “assault” and “riot” as terms (g) Molesting 2.2.3 Liberty of the person (a) The nature of the personality right infringed (b) The 17th-century requirements – the ius commune classifications * I am indebted to Professor Niall R Whitty for the immensely detailed and thorough attention he has given to the many drafts of my text and for hours of discussion of the topic over a long period. I am also grateful to my research assistant, Katy McSkimming, for her meticulous work in checking my references, and to my research assistant, Alex Doig, for assisting with the identification and analysis of much 19th-century case law. All errors remain my own.

31

32

r i ght s of p e rs o n al i t y 2.2.4 Family life and moral sexual relations (a) Preliminary (b) Infringement of chastity (c) The interest of an unmarried person in being accepted as unmarried (d) Rights of certain family members in the integrity of family life 2.2.5 Privacy generally and informational privacy (a) Of the home (b) Informational privacy 2.2.6 Actio iniuriarum as organising category (a) Real injury and verbal injury (b) Real injury where none of the sub-categories was applicable (c) Verbal injury (d) “Affront”, “insult” or “offence” (e) Mental element 2.2.7 Remedies (a) General (b) The effect in the context of a criminal process of the interaction between the rights of the Crown and the rights of a private pursuer (c) Analysis of remedies for non-patrimonial consequences (d) Patrimonial consequences and non-patrimonial consequences – Was there a distinction between iniuria and Aquilian liability? (e) The treatment of remedies in Scottish juristic writing by the start of the 18th century (f) Remedies for infringements of other personality rights 2.2.8 Syntheses of the Institutional writers up to the middle of the 18th century (a) Preliminary (b) Mackenzie (c) Stair (d) Bayne (e) Bankton

2.3 CHANGES AND CONTINUITIES: THE TRANSITION TO THE MODERN LAW, 1750 to 1850s 2.3.1 Increasing complexity of the law consequent on jurisdictional changes in the 18th century 2.3.2 Bodily integrity (a) The second half of the 18th century (b) Early 19th century – the emergence and establishment of the apparently nominate delict, “assault” (c) Continuing relationship of “assault” to “real injury” (d) Mental element



uni t y i n di ve rs i t y

33

2.3.3  Deprivation of liberty   (a)  The changes of context   (b)  The question of the proper limits on the liberty of the   subject (1) – liability under the Act anent Wrongous  Imprisonment 1701   (c)  The question of the proper limits on the liberty of the   subject (2) – liability under the common law   (d)  The personality right in reputation and self-worth in   the context of deprivation of liberty.   (e)  Detention or imprisonment without any power at   all to detain: slaves, mental patients and impressed   seamen   (f)  Deprivation of liberty in the context of enforcement      of civil claims 2.3.4  Malicious prosecution not involving deprivation of liberty? 2.3.5   Family life and moral sexual relations: late 18th and 19th   centuries 2.3.6  Informational privacy in the 18th and early 19th centuries   (a)  Entrusted information   (b)  Invasions of privacy by taking and disclosure 2.3.7   “Verbal injury” in the middle of the 19th century 2.3.8  Remedies   (a)  Protection of liberty   (b)  Verbal injury, defamation, informational privacy etc   (c)  Physical bodily injury 2.3.9  Transmissibility of claims 2.3.10  Analysis in juristic writing in the late 18th and first half of    the 19th centuries   (a)  Preliminary   (b)  Erskine   (c)  Hume   (d)   Bell 2.4  CONCLUSION

2.1  INTRODUCTION 2.1.1  The concept of personality rights This essay examines the historical development in Scots law of those rights which we recognise today as “personality rights”. The concept of personality rights is a modern one and the term itself was not known in writing on Scots law until recently. Nevertheless in Roman law and the ius commune, most if not all of the rights or interests which the term denotes were recognised under the broad

34

r i ght s of p e rs o n al i t y

heads of corpus, fama and dignitas (body, reputation and dignity) and protected by the delict of iniuria which became in Scots law the crime and delict of “injury” reflecting exactly the technical Roman and ius commune sense of iniuria.1 This delict was divisible into second-level sub-categories by reference to the “mechanism” used to inflict the delict, that is to say, “real injury” (iniuria realis) for injury caused by acts and “verbal injury” (iniuria verbalis) for injury caused by words. The second-level category of real injury was in practice routinely divided into particular third-level sub-categories such as mutilation or demembration. The essay takes as a starting point those personality rights which have been identified over time as protected by Scots law.2 It examines to what extent and how they were protected and the developments in that protection. Thus the essay adopts categories such as bodily physical integrity, physical liberty, rights in moral sexual relations and family life, informational privacy and so on. In early modern Scots law the protection of what is now called personality rights was effected through a highly elaborated taxonomy of categories and sub-categories of iniuria within the law of delict. Higher-level theory was significant in at least two respects. First, as will be seen, these categories and sub-categories, as elsewhere in Europe, were built on the concept of iniuria and in some respects on other aspects of the developing ius commune analysis of delict, including Aquilian liability, and of nominate delicts derived from Roman texts, such as for instance raptus and stuprum. Second, in the formative period of the 16th and 17th centuries the Scots law in this area was applied against a background understanding of the nature of the human person, male and female,3 central to both reformed and Roman Catholic theology, and underpinned, too, by contemporary philosophical ideas.4 This has not been the place to explore in detail the development of this in the theology of the period,5

  Justinian, Institutes IV,4,1; D.47,10,2; see n 455.  In particular J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005). 3   For the relevance of gender, see eg D G Mullan, “Women in Scottish Divinity, c  1590–1640” in E Ewan and M M Meikle (eds), Women in Scotland c 1100– c 1750 (1999) 29. 4  See, for Europe, R Zimmermann, The Law of Obligations Roman Foundations of the Civilian Tradition (1990), pp 1062–1074; J Gordley, “Reconceptualizing the Protection of Dignity in Early Modern Europe: Greek Philosophy Meets Roman Law” in M Ascheri et al (eds), “Ins Wasser geworfen und Ozeane durchquert” (2003) 281; J Gordley, Foundations of Private Law (2006), Chap 11 “Liability in Tort for Harm to Reputation, Dignity, Privacy, and ‘Personality’”. 5  Nor consequentially how far modern theory (see in particular, U Amelung, Der Schutz der Privatheit im Zivilrecht (2002), pp 9–45) differs from historical theory. 1 2



uni t y i n di ve rs i t y

35

but it has been possible to indicate the importance of theology at various points in this study. In this essay the interaction between these ideas and the nature of social and cultural life has been stressed. Scotland in the 16th and 17th centuries was a hierarchical society in which people lived very closely together,6 with marked differences of rank,7 with at least to an extent endemic violence among all (including even the higher) ranks of society, but with a shared religious culture which promoted the ideals of restraint as promoting a godly life.8 Much of this continues to be of significance for the development of the law protecting personality rights in the 18th and early 19th centuries. But from the late 17th century, at least in the upper ranks of society, new cultural developments affect that law: the near cessation of violence among the upper ranks of society, the growth of civility as understood at that period, and the increasing British dimensions to higher culture, have a demonstrable impact on the law. This essay seeks, accordingly, to provide a detailed understanding of the law in context as it developed from the end of the mediaeval period up to the mid-19th century. It is intended to throw light on the complex development over that period, and to show what were the possibilities for the law, as it stood in the mid-19th century on the threshold of the modern law. Other essays in this volume explore that modern law. 2.1.2  Criminal law and consistorial law as the historical basis of personality rights protection in Scots law Until the 19th century, the law of Scotland protecting personality rights was applied and developed mainly through the criminal law and consistorial law. Private parties pursued in the courts applying those branches of law, namely the Justiciary and Commissary Courts, not in the ordinary civil courts of law (the Court of Session, the sheriffs and the other local, civil “judges ordinary of the bounds”). That this was so, is of fundamental importance for understanding the doctrinal history of the law in this area. Consistorial law protected most of those personality rights which were recognised, other than those of bodily integrity and physical liberty. Except in proceedings before   For housing, see M B Sanderson, A Kindly Place? – Living in Sixteenth Century Scotland (2002), pp 69–98. For the rising population in urban areas, see M Lynch, Edinburgh and the Reformation (1981), pp 9–11. 7   K Brown, Noble Society in Scotland – Wealth, Family and Culture from Reformation to Revolution (2004), pp 3–7 and 13. 8  See generally M Todd, The Culture of Protestantism in Early Modern Scotland (2002). 6

36

r i ght s of p e rs o n al i t y

local bodies of presybterian church discipline, (and to an extent in courts of local jurisdiction, such as burgh courts) in the 16th and 17th centuries jurisdiction in consistorial actions was confined to the separate system of Commissary Courts. These had succeeded to the jurisdiction exercised by the pre-Reformation episcopal courts of the Official. While during the 18th century the ordinary civil courts came increasingly to exercise a jurisdiction in some consistorial actions, nevertheless such actions were not often pursued there until towards the end of the century. (Erskine9 thought that the Commissaries’ jurisdiction in questions of slander and defamation was privative but Stair,10 Bankton11 and Borthwick12 thought that it was not.) The ordinary civil courts13 played no part in the protection of bodily integrity from intentional invasions until the start of the 19th century, and almost no part in the protection of physical liberty until the start of the 18th century. It was solely within the criminal process that private parties sought remedies for the protection of these rights. This position with respect to jurisdiction had crucial effects on the development of the substantive law on real and verbal injury. First, it meant that as the law was developed in Justiciary and Commissary Courts it was natural to see the claim as penal. A private pursuer’s remedy for non-patrimonial damages (solatium) in respect of the iniuria was anyhow classified, following the ius commune tradition, as “penal”.14 Where it was sought to claim compensation ad damna  Erskine, Institute I,5,30.  Stair, Institutions I,9,4. 11   Bankton, Institute IV,13,12 said that in scandal and verbal injury, if the victims were “persons in power and dignity”, jurisdiction lay in the criminal courts, but that actions for damages for patrimonial loss were competent before other judges ordinary. 12  See J Borthwick, A Treatise on the Law of Libel and Slander in Scotland (1826), p 47. 13  It appears that the procedure cases at the lowest level, courts of local jurisdiction, such as burgh courts and barony courts was of a mixed civil and criminal nature. See J Blackie, “Defamation” in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000), vol 2, p 640. Burgh courts exercised a jurisdiction in cases of bodily physical injuries as real injury (as well as in verbal injury) by at least the 15th century. (E Ewen, “‘Many Injurious Words’: Defamation and Gender in Late Medieval Scotland” in R A McDonald (ed), History, Literature and Music in Scotland, 700–1560 (2002) 163 at p 178. 14   On the Scottish version of the Roman and ius commune distinction between actiones rei persecutoriae and actiones poenales, see Mackenzie, Institutions IV,1 (quoted by Walker, Delict (2nd edn, 1981), p 25); Bankton, Institute IV,24,7–9; IV,45,70; Erskine, Institute IV,1,14; Mor sv “Personal and Transmissible”, passim. For definitions, see, eg, Lord Trayner, Latin Maxims and Phrases (4th edn, 1894) sv “actio” at p 14. For a clear analysis and history of the Roman and ius commune background and debates on the nature of penal and reipersecutory actions and 9

10



uni t y i n di ve rs i t y

37

et interesse it was understood that that aspect of the action was not penal but reipersecutory (ie compensatory). But the records of the Justiciary and Commissary Courts (and, likewise, the passages from the specialist European literature relied on in Scotland, particularly in the Justiciary Court)15 only rarely make express reference to this distinction. In Scots law, the law on quantum was quite clear by the 17th century. The distinction between iniuria and Aquilian liability, therefore, did not normally require to be spelled out. However, as discussed in detail below,16 the distinction is reflected in references to Aquilian liability. It is also fundamental to the law on transmissibility and cumulation of claims,17 although it is only in the 18th century that the details of those aspects seem first to have been considered in the Court of Session, itself a consequence of jurisdiction being in the criminal and consistorial courts. Hume said that if the victim of an assault chose to sue in his private capacity “for damages only in reparation of the loss he had sustained, and in solatium of his pain and distress” the civil courts had jurisdiction since such an action was “purely patrimonial and pecuniary in its object”.18 It is no doubt a reflection of the anomalous and uncertain character of the remedy of solatium for iniuria up to the early 19th century that, for the purpose of subject-matter jurisdiction, it was characterised by Hume as “patrimonial” in contrast to punishment, and at the same time for the purpose of transmissibility it was regarded as penal rather than reipersecutory.19 The second crucial effect on the substantive law is that because jurisdiction in respect of the crime and delict of “injury” (iniuria) was dispersed among different courts, the rights we recognise today as “personality rights”, though protected, were not discussed in the case law as instances of the wider category of “injury” or iniuria. It is the reason why, though the general framework of iniuria and Aquilian liability in connection with claims for patrimonial consequences (ad

the mixed actions (actiones mixtae), see J C de Wet, “Criminal Liability and Civil Liability for Wrongful Conduct – an Historical and Comparative Survey” (Lectures delivered in Edinburgh University in Spring Term, 1962) published in J C de Wet (J C Gauntlett, ed), Opuscula Miscellanea Regsgeleerde Lesings en Adviese (1979) 149 at pp 150–186. 15  See below n 23 for this literature, detailed reference to which is made later in this essay. 16  Section 2.2.7(d). 17  As Niall Whitty shows in Chapter 3, Section 3.6.2. 18  Hume, Lectures, vol V, p 261, citing Ker v Hay (1774) Mor 7420; Muir v Shand (1778) Mor 7421. Hume was dealing with the Court of Session but the same rule applied to the civil judges ordinary of the bounds. See also Hume, Commentaries, vol 2, 71. 19  See Section 2.3.9 below; also Chapter 3, Section 3.6.2.

Figure A: The delict of iniuria in Scotland in 1700

Mutilation (+Demembration)

Abduction

Bodily integrity

Raptus Ravishment Rapt Rape

iniuria realis (real injury)

Wrongous imprisonment (new in 17th century)

Plagium

Physical liberty

Crimen Privati Carceris

“riot” + “assault” (purely descriptive terms)

Hamesucken

Invading Hurting Wounding Effusion of blood

LIABILITY IN DELICT FOR PATRIMONIAL LOSS (AQUILIAN LIABILITY)*

Deforcement of women

INIURIA

Stuprum*

Sexual morality; family life

“Rapt” in Mackenzie

Adultery

* The ground of liability for patrimonial loss arising from stuprum is derived from canon law.

3

2

1

Residual category: Insulting behaviour – eg rude gestures, threatening, molesting, disturbing dead bodies, church seats, etc

Dignity and privacy

Secrets

iniuria verbalis (verbal injury)

This figure illustrates the categories and sub-categories of the delict of iniuria as it was established in Scotland in 1700. The levels referred to in the text as “first (or top) level”, “second level” and “third level” are respectively indicated by the numbers, 1, 2 and 3 at the left side of the figure. 17th-century developments are placed at a lower level in the figure. The personality rights protected by the third-level sub-categories are in the shaded boxes under the relevant sub-categories. The line linking the top-level category Aquilian liability to the sub-categories of real injury has been placed to connect above those relevant to the right of bodily integrity as it is in such cases it was expressly referred to. However, it is also of potential relevance to all the other sub-categories of real injury, with the exception of stuprum.

38

r i ght s of p e rs o n al i t y



uni t y i n di ve rs i t y

39

damna et interesse) was clearly understood, it was in the ordinary case not necessary to refer to it. The concepts and categories used in the contemporary law of crime/delict and consistorial law to analyse the applicable principles and rules are at a lower level of the taxonomy of delict than the primary or top level categories (such as Aquilian liability and iniuria). In particular the sub-categories of iniuria form a relatively complex structure which is shown graphically in Figure A. Studying the nature and effect of these categories and subcategories is vital. The state of the published records has meant that it has been relatively arduous. Moreover until the necessary archival work is done, some crucial periods of development cannot be studied in detail. There are almost no published records for the Commissary Courts,20 applying consistorial law, throughout the whole period. There is much published in the records of cases before the local bodies of presbyterian church discipline, in particular the kirk sessions. The latter proceedings, however, while significant for the social and cultural background to the application of the consistorial law, did not typically give rise to consideration of legal doctrine. For the Justiciary Court21 and the criminal process in inferior courts for what is a crucial period, from about 1750 to about 1820, there are almost no published records.22 Furthermore, those for the period before the mid-17th century in particular, are heavily edited, and often abridged in nature.23 This may help to explain why in particular the history of the protection of bodily physical integrity in Scotland, and at least for the period to 1700, the protection of physical liberty, has never previously been studied in detail. The facts that private pursuers 20  Except for F P Walton (ed), Lord Hermand’s Consistorial Decisions 1684–1777 (Stair Society, vol 6) (1940). See also F P Walton, “The Courts of the Officials and the Commissary Courts 1512–1830”, Chap 12 in various authors, Introductory Survey of the Sources and Literature of Scots Law (1936, Stair Society, vol 1), p 133. 21  In this essay the term “Court of Justiciary” is used for convenience. “High Court of Justiciary” is incorrect before 1671, when it is first referred to as Suprema Curia Justiciariae, (see D Hume, Commentaries on the Law of Scotland respecting Trial for Crimes (1844 edn) (1st edn, 1797), vol 2, p 81) and was not in general use until much later. 22  Records of a few cases from the Sheriff Court of Renfrewshire were published in W Hector, Selections from the Judicial Records of Renfrewshire, illustrative of the Laws of the County and Manners and Conditions of the Inhabitants in the 17th and 18th centuries, 1st and 2nd series, 1876–78. This is not a systematic work. 23  See Hay (1598), R Pitcairn, Scottish Criminal Trials, from 1488 to 1625. First series, Parts I–VIII, 1568 to 1625; Second series (Parts IX and X with Index to whole) 1493 to 1568; (Maitland and Bannatyne Clubs, 3 vols), 1(2) 46 editorial note at p 48.

40

r i ght s of p e rs o n al i t y

whose personality rights to bodily integrity and physical liberty were infringed claimed within the criminal process, and that the law of crime/delict applied there, have tended to be overlooked.24 A further reason for the neglect of this important chapter of Scottish legal history is that unlike the consistorial law, the significance of which has, indeed, been fully appreciated,25 virtually no reference to the Justiciary cases on crime/delicts invading bodily integrity and physical liberty is made in the cases in the ordinary civil courts after they acquired jurisdiction protecting these two personality rights. 2.1.3  The consequences for the law and its history of consistorial law continuing, and criminal courts ceasing, to have a role Historical continuity and discontinuity. This situation also raises several historical problems. Of particular prominence is to what extent the detailed development of the law in the Justiciary and Commissary Courts had an effect on the law of injury (iniuria) as it developed in the ordinary civil courts in the first half of the 19th century. This question is the more difficult because the protection of different personality rights moves into the ordinary civil law at different points in the 18th century and the first decades of the 19th century. Protection of the right to physical liberty comes to be essentially within the exclusive jurisdiction of the Court of Session on the passing of the Act anent Wrongous Imprisonment 1701 and the contemporary change of context from cases of abduction to cases arising from pre-trial imprisonment. Remedies for private pursuers in respect of invasions of bodily physical integrity cease to be available in criminal processes in the first or second decade of the 19th century, and at the same time cases come to be raised in courts of ordinary civil jurisdiction.26 Protection of other personality rights continued to be provided by Commissary Courts until their jurisdiction was  Though see Hume, Commentaries, vol 1, 330 and H McKechnie, in Introduction to Scottish Legal History (Stair Society, vol 20), 265 at p 268. 25  Eg K McK Norrie, “The Intentional Delicts” in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000), vol 2, 477 at pp 510–13. 26  This may be in part a byproduct of the introduction of civil juries in 1816. Certainly it fits in with a developing policy of promoting efficient focus in the administration of both criminal and civil justice at that time. For the courts of criminal jurisdiction see: L Farmer, Criminal Law, Tradition and Legal Order – Crime and the Genius of Scots Law 1746 to the Present (1997), p 79; for the Court of Session, D R Parratt, The Development of Written Pleadings in Scots Civil Procedure (Stair Society, vol 48) (2006), pp 51ff; for civil justice in the sheriff court, J Blackie, “Judges and Parties in Scotland in the Provincial Courts in the First Half of the 19th Century” in C H van Rhee (ed), Judicial Case Management and Efficiency in Civil Litigation (2008) 139. 24



uni t y i n di ve rs i t y

41

absorbed in the ordinary civil courts in the 1820s and 1830s27 and kirk sessions, and the other bodies of presbyterian church discipline still exercised some jurisdiction in this area at least up to the latter part of the 18th century. Crucially for the later understanding of the law protecting personality rights, however, the jurisdiction of the Commissary Courts, did not (like that of the criminal courts for private parties) simply disappear. From the late 18th century on, as far as the protection of personality rights is concerned, that jurisdiction was concurrent with the ordinary civil courts. Moreover, the jurisdiction never ceased but on the court’s abolition was transferred to the ordinary civil courts.28 Thus the tradition of the consistorial law continued unbroken. This is completely different from the history of the jurisdiction of the criminal courts for private parties. When the criminal courts ceased to provide private pursuers with remedies, the ordinary civil courts moved into an empty space. Also with respect to the protection of physical liberty the creation of the jurisdiction of the Court of Session in 170129 gave rise to a similar phenomenon. Even though in theory the criminal courts could still have exercised a jurisdiction giving a private pursuer remedies to protect physical liberty, cases ceased to appear there. Low profile of criminal process and high profile of consistorial courts in protection of personality rights by the delict of injury (iniuria). The combination of the low profile of the criminal process and the high profile of the consistorial courts as a source of protection of personality rights from iniuria had the effect in the 19th century of clouding a full appreciation of personality rights protection as a unitary field of law. Neither bodily integrity nor physical liberty of the person was obviously connected in the mind of the typical lawyer with the protection of other personality rights. The idea of iniuria then came to be consciously linked only to the legacy of the consistorial law and not to the law of crime/delict. This had the effect that, as a term, iniuria or “injury” in that sense, came to be linked in the ordinary lawyer’s mind only with injury by the mechanism of words, “verbal injury”. The most prominent classificatory problem considered by 27  Under the Act on Commissariots 1609 (APS record edn c 8, 12mo edn c 6) the Court of Session had power to review decisions of the local Commissary Courts on appeal and this undermined the appellate jurisdiction of the Commissary Court of Edinburgh, which aspect of its jurisdiction became moribund in the 18th century. The Commissary Court of Edinburgh’s appellate jurisdiction was transferred to the Court of Session by the Court of Session Act 1830. The jurisdiction of the local Commissary Courts was transferred to the sheriff by the Commissary Courts (Scotland) Act 1823 and the local jurisdiction of the Commissary Court of Edinburgh in the Lothians was so transferred by the Act 6 & 7 Will IV c 41. 28  See previous note. 29  See Sections 2.2.3 and 2.3.3.

42

r i ght s of p e rs o n al i t y

later 19th-century courts was, accordingly, the very narrow one of where defamation law stood within verbal injury, and of whether other forms of liability on the basis of verbal injury existed. Dispersed treatment of personality rights. Furthermore, the fact that the sources for the 16th and 17th centuries for Scotland derive from the law of crime/delict as applied in the criminal process, and from consistorial law in specialised courts has had wider implications for later understanding. In Scottish juristic writing up to and including Erskine’s Institute in 1773, the law on iniuria, whether involving physical injury or deprivation of physical liberty or otherwise, was considered principally in the context of the law applied in criminal courts. The protection of physical liberty from Stair’s Institutions (1681) onwards is considered separately. In the context of private civil law, attention was also paid to personality rights in family and moral sexual relations. This dispersed treatment of personality rights can make the law appear disparate, though in fact the underlying unifying concepts are, nonetheless, present in the contemporary literature. To explore this it is necessary to examine the legal sources which were actually relied on by the Scottish criminal and consistorial courts in this period to decide points of law in actual cases. These sources were largely the works of the continental European jurists, though sporadic reference in the criminal courts to earlier Scottish decisions in those courts can also be found. The ius commune sources on iniuria . The juristic writing mainly used in Scottish criminal courts and consistorial courts was the specialised literature for these courts. In the former, as elsewhere in European courts, the important writers are the 16th- and early 17th-century, “criminalists”. For Scotland they were especially the Italians, who led the field, Julius Clarus (1525–75) and Prosper Farinacius (1554– 1613). Also of significance were the Dutch, Antonius Matthaeus II (1601–54) and Paul Voet (1619–77),30 and the Saxons, Matthias Berlichius (1586–1638),and Benedictus Carpzovius II (1595–1666). Reference can also be found on occasion to others such as Andreas Gaill (1526–87), who wrote from the context of the jurisdiction of

30  Matthias Berlichius, Conclusiones practicabiles secundum ordinum constitutionum Augusti Electoris Saxoniae (1644); Julius Clarus, Liber Quintus Sententiarum Receptarum (first published 1568); Prosper Farinacius, Praxis et theorica criminalium rerum – Variarum Quaestionum ac Communium Criminalium (complete first publication 1614); Antonius Matthaeus (II), De Criminibus ad lib XLVII et XLVIII digesti commentarius (1644; 1665) (the 1761 edn edited with English trans by M L Hewett and B C Stoop, 4 vols 1987–96). See also among civilists Andreas von Gail, Praticarum observationum tam ad processum iudiciarum quam causarum decisiones pertinentium, libri duo (1580); Paulus Voet, Institutionum imperialium commentarius (1668).



uni t y i n di ve rs i t y

43

Imperial Germany. These jurists dealt with private parties’ remedies as well as with criminal punishment. Because of its focus on particular issues this literature was highly valued by those dealing with the requirements and demands of daily business, especially where, as in the case of Prosper Farinacius, it combined practicality with theory.31 Likewise, the literature on consistorial law in the Commissary Courts32 was built on the same specialist foundations of canon law as in France, Holland and Germany33 and despite the Reformation the Commissary Courts continued to look for guidance to Catholic jurists such as Thomas Sanchez and Josephus Mascardus. Mainstream and specialist ius commune jurists. The abovementioned sources which strongly influenced the Scots law in the 16th and 17th centuries differ from the sources relied on by many modern scholars in describing the European history of iniuria and personality rights. Such scholars tend to focus on the writings of leading jurists in the mainstream of the history of European private law, including the late Spanish scholastics,34 Huguenot humanist jurists such as Donellus and the northern natural lawyers such as Grotius and Pufendorf,35 who are credited with leading the way in systematising private law. By contrast, in Scotland, the development of the law protecting personality rights was mainly influenced not so by much these mainstream private law jurists, but rather by the specialist criminal and consistorial legal writers in Europe in the 16th and 17th centuries.36  H Schlosser, “Prospero Farinacci (1548–1618), ein bedeutender Kanonist?” in M Ascheri et al (eds), “Ins Wasser geworfen und Ozeane durchquert” 893 at p 897. 32  The ius commune authorities referred to in Hermand’s collection are described and annotated in F P Walton (ed), Lord Hermand’s Consistorial Decisions 1684– 1777 (Stair Society, vol 6) (1940) Introduction (by the editor), pp xv–xxi. They included: Alteserra, Augustinus, Berlichius, Beza, Brouwer, Brunemannus, Caranza, Carpzovius, Christinaeus, Clarus, Covarruvias, Cujacius, Fachineus, Farinacius, Gentilis, Gothofredus, Grönewegen, Gualtier, Huber, Lancelotus, Mascardus, Matthaeus, Menochius, Mynsingerus, Papon, Sanchez, Zachius and Zoesius. 33  Sir John Nisbet of Dirleton, Some Doubts and Questions in the Law especially of Scotland (1698), p 32; “Consistorial Causes, are in apicibus Juris; and cannot be decided, but by the Civil and Canon Law, . . . which must be known to those who are Judges in these cases”. 34  See in particular J Gordley, “Reconceptualizing the Protection of Dignity in Early Modern Europe: Greek Philosophy Meets Roman Law” in M Ascheri et al (eds), “Ins Wasser geworfen und Ozeane durchquert” (2003) 281; J Gordley, Foundations of Private Law (2006), Chap 11 “Liability in Tort for Harm to Reputation, Dignity, Privacy, and ‘Personality’”. 35  See Section 2.2.8 below. 36  Though Grotius’ influence on Stair is clear: see W M Gordon, “Stair, Grotius and the sources of Stair’s Institutions” in J A Ankum et al (eds), Satura Roberto Feenstra (1985) 571. See A Bayne, Institutions of the Criminal Law of Scotland (1730), p 190, referring to Pufendorf B 8 c 3 §27. 31

44

r i ght s of p e rs o n al i t y

A related under-researched issue concerns the influence, or possible influence, of mainstream European jurists such as Donellus, Grotius or Pufendorf37 on the theory and classification of the Scots law of “injury” and its place within the broader structure of the Scots law of delict. It may be that in a sense there has been a “ius commune deficit” similar to the “pandectist deficit” which Professor George Gretton has identified with respect to Scots property law. So, while the law of protection of personality rights was established in Scotland by the end of the 17th century as drawing on, engaging with debates in, and so being itself a part of, the European ius commune, the impact on Scots law of the writing in that tradition which rationalised and systematised European private law, including the delict of iniuria, has remained unconsidered by historians of Scots law. 2.2  FROM THE 16TH TO THE MIDDLE OF THE 18TH CENTURY 2.2.1  The nature of criminal actions, including remedies for the private party, in cases of bodily injury and deprivation of physical liberty A private party seeking remedies for physical bodily injury, or up to the 18th century in respect of deprivation of liberty, sued as the “party grieved” in a criminal process, and not in the civil courts.38 It was possible for such a private pursuer also to seek an order imposing a criminal punishment either exclusively or additionally, whether the Crown was co-pursuer or not. The centrality of claims for private pursuers’ remedies is clear from the fact that in the period 1603–35, 76 per cent of cases in the Justiciary Court were discontinued before trial, one of the main reasons being that the cases were settled between the parties.39 Such claims were routine within criminal proceedings in the sheriff court40 and other lower courts.41 This continued up to 37  Though Grotius’ influence on Stair is clear: see W M Gordon, “Stair, Grotius and the sources of Stair’s Institutions” in J A Ankum et al (eds), Satura Roberto Feenstra (1985), p 571. See A Bayne, Institutions of the Criminal Law of Scotland (1730), p 190, referring to Pufendorf B 8 c 3 §27. 38  See Section 2.1.2 above. 39  M Wasser, “Defence Counsel in Early Modern Scotland: A Study based on the High Court of Justiciary” (2005) 26 Journal of Legal History 183 at p 194. 40  Eg Gorne v Irwing 1 August 1616, Shetland Court Book 1615–1629; Cristiansdochter v Coghill 1 August 1616 Shetland Court Book 1615–1629. 41   For a burgh court case that involved also proceedings in the Justiciary Court by the private party to require the lower court to assess his damages, see Innes v Sir Alexander Forbes (1664) W G Scott-Moncrieff, The Records of the Proceedings of the Justiciary Court Edinburgh 1661–1678, vol I (1661–1669) (Scottish



uni t y i n di ve rs i t y

45

the early years of the 19th century.42 Examples of the same occur in deprivation of liberty cases until the end of the 17th century, and it may have been a form of proceeding available in some other cases of protection of personality rights. The fact that the action was characterised as “criminal”43 entailed that all rules of the general criminal law, criminal evidence law, and criminal procedural law were applicable as much to a private pursuer’s claim for private remedies as to the Crown as a pursuer. Analytically, any decree which could be enforced by the private party, was itself part of a “criminal sentence”.44 Criminal imprisonment could be a means to enforce it. 45 Proof of facts would be before a jury. But the remedy and the quantum of any monetary compensation were determined by the criminal judge. Should there be “remission” by the Crown, the private pursuer was ipso facto46 entitled to monetary compensation, for which caution47 had to be

History Society, 1905), p 93. Hume, Commentaries, vol 2, p 33, discusses the distinct question as to whether the private party could continue with a case in the Justiciary Court where the Crown was barred by res judicata having taken previous proceedings in an inferior court, or for example by granting a pardon. He refers to several early 18th-century unreported cases where the private party was held entitled to proceed. 42  Hume, Commentaries, vol 2, p 331. 43   J Irvine Smith (ed), Selected Justiciary Cases 1624–1650, vol II (Stair Society, vol 27) (1972), p 533, n 1, suggests that the terms of appointment of the Lord Justice General “in omnibus causis criminalibus et civilibus” (eg of Sir Thomas Hope of Kerse) shows that he had civil jurisdiction as well as criminal, eg assythments. Hume, Commentaries, vol 2, p 10 stated that it referred to a civil jurisdiction once possessed by the Justiciar with respect to lands and heritages. 44   Contrast with theft. The owner or possessor (in a spuilzie) could alternatively obtain an order for return of the property in the criminal process or in a civil process. One instance has been found of a conclusion for compensation in a criminal process for damage to property: Magistrates of Aberdeen v Irvine (1673), W G Scott-Moncrieff, The Records of the Proceedings of the Justiciary Court Edinburgh 1661–1678 (1669–78), vol II (Scottish History Society) (1906–08) 170, where the damage “to theffabrick [sic] of the prison” was averred to be 6,000 merks and the pursuers concluded both “for punishment and payment” of that sum. 45  See Fferguson (1673), Scott-Moncrieff, Justiciary Records, vol 2, 177 at p 180. 46   Of Crimes and Judges in Criminall Causes, Conforme to the Lawes of this Realme (1609) cap 31 sv “Of Remissions and Respits”. There was a basis in a statute on remissions of James II’s reign: APS (1457) record edn c 19; 12mo edn c 74. Some instances exist where this is actually stated in the remission, eg Megot (1569) 1(2) Pitcairn 7. See also the instances from unpublished late 17th- and early 18th-century records given by Hume Commentaries, vol 2, pp 496–501. It may be a consequence of editing that it does not appear in most cases. 47  Under a statute dealing with assythment of James V’s reign, APS (1528) record edn c 3; 12mo edn c 7, jurisdiction in enforcement proceedings against a cautioner was conferred on the Court of Session.

46

r i ght s of p e rs o n al i t y

found. The quantum, if not agreed, was sometimes determined by arbitration.48 2.2.2  Protection of the rights of bodily integrity and physical liberty – criminal law categories as sub-categories of iniuria and Aquilian liability The concern of the Scottish courts, and of the ius commune specialist writers on criminal law cited there, was necessarily not with the general framework of the actio iniuriarum or its Scottish offshoot the “action for real or verbal injury”, but with the particular subcategories of crime/delict subsumed under it. The practical reason for this was that on them depended the form of punishment of the accused/defender, and to an extent the remedies available to the private pursuer, particularly the amount of any award of monetary compensation. This does not mean that no regard was paid to the general framework of the actio iniuriarum and Aquilian liability. The framework was part of the shared (normally latent) taxonomy of all these writers dealing specifically with criminal law. Moreover, where no specific sub-category of crime/delict was applicable, the higher level categories could be applied directly. (a)  Bodily integrity The vast majority of accessible sources relating to the protection of personality rights in 16th- and 17th-century Scotland concern bodily physical injury. There was very little fundamental development of the law or the sub-categories used (although there were some changes of terminology, which become more apparent at the end of the 18th century on the eve of the ordinary civil courts acquiring jurisdiction). Accordingly, only a very small proportion of the whole body of this earlier material which I have looked at will be referred to here. Within the category of bodily injury, the law used sub-categories principally based on the nature of the impact on the body to give precision to the case; all of these can be found in ius commune specialist works on crime/delict. As mentioned above, their importance was to 48   Somervile (1534) 1(1) Pitcairn 167; Forbes (1626) S A Gillon (ed), Selected Justiciary Cases 1624–1650, vol 1 (Stair Society, vol 16) (1953) 45; Angus (1636) Gillon, Justiciary Cases, vol 1, 263 (dismembering of a nose); Garden v Tenants and Servants of the Earl of Aboyne (1674) Scott-Moncrieff, Justiciary Records, vol 2, 273 at p 284; Scott (1618) 3 Pitcairn 454; Campbell (1630) Gillon, Justiciary Cases, vol 1, 148 – a case of deprivation of liberty tanquam in privato carcere followed by murder; McLure [McLucas] (1650) Irvine Smith, Justiciary Cases, vol 3, 838.



uni t y i n di ve rs i t y

47

the “sentence”, both in the sense of punishment, and in the sense of remedies for a private pursuer. (b)  The sub-categories of bodily injury based on the nature of the     impact on the body There were five sub-categories of the category of bodily injury based on the nature of the impact on the body. One or more of them were capable of covering any type of intentionally caused physical injury. The list may originally have been closed. In one case, however, the Justiciary Court, comparing its jurisdiction with that of inferior courts, treated an averment of making a person lame as a crimen in suo genere.49 All of the five sub-categories were already familiar at the start of the 16th century.50 More than one or even all of them51 could be separately pled in a single case. In practice a defender/accused might, for example, confess to “hurting” the person, but contend that blood was not drawn,52 and, likewise, a defender/accused could be found liable for “hurting”, while found not liable for “blood”.53 In ascending order of seriousness the five sub-categories were: (a) “invading”, signifying invasion of the person but without necessarily any physically manifest harm to the body;54 (b) “hurting”, 55 where there was physical harm, but no blood was shed; (c) “wounding”; (d) “effusion of blood”, sometimes described simply as “blood”, or “blooding”; and (e) “mutilation”.56

“Demembration” or “dismembration” (which had reference to the severance of a distinct part of the body from the whole) was   Hervie (1627) Gillon, Justiciary Cases, vol 1, 67 at p 68.  The following footnotes give early examples. 51  Eg Crombie (1638) Gillon, Justiciary Cases, vol 1, 290; Rois (1638) Gillon, Justiciary Cases, vol 1, 363 at p 364: “invaiding, persewing, wounding, mutilation and amputation” (ie all the categories other than “blood”). 52   Kennertie v Pantoun (1649) D Littlejohn (ed), Records of the Sheriff Court of Aberdeenshire (1896), vol 2 (printed for New Spalding Club), p 50: “that he bled not the said Alxre Kennertie bot that they being at the pleughe togidder and having discordit the said Patrick strake the said Alexr with the patle”. 53   Leith (1649) Littlejohn, Aberdeenshire Sheriff Court 51: the defender was found liable for “kneeing and oppressing the pursuer” (who was awarded £5 Scots); Cushnie v Tailzour (1649) Littlejohn, Aberdeenshire Sheriff Court 48. The use of the word “assault” in these and some other entries is editorial. 54  Eg Bartlett (1612) Littlejohn, Aberdeenshire Sheriff Court 2. 55  Eg Tenent (1543–44) 1(1) Pitcairn 330: “hurting ilkane utheris”. 56   Ker (1528–29) 1(1) Pitcairn 139 at p 140; Somervile (1534) 1(1) Pitcairn 167. 49

50

48

r i ght s of p e rs o n al i t y

originally a variant of mutilation, but emerged in the 17th century as a separate sub-category. The first case in the published records using either of these terms on its own dates from the 1640s.57 The memorable nature of the title of Sir Alexander Seton of Pitmedden’s late 17th-century work, A Treatise of Mutilation and Demembration (1699), gives a false impression of the significance of the term “demembration”. Pitmedden does not refer to any Scots cases for his clear distinction between it and mutilation, relying for that instead on some continental jurists, medical writers and theologians. Moreover, he did not consider that the distinction was relevant to what the sub-categories were essentially for, ie determining the “sentence”. Its only significance was that in a case of demembration in contrast to other forms of mutilation, it was not necessary to wait for a year and a day before proceeding – a rule the function of which was to provide certainty that the part of the body was permanently damaged,58 which it was by definition where it had been severed from the body. “Mutilation” was the most serious type of impact. This was trite ius commune learning. Roman law texts established that iniuria could be atrox because of the part of the body injured.59 The justification for the category “mutilation”, however, stems from the moral theology of Aquinas.60 Mutilation, as an invasion of a distinct part of the human body, disrupts the whole.61 The very nature of man conceived corporally is injured.62 Lesser invasions of the body are of another order as they do not do this. In the scheme of Aquinas the damage they cause is to the senses, as with pain.63 As mutilation was a bodily

57  See the references to “demembration” in Roger (1641) Irvine Smith, Justiciary Cases vol 2, 505; Young (1642), Irvine Smith, Justiciary Cases, vol 2, 529. 58  See Halyburton (1640) Irvine Smith, Justiciary Cases, vol 2, 389, editorial note 3 at p 391. 59   Justinian, Institutes IV,3,4,9; D.47,10,9 (Paulus). 60  St Thomas Aquinas, Summa Theologica 2.2.q 65 (Of Other Injuries Committed on the Person). 61   Summa Theologica 2.2.q 65.3 – explaining why consent to mutilation does not excuse, “quia per hoc fit iniuria communitati, cuius est ipse homo et omnes partes eius”; “because this would involve an injury to the community, to whom the man and all his parts belong” (trans by Fathers of the English Dominican Province, 2nd rev edn, 1912–36). 62   Summa Theologica 2.2. q 65.a 1.obj 1: “Sed secundum naturam a Deo institutam est quod corpus hominis sit integrum membris; contra naturam autem est quod sit membro diminutam”; (for according to nature it is appointed by God that a man’s body should be entire in its members, and it is contrary to nature that it should be deprived of a member). 63   Summa Theologica 2.2.q 65.a2 obj 3 resp – (in the context of considering the right to chastise) comparing mutilation with beating the body: “mutilatio corporis integritatem, verberatio, vero tantummodo afficit sensum dolore. Unde multo



uni t y i n di ve rs i t y

49

physical injury of a different order from such lesser invasions, a sheriff at the start of the 16th century considered it appropriate to remit a case of mutilation to a superior court, the Justice ayre.64 As it was the disabling from use of a part of the body, it was the practice to specify the part in question,65 such as the “left hand”,66 the “right arm”,67 “right leg” and so on.68 This was not (as it was in a case of “hurting” or “wounding”)69 purely descriptive. Mutilation would be separately considered.70 If on the evidence of surgeons the disability was not established, the defender/accused was still liable for hurting or wounding the part of the body in question.71 Separate averment that there was effusion of blood, is routine from the early 16th century both in the superior72 and inferior courts.73 It continues right up to the early 19th century, though fading away when the Court of Session at that time started to exercise jurisdiction in bodily injury cases. It may have been necessary in those lower courts where the court itself had a right to collect the “bloodwite”,74 a fine in respect of the shedding of blood, not fines for bodily physical injury more generally. Its significance for punishment and the remedy of monetary compensation is apparent from 16th-century cases where it was specifically stated that the effusion was large.75 In the 17th century it came to be argued that it was necessary to specify what the wounds consisted of,76 an indication of increasing sophistication in the consideration of remedies.77 minus nocumentum est quam membri mutilatio” (mutilation destroys the body’s integrity, while a blow merely affects the sense with pain, wherefore it causes much less harm than cutting off a member). 64   29 April 1511: Littlejohn, Aberdeenshire Sheriff Court 98. 65  The earliest instance found in the published record is in Leslie (1543)(1) Pitcairn 328 at p 329. 66   Ibid. 67   Knowis (1554) 1(1) Pitcairn 365. 68   Cummyng (1555) 1(1) Pitcairn 374. 69   Both Knowis and Cummyng happen also to contain references to wounding on other parts of the body. 70  See Megot (1569) 1(2) Pitcairn 4 – where the mutilation aspect of the case only was continued to a later date. 71  See Megot (1569) 1(2) Pitcairn 7, where on a remit to surgeons they advised that they found him “neither mutulat [sic] nor impotent of his arme nor hand; bot that it wald be daylie better, gif he would make lauboris upoune it” (an early suggestion of malingering). 72   Somervile (1534) 1(1) Pitcairn 167; Canochsone (1535) 1(1) Pitcairn 170 at p 171. 73   Mathousone (1511) Littlejohn, Aberdeenshire Sheriff Court 59. 74  See R A Mactaggart, “Assault in the later Baron Courts” 1962 JR 99. 75  Eg Hoppringill (1555) 1(1) Pitcairn 374; Rynd (1557) 1(1) Pitcairn 399 (“in great quantity,”); Hay (1560–61) 1(1) Pitcairn 408 (“to the gret effusioune”). 76   Cheyne (1642) Irvine Smith, Justiciary Cases, vol 2 at p 470. 77  See further Section 2.2.7.

50

r i ght s of p e rs o n al i t y

(c)  The mechanism Consistent with the overall concept of “real injury”, terms used to detail the form of the defender’s act, such as “striking”,78 “beating”79 or “bruising”, standard in ius commune treatments,80 and in Scots case law and legislation81 were descriptive, not classificatory. Averments that there was a large number of people, “a convocation of the lieges”, that they carried “weapons invasive (or offensive)”,82 or used weapons of certain types (a statutory offence)83 were relevant only to punishment. (d)  Additional sub-categories related to the status of the party      injured, or to the place of the iniuria (i) Status of the party injured It was standard ius commune learning that the social and gender status of the party injured was relevant to the question of the remedy given for iniuria. For instance, that the victim was a minister of religion was recognised by statute,84 and the private party injured had a right to one half of the moveables of the defender, and, for example that the victim was female, was sometimes specifically averred.85 Two types of status of significance for the law of crime/delict, are not part of the law protecting personality rights. First, where a messenger-at-arms was injured in the course of exercising his duty, the wrong was called “deforcement”.86 It could give rise to an economic loss claim by a

 Eg Sommerveil (1669) Scott-Moncrieff, Justiciary Records, vol 2, 1 at p 7 (a case resulting in death). 79  Eg Dewar v Baxter (1662) Scott-Moncrieff, Justiciary Records, vol 1, 51. 80   Clarus, lib 5, 18 “verberare” (to beat) and “percutere” (to strike) and sv Iniuria: “pluribus modis committiture facto . . . si quis alterum percusserit alapa . . . vel cubito . . . vel cum manu sub mento . . . vaculo vel vulneravit” (by way of an act . . . if one should have struck another with the palm of the hand . . . or elbow . . . or with his hand on the chin . . . with a stick or have wounded him). 81  Eg in the reign of James VI APS (1593) record edn c 22; 12mo edn c 177 (see Hume, Commentaries, vol 1, p 326) provided inter alia that if a person “invaidis, strekis or hurtis” another in or near the Parliament when it is in session should be guiltie of treason. (See Reid (1640) Gillon, Justiciary Cases, vol 1, 387.) 82  See Sir George Mackenzie, Laws and Customs of Scotland in Matters Criminal (1678, 3 edns by different printers) (2nd edn, 1699), p 158. 83  Act anent Shooting and Bearing of Culverins and Dags: APS (1567) record edn c 23; 12mo edn c 9 and subsequent statutes. 84  Eg an Act for punishment of the committers of disorders in the kirk in time of divine service or forcers of ministers in their office and function: APS (1587) record edn, c 6; 12mo edn, c 27 and subsequent statutes. 85   Kincaid (1562) 1(1) Pitcairn 421: pregnant woman. 86  This is the most common meaning of the term. But the same term was also applied to forced sexual intercourse. See Section 2.2.4(b)(i) “Deforceing of women”. 78



uni t y i n di ve rs i t y

51

party who suffered because thereby diligence87 against the person or assets of a debtor had been frustrated. The officer could also sue as a private party for compensation or other private remedy.88 Second, where a party to a litigation was physically injured by a person on the other side, the situation constituted a statutory crime/delict89 which became known as “battery pendente lite”. The remedy, however, was not for the personality right infringed, but a quasi-penal one. The party injured, was ipso facto entitled to decree in the litigation. (ii) The place of the iniuria The place of the event could also make iniuria more serious. Two instances are routinely referred to, namely, iniuria on the highway, known as “besetting”90 or “unbesetting”,91 and in the victim’s home, which had been broken into, known as “hamesucken”. (The latter is not a peculiarly Scottish category and is considered in the specialised ius commune literature.92) More generally, seriousness was increased when the context was in court,93 or a church,94 or near the person of the monarch. (e)  The ius commune background (i) Terminology There are Latin terms for all of these sub-categories. The origins of this terminology lie in the language of the Corpus Iuris Civilis.95 It is adopted in those few instances in the later 16th century where Latin is still used in the published records of Scottish courts of criminal jurisdiction.96 It is used and expounded in the specialised ius commune  The technical Scots legal term for inter alia debt enforcement measures.  See Hume, Commentaries, vol 2, p 393, noting that this was so where there was not technically a deforcement. 89  See APS (1584) record edn c 14; 12mo edn c 138; APS (1594) record edn c 15; 12mo edn c 209. 90  Eg Dunbar (1536–37) Pitcairn 181. 91  Eg Brodye (1550) 1(1) Pitcairn 356. 92  Eg Farinacius, lib 3, tit 12, quaest 105, nu 218 – injuria ad domum, explained in lib 3, quaest 107, nu 142 (breach of cautio non offendendo). 93  In a “defensat”, burgh court in Edinburgh Tenent (1543–44) 1(1) Pitcairn 330. 94   Monypenny (1543) 1(1) Pitcairn 328: “hurting and wounding” of Gavin Dunbar, treasurer of the diocese of Ross, in the Cathedral of Ross at Fortrose by the Archdeacon of Ross, in the company of the bishop. 95  See, eg, citations in Heart (1637) Irvine Smith, Justiciary Cases, vol 2, 332 at pp 334–335 on when animus occidendi presumed: D.9,2,15ff (“vulneratus”: Aquilian liability); D.48,8,3 (incorrectly referred to as ad legem Juliam (correctly Corneliam) de sicariis) (“vulneravit . . . percusserit”); D.49,16,6 (“vulneravit”). 96   Rait (1570) 1(2) Pitcairn 16 (repledge of a case to a regality court): “invasionis . . . vulnerationis . . . sanguinis effusionem”; Striueling [sic] (1577) 1(2) Pitcairn 73 (surety’s undertaking): “lesionis ac vulneracionis (sic)”. The editorial heading, “Mutilation”, for this case is incorrect. 87

88

52

r i ght s of p e rs o n al i t y

literature. These are, however, sub-categories within the jurists’ wider taxonomy of delictual liability, which was based in the context of protection of bodily integrity, either on an extended understanding of iniuria, or on a general notion of delictual liability so as to cover in addition to non-patrimonial dimensions, patrimonial loss as well, or on combining the law of iniuria and Aquilian liability. (ii) Principle It is not just the terminology of the law which was embedded in Scots lawyers’ understanding of the ius commune. Where it was necessary to give precision to a sub-category, that was done (as in one case of “mutilation”)97 by considering approaches in ius commune sources.98 Seventeenth-century pleadings in the published records99 demonstrate that ius commune debates were relevant to such issues as for instance whether the nature of the weapon used to cause a wound (“vulnus”)100 or striking (“percussio”) with a stick could in law be sufficient proof of intention to kill (“animus occidendi”); whether it was a relevant defence to a charge of “wounding” that “ipse vulneratus dedit causam rixe [sic] et sibi imputare debet quod vulnera receperit”;101 and what as a matter of law could be implied from a wound with respect to the question of proof of the cause of the victim’s subsequent death.102 (f)  The emergence of “assault” and “riot” as terms (i) Assault There was no category or sub-category called “assault”. The history of the term in Scotland contrasts with that of “wrongous 97   Ross v fforbes (1667) Scott-Moncrieff, Justiciary Records, vol 1, 218 at p 219, argument for the defender, citing Baldus, Covaruvius [sic] ad tit Digest de judicii pub and Bartolus; at p 220 the argument of the Lord Advocate refers to Broplo, lib 3 cap 24. There appears to be no such jurist, and it may be a mistranscribing of Bartolo. 98  M Wasser, “Defence Counsel in Early Modern Scotland: A Study based on the High Court of Justiciary” (2005) 26 Journal of Legal History 183 at p 199 suggests that the court would follow Scots law and not the ius commune. However, there were often variant views in the ius commune. 99  The absence of 16th-century material must be because it has been edited out of the published version of the records. 100   Heart (1637) Irvine Smith, Justiciary Cases, vol 2, 332 at pp 334–335. 101   Cheyne (1642) Irvine Smith, Justiciary Cases, vol 2, 468 at p 470: “The person wounded gave cause by instigating a quarrel and so to him should be imputed responsibility for the fact that he sustained wounds.” 102   Sommerveil (1669) Scott-Moncrieff, Justiciary Records, vol 2, 1 – citing (at p 3) Clarus, § Homicidium No 11. 41 and 42; Farinacius, Quaest. iii. 11, 48 and 49; Gail and [Paulus] Za[c]chias, Questiones Medico-Legales [a major work on medico–legal topics, first published in Rome between 1621 and 1635]; and referring (at pp 4 and 5) to Clarus, Gomezius and Zachias.



uni t y i n di ve rs i t y

53

imprisonment”, which appears first at about the same time.103 “Assault” as an apparently nominate crime and delict only emerged in the early 19th century, in part as a result of English influence. A category can sometimes be a legal transplant, bringing its terminology with it. However, it is probably of some significance that the word, as opposed to a category, had by then already become familiar in Scots legal culture. Moreover, gradual shifts in its meaning over 250 years in Scotland may have made it easier to adopt the new outlook when it came. Until the late 17th century the rare uses of the term “assault” are confined to the military sense of an attack on a building,104 or going with forces to mount an attack on a person and his followers. 105 Its first use by a Scottish juristic writer is by Mackenzie, ie in the 1670s, in describing the crime of hamesucken, (a subcategory of real injury). There it had a potentially ambiguous meaning, either as extending the military meaning to anyone making assault on the house, or referring to the invasion of the victim in that dwelling.106 There is evidence of this second meaning appearing at exactly this period in criminal indictments. These sometimes included it along with many other more familiar terms to pile Pelion on Ossa as in “assaulting, beating, troubling, molesting and invading any persons in publick authority”,107 or “Threatening, Assaulting and Beating and Wounding”,108 or “invading and assaulting, beating, blooding, wounding and killing”.109 At this period, too, a clerk of the Edinburgh Justiciary Court used the term “assault” in his record of proceedings, variously as description of the mechanism used, where it was, for instance, drawing a sword110 (itself a statutory offence),111 or as a synonym for

 See Section 2.2.3(b)(iv).   Leyis (1569) 1(2) Pitcairn 8: “maist awfullie persewit, assaultit, and asseigeit the said castel, tour, fortalice and place [ie mansion house]”. 105   Lady Rothiemay (1637) Gillon, Justiciary Cases, vol 1, 282 at p 284. 106   Both meanings appear in Halliday v Ireland (1672) Scott-Moncrieff, Justiciary Records, vol 2, 104, the first published record of a case where the term “assault” is used in discussing the requirements for hamesucken. 107   Carnagie (1672), Scott-Moncrieff, Justiciary Records, vol 2, 116. The principal ground was based on an Act concerning burgh officers APS (1535) record edn c 35; 12mo edn c 26, where the word “assault” would not have appeared. 108   Fferguson (1673) Scott-Moncrieff, Justiciary Records, vol 2, 177. 109   McIntoshes (1674) Scott-Moncrieff, Justiciary Records, vol 2, 270; Carnagie (1672), Scott-Moncrieff, Justiciary Records, vol 2, 116. 110   Viscount of Stormont v Herreis [or Herries] (1667) Scott-Moncrieff, Justiciary Records, vol 1, 223. 111  See Mackenzie, Criminals (2nd edn, 1699), p 158. 103

104

54

r i ght s of p e rs o n al i t y

an “invasion” of the person. In using it in recording debates112 on the question of the requirements for self-defence in homicide cases, he noted an argument that the defender must have been “first assaulted or at least threatened”,113 manifestly not the early 19th-century usage, which includes the latter within the term.114 That he was not using it to denote a distinct category is confirmed by a marginal note “invaidit”. How widespread this usage was is unclear. Though rare in the records of the Justiciary Court of Argyll which run to the mid18th century, it is used in a few cases in what appears to be the same sense.115 Bankton (who acted as counsel in a bodily physical injury case in Argyll in 1716)116 in the middle of the century uses “assault” in exactly this combined way as an example of real injury, where there was an invasion of bodily physical integrity.117 (ii) Riot By the beginning of the 17th century “riot” had become a legal term.118 It is not, however, the Scots word for the crime designated by the Latin turba. It originated in ordinary language. It is found in some cases where the private pursuer119 sought monetary compensation for bodily physical injury,120 particularly in serious cases. 121 It could   Sinclair and HM Advocate v Barclay (1668) Scott-Moncrieff, Justiciary Records, vol 1, 270. This case reflected (at pp 271–272) a debate among ius commune authorities: see at p 271, citing Paul Voet, De duellis, ex omni jure decisis casubus, liber singularis: tit. An minantem liceat occidere; Decius L in omnibus ff de reg jur, H Cagnolus, Commentaria in tit D. de regulis juris antiqui (1585) N. 2; Ralstoun v Mason (1674) Scott-Moncrieff, Justiciary Records, vol 2, 287 at pp 287 and 290. 113  At p 271. 114  See Sections 2.2.6(b)(i) and 2.3.2(b) below. 115  Eg Mulcaster (1716), J Imrie (ed), The Justiciary Records of Argyll and the Isles (1705–42), vol 2 (Stair Society, vol 25) (1969) 236 at p 237: “attack invade and assaultit”; Murphey (1732) Imrie, Argyll Justiciary, vol 2, 452 at p 453: “assaulting . . . and taking hold of him by the hair of the head”. See also Cochran (1717) Hector, Renfrewshire Sheriff Court, 218: “by way of hamesucken . . . Assault him and gript him . . . threw him doun . . . held him down”. 116   Campbell (1716) Imrie, Argyll Justiciary, vol 2, 314 at pp 318–321 – Information for the defender. 117  See Section 2.2.8(e) (below). 118   Johnnestoune (1605) 2 Pitcairn 461 at p 462. 119  Eg Fferleir and Bisset and HM Advocate v Watson (1673) Scott-Moncrieff, Justiciary Records, vol 2, 134. 120  At p 137 – the sum of 400 merks as “fine” was to be paid to him. “Nisbett” is obviously an error for “Bisset”. 121   Dewar v Baxter (1662) Scott-Moncrieff, Justiciary Records, vol 1, 50 in the context of an argument whether the Justiciary Court could deal with the matter when the defender had been fined already by a baron court. See also Sheriff Irvine Smith in note to Brownes v Symsone (1640), Irvine Smith, Justiciary Cases, vol 2, 392 at p 393, using today’s understanding of “aggravated”: cases of “aggravated and prolonged assault”. See Section 2.3.2 (b) for earlier meaning of “aggravated”. 112



uni t y i n di ve rs i t y

55

be used to describe also a situation of oral abuse,122 or one where that where there was both that and physical acts.123 It had no special significance in legal analysis. (g)  Molesting In Scotland in the 16th and 17th centuries there is no such thing as having even the appearance of a nominate delict of personal “molestation”124 as opposed to “molestation” infringing quiet possession of land. The term was, however, used as one of several standard terms of style in many cases of “lawburrows” the undertaking of which could be required by a court of a person likely to harm another.125 There it had the same limited descriptive functions as other terms such as “trouble”, or “troublance”.126 As noted above,127 in the later 17th century the word “molesting” could be piled up with others as in the phrase: “assaulting, beating, troubling, molesting and invading”, and also occurred in an omnibus phrase in legislation relating to deforcement of messengers.128 A 20th-century view that lawburrows is competent “where there is a possibility of personal assault”, but the remedy for “personal molestation” is interdict,129 is unhistorical. In truth, in the culture of endemic violence in 16th and 17th century Scotland, it would have quite unreal to think that someone might have reason to be concerned about being troubled by another, and not at the same time anticipate that that might lead to physical injury. The context in which “personal molestation” was first developed in the later 19th and 20th centuries protecting one spouse from the other130 would normally have been dealt with certainly in the 16th and 17th centuries, and perhaps for some time later, by social disapprobation and church discipline. Judicial separations of spouses on the basis of cruelty were possible, but uncommon and proceedings were

122  See Dictionary of the Scottish Language (DSL) – Dictionary of the Older Scottish Tongue (DOSL) available online at www.dsl.ac.uk sv “Riot”, “Ryot(t)”. 123   Campbell (1710) Imrie, Argyll Justiciary, vol 2, 248. 124  The notion of a distinct category does not obviously pre-date its use in H Burn Murdoch, Interdict in the Law of Scotland (1933). (See Ward v Scotrail Railways 1999 SC 255 at 259 per Lord Reed.) 125  Eg Chirnesyde (1616) 3 Pitcairn 402 at p 414. 126  Eg Burgh Law of Dundee, 18 January 1567: “the Baillies tryer of the said Blood and Troublance” in A J Warden (ed), Burgh Laws of Dundee (1872), p 15. 127  See text at n 88. 128  See Mackenzie, Criminals (2nd edn, 1699), p 129, stating that the the words in the legislation “molested, invaded, or pursued to the effusion of their blood” were wrongly punctuated and “should all be put in one sentence”. 129  D M Walker, Delict (2nd edn, 1981), p 457. 130   Ward v Scotrail Railways 1999 SC 255 at 259 per Lord Reed.

56

r i ght s of p e rs o n al i t y

frequently unsuccessful.131 One instance of the use of the term in the modern sense, however, occurs in connection with a case on deprivation of physical liberty in the first half of the 18th century.132 The development of “personal molestation” in late 19th-century Scots law may thus have an 18th-century precursor that constitutes the link between it and the earlier descriptive sense of the term in the context of lawburrows. 2.2.3  Liberty of the person (a)  The nature of the personality right infringed The contexts in which infringements of liberty of the person gave rise to legal claims in 16th- and early 17th-century Scotland were typically physical abduction (the term of art for kidnapping) and detention in captivity by private parties. In indictments133 liberty of the person was characterised as derived from the relation of the individual to the state. The person is “the King’s free man”.134 Protection is given because wrongful deprivation of liberty is a usurpation of the Crown’s authority.135 (Hume’s statement that this was “rather a strained notion” 136 is a product of the mind-set of the late 18th century.) However, it may be that the use by the courts in this period of ius commune categories to give remedies in cases of deprivation of personal liberty carried with it, even in the 16th century, an awareness of the theoretical understanding of liberty as developed by contemporary late scholastic philosophy137 and theology. This held liberty to be an essential element of the nature of man. It has been argued that such an understanding informed contemporary

 L Leneman, Alienated Affections: Divorce and Separation in Scotland 1684– 1830 (1998), pp 13–15. 132  See text accompanying n 555. 133   Magge (Mcghie) (1508) 1(1) Pitcairn 54; Gulane (1550) 1(1) Pitcairn 356 (where blackmail was sought for release); Innes (1561) 1(1) Pitcairn 411 (where ransom was sought for release); Scott (1566) 1(1) Pitcairn 480 “stoping hir Hienes to use hir libertie”; Chirnesyde (1616) 3 Pitcairn 402 at p 407 “Put to libertie, he frelie, volunterlie, and willingly repairit to the Place of Eist Nisbet”. An order for release from lawful imprisonment was “to be putt to libertie” Gyb (1590) 1(2) Pitcairn 187 at p 189; Couper, Petitioner (1674) Scott-Moncrieff, Justiciary Records, vol 2, 224. 134   Suthirland (1539) Pitcairn 222. 135   Innes (1561) 1(1) Pitcairn 411 – “usurpand thairthrow our soverane ladeis auctorite”; Oliphant (1571) 1(2) Pitcairn 24 – “auctoritatemque regiam inde usurpando”. 136  Hume, Commentaries, vol 1, p 83. 137  A discussion of this philosophical material is R Schüßler, “Moral SelfOwnership and Ius Possessionis in Scholastics” in V Mäkinen and P Korkman (eds), Transformations in Medieval and Early-Modern Rights Discourse (2006) 149. 131



uni t y i n di ve rs i t y

57

commentary138 on the category, crimen privati carceris.139 In the second half of the 17th century Stair was to develop a view of liberty that has been shown to have a demonstrable philosophical and theological basis.140 As already noted, unlike the protection of bodily integrity, the law develops on a new basis in the 18th century (consequent on the Court of Session exercising jurisdiction under the Act anent Wrongous Imprisonment of 1701). In the 17th century, however, imprisonment by a court without legal ground had already appeared as a new context giving rise to claims, though dealt with, like bodily injury claims, in the criminal process.141 From the 17th century, characterisation of the right of “liberty” in the case law reflects political and cultural development. No longer regarded as derived from the monarch, liberty of the person is seen as having an independent value. Thus it was then pled that it was “the great interest of the people”.142 This reflects what then were “increasingly the philosophical commonplaces of the age”.143 In the 18th century it was the need to find the right balance between liberty as thus characterised, and the appropriate protection against disorder, which was to mould the law. In the 16th and 17th centuries, it was ius commune classifications which were readily used in the then standard context of abductions and involuntary detention by private parties. (b)  The 17th-century requirements – the ius commune     classifications (i)  Generally The starting point in cases of deprivation of liberty in the 17th century was that the deprivation was against the will of the 138  See I R Vázquez, “Cárceles públicas y privadas en el Derecho medieval y castellano. El delito de cárceles particulares” (2006) 28 Revista de Estudios Histórico-Jurídicos 339 at n150 considering its treatment by the late scholastic theologian Domingo de Soto, De Iustitia et Iure (first published 1553) lib 5 quest 2 art 3. My awareness of the ius commune literature on the crimen privati carceris is derived from this article. 139  See further Section 2.2.3(b)(iv). 140  See Section 2.2.8(c). 141  A difference is that it seems from the published records that inferior criminal courts did not exercise a jurisdiction in this area. 142   Reid and HM Advocate v Taylour (1674) Scott-Moncrieff, Justiciary Records, vol 2, 219 at p 223 per Lord Advocate, arguing that “wrongous” imprisonment by a Scotsman of a Scotsman in England should not only give rise to liability to the private party, but also prosecution for a criminal sentence. (See further Section 2.3.3(b)(iv).) 143   J Cairns, “Historical Introduction” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 1, 14 at p 130.

58

r i ght s of p e rs o n al i t y

victim.144 Preliminary acts such as “besieging”,145 or “assieging”,146 the party in his house, and the method used such as the form of abduction,147 the length of time in which a person was held,148 and the conditions surrounding the detention,149 were solely relevant to the seriousness of the offence and so to the consequences for the defender if the case were established. Ius commune sub-classifications were not based on seriousness as they were in cases of bodily injury. They were developed, and the details much controverted, in giving modern effect to Roman classifications concerning crimes of deprivation of liberty. They were to a significant extent artificial. The relevant Roman texts were those covering raptus, plagium and what had become known in the ius commune as the crimen privati carceris. Again, they are consistent with the basic concept of iniuria, and perhaps in a case where there were patrimonial consequences150 arising from deprivation of liberty, with Aquilian liability. During the 17th century the category of “wrongous imprisonment” appears as a category, better suited to a changed context in society, of ideas previously discussed in the context of these ius commune categories. The ius commune sub-categories (capere; abducere; detinere) are latent in the Scots words used in the averments. It would always be averred that there was a “taking” (and sometimes “apprehending”),151 or a “conducting”152 (or “carrying off”,153 or 144  Eg Earl of Eglintoune (1511) 1(1) Pitcairn 74; Armestrang (1535) 1(1) Pitcairn 171; Suthirland (1539)1(1) Pitcairn 222. 145   Kennedy (1558) 1(1) Pitcairn 403. 146   Barclay (1576) 1(2) Pitcairn 65 – “assaging and persewing of the said house”; Dalmahoy (1579) 1(2) Pitcairn 83; Mowat (1596) 1(2) Pitcairn 388 – asseiging him therein [in his house]”. 147   Suthirland (1539) 1(1) Pitcairn 222 – “under silence of night . . . from his naked bed”; Oliphant (1571) 1(2) Pitcairn 24 – “pro tempore in lecto dormienti, extra eandem domum manu forti et violenter capiendo” (being at that time sleeping in bed, taking him with violence from the said house, laying forcible hands on him). 148  Either generally, as in Craufurd (1550) 1(2) Pitcairn 349 (“detaining in captivity for a certain space”); Oliphant (1571) 1(2) Pitcairn 24 “per longum spacium”; or for a specific period. In Suthirland (1539) 1(1) Pitcairn 222, a pre-Reformation case, the period is given by the ecclesiastical calendar. Later cases specify the time in hours or days, eg Innes (1561) 1(1) Pitcairn 411 – 4 days; Roise (1571) 1(2) Pitcairn 25 – 20 days or more. 149   Roise (1571) 1(2) Pitcairn 25 at p 26 – “bundin in irnes”. 150   Chirnesyde (1616) 3 Pitcairn 402 – where the private party pursuer was the person with the right to control the marriage. 151   Gulane (1550) 1(1) Pitcairn 356; Calder (1606) 2 Pitcairn 516; Crawford (1598) 2 Pitcairn 44; Chirnesyde (1616) 3 Pitcairn 402. 152  Eg Lady Symple (1555) 1(1) Pitcairn 381; Innes (1561) 1(1) Pitcairn 411. 153  Eg Armestrang (1535) 1(1) Pitcairn 171. Damages were paid to the private party as the defenders compounded (for the process of “compounding”, see Section



uni t y i n di ve rs i t y

59

“leading”),154 or a “detaining”, (which could be specified as “in captivity”)155 or an “incarcerating” (or “warding”,156 or other words indicating imprisonment) of the victim, or a mix of these.157 The three sets of terms obviously describe the actual act of taking hold of the person, the removing to somewhere else, and the keeping there. They have precise Latin equivalents all of which are found in the ius commune interpretations of the relevant Roman texts. These appear where Latin was used in Scots procedure.158 They are expressly linked to the ius commune treatment in the only case where the arguments for the parties have been published.159 The assertion that violence was required ad crimen plagii vel raptura was based on an assertion that it was necessary there was an abductio (ie taking ), then deportatio (ie carrying off), and then that he was detained quasi in carcere (ie de facto imprisoning).160 (ii) Ravishment and plagium Until the end of the 17th century, the categories of ravishment and plagium, following the dominant view amongst ius commune writers, concerned deprivation of liberty generally. They were in effect the same, though it may be that for the former it had to be libidinis causa (presumed where the victim was young).161 It was finally established in a case in 1616,162 following the view of Julius Clarus,163 that the 2.2.7(b)); Calder (1606) 2 Pitcairn 516: “convoying him” to Argyll. The case is civil one because it proceeds with sureties to satisfy the party, a remission having been granted to all the defenders by the Crown. 154   Suthirland (1539) 1(1) Pitcairn 222. 155   Ibid, where the Commissary (ecclesiastical judge) of the Diocese of Caithness was detained “in captivity” in the Dean’s chamber; Craufurd (1550) (1) Pitcairn 349. 156  See Scott (1566) Pitcairn 480 – where following the murder of her secretary David Rizzio the defenders were pursued criminally also for “warding” the Queen and convicted of holding her “in prison”. 157  All four terms are used in the early case, Scot v Earl of Eglintoune (1511) 1(1) Pitcairn 74. Damages were paid to the private party as the defenders compounded. (For the process of “compounding”, see Section 2.2.7(b).) 158  In Oliphant (1571) 1(1) Pitcairn 24, the editor has chosen to reproduce the record in Latin of a cautioner’s undertaking that the defender would appear to answer in such a case of “capiendo, rapiendo et abducendo . . . ipsamque in captivitate . . . postea detinendo”. The indictment in treason cases was always in Latin so in the case arising from the Ruthven Raid, Earl of Angus (1584) Pitcairn 119 at p 122 “nostram personam apprehendere et captam detinere . . . deduxerunt”. 159   Chirnesyde (1616) 3 Pitcairn 402. 160   Ibid per counsel for the defenders at pp 408 and 412. 161   Clarus, § Raptus; Farinacius, lib 5, tit 16, quaest 145, nu 75–78. 162   Chirnesyde (1616) 3 Pitcairn 402. A later example where the victim was male is Ker (1649): Irvine Smith, Justiciary Cases, vol 3, 826. 163   Clarus, §6 Raptus: Raptum viri etiam puniri pena Raptus ac si Virgo rapta esset. (His requirement of libidinis causa is not mentioned in the published record.)

60

r i ght s of p e rs o n al i t y

Roman texts relating to ravishment were not in Scotland read as being confined to cases where there was copulation.164 The mediaeval English approach, requiring copulation though found in Regiam Majestatem165 was not followed.166 The dominant ius commune approach was preferred. Any Scots scruples could anyhow be satisfied as there was also support for it in a passage in Skene’s edition of Quoniam Attachiamenta.167 Thus, a typical averment would be, “Ravishing of Rebecca Maxwell, his daughter, taking her away to the place of Barrochane and keeping hir in strait firmance by the space of fifteen days”.168 Plagium was not confined to cases where the victim was a child.169 A case in 1640170 pursued “for ravishing and away-taking” of a man, prompted Mackenzie, who, contrary to the Scottish cases, confined ravishment to cases where the victim was female, to state, “but this is rather a species of plagium than of Rapt”.171 An advantage for pursuers/prosecutors of pleading plagium was that the relevant text in the Digest title on the Fabian Law on kidnappers specifically covered a party who was art and part (socius) in the act of abduction.172   Kennedy (1537) 1(1) Pitcairn 182; Craufurd (1550) 1(2) Pitcairn 349. The editor’s heading “Ravishing (forcible abduction)” indicates that there was no allegation of sexual conduct. In the latter case it looks unlikely that it is the taking of a man’s wife to bring pressure to bear on him; Fleming (1596) 1(2) Pitcairn 377; Kincaid (1601) 2 Pitcairn 336. 165   Regiam Majestatem, lib 4 c. raptus 9 [correctly “Of Revissing of Wemen” 8], referring to the “pleas of the Crown”. This is the reason for the definition of “Ravishing” given by Skene De Verborum Significatione (1597) sv Raptus as where “ane woman accuses ane man, allegand she is oppressed or defiled be him against the Kingis peace”. 166   Compare also the definition of rape as a plea of the Crown in Of Crimes and Judges in Criminall Causes, Conforme to the Lawes of this Realme (1609) p 133 defining “Revissing of Wemen” as one of the pleas of the Crown by reference to Regiam Majestatem 4.8 as “quhen ane woman is forceablie oppressed and defyled in her bodie, be ane man”. 167   Quoniam Attachiamenta cap 95 de Raptu heredis maritagium dentis et ejus pena (Skene’s edn, 1609, p 98). 168   Fleming (1596) 1(2) Pitcairn 377. 169   Bannatyne (1596) 1(2) Pitcairn 379. Perhaps an attempt at forced marriage of an heiress. 170   Ker v Cunningham, unreported, 6 February 1640. 171  Mackenzie, Criminals (2nd edn, 1699), p 83. 172  D.48,15,6,2 (Lex Fabia de plagiariis) “Lex Fabia cavetur, ut liber, qui hominem ingenuum vel libertinum invitum celaverit invinctum habuerit emerit sciens dolo malo quive in earum qua re socius erit, ... eius poena tenetur.” (It is laid down by the Lex Fabia that a freeman who hides another, freeborn or freed, against his will, or keeps him in fetters or buys him, knowingly with malicious intent, or who is an accomplice in any of those things, . . . is liable to the penalty [of the statute]”. (Mommsen-Krüger-Watson trans), cited in Viscount of ffendraucht (1664): ScottMoncrieff, Justiciary Records, vol 1, 100 at p 103 per counsel for the pursuers. 164



uni t y i n di ve rs i t y

61

An important consequence of applying these categories as understood in ius commune literature was that the focus comes to be on the nature of the act. The requirement was violence or, following the majority173 ius commune view, that the defender “intyset and seducet” the victim, on the principle as expressed by the late mediaeval jurist, Bartholomaeus à Saliceto,174 “Quod persuasio dolosa, in talibus, plus est quam violenta tractio”.175 Thus, in much the same way as in connection with the protection of moral sexual relations, where the focus was likewise in the ius commune on such an act and its proof, the link with iniuria is still there, but the requirement of animus is given a broader meaning than generally in iniuria. (iii)  Crimen privati carceris Holding a person in captivity brought into consideration a further ius commune sub-category: the crimen privati carceris.176 It could be relevantly pled along with ravishment177 or plagium. The details of the category were particularly elaborated in writing by the criminalist writers of the late 16th and early 17th century. On one view, for instance, it applied even where the person was not held in a building.178 It is exactly at this time that the Latin terminology for the category starts to appear in the Scottish published sources; it was said that the victim was held “tanquam in privato carcere”,179 or “tanquam in carcere”180 or “quasi et tanquam in   Chirnesyde (1616) 3 Pitcairn 402 at p 413. The unsuccessful defenders argued that there must be “violence and violent deids to that effect”, on the authority of “Julius Clarus, Baldus, Hostiensis and the remanent Douctouris treittand de crimine Plagii vel Raptu Virginum”. 174   (c 1350–1411), incorrectly referred to in the published record as Salicotus. 175   (Because deceitful persuasion in such thing amounts to more than a violent abduction.) In addition to this passage from Bartholomaeus a Saliceto, Farinacius, de Delictis carnis [ie lib 5, tit 16,] quaest 146; Gothofredus ad Legem Raptores; Baldus ibid and “Chessa” (ie Bartholomaeus Chassanaeus 1480–1541) de Consuetudine Burgund (ie Consuetudines Ducatus Burgundiae fereque Totius Galliae . . . Commentariis”) Rub 1 p 57 are cited by the successful pursuers. 176  See Vázquez (n 138 above) (2006) 28 Revista de Estudios Histórico-Jurídicos 339. 177   McIntoshes (1648) Irvine Smith, Justiciary Cases, vol 3, 769. 178   Farinacius, lib 1, tit 4, quaest 27, nu 11 referring in particular to Bertazzo [ie Bartholomaeus Bertazzolius (Claudius Bertazzolius (ed)) Cons[ilia seu Responsorum] Crim[inalium, et Penalium] (1585)] 426, 46. The category is, however, not referred to where the person was held in the “Wod [ie wood] of Kilblen” (Gordoun (1580– 81) 1(2) Pitcairn 94). 179   Campbell (1630): Gillon, Justiciary Cases, vol 1, 148; Viscount of ffendraucht (1664): Scott-Moncrieff, Justiciary Records, vol 1, 100 at p 102. 180  In the treason case arising out of the Ruthven Raid, Earl of Angus (1584) 1(3) Pitcairn 119 at p 121, referring to the King’s being deprived of his liberty by being held by the conspirators in one of his own castles. 173

62

r i ght s of p e rs o n al i t y

carcere”.181 In a later 17th-century case against McLeod of Assynt this criminalist literature was expressly considered.182 However, the category, based as it was on Roman texts,183 was also recognised in the mediaeval period184 and earlier in the 16th century, and probably lies behind the Scots “in prisoun”,185 “in strait prisoun”,186 “strait firmance”,187 or, indeed, “incarcerating”,188 found in some earlier 16th-century cases. It is possible, too, that two 16th-century cases where the local inferior court were alleged to have imprisoned without title are also instances.189 In one respect pleading the category assisted a private pursuer. There was at least a presumption that if the party holding the victim had not taken him or her to the relevant public authority within 20 hours, the crime/delict was committed.190 There was a political motive in the use of the category by rulers as a tool in enforcing central power against local magnates who locked up their subjects.191 There was also another advantage to the Crown in pleading the category. It could be argued that the crime was capital,192 either in itself193 as distinct from treason194 or perhaps as an aspect of treason.195 This   Chirnesyde (1616) 3 Pitcairn 402 at p 412.   McLeod of Assynt (1674): Scott-Moncrieff, Justiciary Records, vol 2, 224 at pp 226 and 232–233. 183   C.4,12,4 (De episcopali audientia etc); C.9,5,1 (De privatis carceribus inhibendis); C.10,31,54,1–3 (De decurionibus et filiis eorum et qui decuriones habentur quibus modis a fortuna curiae liberentur) (and also D.48,2,1). 184   Baldus de Ubaldis, In Quartum et Quintum Codicis libros Commentaria; Bartolus de Sassoferrato In Secundem Codicis Partem and Tractatus de carceribus in Concilia, Questiones, et Tractatus. See Vázquez (n 138 above) (2006) 28 Revista de Estudios Histórico-Jurídicos 339. 185   Scott (1566) 1(1) Pitcairn 480. 186   Innes (1561) 1(1) Pitcairn 411; Roise (1571) 1(2) Pitcairn 25 at 26. 187   Fleming (1596) 1(2) Pitcairn 377. 188   Anstruther (1529) 1(1) Pitcairn 141; Lady Symple (1555) 1(1) Pitcairn 381. 189  Eg Scot v Earl of Eglintoune (1511) 1(1) Pitcairn 74 – incarcerating in the Tolbooth at Irvine; Hay (1598) 2 Pitcairn 43 – the private pursuer unsuccessfully sought to prevent the Crown abandoning in this case, arguing that it was “against justice” and “the Act of Parliament” (unidentified). 190  Vázquez (n 138 above) (2006) 28 Revista de Estudios Histórico-Jurídicos 339; Farinacius, lib 1 tit 4 quaest 27 nu 21. The length of time the victim was allegedly held is, accordingly, stated in pleadings: eg Campbell (1630): Gillon, Justiciary Cases, vol 1, p 148 – “four dayis”. 191  Emphasised with respect to Spain in the mediaeval period and the 16th century in Vázquez (n 138 above) (2006) 28 Revista de Estudios Histórico-Jurídicos 339. 192   Clarus, lib 5 [§. Fin – Practica Criminalis], quaest 28–30, and 68, nu 33. 193   McLeod of Assynt (1674): Scott-Moncrieff, Justiciary Records, vol 2, 224 at p 236. 194   McIntosches (1648): Irvine Smith, Justiciary Cases, vol 3, 769. 195   McGregour: Irvine Smith, Justiciary Cases, vol 3, 576 and other cases referred to by the editor there at p 576. 181

182



uni t y i n di ve rs i t y

63

political dimension is particularly manifest in the McLeod of Assynt case. 196 He had without title claimed a right to payments from passing ships, and imprisoned a ship’s captain in his own castle to enforce it. (iv) The emergence of the nominate delict and crime of “wrongous                imprisonment” In the second half of the 17th century the term “wrongous imprisonment”197 (in one case “false imprisonment”)198 first appears in the published records.199 Its origin is not clear. Possibly an awareness of contemporary English terminology helped to promote it.200 But its first development was to deal with new contexts of deprivation of liberty, that were not abduction, namely imprisonment initiated by a creditor and carried out by local authority without a legal basis, and imprisonment initiated by an authority for recovery of a tax and carried out by it. Neither context readily came within the ius commune subcategories (though it could have been argued, following ius commune commentary, that such a claim was actionable as iniuria or a nominate delict requring proof of maleficia). 201 The former context also involved the development of jurisdiction in the ordinary civil courts. This is consistent with the rule, established in the first case in the law reports of this type202 that in such a case the pursuer had first to suspend the charge to pay on which he had been imprisoned.203 An isolated case   McLeod of Assynt (1674): Scott-Moncrieff, Justiciary Records, vol 2, 224.   Lindsay v Maxwell (1667): Scott-Moncrieff, Justiciary Records, vol 1, 225; Wishart v Hamilton (1669): Scott-Moncrieff, Justiciary Records, vol 1, p 297 and 300; Aikman v Magistrates of Arbroath (1673): Scott-Moncrieff, Justiciary Records, vol 2, 189; HM Advocate and Munro v Earl of Caithness (1668) ScottMoncrieff, Justiciary Records, vol 1, 264. 198  The first instance identified is in the brief entry for Oliphant v Wemyss (1661): Scott-Moncrieff, Justiciary Records, vol 1, 5, recording that this “Persuit [sic] . . . for false imprisonment continued”. 199  Research in earlier manuscript records may reveal that the term was also used earlier than this. 200   Reid and HM Advocate v Taylour (1674): Scott-Moncrieff, Justiciary Records, vol 2, 219 at p 222 per Lord Advocate: “unjust and wrongous imprisonment by the law of England”. See also Stair, Institutions I,3,16: “The English have their action of false imprisonment, determining with great exactness in what cases imprisonment is lawful, and in what not.” 201  See Farinacius, lib 1, tit 4, quaest 27, nus 126–137 considering a claim against a judge for imprisoning “indebite” as grounded on injuria and rejecting the view that it required proof of maleficia is based on a misreading of the Roman texts. 202   Durkie v Cairns (1678) Mor 17065. 203  Like all rules of subsidiarity, this could appear to get in the way of justice. Fountainhall (at Mor 17605) observed that “many of the Lords thought [the rule] hard; for a poinding on a wrongous charge is a spuilzie, though the charge is not suspended, ergo”. 196

197

64

r i ght s of p e rs o n al i t y

of this type in the published records of the Justiciary Court had as its background a fraudulent representation that the party imprisoned was a debtor.204 That there is so little evidence of cases arising from this type of context until the late 17th century, and then none after the first years of the 18th century, until the 19th, is hard to explain. For the earlier period it may be that the infrastructure for imprisoning debtors was limited, and possibly in cases of insolvent debtors of the shaming of the person by their being compelled to wear a “dyvour’s habit” in public was more effective in the culture of the time. For the new context of imprisonment by a public authority without legal basis “wrongous imprisonment” was developed (in the Justiciary Court) in an ad hoc manner. Where a messenger at arms or sheriff officer took a person and imprisoned him without a warrant, the record characterised the case as “unwarrantable taking and incarcerating”.205 For liability where a judicial act such as a suspension had taken away a legal ground for imprisonment, the requirement was that the defender must be mala fide in the sense of disregarding the suspension when it was known to him.206 A case207 in 1663 against Justices of the Peace was argued on the basis of a recent statute concerning both their power to imprison and their power to fetter.208 In a case 10 years later an apparently minor defect in the appointment of magistrates was argued to make the imprisonment “unlawful”.209 2.2.4  Family life and moral sexual relations (a)  Preliminary Rights in family life and moral sexual relations can be seen as falling into two categories at this period. There are rights of certain individuals in the protection of their chastity. These, when infringed, 204   Reid and HM Advocate v Taylour (1674): Scott-Moncrieff, Justiciary Records, vol 2, 219 at p 222 (argument for the defenders) arguing that English law applied, as the imprisonment was in England and it was “only a ground for Dammage and Interest”, and not a crime. 205   Anon v Erskine (1672): Scott-Moncrieff, Justiciary Records, vol 2, 103. 206   Wishart v Viscount of Ffendraught (orse Ffendraucht) (1669): Scott-Moncrieff, Justiciary Records, vol 1, 298 at pp 298 and 299 – holding that a suspension intimated at the mercat cross would not affect the pursuer, or the Provost of the town where he was imprisoned unless they had actual knowledge of it; Traill v Boswell (1673): Scott-Moncrieff, Justiciary Records, vol 2 at p 181 – question of knowledge of advocation. 207   Bruce v Craigie (Town of Perth intervening) (1663): Scott-Moncrieff, Justiciary Records, vol 1, 75. 208  APS (1661) record edn c 338; 12mo edn c 38 (on justices of the peace). 209   Traill v Boswell (1673): Scott-Moncrieff, Justiciary Records, vol 2, 180 at p 181 per Sir George Mackenzie for the pursuer arguing simply that if the magistrates had not taken “the Declaration” (ie oath of allegiance?) their acts were unlawful.



uni t y i n di ve rs i t y

65

naturally involve an invasion of bodily integrity as well, and sometimes of reputation. However, at this period, particularly because of the heritage of canon law, the focus is on protecting the right to the status or reputation of a sexually moral person. Also recognised are rights of certain family members in the integrity of family life. (b)  Infringement of chastity (i) Deforceing of women Invasion in the form of sexual penetration by violent overbearing of the will was not in the 16th210 or 17th211 centuries described by the terms for rape, but as “deforceing”. A hot debate in the ius commune was whether it was, nonetheless, an aspect of raptus which certainly covered abduction (or according to some abduction libidinis causa), or whether it was form of stuprum. The Roman texts seemed to include it under the latter.212 Antonius Matthaeus II classified it as a version of “rapt”.213 Mackenzie’s view was that Scots law did also, but in contrast to Matthaeus it was in that form also punishable by death. This approach may have been necessary as the court with jurisdiction over rape was the Justiciary Court. (ii)  Stuprum Cultural context.  In a society such as early modern Scotland where the status of virginity, and in the case of widows, chastity, was of particularly high value and promoted by religion, quite apart from forcible infringements such as “deforceing”, the law gave protection in other situations. As just discussed, one view in the ius commune was that the whole field was a unity as stuprum.214 In Scotland those other situations were analysed as stuprum. Requirements for liability.  Stuprum can be seen loosely as a type 210   Kincaid (1562) 1(1) Pitcairn 421. In Flemyn (1508) 1(1) Pitcairn 60 at p 61 “Intromission” may have been used with this meaning in the phrase “ravishment and intromission”. 211   Broune (1605) 2 Pitcairn 463 – where there were averments of an intention to do this. See also Mackenzie, Criminals (2nd edn, 1699), p 83. 212  In particular C. 9, 12, 3 (ad legem Iuliam de vi publica seu privata) (specifically referred to by Mackenzie for that view). “Si confidis sponsam filii tui raptam esse vel filium tuum inclusum, instituere sollemni more legis Iuliae de vi accusationem apud praesidem provinciae non prohiberis”. (If, as you allege, your son’s betrothed has been taken away from him, or your son has been shut up, you will not be prevented from bringing an accusation of violence before the governor of the province under the provisions of the Lex Iulia.) 213  Mackenzie, Criminals (2nd edn, 1699), p 83: “Neither does our law”. 214   Stuprum in Roman law was the criminal offence of sexual intercourse between a man and a chaste woman, such as a virgin or widow, which brought dishonour on the woman. It was punishable by the lex Iulia de adulteriis coercendis: see Justinian,

66

r i ght s of p e rs o n al i t y of iniuria, but, though referred to by some Roman texts, it was greatly developed by canonists, and also explored by specialised writers on crime/delict.215 The requirements were intended to foster the policy of disciplining sexual morality, seeking to draw the right balance between discouraging unchastity in women, while giving protection against unchaste men. Accordingly, though stuprum by definition involved invasion of the body, there were features distinct from the basis of liability for the infringement of the rights of bodily integrity and of physical liberty. The first requirement was that the person was chaste and either a virgin or a widow. The dominant opinion of jurists considering the topic was further216 that chastity was rebuttably presumed. It is likely this was so in Scotland. A controversial question217 was precisely what conduct of the man was required, apart from having sex. Scotland took the line that it was that the man induced consent to sex by fraudulent misrepresentations, ie sex with consent thus vitiated, rather than with no consent and obtained by overbearing the will as in deforceing. The two required elements could be expressed as “seduxit” and “defloravit”.218 “Seduction” is not an adequate term for the subcategory. At this period it referred to the behaviour of the man that vitiated the consent the woman gave.

None of the available published material enables us to determine precisely what position the Scottish courts took on details of that issue, beyond that there had to be a “fraudulent abusing”,219 or “undue means”220 on the part of the man. The published records do not reveal if ius commune jurists were cited. But they could certainly be similarly vague.221 In one case222 the man asked a minister to Institutes IV,18,4; D.48,5,6,1 (Julian), stating that stuprum is committed against a virgin or a widow; cf D.50,16,101 (Modestinus) pointing out that the lex Iulia de adulteriis uses stuprum and adultery indifferently. 215  Eg Clarus, lib 5, § Stuprum; Farinacius, lib 5, tit 16, quaest 147. 216  Voet, Commentarii ad Pandectas 48,5,4. 217   Cf Voet ibid 48, 5, 2 where this aspect is not considered. 218   Gairdin v Lammye 5 May 1543; Liber Officialis Sancti Andree Curie Metropolitane in Scotia – Sententiarum in Causis Consistorialibus qui extant (Abbotsford Club, 1846), 84, where, for good measure, “dormivit cum” is added. 219   Irvine v Hamilton (13 July 1706) Hermand 67; Castlelaw v Agnew (11 March 1719) Hermand 68; Clerk v Fairweather (18 October 1727) Hermand 68. 220   Drummond v Sir Alexander Hope (2 August 1744) Hermand 68. 221   Farinacius, lib 5, tit 16, quaest 147, nu 34: “cum blanditiis, persuasionibus, promissionibus, dationibus pecuniarum & munerum, aut similibus fraudis & fallaciis” (with allurements, persuasions, gifts of money and things, and such frauds and deceits) and nu 56: “blanditiis et deceptionibus” (allurements and deceptions). 222   Irvine v Hamilton (13 July 1706) Hermand 67.



uni t y i n di ve rs i t y

67

“proclaim” them,223 paid the fee for that, when the pursuer was pregnant by him and living in Ireland, sent there by him, and wrote to her that he would not come over to Ireland, because he had heard ill of her reputation. Yet, if she could show the contrary he “would make good all promises to her . . . and she would not want anything for her subsistence”. In two cases224 the Commissary Court provided a monetary remedy to the innocent party who married the man, only to find the marriage null as he was a bigamist. Relation to a claim for patrimonial loss arising from a woman’s acting on the expectation of marriage.  The remedy for stuprum was a money award for the infringement of the personality right. As such it was not the basis of liability where a woman sought damages for patrimonial loss sustained on the basis of fraudulent representation inducing her to consider the man would marry her. A claim on that basis was, however, also recognised. Its difference from stuprum is confirmed by the Court of Session having jurisdiction even in the 17th century. It appears rather as a development beyond actions for breach of promise of marriage, which at this period only gave a right to claim patrimonial losses.225 In the one reported case,226 compensation was claimed for patrimonial loss in giving up her business and moving into a larger house preliminary to the anticipated marriage. Fountainhall, the reporter, characterised it as an action for “refunding her damages” and “ad reparationem damni”.227 The principle applied was that “the man had dolose induced a party to trust him”. (c)  The interest of an unmarried person in being accepted as      unmarried To protect the interest of a single person (of either sex) as being accepted as unmarried, the consistorial actions for the protection of personal status could be invoked namely the actions of “declarator of freedom” and “putting to silence”. At least in the case of women the right in part was founded expressly on iniuria. A case in 1736228 suggests that such an approach was long established. The remedy of a palinode (apology and recantation) was available, and probably

 Ie call banns of marriage.   Clerk v Fairweather (18 October 1727) Hermand 68; Morison v Dunlop (13 October 1756) Hermand 68. 225   For the change in the early 19th century to permit non-patrimonial loss in these cases see Section 2.3.5. 226   Hislop v Ker (1696) Mor 13908. 227  He refers to the view of the “casuists”. 228   Gairns v Jones (17 April 1736) Hermand 115 sv “Putting to Silence”. 223 224

68

r i ght s of p e rs o n al i t y

monetary compensation229 The core of the palinode manifestly reflects its basis in the law of iniuria: “that I was in the wrong, and that it was injurious of me . . . to have given out and asserted, that I was married to the pursuer . . . and ask pardon . . .”.230 (d)  Rights of certain family members in the integrity of family  life (i)  Claims by parents in abduction cases If an unmarried person was abducted, a personality right of the parents additionally was infringed.231 Some “abductions” were obviously in fact elopements colluded in by the person taken with a view to getting away from parents and marrying. In one case a party with the feudal right to control to whom an orphan married pursued,232 though his right was essentially patrimonial. 233 Logically it would seem that parents’ rights would be likewise unaffected by their child’s collusion. (ii)  Claims by parents where rights of a child in moral sexual     relations are infringed? The lack of published records or reports from the Commissary Courts makes it difficult at present to determine whether the law recognised claims by parents when one of their children suffered stuprum. However, at least some ius commune jurists recognised a claim of the parents under this head,234 significantly referring to the general law of iniuria as the ground for it. (iii)  Claims by wronged spouses – adultery and other infringements    of the marriage relationship 229  The pursuer obtained also decree for £12 “of damages and expenses”. The word “damages” by this date probably means compensation, rather than as earlier the consequential economic impact of pursuing the case. 230   Rob v Buchanan (19 March 1760) Hermand 97, sv “Palinode – Form of Palinode”. 231   Fleming (1596) 1(2) Pitcairn 377. 232   Chirnesyde (1616) 3 Pitcairn 402 233  In Chirnesyde (1616) 3 Pitcairn 402 the court held there was a right in rem (ie meaning here in respect of economic assets) though there was perhaps no right to control the young person generally, as the pursuer was neither a parent nor even a curator. 234  See Farinacius, lib 5, tit 16, quaest 147, nu 119; “puellae parentes si stupro non consenserint, possit stupratorem accusare, ac petere aestimationem damni ipsis propter stuprum provenientis”. (If the parents of the girl did not consent to the violation it is possible to proceed against the person who committed it and to seek compensation for the damage to themselves arising in consequence of the violation.)



uni t y i n di ve rs i t y

69

Adultery. Adultery was from the mid-16th century a statutory crime.235 Although lack of published records again makes it difficult to determine whether compensation was due for affront, an act of condonation by the innocent spouse, eg continued or resumed cohabitation, barring an action of divorce was treated as a remissio iniuriae.236 The standard text in Justinian’s Institutes for iniuria was generally used.237 The elaborations of remissio as a defence to adultery, by the late 16th- and early 17th-century Spanish jurist, Sanchez238 and the 17th-century Saxon criminalist and consistorial jurist, Carpzovius,239 were followed. Adultery could, and very often did, result in proceedings before the kirk session or presbytery. Proceedings of that type were distinguished as proceedings not for the crime/delict of adultery but for the “scandal” of adultery, in the sense of scandal to the Christian community.240 Likewise, such proceedings occurred in cases of “fornication”, a victimless breach of the moral order. The consequent performance of public penance such as standing in sackcloth before the congregation every Sunday for a period which could be as long as a year,241 while its principal function was moral discipline by the church, may in adultery cases be seen also as

235   By APS (1551) record edn c 12; 12mo edn c 20, notour adultery was punishable by escheat of moveables and by APS (1563) record edn c 10; 12mo edn, c 74, it became a capital offence. See D Baird Smith, “The Reformers and Divorce, a study on consistorial jurisdiction” (1911) 9 Scottish Historical Review 10. See, eg, Lady Milton v Lord Milton (1667) Mor 12637 – proof of “such crimes which allow of reiteration”. 236   Creditors of Watson of Damhead v Cruickshank (1681) Mor 330; the Latin form of the phrase is found as such in Campbell of Ederline v Lamont 10th December 1728 Hermand 122, sv “Remissio”. But the concept is clear in the other cases sv “Remissio” as well. 237  See Justinian, Institutes IV,4,12 (De Iniuriis):“Haec actione dissimulatione aboletur, ac ideo si quis iniuriam dereliquerit, hoc est statim passus ad animum suum revocaverit postea ex penitentia remissam iniuriam non poterit recolere”. (The right of action is lost if a man conceals his feelings. Therefore if a man ‘abandons his injury’, that is, does not immediately resent it, he may not afterwards change his mind and revive an injury which he has once condoned) (trans R W Lee). 238  Sanch De matr [ie Tomas Sanchez, Disputationes de Sancti Matrimonii Sacramento (first published 1592 ) [vol] l. [lib] 10. disp. 14. n. 18. Sanchez used “condonatio” as meaning remissio. 239   Carpz Jurispr Consist L.2.t.11. def. 197. n. 10.1ii (ie Carpzovius, Jurisprudentia ecclesiastica seu consistorialis rerum et quaestionum in principis Electoris Saxoniae Senatu Ecclesiastico et Consistorio Supremo). 240   Baird v Baird (1662) Mor 12630, argument for the defender “confession in the kirk was necessary to purge scandal”; Lesly v Nairne 12 June 1712 Hermand 120, sv “Remissio”. 241   For an example, see Baird v Baird (1662) Mor 12630.

70

r i ght s of p e rs o n al i t y

functionally fulfilling the role of an apology and seeking forgiveness of the wronged party. Claims by the innocent spouse for patrimonial loss sustained in the form of use of his assets by the adulterer are indicated242 in three Justiciary Court cases before 1600. 243 These reflect a context where a husband might be away for long periods and unable to know what was happening at his home given the difficulties of communication. In more than one 17th-century case a third party sued for patrimonial loss.244 Claim of a spouse for taking the other spouse. It does not appear that generally in cases of abduction, the spouse of the victim had a claim distinct from that of the victim.245 However, the claim of a husband against a person who was instrumental in his wife’s leaving him voluntarily was recognised as relevantly grounded on iniuria246 in an early 18th-century case,247 being an “injurious accession to her desertion”.248 The reporter249 characterised it as “an action [sic] injuriarum”.250 2.2.5  Privacy generally and informational privacy (a)  Of the home There is little material on invasions of privacy apart from invasions of informational privacy. This probably reflects the context of a society where there was less private space. However, the law of

242  The averment was “theftuous wasting of the goods, during the time [the paramour] lay with the wife”. 243   Dauidsoune (1498)1(1) Pitcairn 27 – a case where a Remission was produced in respect of that and a third party “became surety to satisfy the parties”; Patrik (1570) 1(2) Pitcairn 11 (including using the husband’s shop when he was away on business in England); Amullekyne (orse Amullegane and Amullekin) (1578) 1(2) Pitcairn 78. 244  See Laird of Milton v Lady Milton (1671) Mor 12105 – sequel to Lady Milton v Lord Milton (1667) Mor 12636, where a step-son had acquired the right to the wife’s jointure which would be lost on divorce; Creditors of Watson v Cruikshank (1681) Mor 330 – action by creditors of insolvent adulterous husband seeking reduction of divorce on grounds of collusion between him and his wife, and in view of remission by the wife. 245  See further Section 2.2.3. 246  Though it was held to require first a proof in the Commissary Court as to whether the wife did or did not have grounds for living apart from her husband. 247   Duncan v Cumming (1714) 5 BS 104. 248  At 105. 249  William Forbes, Advocate. 250  At 104.



uni t y i n di ve rs i t y

71

iniuria was applicable. Mackenzie observes that entering a person’s house, uninvited, was punishable as a crime in Roman law actione injuriarum.251 Ius commune commentators treat it is such.252 Hamesucken was rationalised as more serious than intentionally caused bodily injury generally since the iniuria was by definition more serious.253 (b)  Informational privacy To analyse the law protecting informational privacy in the early modern period, it is appropriate to distinguish between the case where a person divulged private information given to him by the person to whom it related, and the case of a person taking such information. It seems to have been only the former type of situation which was considered in Scotland before the 19th century, though at least one late scholastic jurist discussed the wrongfulness of reading a person’s letters and doing so by entering a place that was closed.254 The framework for that consideration was the ius commune concept of the entrusted “secret”, which is still found in some modern civilian systems, for instance in France in the form of the “secret professionel”, of doctors, lawyers and other professional persons, with respect to their patients or clients. The centrality of this notion in the law on entrusted information is very clear in Scotland, although it has not been prominent in works on the doctrinal history of delict in Europe. Whether the law had any way of focusing the issues that would arise where someone to whom the information had not been entrusted came and took it, is not apparent. The protection of entrusted secrets is reflected in the undertakings of secrecy by surgeons’ apprentices255 (where it covered patients’ medical secrets, and the master surgeon’s secrets of his art), in 251  Mackenzie, Criminals (2nd edn, 1699), p 110, citing l Corn. De injuriis and l.23.ff. de injur. 252  Mackenzie, n 251 above, states that “it hath been introduced by the statutes of the greatest part of the world”, citing [Petrus] Cabal[lus] consil. criminal. casu. 13. “Statutes” here must mean the municipal law in the wide sense, comprehending decisions of courts. (For this meaning, see J D Ford, Law and Opinion in Scotland During the Seventeenth Century (2007), pp 127–130.) Caballus (d 1616) was a jurist from Pontremoli in Tuscany. See also, eg, Farinacius, lib 3 tit 4, quaest 105, nu 218 and quaest 107, nu 142; Matthaeus, lib 47, tit 4, cap 1, nu 19. 253  See Mackenzie, Criminals (2nd edn, 1699), p 110. 254  Molina, De iustitia et iure IV, disp 36 no 2, referred to in Gordley, Foundations of Private Law, p 258. 255  An Edinburgh example from 1730 in Hector, Renfrewshire Sheriff Court, pp 100–102 “not to reveal his master’s secrets in his artes, nor the secret diseases of his patients”. For a late 18th-century example, see P Martin, Cupar – The history of a small Scottish town (2006), p 68 not to “reveal or divulge any of his said master’s or Patients secrets entrusted to him”.

72

r i ght s of p e rs o n al i t y

local government regulations for protecting the secrecy of their deliberations,256 and the obligations of judicial secrecy that bound judges.257 It was potentially applicable to other contexts, at least to protect the “secrets” within family, and so was the basis of the rule that in criminal processes husbands could not give evidence against wives, or parents against children.258 Ius commune sources259 also applied it to confessors260 and by extension to mediators.261 The ius commune concept of the protected entrusted “secret” is linked directly to iniuria. The passages in the Digest, from which the word secreta is derived, based the protection on the actio iniuriarum.262 In a similar manner as occurred with protection of physical liberty, it was specific Roman texts which formed the starting point for the development of this sub-category of iniuria. It 256   Burgh Law of Dundee 25th February 1567 in A J Warden, Burgh Laws of Dundee (1872), p 34. 257   Ane Short Forme of Process Presently used, and Observed before the lords of Counsell and Session (1609) Cap 27.5 “na objection against the deposition of witness is permitted to the partie, against quhom they are produced: for their depositions sould not be schawin to him, but should be kept close, and secret to the Judge onlie, Quia testimoniorum publicatio non est in usu” (Because publication of the testimonies is not practicised). 258  Mackenzie, Observations upon the 28 (sic – ie 18) Act, 23. Parl. K. James VI. Against disposition made in defraud of creditors etc. (1699 edn), pp 57–60 at §191. 259  At §§195–196, Mackenzie, Observations discusses a case from Savoy of 23 November 1596 as commented on in [Antonius] Faber (1557–1624)] lib. 4, tit. 15, def 56. 260  Mackenzie, Observations cites Can. Statut. Caus. 2, quest. 6 [ie Decretum Gratiani, Causa 2, quaestio 2, canon 38 “Statuendum”. I am grateful to Professor Gero Dolezalek for identifying this text.] 261  Mackenzie, Observations does not refer to any canonists, but considered the the position of advocates to be a fortiori, and quotes an observation of Faber with regard to a party’s interaction with mediators being “quasi cum confessore”. 262  D.9,2,41: et si quis tabulas testamenti apud se depositas deleverit vel pluribus praesentibus legerit, utilius est in factum et iniuriarum agi, si iniuriae faciendae causa secreta iudiciorum publicavit (And if someone who is looking after someone’s will makes an erasure or reads it out with other people present, it is better to bring an [Aquilian] action in factum or sue for iniuria if he published the secrets of one’s legal affairs with an insulting intent). D.16,3,1,38 (Ulpian): Si quis tabulas testamenti apud se depositas pluribus praesentibus legit, ait Labeo depositi actione recte de tabulis agi posse. Ego arbitror et iniuriarum agi posse, si hoc animo recitatum testamentum est quibusdam praesentibus, ut iudicia secreta eius qui testatus est divulgarentu;. (If someone reads out to a number of people testamentary tablets deposited with him, Labeo says that suit can rightly be brought with the action on deposit on account of the tablets. I personally am of the opinion that the action for insult [actio iniuriarum] can also be brought if the will has been read out to those present with the intention that the secret dispositions of him who who made the will be divulged)(both Mommsen–Krüger– Watson translations).



uni t y i n di ve rs i t y

73

was extensively considered in civilian and canonist263 literature and in continental courts.264 It was consistent with Christian doctrine265 and neo-stoic ethics.266 That the consideration of this cardinal concept “secret” in Scottish juristic writing is to be found in places where later lawyers would perhaps not have thought to look may explain why the concept was simply forgotten after “breach of confidence” emerged in Scotland under English influence at the start of the 19th century. In the 17th century there is an extended treatment by Mackenzie considering lawyer-client “secrets” in the, at first sight surprising, context of his observations on a statute relating to fraudulent dispositions by bankrupts.267 There is also a brief sentence in Stair considering categories of suspect witnesses.268 Mackenzie’s Observations upon the Bankruptcy Act 1621, despite this work’s title, deals with the general law on “secrets” in depth, “because these questions are of universal consequence”, and he had “resolved to consider them in general termes”. His specific context, namely, the question of whether a lawyer can be obliged to reveal the frauds of his insolvent client, is just a peg to hang it on. His analysis of the general principles follows the standard ius commune approach to “secrets”. They are things that people “entrust” to others. In a sense they are “deposited”.269 So, in the example of the lawyer, it is

263  At §196 Mackenzie, Observations cites [Bernardus ] Papiensis (before 1150– 1213) in form. jur.test. num. 15 for the proposition that the rule was the same for “pronexta” [negotiators] as for advocates. 264  Two cases from the Parlement of Paris are cited in Mackenzie, Observations (1699 edn) at §201, at length, the case of Barbine of 18 June 1580 and case of December 1619 (probably as referred to in [Desiderius] Heraldus (1579–1649) de Rer. Judicatar auctor, lib. 2. cap. 4, whom he cites). At §§195–196 Mackenzie, Observations discusses a case decided from Savoy of 23 November 1596 as commented on in [Antonius] Faber lib. 4 tit. 15 def 56. 265  Eg Aquinas, Summa contra Gentiles 4.21.4, connecting the idea to friendship: “Est autem hoc amicitiae proprium quod amico aliquis sua secreta relevat” (But is a mark of friendship, since a person reveals his secrets to a friend). 266  Mackenzie, Observations: “To divulge a client’s secret “sane id a Romana virtute, & animi magnitudine erat plane alienum”. (Certainly that was plainly alien to Roman virtue and greatness of spirit.) The notion of “animi magnitudo” is found for instance in Cicero, De Officiis 1, 5 and 3, 17, which work Mackenzie cites for his general proposition that it is in the interest of the state to have “pios cives”, ie here “trustworthy and faithful citizens” [in De Officiis 3.23, “pios . . . cives in parentes” (citizens loyal to their parents)]. 267  Mackenzie, Observations, pp 57–60. 268  Stair, Institutions, IV,4,80 dealing with 11 categories of suspect witnesses. 269   Cf Mackenzie, Observations (1699 edn), p 57: “An Advocat, is by the nature of his imployment tyed to the same faithfulness that any Depositor is: For his Client has depositat in his breast, his greatest secrets; . . . ”. This echoes the passages in D.16,3,1,38 (cited above) located in the title on depositum.

74

r i ght s of p e rs o n al i t y

the “client not the Advocat [sic] [who is harmed] by the discovery”. A person relies on the “faithfulness” of a party to whom the secrets are entrusted. “Confidence” thus, does not define the nature of what is a “secret”, nor the necessary relationship between the parties, but emphasises the faith which the person has in the trust not being broken by the person to whom the “secret” has been entrusted. The term a “confident” in other legal contexts at this period in Scotland appears to have the same meaning.270 For Mackenzie there are two rationales for the inviolability of “secrets”. The first concerns the honour of the party entrusted. “No gentleman is desired to divulge his friend’s secrets”. The position of the advocate is the more so. The “secrets” of his clients are entrusted to him “under the sacred assurance of Trust, and Secrecy”. “Honour and interest” entail that he is bound not divulge them.271 His second rationale is one of policy. Without “freedom” to entrust “secrets” knowing they cannot be divulged “men cannot manage their affairs, and privat [sic] business”. The “interest of the Commonwealth” is “not to unseal the secrets of privat persons, and thereby to render all Trust and Commerce suspect”. The adoption in Scotland of the rule that there were no circumstances in which an advocate was entitled, or could be obliged, to divulge the “secrets” of the client was to follow one side in a ius commune debate. That debate centred on the width of application of a text in the Digest title de testibus.272 There were also disputes of a policy nature relating to the conduct of litigation. Bartolus had interpreted the text, which stated that an advocate could give evidence for his client, as by implication meaning that he could also give evidence against him. Mackenzie rejected this as (a) an invalid argument e contrario;273 (b) infringing the principle that where the ambit of a text is doubtful it is to be read restrictively; and (c) on policy grounds. Without complete protection people would “hazard the opening of their secrets”, and would, accordingly, not enforce 270  Eg in the phrase “confident persons” in the Bankruptcy Act 1621 APS record edn c 18; 12mo edn c 18, and the description of a style for appointing factors loco absentis as a “Factorie by a Person of Quality going forth of the Kingdom to His Confidents for Managing his affairs” (Dallas of Saint Martins, System of Styles (1697), p 812). 271   Ibid at p 193. 272  D.22,5,25: (Arcadius Charisius) Mandatis cavetur, ut praesides attendant, ne patroni in causa cui patrocinium praestiterunt testimonium dicant. (Imperial mandates provide that a governor must see that those who represent clients in law suits do not give evidence in cases in which they appear.) (Mommsen–Krüger– Watson trans.) 273  Mackenzie, Observations puts it thus: “This Gloss seems to be most absurd, both because the words of the Law [ie D.22,5,25] are general, and since they extend to both cases, and that no posterior Law has restricted them, there is no reason why both should not be equally comprehended.”



uni t y i n di ve rs i t y

75

claims to which they had a right, or would not plead a defence.274 Further, if there was any qualification of the rule, an advocate “by his own private inclination” might reveal secrets to the other side, put them up to examining him on the matter, and avoid being seen by his client as responsible by then stating that the law required him to make the revelation. Consequently perjury would be encouraged, the court would become a pile of jagged rocks,275 and degenerate from “equitatis cognitio,”276 to “latrocinium”.277 2.2.6  Actio iniuriarum as organising category (a)  Real injury and verbal injury It was trite learning in the early modern period, both in the ius commune and Scotland, that cases of iniuria may be distinguished into two general second-level categories according to the mechanism adopted as the mode of committing it. Where it was a physical act, the category was iniuria realis (“real injury”). Where it was an oral utterance, the category was iniuria verbalis (“verbal injury”). Whether a written representation was to be classified as verbalis or realis, and whether there was a role for a distinct category, libellus famosus, were disputable.278 As stressed above, where a subcategory of iniuria (such as real or verbal injury) was recognised, there would have been no need expressly to refer to iniuria as the top-level category. It was implied. It is for broadly the same reason that express references to the first of the two second-level categories, “real injury”, are only rarely encountered in Scottish material of the period. As “real injury” was implied there was no need to express it. There was nearly always a convenient and applicable subcategoryof real injury but, if there was not, it was not necessary in referring to iniuria in other cases where the mechanism was an act, expressly to refer to the second-level category realis. Jurists would however refer to it in laying out the whole taxonomy.279 But there 274  The argument was applicable to criminal defences as well as civil cases. Mackenzie gives the instance of self-defence to a murder charge, where the client would be deterred, so he argued, from revealing to his advocate that he had killed the victim, and so could not discuss, for fear of that then being used in evidence his view that it was in self-defence. 275   Murices. 276   (A just judicial investigation.) 277   (Robbery.) 278   Blackie, “Defamation” pp 643–644. Generally on the real/verbal distinction, see Mackenzie, Criminals (2nd edn, 1699), p 153: “the more received division is, that injuries are either verbal, or real”; Bayne, Institutions, p 175; Bankton, Institute I,10,22 and 24. 279  See Sections 2.2.8 and 2.3.9.

76

r i ght s of p e rs o n al i t y

seems to have been at this period280 only one situation where there was a practical legal reason for expressly drawing the distinction between real and verbal injury, namely where there was a question of jurisdiction. The Justiciary Court and other criminal courts had exclusive jurisdiction in real injury and the Commissary Courts the exclusive original jurisdiction in verbal injury (with an exception for Kirk discipline proceedings and courts of local jurisdiction). The relevance to questions of jurisdiction reflected the reason why mediaeval commentators had identified the distinction, as a way of roughly dividing according to the potential seriousness of the iniuria.281 Consistently with this the distinction is referred to precisely in the context of litigation in the late 17th century seeking to define the limits of the jurisdiction of the Justiciary Court. There were two situations raising this question: (a) where the mechanism was both words and acts; and (b) where it was words alone but the victim was of a specially high status. In the former situation where it was averred that there were “opprobrious expressions uttered” by the defender while applying his fist to the Provost of Arbroath, and shaking him “too [sic] and fro”,282 it was argued unsuccessfully for him (by Sir George Mackenzie) that there was no jurisdiction for the Court of Justiciary to deal with the “words”.283 The successful argument284 in response was that the court had jurisdiction “where there was iniuria realis . . . joined with the opprobrious words and verbal injury”.285 In 280  The distinction is relevant later to the question whether compensatio iniuriarum is a good defence where the iniuria by the other party was verbalis and the response realis resulting in physical bodily injury. 281  M Herrmann, Der Schutz der Persönlichkeit in der Rechtslehre des 16– 18 Jahrhunderts (1968), p 18, observing that the mediaeval commentators’ contribution was merely in sharpening the distinction between real and verbal injuries (eg Bartolus, Commentaria ad lib. 47, tit. De injuriis et famosis libellis 1.15 § si quis pulsatus and § Ait praetor; Cynus [Cino de Pistoia (1270–1336)] In codicem commentariis, lib. 9 lib 9, tit 35, n. 1 and 2 n 15). 282   Carnagie (1672): Scott-Moncrieff, Justiciary Records, vol 2, 116 at p 117. 283  He (at p 120) also suggests they considered they did not have jurisdiction in respect of the “shaking of him by the breast”, though the basis for that is not stated. 284  Proof of facts took place (see p 121) of the words. The statement in the report (at p 121) that the judges after the argument did not “sustain the shaking of him by the breast not the injurious words for a crime” must mean therefore that those aspects went to the jury with a view to obtaining monetary compensation not a criminal punishment. The defender was anyhow found not liable by the jury. 285  Numerous earlier examples exist in the Justiciary records: eg Viscount of Ffendraught (1664): Scott-Moncrieff, Justiciary Records, vol 1, 100 – a case of murder where the act was preceded by wounding, “opprobrious threatnings [sic] uttered” (at p 102), abduction and deprivation of liberty in privato carcere; Anderson and HM Advocate v Fferguson (1673): Scott-Moncrieff, Justiciary



uni t y i n di ve rs i t y

77

the latter case,286 Mackenzie, this time for the pursuer, argued that “iniuria sive sit verbalis sive realis is a crime by the Common Law and the Law of Nations” in an unsuccessful attempt to establish jurisdiction in the Justiciary Court in a case where it was only words, but the victim was a minister of religion. This Episcopalian, royalist advocate, asked rhetorically whether stealing a horse could really be more serious than to “call my Lord Chancellor a cheat and the Abp. [Archbishop] perjured”. The reason why, by contrast to “real injury”, “verbal injury” is routinely found expressed is that there were no sub-categories of “verbal injury”. Other terms were sometimes used for some situations of verbal injury, in particular “scandal” and “defamation”, but they were purely descriptive, not sub-categories. So naturally as Commissary Courts, and the bodies of presbyterian church discipline, exercised exclusive (with the exception of courts of local jurisdiction) original jurisdiction over “verbal injuries” it was that term which had to be used to denote the nature of a case there. Thus the few occasions on which there is express reference to real injury, rather than indicating the category was not recognised, in fact reveal the opposite. Where a concept is trite and there is therefore no need to express it, the fact that is never expressed may be taken to confirm that it is indeed trite.287 The very many occasions on which “verbal injury” is expressly referred to in fact support this, too, precisely because of the contrasting need to express it. (b)  Real injury where none of the sub-categories was applicable (i)  General That Scottish writers, when considering injury through acts (real injury), referred almost exclusively to the context of bodily physical injury, is in no way different from the treatment found in the criminalist ius commune writers.288 Moreover, real injuries were Records, vol 2, 177 at p 179 – jury found one defender “guilty of opprobrious speeches and giving blow”, another of “striking and throwing him to the ground which occasioned blooding” and a third of “taking him by the hair of the head” and monetary compensation awarded; Lochead (1687): Hector, Renfrewshire Sheriff Court 35 at p 36 “reproached and abuse . . . with many opprobrious speeches [sic] . . . thrust her from the door with his hand, by whilk [sic] she fell to the ground”; “vilipend . . . calling him a silly beast . . . felled him over the head . . . lyke a bull dogg than a man, didfflee [sic] upon his body with your teeth knees and otherwise”. 286   Straitton (otherwise Straiton) v Doig (1672): Scott-Moncrieff, Justiciary Records, vol 2 at p 133. 287  See more generally D Daube, “The Self-Understood in Legal History” 1973 JR 123. 288   Farinacius, lib 3, tit 12, nu 6 directs the reader for examples to other writers including Clarus and Matthaeus de Afflictis.

78

r i ght s of p e rs o n al i t y

considered under the sub-categories applicable. But, there is source material where the wider concept of real injury was applicable. In Scottish sources this deals with acts threatening bodily injury, acts threatening deprivation of liberty and a few other instances of affronting acts. That the term “real injury” does not itself appear is because none of these situations gave rise to questions of jurisdiction. (ii) Acts threatening bodily injury Acts threatening bodily injury, or threatening other damage likely to result in bodily injury289 were actionable290 even though bodily injury did not result. Where the threat was oral and combined with an act such as throwing stones, it was open to question whether it was correctly classified as a verbal injury, and so not within the jurisdiction of the civil courts.291 Specific reference being made to the drawing of a weapon and so on may be because that in itself was actionable. In a case of stone-throwing, reference would specifically be made not only to those that hit the pursuer as the target, but those that missed and hit his horse.292 (iii) Acts threatening deprivation of physical liberty Where a person is forced to flee another and gets away, there is an infringement both of the right of bodily integrity (viewing the body as being under stress) and also liberty which, while not lost, is affected in that the person is forced to do something against his or her will.293 The examples in the published records are all from the 16th century and include cases of “pursuing”,294 or “chasing” 295 or, “following and chaising”,296 or “followit and persewit for their bodilie harm”.297

 As in Cochran (1717): Hector, Renfrewshire Sheriff Court 215 at p 218 – threatening to take forcibly some cloth followed by the pursuer barring the door, characterised as “injury”. The pursuer “passed from all the injuries”. 290  It was arguable that the decree of the court could only be for satisfaction of the private pursuer, and not also include punishment. 291   Hamilton v Blair (1724): Hector, Renfrewshire Sheriff Court 105 at p 106. 292   Beith (1742): Hector, Renfrewshire Sheriff Court 145. 293  This example, however, is not included as an aspect of “constraint” of liberty as understood by Stair and Bankton, who confine it to extortion. 294   Pennycuik (1596) 1(2) Pitcairn 372; Bartlett (1612) Littlejohn, Aberdeenshire Sheriff Court 179. 295   (1556) Somervile 1(1) Pitcairn 388. 296   Blair (1576–77) 1(2) Pitcairn 71. 297   Grahame (1577) 1(1) Pitcairn 74 at p 76. 289



uni t y i n di ve rs i t y

79

(iv)  Other affronting acts: rude gestures, church lofts and stools,      dead bodies and graves Rude gestures,298 and moving church seats are standard ius commune examples,299 of real injury. Rude gestures feature in one early 16thcentury Scots source.300 Scottish lairds often had their own very visible grand “lofts” in church. Social and religious tensions could put them at risk. The tearing down of a loft was an invasion of a property right but also a very public disparagement of status and so dignity,301 as much as the bodily injury and “harsh base and unbeseeming language” that also occurred. Down in the body of the kirk it could be, likewise. Forcing an ordinary individual off the stool she always sat on in church and beating her up resulted in an award of £30 Scots.302 Bankton pointed out: “Injury may not only be done to the Living, but also in a manner to the Dead, by reproaching their memory, detaining their bodies from burial, lifting their bodies out of their graves, or defacing their monuments” which could be prosecuted by the children or next of kin.303 In the 17th-century ius commune, there was some debate about whether particular sub-categories were relevant in certain circumstances. This may explain why no instances have been found in Scotland before the start of the 18th century304 of proceedings pleading “violation of sepulchres”; it

 Eg Matthaeus, lib 47, tit 4, cap 1, nu 1.  See Mackenzie, Criminals (2nd edn, 1699), pp 153–154: “Real Injuries are committed, by hindering a man to use what is his own by removing his Seat out of its place in the Church, by giving a man medicaments which may affront him, by Arresting his Goods unjustly; by wearing in contempt what belongs to another man as a mark of honour; by Razing sham[e]fully a man[’]s Hair, or Beard, by offering to strike him in publick, or by strikeing him, or riving or abusing his Cloaths, or his House, or many otherways related by Berlich. Conclus. 69”. In fact Berlichius, Conclusiones Practicabiles (1615) pars IV, concl 59 (not 69; see correction by Blackie, “Defamation” at p 644, n 89). 300  T Maley and W Elliot (eds), Selkirk Protocol Books 1511–1537 (Stair Society, vol 40) (1993), p 149, para 17. 301   Campbell (1677): Cameron, Argyll Justiciary 78. 302   Young v Reid (1722): Hector, Renfrewshire Sheriff Court 218. 303   Bankton, Institute I,10,29, citing D.47,10,1,4 and 6; D.47,10,27; Voet, Commentarii ad Pandectas 27, 10, 5. By contrast, Bayne postulated an injury to the living through the dead: see Bayne, Institutions, p 188: “Injuries were likewise understood to be done to the Living through the persons of the Dead, whose Representatives they were, as by disturbing their Ashes [citing D.11,7,8pr,ff (de religiosis et sumptibus funerum et ut funus ducere liceat)] which it is thought would hold in our Law”. See now Stevens v Yorkhill NHS Hospitals Trust [2006] CSOH 143; 2006 SLT 889 (OH); N R Whitty, “Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194, esp at pp 216–219. 304   HM Advocate v Samuel (1742); Hume, Commentaries, vol 1, p 85. 298

299

80

r i ght s of p e rs o n al i t y

is not mentioned by Mackenzie. Some jurists did not consider it had any role in contemporary law because bodies were not, as in Roman times, buried in private burial grounds, and so the only relevant category was the “public crime”, sacrilege. Cases grounded on “violation of sepulchres” seemed not to exist. But Matthaeus argued that just because an action has not often been raised it has not been abolished.305 A more peculiar debate in the ius commune, namely whether “demembration” was applicable as a sub-category where a part of a dead body was removed, is briefly referred to by Pitmedden.306 (c)  Verbal injury Verbal injury as considered in Scottish juristic writing in this period, and as applied in the courts has been analysed by me in detail elsewhere.307 In the wider context of the subject of this essay certain aspects, however, require to be highlighted. First, it is essential to understand that, as what was at issue was the invasion of a personality right by way of words as the mechanism used, it was in the normal case completely beside the point whether those words happened to be a true representation. As in a case of a real injury in verbal injury the focus is on the personality right infringed, and the mental element of animus iniuriandi. The starting point is that the truth or falsity is neither here nor there. Naturally, however, it was then a question in what range of limited situations truth was relevant.308 Ius commune jurists differed widely in their answers to this question. But none at this time adopted the extreme position that truth was always a defence.309 The differences represented different policy positions on the balance between protecting a person from affront and issues of public policy as they bore on the question of the value of information to a well governed community. Debateable instances were, for example, whether unauthorised disclosure of disease or deformities should be promoted or not, and whether “stale” convictions of criminal  Matthaeus, lib 47, tit 6, cap 2, nu 8.  Sir Alexander Seton, Lord Pitmedden, Treatise of Mutilation and Demembration and their Punishments (1699), pp 21–22 (§64). 307   Blackie, “Defamation”, pp 633–644. 308  These debates have not been explored in much modern scholarship which has rightly emphasised the starting point that truth was beside the point (eg J Gordley, “Reconceptualizing the Protection of Dignity in Early Modern Europe: Greek Philosophy Meets Roman Law” in M Ascheri et al (eds), “Ins Wasser geworfen und Ozeane durchquert” (2003) 281). It is in criminalist writers as much as or more than in the jurists in the mainstream of the development of private law that the details are to be found. 309   Blackie, “Defamation”, pp 666–668. 305

306



uni t y i n di ve rs i t y

81

offenders should be referred to.310 These debates are reflected in Scottish juristic writing,311 though so far only one case,312 which is equivocal, has been found which seemed to raise the issue. It is not till the later 18th century that the first cases appear (after the Court of Session had acquired jurisdiction) at a time when the important ius commune writing on them had been lost sight of.313 Second, Scotland never in this period adopted a clear distinction between the impact on fama as contrasted with the impact on dignitas. Third, it requires emphasis that the Scottish institutional writers of the period followed closely the analysis of particular European jurists, Berlich in the case of Mackenzie, Johannes Voet in the case of Bankton.314 There was virtually no reported Scots case law until the mid-18th century because the Court of Session did not exercise a jurisdiction in these cases before then. (d)  “Affront”, “insult” or “offence” The published records reveal frequent use of the concept of “offens” in 16th- and 17th-century bodily injury and sometimes other cases,315 in a form that reflects iniuria “for the skaith and offens dane to him”.316 However, there would not have been a need more generally for pursuers to use any particular term to refer directly to affront in pleading. It is clear also from the treatment of remedies, considered below, that since the court simply awarded money compensation

  On disclosure of crimes, see, eg, Bayne, Institutions, pp 177–178: “If out of judgment a crime is objected animo injuriandi, the truth of the reproach according to Paulus [citing D.17,10,18pr] makes it no injury, because (says he) it is behooful and expedient that the crimes of offenders be brought to light. See Matt[haeus] [ad D.17.2, n 7]. Many of the doctors differ, particularly Covaruvias variar. Resolut. c. 11.n.6*, whose opinion we incline to espouse, because where a crime is imputed animo injuriandi, the intention of the agent is bad, and any good which may eventually flow from it to the public by the discovery, ought to be of no benefit to him, as being owing to chance and a conjunction of circumstances which he had not in his eye, when he singly pointed at the gratification of his own revenge. C. 1,40,3 (de officio rectoris provinciae); C. 9,36,1 (de famosis libellis); Carpzov, Part 2, Quaest 96, n 73. Except the case mentioned, of those who proclaim favours they ought to conceal, tho’ without the animus injuriandi”. 311  See Blackie, “Defamation”, pp 666–671. 312   Fork v Fyffe (1673) Mor 7316: action in Commissary Court for “injury and scandal” for alleging perjury not precluded by decision in a case in a lower criminal court in action pursued by procurator fiscal that the defender had committed perjury. 313   Scotlands v Thomson (1775) Hailes 669; Mor Appx, “Delinquency”, No 3. 314   Blackie, “Defamation”, pp 650–652 and pp 653–656. 315  Also in the context of deprivation of liberty (eg Chirnesyde (1616) 3 Pitcairn 402 at p 406 – referring to the abducted person as the person “offendit”). 316  Eg Watson (1508): Littlejohn, Aberdeenshire Sheriff Court 95. 310

82

r i ght s of p e rs o n al i t y

assessed on a broad basis, there would have been nothing to gain by expressly pleading that there was affront. However, where a court awarded a remedy of palinode (apology and recantation), awareness of this aspect of iniuria is obvious, and in fact it is in the context of remedies that there is some direct discussion of the actio iniuriarum at the end of the 17th century. (e)  Mental element The requirement of animus iniuriandi in the law protecting personality rights is so trite at this period that there is very little material on the details.317 That this applied to the whole field is clear from the pleadings in two cases where the opinions of several ius commune jurists were discussed in connection with the crime of lèse majesty (treated as defamation of the monarch).318 In cases of bodily injury, the mediaeval Scots concept of forethocht felony,319 malitia precogitata, more familiar in the context of homicide, was referred to in some cases until the early 17th century. More generally reference to “malice” often appears, but with no clear indication that it meant anything more than animus iniuriandi. At least sometimes this may been where, applying ius commune theory, the crime/delict was innominatum and so direct proof of maleficia was required.320 As noted above, in the context of stuprum an extended understanding of animus was adopted to cover forms of fraudulent misrepresentation. 2.2.7  Remedies (a)  General The remedies available often reflect the conceptual basis of liability in an area of law. It is clear that the availability of the canon law 317  See, eg, Mackenzie, Criminals (2nd edn), p 153: in verbal injury, “the injuriandi animus, design of injuring, as well as the injuring words, must be proved”; p 154 whether in “libelli famosi”, dolus malus & animus injuriandi, (a design to offend) was presumed, or must be proved is much controverted”. Bayne, Institutions, p 176: “One essential character of an injury is to be found only in the intention of the offender, namely the animus injuriandi; for without dole there is no offence”: citing D.47,10,3; Bankton, Institute I,10,21 “an offence, maliciously committed . . .”. 318   Or crimen laesae majestatis: HM Advocate v Lord Balmerino (1634) Cobbett’s State Trials 591, discussed in Blackie, “Defamation”, pp 646–647; HM Advocate v Guthrie – defences 10 April 1661, Records of the Parliaments of Scotland to 1707 www.rps.ac.uk. 319  See W D H Sellar, “Forethocht Felony, Malice Aforethought and the Classification of Homicide” in W M Gordon and T D Fergus (eds), Legal History in the Making (1991) 43. 320   Clarus, §Primus, nu.8.



uni t y i n di ve rs i t y

83

remedy of apology (palinode), and in some situations expression of repentance, reflects the ius commune doctrine of iniuria. The position of the remedy of monetary compensation is more complex. There are five important questions. (1) Did Scots courts distinguish between non-patrimonial and patrimonial consequences in awards of compensation in cases of bodily injury or cases of deprivation of liberty? (2) Did the fact that private parties sought remedies in the criminal process in respect of personality rights entail that nothing was awarded for non-patrimonial consequences? (3) If a sum was awarded for non-patrimonial consequences, was it to mark the fact of the affront, or a subjective feeling of pain and suffering, or some other aspect of the iniuria? (4) What types of patrimonial consequence were compensated? (5) If both non-patrimonial and patrimonial consequences were compensable, did that reflect liability on the basis of iniuria cumulatively with liability conceived as Aquilian? Answering these questions is complicated by the fact that the basis for the “modification”321 of the sum awarded is not given in the records of most Scottish cases. (b)  The effect in the context of a criminal process of the interaction     between the rights of the Crown and the rights of a private     pursuer The remedies available to a private pursuer in respect of an invasion of a personality right sought within a criminal process were affected by the Crown’s rights. Where the defender was sentenced to death, or in any case did not appear to defend,322 or in particularly serious cases of mutilation, deprivation of liberty,323 and (by statute) adultery,324 the moveables of the defender were escheat to the Crown. This made compensation impracticable and thus of itself reduces the number of cases where there might have been detailed consideration of the   For an early example of its use, see Wishaert [sic] v Patersone, 4 September 1628 Shetland Court Book 1615–1629 131. In romano–canonical procedure terminology “modification” is a synonym for “taxatio”, with which term it could be combined: eg Gairdin v Lammye 5 May 1543 Liber Officialis Sancti Andree 84 (compensation for stuprum); Pitcairne v Bishop of Brechin 19 June 1546, ibid 147 at p 148 (assessment of expenses) in which sense it is still used in sheriff court procedure. 322   McIntosches: Irvine Smith, Justiciary Cases 3 769. 323  Eg Kyncaid (1601) 2 Pitcairn 336. 324  As in Amullekyne (orse Amullegane and Amullekin) (1578) 1(2) Pitcairn 78 and 80. See APS (1551) record edn c 12; 12mo edn c 20. 321

84

r i ght s of p e rs o n al i t y

basis for an award. There were, however, two procedures through which in fact the private pursuer could obtain a monetary payment notwithstanding the Crown’s right to escheat. First, the vast majority of cases were settled (“compounded”) and so escheat was avoided. It was Crown policy actively to promote this on the basis that “satisfaction” was paid to the private pursuer, along with a payment to the Crown.325 The examples326 of “compounding” in the Justiciary Court records reflect this. Second, in those few cases where there was no composition, the case proceeded to decree and escheat occurred, it seems possible that sometimes the private pursuer could anticipate that the Crown would donate to him the whole or at least part 327 of the escheated property.328 Where the victim was a minister of religion and the injury was inflicted in the course of a dispute over payment of his stipend,329 statute330 expressly provided that he was entitled to one half of the escheat,331 unless the court determined that that was not appropriate.332 (c)  Analysis of remedies for non-patrimonial consequences The approach taken to non-patrimonial consequences in cases of physical bodily injury in Scotland at this period is affected by two issues. First, as there was iniuria, compensation would reflect the affront. A view of some ius commune commentators333 that proceedings for a criminal punishment barred a claim ad

325  A L Murray, Introduction to C T McInnes (ed), Accounts of the Treasurer of Scotland (1574–80) (1978), vol 12, p xii. 326   Cocburne (1493) 1(1) Pitcairn 15 – a case of “forethocht felony” and “hamesucken”; Earl of Eglintoune (1511) 1(1) Pitcairn 74 – deprivation of liberty; Agnew (1513) 1(1) Pitcairn 90. “Putting to flight” is found also in Dunbar (1513) Pitcairn 96; Mackkinze (1513) 1(1) Pitcairn 93 – “oppression to [the pursuer] in holding . . . his wife from his society and company”. 327  See Viscount of Stormont v Herreis [or Herries] (1667): Scott-Moncrieff, Justiciary Records, vol 1, 223 at p 224. A composition could be paid of the gift of escheat. See examples in C T McInnes (ed), Accounts of the Treasurer of Scotland (1574–80) (1978), vol 12, pp 115–117. 328   Kyncaid (1601) 2 Pitcairn 336 – Justice-Clerk directed by the King to pay 2,500 merks to the Treasurer or to such as he might appoint and assign. See also from another context, failing to provide a soldier, where a condition of the Crown abandoning the case was that the donator of the escheat “is agreeit and satisfiet” Hunter (1565–1566 1(1) Pitcairn 470 at p 472. 329  Eg McGregour (1643): Irvine Smith, Justiciary Cases 3 374. 330  APS (1587) record edn c 6; 12mo edn 27. 331  Eg McGregour (1643): Irvine Smith, Justiciary Cases 3 374. 332  Eg Wod (1601) 2 Pitcairn 360 – the victim seems not to have joined with the Crown in pursuing and the case was abandoned against several other defenders. 333  The debate is covered at length in Farinacius, lib 3, tit 12, quaest 105, nu 28ff. See also Zimmermann, The Law of Obligations, p 1071.



uni t y i n di ve rs i t y

85

aestimationem iniuriae (as opposed to one for the patrimonial consequences, ad damna et interesse) was not applied in Scots law or Roman–Dutch law. However, what other aspects of nonpatrimonial harm could be compensated depends on the position taken in moving from the Roman and mediaeval doctrine, that a freeman who suffered bodily physical injury, while he could claim damages for medical expenses and loss of earnings, could not claim for other non-patrimonial types of harm because of the principle that a freeman’s body is of inestimable value.334 This was also consistent with the Christian conception of man.335 Under the influence of the customary law which allowed compensation for pain (smert in Dutch; Schmerzen in German), however, the Roman–Dutch writers unanimously allowed also a claim of damages (solatium) for pain and suffering (dolor), scars (cicatrices) and disfigurement (deformitas).336 Though subjective pain (dolor; smert) was reparable in Roman– Dutch law, it was probably not reparable in Scotland until at least the mid-18th century. An early 17th-century pursuer referring to “dollour” was thus probably only using rhetoric to gain sympathy.337 In 1707 a claim for “smert money” was rejected in the Justiciary Court of Argyll “as unwarranted by the laws of Scotland” and nothing was awarded for the fact that a bullet was still in the victim’s body, though he was “yet dayly and hourly under the terror of death”, and could no longer enjoy taking exercise”.338 At the same time it was accepted by the defender that a “cicatrix” (scar), especially on the  D.9,3,7: “cicatrium aut deformitatis nulla fit aestimatio quia liberum corpus nullam recipit aestimationem; see also D.9,1,3; D.9,3,1,5; Zimmermann, Law of Obligations, p 1015. Among the vast literature see R Feenstra, “Réparation du dommage et prix de la douleur chez les auteurs du droit savant, du droit naturel et du droit romano-hollandais” in B Durand, J Poirier, and J-P Royer (eds), La douleur et le droit (1997), p 411; De Wet, “Criminal Liability and Civil Liability for Wrongful Conduct” (“Edinburgh Lectures”) in De Wet (Gauntlett ed), Opuscula Miscellanea 149. 335   Cf Aquinas’ (see Section 2.2.2(b) (above)) distinction between injury to the totality of the body in the form of mutilation and lesser bodily injury impact on a person’s senses, including that of pain. 336  See, eg, Grotius, Inleiding 3, 34, 2; Vinnius ad Inst. 4, 3, 13; Groenewegen, De Legibus Abrogatis ad D.9,3,7; Voet, Comm ad Pandectas 9, 2, 11; De Wet, “Criminal Liability and Civil Liability for Wrongful Conduct” (“Edinburgh Lectures”) in Opuscula Miscellanea 149 at p 183. 337   Broune (1605) 2 Pitcairn 463 at p 463. 338   Cameron: Imrie, Argyll Justiciary, vol 2, 207 at pp 218 and 219. The way this was expressed was partly to suggest that there was at least an ongoing outward visible appearance of debility, even though there was no ongoing outward visible mark on the body, which seems to have been an attempt to convince the court alternatively that if it would not award something for pain and suffering, it could award for outward appearance of pain and suffering. 334

86

r i ght s of p e rs o n al i t y

face of a “fair maid”, was a basis for compensation as an “estimatio vulneris” in a proper case as where it was visible and ongoing, and so objectively a particularly serious impact, since “it hinders her from being loved”.339 The term solatium is to be found in an observation by the judges of the Court of Session in the appeal on expenses in a bodily injury case pursued by criminal process in 1747:340 “when a man is affronted and beat. Something was thought to be due in solatium, and for encouraging persons to seek redress in this way, rather than to take it at their own hand”.341 (d)  Patrimonial consequences and non-patrimonial consequences     – Was there a distinction between iniuria and Aquilian     liability? (i)  Generally It was rarely necessary to refer to the general framework of delict, namely the distinction between liability for non-patrimonial loss under the law on iniuria and Aquilian liability for patrimonial loss, though references to “amend” in Scots material are likely to be to compensation as the “amende profitable” for iniuria.342 It was trite in European commentators that in a case of iniuria a claim could be made additionally ad damnum et interesse, although some did not, at least when considering heads of damage, expressly distinguish this as based on the Lex Aquilia.343 Express reference to the Lex Aquilia would in most such contexts not be required, since including compensation for patrimonial consequences was routine. However, just as in other European courts express reference might be made,344 so a Scottish judge or lawyer could do this where it helped to make   Cameron (1707): Imrie, Argyll Justiciary, vol 2, 207 at p 217 (pursuer’s argument). 340   Cruickshanks v Forsyth (1747) Mor 4034 – not cited by Bankton. 341  At 4035. 342   Mathousoune (1511) Littlejohn, Aberdeenshire Sheriff Court 99; See also Patersoun (1506): Littlejohn, Aberdeenshire Sheriff Court 92; Martin: Littlejohn, Aberdeenshire Sheriff Court 93. 343  See, eg, Farinacius, lib 1, tit 4, quaest 27, nu 27: compensation “ad omnia damna et interesse” in a case of deprivation of liberty in respect of crimen privati carceris; lib 3, tit 12, quaest 105, nus 78–82: compensation “ad damna et interesse praesertim si iniuria fit illata facto” (especially if injury should be brought about by an act) and nu 126: – compensation ad . . . damna et interesse where bodily injury caused in the course of a game (though no compensation for the non-patrimonial iniuria). 344  See Besoldus, Thesaurus Practicae (first published 1629) sv “Abtrag”. Besoldus’ work, though not this aspect, is widely used in Dirleton, Doubts. Dirleton practised at the bar from 1633 and died in 1687. He was counsel in a number of important cases in the Court of Justiciary involving bodily injury. 339



uni t y i n di ve rs i t y

87

clear the basis of a decision or argument. An instance, considered further immediately below,345 is in the precise valuation of a claim for the effects of being unable to work. Another was revealingly with respect to res judicata, ie whether a former action “for the alleged Injurie” (ie for iniuria) precluded a subsequent action for patrimonial loss. This and the similar question whether a settlement of a claim for iniuria barred a subsequent claim for patrimonial loss, was, indeed, one context where express reference to the Lex Aquilia was commonly made in ius commune commentary, even if (as in Farinacius) the author did not do this when considering heads of damage more generally.346 (ii) Heads of damage and quantum It was well established in Roman law and throughout the ius commune that the “cost of cure” and loss of earning capacity were relevant heads of damage. The ius commune background for the former is reflected in one case in 1605 in the phrase “cuir of Docouris and chirganes”347 and financial loss from being unable to work were compensable. Cases of the latter are frequent.348 Furthermore, there are cases seeking compensation for other consequential losses incurred in running a household349 and a business.350 Again the courts may have taken a broad approach, whether consciously based on Aquilian liability or not. However, awareness of the Lex Aquilia means there was at least one point of detail for which counsel might seek to refer to it, namely to argue that for patrimonial loss to be assessed, it was necessary that the pursuer prove “quanti valuit anno retro et quanti [hodie]”.351 It seems also to lie behind a rule that was abandoned in 19th century that the pursuer was entitled to proof of quantum by his oath in litem.352

 See Section 2.2.7(d)(ii).  Matthaeus, lib 47, tit 4, cap 1, nu 16; Farinacius, lib 3, tit 12, quaest 105, nu 30. 347   Johnnestoune (1605) 2 Pitcairn 461; Scott (1605): Gillon, Justiciary Cases, vol 1, p 168; Stirling (1692) Cameron, Argyll Justiciary, p 145 – settlement including an undertaking to pay medical expenses of the private pursuer should need medical attention in the future. 348  Eg Scot (1675): Cameron, Argyll Justiciary 68. 349   McNiccoll (1680): Cameron, Argyll Justiciary 128. 350   McNiccoll (1680): Cameron, Argyll Justiciary 128; Cameron: Imrie, Argyll Justiciary, vol 2, 207 at pp 211–212. 351   Dewar v Baxter (1662): Scott-Moncrieff, Justiciary Records, vol 1, 50 at p 53. 352  See Blackie, “Defamation”, p 679. 345

346

88

r i ght s of p e rs o n al i t y

(e)  The treatment of remedies in Scottish juristic writing by the     start of the 18th century (i) Theory of monetary compensation In 1699 Lord Pitmedden provided an extended analysis of compensation as a remedy. The title of his work353 conceals the fact that this analysis is to be found there. His programme is not just to deal with the detailed requirements for mutilation and demembration. Pitmedden’s treatment of monetary compensation is directly derived from ius commune writing, particularly that of Prosper Farinacius. It is consistent with the Scots cases which are analysed above as found in the published records, while going into greater depth and detail. For Pitmedden the proposition that damages were available in cases of bodily injury in the Court of Justiciary was trite. It was observable in “daily practice”. In an actio iniuriarum aestimatoria the amount was determined by the judge.354 That proposition needed “no confirmation” in its support. But anyhow it was confirmed by an “old statute”, which applied not only to cases of mutilation (including demembration) but also to cases of lesser wounding or beating.355 What is more, Pitmedden cited 17th-century cases in the Justiciary Court as instances,356 one of which is after his appointment as a judge of that court. A particular challenge for jurists in this area, with respect to both the question of monetary compensation and the form of criminal punishment, was that not only the Twelve Tables legislation with its lex talionis or “law of retaliation”,357 but especially importantly the Bible, supported the principle of equality of retribution namely: 353   A Treatise of Mutilation and Demembration – Part II Wherein the Punishments of these crimes are handled . . . (1699) published as an appendix to Mackenzie’s Criminals (2nd edn, 1699). 354  Pitmedden had himself been a judge of that Court for 17 years by the time he published his work. 355  Act 2 Rob 2 Cap 11, ie 9 November 1384, Records of the Parliaments of Scotland to 1707, www.rps.ac.uk – “secundum discretionem judice satisfaciet parti lese [sic]”. 356   Lermont 8 March 1685 – 300 merks to the pursuer for demembration of ringfinger of his left hand, and the remainder of his moveable goods escheat; Duncan 19 February 1608 – expense of cure to a meal-maker where two fingers of his left hand had been mutilated, letter of slayns to be obtained; Scot – 250 merks for breaking the pursuer’s leg; letter of slayns to be obtained. Kennedy, 15 December 1630 – 100 merks for the cure of a mutilated arm; Mowat, 15 July 1672 [the “7” is a typo by Pitmedden] and 29 July 1642 and 25 August 1642 £1,000 (globally ) to several pursuers. 357  Pitmedden, p 33: “An equality betwixt the Crime and the Punishment” also called in the Corpus Iuris: poena similis supplicii; poena reciproci; and poena paris vindictae.



uni t y i n di ve rs i t y

89

“Eye for eye, tooth for tooth, hand for hand, foot for foot.”358 These were the scriptural texts to which Aquinas was responding in his consideration of personality rights.359 Pitmedden dealt with that challenge in a way standard in the ius commune by founding on distributive justice360 referring expressly to Aristotle.361 The Bible, here was not to be taken literally. It meant that what was required was “analogical or geometrical proportion”, not “Arithmetical, Identical or Pythagorical proportion”. Accordingly “[d]amnages are due by the Rules of natural Equity and Reason”.362 (ii) Non-patrimonial consequences Pitmedden’s approach to non-patrimonial loss is an absolutely standard ius commune analysis as propounded by the specialist writers on crime/delict. Iniuria as such is not mentioned, but is implied from detailing factors to be weighed by a judge in his “modification” of the (total) sum awarded. Amongst the factors, he details are those of the status363 of the victim, and the objective form of the impact on the body,364 found in the records of cases, considered above. However, additionally, relying here on Jewish commentators on scripture, as found in Paul Voet’s specialised earlier work on crime/delict,365 as well as on certain English divines,366 Pitmedden goes beyond this. Not only is the award “for the lost member”, but also “for the pain and trouble” and “for the mark of ignominy and deformation”.367 In the Latin of one of the English divines368 this is encapsulated in the words: “Damnum, Dolor, Confusio”.369 Two further factors affected the sum to be awarded. Not only was the victim’s situation to be considered but also that of the assailant. It was relevant whether the victim “promised a mitigation” to get an admission of liability,370 whether the party liable acted ex dolo, whether he had   Exodus 21, 24. See also Leviticus, 24, 20; Deuteronomy 19, 21.  See Section 3.2.2(b). 360  Pitmedden, p 43. 361  Express reference is made at Pitmedden, p 47 to the view of the generality of lawyers on the meaning of the provisions in the XII Tables and at ibid, p 43 with respect to a dispute between Phavorinus and S Caecilius. 362  Pitmedden, p 63. 363  At p 61. 364  At p 63. 365  Paul Voet, Institutionum Imperialium Commentarius (2nd edn, 1668) commenting on Justinian, Institutes IV,4,7. 366  Pitmedden, p 39 reference to Ainsworth, Commentary on Levit. 24.19, 20, 21; to Goodwyn Moses and Aaron, lib 5 cap 8. 367  Pitmedden at pp 39 and 46 (“blemish or deformity”). 368  Munster, cited by Goodwyn. 369  Relying on Goodwyn. 370   “To draw forth a confession”. 358

359

90

r i ght s of p e rs o n al i t y

been imprisoned for a length of time, and what were his means in the sense of whether he had a “skilfulness . . . in some useful and eminent art”. That Pitmedden’s analysis was directly applicable to Scottish practice is clear from the almost identical, though much briefer, treatment of the topic by Alexander Bayne, in his Institutions of the Criminal Law of Scotland (1st edn, 1730). As a work written for students,371 it is reasonable to assume that it represents the law in practice, and it was indeed sometimes directly relied on in court cases.372 Bayne shows awareness of the debate about the biblical texts on an eye for an eye etc.373 His basic approach is: “There is a private action for assythment and reparation of damages, as far as any loss of that sort can receive an estimation.”374 The relevant seriousness is assessed by reference to the atrocity of the iniuria, not only where physical harm was concerned.375 Again factors relevant to non-patrimonial loss were social status, the “nature of the wound” and the financial means of the party liable,376 which he regarded as particularly important. Unlike Pitmedden, Bayne does not elaborate on the second of these factors. This may perhaps suggest that, although Pitmedden can be read as taking the subjective sense of the victim into account, the position on the ground was still that it was the objective impact on the body. Bankton’s reference in 1751 to solatium as a legal term is the earliest to be identified in Scottish legal writings.377 It is necessary to read this passage in the light of his consideration of “assythment”, which is not for Bankton the name of a delict, but a term covering the assessment of monetary compensation in certain types of case, including cases of physical bodily injury. He seems to be using the term not for the compensation of the affront, which was covered anyway in his scheme, but specifically with reference to the subjective impact of bodily physical injury. This would be consistent with the Roman–Dutch approach considered above.378 A marginal

371   “The following Sheets contain the chief Heads of Discourse, which are treated of at large in my Lectures upon the Criminal Law”: Bayne, Institutions “Preface – To the Reader”. 372   For citations of Bayne’s Institutions in 1737 and 1741, see Imrie, Justiciary Argyll, pp 467, 492 and 503. 373   Bayne, Institutions, p 190 (a later passage in the book) referring to Pufendorf Book 8, chapter 3, §27. 374   Bayne, Institutions, p 181. 375   Idem. 376   Bayne, Institutions, p 182: “due regard will be had . . . but especially to the wealth or poverty of the offender”. 377   Bankton, Institute I,10,35. 378  See Section 2.2.7(c).



uni t y i n di ve rs i t y

91

note379 states “What reparation is included in assythment; is there any reasonable amends due in solatium”. The accompanying text impliedly gives an affirmative answer. Where the victim was previously indigent he is entitled to compensation to cover reasonable subsistence, “sufficient aliment being a just satisfaction and amends for the harm done to his body”.380 (iii) Patrimonial consequences Alexander Bayne in his Institutions gives a simple proposition, which is broad enough to cover at least “cost of cure”, loss of earning power and other patrimonial consequences.381 Compensation was due for “the influence it [the injury] may have on the after part of his [the pursuer’s] life, in the exercise of his particular vocation, and the like”. Bankton is to a like effect.382 Stair uses in his general part a phrase “incident damages”.383 It is not clear, but this may be a generic term, for what is covered by two concepts, damna intrinseca and damna extrinseca, which were adopted by Pitmedden, directly from the treatment by Farinacius. Pitmedden categorises cost of cure, and loss “for lost work and cessant Gain” as compensable “Extrinsick” and “Intrinsick” damages384 respectively. These terms show that there was sophisticated analysis in ius commune literature of the approach to be taken to quantum. (f)  Remedies for infringements of other personality rights (i)  Generally Injuries to character or reputation gave a right to a palinode (apology and recantation) and monetary compensation to mark the affront. The first use of the term solatium in this context occurs in the middle of the 18th century,385 and it is at least doubtful that it was adopted to refer simply to the subjective feelings of the affronted person. (ii)  Stuprum – “nubere aut dotare” or “damages”? Before the Reformation the ecclesiastical Court of the Official would award an unmarried victim of stuprum386 a sum of money equivalent   Bankton, Institute I,10,19 to which 1,10,35 is cross-referenced.   Bankton, Institute I,10,19. 381   Ibid. 382   Ibid. 383  Stair, Institutions I,9,4. 384  Pitmedden, p 64, citing specifically Farinacius: d: insp: q 114 N 95, 96, 115,116 and 117. 385   Finlay v Ruddiman (1763) Mor 3436; Wilkie v Wallace (1765) Mor 7360; Bankton, Institute I,10,35; see Blackie, “Defamation” pp 676–679. 386   For the requirements to establish this, see Section 2.2.4 (b)(ii) above. 379

380

92

r i ght s of p e rs o n al i t y

to the dowry that she could be expected to bring to the marriage with a possible future husband.387 Some mediaeval canonists required the defender both to marry the woman and to endow her. But by the start of the 16th century at least, the view was these were alternative, either to marry the pursuer or to endow her, “nubere aut dotare” The purpose of this was not primarily to provide compensation for patrimonial loss. It was by one or other of these alternatives to return the pursuer to the status of a respectable, and marriageable or married woman. This approach to remedies distinguished this form of protection of a personality right from others. After the Reformation the maxim continued to be applied in Catholic countries, and at least for a while in some Protestant jurisdictions.388 In Scotland, at some point by the middle of the 18th century the option to the defender of marrying the pursuer had ceased to be given, if, indeed, it ever had been since the Reformation. It seems this was the position already at the start of the 18th century,389 though Fountainhall in his report of a case in 1696,390 which was in fact concerned with consequential financial losses, as discussed above,391 shows an awareness of the maxim. As late as 1744 in the Edinburgh Commissary Court,392 a pursuer considered it worthwhile arguing for it, as “the practice of all modern nations”, though the defender maintained “the rule ducere aut dotare never was received with us”. Of more importance for the development of the protection of personality rights is the theory that then underpinned the approach to monetary compensation. Social status was the central factor in the canonists’ approach in ascertaining what would be needed by the pursuer as a dowry should she ever marry. But that factor is also central to compensation for iniuria. Johannes Voet, used the term, poena, in referring to the remedy, nubere aut dotare, and analysed dotare as a payment for release as a form of noxal liability.393 Probably in Scotland the award was posited on a general basis, free from the artificiality of using dowry as a yardstick, which is not inconsistent   Gairdin v Lammye 5 May 1543 Liber Officialis Sancti Andree 84: “. . . in compensationem ipsius dotis”. 388   J Witte and R McCune, Sex, Marriage, and Family in John Calvin’s Geneva (2005), p 391; Voet, Commentarii ad Pandectas 48, 5, 3 and 5. 389   Irvine v Hamilton (1706) Hermand 67: “his fraudulent abusing of the pursuer, is sufficient to intitle her to damages and expenses”. It is conceivable, though probably unlikely, that this reflects Lord Hermand, the reporter’s, late 18thcentury perception rather than that at the time. Another conceivable possibility is that “damages” means costs of litigating that are in addition to actual fees paid (expenses), a meaning sometimes also found at this period. 390   Hislop v Ker (1696) Mor 13908 at 13909. 391  See Section 2.2.4(b)(ii). 392   Drummond v Sir Alexander Hope (1744) Hermand 68 at p 68. 393  Voet, Commentarii ad Pandectas 48, 5, 4, 3. 387



uni t y i n di ve rs i t y

93

with an award for iniuria. The amounts could vary hugely: £1,000 sterling in one early 18th-century case, and only one fifth of that in another.394 Bankton, the only Scots jurist of the period to give a rule, for which he refers to recent cases, states that nubere aut dotare is not part of Scots law.395 Compensation for patrimonial consequences is to be assessed at half the expenses of the birth, and maintenance of the child. Additionally compensation of non-patrimonial consequences is to be awarded, “in name of damage” if the man “allured the woman to his embraces with the hope of marriage”.396 2.2.8  Syntheses of the Institutional writers up to the middle of the 18th century (a)  Preliminary By the 17th century, in European juristic writing there were two or more distinct approaches to the analysis of the law on the protection of personality rights. One was to elaborate the category, iniuria, by multiplying illustrative examples of its application,397 and (at least in Scotland) to use also the sub-categories relating to bodily injury, deprivation of liberty and revealing of “secrets”. Another approach, an element in the revolution in civil law systematics effected by (among others) the 16th-century Huguenot humanist, Donellus, who influenced Grotius and the northern natural law school, including Stair, was to enumerate different personality rights systematically, deriving them as worthy of protection from an abstract theoretical basis.398 At a very fundamental level reflecting Calvinistic thought, the question of liberty and its constraints becomes central as underpinning the theory of the law of obligations in Stair. A consequence for his analysis for the question of the protection of personality rights is that   Castlelaw v Agnew (1719) Hermand 68.   Citing Ireland unreported, February 1731. 396   Citing Castlelaw v Agnew (1719) Hermand 68 and Linen v Hamilton (1748), reported sub nom Linning v Hamilton (1748) Mor 13909. 397  Herrmann, Der Schutz der Persönlichkeit, pp 18 and 26–28. 398  See H Weber, Der Schutz der Persönlichkeit im südafrikanischen Privatrecht (1996), p 65 for the influence of Donellus on the analysis of the actio iniuriarum in Grotius; Herrmann, Der Schutz der Persönlichkeit, p 21; R Feenstra, “Grotius’ doctrine of liability for negligence: its origin and influence in Civil Law countries until modern codifications” in E J H Schrage (ed), Negligence The Comparative Legal History of the Law of Torts (2001) at pp 33–37 and 137–144; on the revolution in systematics, see R Feenstra, “The Development of European Private Law: A Romanist Watershed?” in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law, Aberdeen Quincentenary Essays 103; P Stein, Roman Law in European History (1999); P Stein, “The Quest for a Systematic Civil Law” (1995) 90 Proceedings of the British Academy 147. 394 395

94

r i ght s of p e rs o n al i t y

the law protecting physical liberty is dealt with specifically only in connection with that wider jurisprudential conception of liberty, as in more detail does Bankton. A third approach to the development of iniuria is also discernible namely that where a jurist treats of iniuria as a whole, he has a tendency to refrain from relying on the thirdlevel sub-categories (ie those below the second level sub-categories of iniuria realis and verbalis) and instead tends to invoke the concept of iniuria dynamically as a direct source of causes of action.399 Juristic writing in Scotland at this period, thus, variously reflects the different standpoints of the systematic tradition of Donellus and the other approaches. Stair’s approach is intimately connected with his general scheme. Bayne enumerates specific personality rights while emphasising the generality of iniuria. Mackenzie multiplies examples. Bankton, who is heavily influenced by Voet,400 but deals with liberty as a fundamental conception, as found in Stair, combines aspects of both approaches. (b)  Mackenzie Mackenzie at no point in his work enumerates personality rights. Nor is there any systematic reference to the right protected when dealing with particular crimes/delicts. Only in some instances are the rights mentioned. The protection of life is justified on a theological basis that as God made man in his own image, man is obliged to “a natural horror . . . to be any accession to the defaceing it”.401 Criminal proceedings for adultery are to protect a person’s right in “his quiet, his good name, affection and person of his wife”.402 A right to “live peaceably at home” appears under Hamesucken.403 Honour and reputation are referred to, in an observation that the law “will punish even those who offend our imagination”.404 There is no consideration of the nature of the rights to liberty or bodily integrity, as opposed to the requirements for liability for their infringement. 399   Farinacius does not give examples of verbal injury. See also lib 1 tit 3 tit 12 quest 105 preamble that iniuria warrants treatment before specialia delicta “cum pauca sine delicta, quae in se iniuriarum non contineant” (since there are few delicts that do not have within them iniuria); lib 1 tit 3 quaest 18 nus 96 – 100 and lib 3 tit 12 quaest 105 nus 176–206, considering the question of the relative gravity of injury without referring specifically in the case of invasions of bodily integrity to mutilation. 400  See Blackie, “Defamation” at pp 653–654, n 169. 401  Mackenzie, Criminals (2nd edn, 1699), p 57. See also “Self-murder” as the killing of one of God’s “subjects”, since “nemo est dominus suorum membrorum”. Mackenzie, Criminals, 13.1 (p 75). 402  Mackenzie, Criminals (2nd edn, 1699), p 86 – there is also reference to the economic consequences. 403  Mackenzie, Criminals (2nd edn, 1699), p 110. 404  Mackenzie, Criminals (2nd edn, 1699), p 152.



uni t y i n di ve rs i t y

95

Mackenzie is squarely within the tradition of those who, instead of analysing rights, simply elaborated iniuria by examples. That is particularly clear from the range of sources he used for this. His examples are drawn from several different European jurisdictions, Saxony, Savoy, Ferrara, Naples and France, as found in the 16thand early 17th-century jurists, Berlichius,405 Antonius Faber,406 Aymo de Cravetta,407 Matthaeus D’Afflictis408 and Jacobus de Bello Visu,409 respectively. This is confirmed by the approach in his Institutions.410 Even though that work begins with a consideration of law in general there is no treatment of the nature of rights of personality there. Strictly adhering to the arrangement of Justinian’s Institutes411 has the effect that the protection of personality rights appears solely in Book IV under the heading “actions”, which includes “Crimes”. That part does not include even the random consideration of rights found at moments in his work on criminal law. The crimes/delicts are considered in the Institutions solely for the purpose of determining what punishment was applicable. In fact the list given of crimes that are relevant to the protection of personality rights is very incomplete. It extends only to adultery, 412 mutilation,413 hamesucken,414 infamous libels,415 plagium (as abduction of a man),416 and “verbal injuries in scandals against private parties”.417 (c)  Stair It has been well established that Stair in determining the basis of obligation is concerned with the limits on liberty in the widest sense, and that his analysis is underpinned by Calvinist thinking on the nature 405  Matthias Berlichius, Conclusiones practicabiles secundum ordinum constitutionum Augusti Electoris Saxoniae (Arnhem 1644) conclus. 60 n., num. 18; conclus. 69. 406  Antonius Faber, Codex Fabrinianus definitiorum forensium et rerum in Sabaudiae Senatu tractarum, ex ordine titulorum codicis Justinianei (1659) De injur. Def 5. 407  Aymo Cravetta, Consiliorum vel responsorum consil n 145. 408  Matthaeus de Afflictis, § iniuria tit de perjur firm. 409   Jacobus de Bello Visu, Quaestiones in iure canonico per eum disputatae lib 1 cap 3 num 31. 410  Mackenzie, Institutions of the Law of Scotland (1st edn, 1684) [later edns to 1758] 1,1. 411  This is expressly “to the end there may be as little difference between the civil law and ours, as is possible; and that the Reader may not be distracted by different methods” (Mackenzie, Institutions I,2,1). 412  Mackenzie, Institutions IV,4,10. 413  Mackenzie, Institutions IV,4,12. 414   Ibid. 415   Ibid. 416  Mackenzie, Institutions IV,4,20. 417  Mackenzie, Institutions IV,4,14.

96

r i ght s of p e rs o n al i t y

of man and his relation to God.418 Also he is not much concerned to expound the law which lay outside the jurisdiction of the ordinary civil courts.419 These two features of his work are reflected in his specific treatment of the protection of personality rights. Thus the protection of physical liberty afforded “by the customs of this nation” is just a short addition at the end of his treatment of liberty in his wider sense. It is couched in terms that indicate he may principally have had in mind420 imprisonment by a public officer, the category for which “wrongous imprisonment”421 had in this period been developed. The significance of bodily integrity as fundamental to the nature of freedom is that violence against the person, and the natural right of self-preservation and defence are also essential attributes of the analysis of rights.422 Further, the treatment of “conjugal obligations” and so the protection from infringement of the “mutual society” between husband and wife is fundamental and based on the nature of man and his relation with God.423 The subdivisions he adopts to describe general situations where a person is affected by the acts of others in his exercise of natural liberty, “restraint”, where it is physical, and “constraint” where the mental will is affected, are, likewise, an aspect of his wider analysis, as opposed to a sub-division in the law protecting personality rights. These terms are used in the same sense in John Locke’s philosophical analysis of volition in An Essay Concerning Human Understanding,424 first published in   J D Ford, “Stair’s title ‘Of Liberty and Servitude’” in A D E Lewis and D J Ibbetson (eds), The Roman Law Tradition (1994), p 135. 419  Stair, Institutions I,9,4: “yet that is incident unto a public right, and not ordinary” [ie not the business of the ordinary civil courts]. 420  Stair makes no reference to Scottish cases of criminal process in respect of abductions, nor to the crimen privati carceris, though at I,3,16 he does note that the Romans had “express law de libero homine exhibendo [ie D.43,92 De homine libero exhibendo], and de privatis carceribus inhibendis [ie C.9,5]”. 421  See Section 2.2.3(b)(iv) on the emergence of the nominate delict/crime of “wrongous imprisonment”. 422  Stair, Institutions I,2,3. 423  Stair, Institutions I,1,4. 424   An Essay Concerning Human Understanding (1690) Book II, Chapter 21 “Of Power”, §9, giving the following example “A man striking himself, or his friend, by a convulsive motion of his arm which it is not in his power, by volition or the direction of his mind, to stop or forbear, nobody thinks he has in this liberty; everyone pities him, as acting by necessity and constraint”. Locke also uses the word “compulsion” for this (§13) comparing with “restraint”: “when the hindering or stopping any action is contrary to his volition, it is called restraint”. Locke’s use of the distinction between “restraint” and “constraint” is followed by the major American 18th-century Calvinist writer, Jonathan Edwards, An Inquiry into the Modern Prevailing Notions Respecting that Freedom of the Will which is supposed to be Essential to Moral Agency (1754) (E Hickman (ed), Works of Jonathan Edwards (1834), p 12). 418



uni t y i n di ve rs i t y

97

1690.425 It seems likely, as has been conjectured with respect to similarities between other work of Locke and Stair’s general theory of obligations,426 that both were drawing on a common body of philosophical or theological terminology and thought rather than Locke being directly influenced by Stair. Even though Stair is not directly concerned with crime/delict or consistorial law, he does, in the tradition of Donnellus, incorporate into his specific consideration of reparation a scheme of protected interests wide enough to cover the whole field of personality rights as then understood.427 These are “Life, members, and health . . . liberty . . . fame, reputation, and honour . . . content, delight or satisfaction”. Whether “fame, reputation and honour” are in this scheme distinct or an omnibus category is perhaps open to question.428 The final trio, “content, delight of satisfaction”, is capable of comprehending the protection of rights in family life and moral sexual relations and those relating to the dead, though the passage seems phrased in a way that appears to be focused on the right to recover compensation reflecting, pretium affectionis. In his wider consideration of the nature of “conjugal obligations”, from the nature of man springs “the affection of property and chastity of the woman”,429 and accordingly, the innocent spouse in a case of adultery is “injured”,430 and the guilty spouse the “injurer”.431 Much later in the work in dealing with force and fear as a defence in the substantive law of obligations432 Stair specifically mentioned as instances of “just fear” (justus metus) “violence upon chastity”, being “abused with sodomy” and rape.433

425  In assessing influences on Stair that his work existed in manuscript as early as the 1660s has been underlined by J D Ford (above n 418) at p 138. 426  See N MacCormick, “Law, Obligation and Consent: Reflections on Stair and Locke” (1979) 65 Archiv für Rechts- und Sozialphilosophie 387 at pp 389–391. I am indebted for my awareness of this article to D Reid, “Thomas Aquinas and Viscount Stair: the Influence of Scholastic Moral Theology on Stair’s Account of Restitution and Recompense” (2008) 29 Journal of Legal History 189 at p 190, n 8. 427  Stair, Institutions I,9,4. 428   Ibid. See, eg, H Grotius, Inleidinge (1631) 3,33–37; idem, De iure belli ac pacis (1625) 2,17,2,1: specifying corpus, membra, fama, honor, actiones propriae; H Donellus, Commentarii de iure civili (1589–97) lib 2, cap 8 (the right to one’s own person includes vita, corporis incolumitas, libertas, existimatio) discussed in R Feenstra, “Grotius’ doctrine of liability for negligence: its origin and influence in Civil Law countries until modern codifications” in E J H Schrage (ed), Negligence The Comparative Legal History of the Law of Torts (2001) 129 at pp 137–144. 429  Stair, Institutions I,4,3. 430  Stair, Institutions I,4,7 and I,4,18 (donation revocable on adultery “though the party injured sought not to divorce”). 431  Stair, Institutions I,4,20. 432  Stair, Institutions IV,40,25 and IV,40,26. 433  Stair, Institutions IV,40,26.

98

r i ght s of p e rs o n al i t y

(d)  Bayne Bayne has a scheme of rights, which reflects “the order” of society. What is protected by the law is the different “parts” of that order.434 Two of these reflect personality rights: (1) “the ties of marriage and birth”435 and (2) “men in their persons436 . . . in their honour and reputation”.437 This expressly underpins his consideration of particular crimes/delicts.438 The crime/delict, “Injuries”, in his treatment covers the whole field of personality rights, apart from those relating to family life and moral sexual relations. The sub-division is the standard ius commune one by mechanism into real and verbal injury. The latter, it is underlined, can take place either where bodily physical injury results or where there is “an indignity or insult”.439 Animus iniuriandi is required.440 There is no separate consideration of deprivation of liberty.441 There is no specific consideration of the bodily injury subcategories, such as mutilation. Hamesucken does not get separate treatment. In identifying the protected interests Bayne is in the tradition of Donellus. On the other hand in so far as he provides a clear framework of liability based on iniuria, he is in the tradition that emphasises its generality. He does not give examples. As stressed above, the fact that this work was intended for students, and referred to in 18th-century courts, is strongly indicative that this was the accepted analysis in Scotland at the time. The protection is against “contumely or reproach” or against “some personal harm”.442 (e)  Bankton Bankton’s approach to the nature of man and the theory of freedom of obligation is much the same as Stair’s 443 and the subdivision into “restraint” and “constraint” is likewise adopted.444 However, there

  Bayne, Institutions “Preliminary Observations” §1 (p 6).   Bayne, Institutions §6 (p 8) 436   Bayne, Institutions combines with this “their estates”. 437   Bayne, Institutions §7 (p 9). 438  See Bayne, Institutions sv Adultery §1 (p 49). 439   Bayne, Institutions p 180. 440   Bayne, Institutions §13 (p 176). 441  Plagium is not specifically covered. Rape is (Bayne, Institutions p 63) confined to its modern sense, while it is noted that the abduction of women “is an offence of its own kind” (ibid). 442   Bayne, Institutions §2 (p 175). 443   Bankton, Institute I,2,66: “Liberty, which constitutes free men, is the natural power which men have over their own persons and actions”, citing Justinian, Institutes I,3,1 (de iure personarum). 444   Bankton, Institute I,2,69: “unlawful restraint is a violation of the liberty of our persons, and constraint an imposition upon the liberty of our actions”. 434 435



uni t y i n di ve rs i t y

99

are some differences in his treatment of the substantive law. There is much more detail, and not all the protected personality rights or interests are listed together. This comes from his scheme for crime/ delict starting from the general proposition “all men are naturally bound not to violate the rights of others”,445 and on the policy of preserving the peace of society, coupled with his decision to order most of his treatment of delict under the titles and names known to Scots law. The substantive law protecting physical liberty is covered by Bankton, as by Stair, in his general part.446 But now, some 50 years after the Act anent Wrongous Imprisonment 1701, he gives that Act detailed treatment.447 On the common law, he treats as settled Stair’s speculation that restraint is “punishable with us, according to the circumstances of the case, only from the principles of equity”.448 Bankton’s treatment of family life and moral sexual relations, unlike Stair, is set out in an extended title headed “Marriage, and other matters relating thereto”.449 As with Stair, the innocent party in adultery is characterised as a party “injured”.450 But, unlike Stair, he does cover stuprum, described by him as to “entice a virgin” (not mentioning widows).451 He details the canon law remedy of dotare aut ducere (endow or marry)452 and the canonists’ requirement of lost virginity453 and their requirement that the woman must not have been responsible for what happened. He does not elaborate on what form of pressure must have been brought to bear on her. The protection of all other personality rights is treated by Bankton within his title on delict in a section on “Injury”454 which is based on Digest 47,10 (De Iniuriis). Citing Ulpian’s influential tripartite definition of the interests protected by iniuria (corpus, fama, dignitas), accepted by Voet, Bankton states that the interests protected by the Scottish delict are “fame, dignity or reputation”.455 445   Bankton, Institute I,10,5: he continues “and therefore the person injured is intitled to damage fom him who contraveens that natural obligation”. 446   Bankton, Institute I,2,69ff. 447   Bankton, Institute I,2,70–74. 448   Bankton, Institute I,2,69. 449   Bankton, Institute I,5. 450   Bankton, Institute I,5,126. Unlike Stair, Bankton does not give any examples of infringements of personality rights of this type in dealing with force and fear (sv “Extortion”) (I,10,50ff). 451   Bankton, Institute I,5,63. 452   Ibid, citing Liber Extra, cap 1 de adulteriis. 453  He excludes the case of widows. 454   Bankton, Institute I,10,21–39. 455   Bankton, Institute 1,10,21, citing Justinian, Institutes IV,4,1; D.47,10,2 (Ulpian): “omnem iniuriam aut in corpus inferri aut ad dignitatem aut ad infamiam pertinere”. Cf Voet, Commentarii ad Pandectas 47,10,1: “Delictum in contemtum

100

r i ght s of p e rs o n al i t y

If the requirements for “injury” are met there is liability. Iniuria is the organising category. Infringement occurs when it is “to the reproach and grievance” of the victim,456 ie the normal ius commune understanding.457 Bankton’s definition differs from Ulpian’s by not mentioning bodily integrity (corpus) but he does treat invasions of bodily integrity under “Injury”.458 It is clear after all that “dignity” is infringed, as much, in those cases where bodily physical injury results. That the victim was an abject person is specifically mentioned as not preventing actionable injury in such cases,459 which emphasises that the concept of iniuria is being used. Physical bodily injury examples he gives are “beating or other atrocious usage of one’s person”,460 and “battery, by striking one”, which is “a high injury to his [the victim’s] person”.461 Hamesucken, which involved infringement of bodily integrity, is also included.462 The sub-categorisation is the standard ius commune division relating to the mechanism used, ie verbal and real.463 Examples of real injuries are given, as “An Assault, by holding up the fist or any weapon, against one in a threatning manner” (which is what Bankton means by “assault”),464 actually “striking” a person,465 invading a person’s home,466 preventing burial of a dead body, or

hominis liberi admissum, quo ejus corpus vel dignitas vel fama laesitur dolo malo” (a wrongdoing committed in contempt of a free human being, and by which his person or dignity or reputation is injured with evil intent: Gane’s trans). 456   Bankton, Institute I,10,21. 457  The statement at the start of the Section (I,10, Section II) on “Assythment” that “[o]ffences, whereby wrong is done without advantage to the offender concern . . . members and health; and the satisfaction due to the person wounded or maimed . . . is termed Assythment; or one’s fame and reputation, and the offence is specially named Injury”, has to be read in the light of the reference back to assythment under the heading “Injury” at I,10,21 for cases where bodily physical injury occurred. 458   Bankton, Institute I,10,22. 459   Bankton, Institute I,10,25. 460   Bankton, Institute I,10,21. 461   Bankton, Institute I,10,22. 462   Bankton, Institute I,10,26. 463   Bankton, Institute I,10,21, 22 and 24. 464   Bankton, Institute I,10,22, citing D.47,10,15 (De iniuriis). Also Bankton, Institute I,10,23 considering self-defence, citing D.47,10,1,3; and D.48,8,9 (ad legem Corneliam de sicariis). See also at I,10,44 under the heading of “Damage (to moveable property the reference to a British statute, providing for transporation as a punishment, [Act for the further preventing of Robbery, Burglary and other Felones, and for the more effectual Transportation of Felons] 6 Geo I c 22 (correctly 23) [s 11] “Wilfully and maliciously to assault people in the street, or high-way, and tear, cut, spoil or deface their cloaths, is adjudged Felony”. 465   Bankton, Institute I,10,22. 466   Bankton, Institute I,10,26.



uni t y i n di ve rs i t y

101

removing it from a grave, and defacing a monument.467 Bankton, unlike Mackenzie, does not give a list of examples of verbal injury. Rather he focuses on the specific effects that may occur, “whether they affect his life, liberty, estate, reputation, trade or profession”.468 In connection with this he gives as an example of the verbal mechanism, a stock ius commune one, charging the person “with a foul disease whereby his character is blemished”.469 Other examples are given only incidentally in considering particular points such as the extent to which things stated in court proceedings,470 or done by a judge in court471 can be actionable, or in making the distinction between oral utterances and written/printed representations or “publishing satires” for making with regard to the question of truth as a defence in some situations of verbal injury;472 or in considering the position when a person speaks “when in heat of passion or drunk to excess”(the ius commune category, in calore iracundiae).473

2.3  CHANGES AND CONTINUITIES: THE TRANSITION TO THE MODERN LAW, 1750 to 1850s 2.3.1  Increasing complexity of the law consequent on jurisdictional changes in the 18th century Development of the law protecting personality rights in the period from 1750 to the 1850s is directly influenced by changes in jurisdiction. The ordinary civil courts came to exercise a jurisdiction in cases of personality rights, but for different personality rights at different times. A consequence was that the development of the law tended to occur piecemeal in particular areas without reference to the wider field of real and verbal injuries as a whole. From the acquisition by the Court of Session, following the Act anent Wrongous Imprisonment 1701, of jurisdiction in cases of deprivation of liberty, which coincided with a major change of the context giving rise to claims of this sort, the law in that respect developed quite independently. Protection of rights in family life and moral sexual relations developed as a distinct sub-set of injury, following, likewise, the Court of Session’s assumption of

  Bankton, Institute I,10,28.   Bankton, Institute I,10,24. 469  See Blackie, “Defamation” p 656. 470   Bankton, Institute I,10,33. 471   Bankton, Institute I,10,37. 472   Bankton, Institute I,10,32. 473   Bankton, Institute I,10,25. 467 468

102

r i ght s of p e rs o n al i t y

jurisdiction in such cases around the same time. However, though the Court of Session assumed a jurisdiction in the first half of the 18th century in cases of verbal injury, by the mid-18th century the law of defamation begins its movement to the form which it took in the 19th century, following the assumption by the Court of Session of a jurisdiction in cases first of injury caused by written or printed representations.474 The typical forum remained the Commissary Courts and bodies of local presbyterian church discipline, at least for cases where it was an oral utterance, and all the instances in the reported case law are, in today’s terms, cases of defamation.475 Crucially, until the early 19th century, protection of bodily integrity from intentional invasions continued, it seems exclusively, to be achieved by private pursuers proceeding within the criminal process. The Court of Session had assumed jurisdiction in those cases by at least 1810.476 The lower civil courts assumed jurisdiction in such cases not long after this.477 Paradoxically, while late acquisition by the ordinary civil courts of jurisdiction in iniuria caused by spoken words, played a significant role in continuing awareness of iniuria (while tending to see it as confined only to that context), the equally late acquisition of jurisdiction by such courts in cases of bodily injury was to give rise to at least an appearance that protection of bodily integrity had a life of its own, not rooted in the past. The structure of the Scots law on personality rights as it existed in 1850 or thereby is portrayed graphically in Figure B. 2.3.2 Bodily integrity (a)  The second half of the 18th century The almost total lack of published sources from the criminal courts between 1750 and 1818 means that the fine tuning of any development of the applicable law in cases of bodily injury up to about 1810 cannot yet be confidently studied. It is clear, however, from juristic writing of the late 18th century that essentially the law remained as it had been previously, except possibly that the old sub-categories based on the nature of the impact on the body (eg demembration, mutilation; and

  Blackie, “Defamation”, pp 656ff and 684–686.  Idem. 476  See MacDonnell v Mcdonald (1813) 2 Dow 66. 477   Seymour v McLaren (1828) 6 S 969 – civil action before the Magistrates of Glasgow; Dowie v Douglas (1822) 1 Shaw App 125 – civil action before Burgh Court of South Leith. Grant v Harper 6 February 1810 FC – a case against a customs officer for assault may be the last reported case of a private pursuer proceeding within a criminal process at a lower court level. 474

475

Figure B: The delict of injury in 1850

Bodily integrity

Assault

Physical liberty

Wrongous imprisonment common law and 1701 Act*

Seduction (formerly stuprum)

Breach of promise of marriage (as delict)

Rape

Sexual morality; family life

Adultery

Real injury (iniuria realis)

Dignity and privacy

Breach of confidence

Residual category: Invasions of privacy, etc

INJURY (iniuria)

Malicious prosecution

Reputation, honour and dignity

“verbal injury” as false representation

Residual category, eg drawing attention to bodily defect, etc

Strict liability Defamation

Defamation

Verbal injury (iniuria verbalis)

uni t y i n di ve rs i t y

* The Act anent Wrongous Imprisonment 1701 lays down a special regime for quantum.

3

2

1

LIABILITY IN DELICT FOR PATRIMONIAL LOSS (AQUILIAN LIABILITY)*

This figure illustrates the categories and sub-categories of delict protecting personality rights as it was established in 1850. The levels referred to in the text as “first (or top) level”, “second level” and “third level” are respectively indicated by the numbers, 1, 2 and 3 at the left side of the figure. 19th-century developments are placed at a lower level in the figure. Where a third-level sub-category developed in the period 1750 to 1850 as an apparently nominate delict, a consequently more tenuous link to the second-level categories is shown by dashes. Where a sub-category grew from an earlier one in that period, that is indicated by an arrow. The personality rights protected by the third-level sub-categories are in the shaded boxes under the relevant sub-categories.

103

104

r i ght s of p e rs o n al i t y

the like) withered away.478 Erskine both in his Principles of 1754479 and his posthumous Institute of 1773480 analyses the protection of the right to bodily integrity by adopting one of the ius commune approaches to iniuria, that is to say, not allocating cases as between real and verbal (though he accepts those terms as part of Scots law), but just giving examples,481 among which are physical bodily injury cases. Hume in his Commentaries is much more analytical. Real injuries are a sub-category. While he uses the word, “assault”, Hume explicitly states that it is only as one of “sundry corresponding terms” used for “those offences against the person, which remain on the footing of the common law, and are punishable only with some inferior pain at the discretion of the Court”.482 That this locates the law within iniuria is underlined by his recognition of cases “such as savour more of contempt and indignity, than of our purpose to do bodily harm”483 and underlined also by a defence of “remission”, remissio iniuriae, by the victim express or implied after the event. Consistently with the common understanding in the ius commune, such a remission is easier to establish in the context of “those which consist in the contumely or insult” than “those which occasion any material distress or damage”.484 (b) Early 19th century – the emergence and establishment of the     apparently nominate delict, “assault” From the second decade of the 19th century “assault” emerges as an apparently nominate delict. The term had long been in the wings but used only in various descriptive senses.485 It now came to categorise not only the concept of intentional bodily physical injury, but also the concept of physical acts directed at physical injury of the person but not resulting in it. In the late 18th century and in the first quarter of the 19th century, however, the process of emergence takes place from within a continuing 478  Mutilation and demembration were dealt with as such in John Millar’s lectures at Glasgow University: J Cairns, “John Millar’s Lectures on Scots Criminal Law” (1988) 8 OJLS 364 at p 380. But Hume, Commentaries, vol 1, p 330 observed that “laying aside such idle debates . . . our judges now look to the degree of the injury”. Note the descriptive reference to effusion of blood in the pleadings (c 1810) in MacDonell v Mcdonald (1813) 2 Dow 66 at 67. 479  Sir John Rankine added a treatment of assault in his editions. 480  Nor did his editors add it. 481  Erskine, Institute IV,4,81. 482  Hume, Commentaries, vol 1, p 327. The terms were described (ibid) as “assault, invasion, beating and bruising, blooding and wounding, stabbing, mutilation, demembration, and some others”. 483  Hume, Commentaries, vol 1, p 332. 484  Hume, Commentaries, vol 1, p 337 (ie 9.9). 485  See Section 2.2.2(f)(i).



uni t y i n di ve rs i t y

105

understanding that “assault” is a species of iniuria, one form of real injury. Not only is this manifest in Hume,486 it is also reflected in an important decision in 1809487 on the question of the passive transmissibility of claims. It is reflected, too, 10 years later in the legislation,488 which was re-enacted in what was in effect a new code of Court of Session procedure, the Judicature Act 1825,489 amending the procedure established on the first introduction of civil juries in 1816. Particular types of case (known as “enumerated causes”) were now required to go to jury trial for proof of facts, rather than jury trial being left to the discretion of the court. Among the types of action so “enumerated” were “actions on account of injuries to the person”. “Assault” is mentioned not as a distinct nominate delict, but as an example of actions for real injuries in a list which covers also verbal injuries as follows: “Actions . . . on account of Injuries to the Person, whether real or verbal, as Assault or Battery,490 Libel or Defamation.”491 Two features of civil jury procedure meant that adoption of an English-influenced approach was not unlikely, namely (first) the need to encapsulate the case in a brief, written “issue” to focus it for the jury, and (second) the need for the judge to be able to charge the jury on the law, clearly and succinctly. Though jury trial was not introduced for inferior courts, their approach to the law naturally followed the lead in the superior courts.492 In formulating the issues for the civil jury, the terms, “assault” and “assault and battery”,493 come to be ones of style. Now that there is a reported case law, as there was not when private pursuers had to seek a remedy within the criminal process, the term “assault” was prominent in the headnotes and rubrics of law reporters.494 It is in judicial charges to juries in such cases that the direct influence of the English law on assault is first manifest. From the start, Lord Chief Commissioner Adam in the  Hume, Commentaries, vol 1, p 327 (quoted above).   Macnaughton v Robertson 17 Feb 1809 FC, discussed in Section 2.3.8(d) below. 488   Jury Trials Act 1819. 489   Court of Session Act 1825, s 28. 490   Battery may have been separately referred to in order to cover cases of “battery pendente lite”: for an example see Haddaway v Goddard (1816) 1 Mur 148. 491   Jury Trials Act 1819, s 1. 492  See Reekie v Norrie (1842) 15 Sc Jur 151 at 152 per Lord Jeffrey, commenting on the anomaly that there were no juries for such cases in the sheriff court. The influence of Court of Session decisions on sheriff court procedure is considered in J Blackie, “Judges and Parties in Scotland in the Provincial Courts in the First Half of the 19th Century” in C H van Rhee (ed), Judicial Case Management in Civil Litigation (2007) 139. 493   Hyslop v Miller (1816) 1 Mur 43; Haddaway v Goddard (1816) 1 Mur 148. 494  Eg Beatson v Drysdale (1819) 2 Mur 151; Young v Alison (1820) 2 Mur 228. 486 487

106

r i ght s of p e rs o n al i t y

Jury Court, in contrast to his approach in cases of verbal injury,495 drew on English law and his 35 years of experience as counsel in England.496 Other factors present at the time may be seen as fostering a perception that Scots and English law on this were the same. They were treated as such in time-bar legislation applicable to both Scotland and England affecting claims of this type where the defender was a customs officer.497 In the 18th century, society and culture had become increasingly uniform throughout Great Britain. The word “assault” may already have become, or started to become, part of day-to-day discourse in both jurisdictions. The common background is highlighted in a Court of Session case in 1828498 where the context was a disturbance in the Theatre Royal Glasgow. An English decision of 1807499 concerning a disturbance in the New Theatre Royal, Covent Garden, was applied. Rowdy audiences were a feature of the time in both jurisdictions.500 The point at issue was how far were managers of theatres entitled to manhandle members of the audience in these circumstances. The English victim, a barrister, was compensated by a jury, despite the judge giving it a strong steer not to. The Scottish victim, who “had been keeping up the hiss” against a performer, who “had displayed some awkwardness”, succeeded, with that English judge’s test being applied. Two symptomatic features of the development of the apparently nominate delict, “assault”, had a very strong tendency to give an appearance of not being an application of iniuria. One is that it covered also cases where there was a physical act not carried through to impact on the body. The other is the development of the concept of “aggravated assault”. Physical acts intended to impact on the person, though not carried through to actual impact, were obviously actionable within the ius commune. Clearly they could constitute iniuria. Once “assault” was adopted as a category comprehending non-impacting injuries, it had to be explained to juries expressly that in law such injuries were also “assault”, because of course in ordinary language they were not. Thus “assault” becomes for the first time in Scotland a term with an extended and technical meaning in law. So, while as late as 1842 a pursuer might plead, for example, that an attempt to touch his nose

  Blackie, “Defamation”, p 667.  See Mackie v Wight (1822) 3 Mur 23 at 27 noting that in all his time in England he had not met an assault case based entirely on circumstantial evidence. 497  See Lennox v Rose (1824) 2 S 650 at 651. 498   Seymour v McLaren (1828) 6 S 969. 499   Clifford v Brandon (1807) 2 Camp 357; 170 ER 1183. 500  D Campbell, Playing for Scotland – A History of the Scottish Stage 1715–1965 (1996), pp 34 and 76. 495

496



uni t y i n di ve rs i t y

107

was “in an insulting manner”, the issue put before the jury to try the case was formulated as “assault”.501 With this change came a different emphasis to the non-impacting act as a threat, rather than on the act as directed to insult or affront. From the very start of jury trials in 1816 in such cases the jury was charged, “[i]t is not necessary in law to constitute an assault, that the person be struck. It is sufficient that he has been put in dread or apparent danger of bodily injury”.502 In 1851 riding a horse at someone, though not coming into contact, was actionable as an assault if it was “so as to place [the pursuer] in danger, and in reasonable alarm”, as was also pointing a gun at someone.503 Before the early 19th century, in Scotland “aggravation” was principally a term to denote that a lesser crime/delict was committed along with a more serious one.504 It can also be found occasionally to refer to two factors that were recognised as increasing the seriousness of the affront from iniuria,505 the higher status of the injured party506 and the nature of the environment where it took place, such as in church.507 It did not refer to the seriousness of the impact on the victim’s body of the injuries. In the context of bodily physical injury that was unnecessary when liability was generalised within a broad concept of injury (and when seriouness of the impact was reflected in the different sub-categories, such as mutilation). Ius commune commentators stressed that, where the defender’s conduct took different forms in one attack, there was only a single iniuria.508   Gordon v Stewart (1842) 5 D 8.   Hyslop v Staig (1816) 1 Mur 15 at 22 per Lord Chief Commissioner Adam. 503   Ewing v Earl of Mar (1851) 14 D 314 at 315 per LP Boyle. 504  Hamesucken could be libelled as an aggravation in a case of attempted murder in a person’s dwelling house. (Mackenzie, Criminals, pp 110 and 112; Campbell (1716): Imrie, Justiciary Argyll, vol 2, 314 at p 318). Bearing arms (a statutory offence) could be libelled as an aggravation in cases of bodily injury. Mackenzie, Criminals, p 158. 505  See further Section 2.2.2 (b). 506  Sections 2.2.2(d)(i) and 2.2.2(e)(ii), especially at n 347 above. See also Carnagie (1672) Scott-Moncrieff, Justiciary Records, vol 2, 116 at p 119 – fact that the victim was a provost was a “qualitas aggravante” [sic]. See Mackenzie, Criminals (2nd edn, 1699), p 234 criticising the case and asserting that it made it a distinct crime, not “only an aggravating circumstance”. 507  Section 2.2.2(d)(ii) above. See also Young v Reid (1722): Hector, Renfrewshire Sheriff Court 218. 508   Farinacius, lib 3, tit 12, quaest 174. This applied “sive verbales sive reales” (whether verbal or real). Some jurists, as referred to by Farinacius, expressed it as “in eodem impetu plures injurias” (in the same attack many injuries) but leading to one poena. (Joannes Baptista Bajard[us] (c 1600) [Additiones et Annotationes] ad Clarus § Injuria nu 8 et seq, [Nicolaus] Boer[ius] [(1469–1539)], cons[ilia] 4 nu 6 [Bartholomaeus] Bertazz[olius] (Claudius Bertazolius (ed)) Cons[ilia seu Responsorum] Crim[inalium, et Penalium] (1585)] 237 nu 1. 501

502

108

r i ght s of p e rs o n al i t y

Reflecting this but also the fact that it did not have jurisdiction in cases of verbal injury the Justiciary Court, in a case where injurious words were associated with injurious acts, would allow proof that the words were uttered, but they could not be charged as a separate sub-category crime on the indictment.509 The published record of a case in the Argyll Justiciary Court in 1710510 in stating that certain “scandalous expressions” libelled would not be relevant as a crimen per se expressed this in terms of “aggravation”. However, in contrast to the concept of aggravated assault that developed when later the Court of Session acquired jurisdiction, it was not that the “assault” was aggravated but that the whole event was. It was “relevant enough to inferr [sic] riot511 attended with aggravating circumstances”. The concept of aggravated assault in the modern sense appears to have come from England. This had nothing to do with lack of jurisdiction. The Court of Session had now acquired jurisdiction not only in bodily physical injury cases, but also (concurrently with the Commissary Court) in cases of verbal injury. This new approach had two effects. First, the seriousness of the impact on the victim’s body was seen as “aggravating” the assault. Second, where affronting words were uttered they were treated as ancillary to the assault, which they “aggravate”. The former effect is manifest for the first time in a case in 1813. The seriousness of the assault was characterised as “attended with many circumstances of great barbarity and peculiar aggravation”.512 In the same case Lord Eldon in the House of Lords observed: “the assault was altogether attended with circumstances of peculiar aggravation”.513 Treating insulting words as an “aggravation” was yet another consequence of the need now to charge juries in understandable terms using the term “assault”514 even where counsel had hedged his bets, referring to the verbal aspects “both as an aggravation of the assault, and as a matter of special charge”.515 (c)  Continuing relationship of “assault” to “real injury” Notwithstanding the development of “assault” as an apparent nominate delict, certain aspects continued to reveal the ius 509   Carnagie (1672): Scott-Moncrieff, Justiciary Records, vol 2, 116 at pp 120– 121. 510   Campbell (1710): Imrie, Argyll Justiciary, vol 2, 248. 511   For the meaning of this word as a general term, see Section 2.2.2(f). 512   MacDonell v Macdonald (1813) 2 Dow 66 at 67. 513   Ibid at 72. He also said that “it certainly startled an English lawyer that evidence should have been admitted at such length of the previous assaults in 1798 and 1802”, but that “such evidence might have been admitted to show malice and premeditation”. 514   Hyslop v Miller (1816) Mur 43 at 51–55. 515   Ibid at 52 per Lord Chief Commissioner Adam.



uni t y i n di ve rs i t y

109

commune heritage.516 There was doubt, even as late as the 1830s whether the term “assault” included a particular form of act, such as spitting at a person’s face. The issue in a case in 1834 naturally used the phrase “assaulted or injured”.517 The judge’s charge to the jury expresses the same transitional uncertainty, charging “assault” and that “this mode of expressing contempt . . . is . . . actionable as an injury”.518 Even at the start of the 1850s,519 in a spitting case where as a matter of fact it was unclear that the spit landed, a similar transitional formula was used: “to spit upon a person is an assault, and a gross and opprobrious insult”. In this period the defence now always called provocation520 (a term with ius commune origins) is considered without reference to ius commune material.521 In the ius commune the criminalist commentators considered that sustaining a verbal injury was not a defence to a real injury, at least where that was ex intervallo.522 The rule now became that there must be “assault” by the pursuer.523 However, still in the 1840s,524 a pursuer’s throwing “handfuls of mud or dirt” at the defender who was walking in the company of a lady, accompanied by violent abuse, were characterised as “insulting acts” sufficient to establish provocation. (d)  Mental element There is very little structured analysis in 19th-century cases of what precisely is required as the mental element for assault. At all periods of

 See also Section 2.3.8(b). The changing meaning of the concept of “real injury” and its relation to assault and other offences in modern Scottish criminal law is critically examined in SME CRIMINAL LAW Reissue paras 13 and 204 (M G A Christie). See especially Hume, Commentaries, vol 1, p 327 and Khaliq v HM Advocate 1984 JC 23, 1983 SCCR 483, 1984 SLT 137 (which following Hume is authority for the proposition “that within the category of conduct identified as criminal are acts, whatever their nature may be, which cause real injury to the person”). 517   Tullis v Glenday (1834) Sc Jur 503 at 503–504. 518   Ibid at 504 per LJ-C Boyle. 519   Ewing v Earl of Mar (1851) 14 D 314 at 315 per LP Boyle. The jury awarded a farthing as damages. 520   Brown v Gibson-Craig (1834) 13 S 697. 521  The phrase, compensatio iniuriarum, does not appear in physical injury cases in the 19th century. Lord Chief Commissioner Adam used it an a defamation case, Goddard v Haddaway (1816) 1 Mur 156 at 159 linking it with the English idea of coming into court “with clean hands”. 522   Sivright v Lockhart (1746) Maclaurin 96 per counsel for the prosecutor at 96, citing “Farinacius, Gail, Berlich, Caprsovius [sic], and others” (described by the defender at 97 as “phlegmatic commentators”). 523   Lang v Lillie (1826) 4 Mur 82 at 86 per Lord Chief Commissioner Adam. 524   Hallowell v Niven (1843) 5 D 759. 516

110

r i ght s of p e rs o n al i t y

history, in the routine day-to-day case, this aspect would not be likely to be a point of dispute if the act and its consequences were proved. In 1809 counsel can be found characterising the mental element still in the standard form as the requirement of animus iniuriandi.525 A case in 1823526 might have provided an occasion for analysis, as it involved two defenders, the first being averred to have ridden his horse at the pursuer, and the second to have run into the pursuer on his horse, when he avoided the first. The court merely held the case relevant to support the proposition that both were “versantes in illicito”, though the first was shown to have had “no malicious intention”.527 In effect it held the case relevant either as one based on intention or one based on negligence.528 The proper classification of the relevance of a background power of authority to control the person injured, such as in the case of a teacher and pupil or parent and child or master and servant, in the ius commune was whether there was animus iniuriandi.529 Now in early 19th-century cases in Scotland the classification instead is relevant to a defence of “justification”. This is of English origin. In a case in 1823,530 the defender, on one of his servants being hit by a stone thrown by a boy into the garden, chased the lad, beat him and “plunged him” into the harbour at Burntisland. Lord Chief Commissioner Adam adopted this approach, stating that “[t]he only defence to the action is to set up and prove a justification”.531 In a teacher and pupil case in 1841,532 however, the line was blurred between the requirements for liability and the establishment of a defence.533 The jury was charged that “a teacher of a public school, being bound to see that the pupils behave correctly, is entitled to administer chastisement when the pupils deserve it; but it must be without any cruel or vindictive feeling or passion”.534

  Macnaughton v Robertson 17 February 1809 FC.   McLauchlan v Monach (1823) 2 S 590. 527   Ibid at 591. 528  The cited cases relate to negligence and joint and several liability, namely Innes v Magistrates of Edinburgh (1798) Mor 13189; Black v Cadell (1804) Mor 13905; Keith v Keir 10 June 1812 FC. 529   Farinacius, lib 3, tit 12, quaest 105, nus 133–134 (teacher), 138 (parent) and 144 (master). 530   Beatson v Drysdale (1819) 2 Mur 151. 531   Ibid at 153. 532   Muckarsie v Dickson (1848) 11 D 4. 533   For the continuation of this unclarity in the later 19th century, see Wight v Burns (1883) 11 R 217; (1883) 21 S L Rep 160, where, typically, no authorities were cited. 534   Muckarsie v Dickson (1848) 11 D 4 at 5 per LP Boyle. 525

526



uni t y i n di ve rs i t y

111

2.3.3 Deprivation of liberty (a)  The changes of context As indicated in Section 2.2.3(b)(iv) above, from about 1700 the protection of physical liberty comes to be by way of an apparently nominate delict, now to be designated “wrongous imprisonment”. Two linked factors give rise to this. First, the context changes. The Act anent Wrongous Imprisonment 1701535 is passed. Its general purpose was to enhance protection of liberty against the arbitrary exercise of state power, and in that connection it provided a novel and improved basis for monetary compensation. The quantum was a specific sum, depending on the status group into which the pursuer fell, plus a further specific sum for each day that the person remained deprived of liberty. In the course of the 18th century the old stock instances of abduction, previously prominent among the laird class and above and often celebrated in ballads, fade away and perhaps cease entirely,536 with the general development of civility in that part of society. Hume, at the end of the 18th century, said (mistakenly) that there appeared to have been no cases in the previous hundred years.537 If for no other reason the old ius commune sub-categories, crimen privati carceris, rape (in this sense), and plagium (of adults) disappeared. The term “privato carcere” lingered into the 1740s.538 By the time, however, it was taken over from the Folio Dictionary of  Act for preventing wrongous imprisonment and against undue delays in trials APS (1701) record edn c 6; amended by the Statute Law Revision Acts 1906 and 1964 and, by virtue of the Statute Law Revision Act 1964, Sch 2, known as the Criminal Procedure Act 1701. 536  See, however, the allegation in Campbell v Ramsay (1736) Mor 17067 that the pursuer who sued for wrongous imprisonment unsuccessfully had been put in prison because it was believed he had “clandestinely carried away [his travelling companion with the writs of his estate] from his wife and family”. Abduction still occurred among Highland caterans until at least the 1750s. In November 1716, Rob Roy Macgregor abducted and imprisoned the factor of the Duke of Montrose for five days on an island in Loch Katrine. Robin Oig Macgregor, the fifth and youngest son of Rob Roy was along with his oldest brother James responsible for the abduction and forced marriage (to Robin Oig) of Jean Key or Wright a young woman recently widowed aged about 20 years. Robin Oig was arrested in May 1753, indicted before the High Court of Justiciary on 24 December 1753, found guilty art and part in the abduction and condemned to death and executed by hanging on 14 February 1754. James was also indicted for the abduction but escaped from custody. See Anon, The Trials of the Sons of Rob Roy 1752–54, with Anecdotes of Himself and His Family (1818). 537  Hume, Commentaries, vol 1, p 83. Cf previous n. Erskine’s Institute does not mention abduction at all. The passage dealing with Plagium (of a child) in the last edition of the Institute (1881) is inserted by J Badenach Nicolson, the editor (as note (b) to IV,4,61). 538   Sutherland v Sir James Sinclair (1737) 2 Elchies 522 – local judge deprived of office now imprisoning people in his house. 535

112

r i ght s of p e rs o n al i t y

that time into Morison’s Dictionary as a marginal note to a case539 sv Vis & Metus 540 few if any would have understood its ius commune hinterland. Though an absolutist state like Prussia might include it in a code as late as 1794,541 it had become and has remained a lost crime/ delict in Scotland. (Of course, abduction and unlawful detention are still delicts and criminal offences.) The change of context meant that 18th-century deprivation of liberty cases for most of the century arose mainly from pre-trial imprisonment by a judge of an inferior542 court or by a public officer, or someone acting as such,543 without power to imprison in the circumstances. (b)  The question of the proper limits on the liberty of the subject    (1) – liability under the Act anent Wrongous Imprisonment  1701 (i) Requirements for liability under the 1701 Act Concern with the proper limits on the liberty of the subject had become a British constitutional question.544 Even just before the Union, Fountainhall refers to the pursuer as relying on “that excellent law of Habeas Corpus”.545 The Act anent Wrongous Imprisonment 1701, indeed, included provisions, that had counterparts in England, providing time limits on pre-trial imprisonment, 546 and regulating the rights of the accused to bail (provisions later amended by a statute for both countries).547   Stewart v Whiteford 1 January 1677; sub nom Steuarts v Whitefoord (1677) Mor 16489. 540   Decisions of the Court of Session from its first Institution to the present Time. Abridged, and Digested under proper Heads, in the Form of a Dictionary (1741), vol 2, p 507. It is standard in ius commune commentary that it made a resulting contract invalid. (See Farinacius, lib 1 tit 34 quaest 27 nu 20.) 541  Eg Allgemeines Landrecht für die preußischen Staaten 1794 II 20 §§1079–1082, §1079: Niemand soll, ohne vorwissen des Staats, privatgefängnisse, Zucht- oder Irrenhäuse anlegen. (No one shall, without permission of the state, set up a prison or lunatic asylum). 542  Eg Rogers v Rennie (1737) 2 Elchies 522 (not the Court of Session). 543  Eg Paterson v Anderson (1736) Mor 17069; Erskine, Institute IV,4,31. 544  As to Scotland, see the Claim of Right 1689: “That the imprisoning persons, without expressing the reason thereof, and delaying putting them to trial, is contrary to law”. Sir George Mackenzie, Vindication of the Government in Scotland during the Reign of Charles II (1691) had argued that detention without trial was “severe, but not illegal”; quoted by J D B Mitchell, Constitutional Law (1st edn, 1968), p 339, n 82. 545   Mackenzie v Earl of Marchmont (1704) 4 BS 595 at 596. 546   Bankton, Institute I,2,71. 547  Act to secure and deter such Persons as His Majesty shall suspect are conspiring against his Person and Government 1798 Geo III c 36, s 2 specifically amended the 1701 Act and made sedition no longer bailable. The Act 1799 Geo III c 49, which raised the maximum amounts of bail set in the 1701 Act, applied solely to Scotland. 539



uni t y i n di ve rs i t y

113

(ii) The scope of the 1701 Act The fact that cases under the 1701 Act were about these wider questions of liberty of the subject then gave rise to differing views of the scope of its application. Judges were faced with questions remarkably like those of today with respect to legislation directed at terrorism. The issue of the right balance between freedom and the needs of society for protection meant that the Act was seen as having as its fundamental purpose a requirement of due process.548 With the fears of revolution consequent on the French Revolution, views became more polarised. In a case in 1806549 raised by two freemasons, imprisoned by a sheriff-substitute for further examination with respect to sedition in connection with criminal proceedings against them as members of the Maybole Lodge,550 the majority of the court held that the Act did not apply to assist the pursuer. The minority, though, emphasised that the Act was “the great security of the liberty of the subject in this part of the kingdom”.551 (c)  The question of the proper limits on the liberty of the subject     (2) – liability under the common law (i) Requirements for liability at common law The basis of liability at common law in the 18th century was characterised as “illegal and oppressive imprisonment”.552 The older and wider concept of “oppression” now became a concept relevant only to the liability of public officers.553 As with 1701 Act cases, the focus came to be on the limits of the liberty of the public. (Cases could also be pled on both statutory and common law grounds together).554 This reflected not only the general concern of the time, but also the fact that common law claims were typically in cases against someone who had instigated the process whereby the pursuer  Reported cases accordingly are concerned with what was precisely required for a valid warrant at different stages of process (eg Neill v Miller (1739) 2 Elchies 522). 549   Andrew v Murdoch (1808) Mor Appx, sv “Wrongous Imprisonment” 5. 550  See M C Wallace, Scottish Freemasonry 1725–1810, unpublished thesis for the degree of PhD, University of St Andrews (2007), pp 219ff. 551   Andrew v Murdoch (1808) Mor Appx, sv “Wrongous Imprisonment” 5 at 8. 552   Symonds v Magistrates of Montrose (1747) 2 Elchies 523. 553  See J Blackie, “Scots Law: General Principles or Diverse Rules?” in J Bell and A W Bradley (eds), Governmental Liability: A Comparative Study (1991) 45 at p 57. 554  Some criminal prosecutions for wrongous imprisonment continued up to some point in the 19th century, but there is no evidence of private parties having sought compensation in such cases in the criminal process. (See Erskine, Institute IV,4,31 fn(a) by J Badenach Nicolson (ed)). 548

114

r i ght s of p e rs o n al i t y

had been imprisoned by an inferior court for pre-trial investigation, though other cases not covered by the Act could arise.555 For common law liability as now understood, it was necessary that the defender did not act bona fide.556 Matters relevant to due process might also be mentioned.557 Though common law claims were possible in other contexts, most significant were cases where a party was imprisoned for pre-trial examination following an accusation of theft, 558 which the 1701 Act did not cover. To be bona fide the defender must have “plausible ground for suspicion”.559 The law was represented as British. It was the approach “both in this country, and in England, whatever may be the theory in the latter kingdom”.560 “When men are robbed they are not to be put in terror of damages, and thereby to be restrained from taking the legal method of obtaining redress.”561 (ii) Relation to “wrongous prosecution” – after 1815 English law     imposed: requirement of malice and want of probable cause In 1815 an aspect of the English law of “wrongous prosecution” was imposed on pre-trial deprivation-of-liberty cases by Lord Chancellor Eldon.562 (In due course that apparently nominate delict would consequentially emerge in Scotland.)563 Lord Eldon was scathing about liability being founded on “malice and oppression”.564 Entirely openly565 he imposed the English law, namely that the requirements for liability were “malice” and, additionally, “lack of probable cause”. This must “be a principle of Scotch law”, he reasoned, because “it ought to be a principle of every law”.566 For good measure he hammered it home seven years later567 in a case where it had no relevance, a defamation action arising from a complaint by distillers to the Treasury about the behaviour of the Collector of

  Sinclair v Sir James Sinclair (1742) 2 Elchies 523 – deprived judge imprisoning in his own home. 556   Jamieson v Napier (1747) Mor 17070; Henderson v Scott (1793) Mor 17072. 557   Ramsay v Coulter (1799) Mor App sv “Wrongous Imprisonment” 1 at 4 – “harsh and rapid beyond what the circumstances of the case warranted”. 558   Robieson v Hamilton (1739) 2 Elchies 523. 559   Jamieson v Napier (1747) Mor 17070. 560   Henderson v Scott (1793) Mor 17072 per counsel for the (successful) defender at 17073. 561   Jamieson v Napier (1747) Mor 17070 at 17071. 562   Arbuckle v Taylor (1815) 3 Dow 160. 563  See Section 2.4.3. 564   Ibid at 181. 565   Ibid at 180. 566   Ibid at 182. 567   Young v Leven (1822) 1 Sh App 179 at 209–210. 555



uni t y i n di ve rs i t y

115

Excise in Burntisland.568 Their Lordships, he said, would “know it has been decided over and over again” that lack of probable cause was necessary. It certainly had not been in Scotland. But his fellow peers would have known little or nothing of that. Counsel had this time prudently cited English authority, including an earlier Eldon decision.569 Scots law was perhaps especially open to being given a forcible transplant, since the policy behind the English rule was the same as that which had influenced the Scottish 18th-century approach, namely: “the policy of the law requires that men should be protected who bring forward accusations founded upon probable cause”.570 (iii) The English rule confined and then triumphs After its introduction into Scots law in 1815, Lord Eldon’s requirement of “malice and lack of probable cause” was confined to an extent by the Scottish courts in the period up to the 1860s. Even in cases in the 1840s and 1850s571 more general averments were considered relevant. The catch-all concept of oppression could still be adopted in pleading.572 A case from the rather different context of enforcing civil debts was referred to in argument in one case.573 However, the approach was not likely to result in ultimate rejection of Lord Eldon’s transplant by confining it or otherwise, since the alternative was expressed so obscurely with a piling up of epithets as: “most illegal, unwarrantable, and oppressive, and was injurious, if not ruinous, to the character, credit, and reputation of the said pursuer, hurtful to his feelings, and degrading to him in the eyes of society”.574 There developed a disagreement between the First and Second Divisions. The former placed more emphasis on the value of liberty as a right. The latter emphasised the policy of encouraging the public to report crime, and sidelined one decision of the First Division575 as “extremely

  Sub nom Leven v Young (1818) 1 Mur 350, Issues for the pursuer at 352. The Court of Session had determined that it was “given falsely and maliciously” (at 363 per Lord Chief Commissioner Adam). Similar cases pleaded as defamation are Warrand v Falconer (1771) Mor 13933 and Thompson v Gillie 16 May 1810 FC. 569   Johnson v Evans (1799) 2 Esp. 32; 170 ER 528. Lord Eldon as Lord Chief Justice had held that a person could not be liable on the basis of slander as a result of making an accusation where the defendant had been taken into custody by a constable. 570   Arbuckle v Taylor (1815) 3 Dow 160 at 181 per Lord Eldon LC. 571   Strachan v Monro (1844) 7 D 178 and (1845) 7 D 399; Smith v Green (1853) 15 D 549. 572   Strachan v Munro (1844) 7 D 178. 573   Swayne v Fife Banking Co (1835) 13 S 1003. 574   Strachan v Munro (1844) 7 D 178 at 178. 575   Ibid, sidelined in Sheppeard v Fraser (1849) 11 D 446. 568

116

r i ght s of p e rs o n al i t y

special”,576 “very shortly reported”,577 “mysterious”578 and in which anyway the trial judge’s charge could perhaps be read as dealing with probable cause.579 Lord Cockburn exclaimed:580 “[i]f a man, whose person is assaulted, or whose property is stolen, cannot appeal to the criminal laws of his country without the dread of an action of damages, what would be the result of such a state of things”. Lord Eldon “in far stronger language . . . than that cautious judge was ever in the habit of using, except in a very strong case” had solemnly settled the matter. But the First Division in the next case581 stuck to its guns. One judge said he had “no sympathy with these decisions which cover with privilege [ie the requirement of malice and lack of probable cause] cases of this kind”.582 Reference to English cases was considered unhelpful.583 But the game was up. A decision of the First Division two years later584 corralled its own earlier decisions into a corner as ones where “there was no allegation by the pursuer of any specific charge having been made against him”.585 In effect the battle to preserve a zone free of “malice and want of probable cause” in the domain of wrongous detention by a public officer, was lost. This was clear when in 1865586 the First Division impliedly distinguished587 its earlier apparently contrary authority and required averment of “malice and want of probable cause” in a case where the pursuer alleged that the defender had made a false charge of theft, as a result of which he was apprehended. (d)  The personality right in reputation and self-worth in the context     of deprivation of liberty. Just as the idea of wrongful prosecution had always had an uneasy relationship with the general law of iniuria, so potentially could a   Sheppeard v Fraser (1849) 11 D 446 at 449 per LJ-C Hope.   Ibid at 450 per Lord Medwyn. 578   Ibid at 451 per Lord Cockburn. 579   Ibid at 451 per Lord Moncreiff. This charge to the jury is not reported. The words do not appear in the issue ((1845) 7 D 399). 580   (1849) 11 D 446 at 451. 581   Smith v Green (1853) 15 D 549. See also sequel (1854) 16 D 429 – defender barred, on the ground of lack of basis in his record, from arguing that there was malice and lack of probable cause; but established in the retrial. 582  At 553 per Lord Ivory. 583  At 552 per LP McNeill. 584   Page v Buchan (1855) 17 D 1079. 585   Ibid at 1081 per LP McNeill. 586   Thomson v Adam (1865) 4 M 29. 587   Smith v Green was the only case cited in the pursuer’s unsuccessful argument (at 30). Glegg, Reparation (1st edn, 1905), p 208 mentions only one of the cases, and only to support a narrow proposition that if someone allows a person to be arrested “after becoming aware of the innocence of the accused, there will be no privilege”. 576

577



uni t y i n di ve rs i t y

117

case of deprivation of physical liberty perpetrated by a public officer. Deprivation of physical liberty carried with it an implied affront, and could impair reputation, as well as being an infringement of physical liberty. If deprivation of physical liberty is analysed in terms of iniuria there is no problem, since both the invasion of physical liberty by the act of the defender and the implications from that act as to the pursuer’s reputation, are at one and the same time “real injury”. In assessing non-patrimonial loss it is merely that the quantum of monetary compensation, or the content of any remedy of apology or expression of repentance (palinode), should reflect that. However, as the law on protection of physical liberty developed in the 18th century in the context of deprivation of liberty by public officers, which was often observed by other people, the relation to defamation came to affect the formulations in 19th-century cases of that type. While the First Division remained still resistant to requiring “malice and lack of probable cause” counsel might include a separate plea of defamation,588 which could have lead to a distinct understanding of malice, reflecting the law of qualified privilege in defamation.589 The final triumph in this context of “malice and lack of probable cause”, however, choked off this approach for good. (e)  Detention or imprisonment without any power at all to detain:     slaves, mental patients and impressed seamen The requirement of “malice and want of probable cause” applied in a context where a public officer, or a person triggering his acts, had some legal powers of detention. It was not relevant in situations where there was no legal power to detain at all. Its rationale in such situations does not hold. Another approach to liability was applicable where members of the public sought to detain an individual asserting a right not recognised by law, as in the case of foreign slaves,590 or purporting to act for the individual’s own good. An obvious potential instance of the latter situation is that of restriction of the liberty of a person with actual,

  Strachan v Munro (1844) 7 D 178; Smith v Green (1854) 15 D 549 pursuer’s pleadings at 549. 589  See for contemporary confusion in that area, too, Blackie, “Defamation”, pp 674–675. 590  See Knight v Wedderburn (1778) Mor 14545; discussed in J W Cairns, ‘“Stoicism, Slavery, and Law’: Grotian Jurisprudence and its Reception” in H W Blom and L C Winkel (eds), Grotius and the Stoa (2004) 197 at pp 224–230; see also Stewart Nicolson v Stewart Nicolson (1770) Mor 16770, discussed in J W Cairns, “Slavery and the Roman Law of Evidence in Eighteenth Century Scotland” in A Burrows and Lord Rodger of Earlsferry (eds), Mapping the Law, Essays in Memory of Peter Birks (2006) 599. 588

118

r i ght s of p e rs o n al i t y

or alleged, mental illness or learning difficulties. There is no directly relevant591 legislation for Scotland until 1815.592 The applicable law was thus the common law (together with the scheme of remedies under the 1701 Act), whether an asylum or other institution was involved or not. Discussion of the law in juristic writing was basic. Bell wrote simply that “groundless confinement of a person in a lunatic asylum will give a good foundation for an action of damages”.593 There is evidence, however, that in the early 18th century some Scots lawyers regarded the protection as an aspect of iniuria, and related to injury to honour, reputation or self-worth. Iniuria in that form arising from assertions of mental illness had figured in the late 17th century,594 In 1710 a mother pled in a process of “cognition” of her son on a brieve of furiosity or idiotry for the appointment of a tutor on the ground of his mental state that it was a “tash” (ie slur or stain) on the family.595 The title of a pamphlet that must concern a case raised by or on behalf of Andrew Ross (or Rosse), Professor of Humanity at Glasgow University, who resigned because of actual or alleged mental illness in 1735,596 was “Andrew Rosse’s Summons of molestation, defamation, wrongous imprisonment”.597 Material in connection with a manifestly hopeless claim by an insane Edinburgh lawyer in 1765, in contrast, was couched in terms of an appeal to constitutional liberty.598 A reason why the law was not fine-tuned for this context in the later 18th and early 19th centuries is lack of reported cases. There are only two, the first being in 1825. It was then observed that the claim was “unprecedented”.599 The issue approved for the jury was whether the detention was done “wrongfully”.600 It was charged that the pursuer must prove “fraud, or such negligence as amounts to malice”.601 But still in the second case, in the 1840s, the court emphasised the issue 591  The first piece of “mental health legislation” applying to Scotland is the Criminal Lunatics Act 1800 (39 and 40 Geo III c 94). 592  Act to Regulate Madhouses in Scotland 1815 (55 Geo III c 69). 593   Bell, Principles §2042. 594  Dallas of Saint Martins, System of Styles (1697), p 211. 595  In a process of cognition (SRO CS25/319, 14 Feb 1710), analysed in R A Houston, Madness and Society in 18th Century Scotland (2000) at pp 94–96. 596  My identification of Professor Rosse as the person is from the Glasgow University website: http://www.universitystory.gla.ac.uk/biography/?id=WH2347&type=P. 597  R A Houston, “Rights and wrongs in the confinement of the mentally incapable in eighteenth-century Scotland” (2001) 18 Continuity and Change 373 at p 375, n 13 refers to this pamphlet as formerly in the British Library, but notes it has since been destroyed. 598   Ibid at 376–377 and n 29: Goldie (1765) NAS SC39/47/2. 599   Dickie v Dickie (1825) 3 Mur 509 at 513 per Lord Gillies. 600   Ibid. 601  At 314 per Lord Gillies.



uni t y i n di ve rs i t y

119

must only state, “wrongfully”.602 The judge in 1825 stressed that there were few precedents even in England.603 It is at least doubtful that the law to be applied, if it had required elaboration, would have been considered any different from the English common law of false imprisonment,604 despite the indication, noted above, of awareness of its being an aspect of iniuria in the early 18th century. On the other, in the 1830s at least, it was recognised that a false assertion that someone was mentally ill could found a relevant action for defamation.605 However, whether or not the Scots common law in the late 18th and early 19th centuries was seen as the same as the English common law, it did not operate in an identical context. The approach to care and treatment in practice in 18th- and early 19th-century Scotland has been contrasted with that in England with the consequence that the “Scots did not perceive wrongful incarceration of the mentally disabled to be a serious social or legal issue” giving rise to concern.606 R A Houston has described a wide range of features distinguishing the position in Scotland from that England including: the role of the family; the existence of options for care outside the context of asylums, including the fact that private asylums, when they did develop in the late 18th century, were not businesses operated by doctors (which prompted concern in England that resulted in legislation607 which had no Scots counterpart); the role of lay juries in the process of cognition; the legal process for appointment of a guardian (tutor); “fairness (or at least transparency)”608 by the courts in the process including a balanced approach to medical evidence; the distinctive nature of the Scottish poor law, based on the discretion of kirk sessions, and imposing burdens on heritors for its funding; and the approach to public provision, which developed particularly in the   Strang v Strang (1849) 11 D 378.   Dickie v Dickie (1825) 3 Mur 509 at 513 per Lord Gillies. 604  L Shelford, A Practical Treatise on the Law concerning Lunatics, Idiots and Persons of Unsound Mind (1833) has a chapter on the Scots law of cognition, tutory and curatory, and includes the Scottish mental health legislation. The consideration (at pp 45–46 and 402) of English cases of “false imprisonment” does not mention any Scottish material. 605   Waddell v Forsyth unreported, 2 June 1836; see also Mackintosh v Weir (1875) 2 R 877. 606  R Houston, “Rights and wrongs in the confinement of the mentally incapable in eighteenth-century Scotland” (2001) 18 Continuity and Change 373 at p 375. 607  Act for Regulating Madhouses 1774 (14 Geo II c 49) (made perpetual by 1786, Geo III c 91). Public asylums in England were the subject of later legislation: Act for the better Care and Maintenance of Lunatics being Paupers or Criminals 1808 (Geo III, c 96) (amended 1811 Geo III c 79). 608  R Houston, “Rights and wrongs in the confinement of the mentally incapable in eighteenth-century Scotland” (n 606 above) at p 388. 602 603

120

r i ght s of p e rs o n al i t y

early 19th century.609 Disputed cognition proceedings could be a way in which disputes within families of the individual were dealt with.610 In short, the institutional and other systems for care and treatment and containment were generally rational and not repressive.611 This may explain the lack of reported cases in Scotland before the 1820s. But in any event at no period were they common. In the following two decades there may have developed more of a shared perception of mental illness between Scotland and England. The rescue by a “a quakeress” of a son of the Earl of Balcarres, whom the Earl for years had kept in the care of his estate factor on the Island of Unst, gave rise to media excitement in both countries.612 The son sued in England.613 The law continued to be unsophisticated as applied in a reported case in 1849.614 However, consistently with principle,615 an argument was rejected that malice and want of probable cause was a requirement in a case against a party who initiated proceedings leading to detention,616 though in the case against the doctors who certified insanity, proof was required that they did so “without due inquiry”. Only in the next decade do claims based on the breach of statutory requirements that now existed617 first appear. This is the origin of the rule applied today in mental health claims, namely that legislation (in so far as consistent with the European Convention of Human Rights) forms a complete code making the common law irrelevant, except in so far as it is still the source of the right of an ordinary member of the public to take steps to prevent someone doing harm to others or to himself or herself.618 Writing in 1889, Sheriff Guthrie Smith observed that the bureaucratisation of mental health law by the establishment and operation of the General Board of Lunacy under legislation of the 1850s and 1860s,619 explained  See R A Houston, “Institutional care for the insane and idiots in Scotland before 1820” (2001) History of Psychiatry 3 and 177. 610   Ibid at pp 378–384; R A Houston, “Legal Protection of the Mentally Incapable in Early Modern Scotland” (2003) 24 Journal of Legal History 165; R A Houston, Madness and Society in 18th Century Scotland (2000), pp 94ff and 174–175. 611  See in particular Houston, (2001) History of Psychiatry 3 and 177 at p 193. 612   “Ebenezer” [pseudonym], Earl of Balcarres and the Honourable Edwin Lindsay, A Narrative of Authentic Facts (1837). 613  His rescuer ungallantly raised later in Scotland an action against him for remuneration allegedy promised or, alternatively, for recompense: Lindsay v Watson (1843) 5 D 1194. 614   Strang v Strang (1849) 11 D 378. 615  See Section 2.3.3(ii) and (iii). 616   Strang v Strang (1849) 11 D 378; followed in Mackintosh v Fraser (1859) 21 D 783; 22 D 421. 617  In addition to the statute of 1815 are 9 Geo IV c 34 and 4 & 5 Vict c 60. 618   B v Forsey 1988 SC (HL) 28. 619  Lunacy (Scotland) Act 1857; Lunacy (Scotland) Act 1862. 609



uni t y i n di ve rs i t y

121

why in the previous 30 years “not a single case of illegal detention has been recorded”.620 Imprisonment or detention by a public officer without any legal warrant or power was treated in the 18th century and later on the basis of ascertaining whether he had acted in accordance with statutory powers. The context of claims in the 18th and early 19th centuries was impressment for naval service. The statutory background was British. Further investigation of the records might, however, show a distinction between Scotland and England. In England claims were made difficult by the restrictive procedural rules adopted by the courts for habeas corpus in this context, while these were in practice sometimes mitigated by the Admiralty not contesting the application.621 By definition, impressment challenged the 18th-century conception of the liberties of the subject against the state.622 An English case in the 1740s where a challenge to its legality was rejected623 “outraged the public”.624 It also pitted the central government against local authorities, who at the time took a stance as protectors of liberty against central power.625 Impressment may have been illegal in Scotland before the Union,626 and in practice did not occur north of the border until 1755.627 Whether there was power depended above all on whether the person taken fell into the category, “seamen”. A gingerbread maker, and an individual alleging himself to be an imprisoned shoemaker,628 made claims in Scotland during the Napoleonic wars. There was also a decision about vagrants. However, none of these cases were reported and so following the de facto abandonment of impressment in 1815 had no continuing impact on the development of the law in Scotland.

  J Guthrie Smith, The Law of Damages (2nd edn, 1889), p 55.   K Costello, “Habeas Corpus and Military and Naval Impressment, 1756–1816” (2008) 29 Journal of Legal History 215. 622  Eg D Hume, Essays Moral, Political and Literary (1741,1742 and 1747) (reprinted T H Green and T H G Rose (eds), 1875), vol 1, p 38, quoted in B Lavery, Shield of Empire – the Royal Navy and Scotland (2007), pp 132–133. 623   Re Broadfoot (1743) Fost 154; 168 ER 76. 624  N A M Rodger, Command of the Ocean – A Naval History of Britain 1649– 1815 (2004), p 314. 625  See ibid, p 315. For a challenge to the legality of impressment by the Magistrates of Glasgow as late as 1812 (not carried through), see M Fry, The Dundas Despotism (1992), p 320, referred to in B Lavery above n 622, p 142. 626   J Grant (ed), The Old Scots Navy (1914), pp 371–372, quoted in B Lavery above n 622, p 131. 627  The build-up to the Seven Years War with France, 1756–63. 628   B Lavery above n 622, p 141, based on the papers in PRO/ADM and Dunfermline public library. 620 621

122

r i ght s of p e rs o n al i t y

(f)  Deprivation of liberty in the context of enforcement of civil     claims The dominant context from which deprivation of liberty cases arise in the first half of the 19th century is diligence against the person by civil imprisonment for debt, whether in security629 or in execution, ie as a mode of enforcing a decree. It is difficult to explain why there is only one isolated earlier instance in the reports (in a case as long ago as 1705)630 and in published court records of this context before this period. The suggestion of certain possible background factors as explaining this for the 17th century631 may be pertinent to the 18th century as well. It may be that there is an economic explanation and the crucial factor is the development of trade and business from the late 18th century onwards.632 From the first decades of the 19th century the issue for jury cases of this sort was merely that it was wrongful.633 In one case “oppression” was averred.634 In another635 an argument was that there was distinction between cases where the warrant for imprisonment was granted to enforce a debt that did not exist, and a case where the imprisonment was based on “irregularities”.636 These ideas were shreds of aspects of earlier tradition. Finally in 1858637 it was authoritatively established that to avoid confusing the jury, only “wrongfully” should be put in the issue and specifically not terms such as “‘nimiously’ or ‘injuriously’”.638 Notwithstanding this, the decision does focus on the nature of the right invaded as a personality right, since the judgment speaks of “an invasion of the personal liberty of the debtor”. Moreover, “wrongful” was glossed as relating to the infringement of the right, as “a legal wrong – a violation of those rights which belong to the other party”. This is consistent with an iniuria approach. However, the question of the mental element required is less clear, as it became entangled with the question also of whether there was a legal power: “what is the true

629  Eg Manuel v Fraser (1818) 1 Mur 386 – detained and taken to Edinburgh in a mail coach. A large number of cases concern the use of meditatione fugae and “border” warrants. 630   Robertson v Pedison (1705) Mor 17067. 631  See Section 2.2.3(h)(iv). 632  Another question of difficulty is why cases from this context fade away in the second half of the 19th century. 633   Pearson v Anderson (1833) 11 S 1008; Macdonell v Bank of Scotland (1834) 13 S 701. 634   Manuel v Fraser (1818) 1 Mur 386. 635   Macdonnell v Bank of Scotland (1834) 13 S 701. 636   Ibid at 703. 637   Ford v Muirhead (1858) 20 D 949. 638  At 952 per LP McNeill: “would only tend to embarrass the issue”.



uni t y i n di ve rs i t y

123

issue as to the conduct of the creditor, and how far he has exceeded the legal use of the remedy which the law provides”.639 Good and bad faith were relevant, but so was “a lack of reasonable grounds”, or at least being reckless as to thinking the debtor was going to flee.640 2.3.4  Malicious prosecution not involving deprivation of liberty? Some ius commune jurists saw liability for proceeding against another in the criminal courts as potentially giving rise to a claim on a basis distinct from iniuria. This arose from treating certain Roman texts separately.641 At the end of the 18th century Hume in detailing a list of personality rights refers to “putting one in danger, as by malicious information of a crime”, separately from “loss of liberty, as by wrongous imprisonment”.642 However, there is nothing to suggest in earlier Scottish material that the relevant law was anything other than that of iniuria, though if detention or imprisonment was involved, it would have been treated under the heading “wrongous imprisonment”.643 Moreover, there is an obiter observation from Lord Kames in a case in 1753,644 which involved pre-trial imprisonment, where he recommended the English grand jury procedure as suitable to avoid the risk of liability for prosecuting, in language treating the potential liability as based on iniuria, “for where they [the Grand Jury] find a bill, the private party prosecutor can never be decerned calumnious”.645 However, the mid-19th-century development of an apparently nominate delict of “malicious prosecution” actionable even where there was no consequent deprivation of liberty646 builds directly on the law for wrongous imprisonment, as laid down by the House of Lords in 1815,647 which was itself based on the English law of malicious prosecution. Already in a case in the 1820s, though the additional feature of being detained was present, this development is apparent.648 While the issue for the jury was in terms of the prosecution being “defamation”, it was observed judicially to be “an

 At 952 per LP McNeill.  At 951. 641  R W Lee, “Malicious Prosecution in Roman–Dutch Law” (1912) 29 SALJ 22. 642   Commentaries, vol 2, p 121, quoted in Section 2.3.9(c) below. 643  See Section 2.2.3.(b)(iv). 644   Stewart v Grant (11 December 1753) Elchies sv “Damage and Interest” No 3; (1753) 5 BS 256 (Kilkerran). 645   Stewart v Grant (1753) 5 BS 256 at 256. 646   Henderson v Robertson (1853) 15 D 292. 647   Arbuckle v Taylor (1815) 3 Dow 160. 648   Harper v Robinson (1821) 2 Mur 383. 639

640

124

r i ght s of p e rs o n al i t y

action of damages for a malicious prosecution”,649 and the jury was directed that the requirements for liability were malice and lack of probable cause.650 2.3.5  Family life and moral sexual relations: late 18th and 19th centuries By the second half of the 18th century cultural norms in the upper echelons of society with regard to sex and marriage had so changed that the law protecting interests in family life and moral sexual relations alters, and becomes to an extent detached from its ius commune moorings. First, the Justiciary Court judges from the early 18th century began to refuse to allow adultery cases generally to be brought in the criminal process. It has been shown that this reflects their enlightenment mind-set, initially at variance with that of many, particularly provincial, Scots.651 At the same time the Court of Session assumed jurisdiction652 in actions by “innocent” spouses against paramours. Kenneth Norrie’s observation that “it would seem . . . the court recognized an actio iniuriarum”653 is confirmed as correct inter alia by references654 to the Digest title De Iniuriis,655 to Huber’s commentary on that title,656 and to “Aenach” [correctly Enach] in Skene, De Verborum Significatione657 given Skene’s explanation at another point that this “significat satisfactionem, quae datur alicui proprio aliquo delicto, aut injuria”.658 However, without necessarily 649   Harper v Robinson (1821) 2 Mur 383 at 391 per Lord Chief Commissioner Adam in the debate on admissibility of evidence. 650   Ibid at 397 per Lord Chief Commissioner Adam. 651   B Levack, “Prosecution of Sexual Crimes in the Early Eighteenth Century” – Abstract (2008) 29 Journal of Legal History 148. (I am grateful to the author for providing me with a draft of the full text of this essay). 652   Steedman v Coupar (1743) Mor 7337; sub nom Stedman v Stedman (1743) Mor 13909. 653   K McK Norrie, “The Intentional Delicts” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2, 477 at p 511. 654   Steedman v Coupar (1743) Mor 7337 at 7339. 655  D.47,10,1,2 and D.47,10,19. The latter seems incorrect; it may be a mistaken reference to D.47,10,1,9. 656  Ulricus Huber, Praelectiones Iuris Civilis, ad De injuriis, lib1, tit 5, “Quibus modis feudum amittitur”. 657  Which is to the effect that the remedy of a bondman with whose wife the master slept, was only to be given his freedom, and that a vassal who slept with his superior’s wife, lost the feu. 658   (Means satisfaction, which is given to a person in respect of a delict, or iniuria.) In annotation to Regiam Majestatem (fol. 103v), identified and discussed in A D M Forte, “Ane Horss Turd’? Sir John Skene of Curriehill – A Gaelic-Speaking Lawyer in the Court of James VI?” (2007) 23 Scottish Gaelic Studies 21 at p 34. I am indebted to the author for an offprint of this essay.



uni t y i n di ve rs i t y

125

losing sight of the basis in iniuria, cases arising out of adultery show a new tendency becoming typical of the late 18th-century to assume that the law is the same as in England.659 In due course the English rule that no preliminary decree of divorce was required was adopted.660 No ius commune source is recorded as cited for that. The question of what conduct would bar a claim, a topic dealt with in depth and detail by canonists, now was in a neo-classical way just that “the appearance of lenocinium” was from “the purer period of Roman jurisprudence”.661 In the second half of the 18th century stuprum becomes rebranded as “seduction”.662 Thus labelled, it would in the 19th century come to appear to be a nominate delict. But at this period claims continue in the Commissary Court. The basis for them continues to be consistent with ius commune doctrine, although the Court of Session fine-tuned what was meant by the need for fraudulent enticement.663 Levels of monetary compensation continued to vary hugely, suggesting that status was still crucial.664 A very revealing development at the start of the 19th century is the characterisation for the first time of cases of breach of promise of marriage as within the law of delict.665 Accordingly, for the first time Scots law recognised in breach of promise cases the right to compensation for the non-patrimonial consequences. In a case in 1770666 this had only been recognised in a roundabout way by a pursuer averring that the method which her (75-year-old) fiancé adopted of breaking off their engagement was a letter sent to one of her friends. That, however, rather than the act of breaching the promise, had constituted the affront.667 The action was defended on the ground that there was no animus iniuriandi.668 The court clearly saw the claim   Forte (n 658 above).   Maxwell v Montgomery (1787) Mor 13919; Paterson v Bone (1803) Mor 13920 – referring to Blackstone 3 Chapter 8. 661   Paterson v Bone (1803) Mor 13920 per counsel for the defender at 13921, citing D.48,5,1,11 (ad legem Iuliam de adulteriis coercendis); C.9,9 (ad legem Iuliam de adulteriis et de stupro). 662   Buchanan v Macnab (1785) Mor 13918 at p 13919 per counsel for the defender – “stuprum fraudulentem” is an isolated late use in the reports. “Seduction” is an English term of art. 663   Linning v Hamilton (1748) Mor 13909; Buchanan v Macnab (1785) Mor 13918. 664  See Buchanan v Macnab (1785) Mor 13918. 665   Cf in Hogg v Gow 27 May 1812 FC, counsel’s attempt (at 655) to argue on the basis of breach of contract. 666   Johnston v Pasley (1770) Mor 13916. 667   “the defenders drawing back was no injury to the pursuer’s character”. 668   Ibid at 13917, rather oddly maintaining that publication of the letter was required for scandal to be established. 659

660

126

r i ght s of p e rs o n al i t y

as one of iniuria, even though it strongly indicated that there might be no basis in fact as the alleged calumny was “of a trifling nature, and not to be regarded”. It is only in 1812 that a direct claim for nonpatrimonial consequences arising from the breach of promise itself is clearly669 recognised. In Hogg v Gow,670 in recognising the woman’s right to “solatium” the court expressed its reasoning at length. It gives effect to what is part of the new contemporary culture of sentiment, or even sentimentality. Now judges identify with what they perceive to be the feelings of a jilted woman reflecting new assumptions about femininity. The Lord Justice-Clerk671 pictured her “utmost distress” which might “terminate in death”. Lord Robertson672 imagined her “unutterable anguish”. Lord Meadowbank contemplated a “calamity that has sunk the mind, that has depressed it, and rendered it incapable of the pleasure most suited to truth and character”673 The recognition of the remedy was to adapt the law “to the change that has taken place in the habits, the feelings, and the manners of the people of Scotland”,674 and “look to the present state of morals and society”.675 How this was done was firstly by recognising that the right invaded involved the subjective impact on feelings.676 The basis of protection was to follow the lead of “other countries where society has made an earlier advance than in our own”,677 which one suspects meant, particularly, England. It was based on the observation that “for every wrong there must be a remedy”678 and “grounded in natural justice”,679 or “the first principles of justice”.680 However, the court, nonetheless, can be seen as locating the remedy in the context of iniuria. It was “the worst of injuries”.681 Analogy was made to “abusive language”,682 and defamation as “to sport with the feelings of another, and to expose her to ridicule and contempt”,683 and also by counsel to physical bodily injury.684 669  The case law before the late 18th century, starting with Grahame v Burn (1685) Mor 8472, was considered obscure in Hogg v Gow 27 May 1812 FC. 670   27 May 1812 FC. 671  At 659–660. 672  At 658. 673  At 657. 674  At 659 per LJ-C Boyle. 675  At 659 per Lord Bannatyne. 676  At 658 per Lord Robertson and at 659–660 per LJ-C Boyle. 677  At 659 per Lord Robertson. 678  At 658 per Lord Robertson. 679  At 657 per Lord Meadowbank. 680  At 659 per LJ-C Boyle. 681  At 658 per Lord Meadowbank. 682  At 658. 683  At 660. 684  At 655.



uni t y i n di ve rs i t y

127

In Hogg v Gow the compensation was given for hurt feelings. It seems that around this time judges were tending to go straight to the question of that consequence of affront, though assuming that in all cases of affront feelings must be hurt. That shift of emphasis is discernible in a whole range of contexts of infringements of personality rights in the 19th century and later. However, in the context of breach of promise of marriage the judges were clear that the quantum of damages awarded as solatium was to be such as the court should think “necessary and proper”, and what the “party wronged” had an interest to seek was “reparation of the wrong”.685 This is what is meant by describing the award as “exemplary damages”,686 ie clearly to mark the wrong, even though the term may have been borrowed from England,687 where it had different connotations. 2.3.6  Informational privacy in 18th and early 19th centuries (a) Entrusted information There is very little 18th-century Scots material from which to determine the approach taken to the analysis of liability for infringements of informational privacy. However, the concept of protection of a “secret”, considered in detail by Mackenzie,688 was still understood. In the Edinburgh Commissary Court in 1748689 an advocate on discovering that his client, the defender, after the proof had told a relation of the pursuer that he “disclaimed the greatest part of what had been pleaded” decided he could as a result no longer act. He explained to the court that he did not wish to reveal to the court, the terms of letters from his client that had authorised him “to advance every fact contained” in the pleadings, since he was “unwilling to discover [ie disclose] the secrets of a client, however little deserving that delicacy”. At the start of the 19th century the idea of the entrusted “secret” comes to be discussed in the language of “confidentiality”. The question is then whether, nonetheless, the approach remained at least at this period still within a general ius commune analytical framework. It was held in the Court of Session in a case690 concerning an interdict against publication of Burns’s letters to Clarinda that

 At 658 per Lord Robertson, and at 659 per Lord Bannatyne.  At 659 per LJ-C Boyle. 687  See Johnston v Pasley (1770) Mor 13916 at 13917 (pursuer’s pleading refers to English sources, viz Bacon’s Abridgment v 3 fol 574). 688  See Section 2.2.5. 689   Murray v Cranston 11 May 1748, Hermand 102 sv “Disclamation”. 690   Cadell v Stewart (1804) Mor Appx sv “Literary Property” 13; 5 Paton 493. 685

686

128

r i ght s of p e rs o n al i t y

the recipient had no right to publish them. At this period, Clarinda, a married woman, seems to have been happy to have passages from the letters published in order to preserve her good name,691 though in the 1830s it was to be she herself very late in life who prevented publication.692 The pursuers693 referred to the letters as “confidential correspondence”. The ground of the court’s decision included the proposition that “the communication in letters is always made under the implied confidence that they shall not be published without the consent of the writer . . .”. The relevance of the author’s intention had also been an aspect of a case in 1775 where the publication of the educationally controversial letters of Lord Chesterfield to his son was interdicted by their English publisher, to whom the right to publish had been assigned by the recipient’s widow after the death of their author.694 Bell’s analysis of the Clarinda case in his Principles is that the right is “in Scotland, on the ground chiefly of a just and expedient interference for the protection of reputation”,695 which is not the ius commune understanding of the protection of secrets, although it is capable of fitting with iniuria. However in his Commentaries696 Bell does approach the case in terms that fit the ius commune category of the protected “secret”. He describes thoughts entrusted in the letter as “confidential”, but also as the “most secret thoughts” and “uttered in the secrecy of his chamber”. Commenting on a cross-border difference in approach, Bell remarks that “[i]n Scotland, the Court of Session is held to have jurisdiction, by interdict, to protect not property merely, but reputation, and even private feelings, from outrage and invasion”. In the 1850s the classic example of a professional person, a medical doctor, revealing private information about a client or patient is treated as “breach of confidence”.697 The successful pursuer grounded the case on breach of “professional honour and of professional

 Letter to John Syme (undated – 1790s) in Preface to 1843 edn, reproduced in D O’Rourke (ed), Ae Fond Kiss – The Love Letters of Burns and Clarinda (2000) at p 120. 692   Ibid at p 101. Following her death in 1839, per her son, A C MacLehose, WS, they were passed to the editor of the edition of 1841 by G H Pattison, Advocate. By that time there was no one with an interest to object. 693  Mor Appx sv “Literary Property” at 14. 694   Dodsley v McFarquhar (1775) Mor 8308; (1775) Mor Appx sv “Literary Property” 1; (1775) 5 BS 508 (Tait sv “Literary Property”) 509. Dr Johnson’s unflattering view of the work was was discussed in the court (James Boswell, Life of Johnson (1791) (R W Chapman ed, 1979), pp 187–188. 695   Bell, Principles §1357. 696   Bell, Commentaries, vol 1, pp 111–112. 697   White v Smith (sub nom AB v CD) (1851) 14 D 177. 691



uni t y i n di ve rs i t y

129

contract”;698 the unsuccessful defender on the absence of “a special contract of secrecy”.699 But till that time at least the possibility was latent in the law to continue the ius commune tradition of protected secrets. If that had occurred Scotland would have perhaps developed an analysis like the present-day French secret professionel. (b)  Invasions of privacy by taking and disclosure As noted above, ius commune writing seems not to have dwelt in detail on invasion of privacy by the taking and public disclosure of “private” information. It is possible that until the 18th century the close communal way of living may have limited the private sphere, and fewer people would have kept private diaries or had correspondence, as literacy was not universal.700 Moreover, there was no regular journalism, which for Scotland developed first in the 18th century, and publishing was limited in scope and subject until even the second half of that century as well. 701 The extensive proliferation of newspapers, including also trade newspapers, such as gave rise to the case of Newton v Fleming702 considered in detail below, is a product of the mechanisation of print technology in the first half of the 19th century. The first Scottish reported case dealing with liability for taking information is in 1822.703 It was considered by Lord Chief Commissioner Adam to be novel.704 It concerned information held by the pursuer’s lawyers. The jury was directed in terms of “breach of confidence”, even though it was not against a party who had been entrusted with the information. The defenders were alleged to have taken it having bribed the lawyers’ clerk.705 The jury was charged that the law is the same as in England: “[t]he confidence of a law-agent is as deeply founded in the law of this country as it is in England”. The word “secret” is used, but not as one of technical legal meaning. Though the information in the book consulted was obviously in the public domain, the jury were directed that, “if it is secret in the  At 179.  At 179, referring to Kerr v Duke of Roxburgh (1822) 3 Mur 126 (see further below), and English material. 700  See, generally, R A Houston, Literacy in Early Modern Europe (2001). 701  See J Blackie, “Defamation”, pp 657–662. 702   Newton v Fleming (1846) 8 D 677; 18 Sc Jur 346; (Full Court); reversed sub nom Fleming v Newton (1848) 6 Bell 175; 20 Sc Jur 229. 703   Kerr v Duke of Roxburgh (1822) 3 Mur 126. 704  It is not clear whether he meant the first of precisely this kind, namely against a party who had bribed a lawyer or his clerk to reveal the information. No report of a Scottish case against a lawyer (or doctor) before this has yet been identified. 705  A case against the lawyer would have failed as he did not reveal it, and would not have been vicariously liable for the fraud of a clerk, at this period. 698

699

130

r i ght s of p e rs o n al i t y

cause, the transaction is for the disclosure of information of a secret nature”,706 and the “secret of the agent is the secret of the party”. To test the nature of the law as it applied to invasion of informational privacy by taking, one needs a case where that information was not divulged by someone to whom it was entrusted. The case of Newton v Fleming in the 1840s provides the unique opportunity for this to be considered.707 It is at a pivotal point in the history of the law. As the Lord Ordinary (Robertson) observed, it was a case “of great importance”.708 The petitioner (suspender) sought and obtained interim interdict against a trade association from publishing in a trade newspaper an entry in the General Register of Protests (a public register of protested bills of exchange) which would show that a bill had been protested against him. Interdict was granted in the Court of Session by the Lord Ordinary and affirmed on report by the Whole Court. The decision was reversed in the House of Lords. In the judgments in the Court of Session and the pleadings (including those in the House of Lords, absent from the Session Cases (Dunlop) report, but available in the Scottish Jurist report), two different lines of analysis emerge. The first is grounded in invasion of privacy, the question being focused as relating to dissemination of private information to a wider audience than it would naturally be known to. The other seems to treat the question as whether it was written defamation, focusing on the fact that by publishing it was implied by the publisher that the petitioner was not paying his debts, even though many situations could arise where he was paying them, for instance in connection with protested accommodation bills. The House of Lords did not express an opinion on which was the correct analysis for Scots law, since it decided the case on a third ground, namely, that in any event the Register of Protests was a public register, equivalent to a decree of the court (enabling diligence to be done on a registered protest). As such the petition for interdict would have anyhow failed on either line of analysis (privacy or defamation). The judgment was based on a policy of promoting freedom of information, treating the General Register of Protests as a public register in which the defenders had an obvious mercantile interest. This is underlined by the Lord Chancellor’s scepticism709 about the appropriateness of the use of interdict generally as inconsistent with the liberty of the press and the role of the jury in English libel actions  At 143 per Lord Chief Commissioner Adam.   Newton v Fleming (1846) 8 D 677;18 Sc Jur 346 (Whole Court); rev sub nom Fleming v Newton (1848) 6 Bell 175; 20 Sc Jur 229. 708   (1846) 18 Sc Jur 346 at 347. 709   (1848) 20 Sc Jur 229 at 234–235. 706 707



uni t y i n di ve rs i t y

131

since 1775,710 the strengthening of which in Fox’s Libel Act711 had, only eight years earlier, for the first time been held applicable to civil as well as criminal libel.712 His only attempt at analysis is equivocal: “no doubt, if the matter be a libel, this is a publication of it; but the transaction disproves any malice, and shows a legitimate object for the act done”. The only judgment from the Court of Session to which he refers combines both lines of analysis.713 Considered historically what the case gives expression to has, therefore, to be determined from the Court of Session judgments, taking into account the pleadings of the parties, there and in the House of Lords. One judge, Lord Murray, clearly decided the case by applying iniuria, seeing the issue as being whether there was iniuria in the invasion of a private sphere, though he found for the defender.714 The analogy with publishing private personal material is made. The argument of the petitioner, including in the House of Lords was that “it cannot be maintained that the contents of every private deed, testamentary or otherwise, if executed through the instrumentality of a notary, may, without any restraint or responsibility, be published to the world by the notary, or any other individual who may happen to have acquired the means to do so”.715 There are elements of the defamation approach in several of the judgments. The petitioner did also make submissions that are consistent with that approach, proposing an issue for the jury as “whether an extensive publication of this description was calculated to produce serious injury to the respondent, if his name were to be inserted in it as the acceptor of two dishonoured and protested promissory notes”. This is still a time however when it could be argued that in some contexts truth or falsity was irrelevant in a defamation claim (which of course it would have been where other acts constituted iniuria). Thus the petitioner argued that truth (ie that the bills had been protested) was irrelevant, citing a case from 1776 and one from 1816,716 and using the concept of “privilege” to define the situations in which truth was relevant, exampling litigants, “literary critics” and “in situations of temporary excitement, and the like”.717

  15 Geo III c 42.  Libel Act 1792. 712   Parmiter v Coupland (1840) 6 M & W 105, discussed in P Mitchell, The Making of the Modern Law of Defamation (2005), p 37. 713  Ie that of Lord Fullerton (18 Sc Jur at 347). 714   Newton v Fleming (1846) 8 D 677 at 694. 715   (1848) 20 Sc Jur 229 at 233. 716   Scotlands v Thomson (1775) Mor App’x “Delinquency” No 3; Hailes 716; Dyce v Kerr 2 July 1816 FC. See Borthwick, Treatise, pp 261–267. 717   (1848) 20 Sc Jur 229 at 232. 710 711

132

r i ght s of p e rs o n al i t y

Thus, it was possible to combine a “taking-of-private-information” analysis with a defamation analysis. However, this case comes at a time when the law of defamation is in a number of respects already separated from the law of iniuria. First it is increasingly coming to appear to be a delict of strict liability.718 Second, and linked to that, matters which at any earlier stage could have related to animus iniuriandi become “defences”, namely qualified privilege, fair criticism (later fair comment), and fair report.719 Further, facts which would then in a strict liability regime amount to “innuendo”, a term not found in Scotland before the 19th century, would, if considered as iniuria, have been relevant to animus.720 Finally, at the end of the 1850s when “truth” became a “defence” to all defamation actions, it becomes impossible to see “privilege” as concerned with a qualification on the general proposition that the question of truth is normally irrelevant as a defence to a cause of action based on iniuria. “Privilege” in the strict liability defamation regime, comes by way of a defence of “qualified privilege” to be in effect a nominate delict, with its own peculiar requirement of a distinct sort of “malice”, and with the burden of proof being on the defender. The question, therefore in the middle of the 19th century will be how far and in what ways the inheritance from the ius commune law on injury (iniuria) may play a role on the later development and analysis of the law. 2.3.7  “Verbal injury” in the middle of the 19th century The case of Mackellar v Duke of Sutherland721 in 1859, in which it was held that truth was always a defence to an action of defamation, marks the point at which defamation comes certainly to be a freestanding delict, eventually one of strict liability, that has ceased to be seen as within the over-arching category of iniuria. (As part of that process, defamation causing business loss was also incorporated into that category, whereas its origins were really separate from the law of iniuria.) A question would then arise as to whether there were any situations left, which could be categorised distinctly as one of verbal injury. I have analysed the cases elsewhere.722 They are confused in several respects. First, some of them appear as decisions about figurative

  Blackie, “Defamation”, pp 662–664.   Blackie, “Defamation”, pp 673–674. 720   Blackie, “Defamation”, pp 690–693. 721   Mackellar v Duke of Sutherland (1859) 21 D 222. 722   Blackie, “Defamation”, pp 693–706. 718

719



uni t y i n di ve rs i t y

133

language being sometimes capable of being defamatory. Second, some of them are not concerned with non-patrimonial loss but solely patrimonial loss. Third, and related to these two aspects, is that in these cases the court required that falsity of the representation must be established, though it was not required to be put into the issue for the jury, unless they should be come confused by what was meant by falsity in the context of figurative language. Fourth, there are the references to “public hatred, ridicule and contempt” as a necessary consequence to the petitioner, a test from the English law of libel. These features were a product of the court in this line of cases defining the requirements by taking defamation, as it had by now come to be understood, as the point of departure, in particular the requirement that the representation be false. The court obviously worked out from defamation, rather than as would have arguably been more consistent with principle, working out from the general law protecting personality rights. Accordingly the question may remain as to whether where written or printed words are used a weapon, just as knives and guns may be used to invade the personality right of bodily integrity, there might be some situations where that is the right starting point. The question would then be whether there may still be a basis in general principle for a ground for actionability where an individual is attacked by language, for instance in a continuous campaign of lampooning, or verbal or other bullying. In such a situation truth or falsity may be beside the point. It is possible to read three of the mid to late 19th-century cases as fact paradigms of this sort,723 while this form of aggressive newspaper writing is not now current, even though they are confused and did require a general averment of falsity. That they were not clearly focused considering the previous history of the protection of personality rights does seem to be a consequence of what had happened to the law protecting personality rights generally. It had taken on the appearance of a fragmented area. Use of physical “weapons” was now in a box of its own called “assault”, and where it was a restriction on physical liberty, in a different box called “wrongous imprisonment”. “Defamation” had become the centre of the law of delict where something harmful was expressed in words. Before the mid to late 18th century the context for newspaper or other campaigns did not exist, nor for example, perhaps did that of workplace bullying, as there were no large workplaces. In that earlier world the paradigm would be drawing attention to a disease or deformity, expressly mentioned by Erskine, though doubted by Lord Jeffrey in Newton v Fleming, as actionable. It would not have

  Sheriff v Wilson (1855) 17 D 528; McLaren v Ritchie, The Scotsman 9 July – 2 August 1856; Cunningham v Phillips (1868) 6 M 926. 723

134

r i ght s of p e rs o n al i t y

been at issue whether it was “verbal” or for example by way of a rude gesture (a form of real injury). 2.3.8  Remedies (a)  Protection of liberty (i) Remedies under the 1701 Act The compensation remedy724 under the Act anent Wrongous Imprisonment 1701 (c 6) was for a sum fixed by reference to a statutory tariff varying according to which of three status groups the pursuer belonged to and the number of days of imprisonment.725 (ii)  Compensation for iniuria in cases of protection of physical     liberty? The approach to the calculation of damages for deprivation of physical liberty based on the common law continued, however, to be consistent with the law of iniuria. At the start of the 18th century Fountainhall had reflected in a common law case that “The English are very exact in the pursuits on false imprisonments determining . . . how remediable; and modifying so much expense for every hour they are detained”.726 However, English sources were not used until later for considering the question of compensation. The sum in compensation was “modified” on a basis which was well established in the law of delict in the 17th century as worked out by ius commune writers. Accordingly, though a common law award was likely to be less, at least for a nobleman or gentleman, than the statutory sum available under the 1701 Act, it could be more, certainly for someone of lesser status “if the fact is atrocious”.727 In a colourful case in the 1740s where Sir James Sinclair, a deprived inferior court judge,728 continued to imprison people after his deprivation, but now in his own home, the damages included a distinct sum as “damages for the cruel, inhuman, and barbarous usage . . . during the imprisonment”.729 By 1775 it was assumed that there would in a common law claim

 The other remedy was an order to be set at liberty.   Peacock v Allan (1704) Mor 17065 – case on “the late famous act of Parliament 1701, libelling £2000 as the penalty for a gentleman and £33 half a merk per diem”. 726   Robertson v Pedison (1705) Mor 17067. 727   Bankton, Institute I,2,75. 728  His deprivation from office is the subject of Sutherland v Sir James Sinclair (1737) 2 Elchies 522. 729   Sinclair v Sir James Sinclair (1742) 2 Elchies 523. 724

725



uni t y i n di ve rs i t y

135

be a remedy of a monetary payment as “solatium”.730 By the 1820s it is confirmed that both that and also in addition to any sum for patrimonial loss, “reparation for actual [ie patrimonial] loss”, was available.731 (b)  Verbal injury, defamation, informational privacy etc There is very little material before the 19th century to ascertain the approach to damages in defamation cases. However, it is recognised from the mid-18th century on that solatium is obtainable. It is clear that the remedy of palinode (apology or recantation) is available in the Commissary Courts, right up to their being absorbed in the ordinary civil courts. Following that, it still remained competent as part of the commissary jurisdiction of the sheriff.732 It was still clearly stated in the standard work on sheriff court procedure in the 1868 that “many cases may be conceived when it may and should be enforced”,733 even though the term by this time to some may generally have suggested the past.734 As the one reported case relating to informational privacy that proceeded to a hearing on the facts in the first half of the 19th century is a jury case,735 there is no guidance given on the approach to be taken by them in assessing monetary compensation. (c)  Physical bodily injury Again, (except in inferior courts) quantum was determined by a jury once the ordinary civil courts acquired jurisdiction around 1801– 20. However, a distinction between the patrimonial consequences and the non-patrimonial is maintained. The English term “special damages” came briefly to be used for patrimonial consequences,

  Pitcairn v Umphry (1775) Mor 3161; examples in later cases include Arbuckle v Taylor (1815) 3 Dow 160 at 176 per Lord Eldon LC, referring to the conclusions of the action. In Pitcairn v Umphry the action failed on the merits because the pursuer who was a guarantor for his client in an Exchequer Court case, could not be awarded it “consistent with principles”, (at 3162) apparently because he was held responsible for what had happened. The Exchequer Court used English law. He became liable under a bond of “recognizance”. 731   Rankine v McLaren (1825) 3 Mur 494 at 495 per Lord Chief Commissioner Adam. 732   Turner v Cuthbert (1831) 9 S 774. 733   J McGlashan, Practical Notes on the Jurisdiction and Forms of Process in Civil Causes of the Sheriff Courts of Scotland (4th edn by J Barclay, 1868), p 54. 734  Eg Letter of Lord Jeffrey to John Macpherson Macleod (“one of the authors of the Indian Penal Code”) 15 February 1849, Lord Cockburn, Life of Lord Jeffrey with a Selection from his Correspondence (2nd edn, 1852), vol 2 at p 457: “do you know that word of the Canonists?”. 735   Kerr v Duke of Roxburgh (1822) 3 Mur 126. 730

136

r i ght s of p e rs o n al i t y

both for medical expenses and for impacts on employment, including in cases where these could not be precisely calculated.736 The term solatium was specifically adopted in charging the jury in the first case where there was such a specific claim for patrimonial loss, to denote the non-patrimonial aspect.737 However, the term at first was used as a label, rather than the jury being specifically directed to consider subjective pain and suffering or hurt feelings, or specifically directed to consider precisely the question of affront. In a case where there was no conclusion for “special damages”, generally the jury was simply directed “to exercise, a wise, sound and moderate discretion”. Lord Chief Commissioner Adam’s routine form of words738 was to charge: “in all cases of damages, a fair and unprejudiced discussion, (avoiding, in civil cases, the converting compensation for a civil injury into a matter of punishment,) will lead to a rational, conscientious, and fair compromise of your different opinion, and bring you to fix on one sum”.739 In another case he referred to “fair reparation”. The other Jury Court judge at this period, Lord Pitmilly, where no medical evidence was led, charged that nonetheless there can be no doubt that he was much injured and the jury must determine a sum “to repair the injury done”.740 From the 1840s it is impossible to work out whether there were different patrimonial and non-patrimonial heads of damage. (The position is paralleled in a large number of defamation cases.)741 Thus a case742 raised by a sailor who was hit in the face by the master of the ship off the “barren and desolate” coast of Lapland at 1.30 am when there was a disagreement between them of a type familiar to all mariners, as to how far off the land to steer, was for “£100, less or more, in name of damages and solatium”. The award was: “entitled to damages; modify the same to £10”.743 That by the mid-century there was not a full appreciation of the dimension of affront and how it related to assault as by then understood appears from the hearing on expenses in Ewing v Earl of Mar, a case of spitting. The jury had awarded a farthing.744 The defender argued that what that meant was that the jury held that “though an assault

  Forgie v Henderson (1818) 1 Mur 410 at 418 per Lord Chief Commissioner Adam. 737   Idem. 738   Hyslop v Staig (1816) 1 Mur 15 at 24, note by the editor, J Murray. 739   Ibid. 740   Bannerman v Fenwick (1817) 1 Mur 247 at 254. 741   Blackie, “Defamation”, pp 680–681. 742   Reekie v Norrie (1842) 15 Sc Jur 150; (1842) 5 D 368. 743   15 Sc Jur 150 at 153. 744   Ewing v Earl of Mar (1851) 14 D 314 at 314. 736



uni t y i n di ve rs i t y

137

in law had been committed, the defender had not suffered loss, injury or damage”.745 The court simply awarded expenses to neither party, and were not impressed with the pursuer’s argument that the absence of an apology or tender was in the circumstances relevant to the question.746 The lack of clarity results partly from the adoption in most cases of the words of style, “loss, injury and damage”. This style is not found before the establishment of the Jury Court in 1816. The phrase in used in at least one English statute around this time,747 though its origins remain obscure, and there is no trace of it in English tort cases. Rather than differentiating heads it conceals them. 2.3.9  Transmissibility of claims The question of both active and passive transmissibility of claims for solatium is of significance for the theoretical structure of the law protecting personality rights. It is dealt with in detail in Chapter 3 below.748 Here, however, passive transmissibility only is considered, since it is that through its application in the courts in the period under consideration which reveals the history of the law. Both the lack of consideration of this question before the 18th century in Scottish case law, and then its application in claims arising from the infringement of different personality rights in cases from the mid-18th century through to the 19th century has a historical explanation. Once again it is the changing situation with respect to jurisdiction that is central. So long as jurisdiction in cases of infringement of liberty and bodily integrity remained within the criminal courts, the question of passive transmissibility could not arise. A criminal process could not take place in the absence of the accused.749 Likewise, with respect to infringements of the other personality rights, this probably was so in the Commissary Courts, and before the bodies of presbyterian church discipline, since proceedings there required the presence of the wrongdoer for the purpose of godly discipline to be fulfilled. The question of passive transmissibility arose for decision each time the Court of Session (and other ordinary civil courts) acquired

  Ewing v Earl of Mar (1852) 14 D 330 at 331.  The apology point was not referred to in the very brief judgments. Lord Fullerton at 331 observed did they really expect a tender of a halfpenny. 747   1822, 3 Geo IV c 32 (regulating claims arising from riots). 748  Section 3.6. 749  See Scott (1618) 3 Pitcairn 454 at 455. Treason was an exception: Lord Carnegie v Lord Cranburn (1662) Mor 10339 (argument for defender). 745

746

138

r i ght s of p e rs o n al i t y

jurisdiction over a category of “injury” (iniuria). What may be the earliest application of the law relating to passive transmissibility of delictual claims occurred in cases of deprivation of possession of property.750 By the mid-18th century it had been applied in one case of wrongfully caused pure economic loss,751 and considered in another.752 The Court of Session having acquired jurisdiction in cases of “wrongous imprisonment” at the start of the 18th century, it was applied first in that context in 1752.753 No doubt the same rule of passive transmissibility would have applied to patrimonial loss arising out of defamation and verbal injury, though fortuitously the only reported cases involved active transmissibility.754 Consistent with the standard ius commune analysis, in all these cases it was the patrimonial, and so reipersecutory, nature of the claim that made it passively transmissible. Finally, exactly at the time when the Court of Session acquired jurisdiction in cases of bodily physical injury it was applied to that context as well. In 1809755 it was held that the action for “patrimonial loss”756 was passively transmissible. This approach was confirmed by Bankton,757 based on Voet758 and the “modern laws of most nations”. Erskine759 stated that claims for “real damages”760 or “real loss” are passively transmissible. In rejecting the defender’s argument that the estate had to be enriched for even the claim for patrimonial loss to transmit against executors, the Court of Session in 1809 thus made clear that bodily physical injury was fundamentally the same as injury (iniuria) in other contexts, just at the very time, that it was, nonetheless, paradoxically developing the new, apparently nominate delict of assault.

750   Monro v Wishart (1582) Mor 10337 (spuilzie and trespass); Lewars v Carmichael (1711) Mor 10348 (spuilzie). 751   Hepburn v McLachlan (1751) Mor 10357 – a claim arising from the forced expropriation of money by the Jacobite rebels as “tax” in 1745. 752  See Lady Ormiston v Hamilton (1711) Mor 10343 – doubted that a claim for expense incurred in confirming as executrix arising from the wrongful opposition of a deceased was transmissible where the view of Grotius was opposed to that of Vinnius, Groenewegen and Domat; Lewars v Carmichael (1711) Mor 10348. 753   Montgomery v Walker’s Representatives (1752) Mor 10360; Calders v Mackenzie (1776) Mor 10363. 754   Haggart’s Trs v Lord President Hope (1824) 2 Shaw’s Appeals 125; Auld v Shairp (1874) 2 R 191. 755   Macnaughton v Robertson 17 Feb 1809 FC. 756  This appears to be the first use in published Scots material of this phrase. 757   Bankton, Institute IV,24,8. 758  Voet, Commentarii ad Pandectas 4, 3, 12. 759  Erskine, Institute IV,1,14. 760  This term survives in modern Italian law, as danno reale, and must be a term used by some ius commune writer(s).



uni t y i n di ve rs i t y

139

2.3.10  Analysis in juristic writing in the late 18th and first half of   the 19th centuries (a)  Preliminary Stair and Bankton dealt with aspects of personality rights in their works on private law. At the same time Mackenzie, Pitmedden and Bayne had dealt with them in their work on criminal law. In the second half of the 18th century it is only in that context where extensive treatment is to be found, both in Erskine and in Hume. The treatment by Bell (in the 1820s) is in the context of private law, and reflects the tensions for analysis brought about by the appearance of being nominate delicts at this time, of at least “assault” and “wrongous imprisonment”. (b) Erskine Erskine’s analysis is a succinct summary of the basis of protection being the law of iniuria. “The crime of injury, in a strict acceptation, consists in the reproaching or affronting our neighbour. Injuries are either verbal or real”. He emphasises the need for animus iniuriandi, though in the case of verbal injuries presumptions apply.761 Verbal injury is not confined to defamation, since he makes clear by one of his examples, twitting one with the deformity of his person or other natural defect” is actionable as an affront. His approach to real injuries is similarly classic: “real injuries are committed by doing whatever may either hurt one’s person, as giving him a blow; or may affect his honour or dignity, as the bare aiming of a blow without striking; assuming a coat of arms or any other mark of distinction and proper to another, spitting in his face, etc.”762 Unlike Hume he does not expressly give an analysis which brings within it also instances of deprivation of physical liberty and infringements of interests in family life and moral sexual relations. However, the examples that Erskine does give of real injuries are standard ius commune examples, since those are the most obvious and frequent situations giving rise to a claim in respect of real injury. (c)  Hume It made sense for Hume to include his treatment principally in his Commentaries on criminal law, since the protection of physical bodily integrity was dealt with still within the criminal process. His Lectures on private law only deal with verbal injuries763 and seduction

 Erskine, Institute IV,4,80.  Erskine, Institute IV,4,81. 763  Hume, Lectures, vol III, Chap XIV, pp 133–164 on verbal injuries. 761

762

140

r i ght s of p e rs o n al i t y

of women764 and his collection of cases765 is similarly confined with the exception of three not concerning personality rights. However, Hume’s treatment in his Commentaries goes beyond just the example of bodily physical integrity. He considers personality rights in general. Several different points in his text, taken together, constitute an extensive consideration based upon the distinction between personal rights and other rights. Thus, in considering the title of the private pursuer in a criminal process he stated that it was “in respect of injuries of almost every kind”.766 He uses the term, “patrimonial loss” to signify where the right protected is an economic asset, exampling theft, forgery, deforcement [of messengers, thus affecting a creditor], “or subornation in any civil process”. Other rights of the pursuer are described in terms which identify them as personality rights as follows: “Whether it be the injury of bodily pain or disability, as in the case of battery, or mutilation; or of insult and fear of mischief, as in the case of attempt to ravish, or threatening letter, or challenge to fight;767 or of putting one in danger, as by malicious information of a crime; or of loss of liberty, as by wrongous imprisonment; or of the loss of domestic comfort, as in the case of adultery; or of fame and respect, as in the slandering of a judge; or of the violation of one’s natural sentiments of affection, as by raising the dead body of one’s child from the grave.”768 That the seven sub-categories both of personal and of patrimonial rights are not a closed list is clear from his ending by adding “or of loss or disappointment of any other sort”. Hume gives examples in a footnote769 from unreported 18th-century Justiciary cases. The sub-categories mentioned are thus all subsumed into a general concept of the protection of personality rights. This is underlined by Hume elsewhere, when dealing with deprivation of physical liberty by abduction. He expressly rejected the idea of categorising such a case as plagium because he considered that in the case of an adult it was a personality right that was infringed. Approaching the sources  Hume, Lectures, vol III, Chap XIV, pp 130–133.  Hume, Decisions of the Court of Session 1781–1822. 766  Hume, Commentaries, vol 2, p 121. 767  A party wishing to fight a duel would, accordingly, be advised to provoke a challenge from the other party as occurred in the last duel in Scotland (in 1826) resulting in criminal proceedings (J Landale, Duel – A True Story of Death and Honour (2005), p 82). 768  Hume, Commentaries, vol 2, p 121. 769  That this footnote is attached to phrase “loss or disappointment of any other sort” (where he instances a patrimonial right) is explained by the fact that that is then of the whole passage dealing with rights, bar the further example he then gives of that, bribery. 764 765



uni t y i n di ve rs i t y

141

in a neo-classical way, from the Corpus Iuris directly, rather than through ius commune jurists, Hume considered that plagium was only applicable where the victim was “an infant child”, since he saw it as a form of property crime.770 Abduction of an adult or to “send him into captivity” is “in nowise a patrimonial, but a proper personal injury . . . the injury here consists principally in the distress and suffering of the person who is taken . . .”. (d)  Bell The transitional appearance of much of the field of protection of personality rights in the first half of 19th-century Scotland is reflected in Bell’s Principles. “Injuries”771 is a generic term for the impact of the invasion of all protected rights, including property rights. But, nonetheless, “personal liberty, safety or reputation” is contrasted with property.772 Also, however, he includes “relative” rights, which “belong to the person”,773 which, as the later detailed treatment shows, include “seduction”.774 The law protecting the first is that of “protection of person”,775 the last of protection of “character”776 To this extent Bell’s general structure is consistent with analysis on the basis of iniuria. In dealing with “assault” he in fact states that the victim is entitled to a sum “in solatium for affront and insult”,777 under reference to a mid-18th century case.778 However, in his specific treatment he mixes a conduct-based focus with a rightsbased focus for “assault”,779 and “wrongous imprisonment”.780 With respect to “seduction”, the focus is on conduct.781 For “protection of character” his starting point is remedies.782 As discussed at Section 2.3.6(a) above, Bell does consider informational privacy under

770  It went without saying that “rape” was no longer a category of abduction. Ker 23 November 1649 was a case where, as given by Hume, Commentaries, vol 1, p 83, fn 5, “rapt” was the charge. 771   Principles, Chapter 18 “Of Reparation of Injuries”. 772   §543. 773   §2027. 774   §2033. 775   §2028ff. 776   §2039ff. 777   §2032. 778   Cruickshanks v Forsyth (1747) Mor 4043 (correctly 4034). Bell probably used this case, though it arose in a criminal process (see Section 2.2.7(c)), because it appears to be the only reported decision of the ordinary civil courts before the 19th century that has any bearing on the protection of bodily integrity. 779   §2032. 780   §2036ff. 781   §2033. 782   §2043.

142

r i ght s of p e rs o n al i t y

reference to the Clarinda letters case, at length in the Commentaries in a passage dealing with literary property. That may explain why he includes informational privacy, but no other aspects of protection of personality rights in that work. 2.4  CONCLUSION The foundations of the Scots law of personality rights were set within the European legal tradition by the 16th century. On these foundations the law was developed under many different influences until in the mid-19th century, it stood on the threshold of the modern law. The rules and principles elaborated in the course of this development were diverse in character, and yet reflected a general underlying unity based on the delict of “injury” (iniuria) as an organising category of doctrine protecting personality rights. The influence of the ius commune: a wealth of detail In developing legal doctrine in this area in the formative period of the 16th and 17th centuries, the courts and jurists drew on the shared understanding of principle in the ius commune. Within that shared understanding, there were approaches that emphasised the unity of the law protecting personality rights, either through an identification of the different rights or through an emphasison the generality of iniuria. Within that shared understanding, too, were approaches which to a greater or lesser degree gave detailed instances and focused particularly on the diverse categories and sub-categories within which the requirements of the protection of different personality rights could be elaborated. Further, details of doctrine involved taking positions on many debatable points. These were discussed particularly by specialist writers in Europe, notably the criminalists of the late 16th century and the 17th century, and, especially in the areas of rights in moral sexual relations, canonists, but they were also the subject of case law in Scotland and elsewhere.783 The wealth of detail and debate is also found in the extensive consideration of remedies in material from Scottish and continental courts784 and of the question of transmissibility of claims,785 both of which generally demonstrate the underlying unity of the law. Scots law in this period was thus developed by courts and jurists within the shared understanding of the ius commune. Even ideas that may have been native to Scotland became impregnated with

 See, eg, Section 2.2.5(b).  See Sections 2.2.7 and 2.3.8. 785  See Section 2.3.9. 783

784



uni t y i n di ve rs i t y

143

this understanding.786 The resulting balance, between revealing the unity of the law, and elaborating its diversity through the analysis of third-level sub-categories, varies in the treatments in contemporary Scottish juristic writing, though the thread of unity is consistent.787 Not surprisingly, the material from courts was, by contrast, mainly directed at working out the detail of the diversity. The wealth of that detail included many features of ius commune origin to which comparatively little attention, and with respect to some aspects no attention, has been paid in doctrinal historical scholarship in Scotland. It may warrant further exploration with respect to European jurisdictions as well. Instances are in determining the ambit of sub-categories below the second-level categories of real and verbal injury,788 which include prominently the classifications by seriousness of effects on the body of the infringement of bodily integrity,789 the role of raptus, plagium and crimen privati carceris as in cases of deprivation of liberty790 until the 18th century, of stuprum in the protection of moral sexual character and the concept of “secrets” in privacy protection.791 Iniuria (real and verbal injury) as organising category At the same time all of this variety, deriving from or influenced by the ius commune, is itself underpinned by the broad shared understanding of iniuria, and the role of other aspects of crime/delict. The specific third-level sub-categories themselves reveal not only acceptance of the general concept of iniuria but also the second-level sub-categorisation by mechanism, iniuria realis (by way of an act; “real injury”) and iniuria verbalis (by way of words; “verbal injury”).792 The very existence of the third-level sub-categories explains why iniuria realis really only had to be used as a term in debates about jurisdiction. On the other hand, the absence of third-level categories explains why, by contrast, the phrase “verbal injury” was used so frequently. There were no third-level sub-categories of legal significance where the mechanism was words. Accordingly, the acceptance of its counterpart, “real injury”, was more generally implied than expressed. The distinction between real and verbal injury was, indeed, not the cardinal principle in this area, in Scotland or elsewhere in the ius commune. What was important was the concept of iniuria itself.  Eg Sections 2.2.2(f) (“riot”) and 2.2.6(e) (“forethocht felony”); 2.3.9 (transmissibility of claim for solatium for bodily injury due to negligence). 787  See Sections 2.2.8 and 2.3.10. 788  See Figure A in Section 2.1.2. 789  See Section 2.3.2 (b). 790  See Section 2.2.3(b) (ii) and (iii). 791  See Section 2.2.5(b). 792  See Section 2.2.6(a)–(c). 786

144

r i ght s of p e rs o n al i t y

Continuity of tradition It has been underlined throughout this essay that the history of the Scots law over this period constituted a continuous tradition and the reasons why the way this was remembered contrasts with other jurisdictions.793 Two matters are crucial to understanding that continuity. First is the elaboration in relatively fine detail of the thirdlevel sub-categories in the ius commune, then the abandonment of some of them, the changes to some others and the emergence of new ones in the 18th century, with at the same time the development of the law of defamation from within “verbal injury”. Second, there are the ways in which the tradition is variously synthesised in Scottish juristic writing. It is of course axiomatic that the law protecting personality rights is affected by the nature of the society and culture in which it is formulated and applied. As the law in Scotland is a continuous tradition, this, however, gives rise to consequential issues. There is a large and complex body of material from the courts, which has been influential in the development of the law, but has had to be adapted in the later period. This is apparent in the use of the earlier Scottish material in the new contexts of the 18th century, for instance newspaper defamation, deprivation of liberty by public officers, and so on. Against this background many older sub-categories waned, or disappeared, such as those for focusing deprivation of liberty cases,794 and those for categorising cases of bodily physical injury.795 The new sub-categories, such as the apparently nominate delict of “assault”,796 “breach of confidence”,797 and wrongous imprisonment798 (the last requiring proof of “malice and lack of probable cause”),799 emerged. All three are influenced by English law in their birth. Over the same period the sub-categories for dealing with the protection of family life and moral sexual relations were morphed to produce, particularly in the emergence of “seduction” from stuprum800 a law apparently better adapted to the relations between men and women as they existed by the later 18th century. This was not at least overtly under the influence of English law, but, new branded as “seduction”, it now had a familiar English name. Over the same period, there is the separating off of defamation law, with the development in case law

 See in particular Section 2.1.3.  See Section 2.2.3(b). 795  See Section 2.2.2(b). 796  See Section 2.3.2. 797  See Section 2.3.6(a). 798  See Section 2.2.3(b)(iv). 799  See Section 2.3.3(c)(ii) and (iii). 800  See Sections 2.2.4(a)(ii) and 2.3.5. 793

794



uni t y i n di ve rs i t y

145

of strict liability, completed in the 19th century.801 The utilisation of earlier decisions by the courts was at the same time affected by the fact that the vast majority of them were not readily directly accessible, as no reports were published from the criminal courts or the Commissary Courts. The link to that material for the 19th century would, however, still be there in the institutional and other juristic writers. The institutional and other authors of Scottish juristic literature have to be understood in the light of three matters in particular. First, as just noted, their syntheses reflect in varying degrees the nature of and developments within this material from the courts. Second, they draw in differing ways on the general ius commune understanding of delict, utilising the category iniuria, but also sub-categories. Third, they are directly influenced by contemporary philosophical and theological ideas. These demonstrably influence the approaches taken to the valuation of different personality rights in the 16th and 17th centuries, and the rationales given for that valuation and for the requirements for their protection. Changes in philosophical perceptions influenced developments in the 18th century. The resultant syntheses in Scottish juristic writings are marked by somewhat differing structures, and different balances between emphasis on the unity of the law of delict in this area, and the consideration of sub-categories. All, however, utilise the ius commune shared understanding of the law of delict, that is of iniiuria, both real and verbal, and of the sub-categories in consistorial law and in the detailed law of crime/delict, while the later writers,802 particularly Hume803 bring within this framework the developments of the 18th and early 19th centuries. Iniuria (infringement of personality rights) as a dynamic source of legal development for the future Among the challenges for the law from the mid-19th century protecting personality rights from the mid-19th century should have been two arising from the process of development in the past: (1) to determine how far the general law of iniuria and other relevant aspects of the European tradition of delict was available as a residual source of doctrine for new situations; and (2) to integrate within the general structure of the law founded in the European tradition, multilayered in sub-categories, some of which were no longer alive, those parts of the law that had taken on the appearance of being diverse nominate delicts. In meeting these challenges, one area, protection of

 See Section 2.3.7.  See Section 2.3.10. 803  See Section 2.3.10(c). 801

802

146

r i ght s of p e rs o n al i t y

rights in family life and moral sexual relations, becomes of less central prominence, and with the change from stuprum to “seduction”804 in particular, might not be realised by everyone to be an instance of iniuria. A particular complexity in meeting these challenges was the growth of the law of defamation as an area of strict delictual liability. That should have as a consequence a future determination as to where it now lay within the field of “verbal injury”,805 and the extent to which that field would still in other respects have a residual function to provide protection from affront in other situations. Meanwhile, breach of confidence,806 which as the protection of “secrets”,807 was a sub-category of iniuria, whether revealed verbally or by an act, would tend to appear as a completely distinct concept. A complexity of another sort would be in developing the law relating to the protection of physical bodily integrity and physical liberty, since for the former “assault” had taken on a life of its own, and for the latter “wrongous imprisonment” and, associated with it, “wrongous prosecution” had a particular requirement of “want of probable cause”, originally introduced from England for cases of deprivation of liberty at the hands of the state or a public officer.808 Naturally, too, some new contexts might arise, which had either been little discussed in detail in earlier material, such as intrusions into privacy other than informational privacy,809 or where detailed discussion could have been found there but had got lost sight of, as in the case of affront to family members arising from wrongous dealing with a dead body.810 However, the rich material in the period studied here constituted a source certainly capable of being used to meet these two challenges. That there would be a constantly changing social, cultural and intellectual context which would be different in many respects would inevitably be significant, as it always had been more in developing the law relating to personality rights. How far either or both of these two challenges were identified, and were or were not taken up, is a major issue for the modern Scots law 

 See Section 2.3.5.  See Section 2.3.7. 806  See Section 2.3.6(a). 807  See Section 2.2.5(a). 808  See Sections 2.3.3(c) and (d) and 2.3.4. 809  See Section 2.2.5(a). 810  See Section 2.2.6(b)(iv). 804

805



ov e rv i e w of r i ght s o f p e rs o n al i t y

147

chapter 3 overview of rights of personality in scots law niall R Whitty* 3.1 INTRODUCTION 3.1.1 Scope of chapter 3.1.2 Rights of personality: commonalities and differences between legal systems 3.2 SOME FUNDAMENTAL CONCEPTS 3.2.1  Preliminary 3.2.2   “Real and verbal injury” as a generic term covering wrongs to honour (dignity) and reputation 3.2.3   First meaning of “verbal injury”: generic term denoting affront to personality by words 3.2.4  Second meaning of “verbal injury”: non-defamatory malicious or injurious falsehood 3.2.5  Third meaning of “verbal injury”: the element of insult in the verbal delicts 3.2.6   “Convicium” as a species of verbal injury protecting privacy and distinguished from malicious falsehood 3.2.7  The distorted meaning of “actio iniuriarum” in Scottish sources 1870–1972 3.2.8  The meaning of “dignity” and “autonomy” 3.2.9  The meaning of “privacy” 3.2.10  The meaning of “affront” 3.3 CLASSIFICATION AND TYPOLOGY OF RIGHTS OF PERSONALITY 3.4 THE SPECIFIC RIGHTS OF PERSONALITY IN SCOTS LAW 3.4.1  The right to life 3.4.2  The rights to bodily integrity and to personal security * My thanks go to Gillian Black, John Blackie, Elspeth Reid and Hector MacQueen for valuable comments on earlier drafts of this chapter and to Jonathan Burchell for his support and encouragement but I alone am responsible for its defects.

147

148





r i ght s of p e rs o n al i t y 3.4.3  The right to physical liberty 3.4.4  The right to honour and reputation (esteem of others) 3.4.5 The right to dignity (in the narrow sense) (self-esteem; honour; and freedom from insult) 3.4.6 The right to privacy (seclusion from intrusion) 3.4.7 The right to informational privacy (non-disclosure of private information) (a) The Institutional background (b) Newton v Fleming (1846), verbal injury and the protection of informational privacy (c) The change to the theory that falsity always a requirement of defamation and verbal injury (d) An unsuccessful Civilian rearguard action: the rise and fall of convicium and of the doctrine that “veritas convicii non excusat” (e) Informational privacy and breach of confidence (f) The fragmentation of breach of confidence into misuse of private information and breach of commercial confidence (g) Trade secrets doctrine and the future of commercial confidence (h) Developing the test of liability for invasion of informational privacy in Scots law 3.4.8 The right to identity or image: “false light” privacy 3.4.9 The right to publicity; appropriation of image and reification of rights to privacy and image 3.4.10 The moral right to copyright 3.4.11 The right to autonomy? 3.4.12 Personality rights in family relationships 3.4.13 Personality rights after death

3.5 THE ELEMENTS OF LIABILITY FOR INFRINGING RIGHTS OF PERSONALITY 3.5.1 Preliminary 3.5.2 Injury: wounded feelings or infringement of personality right as such? 3.5.3 Wrongfulness 3.5.4 Fault 3.6 TRANSMISSIBILITY OF ACTIONS AND CAUSES OF ACTION FOR SOLATIUM FOR WRONGS TO PERSONALITY 3.6.1 Overview 3.6.2 Solatium characterised as private law penalty until early 19th century



ov e rv i e w of r i ght s o f p e rs o n al i t y

149

3.6.3 Passive transmissibility of solatium claims in the modern law 3.6.4 Active transmissibility of solatium claim for wrongs to personality 3.6.5 Assignation and active transmission to trustee in bankruptcy 3.6.6 Active transmissibility of solatium claims for wrongs to personality other than personal injuries due to negligence 3.6.7 Active transmissibility and solatium for invasion of privacy

3.7 REMEDIES FOR INFRINGING RIGHTS OF PERSONALITY 3.7.1 General 3.7.2 Restoration of reputation by palinode (amende honorable), declarator or nominal damages 3.7.3 Interdict against anticipated or repeated delicts harming interests in personality 3.7.4 Order ad factum praestandum 3.7.5 Criminal proceedings? 3.7.6 Solatium for non-patrimonial injury and compensatory damages for patrimonial loss 3.7.7 Disgorgement of gains 3.7.8 No exemplary or punitive damages 3.8 CONCLUSION

3.1  INTRODUCTION 3.1.1  Scope of chapter In Chapter 1 above the question was raised as to what model Scots law should follow in developing a doctrine to protect the interest in privacy.1 It was observed that the answer depends to some extent on whether the objective should be limited to protecting the interest in privacy or whether it should be the more ambitious aim of developing the Scots law on protection of rights or interests of personality generally. At least until recently the concept of a right of personality was somewhat unfamiliar in Scots law as in English law though with less excuse.2 It is nevertheless clear from leading judgments that in Scots law the delict of “injury” (in the sense of iniuria) and the delict 1  See Section 1.4.1. This question is addressed in Chapter 4 by Elspeth Reid and also to some extent by others in Chapters 2, 9 and 12. 2  The important notion that an iniuria is an “infringement of personality” was given considerable prominence by Walker on Delict (editions of 1966 and 1981) pp 31–32 when discussing fundamental concepts of delict but has not, or not yet, quite “caught on”.

150

r i ght s of p e rs o n al i t y

of personal injury due to negligence are both characterised as wrongs inflicted on the victim’s personality.3 This chapter explores, from the standpoint of Scots private law, the question whether the formulation of a legal regime of rights of personality is feasible, the sources upon which such a regime might be based, and broadly what such an approach would be likely to entail. As mentioned in Chapter 1, at stake is the capacity of Scots law, as an autonomous mixed system of private law, to renew itself in order to meet the new challenges presented by the 21st century. 3.1.2   Rights of personality: commonalities and differences between legal systems It is for each legal system to choose, define and classify the rights of personality which it will recognise. All legal systems protect some attributes of personality directly or indirectly but there are differences as to the scope of the attributes protected. The inner core of physical attributes (life, bodily integrity and physical liberty) are protected in all private law systems mainly by the law of delict or tort. Generally, these rights are clearly delineated and do not have to be balanced against the rights of other parties. Reputation is also protected in all countries but normally subject to a balancing test weighing the interest in reputation against the public interest in dissemination of information.4 Outside that inner core, there is a surrounding area of uncertainty relating to intangible interests of personality where differences of scope exist between legal systems. Certain rights of personality which are regarded as fundamental in the Civil law tradition are not recognised in English law or Scots law, notably, the right to one’s name; image (visual likeness); or voice. The right to privacy, long protected in Civil law and some mixed systems, is only now becoming established in English law and Scots law5 under the impact of the European Convention on Human Rights, (ECHR), Art 8.  See eg Smith v Stewart & Co 1960 SC 329 (Court of Seven Judges) at 333 per LP Clyde: “The claim [for solatium for personal injury] is personal and intransmissible because in essence the wrong is one inflicted on the sufferer’s personality which it lies with him, and him alone, to vindicate by a legal process if he so chooses”; following almost verbatim remarks in Stewart v LMS Railway Co 1943 SC (HL) 19 at 39 per Lord Macmillan, quoted in Section 3.6.4 below. In Dick v Burgh of Falkirk 1976 SC (HL) 1 at 26 Lord Kilbrandon described the actio iniuriarum as an “action upon outrage to the personality”. 4  Eg in the UK the defence of “Reynolds privilege” introduced in Reynolds v Times Newspapers Ltd [1999] 4 All ER 609; in South Africa National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA), referred to in Chapter 6 below. 5  See Chapters 4, 5, 7 and 12 below. 3



ov e rv i e w of r i ght s o f p e rs o n al i t y

151

3.2  SOME FUNDAMENTAL CONCEPTS 3.2.1  Preliminary Since the 19th century, this branch of Scots law has been bedevilled by difficulties of terminology which modern scholarship is only now clarifying. This Section seeks to explain some fundamental concepts used in Scots law whose meaning is disputed or unclear. 3.2.2  “Real and verbal injury” as a generic term covering wrongs to honour (dignity) and reputation The development of real and verbal injury in Scots law is traced by John Blackie in Chapter 2 and illustrated there in Figures A and B.6 With its genius for apt generalisation Roman law identified the interests protected by the delict of iniuria as one’s body, reputation and dignity (corpus, fama, dignitas).7 Stair described five categories of “reparable interests”8 of which three are relevant to rights of personality, namely: (i) “life, members, health”; (ii) “liberty”; and (iii) “fame, reputation and honour”. For the last head Stair cited six Digest texts and it is no coincidence that they all relate to the actio iniuriarum.9 The link between “iniuria” and personality interests emerged even more clearly in Bankton’s title on Reparation (I,10) which has a Section (III) on “Injury” (a synonym for iniuria).10 Erskine in his Institute considers “Punishment of injuries verbal, and real” in a discussion straddling the civil and criminal aspects of the subject which are entwined. “Though every wrong may in some sense get the appellation of injury, yet the crime of injury in a strict acceptation, consists in the reproaching or affronting our neighbour. Injuries are either verbal or real”.11 This technical meaning was explained by Lord Murray in 1846 as follows:12 “Injury according to Stair, Bankton, Erskine, and other writers on the law of Scotland, who in that respect adopt the language of the civil law, ‘is an offence maliciously committed to the reproach and grievance of another, whereby his fame, dignity or reputation is  At pp 38 and 103 respectively.  D 47,10,1,2; cited by Bankton, Institute I,10,21; see R Zimmermann, The Law of Obligations, Roman Foundations of the Civilian Tradition (1990) pp 1064; 1083. 8  Stair, Institutions I,9,4. 9  D.2,8,5; D.42,5,31,5; D.47,10,15,31; D.47,10,15,33; D.47,10,19; D.47,10,20. 10   Bankton, Institute I,10,21. 11  Erskine, Institute IV,4,80. 12   Newton v Fleming (1846) 8 D 677 at 694. 6 7

152

r i ght s of p e rs o n al i t y hurt’.13 The term injury may be vaguely, but not correctly, used for any species of detriment, annoyance, or reproachful appellation. But in order to make out injury, it must be shown in the outset that there is an offence committed and malice.”

As Blackie points out14 Hume’s Commentaries sets out a list of seven (real and verbal) injuries consisting of infringements of rights or interests of personality punishable as crimes as well actionable in delict by civil action. The list is as follows:15 “the injury (i) of bodily pain or disability, as in the case of battery, or mutilation; or (ii) of insult and fear of mischief, as in the case of attempt to ravish, or threatening letter, or challenge to fight; or (iii) of putting one in danger, as by malicious information of a crime; or (iv) of loss of liberty, as by wrongous imprisonment; or (v) of the loss of domestic comfort, as in the case of adultery; or (vi) of fame and respect, as in the slandering of a judge; or (vii) of the violation of one’s natural sentiments of affection, as by raising the dead body of one’s child from the grave”. [numbering added]

This Institutional usage is reflected in the list of the enumerated causes for jury trial in the Court of Session Act 1825, s 28, which refers to “All actions on account of injury to the person, whether real or verbal, as assault or battery, libel or defamation”.16 This shows the dual influence of the European ius commune and of English law in a mixed legal system. The expression “real or verbal” reflects the ius commune notion of iniuria re (by act) and iniuria verbis (by words). That is the over-arching category. At a lower taxonomic level, this is non-exhaustively filled out, by way of example, by sub-categories which resemble pigeon-hole English torts: “assault or battery, libel or defamation”. Several modern commentators on Scots private law regard invasion of privacy as in principle actionable as a real or verbal injury (iniuria)17 though others criticise this theory.18   Citing Bankton, Institute I,10, Section III on “Injury”; Justinian, Institutes IV,4, De Iniuriis. 14   Chapter 2, Section 2.3.10(c) above. 15  Hume, Commentaries vol 2, p 121. 16   Court of Session Act 1825 (c 120), s 28, repealed by the Court of Session Act 1988 (c 36). The repeal does not abolish actions on account of real or verbal injury but only makes them no longer enumerated causes for jury trial (except where mentioned in s 11 which refers to actions of defamation but not verbal injury). 17  Eg D L Carey Miller, “Privacy: Interceptions of Communications – Could Scots law have a remedy?” 1980 SLT (News) 209; M Earle and N R Whitty, SME Reissue “Medical Law” (2006) paras 287; 303–304; Lord Kilbrandon, “The Law of Privacy in Scotland” (1971) 2 Cambrian LRev 35; D M Ross, QC (later Lord Justice-Clerk), Minority report in Report of the Departmental Committee on Privacy (Cmnd 5012, 1972) Appendices at pp 213–215; Scottish Law Commission, Consultative Memorandum no 40 on Confidential Information (1977), paras 48–58; T B Smith, A Short Commentary on the Law of Scotland (1962) pp 654–656; D M Walker, 13



ov e rv i e w of r i ght s o f p e rs o n al i t y

153

3.2.3   First meaning of “verbal injury”: generic term denoting affront to personality by words In the development of the Scots law on personality rights or interests, the concept of “verbal injury” is important. It has acquired at least three meanings in Scots law. In the Institutional expression “real and verbal injury” just described, verbal injury (like real injury) is used as a generic term. D M Walker19 writes: “It seems . . . that in the institutional and other older writers verbal injury was injuria verbis, an affront to personality by words, and that this was the generic term, within which fall the modern species of convicium, defamation and malicious or injurious falsehood. . . . In short the true view is that verbal injury is the genus, and it comprises three species, convicium, defamation (or libel and slander) and malicious or injurious falsehood.”

Walker’s scheme is shown graphically in Table A. Table A: Taxonomic structure of verbal injury in Walker on Delict (1st edn, 1966; 2nd edn, 1981) Level 1 Level 2 Level 3

Level 4

Injury (affront to personality) Real injury

Verbal injury (level 2) (ie injury by words) Defamation (false, injurious representations against pursuer’s morality, credit or business capacity)

Verbal injury (level 3) aka “malicious or injurious falsehood” (false, non-defamatory representations)

Convicium (truthful, non-defamatory representations causing hatred, ridicule and contempt)

Verbal injury (level 4) (a) falsely causing hatred, ridicule and contempt; (b) third party slander; (c) slander of title, slander of property or slander of business

The Law of Delict in Scotland (2nd edn, 1981); N R Whitty, “Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194 at pp 199–205. See also Jonathan Burchell, Chapter 6 below. 18  See eg Chapter 4 (Elspeth Reid) esp at Section 4.5.4(b); Chapter 10 (Graeme Laurie) esp at Section 10.11. 19  D M Walker, Delict (1st edn, 1966) p 738; (2nd edn, 1981), p 732.

154

r i ght s of p e rs o n al i t y

In Scottish legal writing David Walker’s analytic framework was ahead of its time (1966) in adopting “affront to personality” (that is, infringement of rights of personality) as the key concept unifying this field of law. It is true that his framework does raise some difficulties. First, the very existence of the third level category “convicium” is controversial.20 Second, the third level category of “malicious or injurious falsehood” has some fourth level subcategories, some of which are clearly examples of injury/iniuria (eg (a) falsely causing public hatred, ridicule and contempt; and (b) third party slander); but others of which – namely (c) slander of title,21 slander of property22 and slander of business23 – involve infringement of patrimonial rights but not of personality rights (corpus, fama, dignitas) and probably do not attract solatium. Though the judges treat these categories as examples of verbal injury,24 in principle they should not be so treated but should be transferred to some other branch of the law of delict.25 But these difficulties are not fatal to the scheme as a whole. 3.2.4  Second meaning of “verbal injury”: non-defamatory malicious or injurious falsehood Kenneth Norrie describes the more common use of “verbal injury” in modern practice as follows:26 “Notwithstanding the institutional authority for this usage [ie of verbal injury in the generic sense of iniuria verbis], the phrase ‘verbal injury’ has taken on in the modern era a different meaning and normally it is used to refer not to the genus itself, but to one of the classes within the genus. The phrase ‘verbal injury’ in this sense is an actionable wrong other than defamation which is an attack on character, honour and reputation and it has been used thus by many judges and at least two statutes. The title of Cooper’s work Defamation and Verbal Injury, as well as the treatment contained therein, indicates a similar understanding on the part of the author, . . .”  See Section 3.2.6 below.  Eg Philp v Morton (1816) Hume 865; Yeo v Wallace (1867) 5 SLRep 253; Harpers v Greenwood and Batley (1896) 4 SLT 116. 22  Eg Bruce v J M Smith (1898) 1 F 327; Thomson v Fifeshire Advertiser 1936 SN 56; Argyllshire Weavers Ltd v A Macauley (Tweeds) Ltd 1965 SLT 21 (OH). 23  Eg Buchan v Walch (1857) 20 D 222; Parlane v Templeton (1896) 4 SLT 153; Lamond v Daily Record (Glasgow) Ltd 1923 SLT 512; Craig v Inveresk Paper Merchant Ltd 1970 SLT (Notes) 50. 24  See last three footnotes. 25  Such as “wrongs to property” as in Smith, Short Commentary p 738. 26   K McK Norrie, Defamation and Related Actions in Scots Law (1995) p 33. 20 21



ov e rv i e w of r i ght s o f p e rs o n al i t y

155

This usage is followed by Norrie himself.27 He postulates one genus (which he calls iniuria verbis) with two species – defamation and verbal injury – the latter being also known by the English label of “malicious falsehood”.28 Like David Walker, Kenneth Norrie also subsumes slander of title, property and business under verbal injury for which there is incontrovertible judicial authority.29 But as mentioned above these are not strictly infringements of personality rights. 3.2.5   Third meaning of “verbal injury”: the element of insult in the verbal delicts Disagreeing with the foregoing usages in which the concept of verbal injury covered claims in respect of both wounded feelings and patrimonial loss, Sir Thomas Smith identified verbal injury exclusively with the insult element in the actio iniuriarum. As the Faulks Report30 explained: “In his [Smith’s] view the term ‘verbal injury’ is appropriate to describe those causes of action in respect of words which are derived from the civil law actio iniuriarum, but not causes of action in respect of words causing damage to reputation as an economic asset, which are derived from the civil law Aquilian action. He thus regards ‘verbal injury’ as covering the insult element in defamation, but not the element of injury to reputation resulting in pecuniary loss, and also the second of Professor Walker’s categories31 but not the third.32” [footnotes added]

In this way Smith explained the structure of the Scots law of delict (along South African lines) by reference to the two pillars of

(i) solatium for wounded feelings caused by insult reparable under the actio iniuriarum; and

 Eg K McK Norrie, “Hurts to Character, Honour and Reputation: A Reappraisal” 1984 JR 163; idem, Defamation and Related Actions in Scots Law (1995) Chapter 3; idem, Stair Memorial Encyclopaedia, vol 15 (1996) paras 470– 554 “Defamation”; paras 555–573 “Verbal Injuries”. Contra Walker, Delict (2nd edn, 1981), p 732. 28  Norrie, Defamation, p 34. 29  Norrie, Defamation, pp 44–50. 30  Report of the Committee on Defamation (Cmnd 5909, 1975), para 599. See T B Smith, Short Commentary (1962), pp 724–732. 31  Ie convicium (true representations causing public hatred, ridicule and contempt). 32  Ie malicious or injurious falsehood. See Smith, Short Commentary, pp 730–732 (false non-defamatory representations causing public hatred, ridicule and contempt); and p 738 (slander of title, property or business). 27

156



r i ght s of p e rs o n al i t y

(ii) damages for patrimonial loss caused by false statements reparable under the principle of culpa.

(The third pillar, solatium for personal injury or death due to negligence, has its own distinct history.33) Smith’s theory now seems out-of-date. Verbal injury cannot be confined to cases of insult. The trend in South African law and elsewhere has been to reject or to relax the requirement of insult (contumelia)34 – as Jonathan Burchell remarks “There is no need to add insult to injuria”35 – and to rely instead on intent to injure (animus iniuriandi) rather than intent to insult as the basis of liability for infringement of personality rights. Moreover if the key element unifying the field of verbal injury is not insult, then comparative law36 and our legal history, especially our Institutional and other writings,37 suggest that that element should, as Walker affirms, be the invasion of a personality right. To cater for the anomaly mentioned above38 that, by a loose legal usage, the label “verbal injury” includes a reference to the equivalent of the English torts of “slander of title”, “slander of property” and “slander of business”39 which are neither extra-patrimonial nor personality rights, these exceptional categories should be described by another label which does not refer to “injury”40 such as “intentional falsehood”.41

 See eg nn 56, 57, 422, 423 and 427 below.  See eg De Lange v Costa 1989 (2) SA 857 (A) at 860 per Smalberger JA; Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 460–463 per Corbett CJ; Brandon v Minister of Law and Order 1997 (3) SA 68 (C); J Burchell, Chapter 6, Section 6.4.2 below; also J Burchell, Personality Rights and Freedom of Expression: the Modern Actio Iniuriarum (1998), pp 331–332; J M Burchell, “The Protection of Personality Rights” in R Zimmermann and D Visser (eds), Southern Cross, Civil law and Common Law in South Africa (1996) 639 at p 652; J C van der Walt and J R Midgley, Principles of Delict (3rd edn, 2005), para 40; J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005), pp 44–45; 47–48; 50. 35   Burchell, Personality Rights, p 331; see also p 381 below. 36  See, eg, Gert Brüggemeier in Chapter 5; Jonathan Burchell in Chapter 6. 37  Notably Stair, Bayne, Bankton, Erskine, Hume’s Commentaries. See John Blackie in Chapter 2. 38  Section 3.2.3. 39  See Table A, level 4, head (c) at p 153 above. 40   Kenneth Norrie refers to these as “patrimonial verbal injury” in Chapter 9, Section 9.6. 41  It is sometimes called “malicious falsehood” but the concept of “malice” is ambiguous because in ordinary usage it normally refers to a “spiteful motive” while in legal usage it means “intent” to do the harmful act or the resulting harm. 33

34



ov e rv i e w of r i ght s o f p e rs o n al i t y

157

3.2.6  “Convicium” as a species of verbal injury protecting privacy and distinguished from malicious falsehood There are two opposing views on the relevance of truth as a defence to an action for verbal injury. The orthodox view is that the falsity of the information complained of is a requirement of the cause of action, and the truth of the information is a defence or bar to proceedings, both in actions of defamation42 and in actions of verbal injury.43 There is however a line of obiter and secondary authority holding that there are exceptional cases of verbal injury where the information disclosed is true, falsity is not a requirement in the cause of action and truth is not a defence.44 These cases were subsumed under the heading of convicium (reflecting the maxim veritas convicii non excusat) by Glegg on Reparation in the first two editions of 1892 and 1905 whose treatment covered mainly the wanton and malicious publication of old scandals or physical deformities and newspaper campaigns invading privacy.45 This usage has been criticised as different from both the original meaning in Roman law46 and the historic meaning in the Scottish Institutional writers. The idea of a separate category of convicium nevertheless was taken up and elaborated by Walker on Delict in 1966 and 1981 who (as shown in Table A) developed a tripartite taxonomy of defamation, verbal injury (malicious falsehood) and convicium.47 Truth was a defence to claims in the first two categories but not in the third. This theory was accepted by the Younger Committee on Privacy48 which stated:49 “Convicium is a form of verbal injury distinct from defamation and is peculiar to Scotland. An action of damages for convicium lies where the defender has (a) maliciously, (b) communicated of and concerning the pursuer an idea, which may be either true or false (the falsity not   Mackellar v Duke of Sutherland (1859) 21 D 222; Steele v Scottish Daily Record 1970 SLT 53. 43   Paterson v Welch (1893) 20 R 744; Steele v Scottish Daily Record 1970 SLT 53. 44  See Section 3.4.7 below. 45  A T Glegg The Law of Reparation (1st edn, 1892), pp 102–104; A T Glegg The Law of Reparation (2nd edn, 1905), pp 145–148. 46   Originally convicium in Roman law was a type of iniuria committed by a crowd shouting loud insults contra bonos mores: see eg D.47,10,15,2–4; R Zimmermann, The Law of Obligations, pp 1053–1054. According to J Blackie, “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland vol 2, 633 at p 682 in the ius commune and in Bankton and Mackenzie “convicium” was usually synonymous with “verbal injury” which meant at that time an action based on spoken words (written words being at that time a “real injury”). 47  D M Walker, Delict (2nd edn, 1981), Chapter 23. 48  Report of the Departmental Committee on Privacy (Cmnd 5012, 1972) (chairman: Rt Hon Kenneth Younger). The Scottish legal professions were represented by Mr Donald M Ross, QC, as he then was. 49  Appendix I (Present Law in Great Britain) para 57, p 303. 42

158

r i ght s of p e rs o n al i t y being an essential of the action and the truth no defence), (c) calculated to bring him into public hatred, contempt or ridicule, and has thereby caused him loss, injury and damage. So far as privacy is concerned convicium could justify actions against newspapers who had invaded the pursuer’s privacy and published material which made the pursuer appear ridiculous or a fool or held him up to public hatred or where a newspaper or anyone else attributed to the pursuer unpopular opinions. This would be so even though the statements in question were true. It would, however, be necessary to prove malice which, in this context means the design of exposing the [pursuer] to public hatred and contempt, and may be inferred from the idea communicated and the circumstances; no proof of express or actual malice (in the sense of malevolence, spite or ill will) need be adduced.”

This theory was rightly criticised, especially by Kenneth Norrie,50 as inconsistent with the decided cases which (according to the currently prevailing majority opinion) treat falsity as an essential element in verbal injury and truth as a defence. On the other hand convicium as conceived by Glegg or D M Walker is in consonance with the jurisprudence on privacy under ECHR, Art 8 (under which truth is not a defence) whereas the orthodox requirement of falsity in verbal injury is not. 3.2.7  The distorted meaning of “actio iniuriarum” in Scottish sources 1870–1972 For a century after Eisten v N B Rly Co in 187051 it became common practice in Scotland to use the name actio iniuriarum to mean an action of damages for causing death or personal injuries, following the lead of Lord President Inglis in that case. At that time fundamental research into the roots of the Scots law of delict was virtually nonexistent and the solecism gained wide currency in Scottish practice threatening to displace completely the primary, historic meaning of an action for solatium for wounded feelings arising from insult or affront.52 Though Lord Macmillan had identified the usage as a  Norrie, “Hurts to Character, Honour and Reputation: A Reappraisal” 1984 JR 163; idem, Defamation and Related Actions in Scots Law, pp 40–41; idem, SME “Obligations” vol 15, para 558 “The non-existence of convicium”. 51   (1870) 8 M 980. 52  The rise and fall of this solecism is charted by Professor Sir Thomas Smith who led the successful campaign to have it corrected: see T B Smith, “Designation of delictual actions: damn iniuria damn” 1972 SLT (News) 125; id, “Damn iniuria again” 1984 SLT (News) 85. See also, eg, Smith, Short Commentary (1962), pp 720–722; Walker, Delict (1966), p 725; W A Elliott, “What is Culpa?” (1954) 66 JR 6 at pp 9ff; R Black, “An Historical Survey of Delictual Liability in Scotland for Personal Injuries and Death” (Pt II) (1975) 8 CILSA 189 at pp 193–195; McKendrick v Sinclair 1972 SC (HL) 25 at 66 per Lord Kilbrandon. 50



ov e rv i e w of r i ght s o f p e rs o n al i t y

159

solecism in 1943,53 it was not till 1972 in McKendrick v Sinclair54 that Lord Kilbrandon condemned it observing that the actio iniuriarum “was truly based on insult or affront; it survives in our forms of action which are included under the classification of verbal injury”. It may be added that the actio iniuriarum survives also in some “real injury” contexts, eg assault; and unauthorised removal of organs at post mortem.55 Solatium for wounded feelings (as distinct from damages for patrimonial loss) in Scots law (as in Roman–Dutch law and the ius commune) has two main historical sources, one deriving from customary law (Schmerzensgeld or in Scotland assythment)56 engrafted on to the neo-Aquilian action of damages for patrimonial loss caused by death or personal injury and the other deriving from the actio iniuriarum.57 It has been suggested that this factor triggered the confusion which has now been corrected. 3.2.8  The meaning of “dignity” and “autonomy” Of the three interests (corpus, fama and dignitas) stated by Ulpian58 to be protected by the actio iniuriarum, the third – dignitas (dignity) – is at once the most interesting and the most problematic. Dignity is an elusive concept which is important in human rights law, international law and constitutional law as well as private law. Hans Nieuwenhuis59 distinguishes “the traditional concept of dignity, its core being honour, respectability and status”60 from “the enlightenment idea of human dignity conceived of as personal autonomy. Autonomy is the foundation of the dignity of human

  Stewart v LMS Railway Co 1943 SC (HL) 19 at 38–39.   1972 SC (HL) 25 at 66. 55   Stevens v Yorkhill NHS Trust 2006 SLT 889 (OH). 56   Known in South Africa as the “Germanic remedy”. 57  R Feenstra, “Théories sur la responsabilité civile en cas d’homicide et en cas de lésion corporelle avant Grotius”, in Études d’Histoire du Droit Privé, offertes a Pierre Petot (1959) 157; reprinted in Fata Iuris Romani (1974); J C de Wet, “Criminal and civil liability for wrongful conduct – an historical and comparative survey” in J J Gauntlett (ed), Opuscula Miscellanea, Regsgeleerde Lesings en Adviese van J C de Wet (1979) 149 (lectures given in the Department of Civil and Comparative Law, Edinburgh University, in Spring term, 1962). 58  See n 7 above. 59  H Nieuwenhuis, “The Core Business of Privacy Law: Protecting Autonomy” in K S Ziegler (ed.), Human Rights and Private Law, Privacy and Autonomy (2007) 15 at p 17. 60   “Naomi Campbell’s respectability was harmed by the article in The Mirror because the photographs showed she had lied about her addiction”: ibid. The reference is to Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E), discussed in Section 3.4.7(e)(iv) below. 53

54

160

r i ght s of p e rs o n al i t y

nature, according to Kant”.61 In the modern South African law on the actio iniuriarum, the term dignitas (in a wide sense) “is an umbrella concept which embraces personality rights such as the right to dignity [in a narrow sense], the right to identity, the right to feelings and the right to privacy”.62 There is also a narrow sense in terms of which “Infringing a person’s dignity means insulting that person”.63 Jonathan Burchell argues in Chapter 6 below that the modern South African actio iniuriarum can progressively realise human rights by affirming the fundamental right to dignity in a wide sense of that term. Others express doubts. In England, for example, Feldman argues that the power of dignity as a value to inform decision-making cannot hide its weakness as a basis for rights and that it “can never be more than one of a number of values, principles and policies which pull decision-makers in different directions”.64 Nevertheless it may underlie specific rights such as the right of parents to limit the size of their family which has been expressly held to be an important aspect of “personal autonomy” and of “human dignity, which is increasingly being regarded as an important human right which should be protected by law”.65 In Germany, where the Basic Law (Grundgesetz), Art 1 affirms that “the dignity of man shall be inviolable”, generally lawyers do not regard dignity as a practical test of liability for invading privacy. In their view human dignity must not become “small coin” and is devalued if it is brought down to the operational level.66 Further

61   Ibid, citing Kant, The Metaphysics of Morals (1785). For this notion of autonomy, see Section 3.4.11 below and also Campbell v MGN Ltd [2004] UKHL 22 at para 46 in which Lord Hoffmann associated the protection of human autonomy and dignity with the right to control the dissemination of information about one’s private life and the right to esteem and respect of other people 62   J C van der Walt and J R Midgley, Principles of Delict (3rd edn, 2005), para 80. See also J Burchell, Personality Rights and Freedom of Expression: the Modern Actio Iniuriarum (1998); J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005), Chapters 6–9. 63   Neethling’s Law of Personality (2nd edn, 2005), p 28, citing Jackson v NICRO 1976 3 SA 1(A) at 4 per Van Blerk AJA. In Neethling’s analysis (ibid, n 298) dignity differs from reputation (or good name); the latter is concerned with the opinion of others whereas dignity is concerned with a person’s feelings regarding him or her self. 64   D Feldman, “Human Dignity as a Legal Value” [1999] PL 682; [2000] PL 61 at p 76. 65   Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 at para 23 per Lord Millett (award of conventional sum of £15,000 to parents). 66  Eg in assessing whether appointment procedures in a university are appropriate; and whether and under which circumstances it is lawful to take out organs from a corpse.



ov e rv i e w of r i ght s o f p e rs o n al i t y

161

human dignity is inalienable, cannot be won or lost, cannot be waived. It is a supreme value which is not subject to balancing, and cannot be pitted against other concerns and values. Dignity demands that some protection for personality interests be granted – but it does not descend into the muddy waters of detail. The choice therefore before Scots law is whether to regard human dignity (i) as a basic value informing the legal system (as in Germany) or (ii) as a broad category subsuming specific personality rights including privacy or (iii) as a doctrinal working tool virtually synonymous with freedom from insult. 3.2.9  The meaning of “privacy” Privacy is the nearest Common law equivalent to a general doctrine of rights of personality.67 In the USA privacy is a wide category founded on the famous article by Warren and Brandeis in 1890,68 and re-cast by Dean Prosser in 1960 and the American Restatement (Second) into four torts described by Prosser as follows: “1 Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”69

Increasingly, Commonwealth countries such as New Zealand are following the American lead.70 In a sophisticated South African analysis of rights of personality, privacy is largely limited to seclusion and non-disclosure71 but is part of a wider spectrum of recognised rights of personality. However some judges still say: “The actio iniuriarum protects a person’s dignitas and dignitas  It is sometimes said that “privacy” cannot be defined. That is contrary to experience and is misconceived: see N MacCormick, “Privacy: A Problem of Definition?” (1974) 1 Journal of Law and Society 75. 68  S D Warren and L D Brandeis, “Privacy” (1890) 4 Harvard L Rev 193. 69  W L Prosser, “Privacy” (1960) 48 California LRev 383 at p 389; see also Restatement, Second, Torts, ss 625A–625E. 70   Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1. However, not Australia: see Australian Broadcasting v Lenah Game Meats Pty Ltd (2001) 185 ALR 1. 71   Neethling’s Law of Personality (2nd edn, 2005), p 32: “Privacy is an individual condition of life characterised by seclusion from the public and publicity. This condition embraces all those personal facts which the person himself has determined to be excluded from the knowledge of outsiders and in respect of which he has the will that they be kept private”. 67

162

r i ght s of p e rs o n al i t y

embraces privacy”.72 In official reports in Canada and Australia73 a wider tripartite definition of “privacy” has been adopted74 which covers most of the spectrum of Civil law personality rights.75 The ECHR, Art 8 (“respect for private and family life”) is also construed extensively76 and since it extends beyond the protection of private information, it cannot be implemented merely by developing the wrong of breach of confidence.77 In French law respect for private life, long protected by the general clause in Art 1382 of the Code Civil, is now expressly recognised by Art 9.78 In Germany the right to privacy is seen as a specific emanation of the general personality right.79 Legal systems which refuse to recognise a doctrine of privacy appear increasingly isolated. 3.2.10  The meaning of “affront” The concept of affront is, by definition, the element giving unity to the body of affront-based delicts which are the primary mode of protecting rights of personality in Scots law. It can have reference either to the impact on a pursuer’s feelings of the invasion of an interest in his personality (a deceased’s near relatives are said to have “suffered affront” by unauthorised operations on his corpse)80 or to the conduct forming liability, as when it was traditionally seen as a synonym for insult or “iniuria” in the Roman law sense of “contumelia” (contempt).81 In the modern law it is clear that in   Jansen van Vuuren v Kruger 1993 4 SA 842(A) at 849.   Canadian Departments of Communications and Justice (Privacy Taskforce), Report on Privacy and Computers (1972); Australian Law Reform Commission, Report No 22 on Privacy (1983). 74  Ie (i) territorial privacy; (ii) privacy of the person; and (iii) privacy in the information context; discussed in R Mulheron, “A Potential Framework for Privacy? A Reply to Hello!” (2006) 69 MLR 679 at pp 696ff. 75  This spectrum broadly corresponds to the list set out in Section 3.3 below. 76   SME Reissue “Human Rights” (2003) (J Murdoch), para 107: “The scope of article 8 of the Convention extends to issues concerning the development of personality and choice of lifestyle, protection for the home, and the determination of family relationships.” 77  See, eg, Wainwright v United Kingdom (Application No 12350/04) 26 September 2006 (strip-search of prison visitors) (disapproving Wainright v Home Office [2003] UKHL 53; [2004] 2 AC 406 HL(E)). 78  See Gert Brüggemeier in Chapter 5. 79   Gert Brüggemeier in Chapter 5. 80  See, eg, Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH) at para 57, quoted at Section 3.4.13 below. See also the usage in, eg, Kelly v Cox (unreported 8 July 2004, IH): “a cause of action by reason of the affront caused by abuse”; cf Wilson v Procurator Fiscal, Glasgow (unreported, 2 September 2005, HCJ, Appeal Court) “affront to the dignity of Muslims in Pollokshields”. 81  D.47,10,1pr; Zimmermann, The Law of Obligations, p 1050. 72

73



ov e rv i e w of r i ght s o f p e rs o n al i t y

163

relation to liability for infringing some interests in personality, such as privacy, a desire to insult should no longer be required.82 One possible reaction is to say that this factor renders, or helps to render, the actio iniuriarum unsuitable as a delict protecting privacy in Scots law. It may however be preferable to recognise that in modern Scots law “affront” in some contexts, such as invasion of privacy or unauthorised operations on dead bodies, has reference wholly or mainly to the type of harm suffered by the pursuer and (as in the South African actio iniuriarum as applied to privacy)83 does not necessarily import a desire to insult on the defender’s part. 3.3  CLASSIFICATION AND TYPOLOGY OF RIGHTS OF PERSONALITY It is rightly said to be “not easy to categorize the area of personality rights” since “[v]arious aspects of the personality overlap each other and are strongly interwoven”.84 Personality interests do not align exactly with the delicts which protect those interests. So for example “although assault is classified as an infringement of bodily integrity, clearly it will often also infringe the victim’s sense of dignity; and, while defamation primarily infringes a person’s reputation, it too will often carry with it an injury to dignity”.85 Moreover an individual delict (such as malicious prosecution; or abuse of civil process) may protect a right to personality (eg reputation) and at the same time some other important private or public interest as well (eg the integrity of the criminal or civil process). The difficulties however can be exaggerated. There are various typologies and taxonomies of rights of personality across legal systems and even within the same system. As mentioned above, Stair’s description of “reparable interests” included (i) “life, members, health”; (ii) “liberty”; and (iii) “fame, reputation and honour”.86 In modern times, for the purposes of comparative law, Christian von Bar identifies protection of life; injury to the body or health; and deprivation of liberty and three major groups of violation of intangible rights to personality: “the weakening and distortion of the profile of an individual in society”; “wrongful disclosure to the public”; and “interference with family life”.87

 As the South African experience shows. See, eg, Section 3.2.5 nn 34 and 35 above. 83  See previous note. 84   C van Dam, European Tort Law (2006), p 150. 85  See D Visser, Chapter 43 in Wille’s Principles of South African Law (9th edn, 2007) (ed F du Bois) 1165 at p 1166. 86  Stair, Institutions I,9,4. See also Bankton, Institute I,10,21 and 22. 87   C von Bar, The Common European Law of Torts, vol 2 (2000), pp 62ff. 82

164

r i ght s of p e rs o n al i t y

As a working typology the following list, which is based mainly on the work of Johan Neethling,88 is at least a starting point for discussion and might form the basis of a possible classificationframework for Scots private law:

(i) the right to life; (ii) the rights to bodily integrity and to personal security; (iii) the right to physical liberty; (iv) the right to reputation (esteem of others); (v) the right to dignity in the narrow sense (self-esteem; honour, and freedom from insult); (vi) the right to privacy (seclusion from intrusion); (vii) the right to informational privacy (non-disclosure of private information); (viii) the right to identity (image); (ix) the right to publicity; appropriation of image and reification of rights to privacy and image; (x) the moral right to copyright; (xi) the right to autonomy; (xii) personality rights in family relationships; and (xiii) personality rights after death.

Generally the protection of rights of personality is entrusted to the law of delict.89 Some Civilian and mixed systems acknowledge a distinction between “subjective rights” protected by the law of delict and other “interests” so protected.90 Scots law however has not, or not yet, articulated a doctrine of subjective rights and such a doctrine is not an essential prerequisite of rights of personality. The recognition of rights of personality affects the structure of the law of delict in so far as it requires us to adopt a well established analytic distinction between primary and secondary rights and obligations.91 The rights of personality enumerated above are primary. An 88   J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005), especially Chapter 1; J Neethling, “Personality rights: a comparative overview” (2005) 38 CILSA 210; J Neethling, “Personality Rights” Chapter 48 in J Smits (ed), Elgar Encyclopedia of Comparative Law (2006). See also C von Bar, The Common European Law of Torts, vol 2 pp 56ff; C van Dam, European Tort Law (2006), pp 143ff. 89  Though in some legal systems including (it is hoped) Scots law, the law of unjustified enrichment may also be prayed in aid. See Section 3.7.7 below. 90  See Chapter 5, Section 5.1.4 below. 91  See P Birks, “Obligations: One Tier or Two?” in P G Stein and A D E Lewis (eds), Studies in Justinian’s Institutes in memory of J A C Thomas (1983) 18. Cf R Stevens, Torts and Rights (2007), p 2: “The law of torts is concerned with the secondary obligations generated by the infringement of primary rights.”



ov e rv i e w of r i ght s o f p e rs o n al i t y

165

infringement of such a right is a delict which imposes a secondary obligation on the particular wrongdoer to make reparation or otherwise to remedy the wrong. The correlative of that secondary obligation is a secondary right. So for example when civil law or mixed systems prohibit absolutely the alienation of rights of personality,92 the prohibition has reference to the primary right. The secondary rights to solatium for a particular infringement of a personality right have long been assignable and there is a patchwork (much amended by statute) of rules providing for active transmissibility (conditional or absolute) or intransmissibility (as the case may be) to executors and trustees for creditors.93 Likewise, it is thought that a primary right of personality is in principle imprescriptible, being (it is submitted) exercisable as res merae facultatis, whereas a secondary right to reparation for infringing a right of personality is extinguishable by negative prescription.94 This discussion concentrates on the common law. As Hector MacQueen has pointed out, the common law is now supplemented by important and wide-ranging enactments.95 At first sight these seem to be divorced from the common law and to balkanise Scots private law unduly. MacQueen argues however that “statute should be seen, not as damming the flow of the common law, but rather as diverting it into fresh courses and creating new possibilities for exploitation of existing resources more consonant with current legal policy and social need”.96 Non-natural persons such as bodies corporate, partnerships and voluntary associations may possess personality rights which are compatible with their nature including rights to reputation, privacy and identity.97 Such a non-natural person however cannot be the victim of an assault, nor can it be injured in its feelings and accordingly, while it can sue for patrimonial loss, it cannot sue for solatium.98

 See Chapter 11, Section 11.4.3(b) and (c) below.  Discussed in Section 3.6 below. 94  See Prescription and Limitation (Scotland) Act 1973, Sch 1, para 1(d) (negative prescription); Sch 3(c) (res merae facultatis). 95  MacQueen, Chapter 12, Section 12.6, commenting on the Protection from Harassment Act 1997; the Data Protection Act 1998; the Regulation of Investigatory Powers Acts 2000; and the Copyright, Designs and Patents Act 1988. 96  Section 12.6.1. 97  Eg Norrie, Defamation pp 64ff. A corporate body’s right to privacy was affirmed in Response Handling Ltd v BBC [2007] CSOH 102 at para 18 per Lord Bracadale. 98   Waverley Housing Management Ltd v BBC 1993 GWD 17-1117 per Lord Cullen. 92 93

166

r i ght s of p e rs o n al i t y

3.4  THE SPECIFIC RIGHTS OF PERSONALITY IN SCOTS LAW 3.4.1  The right to life No human right is more fundamental than the right to life99 which under ECHR, Art 2(1), must be protected by law.100 Since death is irreversible, interdict is the only truly effective remedy. Nevertheless Scots law imposes liability on a person who causes another’s death, primarily through the delicts of negligence and breach of statutory duty.101 Legal personality commences at birth. Where an unborn child suffers ante-natal injury and dies in the womb, he or she has not acquired legal personality and cannot claim damages.102 In the Kelly case103 the court refused to interdict an abortion holding that antenatal injury is actionable only after birth and that a father may take action on behalf of his unborn child to prevent abortion only where the abortion would be an actionable wrong. Paradoxically damages for loss of life as such, as a separate item, are not recoverable by a deceased person (who ex hypothesi no longer exists) nor by his executor or surviving relatives. It is true that the victim’s claim for solatium for the period before death transmits to his executor104 as well as his claim for patrimonial loss for that period, but not the victim’s claim for future loss of earnings during the “lost years”.105 In addition to their claim for damages for loss of support, a form of patrimonial loss, the relatives can claim a statutory form of solatium for non-patrimonial loss.106 It may be doubted however whether the award, being compensation for their

  “Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilisation”: Cockrum v Baumgartner 477 NE 2d 385 (Ill 1983) per Supreme Court of Illinois, cited with approval in McFarlane v Tayside Health Board 1997 SLT 211 (OH) at 215I–J per Lord Gill. 100   For Scottish cases on ECHR, Art 2, see Al Fayed, Petr 2004 SLT 319; Mitchell v Glasgow City Council 2008 CSIH 19; 2008 SLT 368 (Extra Div), reversing 2005 SLT 1100 (OH). 101   For a recent critical survey and recommendations for reform, see Scottish Law Commission, Report No 213 on Damages for Wrongful Death (2008); see also prior Discussion Paper No 135 (2007). 102   Hamilton v Fife Health Board 1993 SLT 624. 103   Kelly v Kelly 1997 SC 285. 104  Damages (Scotland) Act 1976, s 2(2), substituted by the Damages (Scotland) Act 1993, s 3. See Section 3.6 below. 105  Ie the years he could be expected to have enjoyed life. This restriction is designed to avoid double compensation to the executor and to the relatives for their loss of the deceased’s support. 106  Damages (Scotland) Act 1976, s 1(4). 99



ov e rv i e w of r i ght s o f p e rs o n al i t y

167

distress and anxiety, grief and sorrow and non-patrimonial benefits arising from loss of deceased’s society and guidance, reflects the full value of a lost human life.107 The right to life is at the least a value underlying specific rules such as that requiring judicial authorisation for a hospital discontinuing life-support;108 the rule (or exercise of judicial discretionary power) preventing public disclosure by the media of true information about particular vulnerable persons which would seriously endanger their life;109 and the rule that failure to prevent the birth of a healthy child is not as such a delict.110 3.4.2  The rights to bodily integrity and to personal security The right to bodily integrity The right to bodily integrity (corpus in Ulpian’s triad)111 is protected mainly by the delict of assault112 but also by numerically less important delicts like seduction. Assault was, and still is, a manifestation of the action for real injury (actio iniuriarum).113 The traditionalist jurist Hector McKechnie remarked: “The essence of assault is insult rather than actual physical hurt, and it was therefore regarded by purists as the worst type of injuria and as germane to defamation.114 Thus according to

  For an instructive list of awards in Scottish cases of damages (solatium) for nonpatrimonial loss from 1993 to 2006, see Scottish Law Commission, Discussion Paper No 135 (2007), Appendix C. The highest award (May 2007 values) was £36,358 for a widow, and £17,659 for each of two children aged 12 and 10: Weir v Robertson Group (Construction) Ltd [2006] CSOH 107. 108   Law Hospital NHS Trust v Lord Advocate 1996 SC 301. See Graeme Laurie in Chapter 10 below. 109  See the Irish case of Burke v Central Independent Television [1994] 2 ILRM 161 (Sup Ct) (statement that plaintiff connected with IRA); and the English case of Venables v News Group Newspapers Ltd [2001] Fam 430 (whereabouts of two convicted minors guilty of the heinous murder of a very young child). However in Scotland an interdict against persons not called as parties to the proceedings is incompetent: see Section 3.7.3 below. 110   McFarlane v Tayside Health Board 2000 SC (HL) 1, criticised by Graeme Laurie, Chapter 10, Section 10.6. 111  See n 7 above. 112  See also Protection from Harassment Act 1997, s 8, discussed by Hector MacQueen in Chapter 12, Section 12.6.2 below. 113  See, eg, Bankton, Institute I,10,22; Hume, Commentaries vol 2, p 121: “the injury of bodily pain or disability, as in the case of battery, or mutilation”. See also the Court of Session Act 1825, s 28 (enumerated causes for jury trial) quoted at Section 3.2.2 above. For the historical development, see Blackie, Chapter 2 above, Sections 2.2.2 and 2.3.2. For the modern law, see Elspeth Reid, Chapter 4, Section 4.2.1 below. 114   Citing Mackenzie, Laws and Customs in Matters Criminal I 30, 12,3; Bankton, Institute I,10,22. 107

168

r i ght s of p e rs o n al i t y

Bankton ‘an assault . . . is a real injury, because it tends much to the person’s disgrace who is so used’”.115 By contrast in Norrie’s view while “verbal injury” survives in the modern law, “real injury” does not. He argues that “Today we regard physical assault to the person as a wrong because of the interference with our physical integrity and the pain and suffering that causes us, and the element of affront is much diminished”.116 Yet spitting alone can be an actionable assault in which insult seems the gist of the wrong.117 Whichever of these views is taken, assault is not, and never has been, based on the tort of trespass to the person (an English tort per se), and accordingly the doctrine of trespassory touching is not, and never has been, part of Scots law.118 There is recent authority that any unwarranted affront or invasion of privacy, if actuated by malice, is capable of being classified as an assault for the purposes of a civil claim.119 It is plain that this wider usage fits the wider (albeit vaguer) concept of real injury or iniuria re better than it fits the usual notion of assault. Where a child suffering ante-natal injury in the womb is born alive, he or she is entitled to claim damages for personal injury,120 which is an infringement of his or her bodily integrity. In the modern law the right to bodily integrity has wide implications. Nobody for example can be forced to give a blood sample for testing121 or be forced to submit to compulsory medical treatment unless the the compulsion is authorised by statute.122 Again the right to care for one’s body implies a right to object to fluoridation of water supply.123 It may also underlie the right to be 115  H McKechnie, “Reparation”, in Encyclopaedia of the Laws of Scotland, vol 12 (1931). To a like effect: D M Walker, Delict (2nd edn, 1981), p 468; T B Smith, Short Commentary (1962), p 722. 116   K McK Norrie, “The Intentional Delicts” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2, 477 at p 483; he continues: “it is little to the point whether that interference is intentional or unintentional”. 117   Tullis v Glenday (1834) 13 S 698; Ewing v Earl of Mar (1851) 14 D 314, 330. 118  See eg SME Reissue “Medical Law” (2006) para 247 (M Earle and N R Whitty). 119   McKie v Orr 2002 Rep LR; 2002 GWD 7-246 [14 February 2002] (OH) at para 31 per Lord Emslie (affirmed sub nom McKie v Chief Constable of Strathclyde 2003 SC 217). Alleged instances included police intimately watching the pursuer as she prepared to leave the house; holding her at the bar of the police station unnecessarily; and intimate searches there. 120   Hamilton v Fife Health Board 1993 SC 369; McWilliams v Lord Advocate 1992 SLT 1045 (OH). 121   Whitehall v Whitehall 1958 SC 252. 122   M, Petitioner 2003 SLT 219 (OH) (judicial review: compulsory medical treatment of mental health patient under statute did not infringe ECHR, Art 8). On detention in psychiatric institutions, see Elspeth Reid, Chapter 4, Section 4.2.3(c) below. 123   McColl v Strathclyde Regional Council 1983 SC 225 (OH).



ov e rv i e w of r i ght s o f p e rs o n al i t y

169

fully informed when consenting to medical treatment.124 There are unresolved questions as to whether or how far the right to bodily integrity continues to apply to parts of the body separated from it.125 The right to bodily integrity is fortified not only by ECHR, Art 3126 but also Art 8 (right to private life)127 since “circumstances which do not meet the threshold test for inhuman and degrading treatment or punishment may nevertheless fall within the sope of respect for private life”.128 The right to personal security The common law delict of personal molestation, defined as conduct calculated to cause fear, alarm and distress129 (a modern replacement for lawburrows)130 and the new statutory delict of harassment131 protect a number of basic primary rights such as bodily integrity, physical liberty, dignity and the privacy right to seclusion.132 So for instance Hume’s Commentaries refer to “the injury of insult and fear of mischief, as in the case of attempt to ravish, or threatening letter, or challenge to fight”; or “of putting one in danger, as by malicious information of a crime”.133 Since the Scottish concept of real injury underlies assault, it must and should encompass the less grave delict of personal molestation.134 Molestation or harassment often carries with it the threat of future assaults and these delicts can therefore give horizontal effect to

  Moyes v Lothian Health Board 1990 SLT 444 (OH); Goorkani v Tayside Health Board 1991 SLT 94 (OH); see Graeme Laurie in Chapter 10 below. 125  Explored briefly in N R Whitty, “Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194 at pp 223–227. 126  This provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”: for Scottish cases, see, eg, Johnson v Secretary of State for the Home Office 2005 SLT 393 (extradition; risk of female circumcision); Napier v Scottish Ministers 2004 SLT 555 (OH) (degrading washing and toilet facilities in prison). 127   M, Petitioner 2003 SLT 219 (OH). 128   SME Reissue “Human Rights” (2002) para 118 (J Murdoch). 129  An indigenous doctrine developed in matrimonial interdict cases such as Murdoch v Murdoch 1973 SLT (Notes) 13 and Gribben v Gribben 1976 SLT 266. 130  Which is still competent and occasionally used: see “Lawburrows” in SME, vol 13 (1992) (G B Clark). 131  Protection from Harassment Act 1997, s 8, discussed by Hector MacQueen in Chapter 12, Section 12.6.2. 132   Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 261, citing McGlennan v McKinnon 1998 SCCR 285 at p 290. On the historical background, see Blackie, Chapter 2, Sections 2.2.2(g) and 2.2.6(b). 133  Hume, Commentaries, vol 2, p 121. 134  As submitted in argument in Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 258G. 124

170

r i ght s of p e rs o n al i t y

ECHR, Art 5, which protects the security of one’s person. It has been held in England that harassment may be an aggravation in a claim for invasion of privacy but is not a determinant of whether a right to privacy exists.135 3.4.3  The right to physical liberty The right to liberty, explicitly recognised by for example Stair136 and Hume137 is mainly protected by the delict of wrongous imprisonment or wrongful detention.138 It is constituted not only by imprisonment but also by restriction of one’s liberty to move freely eg by preventing one from leaving a particular place.139 “In that delict, the actionable loss or harm consists in both the lost liberty and the affront caused and consequently both damages and solatium are appropriate remedies”.140 This right is fully explained by Elspeth Reid in Chapter 4, Section 4.2.3 below. It is matched by ECHR, Art 5, which protects the human right to liberty.141 3.4.4  The right to honour and reputation (esteem of others) A person’s reputation is the esteem in which he is held by society. Infringing reputation (fama) was another of Ulpian’s triad of iniuriae.142 The right to honour and reputation is protected mainly by the delict of defamation but also by some other delicts such as

135   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch) at para 46 per Patten J. 136  Stair, Institutions I,9,4. Cf Von Bar, The Common European Law of Torts, vol 2, p 89. The right differs from the interest in autonomy or self-determination discussed in para 3.4.11 below. 137  Hume, Commentaries, vol 2, p 121 referring to the injury “of loss of liberty, as by wrongous imprisonment”. 138  See, eg, SME vol 15 (1996) “Obligations” paras 435–445 (K McK Norrie); sometimes called wrongful apprehension, wrongful arrest, or wrongful imprisonment: ibid, para 435. For the historical background up to the mid-19th century, see Blackie. Chapter 2, Sections 2.2.3 and 2.3.3. 139   Ibid, para 436: “It is not constituted by preventing the pursuer from entering a particular place, though that may amount to some other wrong.” 140   SME, vol 15, “Obligations” para 435 (Norrie). 141  Article 5(1) provides that “Everyone has the right to liberty and security of person” and may only be deprived of it in the cases specified in the article; see, eg, Dempsey v Parole Board for Scotland 2004 SLT 1107 (OH); McDonald v Dickson 2003 SLT 467 (J) (restrictive bail conditions); HM Advocate v Vervuren 2002 SLT 555 (J) (extradition). Article 5(5) expressly confers a right to compensation for contravention. 142  See n 7 above. For the historical background, see J Blackie, “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2, p 633.



ov e rv i e w of r i ght s o f p e rs o n al i t y

171

wrongful criminal proceedings, abuse of civil process, verbal injury, and wrongful detention.143 In defamation, falsity is a requirement but is presumed from the defamatory character of the statement. Truth is generally a defence. Intent to injure is theoretically required but is irrebuttably presumed from the false imputation against character so that liability is in practice strict.144 By contrast, in other delicts, intent and (in verbal injury) falsity must be averred and proved. In Kenneth Norrie’s authoritative analysis, verbal injury in the sense of malicious or injurious falsehood protects both patrimonial interests by striking at “slander of title, property or business”145 and nonpatrimonial interests by striking at non-defamatory communications holding a person out to “hatred, contempt or ridicule”.146 3.4.5  The right to dignity (in the narrow sense) (self-esteem; honour; and freedom from insult) As discussed above147 the meaning of “dignity” is problematic. The right to honour or dignity in the narrow sense (broadly speaking the right not to be insulted)148 is not protected in English law unless defamation or another tort is committed but is generally protected as such in civil law and mixed systems. In Scots law an unwitnessed insult may be actionable even though no third party has knowledge of it. Explaining this result in Mackay v McCankie149 Lord President 143  See, eg, Hume, Commentaries, vol 2, p 121, referring to the injury of the “loss of fame and respect, as in the slandering of a judge”; SME, vol 15 “Obligations” paras 446ff (K McK Norrie) (“interference with honour and reputation”) including 446–456 (wrongful criminal proceedings: malicious prosecution); 457– 469 (wrongful civil proceedings; abuse of process); 470–554 (defamation); and 555–573 (verbal injury). For wrongful detention, see Section 3.4.3 above. 144  The strictness of the liability is softened by certain defences including a new defence (called “Reynolds privilege”) safeguarding responsible journalism: see Norrie, Chapter 9. 145   On patrimonial verbal injury (malicious or injurious falsehood), see Argyllshire Weavers Ltd v A Macaulay (Tweeds) Ltd 1965 SLT 21 (OH); Barratt International Resorts Ltd v Barratt Owners’ Group (unreported) 20 December 2002 (OH), noted K McK Norrie, “Actions for Verbal Injury” (2003) 7 Edin LR 390; Westcrowns Contracting Services v Daylight Insulation Ltd [2005] CSOH 55. See also Norrie in Chapter 9 below. 146  See K McK Norrie, Chapter 9 below and Defamation and Related Actions Chapters 3 and 4. The reform of defamation is considered by Kenneth Norrie in Chapter 9 below. 147  See Section 3.2.5 above. 148   Cf Hume, Commentaries, vol 2, p 121 refers to the injury “of insult and fear of mischief, as in the case of attempt to ravish, or threatening letter, or challenge to fight”. 149   (1883) 10 R 537 at 539. See also Sinclair v Swanney (1929) 45 Sh Ct Rep 80.

172

r i ght s of p e rs o n al i t y

Inglis remarked: “our law differs from that of England, for our law says that a man may have damages for injury done to his feelings. The law of England repudiates that doctrine”. Lord Kilbrandon attributed the Scots rule to the actio iniuriarum: “In such a case the damage is done neither to the man’s patrimony nor to his reputation, which remain respectively undiminished and untarnished. The damage is done to his dignity, and is thus actionable under the old law”.150 The cross-border difference is greater in principle than in practice for the Scottish cases are few. The right to dignity or freedom from insult does, or at one time did, partially underlie some delicts protecting family relationships such as enticement and, until 1976, damages for adultery.151 In these cases, damages were awarded as solatium for injured feelings,152 or possibly to mark the wrong, and not to compensate for patrimonial loss. The same right also to some exent underlies the delicts of seduction153 still competent but virtually unknown in modern practice154 and entrapment into bigamous marriage.155 These show that the invasion of dignity may be by acts as well as by words. Possible other cases might include wrongful expulsion from a race-course paddock156 or expulsion from a voluntary association in breach of natural justice.157 Where however a rugby player was suspended by the national rugby union for abusing a referee, it was held that, without averments of patrimonial loss, the player could not claim damages in delict and the fact that he was prevented from taking part in rugby matches with affiliated clubs did not invade any legal right.158 150  Lord Kilbrandon, “The Law of Privacy in Scotland” (1971) 2 Cambrian LRev 31 at p 38. For the historical background, see Blackie, Chapter 2, especially Sections 2.2.6 and 2.3.4. 151  See Section 3.4.12 below. 152  Hume, Lectures, vol III, p 131; Bell, Principles (10th edn, 1899), para 2033. 153  See Blackie in Chapter 2 above; Linning v Hamilton (1748) Mor 13918. Hume, Lectures, vol III, p 132 saw seduction as a form of fraud. Norrie, “Intentional Delicts” p 513, n 292 says that analysing seduction this way avoids the difficulties that Roman–Dutch law perceived in recognising an iniuria when the victim consents. 154  There are several cases up to 1920 involving an employer seducing a young female domestic servant into sexual intercourse, eg Murray v Fraser 1916 SC 623; MacLeod v MacAskill 1920 SC 72. 155  Ie entrapment into a void marriage: E M Clive, Husband and Wife (4th edn, 1997), para 4.046, citing a line of cases from Clark v Fairweather (1727) Hermand 95 to Burke v Burke 1983 SLT 331 (OH). 156   Cf Blazquez v Lothians Racing Club (1889) 16 R 893 (damages laid at £5,000). 157  See, eg, Crocket v Tantallon Golf Club 2005 SLT 663 (OH) (judicial review); cf Boswell v Union Club of South Africa (Durban) 1985 (2) SA 162 (D). 158   Murdison v Scottish Football Union (1896) 23 R 449. Cf Gunstone v Scottish Women’s AAA 1987 SLT 611 (OH) (a non-patrimonial interest in status sufficient to render competent an action for decree of reduction of unconstitutional act).



ov e rv i e w of r i ght s o f p e rs o n al i t y

173

Various types of discrimination on grounds of sex, race, disability and the like are now struck at by specific UK statutes and by ECHR, Art 14. It has been argued in South Africa that religious beliefs and feelings are the object of personality rights.159 This could be very controversial in pluralistic Scottish society with its mixture of old and new religious or sectarian loyalties and prejudices but horizontal effect may yet require to be given to ECHR, Art 9, guaranteeing the right to manifest religious beliefs.160 3.4.6  The right to privacy (seclusion from intrusion) The right to privacy is special because its introduction into Scottish private law is compelled by ECHR, Art 8. Its various meanings are explored at Section 3.2.9 above. This Section (3.4.6) concerns seclusion from intrusion, the first one of the four privacy torts of the influential American law.161 The Scots law on seclusion from intrusion stems from common law delicts, or fields of delict, such as trespass, nuisance,162 personal molestation and injury in the sense of iniuria; from statute;163 from the analogy of criminal offences; and from the jurisprudence on ECHR, Art 8.164 The category is illustrated by cases involving various kinds of unreasonable surveillance, for example by the police;165 the defender’s surveillance of the pursuer in connection with a personal injury action;166 an employer’s covert surveillance of an employee as a check against fraud;167 eavesdropping on prisoners’ private conversations;168 opening prisoners’ correspondence;169   Neethling’s Law of Personality (2nd edn, 2005), pp 201–204.   Cf R (Shabina Begum) v Denbigh High School Governors [2006] UKHL 15 (banning of Islamic headscarf in school infringed ECHR, Art 9). 161  Prosser (1960) 48 California LRev 383 at p 389, quoted at Section 3.2.9 above. 162   Khorasandjian v Bush [1993] QB 727 (harassment by phone calls held actionable as nuisance) “explained” in Hunter v Canary Wharf Ltd [1997] AC 655 as concerned with invasion of privacy and not of an interest in land. Note, however, that in Scotland title to sue in nuisance is wider than in England. 163  Protection from Harassment Act 1997, s 8. 164  Eg Whiteside v UK (Application No 20357/92) 76-A DR 80 (1994) DR, cited in Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 261. 165   Robertson v Keith 1936 SC 29 (surveillance by police); Connor v HM Advocate 2002 SLT 671 (J), applying Friedl v Austria (1996) 21 EHRR 83 (police surveillance operation; people entering and leaving home of accused being detained and questioned). 166   Martin v McGuiness 2003 SLT 1424 (OH). 167   McGowan v Scottish Water [2005] IRLR 167 (surveillance, being proportionate and legitimate, held not to infringe ECHR, Art 8). 168   HM Advocate v Higgins 2006 SLT 946 (J) (two accused placed in adjacent police cells; officers posted to listen outside; held ECHR, Art 8 infringed). 169   R v HM Advocate [2002] UKPC D 3; 2003 SC (PC) 21 at para 120 per Lord Rodger (obiter). 159 160

174

r i ght s of p e rs o n al i t y

unauthorised tape recording of telephone calls;170 and “Peeping Tom” or voyeuristic activity.171 A photograph of a celebrity even in a public place may infringe ECHR, Art 8. In the English Campbell case172 the House of Lords held that an unauthorised photograph intended to capture a person in a public place engaged in a private activity (leaving Narcotics Anonymous) could and did infringe the right of privacy guaranteed by Art 8 (and was therefore actionable as a breach of confidence under English law) whereas a photograph of a general street scene, which happens to capture a person, would not be such an infringement. 3.4.7  The right to informational privacy (non-disclosure of private information) (a)  The Institutional background The right to informational privacy, which is infringed by the disclosure to the public or to third parties of embarrassing private facts, is the second of the four American privacy torts.173 It presents one of the most high-profile problems in the law of personality rights, namely, how best to develop, or perhaps to design and develop,174 a test of liability for invasion of informational privacy which would fit naturally into the Scots law of delict and at the same time give the right to privacy under ECHR, Art 8, horizontal effect in Scotland. Under Scots law, in defamation and verbal injury (so far as relating to “malicious falsehood”),175 falsity is a requirement of the cause of action and truth a defence.176 To be worth anything, however, a right of informational privacy must protect a person from the disclosure or dissemination of truthful information. Princess Caroline did sit in the garden holding hands with a friend.177 Naomi Campbell did

  Cf Henderson v HM Advocate 2005 SLT 429(J). See also Potter v Scottish Ministers [2007] CSOH 56; 2007 SLT 363 (OH) (embarrassing pre-recorded message attached to prisoners’ outgoing telephone calls). 171   Cf Raffaelli v Heatly 1949 JC 101 (breach of the peace). 172   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E). See also Peck v United Kingdom (2003) 36 EHRR 41; von Hannover v Germany (2005) 40 EHRR 1. 173  Prosser, (1960) 48 California LR 383 at p 389 quoted at Section 3.2.9 above. 174   Cf R Bagshaw, “Privacy and Tort Design” in K S Ziegler (ed), Human Rights and Private Law, Privacy as Autonomy (2007), p 79. 175  See Section 3.2.7 above. 176   For the historical background, see Blackie, Chapter 2, Sections 2.2.5 and 2.3.6. 177   von Hannover v Germany (2005) 40 EHRR 1. 170



ov e rv i e w of r i ght s o f p e rs o n al i t y

175

attend Narcotics Anonymous.178 In the 18th and 19th centuries it was thought that there were circumstances where “malicious truth” could be treated as an actionable verbal injury. These circumstances consisted of or included the following: • “public shouting” cases or convicium in the original narrow sense of Roman law, the reason being that the wrongdoer’s conduct had a tendency either to be or to provoke a breach of the peace;179 • “natural defect cases” where a party who through no fault of his own had the misfortune to suffer from a deformity, such as a hunchback, was cruelly and unjustifiably subjected to public ridicule or contempt;180 • “stale crime” cases where the existence of old and forgotten criminal offences of a convicted and punished offender who had been long rehabilitated in society, were maliciously resurrected and circulated;181 and • “repeated insult” cases where the victim was subjected to a campaign of vilification usually in a newspaper.182 All the foregoing cases concern factual, or purportedly factual, statements which may be either true or false.183 Their historical antecedents can be traced back to texts in Roman law and the ius

  Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E).  Hume, Lectures, vol III, p 156; Erskine, Principles (19th edn, 1895) (ed Rankine), p 103; J Guthrie Smith, The Law of Damages (2nd edn, 1889), p 241 founding directly on D.47,10,15,4; D.47,10,15,11; Glegg, Reparation (1st edn, 1892), p 103. 180  See next note. 181   On natural defect and stale crime cases, see Bayne, Institutions of the Criminal Law of Scotland (1st edn, 1730), pp 177–178 (quoted in Blackie, Chapter 2 above, n 310); Bankton, Institute I,10,31, citing D.47,10,18pr and Voet, Commentarii ad Pandectas 47,10,9; Erskine, Institute IV,4,80; Hume, Lectures, vol III, pp 139–140; J Borthwick, Law of Libel and Slander in Scotland (1826), p 183; Lord Trayner, Latin Maxims and Phrases (1894) sv “veritas convicii”. 182   Cunningham v Phillips (1868) 6 M 926 at 929 per Lord Ardmillan; Erskine, Institute IV,4,80 (8th edn, 1870), p 1218, n (a) by J Badenach Nicolson (ed), citing Sheriff v Wilson (1855) 17 D 528 (Fifeshire Advertiser); McLaren v Ritchie, The Scotsman, 8 July 1856, also reported in Glegg, Reparation (1st edn, 1895), Appendix; Davis v Miller (1855) 17 D 1050 (Witness); Drew v Mackenzie & Co (1862) 24 D 649 (Glasgow Gazette); Cunningham v Phillips (1868) 6 M 926 (Strathearn Herald). 183  They have to be distinguished from “figurative language cases”, that is to say cases of insults couched not in factual terms, but in figurative language of which neither truth nor falsity can be predicated. In such a case truth is not a defence simply because consideration of truth or falsity is out of place. See McLaren v Ritchie, The Scotsman, 8 July 1856 also reported by Glegg, Reparation (1st edn, 1895), Appendix; F T Cooper, The Law of Defamation and Verbal Injury (2nd edn, 1906) (ed J Oswald Dykes), p 215. 178

179

176

r i ght s of p e rs o n al i t y

commune on the availability of the defence of veritas to an actio iniuriarum. It was not clear in Roman law whether truth was such a defence. One text stated that truth was a defence where the alleged iniuria was that the defender had publicly disclosed the pursuer’s commission of a criminal offence.184 The matter was much debated in the ius commune where, according to James Gordley, the common opinion over several centuries was that generally truth was not a defence to an actio iniuriarum for disclosing true but embarrassing information unless the disclosure was in some sense in the public interest.185 This seems to have been the common opinion also of the writers on Scots law in the Institutional period.186 An oft-quoted statement of the law and its policy foundation is to be found in Erskine’s Institute, Book IV:187 “A verbal injury, when it is pointed against a private person, consists in the uttering of contumelious words, though they should have no tendency to blacken his moral character, sarcastical nick-names and epithets, or other such strokes of satire, are accounted injurious; and even twitting one with the deformity of his person or other natural defect, where it is accompanied by any ill-natured expression, that may place him in a ridiculous light : though it is agreed by all, that infirmities of that sort imply no real reproach, either in themselves, or in the just opinion of mankind.”188

This does not fall within the delict of defamation for two reasons: (i) the statement contains no imputation of immorality or bad character and so is not defamatory; and (ii) the references to the hunchback’s condition are true. Similar considerations apply to a statement resurrecting stale crimes committed long ago by an offender subsequently rehabilitated in society.189 (b)  Newton v Fleming (1846), verbal injury and the protection of     informational privacy In 1846 the question of whether the law on verbal injury could be invoked to protect informational privacy was fully considered by a Full Bench of the Court of Session in Newton v Fleming.190 In that case

 D.47,10,15,29.   Gordley, Foundations of Private Law, pp 218; 243–245. 186  See Bayne, Bankton, Erskine, Hume and Borthwick, cited at n 181 above. 187  Erskine, Institute IV,4,80. 188  Erskine, Institute IV,4,80 (approved in Newton v Fleming (1846) 8 D 677 at 697 per LJ-C Hope). 189   Bankton, Institute I,10,31; Friend v Skelton (1855) 17 D 548 at 551 per Lord Deas; Lord Trayner, Latin Maxims and Phrases (1894) sv “veritas convicii”. 190   Newton v Fleming (1846) 8 D 677; reversed sub nom Fleming v Newton (1848) 6 Bell 175. Discussed also by Blackie in Chapter 2 above, Section 2.3.6(b). 184 185



ov e rv i e w of r i ght s o f p e rs o n al i t y

177

an association of merchants (called the Scottish Mercantile Society) had been established for the purpose of printing and circulating among its members “a black list” of the entries in the Register of Protests in order to give information as to the names of persons of doubtful credit. In a Whole Court of 12 judges191 it was held by a majority of 8:4 that the acceptor of a dishonoured and protested bill of exchange could interdict the inclusion of his name in the list. As Blackie points out,192 in the Whole Court opinions two different lines of analysis of the grounds of action emerge, one based on invasion of privacy by dissemination of private information to a wider audience than it would naturally be known to; and second based on written defamation since publication was said to imply that the petitioner was not paying his debts. This decision was reversed by the House of Lords on a third ground, namely, that the Register of Protests was a public register. The House did not decide the general point on whether there were circumstances where truth did not justify verbal injury. That however was answered in the affirmative by the majority of the Whole Court. In the Court of Session, opinions for the majority were delivered by Lord Fullerton (who gave the leading opinion for the consulted judges), Lord Justice-Clerk Hope and Lord Moncreiff and for the minority by Lords Jeffrey (with whom Lord Mackenzie agreed), Murray and Cockburn. Speaking with the express concurrence of seven other judges including Lord President Boyle and Lord JusticeClerk Hope, Lord Fullerton said obiter:193 “I should hesitate to lay it down as law, that in all cases the publication of every circumstance in the private history of an individual, however acquired and however injurious to his interests or feelings, could be justified by the mere fact of its truth. I should rather think that, but for some legitimate interest held by the party publishing, the truth would not in all cases be a justification; and in many conceivable cases, it would be rather an aggravation of the injury.”

Lord Justice-Clerk Hope said:194 “That truth is in many or most of the cases answer to an action of damages is undoubted. . . . But the defence, ‘that the imputation is true’, is not, by the authorities, in all cases a justification, and I am not aware of any change which the introduction of trial by jury has made in the law.” 191  The Second Division and consulted judges. At that time the Whole Court consisted of 13 judges but in this case Lord Medwyn declined judging. 192   Chapter 2 at Section 2.3.6(b). 193   (1846) 8 D 677 at 684. 194   (1846) 8 D 677 at 697.

178

r i ght s of p e rs o n al i t y

He cited Scotland v Thomson195 and Lord Pitmilly in Dyce v Kerr196 adding:197 “In my opinion there is no doubt that it is settled law that in certain cases truth will not excuse. Such is plainly the well considered doctrine of Erskine in the Fourth Book.”198 Lord Moncreiff agreed with Lord Fullerton: “that there is no case here as to whether that which is true can ever be a libel. I doubt, with him, whether the mere fact of its being true, that a certain protest had been recorded against the complainer, would relieve the respondents even in that view – if there were room for taking it –from the effect of the assertion or innuendo of bankruptcy, or doubtful credit, to be derived from the whole publication But I apprehend that this is not at all the state of the case”.199

Among the minority judges, Lord Murray200 emphasised that the complainer had to establish a wrong and that “injury” here had a technical meaning of iniuria.201 Though in the minority Lord Murray took the view that if the complainer could show that the publication was either false, or malicious though not false, the Court would be entitled to interdict it202 and so accepted that truth was not always a defence to a malicious publication. Lord Cockburn asked rhetorically “Did any one ever hear of damages for unmalicious truth?” but took the view that there were cases where “malicious truth” was indeed actionable. He remarked:203 “At common law we can interdict nothing but a legal wrong. Now I am of opinion that the publication of truth without malice is not a legal wrong that a civil tribunal can either prevent or punish. The moment that this proposition, though it be as old as any in our law, is announced, cases will occur to every mind that will make it, at first sight, appear alarming. For there are many truths which ought certainly to be left unnoticed, and which could not be made public without horror and ruin to innocent people. . . . I am aware of the maxim, Veritas convicii non excusat. But it is only applicable to a case of convicium or libel – a term used in so bad a sense, that even a proof of the truth does not disprove an animus [in]juriandi.”

195   Scotlands v Thomson (1776) Mor 13934; Mor Appendix “Delinquency” No 3; Hailes 669. 196   Dyce v Kerr 9 July 1816 FC. 197   (1846) 8 D 677 at 698. 198  See Erskine, Institute IV,4,80, quoted in Section 3.4.7(a) above. 199   (1846) 8 D 677 at 703. 200   Ibid at 694, quoted in Section 3.2.2 above. 201   Citing Bankton, Institute I,10,3; Justinian, Institutes IV,4, De Iniuriis, quoted in Section 3.2.2 above. 202   (1846) 8 D 677 at 695. 203   Ibid at 707.



ov e rv i e w of r i ght s o f p e rs o n al i t y

179

Lord Jeffrey rested his judgment on two grounds namely first that it “is generally lawful to publish any true statements where the publication infers no malice, either actual or constructive”; and (second) the public register point.204 On the first ground he observed:205 “The truth alone, I take it, would have entitled the respondents to acquittal. It is so settled in England; and since the restoration [sic] among us of Jury trial for the redress of civil injuries, I do not think that it has ever been questioned in Scotland. [footnote:– It has been asked whether the publication of a man’s bodily infirmities, – disgusting perhaps, and degrading, – would be justified by an offer to prove their truth? In England, I fear, it would very clearly be so held; and though I should be glad to think it might be otherwise with us, if the publication was (as is assumed in the question) purely wanton and malicious, I have the greatest possible doubt whether any other rule could now be adopted. But such a case has obviously no analogy to that now before us] But I do not go into that.” [footnote in original]

In summary, the opinions of the Whole Court are remarkable for the fact that all the judges, except Lord Jeffrey (Lord Mackenzie concurring), considered that truth was not always a justification for a malicious publication. Even Lord Jeffrey thought that as a matter of legal policy truth should not justify a malicious publication of a natural person’s physical deformities but, though he wished otherwise, feared that contrary English precedent would be decisive in Scots law. The other judges did not refer to the English law on this aspect of the case. Probably because of the final decision of the House of Lords reversing the Whole Court’s judgment, Scots lawyers have (perhaps understandably) overlooked the potential significance of this case for the development of a doctrine of informational privacy. Nevertheless the fact that the reversal by the House of Lords of the Whole Court judgment was on a different ground should mean that the unreversed part of that judgment can still be relied on for a principle. The case also shows that the true category of Scots law protecting informational privacy is the delict of real or verbal injury. Lord Murray’s extremely important dictum that injury according to Stair, Bankton, Erskine, and other Scots writers is a delict intentionally committed whereby a person’s fame, dignity or reputation is hurt206 and Lord Justice-Clerk Hope’s reliance on the treatment of the delict of injury in Erskine’s

  (1846) 8 D 677 at 687.   Ibid at 688. 206   Ibid at 694. 204 205

180

r i ght s of p e rs o n al i t y

Institute207 suffice to show that the protection of informational privacy still rested on that delict in 1846 three decades after the introduction of the Jury Court is supposed to have killed it off. One cannot simply ignore the history of the subject and expect to build a modern and internally coherent law on informational privacy. (c)  The change to the theory that falsity always a requirement of     defamation and verbal injury The “modern” theory that falsity is always a requirement in actions of defamation or of verbal injury was affirmed in in 1859 in Mackellar v Duke of Sutherland for defamation208 and in 1893 in Paterson v Welch209 for verbal injury. In the former case, Lord Justice-Clerk Inglis held that truth had been invariably a defence to an action for defamation (slander) for 40 years or since the introduction of jury trial in 1815. He thought the notion that truth was a defence was a hang-over from the Commissary Court process of scandal which was partly criminal concluding for a fine payable to the procurator fiscal and partly civil concluding for solatium and damages for patrimonial loss. He approved the following dictum of Lord Auchinleck in Hamilton v Rutherford (1771): “The maxim veritas [convicii non excusat] has been sucked in with our nurses’ milk, yet now it seems erroneous as generally understood. The error has arisen from not distinguishing the criminal action from the civil. When a man comes to sue for damages – in which case only this Court has jurisdiction – the maxim does not apply. Here the defenders offer to prove their assertion to be true, and consequently no damages.”210

He referred to the division of the opinion within the Court down to Dyce v Kerr 1816211 and held that thereafter it became the settled practice of the court that veritas was always a relevant defence to an action for defamation.

207   (1846) 8 D 677 at 697, citing Erskine, Institute IV,4,80, quoted in Section 3.4.7(a) above. 208   Mackellar v Duke of Sutherland (1859) 21 D 222 (in action of damages for slander allegedly contained in a judicial pleading, held that veritas convicii excusat is a good defence); Steele v Scottish Daily Record 1970 SLT 53. 209   (1893) 20 R 744; Steele v Scottish Daily Record 1970 SLT 53. 210  Mor 13924; Hailes 716. 211   Dyce v Kerr 9 July 1816 FC; the physician of a public infirmary was charged with incapacity and maltreatment of the patients, and was exonerated by a majority of the directors; whereupon certain directors made statements in the public newspapers in support of the charges and injurious to his character. Held that the defenders were not entitled to prove that they were true.



ov e rv i e w of r i ght s o f p e rs o n al i t y

181

In Mackellar v Duke of Sutherland however no mention was made of the opinions of the Whole Court in Newton v Fleming to the effect that veritas neither was nor should be always a defence. Moreover, while criminal cases provide one strand of authority supporting the view that truth is not a defence to a civil action for verbal injury, the classic cases on “natural defect” and “stale crime” strongly support the view that truth should not always be a defence. The matter has never been fully considered by the Court of Session. In 1893 in the leading case of Paterson v Welch212 the First Division held that false information was a requirement of an action for non-defamatory verbal injury. It followed that truth was a defence both in defamation and verbal injury and this was affirmed in the leading modern case of Steele v Scottish Daily Record in 1970,213 which was actually a case of “false light” (verbal injury where one might expect averment and proof of falsity to be required) and therefore unrepresentative of cases involving invasion of informational privacy. But again it cannot be said that the issues of legal policy were properly argued. It is thought that in the domain of informational privacy, the flexibility which the English courts possess through their jurisdiction in Equity can, in a civilian system, or in a mixed system like Scots law which rejects the dualism of Law and Equity, best be attained by the general principles of real and verbal injury (iniuria) in relation to non-patrimonial personality rights and of fault in relation to patrimonial loss. (d)  An unsuccessful Civilian rearguard action: the rise and fall of     convicium and of the doctrine that “veritas convicii non excusat” Erskine’s humane principle was not surrendered by some Scottish writers and judges without a fight. As indicated elsewhere,214 attempts were made by Scottish writers including Sheriff A T Glegg and Professor D M Walker, authors of standard works on delict, to fashion a discrete category of verbal injury, which they (misleadingly) called convicium, in which falsity was not an essential requirement of the cause of action; and truth was not a defence (veritas convicii non excusat). This special doctrine of convicium struck at the dissemination of true information holding the pursuer up to hatred, ridicule or contempt.215 Some authors including D Oswald Dykes (the editor of Cooper on Defamation),216 J Lindsay Duncan (editor of the 3rd and 4th editions of Glegg of 1939 and 1955 respectively)   (1893) 20 R 744.   1970 SLT 53. 214  See Section 3.2.6 above. 215   Ibid. 216   F T Cooper, The Law of Defamation and Verbal Injury (2nd edn, 1906) (ed J Oswald Dykes), p 215. 212 213

182

r i ght s of p e rs o n al i t y

and Kenneth McK Norrie in writings between 1985 and 1996217 did not support or criticised the convicium analysis of Glegg and Walker. The critics contended that there were only two categories of iniuria verbis namely defamation and verbal injury. On a careful analysis of the decided cases, Norrie concluded that convicium as a third category was merely a commentator’s construct which no longer existed (if it ever had) in Scots law properly understood.218 Norrie’s conclusion was buttressed by Blackie’s historical article on the verbal delicts which showed that some important 19th-century verbal injury cases, which were thought to have dispensed with a requirement to prove falsity,219 had in fact required falsity to be proved.220 Norrie’s analysis, which clarifies much that was previously obscure, makes the following main points.221 First, in both defamation and verbal injury (including public hatred, ridicule, and contempt) the truth of the representation is always a justification. Second, in defamation, truth is presumed; in verbal injury, truth must be averred and proved by the pursuer. Third, in defamation, intention to harm (malice) is irrebuttably presumed and liability is therefore de facto strict. In verbal injury, intention to harm must be averred and proved. In other words a pursuer who founds on statements of verbal injury must show that they were made by the defender with deliberate intent to injure him or at least with such reckless disregard of injury as to yield the inference of such intent.222 The Scottish category of convicium (which was a misnomer) is now said to be defunct223 and ignored by journalists.224 But it is consonant with ECHR, Art 8. In more recent writings Kenneth Norrie (with Jonathan Burchell) takes a different view of the

  K McK Norrie, “Hurts to Character, Honour and Reputation” 1984 JR 163; K McK Norrie, Defamation and Related Actions in Scots Law (1995), pp 34–43; K McK Norrie, SME “Obligations”, vol 15 (1996), para 558. 218  Norrie, Defamation, p 36. 219  Especially a trilogy of “public hatred cases” against newspapers in which falsity was not required in the jury issue: Sheriff v Wilson (1855) 17 D 528 (Fifeshire Advertiser); McLaren v Ritchie, reported in The Scotsman, 8 July 1856 and in Glegg, Reparation (1st edn, 1895), Appendix; Cunningham v Phillips (1868) 6 M 926 (Strathearn Herald). 220   Blackie, “Defamation” at pp 695–698. 221  As summarised by Blackie, “Defamation”, p 693. 222   Paterson v Welch (1893) 20 R 744 at 749 per LP Robertson; Lamond v Daily Record 1923 SLT 512; Steele v Scottish Daily Record 1970 SLT 53; Walker Delict (2nd edn, 1981), pp 732–734. 223   SME vol 15 “Obligations” para 558 headed “The non-existence of convicium” (K McK Norrie). 224  A J Bonnington, R McInnes and B McKain Scots law for journalists (7th edn, 2000), para 20.03. 217



ov e rv i e w of r i ght s o f p e rs o n al i t y

183

policy.225 A rule which allows private information about the existence, nature and extent of a natural defect or deformity to be published with impunity seems problematic in policy terms. There is an illogicality at the heart of such a rule because as Lord Kilbrandon observed, since outrage rather than false accusation lies at the root of convicium, veritas should not be a defence.226 The ECHR, Art 8, requires the Scottish courts to develop the common law so as to protect informational privacy. One option might be for the Scottish courts to affirm the so-called “action of convicium” which was described by David Walker as follows:227 “an action of convicium lies where the defender has: (a) maliciously, (b) communicated of and concerning the pursue an idea, which may be either true or false (the falsity not being an essential of the action and the truth no defence), (c) calculated to bring him into public hatred, contempt or ridicule, and has thereby caused him loss, injury or damage”.

While this test would surmount the falsity hurdle, the requirements of “public hatred, contempt or ridicule”228 and possibly that of malice229 appear to be too stringent to satisfy the tests in the (Strasbourg and English) case law on Art 8. Moreover its structure does not provide for the balancing of interests required by the jurisprudence interpreting Art 8. (e)  Informational privacy and breach of confidence Until the recognition of a separate wrong of misuse of private information, there was a transitional stage in the development of

225   J Burchell and K McK Norrie, “Impairment of Reputation, Dignity and Privacy” in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) 545 at pp 570–574. See also Kenneth Norrie in Chapter 9 below. 226  Lord Kilbrandon, “The Law of Privacy in Scotland” (1971) 2 Cambrian LRev 31 at p 39. See also W J Stewart, Reparation (2000), para 8.10: “It is clear from the cases relied upon by Glegg and Professor Walker, . . . that Scottish courts, whether influenced by the Digest or Church tradition have considered it wrong to hound a person maliciously for no good purpose”, citing Cunningham v Phillips (1868) 6 M 926 at 928. 227  Walker, Delict (2nd edn), p 738. 228  See, eg, Steele v Scottish Daily Record 1970 SLT 53. 229  There is some authority that in an action for verbal injury protecting informational privacy, malice is not a requirement: see Newton v Fleming (1846) 8 D 677 at 703–704 per LJ-C Hope (reversed on another point sub nom Fleming v Newton (1848) 6 Bell 175) but that is inconsistent with the requirement of intent to injure required by Steele v Scottish Daily Record 1970 SLT 53 in cases of verbal injury. See Barratt International Resorts Ltd v Barratt Owners’ Group (unreported) 20 December 2002 (OH).

184

r i ght s of p e rs o n al i t y

informational privacy during which the main English vehicle for giving effect to ECHR, Art 8, was by extending the equitable wrong of breach of confidence to encompass disclosure of information which is “private” but not necessarily “confidential” in either the natural sense or the original legal meaning of the term. Breach of confidence in Scots law raises special difficulties. In 1984 the Scottish Law Commission said that “outside the sphere of contractual obligations, it is far from clear to what extent, if at all, Scots law protects confidential information from unauthorised use or disclosure”.230 Since then a thin trickle of Scottish cases of uncertain juridical provenance and dominated by English case law contrasts with a flood of English cases having originally a juridical basis in Equity (technically incompatible with the unitary Scots law) some of which have morphed into a branch of the law of torts while others remain located in Equity. Copying English law on this matter is like trying to hit a fast moving target, and the older Scots cases copying the then English law are out-of-date and yet cannot be ignored.231 So it is necessary to relate the Scottish cases to the phases through which the English law developed. The modern English law on breach of confidence developed in the following three phases, namely, (i) from the formulation of an influential test of liability in Coco v Clark in 1969232 to the Spycatcher case in 1989;233 (ii) from Lord Goff’s speech in Spycatcher (dispensing with the need for a prior confidential relationship) to the Campbell case234 in 2004; and (iii) from the decision in Campbell, subsequently construed as creating a new tort (called variously “misuse of private information” or “breach of informational privacy”) existing separately from traditional Equity-based liability for breach of confidence, to the present time. Let us consider these in their sequence.  Scottish Law Commission, Report on Breach of Confidence (Scot Law Com No 90, 1984), para 3.1. They continued: “Outside the sphere of contractual obligations the law, particularly the law of delict, is in an unsatisfactory state, and it is far from clear to what extent it is susceptible of further development. No doubt it ought to be possible to fashion out of the existing rules of Scots law an appropriate response to some of the problems which may arise, but this would occur only if there were a substantial flow of cases for decision. This is not happening and is unlikely to happen in a small jurisdiction”. The report recommended legislation but their draft Bill was never introduced. 231  The controversial questions of how far Scots law does and should follow the example of English law are explored by other authors in this volume, notably by Elspeth Reid in Chapter 4 and Hector MacQueen in Chapter 12. For the historical background, see John Blackie, Chapter 2, Section 2.3.6. 232   Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 per Megarry J. The case involved disclosure of trade secrets. 233   A-G v Guardian Newspapers (No 2) [1990] 1 AC 109. 234   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E). 230



ov e rv i e w of r i ght s o f p e rs o n al i t y

185

From Coco v Clark (1969) to Spycatcher (1989). The modern law is usually regarded as beginning with the classic judgment of Megarry J in Coco v Clark235 which established a three-limbed test of breach of confidence namely that the information concerned must: (1) possess the necessary quality of confidence;236 (2) have been disclosed in circumstances importing an obligation of confidence; and (3) have been used without authorisation, to the detriment of the claimant. The position of a third party who received confidential information from a confidant in breach of the latter’s duty to the confider was “a vexed issue”.237 If the third party knew of the breach on receiving the information, his “conscience was bound” and he was liable in Equity to the confider. The position of a third party who did not know of the breach was unclear.238 It is also unclear how far these rules applied in Scots law.239 This was the background to the Lord Advocate v The Scotsman Publications Ltd240 a petition for interdict of the publication by a newspaper of the memoirs of a retired military intelligence (MI6) officer, on the ground of breach of confidence. The Lord Ordinary (Coulsfield) observed that there had been “no clear recognition in Scots law of a right to protect confidentiality effective against third parties who have come into possession of the information innocently”; “that the conceptual basis of the English right does not fit easily into the framework of Scots law”; and that so far as he could judge “the English right does appear to be a species of equitable right in a more technical sense than merely one derived from considerations of fairness . . .”.241 Importantly, Lord Coulsfield   Coco v A N Clark (Engineers) Ltd [1969] RPC 41.  In Douglas v Hello! Ltd [2005] EWCA Civ 595; [2005] 4 All ER 128, per Lord Phillips MR: “It seems to us that information will be confidential if it is available to one person (or a group of people) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should become available to others.” 237  P D Finn, Fiduciary Obligations (1977), pp 161–162. 238  Alternatively the third party might be liable on various grounds eg in unjust(ified) enrichment subject to a defence of change of position: ibid, citing G H Jones, “Restitution of Benefits Obtained in Breach of Another’s Confidence” (1970) 86 LQR 463. 239   Cf Levin v Caledonian Produce (Holdings) Ltd 1975 SLT (Notes) 69 at 70. 240   1989 SC (HL) 122. 241   Ibid at 134. He continued: “The petitioner’s argument tended to pass over the question whether any such right was in principle admissible in Scots law and to rely on public policy, especially in the context of government information, and there 235

236

186

r i ght s of p e rs o n al i t y

was not prepared to affirm that Scots law afforded no protection to confidential commercial information for he remarked that “The legal basis of protection may not be identical to that afforded by English law. But I would hesitate to say that there is no means by which Scots law can arrive at an equivalent result”.242 On appeal, the Second Division held that persons to whom a duty of confidence was owed would have a right to protect confidentiality against third parties who received information with the knowledge that it had been originally communicated in confidence, even in cases where no right of contract or property was involved. In the Second Division and the House of Lords there were some obiter dicta that the law of confidence in Scotland was the same as in England “and could not well be different”.243 Lord Justice-Clerk Ross observed:244 “No problem arises where the issue arises between the person who is under the duty of confidence and the person to whom the duty of confidence is owed. The problem arises where the confidential information has been communicated to a third party who knows that the information is confidential. In England the jurisdiction of the court is based not so much on property or on contract as on a duty of good faith. (Fraser v Evans [1969] 1 QB 349). The view appears to be that it: – “affects the conscience of the person who receives the information with knowledge that it has originally been communicated in confidence” (per Sir Nicolas Browne-Wilkinson VC in Att Gen v Guardian Newspapers [1987] 1 WLR 1248 at p 1265). In England, accordingly, it arises from the application of equity”.

Expressly disapproving Lord Coulsfield’s doubts, the Lord JusticeClerk went on to make the remark (which was highly problematic, unless the remark is self-fulfilling) that: “The courts in Scotland administer an equitable as well as a common law jurisdiction”.245 This was meant to justify direct application in Scotland of the English Equity-based approach under which “the court in the exercise

was little direct answer to the respondents’ fundamental attack on the possibility of a right against third parties arising at all in Scots law. There are, I think, substantial difficulties in the way of accepting that a right to protect confidential information effective against innocent third parties exists in Scots law.” 242   1989 SC (HL) 122 at 134. 243   William Morton & Co v Muir Bros & Co 1907 SC 1211 at 1224 per Lord McLaren, quoted and applied in 1989 SC (HL) 122 at 142–143 per Lord J-C Ross. 244  At 141. 245  The subject is too large to be explored here but many of the points are made and referenced in the following paper: see N R Whitty, “Borrowing from English Equity and Minority Shareholders’ Actions” in E Reid and D L Carey Miller (eds), A Mixed Legal System in Transition (2005) 100.



ov e rv i e w of r i ght s o f p e rs o n al i t y

187

of its equitable jurisdiction will restrain a breach of confidence independently of any right at law”.246 Since such remarks tend to subvert the unitary character of Scots civil law, they cannot be supported. They are an example of a genre identified by the late Peter Birks, who wrote that the absence of the Common Law/Equity dualism in Scots law should constitute a very important advantage over English law but that “some of this natural advantage has been thrown away by rather uncritical borrowing of some English equitable techniques and vocabulary”.247 The other judges did not go quite so far. In the House of Lords, while Lord Keith approved as “undoubtedly correct” the Second Division’s conclusion that Scots law in this field was the same or “the same in substance” as the English law, he did concede that “the juridical basis may differ to some extent in the two jurisdictions”248 but unfortunately did not elaborate. From the Spycatcher case (1989) to Campbell v MGN (2004). A second, intermediate phase began with the partial reformulation of the Coco test in the “Spycatcher” case (1990) by Lord Goff who said that “a duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others”.249 It “was well settled that a duty of confidence may arise in equity” independently of any prior transaction or relationship as for example in “certain circumstances, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place and is then picked up by a passer-by”.250 This together with certain limiting principles became “firmly established’ in English law.251

246  This quotation (at 143) is taken from Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302 at 322 per Ungoed-Thomas J. No attempt was made to unpack the Equity packaging so as to couch the rules in terms known to Scots law. 247  P Birks, “Restitution – A View of the Scots Law” (1985) 38 CLP 57 at p 61. He returned to this theme several times. 248   1989 SC (HL) 122 at 164. The House of Lords (at 164 per Lord Keith) expressly refrained from examining the grounds of the Lord Ordinary’s opinion. 249   Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 281. 250   Ibid. 251   Campbell v MGN Ltd [2004] UKHL 22 at para 48; [2004] 2 AC 457 per Lord Hoffmann.

188

r i ght s of p e rs o n al i t y

In 1999 however in the Scottish Outer House case of Quilty v Windsor,252 involving the unauthorised disclosure of medical records to third parties, Lord Kingarth accepted that the Scotsman Publications case supported the proposition “that a third party would have an obligation of confidence in relation to documents which he knew were originally communicated in confidence”.253 He doubted, however, whether Lord Goff’s broader approach was consistent with the Scots law on confidentiality and whether the Scottish delict of breach of confidence had been, or should be, stretched to cover that type of case. He thought that such a development “would appear to rest on and take its force from different underlying principles, being based apparently on an obligation of conscience or an equitable right of property”. The pursuer would require to aver clearly that the first defender “knew that the documents had been transmitted in confidence” and “that the circumstances of the first defender obtaining the documents were such that he knew that they were communicated to him in breach of an obligation of confidence”.254 From Campbell v MGN (2004) to the present. Lord Kingarth’s proposition in Quilty v Windsor255 that Lord Goff’s dispensation with the need for a prior confidential relationship rested on Equity was correct when made but was overtaken by the commencement on 2 October 2000 of the Human Rights Act 1998.256 Under s 6 of that Act, the provisions of ECHR, Art 8, became the primary driving force in England and Wales compelling the courts to accept “the privacy of personal information as something worthy of protection in its own right”.257 The cause of action ceased to be based upon a duty of good faith applicable to confidential information but focused instead upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.258 This driving force must in principle apply equally to Scots law except

  1999 SLT 346 (OH) at 356.   Ibid. 254   Ibid. This seems to apply the first two limbs of the Coco test. 255   Ibid (opinion delivered on 14 July 1998). 256   On its commencement on 2 October 2000, Human Rights Act 1998, s 6, which makes it unlawful for the United Kingdom courts to act in a way which is incompatible with the rights and fundamental freedoms set out in the ECHR, including Art 8 on the right to respect for privacy. 257   Campbell v MGN Ltd [2004] UKHL 22 at para 46, [2004] 2 AC 457 per Lord Hoffmann. 258   Ibid. 252

253



ov e rv i e w of r i ght s o f p e rs o n al i t y

189

that, as Dr Murray Earle and I have argued elsewhere,259 in Scots law (following Lord Kingarth’s obiter dicta in Quilty v Windsor260) the cause of action in a question with a third party is probably not breach of confidence. We submitted that the most appropriate cause of action in Scots law is the action of solatium for affront (actio iniuriarum) arising from the unauthorised public disclosure of private information. In the leading Campbell case in 2004261 certain changes were made to the Coco test at least in its application to personal and private information as distinct from commercial or State secrets. The first limb of the Coco test – the need for information to have the necessary quality of confidence – was replaced by a test which asked whether the information was private and whether the claimant had “a reasonable expectation of privacy” in respect of it. If yes, the information was deemed confidential.262 This demanded “a detailed examination of all the circumstances on a case by case basis”.263 The second limb of the Coco test – disclosure in circumstances importing a duty of confidence – was also abrogated by the Campbell case in respect of private and personal information. In particular there is now no need to establish a pre-existing confidential relationship. If information which is private is disclosed, ECHR, Art 8, applies and an obligation of confidence is imposed. In Campbell, the House of Lords agreed “that the knowledge, actual or imputed, that information is private will normally impose on anyone publishing that information the duty to justify what, in the absence of justification, will be a wrongful invasion of privacy”.264 (f)  The fragmentation of breach of confidence into misuse of    private information and breach of commercial confidence There has long been opposition to applying breach of confidence to cases of invasion of privacy, one reason being that some writers opposed the introduction of a doctrine protecting privacy altogether.265 This  M Earle and N R Whitty, SME Reissue “Medical Law” (2006) para 302.   1999 SLT 346 (OH) at 356. 261   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E). 262  Whether or how far this test is reconcilable with von Hannover v Germany (2005) 40 EHRR 1 is not free from doubt. 263   Browne v Associated Newspapers Ltd [2007] EWCA 295; [2007] 3 WLR 289 at 301 per Sir Anthony Clarke MR. 264   Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; [2006] QB 125 (CA) at para 82 per Lord Phillips. 265  R Wacks ‘The Poverty of “Privacy”’ (1980) 96 LQR 73 reprinted in R Wacks, Law, Morality and the Private Domain (2000), Chapter 7. See also R Wacks, Personal Information, Privacy and the Law (1989), pp 132−134. 259

260

190

r i ght s of p e rs o n al i t y

motive became a lost cause because of ECHR, Art 8. Nevertheless the argument that it is impolitic to use breach of confidence to protect interests in informational privacy is now widely recognised as valid.266 There are important differences between confidentiality and informational privacy suggesting that each interest requires its own dedicated cause of action. So for instance Jonathan Morgan contends that these “are radically different qualities, and in particular, much private information is not confidential. Accordingly, the action for breach of confidence (even as expanded) cannot protect the whole sphere of privacy. The root of the distinction is that information in the public domain cannot, of course, be confidential, but it may properly attract protection from a personality-based law of privacy.”267 Then there is the related question – peculiar to the English family of legal systems – whether invasion of privacy should be a Common Law tort distinct from Equity-based breach of confidence. An affirmative answer was given by the New Zealand Court of Appeal in Hosking v Runting268 where Tipping J said: “it is more jurisprudentially straightforward and easier of legal analysis to recognise that confidence and privacy, while capable of overlapping, are essentially different concepts. Breach of confidence, being an equitable concept is conscience-based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values. While it may be possible to achieve the same substantive result by developing the equitable cause of action, I consider it legally preferable and better for society’s understanding of what the Courts are doing to achieve the appropriate substantive outcome under a selfcontained and stand alone common law cause of action to be known as invasion of privacy”.

What of the constitutional objection that the House of Lords in the Wainwright case disclaimed the power to create a new high-level

266  So, eg, A Schreiber, “Confidence crisis, privacy phobia: why invasion of privacy should be independently recognized in English law” [2006] IPQ 161 advances the following seven arguments for recognising a tort of invasion of privacy separate from breach of confidence: “[1] breach of confidence is jurisprudentially inappropriate to protect the right to privacy; [2] privacy is quasi-constitutional, whereas confidence is normal common law; [3] applying confidence to protect privacy has resulted in the distortion of the action in breach of confidence; [4] confidence is best applied to commercial information, and privacy is best suited to personal information; [5] confidence may be inadequate in protecting privacy at common law; [6] confidence is inadequate to protect privacy as required under ECHR and HRA; [and 7] for socio-educational reasons privacy should be independently protected.” 267   [2003] CLJ 444 at pp 452, 453. 268   [2005] 1 NZLRep 1.



ov e rv i e w of r i ght s o f p e rs o n al i t y

191

tort of invasion of privacy?269 One answer mooted is that while the constitutional objection would indeed apply to a high-level, wideranging tort of invasion of privacy encompassing all four of the American privacy torts, the same objection would not apply to a medium-level tort of misuse of private information which represents only one of those four.270 So a “tort” of misuse of private information has broken away from the traditional equitable wrong of breach of commercial confidence and has developed a separate regime and a rationale of its own. This development amply vindicates the cautious reservations of Lord Coulsfield and Lord Kingarth271 concerning the use of breach of confidence as a remedy against innocent third parties in cases where there was no prior confidential relationship. (g)  Trade secrets doctrine and the future of commercial confidence The traditional wrong/delict of breach of commercial confidence, shorn of its role of protecting the right to informational privacy, appears to fall outside the domain of personality rights and so is henceforward of only indirect interest to this paper. Some commentators believe that liability continues to rest on the Coco test272 but in an important article Hazel Carty argues that “the Coco test fails to reflect the fact that both private and public merit shape the action for breach of commercial confidence and that it is secrets in general (not necessarily attached to a confidential relationship) which are per se being protected”.273 She suggests that to reflect better the case law and rationale, the Coco test should be replaced by the following formulatiom: “Commercial information of value which has been kept sufficiently secret is protectable by its originator for as long as it remains secret. It will be protected against a defendant who through unconscionable means has acquired, used or disclosed it without consent”.274 I revert to this at Section 3.4.9 below.

  Wainright v Home Office [2003] UKHL 53; [2004] 2 AC 406 HL(E).  T Aplin, “The Future Of Breach of Confidence And The Protection Of Privacy” (2007) 7 Oxford University Commonwealth Law Journal 137 at pp 164–166; A Schreiber, “Confidence crisis, privacy phobia: why invasion of privacy should be independently recognized in English law” [2006] IPQ 161. 271  See respectively nn 241, 242 and 252–254 above. 272  T Aplin, (2007) 7 Oxford University Commonwealth Law Journal 137; idem, “Commercial Confidences After the Human Rights Act 2007” [2007] EIPR 411 at p 415. 273  H Carty, “An analysis of the modern action for breach of commercial confidence: when is protection merited?” [2008] IPQ 416 at pp 442–443. 274   Ibid at p 443. 269 270

192

r i ght s of p e rs o n al i t y

(h)  Developing the test of liability for invasion of informational     privacy in Scots law (i)  Sources  It is thought that the main sources of the test of liability for invasion of informational privacy in Scots law differ according to the provenance of its different elements. So for example in order to embrocate the test into the structure of the Scots law of delict, the elements of the test mentioned at heads (ii), (v) and (vi) below should follow the traditional Scottish sources on the delict of real or verbal injury (actio iniuriarum) together with comparative sources (especially South African case law since the 1950s) on the re-vitalised actio iniuriarum which can assist greatly in modernising those elements. On the other hand the important threshold test and balancing test of liability do and should depend on English and other European case law construing Arts 8 and 10 of ECHR: see heads (iii) and (iv) below. (ii)  Infringement of privacy as verbal or real injury (iniuria) An infringement of the right of privacy by the wrongful disclosure of private information to the public or to third parties is historically a form of the delict of real and verbal injury (iniuria). It has been held in relation to assythment that a common law delict cannot fall into desuetude.275 If that is true of assythment, it is a fortiori true of the delict of real and verbal injury. Verbal injury is self-explanatory. A common example of real injury is the taking and publication of unauthorised photographs. Any general rules applicable to real or verbal injury (eg the need for intent to injure as the mental element; the competence of an award of solatium as a remedy) should apply unless there is good reason to the contrary. (iii)  The threshold test  The defender must have disclosed “private” information, whether verbal or pictorial, to the public or to third parties. For this purpose information is private if at the relevant times the pursuer had “a reasonable expectation of privacy” in respect of the information.276 The requirement of reasonableness is objective and excludes the unduly sensitive from protection. A more stringent test based on that in the American Restatement277 – to the effect that disclosure would be highly offensive to a reasonable person of ordinary sensibilities (if placed in the same position as   McKendrick v Sinclair 1972 SC (HL) 25 at 53–54 per Lord Reid.   Campbell v MGN Ltd [2004] UKHL 22 at para 21 per Lord Nicholls; at para 84 per Lord Hope; at para 134 per Baroness Hale. 277   Restatement (Second) Torts (1977), §652D. 275

276



ov e rv i e w of r i ght s o f p e rs o n al i t y

193

the pursuer)278 – is accepted by some Common law, Commonwealth courts279 and, at least for circumstances where it was not obvious that the information was private, was approved by some judges in the House of Lords in the Campbell case,280 though not by others.281 Similarly under the South African law282 the right to privacy “comes into play whenever persons are able to decide what they wish to disclose to the public and have a reasonable expectation that such a decision will be respected”.283 (iv)  Wrongfulness (the balancing test)  If the threshold test is satisfied so that ECHR, Art 8 applies, it is then for consideration whether in all the circumstances the interest of the pursuer in the private information must yield to the right to freedom of expression conferred on the defender by ECHR, Art 10. The very important cases illustrating the operation of the test are discussed fully in Chapters 4 and 12 of this volume.284 (v)  Fault (animus iniuriandi: intent to injure)  It seems clear that the disclosure must have been made by the defender with intent to injure the pursuer.285 Intent to injure286 does not require malicious motive (spite) or indeed any motive.287 So for instance an intentional 278   “The mind to be examined is that, not of the reader in general, but of the person who is affected by the publicity”: Campbell v MGN Ltd [2004] UKHL 22 at para 99 per Lord Hope. 279  Eg P v D [2000] 2 NZLR 591; Hosking v Runting [2004] NZCA 34; Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at para 42 per Gleeson CJ. 280   [2004] UKHL 22 at paras 92 and 96 per Lord Hope and at para 166 per Lord Carswell. 281  Lord Nicholls ibid at para 22 pointed out that the “highly offensive” phrase is suggestive of a stricter test of private information than “reasonable expectation of privacy”. 282  Which is not dependent on a droit de l’image. 283   J C van der Walt and J R Midgley, Principles of Delict (3rd edn, 2005), para 81. 284  See Elspeth Reid in Chapter 4, Section 4.5; Hector MacQueen in Chapter 12, Section 12.3. 285   Following Scottish precedents in verbal injury cases, eg Steele v Scottish Daily Record 1970 SLT 53; see also the issues allowed in the 19th-century invasion of privacy cases of Sheriff v Wilson (1855) 17 D 528 and Cunningham v Phillips (1868) 6 M 926 which required intent to injure; and South African cases of infringement of privacy: eg Jansen van Vuuren v Kruger 1993 4 SA 842 at 849 per Harms AJA. In the South African law on invasion of privacy, animus iniuriandi includes not only intent to injure but also consciousness of wrongfulness but this is a requirement of the general South African law of delict which has no Scottish counterpart. 286  The expression “intent to injure” as here used is a modern rendering of animus iniuriandi and has reference to intent within the normal meaning of the modern Scots law of delict as expounded, for example, by LP Hope in Kennedy v Glenbelle Ltd 1996 SC 95 at 99–101. 287   Cf D J McQuoid-Mason, The Law of Privacy in South Africa (1978), p 104.

194

r i ght s of p e rs o n al i t y

invasion of informational privacy may be wrongful notwithstanding that the defender’s motive was laudable.288 Where a wrongful act of disclosure invading privacy is established, it is thought that intent to injure should be rebuttably presumed.289 It is also thought that the requirement of English Equity law that the defendant must be “bound in conscience” to make amends for the disclosure would be out of place in Scots law and should not be adopted. An advantage of real and verbal injury is to anchor the cause of action firmly in the law of delict where it naturally belongs. (vi)  Impairment of dignity  It is submitted that in the modern law of the actio iniuriarum it is no longer necessary to establish contumelia or insult at least in cases of invasion of privacy.290 The fact that in principle the pursuer must have suffered injury by way of an impairment of his dignity suggests that his subjective feelings must have been wounded. On the other hand it would seem contrary to principle if this subjective requirement were to mean that the pursuer must have been aware of the indignity at the time.291 It may be necessary (but not sufficient) to show that the wrongful act was such as to impair the dignity of a person of ordinary susceptibilities. 3.4.8  The right to identity or image: “false light” privacy Identity and privacy. Neethling defines identity as follows:292 “Identity as an interest of personality can be defined as a person’s uniqueness or individuality which identifies or individualises him as a particular person and thus distinguishes him from others. Identity is manifested in various indicia by which that particular person can be recognised; in other words, facets of his personality which are characteristic of or unique to him, such as his life history, his character, his name, his creditworthiness, his voice, his handwriting, 288  In the same way as an assault may be wrongful though the underlying motive is laudable. 289  Under the present law of Scotland, where the pursuer establishes that a statement is defamatory, intent to injure is presumed irrebuttably, thereby creating strict liability in all but name. On the other hand, where redress is sought for nondefamatory verbal injury, the pursuer must aver and prove intent to injure. Steele v Scottish Daily Record 1970 SLT 53; Norrie, Defamation p 32. It is thought the latter precedent is preferable to strict liability. 290   Cf the leading South African case on invasion of privacy public disclosure O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C) at 248; see also Section 3.2.5 nn 34 and 35. 291  Eg in a Peeping Tom case or the rape of a sleeping woman: see McQuoid-Mason, The Law of Privacy in South Africa, pp 129–130. 292   Neethling’s Law of Personality (2nd edn, 2005), p 36 (footnotes omitted).



ov e rv i e w of r i ght s o f p e rs o n al i t y

195

his appearance (physical image) etc. A person has a definite interest in the uniqueness of his being and conduct being respected by outsiders. Therefore a person’s identity is infringed if any of these indicia are used without authorisation in ways which cannot be reconciled with his true image.”

In the USA the third and fourth “privacy torts” (namely the “false light tort” and the “appropriation tort”) relate to identity or image.293 In South Africa some authorities subsume identity under privacy294 while others contend that it is identity rather than privacy that is infringed by publicity which puts the complainer in a false light in the public eye.295 Non-patrimonial verbal injury  The main protection against nondefamatory publicity which places the pursuer in a false light in the public eye and causes affront but not necessarily patrimonial loss, is the delict of injury and in particular what may be called “nonpatrimonial verbal injury”.296 This branch of privacy law is discussed by Elspeth Reid in Chapter 4, Section 4.3.3(c) under the heading “Intentional injury to feelings caused by false statements”. Ms Reid shows that the test of liability (exposing the pursuer to hatred, ridicule and contempt) as applied by the Scottish courts is in practice demanding and difficult to establish, and that there are few cases of solatium for non-patrimonial verbal injury which do not cross the line into defamation. The latter attracts strict liability and is therefore preferred by pursuers. Nevertheless, though rarely used, the cause of action does exist in Scots law to cater for the occasional case. One’s name  In continental Europe generally one has an absolute right to one’s name enforceable by interdict or damages.297 By contrast in Scots law (apart from names of dignity subject to the Lord Lyon’s jurisdiction)298 people do not have such a right since all are entitled to call themselves by any name provided they can get others to use

293  See Prosser, (1960) 48 California LRev 383 at p 389 quoted at Section 3.2.9 above. 294  Eg D J McQuoid-Mason, The Law of Privacy in South Africa (1978), pp 201ff; Burchell, Personality Rights (1998), p 393. 295   Neethling’s Law of Personality (2nd edn, 2005), p 37. 296  See Table A, Verbal injury (level 4) (a) and (b)). The phrase “non-patrimonial verbal injury” is borrowed from K McK Norrie, Chapter 9 below. The leading modern case is Steele v Scottish Daily Record 1970 SLT 53. 297  See von Bar, The Common European Law of Torts, vol 2, pp 96–98. 298  See T Innes, “Name and change of name” in Encyclopaedia of the Laws of Scotland vol 10 (1930), pp 137ff.

196

r i ght s of p e rs o n al i t y

it and the Scottish courts have no jurisdiction to authorise a change of name.299 These reflect deep-seated cultural differences between Britain and continental Europe. Some continental governments have the legal power to decide what names parents may give their children which in British eyes is itself an astonishing invasion of the privacy of family life. One’s image  In continental Europe the right to one’s own image (one’s likeness or portrait or photograph) is a paradigmatic and special right of personality.300 In France and Germany it was one of the first rights to be recognised by case law after the invention of photography and in Germany the right was subsequently enshrined in statute.301 In recent leading English cases involving photographs, the nature of the cause of action is unclear302 as is the gist of the wrong – is it the taking of the photograph, or possession of it,303 or publication of it? Until recently, in both England and Scotland, one’s de facto interest in one’s image was only protected by law if one could rely (perhaps fortuitously) on a specific wrong304 such as defamation,305 malicious falsehood306 or nuisance.307 The English and Strasbourg jurisprudence after Campbell308 and von Hannover309 may extend the right further in a radical and controversial way explored elsewhere in this volume.310 3.4.9  The right to publicity; appropriation of image and reification of rights to privacy and image In several legal systems the extra-patrimonial right to privacy and identity or image, which protects information relating to the person (in the widest sense, including name, image and private sphere), carries with it the right to keep this information to oneself which in turn entails the right to prohibit others from disclosing or disseminating it 299   Forlong, Petr (1880) 7 R 910; applied in F v F 1995 SCLR 289 (Notes) (Sh Ct). The court will, however, regulate the parental responsibility to provide a child with a name: M v C 2002 SLT (Sh Ct) 82. 300  See von Bar, The Common European Law of Torts, vol 2, pp 107–114. 301   Gert Brüggemeier in Chapter 5. Also Chapter 11. 302  Viz breach of confidence, “misuse of private information”, infringement of “informational autonomy”, or harassment: C Michalos, “Image Rights and Privacy: after Douglas v Hello” (2005) 27 EIPR 384 at pp 384–385. 303   Cf Adamson v Martin 1916 SC 319. 304  Von Bar, The Common European Law of Torts vol 2, p 107. 305   Tolley v Fry & Sons Ltd [1931] AC 333 (HL). 306   Kaye v Robertson [1991] FSR 62. 307   Bernstein v Skyviews Ltd [1978] 1 QB 479. 308   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E). 309   von Hannover v Germany (2005) 40 EHRR 1. 310  See Chapters 4, 5, 7 and 12.



ov e rv i e w of r i ght s o f p e rs o n al i t y

197

and a right of a patrimonial character to commercial exploitation of the personal information by waiver or licensing. Privacy claims can be used by celebrities as an easy way of making money, and in such cases invasion of privacy is really often a mere pretence.311 In cases like Douglas v Hello! Ltd312 the claimants are not so much concerned to protect their privacy as to make money directly or by licensing out of its commercial exploitation. Some systems in the USA adopt a dual approach supplementing the right to privacy with a distinct and separate right to publicity described in the leading Haelan case as “a right in the publicity value of his photograph, ie the right to grant the exclusive privilege of publishing his picture”.313 The right is transferable, licensible and descendible to heirs. French law is also tending towards the adoption of a dualistic approach. Instead of extending personality rights to protect patrimonial interests, some French courts have recognised a new exclusive patrimonial right giving a monopoly of exploitation.314 On the other hand, German law adopts a monistic model by treating privacy or identity (eg the right to one’s name, portrait or public image) and “publicity” as being different aspects of a single hybrid right of personality protecting both patrimonial and dignitary interests and falling under one and the same head.315 The patrimonial interests are transmissible to heirs.

 This was also a complaint made about the actio iniuriarum in the 17th century ius commune. Zimmermann, The Law of Obligations 1089, n 289, refers to the views of Samuel Stryk (d 1710) that “all too often people tried to enrich themselves by suing upon the slightest occasion on account of an alleged iniuria; and he expressed his surprise at the fact that the actio iniuriarum was not yet counted as a modus acquirendi” (that is, one of the list of recognised modes of acquiring ownership of property). 312   Douglas v Hello Ltd (No 1) [2001] QB 967 (CA); Douglas v Hello Ltd (No 2) [2003] EWCA Civ 139; [2003] EMLR 28; Douglas v Hello! Ltd (Trial Action: Breach of Confidence) (No 3) [2005] EWCA Civ 595; [2006] QB 125 (CA); OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 1. 313   Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir, 1953) per Judge Jerome Frank; M B Nimmer, “The Right of Publicity” (1954) 19 Law & Contemp Problems 203. For criticism of the US law on the right of publicity, see M Madow, “Private Ownership of Public Image: Popular Culture and Publicity Rights” (1993) 81 California L Rev 125. 314   Beverley-Smith et al, Privacy, Property and Personality, p 11; pp 156–167. French law is here influenced by the French approach to copyright. For Quebec, see E H Reiter, “Personality and Patrimony: Comparative Perspectives on the Right to One’s Image” (2002) 76 Tul LRev 673; see also G M Armstrong, “The Reification of Celebrity: Persona as Property” (1991) 51 La LRev 443. 315   Beverley-Smith et al, Privacy, Property and Personality 10–11; Chapter 4. German law is here influenced by its approach to copyright which is also a hybrid right protecting patrimonial and dignitary interests. 311

198

r i ght s of p e rs o n al i t y

United Kingdom laws have not, or not yet, developed so far316 but English law is changing. In Douglas v Hello317 the House of Lords held that the claimant celebrity magazine (called OK!), the licensee of a contractual exclusive right to take photographs of the celebrity wedding of two famous film actors, had a title to sue an action of damages for breach of confidence against a rival celebrity magazine (called Hello!) which had published unauthorised photographs of the wedding taken by a paparazzo gatecrasher. The majority held that photographic information was capable of being protected, not because of any supposed rights of image or privacy, but simply because it was information of commercial value over which the celebrity couple had sufficient control to enable them to impose an obligation of confidence on the paparazzo photographer and any unauthorised publisher whose “conscience was tainted” by notice of the latter’s breach.318 The nature of this commercial right in private information however is problematic.319 In Douglas v Hello! the Court of Appeal observed: “Recognition of the right of a celebrity to make money out of publicising private information about himself, including his photographs on a private occasion, breaks new ground. It has echoes of the droit à l’image reflected in article 9 of the French Code Civil and the German cause of action that Professor Markesinis describes as the ‘tort of publicity claim’.”320

OK!’s right was said to arise not because of a proprietary interest but by reason of a licence in Equity (a concept impossible to translate into Scots law). This licence in Equity gives the licensee a title to sue not only its contractual counter-party the licensor but also any third parties who infringe the exclusive privilege. To a Scots lawyer therefore it has some of the most important hallmarks of incorporeal moveable property. Lord Walker of Gestingthorpe was surely right to say that OK!’s claim would be “in effect to confer on the exclusive

 See Chapters 4 (Elspeth Reid) and 7 (Hazel Carty). For a comparative survey of 12 legal systems relating mainly to the interface between the dignitarian and patrimonial aspects of misappropriation of image and identity, see Chapter 11 below (Charlotte Waelde and Niall R Whitty). 317   OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 1. 318  H Carty, “An analysis of the modern action for breach of commercial confidence: when is protection merited?” [2008] IPQ 416. 319  See, eg, Michalos, (2005) 27 EIPR 384. 320   Douglas v Hello [2005] EWCA Civ 595 para 113, referring to Markesinis et al, “Concerns and Ideas About Developing the English Law of Privacy” (2004) 52 Amer J Comp Law 133 at 176. 316



ov e rv i e w of r i ght s o f p e rs o n al i t y

199

licensee a form of property right”.321 Moreover OK! sought to protect not information but rather the ‘valuable intangible’ of their exclusive contract”.322 The question whether English law recognises a droit à l’image is still open.323 In Scots law the important questions may sooner or later arise of whether or how a patrimonial “right of publicity” should be recognised and integrated into the Scottish system of real rights and personal rights and whether it is or ought to be a real right and as such assignable to singular successors, attachable by the diligence of creditors and in bankruptcy sequestration and transmissible to executors on death. That issue is not fully addressed in this volume. Whatever the English law may be, in Scotland a real right of publicity could only be introduced by statute, not the courts, because of the numerus clausus principle in Scots law. For the purpose of determining legislative competence, it would be essential to know whether a real right of publicity should be characterised as a form of intellectual property or merely as an ordinary type of incorporeal moveable property.324 Even in English law with its “open” system of property law, as Hazel Carty remarks “the creation of some form of image or publicity right needs to be expressly debated as a possible separate right, not slipped under the radar of the action for breach of confidence by the celebrity industry. And that debate should demand that any new right should involve ‘public benefit’” which in her view “is conspicuously lacking where image rights are concerned”.325 In most countries the grant of a monopoly to conduct a commercial activity is only competent if the monopoly can be justified in the public interest. Whether the law should permit a right to privacy or identity, which is primarily conferred to protect one’s dignity, to be used for the quite different purpose of lining one’s pocket without any obvious public benefit, is controversial.326 Why should celebrities

  [2007] UKHL 21 at para 300, dissenting. As Carty remarks [2008] IPQ 416 at p 451: “OK! sought protection on the basis that they had bought into confidentiality as if it were property.” 322  See Carty [2008] IPQ 416 at p 451. 323  It does seem likely that “trade secrets, commercial property in images and genuinely private personal information are different animals and need different causes of action”. So argued by Michalos, (2005) 27 EIPR 384 at p 387. 324  Under the Scotland Act 1998, incorporeal property law is devolved to the Scottish Parliament but by virtue of Sch 5, Head C4, intellectual property is reserved to the United Kingdom Parliament. 325   Carty [2008] IPQ 416 at p 453. 326  This is explored by Hazel Carty in Chapter 7. See also G Black, “Douglas v Hello! – An OK! Result” SCRIPT-ed vol 4, Issue 2, June 2007; G Black, “OK! for some: Douglas v Hello! in the House of Lords” (2007) 11 Edin LR 402. 321

200

r i ght s of p e rs o n al i t y

be entitled to claim protection for their privacy and at the same time to sell it? On the other hand the undoubted fact that individuals do in practice seek to use the “dignitarian” rights of privacy and identity to protect or enhance their publicity interests is indicative of a commercial need (or at least desire) for a separate, complementary right of publicity. Recognising the different natures of privacy and publicity is more intellectually honest than trying to subsume the latter into the former. Given the globalised nature of the celebrity industry and the strong pressures to follow the USA example, the policy on this issue may well be determined by commercial expediency rather than considerations of principle. Passing off  Modern Scottish cases usually adopt the main definitions of passing off in English law which focus on the three elements of trading goodwill or reputation; misrepresentation leading to deception of the public; and damage (patrimonial loss).327 Eric Clive argued that the Scottish delict of passing off is based, not on ownership of specific indicia (eg a name or mark) or even ownership of goodwill,328 but on “the general right which everyone possesses not to have published, about him or his goods, statements which are both untrue and prejudicial to his pecuniary interests”.329 As Hazel Carty shows, the English courts have been developing the tort of passing off as a remedy against one person’s misappropriation of another’s identity or image for unauthorised advertising, merchandising by false endorsement or the like.330 These are not traditional cases of passing off since they among other things do not involve any confusion in the public mind as to the source of the goods or services; and they involve misappropriation rather than misrepresentation. Elspeth Reid argues that it might be more straightforward to use the ‘impetus’ of ECHR, Art 8, and Article 1 of the First Protocol in order to reconceptualise such cases of commercial plagiarism”.331

327  Viz Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (HL) at 499 per Lord Oliver; Erven Warnink BV v J Townend & Sons (Hull) Ltd (No 1) [1979] AC 731at 742 per Lord Diplock; at 755, 756 per Lord Fraser; described as “the leading modern authorities on passing off” in Topps Co Inc v Hannah Agencies Ltd (1 December 1999) (OH) per Lord Nimmo Smith. See SME vol 18 (1993) “Passing Off” paras 1362 and 1364 (H L MacQueen). 328  The current English orthodoxy: SME vol 18, para 1364. 329  E M Clive, “The Action for Passing Off” 1963 JR 117 at p 134. On the importance of misrepresentation in English law, see Hazel Carty in Chapter 7 below. 330  The leading case is Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2003] EWCA Civ 423 (CA). See Hazel Carty, Chapter 7, Section 7.2 below. For the Scots law, see Elspeth Reid, Chapter 4, Section 4.4.1. 331   Chapter 4, Section 4.4.1 below.



ov e rv i e w of r i ght s o f p e rs o n al i t y

201

3.4.10  The moral right to copyright The author of a copyright work has certain “moral rights” which he retains after ceasing to own the copyright itself.332 In Europe these have been classified as a species of personality right.333 The introduction in the UK by statute of moral rights for authors in 1988 and for performers in 2006, in order to ensure correct attribution and to control unwanted changes to their output, has to some extent improved personality interests334 but David Vaver in Chapter 8 below points out that the rights are weakly drawn and easily waived or avoided.335 Addressing the question of how far intellectual property (IP) rights protect an individual’s personality, Professor Vaver points out that whereas personality is inalienable, intellectual property is rightly classified as property. “IP is a commodity that can be transferred, bought and sold, along with any personality aspects it contains. How much personality hangs back when its ambient IP is sold is not always clear.”336 3.4.11  The right to autonomy? There has been some debate as to whether there is a right to autonomy or self-determination, which is designed to protect one from strangers who seek to dictate how one should manage one’s private life. The majority view is probably that autonomy is not the object of a separate right of personality but an aspect of legal subjectivity.337 On the other hand, in Scotland solatium has been awarded to a patient for a doctor’s infringement of the patient’s right to full disclosure of medical risks (described as a breach of the patient’s autonomy);338 and in an action for wrongful pregnancy the court has awarded a

  Josef Drexl explains: “Moral rights of an author belong to the continental copyright tradition of author’s rights (droit d’auteur). According to this tradition, the copyrighted work is considered an emanation of the creator’s personality, resulting in the bifurcated protection of the non-economic interests of the author by moral rights on the one hand and of economic interests by exploitation rights on the other”: see J Drexl, “Constitutional Protection of Authors’ Moral Rights in the European Union – Between Privacy, Property and the Regulation of the Economy” in K S Ziegler (ed), Human Rights and Private Law, Privacy as Autonomy (2007) 159 at p 159. 333  E Adeney, The Moral Rights of Authors and Performers (2006). 334   Copyright, Designs and Patents Act 1988 (UK), Chapter IV. See also H MacQueen commenting on the 1988 Act in Chapter 12, Section 12.6.5. 335  D Vaver, “Moral Rights Yesterday, Today and Tomorrow” (1999) 7 Int’l JL & IT 270. 336  David Vaver in Chapter 8, Section 8.4. 337   Neethling’s Law of Personality (2nd edn, 2005), p 35. 338   Goorkani v Tayside Health Board 1991 SLT 94 (OH). 332

202

r i ght s of p e rs o n al i t y

conventional sum as solatium for the wrongful affront to the parent’s autonomy.339 On this approach, the right of parents to limit the size of their family has been expressly held to be an important aspect of “personal autonomy”340 and of “human dignity, which (it was held) is increasingly being regarded as an important human right which should be protected by law”.341 In these cases, controversially the basis of liability seems to have been negligence rather than intent. These cases and their implications are discussed by Graeme Laurie in Chapter 10. 3.4.12  Personality rights in family relationships At one time in Scots law, personality rights in family relationships were well protected by the law on real and verbal injury. Hume’s Commentaries refer to the injury “of the loss of domestic comfort, as in the case of adultery”.342 While in continental systems, some intangible (‘moral’) rights of personality are to be found in family law,343 there is only a small and dwindling number of such rights in Scots family law. Though kidnapping or child-stealing is a criminal offence,344 the case of McKeen in 1994 suggests that the Scots law of delict does not protect parental care as such.345 It only allows a claim for solatium for loss of society if the victim dies. Consistently with these values, late 20th-century statutes have abolished the husband’s right to sue his wife’s “paramour” for damages (including solatium) for adultery,346 the engaged person’s action of damages for breach of promise of marriage,347 and a spouse’s right to damages for the   McFarlane v Tayside Health Board 2000 SC (HL) 1 at 44, 45 per Lord Millett; cf Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 [2004] 1 AC 309 (HL), at paras 8 (Lord Bingham); 17–19 (Lord Nicholls); and 123–125 (Lord Millett). 340   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) at para 47 per Patten J. 341   Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 at para 23 per Lord Millett (award of conventional sum of £15,000 to parents). 342  Hume, Commentaries, vol 2, p 121. 343   C von Bar, The Common European Law of Torts, vol 2, p 119. 344   SME Reissue “Criminal Law” (2005), para 323: “Child stealing, called plagium, is an aggravated form of theft”; see also SME Reissue “Child and Family Law” (2004), para 187. 345   McKeen v Chief Constable, Lothian and Borders Police 1994 SLT 93 (OH) (no action lies for loss of society of child removed from parental care on intervention by police in the interests of the child); discussed by von Bar, The Common European Law of Torts, vol 2, p 123. 346  Divorce (Scotland) Act 1976, s 10, implementing Scottish Law Commission Report on Liability for Adultery and Enticement of a Spouse (Scot Law Com No 42, 1976). 347  Law Reform (Husband and Wife) (Scotland) Act 1984, s 1(1). 339



ov e rv i e w of r i ght s o f p e rs o n al i t y

203

enticement of the other spouse.348 It is now very doubtful whether an action of damages for enticement still lies at the instance of a relative of the enticed person349 though it is thought that the legislation has not abolished a married man’s action of damages against his wife’s rapist.350 3.4.13  Personality rights after death In the case of defamation of a deceased perpetrated after his death351 the main issues have been described as firstly “whether the law grants compensation for the injury to surviving relatives and secondly, whether it allows the courts to be used for clearing a dead person’s name”.352 In the first type-case, the relative sues for verbal injury in respect of defamation of the deceased. In 1821 in Walker v Robertson353 the surviving son of a deceased person was awarded solatium of £100 for the hurt to his feelings arising from defamation of his deceased father. Holding that actionability did not depend on the pursuer also being defamed, Lord Adam directed the jury “not to be misled by the statement that the pursuer must prove pecuniary loss, for the law holds that a person may bring an action for injury to his feelings”.354 In 1904, this case was doubted by the Second Division in Broom v Ritchie355 which however does not yield 348  Law Reform (Husband and Wife) (Scotland) Act 1984, s 2(2). Cf Duncan v Cumming (1714) 5 BS 104 (characterised as an “action injuriarum”); Adamson v Gillibrand 1923 SLT 328. 349  A contrary view is taken in J Thomson, Delictual Liability (3rd edn, 2004), p 17; and Walker, Delict (2nd edn, 1981), pp 712–714; but a key passage in the latter was disapproved in McKeen v Chief Constable, Lothian and Borders Police 1994 SLT 93 (OH) at 95 per Lord Morton of Shuna who refused to rely on the Delaney cases for a principle: see Delaney v Edinburgh and Leith Children’s Refuge (1891) 19 R 8 (children taken to Nova Scotia from children’s refuge; £100 accepted); Delaney v Stirling (1893) 20 R 506. 350   Black v Duncan 1924 SC 738. It is thought that a rapist is not a “paramour” within the meaning of the Divorce (Scotland) Act 1976, s 10(1). Contra E M Clive, Husband and Wife (4th edn), para 13.016. 351  An executor may continue an action of defamation or verbal injury begun by the defamed during his life (see Haggart’s Trs v Hope (1824) 2 Shaw’s App 125) and even raise such an action after his death in respect of a communication made during his life (Auld v Shairp (1874) 2 R 191). See further Section 3.6.below. 352  S E Woolman, “Defaming the dead” 1981 SLT (News) 29. 353   (1821) 2 Mur 516, sequel to 2 Mur 508. 354   (1821) 2 Mur 516 at 519. 355   (1904) 6 F 942 (widow and pupil children sued unsuccessfully for solatium on account of a statement in a newspaper that her husband had committed suicide). See also Agnew v Laughlan 1948 SLT 512. Cf Von Bar The Common European Law of Torts, p 106.

r i ght s of p e rs o n al i t y

204

a clear ratio decidendi. It has been criticised and doubted356 but never overruled so that the modern law is unclear. In Norrie’s view, Broom v Ritchie only decides that a person cannot sue for defamation of a deceased relative but that in principle a relative could sue for verbal injury which he or she suffers through the defamation of another (alive or dead).357 Turning from verbal injury to real injury, it is well established that the relatives of a deceased person may claim at common law solatium for hurt feelings arising from affront caused by unauthorised operations on the deceased’s body358 and in respect of the unauthorised removal and retention of organs from the dead body at post mortem.359 It has been held that the the true juridical basis for this type of claim is the actio iniuriarum.360 It seems that the wrong or iniuria is treated as being done directly to the surviving relatives. In the Stevens case the judge observed that what lay at the heart of the Scottish postmortem cases is “the fact that near relatives suffered affront by the unauthorised actings” and continued: “The Judges in the Scottish cases considered that, in the circumstances, the unauthorised post-mortems and the unauthorised removal and retention of body parts, disclosed such an insensitivity to the feelings of near relatives following upon the death of a loved one, that such conduct constituted an affront to their dignity as relatives of the deceased so as to justify being classified as a civil wrong in which damages by way of solatium could be claimed.”361

3.5 THE ELEMENTS OF LIABILITY FOR INFRINGING RIGHTS OF PERSONALITY 3.5.1  Preliminary Affront-based delicts and rights of personality. In Scots law, for the purpose of classifying the law of delict, distinctions have been drawn 356  See Woolman supra; Walker, Delict (2nd edn), p 727; Norrie, Defamation, pp 58–60. 357  Norrie, Defamation, p 60. 358   Pollok v Workman (1900) 2 F 354; Conway v Dalziel (1901) 3 F 918; Hughes v Robertson 1913 SC 394. 359   Conway v Dalziel (1901) 3 F 918; Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH); Whitty (2005) 9 Edin LR 194. 360   Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH) at paras 34, 39, 57 and 62. 361   2006 SLT 889 at para 57. See also Hume, Commentaries, vol 2, p 121 which refers to the injury “of the violation of one’s natural sentiments of affection, as by raising the dead body of one’s child from the grave”.



ov e rv i e w of r i ght s o f p e rs o n al i t y

205

inter alia between negligence and intentional delicts;362 between the actio iniuriarum and neo-Aquilian fault;363 and most recently, in an instructive analysis by Kenneth Norrie, between “affront-based delicts, which continue to require intent to injure, and all other delicts which can be committed either intentionally, recklessly, or negligently”.364 There may be differences of opinion as to what are “affront-based delicts”.365 Since affront is its unifying element, the category has a close affinity with a developed concept of iniuria. If the affront-based delicts are understood to be those in respect of which solatium is awarded for wounded feelings arising from infringement of an interest which consists of or includes a non-patrimonial interest in an aspect of personality, then the category is in double figures. It includes at least assault; wrongful arrest; wrongful detention; defamation; abuse of civil process; malicious prosecution; verbal injury (including malicious falsehood); breach of confidence; rape of spouse; seduction; entrapment; and unauthorised operations at post mortem. Who a person is, his or her image and identity, can itself have value. The modern trend in Europe is to treat infringement of a right of personality rather than affront or insult as the element unifying this branch of law.366 The level of protection  In determining the level of protection to be accorded to various protected interests, continental European laws of delict take into account the nature and the value of the interest. On that basis, according to the Tilburg Group: “The fundamental rights of personality such as the rights to life, health and liberty rank highest. Rights in rem and intangible property rights rank slightly lower; pure economic or pure immaterial interests are at the lower end of the scale”.367 In similar vein Christian von Bar observes: “Property right violations must be viewed differently from personality right infringements. The former are merely annexed to the individual

362   Glegg, Reparation (4th edn, 1955), Part II (Malice; Breach of duty where there is wrongful intention); Part III (Negligence); H McKechnie, “Reparation”, in Encyclopaedia of the Laws of Scotland, vol 12 (1931). 363  T B Smith, Short Commentary, pp 657–661. 364  Norrie, “Intentional Delicts” 477 at pp 478–479. 365  Norrie (ibid p 479, n 13) states that “Today, affront-based delicts are limited to defamation and verbal injury, and interference with liberty by wrongful arrest or wrongful imprisonment” and would exclude assault on the ground that whereas in Roman law it led to liability because of the perceived affront to dignity, in Scots law it leads to liability because of the personal injury it causes. But that overlooks the fact that an action lies for assault (eg spitting) although no personal injury results. 366  See, eg, Gert Brüggemeier in Chapter 5. 367  H Koziol “Conclusions” in H Koziol (ed), Unification of Tort Law: Wrongfulness (1998) 129 at p 132.

206

r i ght s of p e rs o n al i t y

whereas the latter define him as such and should therefore enjoy better protection”.368 These considerations may provide a rational justification for the rule that in the Scottish affront-based delicts, solatium is awarded for wounded feelings even in the absence of physical personal injury or patrimonial loss. Definition: personality and patrimonial interests  It is said that rights of personality protect the non-patrimonial aspects of the human person – what a person is rather than what a person has. That is the core of personality rights. In real life however personality interests and patrimonial interests are closely entwined and the distinction is difficult to maintain in stating the law. The delict of defamation for example protects patrimonial as well as personality interests: thus false allegations of bankruptcy are actionable in defamation though bankruptcy no longer bears a moral stigma.369 In one of its forms, verbal injury protects patrimonial interests by striking at “slander of title, property or business”.370 The action for passing off may protect a right of personality (identity)371 but traditionally its main role is to protect the complainer’s patrimonial interests in business goodwill. In legal systems, including English law, which protect one’s nonpatrimonial personality right to prevent misuse of private information including one’s image (a right of privacy), there is strong pressure to create a patrimonial right over the commercial exploitation of that image (a right of publicity).372 It is arguable that, at least in some contexts, the structural coherence of the law requires that causes of action for solatium for affront should be kept distinct from causes of action for patrimonial loss. For this reason, in considering reform of defamation in Chapter 9 below, Kenneth Norrie argues that the cause of action for damages for patrimonial loss arising from false communications should be separated from the cause of action for solatium for affront to personality so arising. Definition: specific delicts protecting both personality and other interests The law on personality can be described as consisting of generalised rights on the civil law pattern which, at the operational level, are mainly protected by specific delicts (or areas of delictual liability) on the pattern of the common law torts. As mentioned   C von Bar, “Damage without Loss” in W Swadling and G Jones (eds), The Search for Principle, Essays in Honour of Lord Goff of Chieveley (1999) 23 at p 42. 369  See Kenneth Norrie in Chapter 9. 370  See Section 3.2.4 above. 371  See Elspeth Reid in Chapter 4 and Hazel Carty in Chapter 7 below. 372  See Section 3.4.9 above. 368



ov e rv i e w of r i ght s o f p e rs o n al i t y

207

above,373 an individual delict (such as malicious prosecution; or abuse of civil process) may protect a right to personality (eg reputation) and at the same time some other important private or public interest as well (eg the integrity of the criminal or civil process). Critics of personality rights may therefore argue that it is the specific delicts which alone are important and that the underlying generalised personality rights are otiose. There are, however, good answers to this criticism. • It is the fact that the interest invaded is a right of personality which explains why an award of solatium is or ought to be competent. • The primary rights of personality are in principle not assignable or attachable by creditors, and are imprescriptible. • It can happen that a right of personality is not completely protected by specific delicts in which case it ought in principle to be possible for the injured party to found directly on an infringement of a personality right, a great advantage where the personality right infringed is also a Convention right under ECHR.374 3.5.2   Injury: wounded feelings or infringement of personality right as such? An award of solatium for affront is traditionally explained as compensation for wounded feelings (distinct from psychiatric injury). There is a theory however that it may be better understood as compensation for the infringement per se. This would be consonant with a trend in European laws explained by Christian von Bar as follows:375 “The true personal rights, such as rights to life, bodily integrity, honour, dignity, self-determination, and freedom of movement, have undergone a substantial change of circumstance in recent years, such that occasionally their mere infringement without further loss has been compensated. This increase in protection has been made possible by regarding such infringements per se as a form of immaterial damage.”

Such a theory would be novel and might be controversial in Scotland because of the strong belief that damages are compensatory. In England there is a well established distinction between torts actionable per se  Section 3.3.   Compare Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH) with Wainright v Home Office [2003] UKHL 53; [2004] 2 AC 406 HL(E), disapproved in Wainwright v United Kingdom (Application No 12350/04) 26 September 2006; (2007) 44 EHRR 40. 375   C von Bar, “Damage without Loss” at p 24. 373 374

208

r i ght s of p e rs o n al i t y

and torts actionable only on proof of damage.376 In Scotland, with some dissentients377 it is generally said that this distinction does not obtain in our law of delict because of the need to prove culpa and patrimonial loss.378 Where, however, the interest invaded is purely a non-patrimonial right of personality, then ex hypothesi any liability will not cover patrimonial loss. Nevertheless the normal and perhaps invariable theory is that solatium is granted not in respect of a delict or infringement per se but as compensation for injured feelings and that injury to feelings will be presumed. So for instance in the case of an attack on honour or reputation, Kenneth Norrie states that “a common feature of any subsequent action for damages is that some loss will be presumed, even if it is to such an imponderable as a person’s self-esteem and even if, of necessity, it is merely nominal”.379 It follows that “There is no such thing as injuria sine damno in cases of defamation of an individual”.380 Although damage is presumed if defamation is established, damage is nonetheless a legal requirement.381 Where however wounded feelings are presumed to exist as a basis for awarding solatium for affront (but do not actually exist), Scots law is very close to recognising a delict per se for infringement of personality rights. 3.5.3  Wrongfulness In an action for real or verbal injury, it is not enough to prove injury; it must also be shown that the injury is wrongful.382 In the  In torts actionable per se, the law presumes damage from the mere infringement of the right: Nicholls v Ely Beet Sugar Co [1936] 1 Ch 343 (CA); cf Watkins v Home Secretary [2006] UKHL 17; [2006] 2 AC 395 (HL) (misfeasance in public office not a tort per se) discussed below. 377   Glegg, Reparation (4th edn, 1955), p 117 postulating a “rule that infraction of a legal right entitles to some damages” especially defamation where the pursuer may wish nominal damages to protect his reputation. 378  The usual contrast is between trespass to land (anciently known as trespass quare clausum fregit ie breaking the plaintiff’s close) which was actionable per se under English law and trespass in Scots law where no liability in damages arises without patrimonial loss: Graham v Duke of Hamilton (1868) 6 M 965; Lord Advocate v Glengarnock Iron and Steel Co 1909, 1 SLT 15. 379   SME vol 15 “Obligations” (K McK Norrie), para 446. 380  Norrie, Defamation, p 164, citing Bradley v Menley and James Ltd 1913 SC 923 at 926; Cassidy v Connachie 1907 SC 1112 at 1116. See also Norrie, Defamation, p 42: “Damages (even solatium) in Scots law is reparation for injury caused and if the facts show no injury no damages will be awarded.” 381  Norrie, Defamation, p 15, citing Bernhardt v Abrahams 1912 SC 748; see now Mackay v Scottish Electric plc 2000 SC 87 at 90 per LP Rodger. 382   Newton v Fleming (1846) 8 D 677 at 694 per Lord Murray: “in order to make out injury, it must be shown in the outset that there is an offence committed and malice”. 376



ov e rv i e w of r i ght s o f p e rs o n al i t y

209

affront-based delicts there is no generally accepted legal criterion – functionally equivalent to the duty of care in negligence – to determine wrongfulness. Perhaps interests in personality are too heterogeneous to be catered for satisfactorily by any single test.383 In invasions of physical interests such as bodily integrity or physical liberty and freedom of movement (eg assault, or wrongful detention) wrongfulness is normally presumed from the mere fact of the invasion. Likewise defamation on both sides of the border is structured in the same way with wrongfulness being presumed from defamatory statements resulting in strict liability subject to defences. There was little scope for balancing competing interests in defamation until the advent of the Reynolds defence of “responsible journalism”.384 Comparative law suggests however that in invasions of intangible rights of personality (such as breach of privacy), unlawfulness cannot be presumed but must be positively established. The law on typical fact-situations has to be crystallised by judicial decisions.385 In England this is already happening in cases adapting breach of confidence to breach of privacy by public disclosure of private information in order to conform to ECHR, Art 8. The ECtHR and national courts throughout Europe are developing a test balancing the interests in privacy protected by Art 8 against the competing interest in freedom of expression protected by Art 10.386 3.5.4  Fault The bases of liability in the affront-based delicts  As a general proposition it seems true to say that if any right of personality protected by the law of delict is infringed intentionally, or in some cases maliciously (ie in the lay person’s sense of “spitefully”), then a claim for solatium for non-patrimonial loss lies. Otherwise the bases of liability in delict for infringing these rights of personality, and even within the class of affront-based delicts, are not uniform. Spite or ill-will (malicious motive) and intent  In delicts infringing interests of personality, as a general rule the normal requirement of the Scots law of delict applies that fault or culpa must be   Cf D Ibbetson, A Historical Introduction to the Law of Obligations (1999), p 184, commenting on the English interest-based torts. 384  See Reynolds v Times Newspapers Ltd [1999] 4 All ER 609. 385   For an overview of many of those groups of cases (Fallgruppen) in German law, see, eg, B S Markesinis & H Unberath, The German Law of Torts (4th edn, 2002), pp 402–505. 386  See Chapters 4, 5, 7, 9, 11 and 12 below. 383

210

r i ght s of p e rs o n al i t y

established.387 In the 18th century the basis of liability in the Scottish version of the actio iniuriarum was expressly held to rest on intent (dolus malus) in accordance with the twin pillar theory as in the following famous passage:388 “An actio injuriarum, where there is no patrimonial loss, and where the damages awarded are only in solatium, must be founded upon dolus malus, according to the opinions of all writers upon law; and so far it differs from damages awarded to repair patrimonial loss, in which it is sufficient to specify even culpa levissima.”

Fault may take the form of malice in the lay person’s sense of spite or ill-will, that is, where the defender desired to bring about the affront. Proof of malicious (spiteful) motive will establish fault389 but is normally unnecessary.390 Normally liability is based on the lower standard of intent to do the harmful act. (This intent was known as animus iniuriandi, ie an injurious mind,391 but also unfortunately as “malice” a confusing 19th-century innovation.) So for instance in an action for solatium for hurt feelings arising from affront caused by unauthorised operations392 or retention of organs393 at post mortem the doctors and hospital staff were not motivated by a desire to insult the surviving relatives, though research shows that the relatives generally felt insulted.394 In other words “affront” may

387   Hester v MacDonald 1961 SC 370 (wrongful prosecution) at 390 per Lord Guthrie. 388   Graeme and Skene v Cunningham (1765) Mor 13923, cited Walker, Delict (2nd edn), p 32. 389  McKechnie, “Reparation”, para 1112. 390  There are cases of patrimonial verbal injury (injurious falshood) where averments of malice were not required: Clive 1963 JR 117 at p 132, n 68, citing Macrae v Wicks (1886) 13 R 732; Bruce v Smith (1898) 1 F 327 (both slander of title); Lamond v Daily Record 1923 SLT 512. 391  See, eg, Trapp v Mackie 1977 SLT 194 at 197 (OH); McKechnie “Reparation”, para 1112: “The essence of intentional injury is . . . animus injuriandi, or malice in law. This is something quite different from malice in fact. The former may exist without the latter, and persons may be held liable in damages on this ground who had no such intention in their heart of hearts”. Cf, however, K McK Norrie, “Actions for Verbal Injury” (2003) 7 Edin LR 390 at p 395, arguing that “the phrase carries with it a stronger inference of bad or illegitimate motive than a bare intent to infringe a legally protected interest (such as one’s reputation or business relations)”. On the distinction between motive and intent, see Walker, Delict (2nd edn, 1981), pp 50–51. 392   Pollok v Workman (1900) 2 F 354; Conway v Dalziel (1901) 3 F 918; Hughes v Robertson 1913 SC 394. 393   Conway v Dalziel (1901) 3 F 918; Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH). 394  Scottish Executive Health Department, Consultation Paper on Legislation relating to hospital post-mortem examinations, dated 24 November 2003.



ov e rv i e w of r i ght s o f p e rs o n al i t y

211

have reference primarily to the harm suffered by the pursuer and does not necessarily import an intention to insult on the defender’s part.395 In the Stevens case the defenders’ fault was insensitivity to the relatives’ feelings when knowingly infringing their rights.396 The theory may be that a person intending to perform an act, which he knows, or ought to know, is a wrong infringing the relatives’ rights of personality, must be taken to be liable in solatium for the relatives’ justifiably wounded feelings if they are the natural and probable consequences of his act,397 though the more stringent test for intent (namely that the harm is certain, or substantially certain, to result from the act) may be the better criterion.398 This is similar to the “necessary consequences” test formulated in a South African case399 as follows: “When an unlawful aggression of this nature has been proved the law presumes that the aggressor had in view the necessary consequences of his act; that is, that he had the intention to injure, the animus iniurandi. This does not mean that he was actuated by malice or illwill, but that he had deliberately intended that the operation of his unlawful act should have effect on the plaintiff.”

This issue requires exploration.400 Normally the requirement of intent is not discussed in the case law because the defender’s justification of his act infringing personality rights will suffice to characterise the act as intentional. For the same reason normally issues of risk (the foreseeable likelihood that harm will eventuate) do not arise and therefore liability does not usually depend on negligence.401 The Scottish courts have given “malice” a wide interpretation.402 In verbal injury cases until recently judges have required that the false statement was made with a design or intent to injure.403 This is ambiguous but probably meant something less than a spiteful motive  See Section 3.2.10 above.   Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH) at para 57, quoted at para 3.5.12 above. 397  As suggested in (2005) 9 Edin LR 194 at p 129. 398  See SME Reissue “Nuisance” (2001), para 105. 399   Whittaker v Roos 1912 AD 92 per Innes JA, which arose out of the unlawful punishment of the plaintiff prisoner. 400  See, eg Gordley, Foundations of Private Law, pp 184–195. 401  Liability in malicious prosecution was held to depend on fault but not on negligence in Hester v MacDonald 1961 SC 370 at 390 per Lord Guthrie. 402  See Norrie, Chapter 9, n 61, citing Adam v Allan (1841) 3 D 1058 at 1073 per Lord Jeffrey. 403  See, eg, the leading modern case of Steele v Scottish Daily Record 1970 SLT 53 at 60, 61 (Lord Wheatley); 65 (Lord Fraser). 395

396

212

r i ght s of p e rs o n al i t y

or ill will. In a recent case of patrimonial verbal injury (malicious falsehood) involving slander of business, however, it has been held to mean not mere intent to injure but rather illegitimate intent to injure404 a test bearing some resemblance to the higher standard of fault (malice) required to rebut qualified privilege. On the other hand in Newton v Fleming which involved interdict against public disclosure in a “black list” of potentially embarrassing true information, the majority of the Whole Court seem to have taken the view that the petitioner was not bound to make any averment of malice against the respondents.405 It seems that in damages for passing off (not an affront-based delict), liability is based on intent, averments of malice are not required,406 and the issue of negligent passing off is open.407 Of course, in all cases of interdict (the usual remedy), consideration of the degree of fault is out-of-place because there the defender knows of the harm at latest when he receives service of the summons, petition or initial writ. Malice and want of probable cause  Where the infringement of a personality right is caused by an act which attracts qualified privilege (such as an arrest or search by the police or the raising of a civil action or the execution of diligence), the pursuer must prove malice in the special sense of illegitimate or oblique motive408 and also want of probable cause.409 “The idea of illegitimate or oblique motive

404   Barratt International Resorts Ltd v Barratt Owners Group (unreported) 20 December 2002 (OH) (Lord Wheatley), approved by Norrie (2003) 7 Edin LR 390 and see Chapter 9, n 58. 405   Newton v Fleming (1846) 8 D 677 at 703–704 per LJ-C Hope, concurring with Lord Fullerton; reversed on another point sub nom Fleming v Newton (1848) 6 Bell 175. However, the publication “was in a form directly calculated, and avowedly intended, to represent him among others, as a person of doubtful credit’” (emphasis in original): loc cit. 406   Macrae v Wicks (1886) 13 R 732; Bruce v Smith (1898) 1 F 327 (slander of property). 407   Clive, 1963 JR 117 at pp 132–134. 408   Lightbody v Gordon (1882) 9 R 934 at 938 per LP Inglis; McCormack v Glasgow Corporation 1910 SC 562 at 567 per Lord Kinnear (wrongful criminal proceedings; malicious prosecution); McGregor v McLaughlin (1905) 8 F 70 (abuse of civil process); Hester v MacDonald 1961 SC 370; Ward v Chief Constable, Strathclyde Police 1991 SLT 292; Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342 (OH) (wrongful detention); Horrocks v Lowe [1975] AC 135 (HL) at 149–151 per Lord Diplock applied in Fraser v Mirza 1993 SC (HL) 27 at 32–33 per Lord Keith of Kinkel (defamation) and in Westcrowns Contracting Services v Daylight Insulation Ltd [2005] CSOH 55 at para 52 per Lord Macphail (patrimonial verbal injury; malicious falsehood); Notman v Commercial Bank of Scotland 1938 SC 522. 409   On “malice and want of probable cause” see SME, vol 15 “Obligations” in relation to wrongful detention (para 439); malicious prosecution (paras 453–456); abuse of civil process (para 459) (K McK Norrie).



ov e rv i e w of r i ght s o f p e rs o n al i t y

213

is at the heart of malice, for the privilege which it is designed to meet arises from the presumed good motive with which the defender acts”.410 The court considers first whether the justification of legality for the actings is displaced by proof of malice and thereafter considers whether the actings constitute a delict.411 These long established rules however are being transformed by Strasbourg jurisprudence in cases of infringement of ECHR. In the Keegan case, for example, the police negligently obtained a warrant to search the wrong house and discovered their mistake only after battering down the door at 7.00 am. In an action by the occupiers against the chief constable for malicious procurement of the search warrant the Court of Appeal held that there was no reasonable or probable cause for obtaining a warrant to search that particular house but refused the action since the essential requirement of malice was not proved.412 The ECtHR, however, upheld the Keegans’ claim on the ground that in an action for breach of privacy it is disproportionate to require proof of malice because a breach of Art 8 can be committed negligently.413 The effect of this judgment could be far reaching.414 Intent and negligence  It is sometimes said that the distinction between intent and negligence is of small practical importance in the Scots law of delict.415 At least two cases seem to illustrate this416 but these are exceptional. The difference between intent and negligence remains important for some purposes. First, the courts have repeatedly held that “a claim for mere loss of reputation is the proper subject of an action of defamation, and cannot ordinarily be sustained by any other form of action” such as negligence.417 Second, generally a claim

  SME, vol 15 “Obligations” para 453 (K McK Norrie).   McKie v Orr 2002 Rep LR; 2002 GWD 7-246 [14 February 2002] (OH) at para 25 per Lord Emslie (affirmed sub nom McKie v Chief Constable of Strathclyde 2003 SC 217). 412   Keegan v Chief Constable of Merseyside Police [2003] EWCA Civ 936; [2003] 1 WLR 2187. 413   Keegan v United Kingdom (Application no 28867/03) (2007) 44 EHRR 33. Furthermore, restrictions on damages for negligence violate ECHR, Art 13 (right to an effective remedy). 414  See P W Ferguson, “Malice and negligence” 2007 SLT (News) 127. 415  See, eg, T B Smith, Short Commentary, p 661; Norrie, “The Intentional Delicts”, pp 478–480. 416  Eg Craig v Hunter 29 June 1809 FC, discussed by Norrie, “The Intentional Delicts” at p 479 and in Chapter 9 below; Spring v Guardian Assurance plc [1994] 3 All ER 129 (HL); see K McK Norrie, “Death-Knell for Defamation” (1994) 39 JLSS 418. 417   Spring v Guardian Assurance plc [1994] 3 All ER 129 (HL) at 150 per Lord Goff (quoting an older English case), cited in Fairlie v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200 (OH) at 1209G per Lord Kingarth. 410 411

214

r i ght s of p e rs o n al i t y

for solatium for affront does not lie unless the affront was caused intentionally and, with some possible controversial exceptions,418 negligence will not suffice. So for example to lock a person in a building not knowing he is there does not amount to the delict of wrongful detention and though it may constitute a breach of duty in negligence, the remedy would then be damages for patrimonial loss and not solatium.419 The rationale seems to be that a higher degree of fault than negligence is required in order to justify an award of solatium for injury to feelings.420 This is consonant with Lord Hoffmann’s dictum that he saw “no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence. The policy considerations are quite different”.421 While in relation to some intentional and affront-based delicts (eg assault) the type of harm normally suffered (eg infringement of bodily integrity) is also actionable where it is caused by negligence (eg in an action for personal injury),422 this is not a general rule but an exception probably derived from the example of Roman–Dutch law and the customary delict of assythment.423 In relation to many and perhaps most other affront-based delicts (eg unlawful detention, wrongful civil or criminal proceedings, verbal injury, unauthorised operations at post mortem), generally mere negligence does not justify an award of solatium. The interest itself is not protected unless the invasion is intentional. It seems doubtful whether this proposition is consistent with the Keegan decision that breach of ECHR, Art 8, can be committed by negligence.424 Other possible cases (eg invasion of informational privacy by negligent disclosure of medical records) have yet to be tested.

 In these cases, damages were sought from doctors for negligently failing to warn patients fully of the risks of a particular form of medical treatment and solatium (or in England a “conventional sum”) was awarded when the risk eventuated. See Goorkani v Tayside Health Board 1991 SLT 94 (OH); Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309 (HL); cf McFarlane v Tayside Health Board 2000 SC (HL) 1. 419   SME, “Obligations”, vol 15, para 437 (K McK Norrie). 420  See, eg, Graeme and Skene v Cunningham (1765) Mor 13923. 421   Hunter v Canary Wharf Ltd [1997] AC 655 at 707, cited in Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 260 per Lord Reed. 422   Brown v Macgregor 26 February 1813 FC. 423   Black, “Historical Survey” (Pt II) (1975) 8 CILSA 189 at pp 196–197; J C De Wet, “Criminal Liability and Civil Liability for Wrongful Conduct” (“Edinburgh Lectures”) in J C De Wet (J J Gauntlett, ed), Opuscula Miscellanea 149 at pp 183– 187. 424   Keegan v United Kingdom (Application no 28867/03) [2007] 44 EHRR 33. 418



ov e rv i e w of r i ght s o f p e rs o n al i t y

215

3.6 TRANSMISSIBILITY OF ACTIONS AND CAUSES OF ACTION FOR SOLATIUM FOR WRONGS TO PERSONALITY 3.6.1  Overview This Section deals with the assignability and active and passive transmissibility of actions and causes of action for solatium for the infringement of rights of personality. We are concerned here not with the transmission of the primary rights of personality listed in Section 3.3 above, which civil law systems treat as inalienable,425 but with the transmission of the secondary right generated by a specific delict infringing a primary right. These secondary rights have been intransmissible or conditionally transmissible to heirs, executors or representatives from Roman times till the statutory balkanisation of the law in the 1990s as this Section reminds us. In Scots law, theories as to the nature of solatium, which have traditionally determined whether a claim for solatium is actively or passively transmissible, have changed over time.426 Until early in the 19th century, the private law claim for solatium for real or verbal injury (now sometimes known as the affront-based delicts) was regarded as penal on the analogy of the Roman actio iniuriarum which was an actio poenalis, and therefore intransmissible against the wrongdoer’s executors (or heirs) and representatives (ie passively intransmissible). The injury was also regarded as personal to the victim and therefore not actionable by his or her executors (ie it was actively intransmissible). In the 1790s the modern action of damages for death or bodily injury caused by negligence emerged and soon thereafter solatium was recognised as a competent remedy in such an action.427 From the early 19th century until the present, solatium for the affront-based delicts and solatium for bodily injury due to negligence were both treated not as penal but as compensation for the victim’s non-patrimonial harm. The claim for solatium for the affront-based delicts ceased to be regarded as penal, and the newly recognised claim for solatium for personal injury due to negligence had never been so regarded. Both therefore were regarded as transmissible against the wrongdoer’s executors and representatives. This rule of  See Chapter 11, Section 11.4.3(b) below.  See Section 3.6.2 below. Blackie in Chapter 2 states that the term “solatium” is not found in Scots law till the mid-18th century, citing Cruickshanks v Forsyth (1747) Mor 4034; Finlay v Ruddiman (1763) Mor 3436; Wilkie v Wallace (1765) Mor 7360; Bankton, Institute I,10,35. However, awards of “damages” for nonpatrimonial harm were known long before then. 427   Brown v Macgregor 26 February 1813 FC. 425 426

216

r i ght s of p e rs o n al i t y

passive transmissibility has proved uncontroversial and persisted to the present day.428 It is otherwise with active transmissibility.429 For most of the period from the early 19th century until the 1990s, the dominant theory (with few dissentients) was that the claim for solatium was personal to the injured person, and was therefore actively intransmissible, that is, did not transmit to the injured person’s executors, unless a condition was satisfied that the person had raised an action to enforce his or her claim or (for the short period between 1913 and 1960) had intimated a claim. The same rule on active transmissibility of actions (but not causes of action) to the injured person’s executors and representatives was held to apply both to solatium for affront-based delicts and solatium for personal injury due to negligence. Assignability inter vivos of solatium claims had always been different, relatively uncontroversial and permitted unconditionally. In 1976 legislation abolished altogether the active transmission to executors of actions for solatium for personal injury so that both actions and (at common law) causes of action were intransmissible. In 1993 legislation went to the opposite extreme and made actions and causes of action for solatium for personal injury transmissible to executors. These rules applied whether the personal injury was due to negligence or consisted of an affront (eg assault or real injury). But actions (as distinct from causes of action) for solatium for defamation or verbal injury or other injury to reputation (as distinct from personal injury) remained transmissible to executors430 and all such actions (but not causes of action) for solatium remained transmissible to trustees in bankruptcy, to that extent preserving the pre-1976 common law.431 In this way a relatively unitary law on active transmissibility to executors was fragmented by statute into one rule for personal injuries and another rule for “injury resulting from defamation or any other verbal injury or other injury to reputation”. There seems to be a neglected and uncommented-on third category of solatium claims for real injury. In a counsel of despair, the fragmentation is said to be based on policy not principle. It is however suggested below that, notwithstanding the fragmentation, the rules can be explained by reference to the modern principle of informational privacy. This principle, though not yet denoting a field of delictual liability, was recognised as a value underlying the rules restricting or precluding the involuntary active transmission of solatium claims to third  See Section 3.6.3 below.  See Section 3.6.4 below. 430  See Section 3.6.6 below. 431  See Section 3.6.5 below. 428

429



ov e rv i e w of r i ght s o f p e rs o n al i t y

217

parties. As such, though in slightly different language, it has run like a golden thread through the leading Scottish cases on transmissibility since the 19th century.432 Finally, this Section explores how the new solatium claims for invasion of privacy and the like can or should be fitted into the law on transmissibility. 3.6.2  Solatium characterised as private law penalty until early 19th century As John Blackie shows in Chapter 2, until the early 19th century, a process in the Justiciary court for a real injury often involved three different types of claim, namely: (1) a criminal prosecution ad vindictam publicam at the instance of the public or private prosecutor for punishment of the offender; (2) a private law claim at the instance of the victim for (Aquilian) damages for patrimonial loss (medical expenses and loss of wages); and (3) a private penal claim (derived from the actio iniuriarum aestimatoria) for “a sum of money in solatium of his pain and distress, though not capable of precise estimation”.433 An action for verbal injury in the Commissary Courts was likewise a mixed civil and criminal process for a criminal fine and a claim for solatium and/or a palinode, while a civil action for damages for patrimonial loss occasioned by the verbal injury could be raised before the sheriff or other civil judge ordinary of the bounds.434 In Roman–Dutch law the private penal action for solatium was accepted but, against the background of a new principled division between criminal and civil proceedings, private penal actions were regarded by some important writers as anomalous.435   Bern’s Executor v Montrose Asylum (1893) 20 R 859 (Court of Seven Judges) especially at 863 per Lord McLaren, quoted below; Stewart v LMS Railway Co 1943 SC (HL) 19; Smith v Stewart & Co 1960 SC 329 (Court of Seven Judges). 433  Hume, Lectures, vol III, pp 120; 122. 434  See, eg, Erskine, Institute IV,4,81. Blackie, Chapter 2, Sections 2.2.7 and 2.3.8. 435  Eg Grotius and Matthaeus. See J C De Wet, “Criminal Liability and Civil Liability for Wrongful Conduct” (“Edinburgh Lectures”) in J C De Wet (J Gauntlett, ed), Opuscula Miscellanea 149 at pp 182–183: “It did not fit into [the Roman– Dutch writers’] scheme of actions and they did not know where to classify it nor did they know whether the actio ad palinodiam and/or the actio ad poenam was or were actively and passively intransmissible, or only actively or only passively intransmissible”: ibid, p 183. 432

218

r i ght s of p e rs o n al i t y

At this period Scots law accepted the civil law distinction between actiones poenales and actiones rei persecutoriae,436 that is, penal and reipersecutory actions.437 So for instance Erskine remarked: “We have another division of actions, borrowed from the Roman law, into rei persecutoriae and penales. By the first we pursue barely for the recovery of a subject that is ours, or of a debt which is unjustly withheld from us by the defender. And in this species of action damages are included; for the pursuer is as truly a sufferer in his patrimonial interest by that damage as by the loss of the subject itself.438 In penal actions the pursuer insists, not only for restitution and real damages, but for extraordinary damages, or reparation, by way of penalty.”439

The differences between criminal, civil penal and civil reipersecutory liability have implications for the rules on cumulation and transmissibility. Cumulation. In the case of several wrongdoers liable for the same crime-delict, a fine, being a matter of penalty, is not like patrimonial damages which are paid by each of them in solidum or jointly and severally but is peculiar to each wrongdoer according to that wrongdoer’s degree of fault.440 The rules on passive transmissibility In the 18th century the following rules were established based on Roman law and the ius commune.441 First, a purely criminal fine, being a punishment, is personal to the wrongdoer and passively intransmissible (ie does not transmit against the wrongdoer’s heirs and representatives) even after litiscontestation.442 Second, a conclusion for damages for patrimonial loss is passively transmissible even without litiscontestation. Summing up these two

436   For definitions, see, eg, Trayner, Latin Maxims and Phrases (4th edn, 1894) sv “actio” at p 14. 437  See Mackenzie, Institutions IV,1 (quoted by Walker, Delict (2nd edn, 1981), p 25); Bankton, Institute IV,24,7–9; IV,45,70; Erskine, Institute IV,1,14; Mor sv “Personal and Transmissible”, passim. For a clear analysis and history of the Roman and ius commune background and debates on the nature of penal and reipersecutory actions and the mixed actions (actiones mixta), see De Wet, “Criminal Liability and Civil Liability for Wrongful Conduct” pp 150–186. 438   Citing Hepburn v Maclachlan (1751) Mor 10357. 439  Erskine, Institute IV,1,14. 440  Hume, Lectures, vol III, pp 124–125; Smith v O’Reilly (1800) Hume 605. 441  Eg Bankton, Institute IV,24,7–9; Erskine, Institute III,1,15; Bell, Principles s 546. 442   Gray (Procurator Fiscal of Edinburgh Dean of Guild Court) v Paxton’s Representatives (1773) Mor 10361; Calder v Mackenzie’s Relict and Representatives (1776) Mor “Personal and Transmissible” Appx No 2; at 3 (successful pursuer’s argument); Morrison v Cameron 25 May 1809 FC per LP Blair.



ov e rv i e w of r i ght s o f p e rs o n al i t y

219

rules Erskine observed: “If the delinquent should die, an action of damages lies against his heirs or representatives; for though penalties are not transmissible against a delinquent’s heirs, yet, as the reparation of damages is grounded on an obligation merely civil, the heir of the person obliged must be subjected to it.”443 Third, following the Roman and ius commune rule on iniuria,444 the general rule was that a conclusion for solatium for an affrontbased delict in an action for real or verbal injury was a private penalty and therefore personal to the wrongdoer445 and as such not transmissible against the wrongdoer’s heirs and representatives (unless they were enriched by the injury). There was an important exception namely that (also following the Roman and ius commune rule)446 a civil penal action (including an action by the victim for solatium for real or verbal injury) would transmit against the wrongdoer’s heirs and representatives after his death if during his life there had been litiscontestation447 or its Scottish equivalent for this purpose which eventually became the raising of the

 Erskine, Institute III,1,15.   Justinian, Institutes IV,12,1: “est enim certissima iuris regula ex maleficiis poenales actiones in heredem non competere, veluti furti, vi bonorum raptorum, iniuriarum, damni iniuriae. Sed heredibus huismodi actiones competunt nec denegantur, excepta iniuriarum actione et si qua alia similis inveniatur”. (No rule is more certain than that penal actions arising from wrongs do not lie against heirs. So the actions for theft, things taken by violence, contempt, and wrongful loss do not. But they do descend to heirs and are not refused them. The exception is the action for contempt and any other like it) (trans Birks and McLeod). Cited in Auld v Shairp (1874) 2 R 191 at 198 per Lord Neaves; Stewart v LMS Railway Co 1943 SC (HL) 19 at 24 per Viscount Simon LC who also cited D.12,7,8,1: “litis contestatione et poenales actiones transmittuntur ab utraque parte” (by litiscontestation penal actions become transmissible on both sides). 445  See, eg, Calder v Mackenzie’s Relict and Representatives (1776) Mor Appx No 2; at 3. Macnaughton v Robertson 17 Feb 1809 FC; Morrison v Cameron 25 May 1809 FC (“Actions ex delicto pass against heirs if they are for damages not punishment”) explained in Auld v Shairp (1874) 2 R 191 at 200–201 per Lord Neaves: “while criminal actions do not transmit against heirs, because their object is punishment, which could only answer its purpose by being inflicted on the delinquent himself, yet where damages had arisen by delinquency, the right to reparation was a debt which was no more extinguished by the death of the debtor than any other debt”. 446   Justinian, Institutes IV,12,1: “poenales autem actiones, quas supra diximus, si ab ipsis principalibus personis fuerint contestatae, et heredibus dantur et contra heredes transeunt”. (The penal actions which we have just mentioned do descend to and against heirs if the original parties got beyond joinder of issue) (trans Birks and McLeod). 447  Eg Stuart v Earl of Bute (1712) Mor 10351; Montgomery v Walker’s Representatives (1752) Mor 10360 (action of wrongous imprisonment, oppression and damages). 443

444

220

r i ght s of p e rs o n al i t y

action.448 In 1776, for example, in an action of damages and oppression (for assault) against the alleged wrongdoer’s representatives, the successful pursuer argued: “The action is of a mixed nature, and contains two different conclusions. It is evidently rei persecutoria, so far as it demands reparation of the patrimonial damage actually sustained; and it is penal so far as it concludes for damages in solatium, on account of the injury done to the pursuer, and for such other censure as the Court should think fit to inflict. The first part of the action is transmissible, though there had been no litiscontestation with the defunct. The second is transmissible on account of the litiscontestation.”449

Fourth, in Roman law an actio iniuriarum was both actively450 and passively451 intransmissible, but the praetor granted an enrichment action against the wrongdoer’s heir “in id quod ad eum pervenit”.452 In some cases of real injury (such as assault or wrongous imprisonment) or verbal injury (eg an insult or defamation) the victim suffered but the wrongdoer was not enriched by the delict. In 18th-century Scotland the dominant view apparently was that a transmissible claim ex delicto would lie against the wrongdoer’s heirs and representatives even if they had not been enriched by the delict.453 In modern Scots law it is said that the wrongdoer’s liability transmits against his executor quantum lucratus454 but there is authority that that is construed to mean not that the executor must have been enriched by the delict itself but merely that there must be a lucrative succession under which the executor is liable by passive representation.455

448  When this replaced litiscontestation is not clear but it had occurred by the 1850s; see Neilson v Rodger (1853) 16 D 325. 449   Calder v Mackenzie’s Relict and Representatives (1776) Mor sv “Personal and Transmissible” Appx No 2 at 3. 450   Justinian, Institutes IV,12,1; D.47,10,13pr; D.47,10,28 “Iniuriarum actio in bonis nostris non computatur, antequam litem contestemur” (the actio iniuriarum is not treated as part of our estate until litiscontestation). 451   Justinian, Institutes IV,12,1; D.47,10,13pr. 452  D.50,17,38 (to the extent that he benefited); cf D.47,8,2,27. 453   Bankton, Institute IV,24,7–9; Erskine, Institute III,1,15; Hume, Lectures, vol III, p 127; Bell, Principles (4th edn, 1839), s 546; Hepburn v Maclachlan (1751) Mor 10357 (heir liable for money spuilzied by his predecessor though the heir had not been enriched); Calder v Mackenzie’s Relict and Representatives (oppression and damages; passive transmission on litiscontestation) (1776) Mor “Personal and Transmissible” Appx No 2; at 3 (successful pursuer’s argument). 454  D M Walker, Delict (2nd edn), p 408; Bell, Principles (10th edn), s 546. 455  Eg Auld v Shairp (1875) 2 R 191 at 201 per Lord Neaves.



ov e rv i e w of r i ght s o f p e rs o n al i t y

221

3.6.3  Passive transmissibility of solatium claims in the modern law When in the early 19th century the ordinary civil courts acquired jurisdiction over the affront-based delicts from the Justiciary and Commissary Courts and exercised a new jurisdiction in actions for personal injury due to negligence, the penal theory of solatium was replaced by a theory of compensation. So for instance it was held that the purpose of solatium for assault is compensation not punishment.456 This paved the way for decisions later in the 19th century holding that an action of damages and solatium for wrongous imprisonment457 and, even more significantly, an action of solatium for seduction with no conclusion for patrimonial loss458 could be brought against the wrongdoer’s executors. The result was asymmetrical because a common law claim for solatium for defamation or verbal injury did not transmit to the victim’s executors. But it was held that the passive transmission of claims is on a different footing from active transmission.459 3.6.4  Active transmissibility of solatium claim for wrongs to personality (a)  Development of theory of solatium as remedy for wrongs to     personality From the early 19th century to the 1990s the dominant theory was that the right to claim solatium was inherently personal to the injured person. Its purpose was to give solace for the wrong to personality. If that person died before raising an action for solatium, his right to solatium for suffering died with him. Since solatium was no longer regarded as penal (actio ad poenam or actio poenalis) as it had been in the 17th and 18th centuries, it could no longer be contended that a defender should not escape the consequences of his act merely because the injured person had died. The dominant theory was evolved in a series of cases denying or restricting active transmissibility of solatium for personal injury due to negligence460 and also solatium for such affront-based delicts as 456   Hyslop v Miller (1816) 1 Mur 43 at 54; Lang v Lillie (1826) 4 Mur 82 at 86; Muckarsie v Dixon (1848) 11 D 4 at 5; all cited by Walker, Delict (2nd edn, 1981), p 489. 457   Milne v Gauld’s Trs (1841) 3 D 345. 458   Evans v Stool (1885) 12 R 1295. 459   Stewart v LMS Railway Co 1943 SC (HL) 19 at 42 per Lord Macmillan, instancing Bourhill v Young 1942 SC (HL) 78 and impliedly correcting the contrary view of Lord Neaves in Auld v Shairp (1874) 2 R 191 at 199–200. 460   Neilson v Rodger (1853) 16 D 325 at 327 per LJ-C Hope; Stewart v LMS Railway Co 1943 SC (HL) 19; Smith v Stewart & Co 1960 SC 329 (Court of Seven Judges).

222

r i ght s of p e rs o n al i t y

defamation,461 assault,462 seduction463 and wrongful imprisonment.464 The locus classicus was Lord McLaren’s leading opinion in Bern’s Executor:465 “There are many reasons against the title of an executor, or an assignee, or trustee for creditors, to institute an actio injuriarum, which do not apply to his claim to carry on such an action when already begun. In the case of actions of slander, and claims of damage for seduction, or breach of promise of marriage, the institution of such an action always and necessarily puts the character of the pursuer in issue. The injured person may have excellent reasons for refraining from bringing such an action, and is it to be said that the next of kin who have sustained no injury, and who merely wish to make money out of the sufferings of the deceased, are to be entitled to institute an action which the injured person would have disclaimed, and with the result of giving publicity to facts which no pecuniary inducement and no pressure from creditors would have induced him to disclose? But even in such cases it is a fact perfectly familiar to counsel that the injured party often refrains from pressing his claim, or accepts an inadequate sum of compensation because of his unwillingness to set his face to an inquiry involving the disclosure of facts connected with infirmity of health, losses in business and the like, disclosures which may be very painful even when not discreditable.  Now, if the injured person has himself begun the action, this ground of objection to the executor’s title (a very serious one in my opinion) to a large extent disappears.”

The wide terms of the foregoing passage (especially the references to slander, seduction and breach of promise) suggest that the principle was intended to apply to all cases of solatium for invasions of personality and not merely solatium for personal injury. The same principled breadth of approach is evident in the following dicta of Lord President Dunedin in a later case:

  Auld v Shairp (1874) 2 R 191 (Court of Seven Judges).   Wight v Burns (1883) 11 R 217 (alleged assault by excessive chastisement inflicted by shipmaster on young apprentice; Second Division doubted whether executor of apprentice had title to sue for the apprentice’s right to solatium); Bern’s Executor v Montrose Asylum (1893) 20 R 859 (Court of Seven Judges) (series of assaults on pursuer’s insane wife by a nurse in a lunatic asylum; held her executor no title to sue action for solatium). 463  See the references to seduction in Leigh’s Executrix v Caledonian Railway Co 1913 SC 838 at 844 per LP Dunedin, quoted at n 466 below. 464   Thom v Bridges (1857) 19 D 721 (action of solatium for wrongous imprisonment passed on the pursuer’s sequestration to his trustee in bankruptcy). 465   Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 863 per Lord McLaren. 461

462



ov e rv i e w of r i ght s o f p e rs o n al i t y

223

“Whenever you come to a liability which depends upon reparation that is to be made for personal suffering – whether the suffering is of the purely bodily class, as in the case of injury by accident, or of the mental class which is represented by slander, or of that still more delicate or still more mixed class which is represented by seduction – it is, I think, very evident that if the persons themselves affected do not choose to make a claim, it is very right that nobody else should make it.”466

Bern’s Executor was affirmed in the leading case of Stewart v LMS Railway Co in 1943 when the House of Lords for the first time considered the issues.467 A lady was injured in a railway accident and died of her injuries shortly thereafter. Her estate did not suffer patrimonial loss. The action by her executrix against the railway company was a pure claim for solatium. Viscount Simon LC pointed out that the general rule in Scots law (as in Roman law) is that a cause of action which A has against B is not extinguished by the death of either A or B or by the deaths of both of them. The exceptions to this rule included the right to institute proceedings for damages (solatium) for personal injuries due to negligence. “Such a cause of action survives against the representatives of the wrongdoer but it does not transmit to the representatives of the party injured. This is due to the essentially personal character of such a claim, and follows the treatment in Roman law of the actio injuriarum. No one but the individual who has suffered can complain of his sufferings by instituting proceedings. If, on the other hand the defender’s negligence besides causing personal injuries, damaged the sufferer’s property or caused him other patrimonial loss, the claim to recover this loss would survive in the deceased sufferer’s representative.”468

In a celebrated speech Lord Macmillan observed that though the common form action of damages for personal injury due to negligence was of relatively late (1795)469 and indigenous (not Roman) origin, yet in developing the law on personal injuries “the Scottish judges were influenced by the analogy of the actio injuriarum of the Roman law as expounded in the Institutes, the Digest, and the treatises of continental   Leigh’s Executrix v Caledonian Railway Co 1913 SC 838 at 844.   1943 SC (HL) 19. 468   1943 SC (HL) 19 at 25. 469   First identified case Gardner v Fergusons (1795) (unreported) Advocates’ Library Session Papers, Hume Collection vol 87, No 97; Campbell Collection No 79 No 8. First reported case Innes v Magistrates of Edinburgh (1798) Mor 13189; 13967. The literature is extensive: see most recently K Campbell, “The Session Papers in Four Early Cases of Damages for Personal Injuries” in H L MacQueen (ed), Miscellany Four (Stair Society, vol 49) 225. 466

467

224

r i ght s of p e rs o n al i t y

jurists”.470 He was the first Scottish judge to recognise that the utilis actio legis Aquiliae was a nearer analogue of the modern action of damages for personal injuries due to negligence. Citing Vinnius for the proposition that the purpose of the Roman actio iniuriarum was originally to give redress for personal affront or outrage471 and remarking that in the adaptation of the actio iniuriarum to Scotland the concept of personal vindication of insult tended to drop out of sight, he nevertheless stated that “the conception of the action as purely personal to the injured party persisted” and observed: “The general rule of the Roman law was that a cause of action did not fall by the death of either party. But to this rule the actio injuriarum was an exception. The reason assigned by Vinnius is that its purpose was contumeliam vindicare,472 and by Heineccius quia ad vindictam tendit. 473 Inherent in this was the conception that the wrong was one inflicted on the sufferer’s personality which it lay with him and with him alone to vindicate by legal process. If he did not choose to take action he was assumed to have condoned the wrong, and he alone could condone it. Condonation was inferred if the sufferer took no action within a year.  The essentially personal character of the Roman actio injuriarum has, as I have said, been retained in the Scottish action of damages for personal injuries.”474 [footnotes added]

(b)  Rejection of “doctrine of election” purportedly extending the     executor’s title to sue Lord Macmillan placed the justification of Bern’s Executor on: “this broad principle of the inherently personal character alike of the injury and the remedy. It is only a corollary of this principle to say that the election to sue or not to sue is with the injured person alone and cannot be made by anyone but himself. Where the accident has been instantaneously fatal or the injured person is insane (as in Bern’s Executor) there can be no question of election or waiver. The doctrine must have a wider basis. It follows that, in my view, it is quite inaccurate to describe, as some Judges have done, the wrong suffered

  1943 SC (HL) 19 at 39.  Arnoldus Vinnius, Commentary on the Institutes IV,12 (presumably Commentarius locupletissimus, academicus et forensis in quatuor libros Institutionum Imperialium, 1642): “in ea non principaliter de damno sarciendo sed de contumelia vindicanda agitur” (the action is brought not principally for compensation of patrimonial loss but for vindicating contumely). 472  Vinnius, Commentary on the Institutes IV,12. 473   Johan Gottlieb Heineccius, Recitationes in elementa Juris Civilis, secundum ordinem Institutionum (1733) Lib IV, Tit IV, De Injuria. 474   1943 SC (HL) 19 at 39–40. 470

471



ov e rv i e w of r i ght s o f p e rs o n al i t y

225

by the deceased as constituting a debt due by him to the wrongdoer at the moment of injury. The right of action is in no sense an asset of his patrimonial estate. Actio injuriarum in bonis nostris non computatur (Vinnius, ubi sup)”.475

The rule of the active intransmissibility of claims for solatium was taken as proved by the existence of a well defined exception to it, namely that where the deceased raised an action to enforce his or her claim, this had the same effect as litis contestatio in Roman law, namely that its distinctively personal character was shed and a nova causa obligationis (a new ground of obligation) was created.476 “By the raising of an action the claim loses its personal character and becomes converted into a different and distinctive patrimonial right.”477 The rule was attributed by some judges478 to the executor’s deeply-rooted right479 to insist in any action commenced by the deceased. (c)  Criticism and reforms of the rule on conditional active     transmissibility to executors Broadly speaking, there were three different types of criticism of the rule on the conditional transmissibility to the deceased victim’s executors of his or her solatium claim for wrongs to personality. Conditional active transmissibility: widening the conditions The first criticism focused on the formal and technical nature of the raising of an action as the prior condition of active transmissibility. This criticism accepted the structure of the law which provided for conditional 475   1943 SC (HL) 19 at 40. The judges in question consisted of or included Lord Wood in Neilson v Rodger (1853) 16 D 325 at 329; Lord Neaves and Lord Gifford in Auld v Shairp (1874) 2 R 191 at 199–200 and at 209 respectively; and Lord Trayner in Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 865–867. 476  See, eg, Neilson v Rodger (1853) 16 D 325 (the pursuer died while the action was in dependence but before lodging of defences and litiscontestation in the strict sense; action held transmissible); Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 862 per Lord McLaren; at 873 per Lord Young; Darling v Gray & Sons (1892) 19 R (HL) 31 at 32 per Lord Watson; Stewart v LMS Rly 1943 SC (HL) 19 at 25 per Viscount Simon LC; at 32 per Lord Thankerton; at 40–41 per Lord Macmillan; Watson v Thompson 1991 SLT 683 at 686C, 687C and 688G–H; 477   Watson v Thompson 1990 SLT 374 (OH) at 377 per Lord Caplan; affirmed 1991 SLT 683. 478   Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 873–874 per Lord Young ; Stewart v LMS Rly 1943 SC (HL) 19 at 25 per Viscount Simon LC; at 36 per Lord Thankerton; at 40, 41 per Lord Macmillan; at 44, 45 per Lord Wright; APS (1693) record edn c 24. 479  Which had existed at least since the 17th century: see APS (1693) record edn c 24; Stair, Institutions IV,40,8 and 9; Erskine, Institute IV,1,69; Kames, Elucidations, pp 144ff; Stewart v LMS Rly 1943 SC (HL) 19 at 41 per Lord Macmillan.

226

r i ght s of p e rs o n al i t y

transmissibility, and sought to add a new condition (intimation by the injured party to the wrongdoer of the claim to solatium) which was less formal and technical than the existing one. The criticisms culminated in Leigh’s Executrix in 1913480 in which the Court relaxed the requirements of an executor’s title to sue by equiparating an intimated claim to a raised action. Under this so-called “doctrine of election”,481 the argument was that “(1) the raising of an action by the deceased yields evidence of his election to claim damages and therefore gives the executor a title to sue; (2) the making of a claim without actually having raised an action is similarly evidence of his election; and (3) therefore the making of a claim will give the executor a title to sue”.482 In Stewart v LMS Rly483 the soundness of the decision in Leigh’s Executrix was doubted and the doctrine of election was rejected.484 Subsequently in Smith v Stewart, Leigh’s Executrix was overruled by a Court of Seven Judges.485 This solution of widening the conditions of active transmissibility was not taken up by the Scottish Law Commission in their Reports noted below. Unconditional active intransmissibility The other two criticisms were more radical since they rejected the compromise notion of conditional transmissibility altogether. At one extreme was the criticism that the claim, being purely personal, should not be transmissible to the executor at all: “the stern fact of death from the injuries cuts down all legal subtleties about the transmission of rights of action to executors, and . . . we shall run counter to common sense . . . if we entertain the right of the executors to carry on this action”.486 That solution was adopted by the Scottish Law Commission487 and enacted in the

480   Leigh’s Executrix v Caledonian Rly Co 1913 SC 838 (injured party died without raising action but after intimating claim). See also Traill v Dalbeattie (1904) 6 F 798 per Lord Kinnear; Riley v Ellis 1910 SC 934 per LP Dunedin. 481  See Stewart v LMS Rly Co 1943 SC (HL) 19 at 36 per Lord Thankerton. Note that the Scottish Law Commission, Report on The Effect of Death on Damages (Scot Law Com No 134, 1992), paras 3.11, 3.13, 4.23–4.24 use the phrase “principle of election” in a different sense to denote the principle that legal action is primarily the prerogative of the injured person resulting in absolute active intransmissibility or conditional active transmissibility as laid down by Bern’s Executor and Stewart v LMS Rly. 482   Smith v Stewart & Co 1960 SC 329 (Court of Seven Judges) at 329. 483   1943 SC (HL) 19 at 26 per Viscount Simon LC; at 35, 36 per Lord Thankerton; at 41 per Lord Macmillan. 484   Stewart v LMS Rly Co 1943 SC (HL) 19 at 36 per Lord Thankerton; at 40 per Lord Macmillan. 485   Smith v Stewart & Co 1960 SC 329. 486   Neilson v Rodger (1853) 16 D 325 at 328 per LJ-C Hope (dissenting). 487  Scottish Law Commission, Report on the Law relating to Damages for Injuries Causing Death (Scot Law Com No 31, 1973), paras 21–25; recommendation 5.



ov e rv i e w of r i ght s o f p e rs o n al i t y

227

Damages (Scotland) Act 1976 under which the deceased’s rights to damages for patrimonial loss but not his or her rights to solatium transmitted to the executor.488 Active transmissibility of causes of action  At the other extreme was the criticism that the claim for solatium was simply a debt in the injured person’s patrimonial estate which was therefore transmissible to that person’s executors without any prior condition such as action raised or claim intimated. So for example in one case it was said that where a claim for damages and solatium arises on account of bodily injury, the right vests ipso iure and ipso facto, is a moveable claim, is assignable and passes to personal representatives.489 In similar vein in another case it was said that if an injury is done causing damage, a civil debt immediately arises which transmits to the heir and representatives of the injured party.490 But these were only isolated dissents or obiter dicta which were inconsistent with Bern’s Executor and disapproved in Stewart v LMS Railway. Remarkably unconditional or absolute active transmissibility was the solution eventually adopted by the Scottish Law Commission, moving from one extreme to the other, in a report491 implemented by the Damages (Scotland) Act 1993.492 3.6.5  Assignation and active transmission to trustee in bankruptcy Death and sequestration in bankruptcy effect involuntary and universal transmission. Assignation inter vivos of a solatium claim, on the other hand, is a voluntary and specific transmission. In one of the vagaries of law reform, the Damages (Scotland) Acts 1976 and 1993 dealt only with transmission on death, not assignation inter vivos or sequestration in bankruptcy. At common law a claim for solatium is assignable inter vivos even though no action thereon has been raised.493 By contrast, on the sequestration of the injured  Damages (Scotland) Act 1976, s 2(2) and (4)(a) (as originally enacted).   Neilson v Rodger (1853) 16 D 325 at 329 per Lord Wood, disapproved in 1943 SC (HL) 19 at 29 per Lord Thankerton. 490   Auld v Shairp (1874) 2 R 191 at 199-200 per Lord Neaves; cited with approval in Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 867 per Lord Trayner (dissenting). 491  Scottish Law Commission, Report on The Effect of Death on Damages (Scot Law Com No 134, 1992), paras 4.7–4.10 and 4.22–4.28, recommendations 1 and 4. 492  Damages (Scotland) Act 1976, s 2, as substituted by Damages (Scotland) Act 1993, s 3. 493   Cole-Hamilton v Boyd 1963 SC (HL) 1; sub nom Purden’s CB v Boyd 1963 SLT 157; Traill v Dalbeattie (1904) 6 F 798. 488 489

228

r i ght s of p e rs o n al i t y

person’s estate, the trustee in bankruptcy can continue with and insist in an action for solatium for personal injury or defamation raised by the bankrupt before the date of sequestration494 but cannot raise such an action after sequestration.495 In other words, the common law rule of active transmissibility conditional on raising an action continues to apply to the transmission of solatium claims on sequestration in bankruptcy as it applied to transmission to executors before 1976.496 No official explanation has been given for this difference between executors and trustees for creditors.497 The personal element inherent in a claim for solatium does not prevent its voluntary assignation by the injured person and this has been said to be consistent with the rule that it does prevent unconditional transmissibility to the trustee in sequestration.498 In 1963 in the Cole-Hamilton case499 Lord Reid considered that it might be difficult to find in theory any justification for a distinction between the rule affirming assignability inter vivos of rights to solatium and the then rule denying unconditional transmissiblity of such rights to executors on death. It will be argued below that the key to the distinction is the principle of informational privacy. That principle may be taken to preclude the involuntary transmission of a cause of action to a trustee in bankruptcy but should not be taken to preclude the voluntary transmission of a cause of action by assignation. But Lord Reid did identify “good practical reasons”.500 First, the injured party could himself raise an action and then immediately   Thom v Bridges (1857) 19 D 721; Watson v Thompson 1991 SLT 683, affirming 1990 SLT 374 (OH) (trustee in bankruptcy entitled to sist himself in the action in place of the bankrupt). 495   Muir’s Tr v Braidwood 1958 SC 169; Bern’s Executor v Montrose Asylum (1893) 20 R 859 at 863 per Lord McLaren; at 870 per Lord Young; see also Scott v Johnston (1885) 12 R 1022 at 1024 per Lord Young (obiter): “a claim for damages for slander is not part of the estate which passes to the trustee on the sequestrated estate of the slandered or injured person, and he is not entitled to sue an action to enforce that claim”. Money recovered after sequestration by undischarged bankrupt as solatium however is treated as after-acquired property (acquirenda) and vests in the trustee: Jackson v McKechnie (1875) 3 R 130 (undischarged bankrupt recovered damages for defamation); Bankruptcy (Scotland) Act 1985, s 32(6). 496  The Scottish Law Commission, Report on Bankruptcy and Related Aspects of Insolvency and Liquidation (Scot Law Com No 68, 1982), para 11.12 recommended no change in the law. 497  Scot Law Com No 68, para 11.12 did not refer to the discussion of transmissibility to executors in Scot Law Com No 31 (1973) and the Damages (Scotland) Act 1976. 498   Watson v Thompson 1991 SLT 683 at 688 per Lord Clyde (obiter). The reasons of principle, however, were not explained. 499   Cole-Hamilton v Boyd 1963 SC (HL) 1; sub nom Purden’s CB v Boyd 1963 SLT 157. 500   1963 SC (HL) 1 at 12. 494



ov e rv i e w of r i ght s o f p e rs o n al i t y

229

grant a valid assignation of his claim. So it is but a small step to allow him to assign first. Second, if an injured party could not assign his claim for solatium, but could assign his claim for patrimonial loss, the injured party and the assignee would have to join together in the one action in order to comply with the rule that a single delict cannot be made the ground of two or more actions against the same person.501 The general rule that a right to claim money was assignable has since at least the early 19th century been taken as a matter of course to apply to personal (ie personality) rights to solatium until the doubts thrown up by the Stewart case in 1943.502 In their report of 1992, the Scottish Law Commission considered whether there might be some justification for the distinction between the different rules on assignability and transmissibility: “Assignability has a cash value which the injured person can realise. Control of the claim remains with the injured person unless and until it is assigned. Transmissibility, on the other hand, may involve loss of control over the claim and cannot be so easily translated into money’s worth.”503 The Commission, however, did not find that reasoning convincing and observed: “The fact is that a claim for solatium combines both personal and patrimonial elements. In some cases the personal elements predominate, in others the patrimonial elements. We therefore conclude that the question whether the right to claim solatium should be transmissible cannot be answered merely by analysing the nature of solatium. The question, as we see it, is whether or not or to what extent, as a matter of policy, the right should transmit.”504

This uncharacteristic retreat from principle is unfortunate. While it may be true that transmissibility does not depend solely on an analysis of the nature of solatium, it does not follow that the factors on which it does depend are, or ought to be, factors of policy rather than principles.505 It is thought that the principle of informational privacy – that is to say, the doctrine that as a general rule a person is entitled to control   Stevenson v Pontifex and Wood (1887) 15 R 125.   Cole-Hamilton v Boyd 1963 SC (HL) 1 at 16 per Lord Guest, citing Milne v Gauld’s Trs (1841) 3 D 345; Gardiner v Main (1894) 22 R 100; Aitken v Gourley and McNab (1903) 5 F 585. 503  Scottish Law Commission, Report on The Effect of Death on Damages (Scot Law Com No 134, 1992), para 3.19. 504   Ibid, para 3.20. 505  This uncharacteristic scepticism about principle may perhaps be excusable in a body compelled by changes in public and professional opinion to execute “an elegant U-turn”: see A Rodger, “Thinking About Scots Law” (1996) 1 Edin LR 3 at p 9. 501

502

230

r i ght s of p e rs o n al i t y

what private and personal true information should be disclosed to others – goes far to explain why under the common law a solatium claim is voluntarily assignable but not involuntarily actively transmissible to the trustee in the injured person’s sequestration unless the person has raised an action to enforce the claim. The statutory rule of unconditional transmissibility to executors might also be justified by reference to the principle of informational privacy, at least in some cases, upon the view that once the injured person has died, he cannot thereafter be embarrassed by the disclosure of private and personal information. However, his reputation can be harmed after his death and his surviving relatives embarrassed. It is otherwise with sequestration in bankruptcy where the principle of informational privacy suggests a rule of transmission should indeed be conditional on the bankrupt having raised an action. 3.6.6  Active transmissibility of solatium claims for wrongs to personality other than personal injuries due to negligence The Damages (Scotland) Acts 1976 and 1993 have tended to fragment the law on invasion of personality rights. As just seen, they applied to transmissibility on death but not transmissibility on sequestration in bankruptcy. They applied only to solatium for “personal injuries” as defined therein. Most forms of “assault” (a species of real injury) will fall within the definition of “personal injuries” but most affront-based delicts do not. The 1976 Act was not intended to apply to solatium for the other types of wrong to personality.506 The Scottish Law Commission was aware of this problem, pointing out that “[i]njury to self respect or reputation may be a component of other kinds of action, for example actions of damages for wrongful arrest or imprisonment, or for certain abuses of legal process”.507 The Commission’s Report of 1992 recommended that the unconditional transmissibility solution should not apply to solatium (defined as “damages other than for patrimonial loss”) for “injury resulting from defamation or any other verbal injury or other injury to reputation”.508 In 1993, a new subsection was inserted in the  There was Outer House authority construing the Prescription and Limitation (Scotland) Act 1973, s 17, holding that the expression “personal injuries” covered injury to feelings as was held in Barclay v Chief Constable, Northern Constabulary 1986 SLT 562 and Fleming v Strathclyde Regional Council 1992 SLT 161; but this has now been corrected and the latter case overruled by the Inner House in Mack v Glasgow City Council [2006] CSIH 18; 2006 SLT 556 relying inter alia on dicta in Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94 at 101 per Lord Hope of Craighead. 507  Scot Law Com No 134, para 4.29. 508  Scot Law Com No 134 (1992), paras 4.29–4.35; recommendation 5. 506



ov e rv i e w of r i ght s o f p e rs o n al i t y

231

1976 Act putting into statute the conditional transmissibility doctrine of the common law by providing that solatium in respect of such injury should be transmitted to the deceased’s executor only if an action to enforce that right had been brought by the deceased before his death and had not been concluded by then.509 It will be noted that the expression “any other verbal injury” uses “verbal injury” as the genus, not as the species.510 The expression “other injury to reputation” must have reference to injury to reputation by acts511 – in other words, real injury in the relevant sense. It is thought that the foregoing statutory provision replicating the common law on active transmissibility of actions raised does not cover the whole field that is to say it does not cover claims to solatium which are neither for personal injury nor “injury resulting from defamation or any other verbal injury or other injury to reputation” within the meaning of s 2(4) of the 1976 Act (as substituted). For example, it does not cover all injuries by acts (“real injury”) which cause affront but do not cause harm to reputation. So there seems to be a third category of solatium claims for real injury including some which have long been recognised in Scots law such as unauthorised operations or removal of organs at post mortem, or acts (eg photographs or other images) in breach of confidence and some which are only now being recognised such as acts invading informational privacy. That omission in the statute may simply mean that the common law rule, which provides for transmissibility of actions but not causes of action, would apply. But the matter is not free from doubt. 3.6.7  Active transmissibility and solatium claims for infringements of right to privacy How would the new solatium claims for invasion of privacy (such as misuse of private information or breach of informational privacy) fit into the law on transmissibility to executors or trustees for creditors? As suggested above it is thought that such a claim would be actively transmissible to executors either by virtue of s 2(4) of the 1976 Act (as substituted) or at common law, if and only if the injured party had raised an action. Furthermore such a claim would also be transmissible to the injured person’s trustee in sequestration at common law only if the injured party had raised an action. Such a  Damages (Scotland) Act 1976, s 2(4), as substituted by Damages (Scotland) Act 1993, s 3. 510  See Norrie, Defamation, p 33. 511  This seems to have been the intention; see Scot Law Com No 134, para 4.29, which referred to “actions of damages for wrongful arrest or imprisonment, or for certain abuses of legal process”. Another example might be photographs. 509

r i ght s of p e rs o n al i t y

232

result seems preferable to conferring on an executor a power to bring an action for solatium for invasion of privacy which could reveal private and personal information sullying the deceased’s reputation and embarrassing surviving relatives and which the injured person would not have brought. It also seems preferable to conferring such a power on the injured person’s trustee in bankruptcy to bring an action for breach of the injured person’s privacy (which may publicise highly embarrassing information) without the injured person’s permission or even over the injured party’s protests. 3.7  REMEDIES FOR INFRINGING RIGHTS OF PERSONALITY 3.7.1  General There are several remedies for infringement of personality interests in Scots law and other systems but their incidence and scale of use have changed over time. Interim orders pendente lite (interlocutory orders; provisional or protective measures) are probably discretionary in all systems but the relation between final decrees for damages and for interdict (injunction) tend to differ as between common law and civil law systems and Scots law is influenced by both. Experience in developing the law of delict (notably nuisance) suggests that some of the principles of liability (especially those relating to fault or strict liability) should vary according to the remedy sought while other principles of liability (notably those relating to unlawfulness) should remain constant irrespective of remedy. In England there is long-term, widespread dissatisfaction with the English tort of defamation. Through successive editions of his masterly casebook, Tony Weir has located the cause of the mischief in the extension of damages beyond its compensatory function to a declaratory or retractive function and a punitive function. He remarks: “The defects of the present law arise because it uses a single remedy, the action for damages, in order to perform three distinct purposes; (a) to permit people to clear their name from unfounded allegations; (b) to allow people to claim compensation for the harm they suffer because others have abused their freedom of speech, and (c) to repress gratuitous vituperation, scurrilous disparagement and malignant calumny.   Only for (b) is damages the appropriate remedy. For (a) we need a procedure for retraction or coercion, and for (c) we need the public stocks.”512  T Weir, A Casebook on Tort (10th edn, 2004), p 523.

512



ov e rv i e w of r i ght s o f p e rs o n al i t y

233

3.7.2  Restoration of reputation by palinode (amende honorable), declarator or nominal damages For many centuries, under the influence of the canon law, civil law systems including Scots law empowered the courts to grant the remedy of the palinode. This required a person who had defamed another to apologise and to retract the defamatory imputation. The palinode however was generally departed from on the continent in the 18th and 19th centuries.513 In Scotland it was never formally abolished but withered away, probably in the 1830s and 1840s,514 and there is authority by dictum in a case in 1850 that it had fallen into disuse by then.515 In the same case it was observed that with the desuetude [sic] of the palinode:516 “the action now applicable to the case is an action of damages, which certainly is not an action whose primary object is the recovery of money. . . . It is an action to get redress against injuries, and solatium. It is just a conclusion for vindication of character, which the law says cannot be in the form of a declarator, but can only be by concluding for pecuniary conclusions”.

It is not clear why it was thought that declarator was incompetent. Despite the absence of any reported case of declarator of defamation, Norrie states (rightly, it is thought) that in principle such a declarator is competent and could serve the same function as a palinode where no patrimonial loss had been caused and the pursuer’s intent was solely to restore his or her reputation.517 It has been suggested that at common law an apology offered timeously will mitigate damages.518 There is now however a statutory

513  Zimmermann, The Law of Obligations, p 1090. In South Africa it has recently been held that the amende honorable has not been abrogated by disuse and is perfectly compatible with the new constitutional norms: see Mineworkers’ Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W). 514  It was still competent in the sheriff court in 1831: see Turner v Cuthbert (1831) 9 S 774 at at 775 per Lord Balgray; at 776 per LP Hope. 515   Smith v Stoddart (1850) 12 D 1185 at 1188 per Lord Mackenzie; at 1190 per LP Boyle. However, a common law remedy (which the palinode is) cannot be abrogated by disuse: McKendrick v Sinclair 1972 SC (HL) 25. Interestingly, as late as 1875 counsel argued that if a bankrupt brought an action for a palinode or retraction, that might possibly be so personal that it could not be taken up by his trustee in bankruptcy: see Jackson v McKechnie (1875) 3 R 130 at 132. 516   Smith v Stoddart (1850) 12 D 1185 at 1188 per Lord Mackenzie. To a like effect were the opinions of LP Boyle and Lords Fullerton and Cuninghame. 517  Norrie, Defamation, p 179. 518   By analogy with a Victorian English statute (6 & 7 Vict c 96); D Oswald Dykes (ed), Cooper on Defamation and Verbal Injury (2nd edn, 1906), p 258; W J Stewart, Reparation (2000), para 8.33.

234

r i ght s of p e rs o n al i t y

procedure for an offer to make amends under the Defamation Act 1996.519 In Scotland it is sometimes said, and may be the majority view, that nominal damages are never awarded. Given the existence of declarator, nominal damages should indeed be rare and probably confined to cases where the pursuer proves defamation but only very slight or non-existent harm. The unexplained doubts (noted above) about the competence of declarator might explain the existence of older cases of nominal damages for defamation. Walker on Delict520 has identified five reported cases of defamation in which what he calls nominal damages were awarded.521 3.7.3  Interdict against anticipated or repeated delicts harming interests in personality It is sometimes said that a Scottish court will be slow to grant interim interdict of defamation because it takes jurisdiction away from the jury.522 In Scotland defamation is an enumerated cause for jury trial.523 In the modern law, however, where a prima facie case of defamation or verbal injury is made out, interdict will normally be granted unless at the interim stage the balance of convenience otherwise dictates.524 In interim interdict, the test is the balance of convenience and therefore the Scottish courts have explicitly declined to follow the English approach whereby an injunction will be granted in only the clearest cases.525 Under important provisions of the Human Rights Act 1998, s 12(3) designed to safeguard freedom of expression and of the press, the court cannot grant interim interdict restraining publication before trial unless it is satisfied that the pursuer “is likely to establish that

 Defamation Act 1996 (c 31), ss 2–4. In England this is said to be a more successful procedure than that under the Defamation Act 1952, s 4, which was little used. 520   (2nd edn, 1981), p 41, n 63. 521   Keddie v Walker (1822) 3 Mur 38 (1 shilling); Hamilton v Stevenson (1822) 3 Mur 75; (1 shilling); Cleland v Mack (1829) 5 Mur 70 (1 shilling); Sproll v Walker (1900) 2 F 73 (farthing); Bradley v Menley and James 1913 SC 923 (6 pence on each of three issues). 522   Newton v Fleming (1848) 6 Bell 175 at 190 per Lord Cottenham LC; Fairbairn v SNP 1980 SLT 149 (OH) at 151 per Lord Ross. 523   Court of Session Act 1988, s 11. Jury trial has experienced a resurgence since it almost withered away in the mid-1980s: see A M Hajducki, Civil Jury Trials (2nd edn, 2006), Chapter 2. 524  Norrie, Defamation, p 176. 525  See Waddell v BBC 1973 SLT 246 per LJ-C Wheatley; Boyd v BBC 1969 SLT (Sh Ct) 17 per Sh Pr Bryden. 519



ov e rv i e w of r i ght s o f p e rs o n al i t y

235

publication should not be allowed”.526 The court is expressly required “to have particular regard to the importance of the Convention right to freedom of expression”.527 Under the general law, there are differences between permanent interdict and the English law on injunctions.528 Moreover, one feature of the use by the English courts of breach of confidence to protect a person from invasions of privacy by public disclosure of private information is that once confidential information is in the public domain, it loses its quality of confidentiality and repeat publication cannot be interdicted.529 By contrast, in principle each repeat publication of information protected by privacy is a new wrong and can be interdicted. This is one of several factors which make breach of confidence an inappropriate mechanism for protecting privacy.530 In England and the Republic of Ireland injunctions have been granted preventing public disclosure by the media of true information about particular vulnerable persons which would seriously endanger their life.531 As a general rule, however, it is not competent for a Scottish court to grant an interdict against future breaches of privacy binding any unnamed persons who are not parties to the proceedings, even if the interdict is restricted to persons having notice of the interdict. The reasons are that persons upon whom the proceedings are not served have no opportunity either to resist the application for interdict or to move for its recall, and moreover any caveat lodged by a person not called as a party would be ineffective.532 Exceptions to this rule may have to be considered in the light of the English and Irish experience. 526  Applied in Response Handling Ltd v BBC [2007] CSOH 102 [and 103]; X v BBC 2005 SLT 796 (OH); Dickson Minto WS v Bonnier Media Ltd 2002 SLT 776 (OH). See R M M McInnes, “Undercover Filming and Corporate Privacy: Response Handling Ltd v BBC” 2007 SLT (News) 150; C R Munro, “Prior restraint of the media and human rights law” 2002 JR 1. 527   1998 Act, s 12(4). 528  There is (fortunately) no Scottish parallel to the technical English rule of Equity that an injunction will not be granted if damages would be an appropriate remedy; Lord Cairns’s Act does not apply in Scotland; and the judicial discretion to refuse permanent interdict (if indeed it exists) is more limited than in England. On the other hand, the law on contempt of court to enforce an interdict is broadly the same as in English law. 529   A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 (HL); Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122. 530  See Elspeth Reid in Chapter 4; Section 3.4.7(f) above. 531  See, eg, Burke v Central Independent Television [1994] 2 ILRM 161 (Irish Sup Ct); Venables v News Group Newspapers Ltd [2001] Fam 430; see n 109 above. 532   Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122 at 134–135(Lord Ordinary); 147 (LJ-C Ross); 155–156 (Lord Dunpark); 160–161 (Lord McDonald). Opinion reserved in House of Lords; Pattison v Fitzgerald (1823) 2 S 536, explained in Oliver & Son, Petr 1999 SLT 1039.

236

r i ght s of p e rs o n al i t y

3.7.4  Order ad factum praestandum In appropriate cases the court will make an order ad factum praestandum such as the delivery up or destruction of documents infringing the pursuer’s rights of personality. In Adamson v Martin,533 for example, photographs and fingerprints were taken by police sergeants of a boy aged 17, just after he had been acquitted of theft, and preserved in the records of habitual criminals. The court held this act to be defamatory and ordered the defender chief constable to destroy the photographs and fingerprints within 10 days in the presence of parties’ agents and at the sight of the sheriff clerk. 3.7.5  Criminal proceedings? Until at least the late 18th century the same principles of responsibility governed real and verbal injury whether the proceedings were criminal or civil.534 This was partly a reflection of the general history of delict in Scotland (in which delict was for long regarded as the civil aspect of crime)535 and partly the result of the fact that the process of scandal in the Commissary Courts was both a criminal prosecution for a fine payable to the procurator fiscal of the court and also a civil action craving damages payable to the pursuer. In the early 19th century the criminal law on real and verbal injury withered away536 and only survived in differently named crimes such as assault.537 3.7.6  Solatium for non-patrimonial injury and compensatory damages for patrimonial loss In Scotland, as indicated above, the purpose of an award of solatium in the action for real or verbal injury and its doctrinal progeny has changed over time. At one time solatium was regarded as a civil penalty538 but since the early 19th century it has invariably been regarded as compensation for affront and injured feelings This preserves, or purports to preserve, the theory that in Scots civil

  1916 SC 319.   John Blackie in Chapter 2. 535  Norrie, “The Intentional Delicts” pp 477–478. 536   Blackie, “Defamation” 633 at p 686. 537   SME Reissue, “Criminal Law”, para 205ff; see also para 13 showing that the concept of “real injury” in Hume’s Commentaries on Crimes I, 327, wrested from its historical context in iniuria, was relied on in the modern law to render criminal the supply to children of substances which are dangerous when inhaled. See Khaliq v HM Advocate 1984 JC 23. 538  See Section 3.6.2 above. 533

534



ov e rv i e w of r i ght s o f p e rs o n al i t y

237

law damages are always compensatory and (apart from isolated anomalies) never penal. There is, however, some judicial support for the view that solatium may be awarded “as acknowledgement of, rather than reparation for, the pursuer’s wounded feelings”.539 Another possibility requiring exploration is that an award of solatium marks the infringement of the personality right or commission of the delict, ie is a delict per se. The general rule in English and European systems of tort/delict is that the pursuer must have suffered patrimonial loss for an action of damages to succeed. There is an exception in the case of certain English torts per se such as trespass and the proprietary torts, for example conversion. Nevertheless, according to Christian von Bar: “That condition is rarely fulfilled merely by violation of the plaintiff’s rights or of his person. Only if further detriment, such as financial loss or pain and suffering, is caused is damage considered to arise. This rule is applicable irrespective of whether a legal system awards damages only for violations of absolute rights and objects of legal protection, or instead allows the recovery of all losses arising from conduct deemed fautif by the courts.”540

A recent work subdivides the Scots law of solatium541 into eight categories542 of which seven are associated with personal injuries or death and one deals with “wounded feelings and affront”. The latter is the badge of the actio iniuriarum and its doctrinal progeny.543 There is authority that solatium may be awarded for virtually all of the delicts protecting rights of personality including assault,544 wrongful detention;545 wrongful apprehension;546 wrongful 539   Smith v Comrie’s Executors 1944 SC 499 at 500 (a damages for death case), cited by Walker, Civil Remedies, p 942. 540   C von Bar, “Damage without Loss” at p 24. 541  White and Fletcher, Delictual Damages, pp 36–51. 542  These are: (i) physical pain and discomfort; (ii) physical injury and disfigurement; (iii) physical illness and disease; (iv) psychological suffering; (v) wounded feelings and affront; (vi) loss of faculties; (vii) loss of amenities; and (viii) loss of expectation of life. 543  White and Fletcher, p 43 state that this category is taken as including solatium awarded in actions for defamation and verbal injury, wrongful arrest and detention and malicious prosecution and “disappointment, distress and annoyance” which includes statutory damages under the Copyright, Designs and Patents Act 1988, s 97(2) (additional damages for flagrant breach of copyright) and ss 77–89 (moral rights). 544   Bell, Principles, s 2032; Cruickshanks v Forsyth (1747) Mor 4034; Anderson v Marshall (1835) 13 S 1130; Walker, Delict (2nd edn, 1981), p 489; Civil Remedies, pp 990–991. 545   Mackenzie v Cluny Hill Hydropathic Co 1908 SC 200; Walker, Delict (2nd edn, 1981), p 681. 546  Walker, Delict (2nd edn, 1981), p 685.

238

r i ght s of p e rs o n al i t y

imprisonment;547 defamation;548 verbal injury (including malicious falsehood);549 wrongful prosecution;550 abuse of civil process;551 seduction;552 entrapment;553 and (possibly) breach of confidence554 as well as certain infringements of personality rights which do not fall within recognised or nominate delicts such as stripping prisoners of their clothes in such manner as to impair their privacy and dignity;555 breach by the NHS of a patient’s autonomy;556 and unauthorised operations and removal of human organs at post mortem.557 In relation to wounded feelings there is a difference between English law and some civil law and mixed systems. “English law does not recognise any action for injury to the feelings as such and is not likely to.”558 Apart from the torts of assault and battery, “English law prefers to play safe by allowing recovery for mental distress only where some other recognised wrong has been committed – in a word, damages for injury to feelings and mental distress are ‘parasitic’”.559 In 1900 the drafters of the BGB rejected a proposal that a defaming wrongdoer should be liable to pay solatium for the affront or the wounded feelings (“moral damage”)560 arising from a violation of honour. “Such compensation was regarded as a disguised penalty and therefore inappropriate as a civil remedy, and it was felt that weighing honor in terms of money would lead to an undesirable cheapening of intangible

 Walker, Delict (2nd edn, 1981), p 691.   Mackay v McCankie (1883) 10 R 537; Ramsay v MacLay & Co (1890) 18 R 130. 549   Sheriff v Wilson (1855) 17 D 528; Steele v Scottish Daily Record 1970 SLT 53; Norrie, Defamation, pp 41–43. 550  Walker, Civil Remedies (1974), p 1009; citing Graham v Strathern 1924 SC 699 at 720. 551  Walker, Delict (2nd edn, 1981), p 848. 552  Walker, Delict (2nd edn, 1981), p 698; at p 699 “the damages are not so much solatium as ‘in compensationem ipsius dotis’”; at p 702 hurt feelings, defloration, loss of marriage market. 553  Eg Mackenzie v Macfarlane (1897) 5 SLT 292 (OH); Burke v Burke 1983 SLT 331 (OH). 554   AB v CD (1851) 14 D 177 at 180 per Lord Fullerton: disclosure by doctor “may be most injurious to the feelings, and possibly the pecuniary interests of the party consulting”. The question has not yet been decided: SME “Property”, Pt II Intellectual Property, vol 18, para 1489. 555   Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH). 556  Eg Goorkani v Tayside Health Board 1991 SLT 94 (OH); McFarlane v Tayside Health Board 2000 SC (HL) 1 at 44, 45 per Lord Millett. 557   Stevens v Yorkhill NHS Trust 2006 SLT 889 (OH). 558  P R Handford, “Moral Damage in Germany” (1978) 27 ICLQ 849 at p 849. 559   Ibid. 560  Zimmermann, The Law of Obligations, pp 1090ff. 547

548



ov e rv i e w of r i ght s o f p e rs o n al i t y

239

values. Essentially the argument was that anyone who would sell his honor for money had no honor”.561

The current trend in many modern legal systems, including German law,562 and internationally563 however inclines to awarding solatium for the mere infringement of a right per se. The Scottish courts have long awarded solatium for unwitnessed insults564 (in contrast to England or Germany565). There may be cases where the Scots courts would award solatium for affront where the English courts would refuse to award exemplary damages.566 In assessing solatium for defamation the jury “was bound to take into account such factors as injury to feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, the reaffirmation of the truth of the matters complained of, and vindication of the plaintiff’s reputation”.567 In the Stevens case568 both parties proceeded on the basis that solatium is the same whether the claim is based upon an independent wrong (actio iniuriarum) or negligence. This was doubted by

 H D Krause, “The Right to Privacy in Germany: Pointers for American Legislation” 1965 Duke LJ 481 at p 511. He continues: “Articles 253 and 847 of the BGB resulted. Together, they provide that non-pecuniary harm is compensable only in the case of injury to the body, health or freedom.” 562  See Zweite Gesetz zur Änderung schadensersatzrechtlicher Vorschriften (Second Act on the Amendment of Provisions on the Law of Delict and Damages) of 19 June 2002, BGB1.2002 I 2674ss which came into force on 1 August 2002. See new §253(2) BGB; also Zimmermann, The Law of Obligations, pp 1090ff. 563  Eg C von Bar, E Clive and H Schulte-Nöltke (eds), Principles, Definitions and Model Rules of European Private Law Draft Common Frame of Reference (DCFR) (Interim Outline Edition) (2008), r VI-2.203 (Infringement of dignity, liberty and privacy) which provides that (as well as loss) “the injury as such” is legally relevant damage. 564   Mackay v McCankie (1883) 10 R 537 especially at 539 per LP Inglis. See also Carter v Crighton (1778) (not reported), referred to in Mor “Delinquency” Appx No 4; Hutchison v Naismith (1808) Mor “Delinquency” Appx No 4; 18 May 1808 FC; Hume 614 (note); Lovi v Wood (1802) Hume 613, note correcting Lord Cullen; Allan v Douglas (1810) Hume 639; Miller v Mackay 18 Nov 1811 FC; Thom v Cameron (1813) Hume 646; McCandie v McCandie (1827) 4 Mur 198. 565  Von Bar, “Damage without Loss”, p 25, citing inter alia BGH 17 June 1953, BGHZ 10, pp 104, 106; Pullman v W Hill & Co Ltd [1891] 1 QB 524, 527 per Lord Esher MR (insult in letter); also verbal insults in the absence of a third party constitute no slander: Markesinis and Deakin, Tort Law (3rd edn, 1994), p 580. 566  See Hector MacQueen in Chapter 12, commenting on dicta in the English case of Watkins v Home Secretary [2006] UKHL 17; [2006] 2 AC 395 (HL) at paras 30–31 per Lord Hope, and para 64 per Lord Rodger. 567   Tolstoy v United Kingdom (1995) 20 EHRR 442 at 470, cited in A M Hajducki, “Civil Juries and Solatium” 2002 SLT (News) 271 at p 271. 568   Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH). 561

240

r i ght s of p e rs o n al i t y

Temporary Judge MacAulay who considered briefly how solatium claimed for hurt feelings arising from unauthorised operations at post mortem “would fit into the modern legal landscape that requires psychiatric injury or nervous shock to be proved in order to sustain a claim in negligence”. He thought that “[i]n principle solatium for ‘hurt feelings’ caused by affront based upon the actio injuriarum is a different animal to the solatium that can be awarded to a claimant for physical or psychiatric injury. Prima facie the threshold for recovery for hurt feelings is lower than that for psychiatric injury”.569 In quantifying the amount of the solatium due, no account is taken of the means of the defender.570 The awards of solatium are necessarily somewhat arbitrary and it is not easy to discern principles.571 The following facts may help to fill out the picture. The awards of solatium for defamation can be substantial,572 though generally reckoned to be much less than English awards. As regards assault, in the Downie case in 1998573 an assault of the pursuer by two policemen consisted of punches to his face, truncheon blows to his shoulder and back, and a kick to his side. He was then wrongfully arrested and detained in custody for four nights and also maliciously prosecuted. The award of damages for the assault was £1,500; for the wrongful arrest and detention £2,000; and for the malicious prosecution £1,500 (plus £550 for legal expenses). In the Henderson case in 1988 the woman pursuer was awarded £300 as solatium for being forced by the police to remove her bra.574 The awards of solatium to women for entrapment have varied greatly ranging from £1,000 in 1727; through £100 in 1756; £50 in 1897; nil in 1948; to £2,500 in 1983.575   Stevens v Yorkhill NHS Trust [2006] CSOH 143, para 63.   Burke v Burke 1983 SLT 331 (OH) (entrapment) at 334–335, citing A v B (1875) 12 SLRep 621 (seduction; court refused warrant for diligence for recovery of documents). Cf Somerville v Thomson (1896) 3 SLT 298 at 298–299 (opinion reserved per Lord Trayner). 571  See, however, A M Hajducki, “Civil Juries and Solatium” 2002 SLT (News) 271. 572  See Baigent v BBC 2001 SC 281: (damages for defamatory statements made in a BBC documentary about care home operated by husband and wife who were awarded £50,000 and £60,000 respectively and each of their children £20,000; Wray v Associated Newspapers Ltd 2000 SLT 869 (Note) (OH) (defamation; MP was accused in national newspaper The Mail on Sunday of wife battering and bullying and being a control freak; front-page banner headline; the whole of pages 1 and 3; solatium fixed at £60,000). 573   Downie v Chief Constable, Strathclyde Police 1998 SLT 8 (Note). 574   Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH). 575   Clark v Fairweather (1727) Hermand 95; Morison v Dunlop (1756) Hermand 94; (£100); Mackenzie v Macfarlane (1897) 5 SLT 292 (OH) (£50); Van Mehren v Van Mehren 1948 SLT (Notes) 61 (OH) (nil for solatium but small sum of damages for patrimonial loss in respect of outlays); Burke v Burke 1983 SLT 331 (OH) at 334 (£2,500). 569

570



ov e rv i e w of r i ght s o f p e rs o n al i t y

241

The Scottish Law Commission’s Report on Damages for Psychiatric Injury576 which extended its original remit to cover wounded feelings as well as psychiatric injury, and intentional delicts as well as negligence, made no mention of the actio iniuriarum and would, if implemented, introduce into Scots law the English concept of solatium as parasitic damages. 3.7.7 Disgorgement of gains What about the gain made by newspapers through the unauthorised exploitation of another’s personality? In the litigation of Princess Caroline of Monaco against German newspapers, large monetary awards were made referring (i) to the very questionable idea of Genugtuung (satisfaction; amends) and also (ii) to the fact that the newspapers had made a large gain “at the expense of” Caroline.577 In principle disgorgement of gains is a matter for the law of unjustified enrichment.578 This is one of the reasons why it is important to recognise a primary right of personality to the infringement of which many remedial consequences (secondary rights) can be tied, including redress of unjustified enrichment, rather than merely to revive the actio iniuriarum aestimatoria. In England one could come to the same conclusion: restitution of wrongs could be extended beyond infringement of ownership, fiduciary duties and breach of contract to these types of cases.579 There are precedents in the USA580 and indeed in an English case involving the publication of photographs invading privacy, the court “found persuasive” the suggestion that a claim for breach of confidence falls to be categorised as a restitutionary claim for unjust enrichment.581 The subject concerns the relationship between two branches of law (namely, rights of personality and disgorgement of gains without mirror loss) which

576  Scot Law Com No 196 (2004); cf N R Whitty (2005) 9 Edin LR 194 at pp 208–209. 577   BGH 15 November 1995, abstracted in J Beatson and E Schrage (eds), Cases, Materials and Texts on Unjustified Enrichment (2003), pp 553–555; BVerfGE 101, 361 15 December 1999, abstracted in Markesinis and Unberath, The German Law of Torts (4th edn), pp 450–462. 578  In German law the invasion action or Eingriffskondiktion: see R Zimmermann, “Unjustified Enrichment: The Modern Civilian Approach” (1995) 15 OJLS 403 at pp 418–421; BGB, §812; Markesinis and Unberath, The German Law of Torts (4th edn), pp 476–477. 579  A Burrows, The Law of Restitution (2nd edn, 2002), Chapter 14. 580  See, eg, S R Barnett, “‘The Right to One’s Image’ – Publicity and Privacy Rights in the United States and Spain” (1999) 47 Amer J Comp L 555. 581   Douglas v Hello [2005] EWCA Civ 595, para 97, citing Dicey and Morris, Conflict of Laws (13th edn, 2000), vol 2, paras 34.029ff.

242

r i ght s of p e rs o n al i t y

only began to evolve in the 20th century and then only in some advanced legal systems.582 In Scots law the better view is that the disgorgement (giving up)583 of an enrichment acquired by act of the party enriched without mirror loss is subsumed within the law of unjustified enrichment rather than within the law of delict where damages are compensatory.584 The scope of this category of “enrichment by taking” is problematic but it does include cases of infringement of intellectual property rights such as patents where the court will grant a sum as deemed “royalties” by way of recompense at common law.585 There is a close analogy between disgorgement of gains arising from infringement of intellectual property rights and disgorgement of gains from unauthorised exploitation of personality rights: “the interest which underlies protecting the right of publicity is the straightforward one of preventing unjust enrichment by the theft of goodwill”.586 3.7.8  No exemplary or punitive damages In Scots law, it is generally accepted that damages are never exemplary or punitive.587 There is however a connection between exemplary damages and solatium for wounded feelings which some would regard as a disguised punishment. The Human Rights Act 1998, s  8(4), provides that in determining the amount of an award of damages 582  See P Schlechtriem, “Unjust Enrichment by Interference with Property Rights” Chapter 8 in P Schechtriem (ed), X International Encyclopedia of Comparative Law, paras 75–78. 583  As distinct from restitution or “giving back”. 584  See J Blackie and I Farlam, “Enrichment by Act of the Party Enriched” in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004), p 469; A J M Steven, “Recompense for Interference in Scots Law” 1996 JR 51; contra W J Stewart, Reparation (2000), paras 18.5–18.12. See also J Blackie, “Enrichment, wrongs and invasion of rights in Scots Law” 1997 Acta Juridica 284, republished in: D Visser (ed), The Limits of the Law of Obligations (1997), p 284. 585   Watson, Laidlaw & Co v Ltd v Pott, Cassels and Williamson 1914 SC (HL) 18; Mellor v William Beardmore & Son 1927 SC 597. As to infringements of other monopolies, see Scottish Milk Marketing Board v Ferguson 1935 SC 251 (accounting of profits). Other measures of enrichment include “a reasonable sum” by way of “implied rent”. In one case, a “hypothetical release” fee or “deemed licence” fee (or wayleave) was ordered to be paid ad interim for use of another’s underground passage pending disposal of the proceedings for interdict: Graham v Duke of Hamilton (1868) 6 M 965. 586   Ali v Playgirl, Inc 447 F Supp 723 (728ss) (D N Y 1978). 587   Hyslop v Miller (1816) 1 Mur 43 at 54; Black v North British Railway Co 1908 SC 444 (Seven Judges); cf Hector MacQueen in Chapter 12 below, citing comments on the Scots law in Watkins v Home Secretary [2006] UKHL 17; [2006] 2 AC 395 (HL) at paras 30–31 (Lord Hope) and 64 (Lord Rodger).



ov e rv i e w of r i ght s o f p e rs o n al i t y

243

for breach of a Convention right, the court must take into account the principles applied by the European Court of Human Rights in relation to an award of compensation under ECHR, Art 41.588 In the Watkins case, Lord Hope pointed out that those principles do not extend to awarding exemplary damages, and that this was as good an indication as any as to what the law (of tort or delict) should now be.589 In the Mosley case Eady J held that exemplary damages are not admissible in a claim for infringement of privacy since there is no authority for such an extension of this “anomalous” remedy and since exemplary damages are inconsistent with ECHR values and Strasbourg jurisprudence.590 3.8  CONCLUSION (1) At all periods of legal history – Roman law, the ius commune, the Institutional period of the Scots law and the modern Scots law – the delict of real or verbal injury (iniuria) has existed for the protection of rights of personality. In Roman law and the ius commune the rights of personality consisted of rights to bodily integrity, reputation and dignity (corpus, fama, dignitas). These rights are primary and inalienable. Infringement of a personality right, or a wrong to personality, constituted the delict of real or verbal injury. In modern Scots law, rights of personality have evidently become more complex, need more precise individuation and urgently require a modern restatement. A tentative typology of such rights is suggested in Section 3.3 above and considered in more detail in 3.4 above. (2) In Chapter 2 above, John Blackie shows that for the purpose of protecting personality rights Scots law received from the ius commune and embedded deeply in its law and practice a version of the delict of iniuria and the actio iniuriarum albeit not in a tidied-up form but certainly with no competitor. This became the Scottish action for solatium for the delict of “real and verbal injury”. Scots law also received and developed a general Aquilian liability for patrimonial loss which it applied to intentional as well as negligent infringements of personality rights. Specific sub-categories of iniuria and Aquilian liability focusing particular types of fact-situation were received and 588  Article 41 (Just satisfaction) provides that if the Court finds that there has been a violation of the Convention and the national law concerned allows only partial reparation, the court shall if necessary afford just satisfaction to the injured party. 589   Watkins v Home Secretary [2006] UKHL 17; [2006] 2 AC 395 (HL) at para 31. 590   Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) at paras 185–197.

244

r i ght s of p e rs o n al i t y

though they were later developed into nominate fields of delictual liability, such as assault, wrongous imprisonment, rape, seduction and the like, they remained consistent with these bases of liability. In the 19th century, defamation hardened into a separate verbal delict of strict liability. (3) So Scots law has a category of intentional “affront-based” delicts (or areas of delictual liability) whose badge today is an award of solatium for non-patrimonial harm. The concept of “real and verbal injury” infringing personality rights has unique explanatory power in relation to these delicts because it alone can explain why awards of solatium are a competent remedy for such an infringement (as distinct from solatium for personal injury due to negligence which is an indigenous creation of the Court of Session). In that useful explanatory sense it is inescapably correct to regard real and verbal injury as an over-arching, organising category, and for this there is Institutional, judicial and statutory authority.591 (4) It is submitted that a revitalised delict of real and verbal injury has also a residual role as the legal source of new causes of action for the infringement of personality rights.592 The proposition that only verbal injury and not real injury has survived in modern times593 is no doubt true as a matter of current practice or at least terminology. It is however very unconvincing as a matter of legal principle; and practice can change. So for example an invasion of privacy in a newspaper article may constitute a verbal injury with respect to the words in the article but a real injury with respect to its accompanying photograph. To let in one but not the other would make no sense, and would impoverish Scots law unduly. It is therefore unlikely to represent modern Scots law (as distinct from current practice). (5) Invoking real and verbal injury in order to recognise new causes of action seems preferable to expanding existing delicts (such as assault, breach of confidence or passing off) beyond their natural boundaries and thereby distorting the existing rules governing liability for those delicts. (6) It is not to be expected that in developing the residual role of the action for real and verbal injury, counsel and the courts can simply  See eg Section 3.2.2; cf Section 3.2.3.  A typology of personality rights is set out at Section 3.4 above. 593  See Section 3.2.4. 591

592



ov e rv i e w of r i ght s o f p e rs o n al i t y

245

take a ready-made set of rules off the shelf for each new situation. The requirements of the existing affront-based delicts relating to injury, wrongfulness, and fault vary considerably594 and the same may well be true of new causes of action. The courts must be guided by analogical reasoning, the fruits of comparative law and, where ECHR is applicable, the Strasbourg, English and other jurisprudence on the relevant article. The last-mentioned source is of particular value and importance in developing the personality right of informational privacy but is also relevant to the infringements of other personality rights such as bodily integrity and seclusion from intrusion.595 (7) The rules permitting, precluding or restricting active transmissibility of actions, or causes of action, for solatium vary with the type of transmission596 and with the type of injury.597 These rules developed originally from the actio iniuriarum and applied at first to solatium as a remedy for the affront-based delicts and thereafter to solatium for personal injury due to negligence, but their unity is fragmented by recent statutes. Modern 20th-century Scottish case law shows that the principle of informational privacy (operating as a value rather than a cause of action) explains the rules precluding or restricting transmissibility and in so doing uses the language of “wrongs to personality”.598 (8) The range of common law remedies should be adequate to protect any personality right which is invaded.599 There is potential for development keeping pace with legal changes elsewhere including adaptation of the remedy of apology and retraction (formerly, palinode) to modern use600 and development of the remedy of redress of unjustified enrichment to cater, for example, for cases where wrongdoers make large profits out of public disclosure of private and personal information.601 There is an important unresolved issue as to whether solatium should be characterised as compensation for wounded feelings or as an acknowledgment of the personality right infringement as such.602  See Section 3.5.  See Sections 3.4.7, 3.4.2 and 3.4.3. 596  Assignation inter vivos; transmission to executor; or transmission to trustee in bankruptcy. 597  Personal injury; defamation, verbal injury, other injury to reputation; and real injury: see Section 3.6. 598  See n 3 and Section 3.6.4. 599  Section 3.7. 600  Section 3.7.2. 601  See Section 3.7.7. 602  See Section 3.5.2. 594 595

246

r i ght s of p e rs o n al i t y

(9) Finally, Professor Jacques du Plessis603 has argued that in developing mixed systems “it is desirable that we should as far as possible take into account the character of the specific area of law within which the development is going to take place. It requires that we should determine the historical foundations of that area of law, and then build on these foundations to maintain the integrity of the structure”.604

In Chapter 2 John Blackie has explained the historical foundations of the law on personality rights which depend on the action for real and verbal injury. The conclusion of the present chapter is that the proper way to maintain the integrity of the structure and develop the law is to recognise that the delict and action of real and verbal injury has an explanatory role as a category over-arching existing causes of action and, equally importantly, a creative residual role as the source of new causes of action protecting personality rights.

603   J du Plessis, “The Promises and Pitfalls of Mixed Legal Systems: the South African and Scottish Experiences” [1998] Stellenbosch L Rev 338. 604   Ibid at p 344.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

247

chapter 4 protection of personality rights in the modern scots law of delict Elspeth Reid

4.1 INTRODUCTION: A NEW IMPERATIVE 4.2 PROTECTION OF THE PERSON 4.2.1 Protection of physical integrity: assault (a) General (b) Actual assault (c) Affronts, ie notional assault (d) Indirect assault 4.2.2 Intentional infliction of emotional distress independent of any other recognised wrong 4.2.3 Protection for personal liberty: wrongful detention (a) General (b) Cases against the police (i) Preliminary (ii) Arrest with warrant (iii) Arrest with reasonable justification (iv) Arrest without justification (c) Detention in psychiatric institutions (d) Detention by private parties 4.3 PROTECTION OF REPUTATION 4.3.1 General 4.3.2 Overview: defamation and verbal injury distinguished 4.3.3 The scope of verbal injury in the modern law (a) Intentional injury to business interests caused by false statements (b) Patrimonial loss suffered as a consequence of a slander upon a third party (c) Intentional injury to feelings caused by false statements 4.3.4 The limits of verbal injury in the modern law

247

r i ght s of p e rs o n al i t y

248

(a) Preliminary (b) Injury to feelings suffered as a consequence of a slander upon a third party (c) Injury or loss suffered as a result of the making of true statements 4.3.5 Non-factual imputations against character

4.4 PROTECTION OF NAME AND IMAGE 4.4.1 Passing off 4.4.2 “Image rights” and the position of third parties seeking to protect information 4.5 PROTECTION FOR PRIVACY 4.5.1 General 4.5.2 Breach of confidence and protection for informational privacy (a) Preliminary (b) The relationship between the parties (i) Confidential relationships and the obligation of confidentiality (ii) Abandonment of the requirement for a prior confidential relationship in English law (iii) The requirement for a prior confidential relationship in Scots law (c) Cross-border difference: the innocent third party recipient of information? 4.5.3 Protection for privacy: beyond breach of confidence (a) Zones of private life (b) Territorial privacy (c) Privacy of the person 4.5.4 Closing the gaps in protection for privacy (a) Preliminary (b) Comparative law models: South Africa and the actio iniuriarum (c) Looking beyond England to Europe 4.6 CONCLUSION

4.1  INTRODUCTION: A NEW IMPERATIVE Liability for the infringement of personality rights is well-established in Scots law. As John Blackie has shown in Chapter 2, it is clearly provided for in the Institutional writings, albeit in little detail. Stair listed attacks on life, health, liberty, fame, reputation and honour as



p rot e c t i o n o f p e rs o n al i t y ri g h t s

249

“delinquencies” which were not only crimes but also “iniuriae”.1 But prior to the 19th century, as Blackie has described, 2 injuries to the person, including even verbal injuries, were regarded primarily as criminal offences against public order. 3 Although there is a handful of civil cases before this period, it was only after the beginning of the 19th century, and in particular after the institution of the jury court in 1816,4 with jurisdiction to hear “all actions on account of injury to the person, whether real or verbal, as assault and battery, libel or defamation”5 that civil claims came to the ordinary civil courts of law in significant numbers. It is unsurprising, therefore, that Bell, who published the first edition of his Principles of the Law of Scotland in 1829, gave a noticeably fuller treatment to issues of civil liability for injuries to the person than in earlier Institutional writings, and in the four editions which he himself produced, supplemented statement of principle with reference to the growing Scots case-law. As in the English law of tort, therefore, the intentional delicts in general, and infringement of personality rights in particular, have tended right from the start to be conceptualised on the basis of these discrete offences – in effect as “delicticles”. The “tangle of crisscrossing categories” at the heart of English tort law6 is similarly observed in the various overlapping heads of delictual liability in Scots law. And although Scotland, unlike England, is not burdened with the legacy of the forms of action, Scots lawyers have shown little enthusiasm for expanding the established list of “delicticles”. By the 1970s, the topic of whether Scots law recognised a law of privacy, for example, was still no more than “a popular subject of professional conversation”.7 Indeed, the Scots have sometimes shown even greater hesitation than the English in expanding existing categories. Thus, for example, when the English courts began in the 1990s to develop the equitable wrong of breach of confidence as a means of protecting informational privacy, some

  Institutions I,9,4.  See Chapter 2, Section 2.1.2. 3  See Stair, Institutions I,9,4 (first para); Mackenzie, Laws and Customs of Scotland, in Matters Criminal, Part I, Title XXX (“Of Injuries, Personal, and Real; and of infamous Libels”). (Indeed, actions which infringe the honour or privacy of others remain within the remit of the criminal law in exceptional circumstances. On the conviction of an amateur photographer for breach of the peace after he took a picture of a drunk woman vomiting: see The Scotsman, 4 October 2008, available at http://news.scotsman.com/scotland/Man-fined-fortaking-photo.4558618.jp). 4   Jury Trials (Scotland) Act 1815. 5   Court of Session Act 1825, s 28. 6  P Birks, “Harassment and hubris” (1997) 31 Irish Jurist 1 at p 32. 7  Lord Kilbrandon, “The law of privacy in Scotland” (1971) 2 Cambrian LRev 35. 1 2

250

r i ght s of p e rs o n al i t y

voices on the Scots bench questioned whether the Scots law of delict could accommodate a parallel development.8 Civil remedies for infringement of personality rights have, nevertheless, come under new scrutiny in the decade since the ECHR became incorporated into Scots domestic law, and such questions have taken on new urgency. Insofar as personality rights overlap with those rights enshrined in the Convention, the question is no longer whether they should be protected in municipal law,9 but how the common law must develop in order to make good any deficit in their protection. The imperative articulated in the judgment of the European Court of Human Rights in von Hannover v Germany is that Art 8 of the Convention requires states not only to abstain from arbitrary interference in the individual’s private life, but also to recognise a positive obligation “to secure respect for private life even in the sphere of the relations of individuals between themselves”.10 In the English courts it was already recognised that “the values embodied in Arts 8 and 10 are as much applicable in disputes between individuals or between an individual and a nongovernmental body such as a newspaper as they are in disputes between individuals and a public authority”.11 Articles 8 and 10 have ceased to be “merely of persuasive or parallel effect” and have become “the very content” of the common law12 which is thus expressly concerned “to prevent the violation of a citizen’s autonomy, dignity and self-esteem”.13 This chapter assesses the extent to which Convention rights, in so far as they address rights of personality, already find protection in the Scots common law,

 Eg Quilty v Windsor 1999 SLT 346 (OH) at 356. Compare also the pleadings in X v BBC 2005 SLT 796 (OH), arguing for interdict against screening of embarrassing and hurtful footage on the basis of breach of confidence, with those in T v BBC [2007] EWHC 1683 (QB); [2008] 1 FLR 281 arguing for injunction in similar circumstances but directly addressing invasion of privacy. 9   Cf Ward v Scotrail Railways Ltd 1999 SC 255 (OH) at 261 per Lord Reed: “this is an area where the development of the common law should have regard to the European Convention on Human Rights” (emphasis added). 10   (2005) 40 EHRR 1: judgment of the court at 25, para 57. An essay published in 2004 had already concluded that the immediate task for the Scots courts was “to construct an intellectually sustainable structure within which privacy can be afforded a sensible degree of legal protection without interfering disproportionately with competing rights”: see J Burchell and K Norrie, “Impairment of Reputation, Dignity and Privacy”: Chapter 18 in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective (2004) 545 at p 574. 11   Campbell v MGN [2004] 2 AC 457 at para 17 per Lord Nicholls. 12   McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73 at para 11 per Buxton LJ, citing Lord Woolf CJ in A v B plc [2003] QB 195 at para 4. 13   Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) at para 7 per Eady J. 8



p rot e c t i o n o f p e rs o n al i t y ri g h t s

251

and considers from a comparative perspective the means by which any gaps in that protection might be made good. 4.2  PROTECTION OF THE PERSON 4.2.1  Protection of physical integrity: assault (a)  General Assault may lead not only to criminal prosecution, but also to a delictual claim against the assailant for damages to compensate for patrimonial loss suffered as well as solatium for physical pain and injury to feelings.14 In Hume’s lectures to his students on obligations ex delicto, assault figured as one of his first illustrations as follows:15 “It is the general rule of our practice and is plainly founded in reason, and justice, that every wrong or criminal act which injures a neighbour in his property, or person, or other material concerns, gives rise to two sorts of action, the one criminal, ad vindictam publicam, for the sake of example to others – and (if the conclusion is not capital) for the reformation of the offender –; the other civil, and at instance of the party injured, for reparation of his patrimonial damage, as also, in many instances, for an award of the trouble and distress he has suffered on the occasion . . . take the case of a tradesman who has been assaulted, and disabled form working at his trade. He has a claim to be indemnified of this patrimonial damage, and the expense of his cure, and even a claim for a sum of money in solatium of his pain and distress, though not capable of a precise estimation.”

In Bankton’s account, “injury” was perpetrated when the assailant “batter[s], by striking one”. In addition, assault “by holding up the fist, or any weapon, against one in a threatening manner is a real injury, because it tends much to the person’s disgrace who is so

 See Anderson v Marshall (1835) 13 S 1130, in which solatium was awarded since a blow to the breast caused no lasting injury but was accompanied by verbal abuse. Cf Rutherford v Chief Constable for Strathclyde Police 1981 SLT (Notes) 119 (OH) in which damages were awarded for the physical injury but solatium for affront was deemed inappropriate. For the modern English position, see Richardson v Howie [2005] Personal Injuries and Quantum Reports Q3 at para 23 per Thomas LJ: “It is and must be accepted that at least in cases of assault and similar torts, it is appropriate to compensate for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as anger or indignation arising from the circumstances of the attack.” On the concurrence of the actio iniuriarum and the Aquilian action in South African law in relation to cases of assault, see PQR Boberg, The Law of Delict (1984), vol 1, p 19. 15   Lectures, vol III, p 120. 14

252

r i ght s of p e rs o n al i t y

used”.16 Similarly, Bell qualified his treatment of assault at §2032 in the 4th edition of his Principles in 1839 by adding that “the civil claim of damage is not merely for damage sustained, but in solatium for affront and insult”.17 Bankton’s distinction between assault and battery,18 which survives in English law to distinguish mere threats from actual injury, has receded from modern Scots legal terminology, but David Walker’s nomenclature of assault included both direct physical injury and more indirect forms of attack.19 Walker identified three categories, namely, actual assault; affronts, ie notional assault; and indirect assault. (b)  Actual assault Actual assault, subtitled “battery”, occurs where physical harm is the main element and where solatium may be claimed along with damages for loss of earnings and medical expenses.20 (c)  Affronts, ie notional assault Affronts, ie notional assault, occur where there is no direct violence or contact, but rather threatening or alarming behaviour. This would include gestures such as riding a horse at the pursuer,21 or discharging a gun in his or her direction.22 Walker catalogues a number of cases of such threatened assault, drawn largely from the 19th century, such as snatching papers or making a “sign or gesture of an immodest nature” to a woman.23 Neither such incident is likely to be regarded of sufficient gravity to give grounds for action to 21st-century litigants, who might be expected to demonstrate more phlegm. However, presenting a weapon at the pursuer in such a way as to suggest that it is about to be used, or otherwise instilling real physical fear, may still constitute an assault of this nature. Where the assault is by threatened rather than actual violence, a claim for solatium may be made even though no real physical harm or patrimonial loss is suffered.24

  Institute I,10,22.  Under reference to Cruickshanks v Forsyth (1747) Mor 4034. 18  A terminology retained in the Court of Session Act 1825, s 28 (with regard to those actions enumerated as appropriate for jury trial). 19   Delict (2nd edn, 1981), pp 490–492. 20   Ibid, p 491. 21   Ewing v Earl of Mar (1851) 14 D 314. 22   Ibid, as asserted at 315 by LP Boyle. 23   Delict (2nd edn, 1981), p 490 (although the cases cited by Walker in this connection do not seem to support liability in precisely such circumstances). 24  As in Cruickshanks v Forsyth (1747) Mor 4034, where “though, strictly speaking, there was no damage other than the expense [of litigation], yet when a man is affronted and beat, something was thought to be due in solatium, and for encouraging persons to seek redress in this way, rather than to take it at their own hand”. 16 17



p rot e c t i o n o f p e rs o n al i t y ri g h t s

253

While one of the 19th-century Scots authorities stated that there “must be a physical bodily act; and . . . words, or coming forward, or furious looks, do not amount to an assault”,25 this restriction must now be reconsidered in the light of the reconceptualisation of the English crime of assault by the House of Lords in R v Ireland.26 In that case the distinction between words and physical gestures, in terms of their potential to engender fear, was rejected as “unrealistic and indefensible”,27 and the reasoning went one step further. The offensive interaction between assailant and victim in that case had been by the medium of silent telephone calls. Not only was there no immediate proximity between the parties therefore, but also there had been no words. It was held, nevertheless, that a campaign of malicious silent calls which caused the recipient to “fear the possibility of immediate personal violence”28 (and indeed to develop a psychiatric illness) was sufficient for a criminal charge of assault. Arguably, the same analysis might be applied to impose civil liability where words or possibly silence, even if transmitted by electronic means, were such as to convey a sufficiently serious and direct threat. It was arguably a “notional” assault which the pursuer claimed to have suffered in Ward v Scotrail Railways Ltd.29 A female railway ticket inspector claimed that a colleague was harassing her at work by following her and watching her. There was no question of physical blows, but the pursuer’s fear of the defender had seemingly led to nervous illness. Her counsel argued that the concept of iniuria was wide enough to encompass this sort of non-physical harm, and Walker’s text was cited. The court appeared to accept that such an affront could be actionable, but only if it were pled on the basis that the infliction of emotional distress was deliberate30 (whereas the pursuer had based her case upon negligence).   Lang v Lillie (1826) 4 Mur 82 at 86; see also Anderson v Marshall (1835) 13 S 1130 in which LP Hope remarked that the use of insulting epithets alone would not have given grounds for an action but for the infliction of a physical blow. The same principle applied in English law: see Rex v Meade and Belt (1823) 1 Lew 184 per Holroyd J to the effect that “no words or singing are equivalent to an assault”. 26   [1998] AC 147. 27   Ibid at 162 per Lord Steyn. 28   Ibid. (The reasoning applied in R v Ireland was endorsed, at 166, by the Scots judge sitting in that case, Lord Hope.) 29   1999 SC 255 (OH). The conduct in Ward preceded the introduction of the Protection from Harassment Act 1997. (That legislation is discussed in Chapter 12 below.) The case of Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 indicates that employers may now be held vicariously liable, in terms of that legislation, for harassment perpetrated at the workplace. 30   1999 SC 255 at 259 (OH) per Lord Reed. 25

254

r i ght s of p e rs o n al i t y

(d)  Indirect assault Indirect assault is a form of assault in which the affront or insult element predominates. Walker suggests that an indirect assault occurs where indirect contact between the parties has resulted “in the person’s being affronted, or put in a state of alarm, or physically hurt”;31 in other words, affront is actionable not only when it is concomitant with physical aggression or the threat of aggression, as in (a) and (b) above, but also independently. It is uncontentious that in some cases, especially where the physical attack is threatened rather than actual, the element of affront may be more significant than any element of physical injury, although susceptibility to affront may have diminished over the years. However, the more difficult question raised by Walker’s account is whether delictual liability arises independently on the basis of an indirect assault, where there has been no actual aggression or physical threat, and where the infliction of affront or insult was the only mode of wrongful conduct.32 Walker offers the hypothetical example of taking away a person’s clothes,33 or soiling a towel which another is expected to use, for which the authority given is the American Restatement (Second) of Torts.34 The Scots authority is slender, however. It was held in one 19th-century case that the action of spitting at a person was an assault, even if this did not “actually take effect on his person”, but in the same incident the defender also physically threatened the pursuer.35 There are no Scots examples of an action for assault

31  D M Walker, The Law of Delict in Scotland (2nd edn, 1981), p 492 (emphasis added). 32  It may be noted that neither of the earlier treatises on the Scots law of delict had included a category of affront without physical injury or threat: see J Guthrie Smith, A Treatise on the Law of Reparation, (1st edn, 1864), Chapter 2; A T Glegg, A Practical Treatise on the Law of Reparation, (1st edn, 1892), Chapter 6. 33  At p 492. 34  Walker’s footnote (Delict, p 492, n 79) reads simply “§18” (on offensive contact, part of the Restatement chapter entitled “Intentional Invasions of Interests in Personality”). However, this example does not appear in the text of the Restatement itself but is offered as an illustration in the Reporter’s Notes at (c). (The other example given in this section, pulling a chair from someone, also coincides with the Reporter’s Notes on this part of the Restatement.) This is also one of the examples of different forms of iniuria which Voet compiled from examples in the Digest, along with loading someone with too much wine so as to hold him up to mockery, laying hands on a free human being as though he was one’s own runaway slave, following the steps of a decent matron with lustful intent or debauching another’s handmaiden (Commentarius ad Pandectas 47.10.7–11). 35  In Ewing v Earl of Mar (1851) 14 D 314, as well as spitting, the defender rode his horse at the pursuer in such a way as to cause alarm and endanger his safety.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

255

being raised merely because of a soiled towel, or other such affronts to dignity without any element of threatened physical danger.It is therefore doubtful whether the Scots authorities on assault would now support a claim for affront where the pursuer has not also been hurt (in terms of physical or psychiatric injury) or threatened,36 although a claim may of course be made on alternative grounds if another protected interest has been invaded, such as liberty37 or privacy.38 One interesting aspect of Walker’s analysis is the range of sources upon which he draws. Although he takes Bankton’s definition of iniuria as his starting point,39 many of his examples are drawn from beyond Scotland. Numerous English, Canadian and South African cases are cited under the headings above, as is Prosser on Torts40 and the American Restatement (Second) of Torts, §18, on offensive contact, part of the Restatement chapter entitled “Intentional Invasions of Interests in Personality”.41 A less adventurous geographical range is observed in the courts, however, where pleadings have been confined largely to Scots and occasionally English authority.42

36  There are no reported examples of damages being awarded without some kind of actual or threatened physical injury, or a representation of some kind (J Blackie, “Defamation” in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000), vol 2, 633 at p 666, although Mackenzie, in The Laws and Customs of Scotland, in Matters Criminal, Part I, Title XXX, para 3 (pp 153–154), listed an assortment of “real injuries” which might attract criminal penalty: “by hindering a man to use what is his own by removing his Seat out of its place in the Church, by giving a man medicaments which may affront him, by Arresting his Goods unjustly, by wearing in contempt what belongs to another man as a mark of honour, by Razing shamfully [sic] a man’s Hair, or Beard, by offering to strike him in publick, or by strikeing him, or riving or abusing his Cloaths, or his House, and many other ways related by Berlich” (Matthias Berlichius, Conclusiones practicabiles (Lipsiae, first published 1614). In his listing of crimes Erskine also included real injuries where a person’s honour or dignity was impugned (such as by aiming a blow or “assuming a coat of arms or any mark of distinction proper to another”, Institute IV,4,81). 38  See also the leading study by C F Amerasinghe, “The protection of corpus in Roman–Dutch law” (1967) 84 SALJ 56, 194, and 331 (in three parts) in which the factum of assault as “unlawful interference with another’s bodily integrity” (p 57) was subdivided into “application of force” (p 57) and “threat of force” (p 58) only. 37  A recent example which might be regarded loosely as an “affront” is Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH), discussed at Section 4.5.3(c) below. 39  At p 488, citing Bankton, Institute I,10,22. 40  At p 490, n 21. 41  Eg at p 491 n 43, p 492 n 79. 42  See, eg, Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH).

256

r i ght s of p e rs o n al i t y

4.2.2  Intentional infliction of emotional distress independent of any other recognised wrong There seems to be little doubt that an intentional injury which causes psychiatric illness is reparable, even if no other wrong, such as physical assault, is also perpetrated.43 The Scots courts have cited with approval44 the leading English case of Wilkinson v Downton,45 in which an ill-judged practical joke provoked a nervous shock of such severity as to induce significant physical illness. However, the emphasis in Wilkinson was upon the physical consequences produced by shock,46 and in subsequent case law the English courts have denied the existence of a tort of causing emotional distress without actual bodily or psychiatric illness.47 A little-explored question in Scots law is whether, in the absence of actual or threatened physical aggression or any other wrong, there exists a right of action against a defender who has intentionally inflicted emotional distress with effects falling short of recognised physical or psychiatric harm. In Rorrison v West Lothian College Lord Reed ruled that “psychological distress” short of psychiatric injury was not actionable if negligently inflicted, but appeared to leave open the possibility that less serious injury might suffice if harm were intentional.48 The Scottish Law Commission, in  See, eg, Robertson v Scottish Ministers [2007] CSOH 186.  See A v B’s Trs 1905 13 SLT 830 (OH) per Lord Johnston, although in the Scots case the actionable wrong which had induced the shock was breach of contract, not intentional infliction of injury; Bourhill v Young 1942 SC (HL) 78 at 100 per Lord Porter; Walker, Delict, pp 499–500 suggesting that the rule in Wilkinson v Downton represents the Scots law also. 45   [1897] 2 QB 57; Janvier v Sweeney [1919] 2 KB 316; see also the South African case of Boswell v Minister of Police 1978 3 SA 268(E) at 273E–F per Kannemeyer J: “Had a person suffered actual physical injury resulting in the sequelae experienced by the plaintiff his injury would have been a substantial one of appreciable duration. The position cannot be different merely because the impairment of health resulted from nervous shock and not from actual physical injury.” 46  The plaintiff suffered a “violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason” ([1897] 2 QB 57 at 58 per Wright J). In a later case involving intentional infliction of shock, Janvier v Sweeney [1919] 2 KB 316, the emphasis was similarly on the physical consequences – “neurasthenia, shingles, and other ailments”. 47  See Hunter v Canary Wharf [1997] AC 655 at 707 per Lord Hoffmann; Wong v Parkside Health NH Trust [2003] 3 All ER 932 at paras 11–12 per Lady Justice Hale (no tort without “recognised psychiatric illness”); Wainwright v Home Office [2004] 2 AC 406 at para 46 per Lord Hoffmann; C v D [2006] EWHC 166; Mbasogo v Logo Ltd (No 1) [2007] 2 WLR 1062. 48   2000 SCLR 245 at 250: “The action being based on negligence, the pursuer can recover only if she has sustained psychiatric injury in the form of a recognised psychiatric illness”. Cf G v S 2006 SLT 795 (OH) at para 18 per Lord Turnbull to the effect that outwith the specific context of the Protection from Harassment Act 1997, s 8 “a claim for damages arising out of anxiety would not normally sound in damages”. 43

44



p rot e c t i o n o f p e rs o n al i t y ri g h t s

257

its 2004 Report on Damages for Psychiatric Injury49 recommended that “mental harm” should be interpreted as “any harm to a person’s mental state, mental functioning or mental well-being whether or not it amounts to a medically recognised mental disorder”.50 While the Commission’s proposed Bill restricted recovery for harm caused unintentionally to foreseeable or “recognised mental disorder”,51 no such restriction was placed upon recovery for intentionally inflicted mental harm.52 However, that Report has not as yet been implemented. 4.2.3  Protection for personal liberty: wrongful detention (a) General Remedies for infringement of liberty were well established in the Scots common law long before incorporation of the ECHR. There is ample Institutional authority for the importance of protecting liberty,53 as well as recognition that “though liberty be a most precious right, yet it is not absolute”.54 Indeed one of the earliest statutes protecting personality rights was passed by the Parliament of Scotland (before Union with the Parliament of England and Wales) in 1701 to address some of the procedural grievances set out in the Claim of Right Act of 1689. The Act “For preventing wrongous Imprisonments and against undue delayes in tryals” provided for the award of damages (at a specified level dependent upon social status) if the appropriate procedure had not been observed in detaining those suspected of criminal offences. And alongside the many cases claiming “wrongous imprisonment” for criminal offences under the 1701 Act in the 18th and 19th centuries, at least an equivalent number alleging wrongful imprisonment for debt was brought at common law. There is therefore a significant seam of older Scots case law establishing the right to claim reparation for wrongful detention. At the same time, there is an element of uncertainty in  Scot Law Com No 196 (2004).  Draft Bill at s 7(c), p 54. 51  S 6. 52  Para 3.7: “In the case of intentional wrongdoing, we now think that the defender should normally be liable for the harm he intended to cause: this should include distress, anxiety, grief, anger etc, whether or not this amounts to a medically recognised mental disorder. We believe that a person who deliberately causes mental harm, for example by subjecting the victim to sustained mental cruelty, should make reparation for any harm so caused to the pursuer’s mental state, mental functioning or mental well-being”. 53  Eg Stair, Institutions I,9,4; Bankton, Institute I,2,32. 54  Stair, Institutions I,2,5. 49

50

258

r i ght s of p e rs o n al i t y

the modern case law concerning the role of malice in actions for damages and the impact of ECHR, Art 5 (protecting the right to liberty and security).55 (b)  Cases against the police (i)  Preliminary In modern times, most cases involving infringement of liberty have of course been brought against the police. Broadly speaking, there are three situations in which such detention may take place. The first is where there was due authority in terms of a formal warrant to arrest; the second is where there was no warrant but there was due authority at common law or in terms of a statute (reasonable justification); and the third is where there was no warrant and no due authority of any other sort. (ii) Arrest with warrant It is rare for a person arrested under the authority of a warrant to assert that the police officers concerned have acted wrongfully. Indeed it is difficult to conceive of circumstances in which the police officers themselves could be shown to have acted wrongfully in implementing a warrant duly granted, no matter what their personal motivation.56 Beaton v Ivory,57 a 19th-century authority, is still frequently cited in this context as illustrating the heavy onus on any litigant who alleges malice against police officers.58 The case is, however, of questionable relevance since the defender was a sheriff, alleged to have acted oppressively by giving oral instructions to police officers to arrest an entire township after a fracas

55  The impact of ECHR, Art 5 has yet to be fully tested. The only reported Scottish case in which the detention by the police occurred after incorporation of the ECHR is Beck v Chief Constable, Strathclyde Police 2005 1 SC 149, in which Art 5 was apparently not considered (Lord J-C Gill narrated at para 11 that counsel for the pursuer had “wisely in my view, abandoned a human rights point”). Cases involving detention in psychiatric institutions are considered further at Section (c) below. 56  See, eg, McKie v Chief Constable of Strathclyde 2003 SC 317 (IH (Ex Div)) in which the pursuer was arrested in circumstances that were undoubtedly humiliating, but she was unable to establish that the officers concerned were motivated by malice (although, given that a warrant had been duly issued for the arrest, her claim for damages was based upon assault rather than wrongful arrest). 57   (1887) 14 R 1057. 58   Cited, eg, in Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342 (OH); McKinney v Chief Constable, Strathclyde Police 1998 SLT (Sh Ct) 80; Dahl v Chief Constable, Central Scotland Police 1983 SLT 420 (OH); as well as in Robertson v Keith 1936 SC 29 (a defamation case arising out of over-zealous surveillance).



p rot e c t i o n o f p e rs o n al i t y ri g h t s

259

during the Skye clearances. In other words, the primary question concerned the judicial process by which the warrant was issued, rather than the lawfulness of the police conduct in implementing it. (iii)  Arrest with reasonable justification In practice many arrests of course are made without a warrant, and this category is much more likely to lead to litigation than the first. The general principle is that if an arrest is made without a warrant, the onus is upon the police to establish appropriate justification in the event of challenge.59 Nonetheless, successful challenge is rare.60 Police officers are empowered to arrest an individual whom they see committing an offence or attempting to do so, or threatening violence,61 or if they have “credible evidence”62 that this is occurring.63 Given the varied circumstances in which such decisions must be made, a broad construction is given to the reasonableness of grounds for arrest without warrant. In assessing whether arrest was justified, the court does not adopt an entirely objective stance, applying the benefit of hindsight, but looks at the likely “state of mind and knowledge of the arresting officer”.64 Thus allowances have been made for a mere “error of judgment which could be made in dangerous or difficult, fast moving circumstances”.65 If it is accepted that detention or arrest without warrant was indeed justifiable, the authorities indicate that an action may lie only if the officers have acted maliciously. But, as with the first category above, it is hard to imagine the type of situation where such an action might be successful. If an arrest is justifiable on the type of grounds outlined above, then it is not clear how the arrest itself may be deemed wrongful, no matter what the mindset of the officers carrying it out. If, on the other hand, the officers concerned did bear malice towards the pursuer, then this might raise the issue that this was the reason for the arrest, rather than “credible evidence” that an offence had been committed

59  See Renton and Brown, Criminal Procedure (6th edn, looseleaf), para 7–02 and the authorities cited therein. 60   Ibid, para 7–02. 61   Ibid, para 7–05. 62   Idem. 63  In addition, modern statute authorises police officers to detain where there are “reasonable grounds” for suspecting the individual has committed or is about to commit an offence: Criminal Procedure (Scotland) Act 1995, ss 13 and 14. Power to detain on suspicion was similarly contained in earlier provisions, eg the Criminal Justice (Scotland) Act 1980, s 2. 64  See McLeod v Shaw 1981 SLT (Notes) 93 at 94. 65   Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342 (OH) at 1350 per Lord Kingarth.

260

r i ght s of p e rs o n al i t y

or reasonable grounds for anticipating further danger, but in such a situation the arrest would fall within the third category below. (iv)  Arrest without justification An arrest may have occurred without justification – because a warrant existed but did not extend to the circumstances in question,66 or because there was inadequate basis for common law powers of arrest and/or detention (as detailed above). Fortunately, such instances are rare.67 It is difficult to justify malice as a requirement in obtaining damages for unlawful detention, but nonetheless there are conflicting dicta in the Scots cases as to whether proof of malice is an additional requirement where the pursuer has established the arrest to be unjustified.68 These may perhaps be attributed to conflation of the concepts of absence of reasonable justification on the one hand and presence of malice on the other. A right to redress regardless of malice is consistent with analysis both in Common Law systems69 and in other mixed jurisdictions70 where 66  Early cases include examples of warrants disputed as beyond the jurisdiction of the sheriff who granted it (McCrone v Sawyers (1835) 13 S 443) or because the warrant was “to do an illegal act” (Bell v Black and Morrison (1865) 3 M 1026 at 1081 per LJ-C Inglis). See also Pringle v Bremner and Stirling (1867) 5 M (HL) 55, in which the police officers possessed a warrant, but this authorised them only to search the pursuer’s premises for wood, not to remove private correspondence, and not to arrest him. 67   But see, eg, Downie v Chief Constable, Strathclyde Police 1998 SLT 8 (OH). 68  See Woodward v Chief Constable, Fife Constabulary 1998 SLT 1342 (OH) in which Lord Kingarth held that the pursuer’s arrest had been unlawful but was not “without probabilis causa”, and damages would not therefore be awarded without proof of malice. This decision is commented upon by Sh Pr Cox in McKinney v Chief Constable, Strathclyde Police 1998 SLT (Sh Ct) 80 at 82ff; see also P W Ferguson, “Malice and negligence” 2007 SLT (News) 127. Sheriff Principal Cox’s statement in McWhinney, at 82, is more categorical: “. . . the decided cases can be divided between those in which the pursuer avers that he or she has been deprived of liberty unlawfully – in which case averments of malice are unnecessary – and those in which the pursuer concedes that the constable had the power to arrest or detain but that the exercise of that power on the particular occasion was unwarranted – in which case malice must be averred and proved”. 69  The level of intent required “is intentionally to do the act which causes the imprisonment. Added malice towards the imprisoned plaintiff is not necessary” (per Ralph Gibson LJ in Weldon v Home Office [1990] 3 WLR 465 at 470, under reference to Halsbury’s Laws of England (4th edn), vol 45, p 606, para 1325); see also W V H Rogers (ed), Winfield & Jolowicz on Tort (17th edn, 2006), para 4–13. The US Restatement (Second) of Torts, §44 provides that “If an act which causes another’s confinement is done with the intention of causing the confinement, the actor is subject to liability although his act is not inspired by personal hostility or desire to offend”. 70   On South Africa, see Minister of Correctional Services v Tobani 2003 (5) SA 126 (ECD), esp at 133D-H per Jones J; M I Schwartzman, “Tortious liability for false imprisonment in Louisiana” (1942) 17 Tul LRev 81 at p 84.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

261

“neither intention nor negligence is required for liability – the wrongfulness of the deprivation of liberty is sufficient”.71 Any requirement to establish malice in addition also appears to contravene ECHR, Art 5(5), which provides for a right to “compensation” where arrest or detention has been unlawful, irrespective of malice or any other form of motivation on the part of those who carried it out.72 (c)  Detention in psychiatric institutions Wrongful detention of a patient in a psychiatric institution similarly founds an action for damages.73 The pattern established in 19th-century case law is comparable to that outlined above; where the appropriate statutory procedures74 have been observed, then malice must be proved, but this is not required if they have not.75 Appropriate authority for detention may be found in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003.76 There is little modern case law,77 and the impact of incorporation of the ECHR has yet to be fully tested in Scots

71   J Neethling et al, Neethling’s Law of Personality (2nd edn, 2005), p 119, para 2.3. 72   But although the substantive right to compensation is specified by ECHR, Art 5(5), in some cases the ECtHR has held that a finding of a violation of Art 5 is adequate “just satisfaction” for non-pecuniary damage as observed by the Law Commissions in their joint Report on Damages under the Human Rights Act 1998 (LC 266, Scot Law Com No 180, 2000), at paras 6.79–6.80. See, eg, Szeloch v Poland (2003) 37 EHRR 46 (Application No 39510/98); AS v Poland, 20 June 2006; but cf Application No 29798/96, Lloyd v United Kingdom, 1 Mar 2005. 73   Bell, Principles, §2042. 74   On the meaning of lawful detention in this context, see B v Forsey 1988 SC (HL) 28. 75  See Strang v Strang (1849) 11 D 379; Mackintosh v Fraser (1859) 21 D 783, (1860) 22 D 421, affirmed (1863) 1 M (HL) 37. 76  The common law doctrine of necessity is unlikely to be regarded as justifying detention in terms of Art 5: see HL v United Kingdom (2005) 40 EHRR 32 and commentary in H Patrick, Mental Health, Incapacity and the Law in Scotland, (2nd edn, 2006), para 9.15. On deprivation of the liberty of adults with incapacity, in exercise of powers under the Adults with Incapacity (Scotland) Act 2000, see Muldoon, Applicant 2005 SLT (Sh Ct) 52; A D Ward, “Adult incapacity and the Social Work (Scotland) Act 1968 (c 49), s 13ZA” 2008 SLT (Notes) 197. 77  Perhaps reflecting a practice of close adherence to the statutory requirements. Moreover, at one time the Mental Health (Scotland) Act 1984, s 122(1) provided that no person was liable to civil or criminal proceedings in respect of any act purporting to be done in pursuance of the legislation, unless the act was done in bad faith or without reasonable care. This replicated the provision in the Mental Health (Scotland) Act 1960, s 107. There is no equivalent provision in the Mental Health (Care and Treatment) (Scotland) Act 2003.

262

r i ght s of p e rs o n al i t y

law.78 However, in Storck v Germany,79 the ECtHR has stated clearly the “positive obligation” of Member States, in terms of ECHR, Arts 5 and 8, to protect those considered to be psychiatrically ill against unlawful deprivation of liberty. Storck, and the European jurisprudence upon which that case is based,80 reinforce the common law right to raise an action for damages against public and private institutions alike where there has been failure to implement appropriate procedural safeguards or to observe statutory procedures compliant with ECHR, Art 5. (d)  Detention by private parties While in the above contexts deprivation of liberty may sometimes be justifiable, there are few circumstances in which a private individual may legitimately detain another. Aside from the limited circumstances where certain types of official are empowered by statute to detain individuals for statutory offences,81 private citizens may do so only if they have witnessed a crime, or have a “moral certainty” that a crime has been committed.82 If an official exceeds his or her statutory authority,83 or a private individual detains another without sufficient cause, an action lies for damages. It has been stated in Institutional writings that “matters of utility or profit” could not provide a pretext for deprivation of liberty,84 and there is authority that even brief detention for such utilitarian purposes may be actionable.85

  But see Reid v United Kingdom (2003) 37 EHRR 9, in which the patient successfully claimed damages for a breach of ECHR, Art 5(4) (requiring that an individual who is deprived of his liberty has the right to have the lawfulness of that detention reviewed by a court), although the detention itself was found to be justified. 79   (2006) 43 EHRR 6. On the “positive obligation” to secure compliance with ECHR, Art 5 in this context, see A Campbell, “Positive obligations under the ECHR: Deprivation of liberty by private actors” (2006) 10 Edin LR 399. 80  See Storck, para H35. 81  Eg the transport officials in Percy v Glasgow Corporation 1922 SC (HL) 144, in relation to fare-dodgers, although in that instance the officials were found to have exceeded their authority. 82   SME Reissue, “Criminal Procedure” (2002) (D Dickson), para 98; Second Reissue, “Criminal Procedure” (2008) para 101. See also Neville v C & A Modes 1945 SC 175, in which the pursuer raised an action in defamation against shop employees who detained her wrongfully on suspicion of shoplifting. 83  Eg Mackenzie v Young (1902) 10 SLT 231; Percy v Glasgow Corporation 1922 SC (HL) 144. 84  Stair, Institutions I,2,5. 85  In Mackenzie v Cluny Hill Hydropathic Co 1908 SC 200, an action was held relevant where a hotel guest had been detained by the manager for 15 minutes in order to pressurise her into apologising to a fellow guest after a dispute. 78



p rot e c t i o n o f p e rs o n al i t y ri g h t s

263

4.3  PROTECTION OF REPUTATION 4.3.1  General As Lord Hoffmann recently reflected in an English case, reputation is “the immortal part”86 of the individual. Reputation is fundamental in maintaining not only the respect of others but also the individual’s sense of self-worth.87 This complex social construct is not readily susceptible to formal regulation, but some measure of control can be exercised over the information by which reputation is shaped. Thus legal protection of reputation has two aspects: control over the expression of that which is objectionable and false – or at any rate cannot be proved to be true; and control over the dissemination of information which may be true, but which the person concerned wishes to screen from the attention of others. In the past, reputation was protected in both aspects by the law of verbal injury and defamation, as considered in this section. But in the modern law, they have become ineffective in dealing with this second category, leaving regulation of this area largely to the law of confidentiality and the developing law of privacy, as considered in a later section in this chapter. The law of defamation is considered in detail elsewhere in this volume.88 This section assesses the declining role of other forms of verbal injury in protecting personality rights. 4.3.2  Overview: defamation and verbal injury distinguished In Common Law jurisdictions the general law of defamation is taken to encompass attacks on “fame” or reputation whereby the claimant has been brought into public hatred and contempt and also imputations which do not draw censure in this way, but nevertheless cause the claimant to be ridiculed89 or shunned.90 However, the modern Scots law observes a terminological distinction between defamation, in which an attack of this first type has injured the pursuer’s “fame”, and other forms of verbal injury. As John Blackie has shown in Chapter 2, however, verbal injury was not always relegated to this marginal role.91 86   Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 at para 91 per Lord Hoffmann, echoing Cassio’s words to Iago in Othello, Act 2, Scene 3. 87   For general discussion, see R C Post, “The social foundation of defamation law: reputation and the Constitution” (1986) 74 California LRev 691; T Gibbons, “Defamation reconsidered” (1996) 16 OJLS 587. 88  See Chapter 9 (Kenneth Norrie). 89  Eg Parmiter v Coupland (1840) 6 M &W 105. 90  Eg Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. 91  See Chapter 2, Sections 2.3.6–2.3.7.

264

r i ght s of p e rs o n al i t y

In Institutional writings, “verbal injury” was understood as a broad generic term given to injury inflicted by words upon reputation and honour, as distinct from “real injuries” perpetrated by other forms of conduct.92 “Defamation”, describing the most common consequence of such injury, namely the loss of fame, was not yet a term of art denoting a discrete legal category. Thus for Bankton verbal injury was inflicted “when Words are spoken to or concerning one, whereby he is Defamed, whether they affect his life, liberty, estate, reputation, trade or profession, or charge him with a foul disease whereby his character is blemished”.93 For Erskine it consisted in the “uttering of contumelious words, which tend to vilify [the victim’s] character, or render it little or contemptible”. He also included “reproachful words, though they should have no tendency to blacken his moral character, sarcastical names and epithets, and other such strikes of satire”, and even “twitting one with the deformity of his person or other natural defect”.94 John Blackie has explained95 that in earlier times verbal injuries “committed by unwarrantable expressions”96 were, like “real” injuries, the subject of sanctions in the criminal law as well as being reparable in the civil law.97 By the beginning of the 19th century, the “more ordinary sort of action” had become the action for damages in the “ordinary civil courts”.98 As Paul Mitchell commented of the expansion of the jurisdiction of the common law courts in defamation actions in England, the “major attraction” of litigation in the secular courts in Scotland was “money”.99 Reparation might be claimed there not only for distress and injury to feelings but also for the patrimonial loss caused “by degrading [the pursuer] in his character or profession”.100 The transfer of civil jurisdiction in defamation actions to the jury courts in 1816101 was accompanied by  See Chapter 3, Section 3.2.3.   Bankton, Institute I,10,24. 94   Institute IV,4,80. Erskine also distinguished the spoken and the written word, arguing that the latter should be regarded as a real injury since it was “the most public and permanent” and the punishment should be correspondingly more severe (Institute IV,4,81). 95   Chapter 2, Section 2.2.7. 96  Mackenzie, The Law and Customs of Scotland, in Matters Criminal, Part I, Title XXX, para II. 97   For general treatment, see Hume, Lectures, vol III, pp 133ff; J Borthwick, Treatise on the Law of Libel and Slander (1826), pp 148ff. 98  Hume, Lectures, vol III, p 153. 99  P Mitchell, The Making of the Modern Law of Defamation (2005), p 53. 100   Borthwick, Law of Libel and Slander (1826), p 148. 101   Jury Trials (Scotland) Act 1815. The functions of the Jury Court were incorporated within the Court of Session by the Court of Session Act 1830. (See W Adam, Practical Treatise and Observations on Trial by Jury in Civil Causes (1836).) 92 93



p rot e c t i o n o f p e rs o n al i t y ri g h t s

265

an increase in the volume of civil claims,102 and the criminal aspect of defamation receded, more or less disappearing by the mid-19th century,103 following the final abolition of the Commissary Courts in 1836.104 In the early 19th century there was still no clear division between different forms of verbal injury, and the terms “verbal injury” and “defamation” had not yet narrowed to the distinct usage by which they are understood today. Hume lectured his students on verbal injuries as one of the broad categories of obligations ex delicto.105 Similarly, Borthwick, writing the first specialist text on “libel and slander” in 1826, included an appendix “containing reports of several cases respecting defamation” which included cases of all types. Lord Chief Commissioner Adam, in his manual, Practical Treatise and Observations on Trial by Jury in Civil Causes, published in 1836, distinguished “actions for defamation” only from written libel106 and the former were “maintainable for all words spoken which affect the moral character of the individual of whom they are spoke, or when harassing the mind is the effect of the words spoke”.107 Even in 1864, in the first edition of Guthrie Smith’s Law of Reparation, Chapter 8 was given the general heading of “Defamation”, without clear demarcation between the categories now labelled as defamation and verbal injury. For Guthrie Smith, “Language, to be actionable, must be of that unwarrantable kind expressed by the words contumelia or convicium of the Roman law, calculated to be injurious to a person’s private character or credit, or to render him ridiculous or contemptible in the relations of private life”.108 The second edition of Guthrie Smith’s work published in 1889, however, substantially reworked the chapter on defamation to include a more extensive range of distinct categories including: “Words False, but not Slanderous, followed by Damage”;109 “Convicium”;110 “Slander of Title”;111 and

102   J Blackie, “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2, 633 at p 685. 103  See J Guthrie Smith, Treatise on the Law of Reparation (1st edn, 1864), p 188: the ordinary action of damages in the sheriff court or Court of Session was “practically the only one which now remains”. 104  The jurisdiction of the local Commissaries was amalgamated with that of the sheriff courts in 1823 (Commissary Courts (Scotland) Act 1823), and the separate Commissary Court for Edinburgh finally abolished in 1836 (6 & 7 Will IV, c 41). 105  Hume, Lectures, vol III, pp 133ff. 106  At 103. 107  At 101. 108   J Guthrie Smith, Treatise on the Law of Reparation (1st edn, 1864), p 188. 109  At 240. 110  At 241. 111  At 241.

266

r i ght s of p e rs o n al i t y

“Public Criticism”.112 Similarly, Cooper, in his work on Defamation and Verbal Injury first published in 1894,113 distinguished defamation and verbal injury in an introductory chapter,114 and treated the latter in a separate chapter.115 In modern usage the term “verbal injury” is sometimes encountered in the general sense understood by the Institutional writers as including all injuries inflicted by means of words.116 However, the more common usage is as a restricted category related to, but distinguishable from, defamation.117 A claim may be brought if injury has been inflicted by harmful words which cannot be classified as defamatory, in the sense of “derogatory or demeaning of the pursuer” in the opinion of “right-thinking members of society generally”.118 The precise scope of this residual category of nondefamatory verbal injury has remained shrouded in uncertainty. Most of the 19th-century case reports dwelled largely upon how the issues and counter-issues arising from the specific circumstances might be put to the jury in terms which they would understand, and often judgments did not contain extensive statements of doctrine. It is therefore difficult to discern from them a consistent or coherent body of law. The 20th-century case law on verbal injury is sparse, perhaps reflecting change in accepted conventions of social and political comment, but when the opportunity has arisen the courts have declined to explore issues of terminology.119 Recent academic  At p 242.  Second edition, 1906. 114  In Chapter 2: “Defamation proper and verbal injury”. 115  In Chapter 11. 116  Eg the Damages (Scotland) Act 1993, s 3 amends the Damages (Scotland) Act 1976, s 2, in relation to “defamation or any other verbal injury or other injury to reputation”, suggesting that defamation is a subgroup of verbal injuries and “other” injuries to reputation. 117  See, eg, Legal Profession and Legal Aid (Scotland) Act 2007, s 71, relating to “defamation or verbal injury” (emphasis added); Westcrowns Contracting Services Ltd v Daylight Insulation Ltd [2005] CSOH 55; Barratt International Resorts Ltd v Barratt Owners’ Group (unreported, OH, Lord Wheatley, 20 December 2002). In some sources verbal injury has even been classified as a sub-category of defamation: see the Private International Law (Miscellaneous Provisions) Act 1995, s 13, which defines defamation as including verbal injury. 118  See K McK Norrie, “Actions for verbal injury” (2003) 7 Edin LR 390 at p 390. 119  See, eg, the leading modern case, Steele v Scottish Daily Record and Sunday Mail Ltd 1970 SLT 53 at 60 per Lord Wheatley: “We had an interesting perambulation throughout the developing history of defamation, convicium and verbal injury and the different elements which are said to be required to support each of these different types of action, and while we are indebted to counsel for their painstaking research and admirable presentation, I do not propose to follow them into the labyrinth.” 112 113



p rot e c t i o n o f p e rs o n al i t y ri g h t s

267

commentary120 has, however, significantly assisted understanding of this category, and in establishing its taxonomy. 4.3.3  The scope of verbal injury in the modern law The ambit of verbal injury, as distinct from defamation, in the modern law is now a narrow one. Verbal injury still encompasses the following categories. (a)  Intentional injury to business interests caused by false statements “Slander of title”121 and “slander of property”,122 now rarely encountered, resemble malicious falsehood in England.123 They offer a remedy in relation to statements that are not in themselves defamatory of the pursuer, in that they do not directly impugn his or her character but have allegedly influenced the behaviour of third parties in business dealings so as to cause the pursuer patrimonial loss. (b)  Patrimonial loss suffered as a consequence of a slander upon a      third party Similarly, there is little modern authority concerning slander upon a third party, but such as there is suggests that such “slander” is actionable only where patrimonial loss has been suffered by the pursuer.124

 In particular K McK Norrie, “Hurts to Character, Honour and Reputation: A Reappraisal” 1984 JR 163; K McK Norrie, Defamation and Related Actions in Scots Law (1995), Ch 3, and the historical treatment in J Blackie, “Defamation”, in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2, p 633. 121  See Cooper, Defamation, p 86. The paradigm case cited by Cooper was Philp v Morton (1816) Hume 865. For modern discussion, see Kennedy v Aldington [2005] CSOH 58 at para 53 per Temporary Judge T G Coutts. The importance of establishing malice is also restated in that case at para 44. 122  See Defamation, p 88 (citing, eg, Hamilton v Arbuthnot (1868) 6 M 563). There is little 20th-century authority, but see discussion in Argyllshire Weavers Ltd v A Macaulay (Tweeds) Ltd 1965 SLT 21 (OH) at 35 per Lord Hunter. 123  See W V H Rogers (ed), Winfield and Jolowicz on Tort (17th edn, 2006), para 12-72 (reflecting that slander of goods and slander of title “are not separate torts and have nothing to do with ‘slander’ in the defamation sense. It would be better if the expressions were dropped”). Indeed the English term has on occasion found its way into Scots usage. Walker on Delict used the heading “malicious falsehood” for that category of verbal injury which infringed interests in economic relations: see pp 904ff, (1st edn, 1966); (2nd edn, 1981), pp 902ff. See also Trapp v Mackie 1979 SC (HL) 38 at 51 per Lord Fraser: “The action is apparently not based on defamation but on some other form of verbal injury, either convicium or malicious falsehood.” 124  See remarks of Lord Deas in North of Scotland Banking Co v Duncan (1857) 19 D 881 at 887. The reasoning applied in Finburgh v Moss’ Empires Ltd 1908 SC 928, in particular Lord Ardwall at 941, suggests that solatium for injury to feelings would not be awarded by a modern court. 120

268

r i ght s of p e rs o n al i t y

(c) Intentional injury to feelings caused by false statements There is little reason to doubt that the injury to feelings inflicted by false statements remains actionable under the heading of verbal injury, as distinct from defamation. However, the scope of this category in practice seems marginal. Much of the 19th-century case law on verbal injury involved press coverage of those occupying or competing for public office. The imputations in question were not defamatory in the sense of suggesting criminal conduct, dishonesty or sexual impropriety, but they nonetheless threatened to undermine the pursuer’s suitability for office. The classic test established by the leading English case of Parmiter v Coupland in relation to allegedly libellous attacks upon public figures was whether the offending words were “calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule”.125 In an era when formal procedures to pursue grievances against those in public office were perhaps limited, there are several reported examples of campaigns taken up by means of a series of press articles. However, by the mid-19th century, such press treatment was usually only regarded as actionable where the injury was compounded by the persistence of the attacks,126 and some judicial voices questioned whether “in public and political discussion . . . ridicule is not an unlawful weapon”.127 Although some of the late 19th-century authorities appeared to narrow the scope of verbal injury still further by limiting it to provable business losses,128 following the pattern of the English law on malicious falsehood,129 this restriction was without proper

  (1840) 6 M & W 105 at 109 per Parke B (later Lord Wensleydale). This formulation may be found earlier, however, eg, in Cropp v Tillney (1693) 3 Salk 225 in which it was said to be enough to constitute libel (of a parliamentary candidate) “if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible or ridiculous”. 126   Sheriff v Wilson (1855) 17 D 528; Cunningham v Phillips (1868) 6 M 927 at 929 per Lord Ardwall. 127   Cunningham v Phillips (1868) 6 M 927 at 928 per Lord Deas. 128  This was apparently accepted in Epril (Glasgow) Ltd v E & F Richardson Ltd 1950 SLT (Notes) 35 (OH), and Moffat and Others v London Express Newspaper Ltd 1950 SLT (Notes) 46 (OH). 129  Eg Ratcliffe v Evans [1892] 2 QB 524 (slander upon business); Riding v Smith [1876] 1 Ex D 91 (slander on a third party which adversely affected the plaintiff’s business); also Glegg, Reparation (2nd edn, 1905), p 154 in which he noted that there was little Scots authority on this point, but “What there is agrees with the English law”. In this connection it should be noted that the English law on malicious falsehood, has itself now developed so as to permit “aggravated” damages for injury to feelings in addition to damages for specific pecuniary loss: Joyce v Sengupta [1993] 1 WLR 337; Khodaparast v Shad [2000] 1 WLR 618; Smith v Stemler [2001] CLY 2309. 125



p rot e c t i o n o f p e rs o n al i t y ri g h t s

269

foundation in Scots law.130 There is little 20th-century authority, but the issue was directly addressed in Steele v Scottish Daily Record and Sunday Mail Ltd131 in 1970. The defenders had published an “irresponsible, biased and inaccurate”132 article about the pursuer, a car salesman, accusing him of pressurising a customer to proceed with a purchase after the customer had fallen upon hard times. The court accepted without question that in cases of verbal injury the pursuer might claim “(a) solatium for injury to his feeling through him being held up to public hatred and contempt and (b) damages for the injury done to his business”,133 although in the event Mr Steele failed to establish a proper basis for either. At the same time, the modern framework as set out in Steele presents significant barriers to recovery. The first problem is that it requires a factual assessment to be made of what is likely often to be impressionistic evidence. No matter how gravely the pursuer might feel himself or herself to be wounded, a claim cannot succeed unless appropriate evidence is led to show that the public had been induced by the defender’s words to think of the pursuer with hatred and contempt. It appears that these highly subjective emotions must be established in reference not to the known reactions of a selection of customers or acquaintances, but instead to “the estimation of right thinking members of society” generally, as in relation to defamation.134 More significantly, the potential social impact must be severe. A verbal injury “must produce something more than public disapproval, adverse comment or criticism”135 or “merely lowering the pursuer in the public esteem”,136 or “causing the person referred to be looked on with disapproval or even disgust”.137 The community need not be incited by the defender “to ‘hate’ the complainer [sic] in the full sense of that word”, but “something of the order of condemn or 130  Hume clearly allowed for the availability of solatium (Lectures, vol III, p 156; also Borthwick, Libel and Slander, p 175; J Blackie, “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2 at pp 679–681). See also Sheriff v Wilson (1855) 17 D 528, and although the report of Cunningham v Phillips (1868) 6 M 927 does not deal with this expressly, it seems likely that the claim was to be in solatium for injury to feelings rather than business loss. 131   1970 SLT 53. 132  At 62 per Lord Wheatley. 133  At 61 per Lord Wheatley. 134  At 62 per Lord Wheatley, referring to the dictum of Lord Atkin in the English libel case, Sim v Stretch (1936) 52 TLR 669; [1936] 2 All ER 1237 at 1240: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” 135  At 62 per Lord Wheatley. 136  At 65 per Lord Fraser. 137  At 64 per Lord Milligan.

270

r i ght s of p e rs o n al i t y

despise”138 is required. In Steele the press coverage portrayed the pursuer as “hard-hearted” and unsympathetic, and might have caused his friends and the public “to think considerably less of him as a business man and as an individual”,139 but his claim was unsuccessful in the absence of evidence that “he was socially ostracised [or] that his general standing in the community was adversely affected”.140 Faced with such demanding criteria, it is perhaps unsurprising that few litigants since Steele have felt sufficiently confident of their ground to bring a claim for solatium. Indeed, if sufficient evidence of this level of public hatred contempt and ridicule is available, it seems improbable that the offending statement will have made so serious an impact without also crossing the line into defamation, in the sense of being “derogatory or demeaning of the pursuer” in the opinion of “right-thinking members of society generally”.141 Once that line is crossed there seems little to be gained in bringing an action for verbal injury, rather than for defamation, given that the latter in most cases carries the advantages of the presumptions of malice and of falsity. (An action may not go to trial on both defamation and verbal injury, so that the pursuer cannot fall back upon a claim for verbal injury if an allegedly defamatory statement does not bear the innuendo asserted for it.142) In consequence, claims for solatium for verbal injury to feeling are now rare; indeed Blackie has commented that this feature has “effectively choked off” such litigations in the 20th century.143 Allegations of impropriety in lifestyle, social relations or sexual mores, devastating perhaps to the Victorians, are now unlikely to arouse hatred contempt and ridicule unless the accusations are so serious as also to be defamatory.144

  M’Laughlan v Orr, Pollock & Co (1894) 22 R 38 at 43 per Lord McLaren, as noted in 1970 SLT 53 at 62 per Lord Wheatley; see also Andrew v Macara 1917 SC 247. 139   1970 SLT 53 at 64 per Lord Milligan. 140  At 66 per Lord Fraser. 141   K McK Norrie, “Actions for verbal injury” (2003) 7 Edin LR 390 at p 390. See, eg, Griffin v Divers 1922 SC 605 at 613 per the Lord Ordinary, Lord Anderson who reasoned that if the suggestions of “hypocrisy, deceit, and treachery”, necessary to support an issue on slander in that case, were eliminated, then nothing remained to support an alternative issue on verbal injury. 142  See Lever Brothers Ltd v The “Daily Record,” Glasgow, Ltd 1909 SC 1004; Griffin v Divers 1922 SC 605; Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 at 60, 61 per Lord Wheatley. 143   “Defamation”, in Reid and Zimmermann (eds), A History of Private Law in Scotlan, vol 2 at p 700. 144  See Lord Wheatley in Steele at 62, stating that an imputation of “moral depravity” is defamation rather than verbal injury. And, of course, if the allegations are in fact true, the issue may arise as to whether privacy has been breached; see Section 4.5 below. 138



p rot e c t i o n o f p e rs o n al i t y ri g h t s

271

And certainly the ridiculous satirical depictions of public and semipublic figures, such as encountered in newspapers and journals of the Victorian era would not normally provoke the hatred of “right thinking members of society”. It is doubtful that even the imputations of the type made in Steele, concerning ruthless business tactics, would meet such a reaction. In short, therefore, Steele elided the tests assessing the impact of the injurious imputation in defamation and in verbal injury to the point where the latter appears to have little future role. 4.3.4 The limits of verbal injury in the modern law (a)  Preliminary While verbal injury in the broad generic sense may at one time have included the following, modern authority does not appear to support its continuing applicability under these heads. (b)  Injury to feelings suffered as a consequence of a slander upon a      third party This category is discussed in paragraph 4.3.3(b) above in relation to patrimonial loss suffered by this means. (c)  Injury or loss suffered as a result of the making of true     statements The decline of the principle that veritas convicii non excusat, and the rise of the veritas defence are charted elsewhere by John Blackie.145 For Hume,146 writing at the beginning of the 19th century, the general rule, subject to certain exceptions, was that truth was not a complete defence in relation to verbal injury. By the mid-19th century, however, as stated in Mackellar v Duke of Sutherland,147 the balance had swung in favour of a general rule that truth was a complete defence in defamation actions. The question left unanswered by Lord Justice-Clerk Inglis’s remarks in Mackellar was whether that general rule also left room for exceptions – certain forms of verbal injury to which truth was irrelevant. In particular, his Lordship made no direct comment upon the types of verbal injury for which Hume and Borthwick had regarded the veritas defence as inappropriate – when “some secret matter, known only to the defender, has been officiously and unnecessarily circulated to the world”,148 such as when the defender has revealed a misdemeanour committed long ago by a 145   “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2 at pp 666–671. 146   Lectures, vol III, pp 156–159. 147   (1859) 21 D 222. 148  Hume, Lectures, vol III, p 160.

272

r i ght s of p e rs o n al i t y

person who has since lived a blameless existence, or “some secret disease, or defect, or infirmity of person, which the party cannot mend, and the world are nowise concerned to know”.149 The first edition of Guthrie Smith’s work on reparation, published in 1864, invoked the authority of Mackellar for the general principle that veritas convicii was a complete defence in a civil suit.150 And the anonymous author of a note on the law of defamation published in the Journal of Jurisprudence in 1865 reflected that:151 “when the statements are true, and the offence – often undeniably serious – rests upon the unwarrantable pain and insult which has been inflicted by dragging matters into publicity that related purely to private life, we have no law that will serve us.”

However, the author of that article also maintained that a separate category of convicium was “quite distinct” from defamation and meant “the publication of injurious or insulting statements, whether true or false, in an unwarrantable and offensive manner”.152 When Guthrie Smith published a second edition of his textbook in 1889, his chapter on “Defamation” was substantially reworked and included a category, absent from the first edition,153 for which he also used the title of “convicium”,154 ostensibly based upon authority from the Digest.155 This was verbal injury156 “. . . of a specially aggravated kind – the loud and public denunciation of an individual by different persons, one or more, acting in concert. To be hooted and insulted in this way on the public street is evidently a worse wrong than any form of private scandal. It may, moreover, often lead to public disturbance; and hence, while the truth of the libel is a good plea in all other cases, in this case the maxim applies – Veritas convicii non excusat.”

Convicium likewise appeared in the first two editions of Glegg’s work on Reparation157 (although it disappeared from later  Hume, Lectures, vol III, p 160.   J Guthrie Smith, A Treatise on the Law of Reparation (1st edn, 1864), p 242 (although he conceded that it would not be a relevant defence against a criminal charge). 151  Anon, “Notes on the Actio Injuriarum and the Scotch Law of Defamation” (1865) XIX Journal of Jurisprudence 57 at p 73. 152   Ibid at p 70. 153  In the 1st edition “convicium” did not appear as a separate heading, but was merely noted (at p 188) as one of the modes by which verbal injury might be inflicted. 154   Law of Damages (2nd edn, 1889), p 241. 155  At p 241, citing D.47,10,15,4 and D.47,10,11,12. 156  At p 241. 157   Glegg, Reparation (2nd edn, 1905), p 145; (1st edn, 1892), pp 103–104. 149

150



p rot e c t i o n o f p e rs o n al i t y ri g h t s

273

editions158) as a subspecies of defamation in which the truth of the defamatory statement was not an excuse. In Glegg’s account, this was an action which focused upon the “malignity” with which a person used a statement, true or false, to hold up another to public hatred, contempt or ridicule.159 This might be achieved by publishing some “unfortunate circumstance” such as a physical deformity. As Guthrie Smith had done, Glegg cited the authority of the Digest as the basis for convicium, characterising it as a “disturbance of the public peace”.160 Some of the Scots authorities used by Glegg were, admittedly, of questionable relevance, as defamation cases dating from the early 18th century161 at a time when the general rule had been that truth did not exculpate.162 He also made reference to a number of 19th-century cases in which the truth of the allegation had not been put in issue, but the term “convicium” had not actually appeared in this sense. In particular, however, Glegg cited remarks by Lord Deas as Lord Ordinary in the 1855 case of Friend v Skelton163 to the effect that “Truth is not always a justification of libel”, and that, in particular it should not justify allusions to bodily defects or family misfortunes “for which the party taunted was not to blame, and which he could not help” or “some old and generally forgotten immoral act or act of impropriety”.164 It had been precisely these circumstances for which Hume argued that the veritas defence was inappropriate.165 Cooper, on the other hand, in his Handbook of the Law of Defamation and Verbal Injury published in 1894, was sceptical about the category of convicium, pointing to the inadequacy of the authorities said to support it. In his view, there was “no law to punish” “mere wanton and malicious reiteration of a truth”, and he maintained that “it would be a grievous pity if, in a land of freedom,

 The 3rd and 4th editions, of 1939 and 1955, were edited by Sheriff J Lindsay Duncan. 159   Glegg, Reparation (2nd edn, 1905), p 145; (1st edn, 1892), p 103. 160   Ibid. John Blackie has pointed out (“Defamation”, in Reid and Zimmermann (eds), A History of Private Law in Scotlan, vol 2 at pp 702–703) that Glegg was incorrect in tracing the origins of the principle “veritas convicii non excusat” to Coke and its Latin dress to the Commissary Court (p 145, n 5), since, while not universally adopted, the principle did have currency in some ius commune sources. 161   Glegg, Reparation (2nd edn, 1905), p 146, n 1, citing Macdonald v Macdonald, 2 June 1813 FC; Dyce v Kerr 9 July 1816 FC. 162  As noted by Cooper, Defamation, p 210. 163   (1855) 17 D 548 at 551. 164  At 551. These remarks were substantially reproduced in Lord Deas’ judgment (this time in the Inner House) in Cunningham v Phillips (1868) 6 M 926 at 928. 165   Lectures, vol III, pp 139–140 and 160. 158

274

r i ght s of p e rs o n al i t y

truth were punished, however unpleasant it may be”,166 although he noted that it had “never been clearly raised” whether actions for “holding up to public hatred, ridicule and contempt” were relevant irrespective of the truth of the defamatory statements.167 An attempt to claim damages in respect of true statements made with the design of injuring the pursuer’s business was likewise dismissed as a “new departure” in the Outer House case of Parlane v Templeton, in which Lord Kyllachy reflected that “I do not see how a thing, lawful in itself, and within a man’s right, can become unlawful by reason merely of the motive which a jury may find to have been the sole or ruling impulse present in his mind”.168 There were no reported cases in the earlier part of the 20th century in which a claim was successfully brought under the heading of convicium. Nonetheless, Walker devoted a substantial section to convicium in his Law of Delict in Scotland, the first edition of which was published in 1966. In Walker’s account, convicium was a broad category in which the defender had maliciously communicated an “idea” concerning the pursuer “calculated to bring him into public hatred contempt or ridicule, and thereby caused him loss, injury or damage”.169 The “idea” might be “either true or false (the falsity not being an essential of the action and the truth no defence).170 In relation to this category of “convicium proper”, as opposed to slander, Walker stated that “the maxim veritas convicii non excusat still embodies the true view of the law”.171 The examples offered by Walker were wide-ranging, including attributing unpopular views to the pursuer, or holding up the pursuer to ridicule or odium, and also those situations in which the defender had revealed that that pursuer suffered from a disease or physical deficiency.172 However, the cases cited by Walker as authority for these examples give little support for the existence of such a category since none refers to convicium in

  Cooper, Defamation (1st edn, 1894), pp 146–147; see also ibid (2nd edn, 1906), pp 209–210. 167   Cooper, Defamation (1st edn, 1894), p 151; see also ibid (2nd edn, 1906), p 215. 168   1896 4 SLT 153 at 155 (reflecting perhaps the House of Lords’ emphatic rejection in recent English cases of the principle that malicious motive should render a lawful act unlawful: see Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 and Mayor of Bradford v Pickles [1895] AC 587). 169   1st edn, p 744; 2nd edn, p 738. Although Walker describes the category as encompassing “ridicule” in the modern law, he notes at p 742 (2nd edn, p 736), the Roman law usage in “the special sense of vituperation and abuse . . . reviling or insulting . . . a person in odium or disparagement”. 170   1st edn, p 744; 2nd edn, p 738. 171  At p 746. This text is unchanged in the 2nd edition at p 740. 172   1st edn, p 746, nn 75–82; 2nd edn, p 740, nn 77–84. 166



p rot e c t i o n o f p e rs o n al i t y ri g h t s

275

this sense – as distinct from verbal injury, and in none was a truthful imputation held to be actionable. Walker’s definition of convicium was cited by the court soon after publication in the case of Steele v Scottish Daily Record and Sunday Mail Ltd173 in 1970, but was not wholly endorsed by it. In that case, discussed above,174 the sheriff-substitute recognised that a claim based upon convicium might be relevant where the pursuer had been held up to public hatred and contempt, but, despite Walker’s assertion as to the irrelevance of truth, held that it was actionable only if false. On appeal, the Second Division decided that the case was after all one of verbal injury rather than convicium, which similarly required to be false if the claim was to be relevant. And although counsel apparently led the court on an “interesting perambulation throughout the developing history of defamation, convicium and verbal injury and the different elements which are said to be required to support each of these different types of action”,175 no detailed analysis followed in the text of the judgments.176 A passing reference to convicium can also be found in the more recent case of Barratt International Resorts Ltd v Barratt Owners Group, in which verbal injury was distinguished from convicium insofar as the former involved damage to business relations, but the latter was “concerned with the hurt to an individual’s feelings and public reputation, by being brought into public hatred, contempt and ridicule”.177 However, no authority was offered for this distinction between convicium and verbal injury, and no suggestion made that either category might be actionable notwithstanding its truth. In a detailed historical analysis John Blackie has argued that despite the currency of the brocard veritas convicii non excusat, the Roman law usage of the specific term convicium178 “had no later influence” and had certainly not formed the basis for a generally-accepted category of true but hurtful verbal injury in jus commune sources.179 In short, despite its Latin dress, the use of the label “convicium” in this specific context was a late 19th-century neologism. But even if the Latin credentials of the term “convicium” are suspect this does   1970 SLT 53. Walker’s definition was cited by Sheriff Substitute Irvine Smith at 57. 174  At Section 4.3.3(c). 175  At 60 per Lord Wheatley. 176  In Trapp v Mackie 1979 SC (HL) 38 the court similarly side-stepped analysis of the distinctions between verbal injury, convicium and malicious falsehood (at 51 per Lord Fraser). 177   2003 GWD 1-19, at para 25 per Lord Wheatley. 178   “The technical legal word for abusive speech audibly uttered”: see G L Hendrickson, “Convicium” (1926) 21(2) Classical Philology 114 at p 114. 179   “Defamation” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2 at p 702. 173

276

r i ght s of p e rs o n al i t y

not necessarily invalidate the category for which it is used. The more important question is whether, regardless of its title, there is Scots authority to support the continued existence of a form of verbal injury to which the truth or falsity of the allegation is irrelevant. The most persuasive and recurrent example found in sources from Erskine180 to Hume181 and Glegg182 was where the allegation had revealed disease or infirmity. Although they “imply no real reproach, either in themselves, or in the just opinion of mankind”,183 such disclosures, concerning an individual’s physical or mental health or indeed any other feature of intimate personal history, may be all the more injurious precisely because they are true.184 It therefore seems inappropriate that veritas should be permitted as a defence. However, while the example of disease or infirmity was offered in treatises on verbal injury, there seem to have been few claims made on this basis, and none at all in modern times.185 And if the most recent judicial definition of convicium is accepted – namely an injury to the victim’s feelings which brings him or her into public hatred, contempt and ridicule186 – this concept fits awkwardly with modern mores. Whether an action is brought in defamation or in verbal injury, it is actionable only insofar as the imputation lowered the victim in the estimation of the “right-thinking”. But, even allowing such allegations to be true, the “right-thinking” should not think any less of an individual who has become the innocent victim of misfortune such as disease,187   Institute IV,4,80.  Hume, Lectures, vol III, p 139: verbal injury might be inflicted by allegations “such as are attended with no manner of blame, if they are such as expose the person to ridicule or derision and thus tend to exclude individual from society”, such as those concerning “cancer, or other loathsome disease, or . . . having been insane”. 182   Reparation (2nd edn, 1905), p 145. 183  Erskine, Institute IV,1,80. 184  See Newton v Fleming (1846) 8 D 677 at 684 per Lord Fullerton (reversed sub nom Fleming v Newton (1848) 6 Bell 175): “I should rather think that, but for some legitimate interest held by the party publishing, the truth would not in all cases be a justification; and in many conceivable cases, it would be rather an aggravation of the injury.” 185  See K McK Norrie, Defamation and Related Actions in Scots Law (1995), pp 36–37. 186   Barratt International Resorts Ltd v Barratt Owners Group 2003 GWD 1-19, at para 25 per Lord Wheatley . For criticism of this use of the term convicium, see K Norrie, “Actions for Verbal Injury” (2003) 7 Edin LR 390. 187   On Scots law, see K McK Norrie, Defamation and Related Actions in Scots Law (1995) 25: “a suggestion that a person is HIV positive ought to elicit sympathy rather than revulsion” (citing Walker, Delict (2nd edn), p 780 to the effect that no disgrace attaches to one afflicted with disease). But cf Mazatti v Acme Products Ltd [1930] 4 DLR 601 in which defamation was established where the plaintiff had been wrongly associated with a product to treat constipation and his fiancée broke off their engagement in consequence. 180 181



p rot e c t i o n o f p e rs o n al i t y ri g h t s

277

and revelations of disability, do not, or should not, arouse any of these emotions. In the absence of modern authority to substantiate this category, the foundation for a claim based upon verbal injury or convicium seems uncertain.188 However, wrongful disclosure of private information, especially where this relates to physical or mental health, may now be actionable as breach of confidence, and is also likely to contravene ECHR, Art 8, protecting private and family life (as well as the UK Press Complaints Commission’s Code of Practice189). A modern law of privacy may therefore offer a more suitable conceptual framework for dealing with such issues than verbal injury and/or convicium, especially given the uncertainties over the proper limits of these categories. Indeed the law of privacy is the head under which public disclosure of private facts is likely to be actionable in other jurisdictions. In the United States, for example, the Restatement Second of Torts provides in §652D that “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public”.190 In France, similarly, such disclosure may give rise to liability under Art 1382 of the Code civil as having infringed the right protected by Art 9 –“Everyone has the right to respect for his or her private life” – and reinforced by ECHR, Art 8.191 Protection for informational privacy is discussed further in Section 4.5 below. 4.3.5  Non-factual imputations against character Several of the 19th-century cases of verbal injury concerned nonfactual imputations against the character of individuals occupying,

 It might be noted that allegations concerning noxious diseases were discussed by the Faulks Committee as having “led to some of the more ridiculous and obscure parts of the law of defamation”. The Committee recommended that imputations should not be regarded as defamatory simply because they caused their target to be “shunned and avoided”, although they might be classified as malicious falsehood if malice and pecuniary damage were proved (Report of the Committee on Defamation (Cmnd 5909, 1975), App 5 at p 257). 189  At http://www.pcc.org.uk/cop/practice.html. Art 3 protects the privacy of subjects generally. Art 12 specifically provides that details of physical or mental illness or disability must be avoided unless “genuinely relevant” to the story. 190   One of the illustrations offered in the comments on §652D is that of unauthorised publication of a picture showing a baby born with two heads. 191  Examples where Art 9 has been held to have been infringed include, eg, disclosure of Prince Albert of Monaco’s illegitimate child (Cass civ 27 fév 2007, D 2007 AJ 804), and, perhaps most famously, details of President Mitterand’s terminal illness (“le grand secret”) (Cass civ 14 déc 1999, JCP 2000, II, 10241). 188

278

r i ght s of p e rs o n al i t y

or competing for, public office. These were couched in figurative language, the manifest fiction of which meant that issues of truth or falsehood were redundant. In McLaren v Ritchie, for example, the candidate in a parliamentary election brought an action for verbal injury against The Scotsman newspaper after a series of articles depicted him, in passages of elaborately figurative prose and verse, as a viper or a snake. The issue put to the jury was, without consideration of falsity as such, whether the pursuer had been “held up to public hatred, contempt, and ridicule”.192 As Lord JusticeClerk Hope remarked, the word “false” could be struck out, since this was “not a case of falsehood at all”.193 Another case of the same period, Sheriff v Wilson,194 involved a series of highly fanciful newspaper articles about a school music teacher, depicting him as a glutton and a drunkard. Again, the word “falsely” was struck out of the issues insofar as they related to this article, and the jury was asked only to determine whether the article had been published “in pursuance of an intention to expose the pursuer to ridicule and contempt”. However, in McLaren v Ritchie Lord Justice-Clerk Hope had also remarked that195 “Everybody mixing in election matters, from the time of the Athenians downwards, must lay his account with being subjected to a certain amount of ridicule and censure. It just comes to be a question if these articles exceed the kind of censure to which such an individual necessarily exposes himself.”

As the 19th century progressed, the courts appeared less willing to judge this boundary to have been crossed. The change in judicial attitudes is signalled in the late 19th-century case of M’Laughlan v Orr, Pollock & Co,196 in which a Bailie of Port Glasgow was imputed with intemperate habits and described as a “terrible Zulu”. The fictitiousness of this remark would have been immediately apparent to the readers of the Greenock Telegraph and Clyde Shipping Gazette (the newspaper in question). Unlike in McLaren, however, the court did not permit the pursuer to put to the jury a claim founded upon the fact that his public conduct had merely been held up to ridicule.   McLaren v Ritchie is unreported, although the proceedings were narrated in The Scotsman, 9 July 1856 and reproduced by Glegg in the Appendix to Reparation (2nd edn, 1905) at pp 611ff. However, the issues are quoted in MacFarlane v Black & Co (1887) 14 R 870 by the Lord Ordinary, Lord McLaren, at 873–874. 193  As reported in The Scotsman, 9 July 1856. 194   (1855) 17 D 528. A fuller report appears at (1855) 27 Sc Jur 232. 195   The Scotsman, 9 July 1856. 196   (1894) 22 R 38. 192



p rot e c t i o n o f p e rs o n al i t y ri g h t s

279

In the absence of pleadings that this mode of expression carried a particular factual innuendo or imputed moral depravity, the action was dismissed. Indeed Lord McLaren observed that it was “just because the language used is merely vituperative and pointless that the law regards it as innocuous”.197 Twenty-first century journalism is perhaps less inclined to elaborate metaphor and literary allusion, and verse is not now generally found in the political columns of The Scotsman newspaper.198 Nonetheless, the reluctance expressed in M’Laughlan to restrict satirical comment on public figures has a modern resonance. Moreover, ECHR, Art 10, gives new emphasis to the principle endorsed by Lord McLaren that the courts should respect “the utmost freedom in the discussion of the conduct and motives of those who take part in its public business, whether in the higher plane of statesmanship or in the conduct of local affairs. In such criticism ridicule just as legitimate as any other rhetorical device”.199 Regardless of its literal falsity, satirical coverage making fun of “peculiarities of manner, indiscretions of speech”200 is unlikely to be actionable unless a factual innuendo can be drawn which renders the comments defamatory, or there is unwarranted intrusion into the private life of the individuals concerned, as discussed below.201 Indeed a modern example of satirical comment by means of obvious fiction can be found in Macleod v Newsquest (Sunday Herald) Ltd,202 in which a columnist had recounted the awards ceremony at the “the prestigious Tartan Bollocks Award, which is given to the Holyrood hack who has made the biggest gaffe of the year”. The pursuer, a columnist for The Times, argued that the portrayal of him as one of the award-winners defamed him by representing him as a disreputable journalist. The case was therefore argued in defamation rather than verbal injury, but the reasoning applied would be equally relevant to verbal injury. It came before

 At 43.  Although the Nature Notes cartoons by Peter Brookes, depicting politicians unflatteringly as flora or fauna, have regularly appeared in The Times for a number of years. No litigation appears to have ensued. 199  At 42. 200  At 43. 201  Even in the 19th century, a clear distinction was drawn between the public lives of those in public office and their private lives, with the latter subject to much more rigorous protection (see, eg, Cunningham v Phillips (1868) 6 M 927 at 929 per Lord Deas: “. . . to place an adversary in a somewhat contemptible light . . . is not deemed actionable, so long as the privacy of domestic life is not invaded . . .”; M’Laughlan v Orr, Pollock & Co (1894) 22 R 38 at 43 per Lord McLaren: “It is only when private character is attacked . . . that redress can be claimed . . .”). 202   2007 SCLR 555. For commentary, see C Munro, “A jester’s licence? Comedy and defamation law” 2007 SLT (News) 135. 197 198

r i ght s of p e rs o n al i t y

280

Lord Macphail in the Outer House, who was robust in refusing a proof:203 “it would have been clear to the ordinary reasonable reader that the pursuer, like the other three journalists mentioned, was being chaffed or teased by the diarist in a good-humoured or bantering manner for having written a story which could be described as a ‘gaffe’ . . . the reader would not have regarded the passage as conveying any of the very serious meanings pleaded by the pursuer.”

4.4  PROTECTION OF NAME AND IMAGE 4.4.1  Passing off As discussed by Hazel Carty in Chapter 7, English law has in recent years developed the use of passing off to deal with cases where, in marketing its own product, the defendant has allegedly appropriated the “brand” which the claimant has built up around his or her name or image. The question for present purposes is whether Scots law is likely to provide the same mode of protection. The complex evolution of the English doctrine of passing off, through the courts of Law and Equity,204 has no Scottish equivalent. In Scots law “the action for passing off is based on the general right which everyone possesses not to have published about him or his goods, statements which are both untrue and prejudicial to his pecuniary interests”. 205 Delictual in nature, it allows the protection of property – specifically commercial goodwill, which is characterised as incorporeal moveable property.206 Nonetheless, 203  At para 24 Lord Macphail referred to the test stated by Martin J in Triggs v Sun Printing Association (1904) 179 NY 144 at 155: “one assaulting the reputation or business of another in a public newspaper cannot justify it upon the ground that it was a mere jest, unless it is perfectly manifest from the language employed that it could in no respect be regarded as an attack upon the reputation or business of the person to whom it related”. 204  See, eg, C Wadlow, The Law of Passing Off (3rd edn, 2004), paras 1–24ff. An interpretation grounded in property rights has run through the English case law and has been attributed partly to the need in earlier times to ground jurisdiction in the courts of Equity in cases where there had been no fraud. See Wadlow, ibid, paras 1–33 to 1–37; cf (giving the specific example of trademarks) D Ibbetson, A Historical Introduction to the Law of Obligations (1999), p 186: “So long as property was involved, the courts of Equity might also intervene; hence situations that might have been described differently at Common law began to be treated in proprietary terms in order to activate the Chancery”. 205  E M Clive, “The action for passing off” 1963 JR 117 at p 134; see also SME, vol 18, sv “Intellectual property”, para 1364 (H L MacQueen). 206   SME, vol 18, para 1364; C Ng, “A common law of passing-off? English and Scottish perspectives” (2009) 13 Edin LR 134.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

281

considerable weight has been accorded to English authority in this field,207 and modern cases208 have incorporated the “classic trinity” which forms the basis for a successful action in the English courts, namely: goodwill or reputation attached to the goods or services which the claimant supplies; misrepresentation by the defendant to the public, leading consumers to believe that goods or services offered by the defendant are the goods or services of the claimant; and damage, or likelihood of damage, as a result of that misrepresentation.209 The leading recent English authority is Irvine v Talksport,210 discussed in Chapter 7,211 in which a well-known sports personality brought a successful claim in passing-off after brochures circulated by a radio station featured his doctored image. No “character right” as such was recognised,212 and the decision was based upon passing off, or, more specifically, misappropriation not of personality in itself but of the intellectual property right in the goodwill which derives from celebrity status: Irvine had “a property right in his goodwill which he [could] protect from unlicensed appropriation consisting of a false claim or suggestion of endorsement of a third party’s goods or business”.213 In applying the doctrine of passing off, the decision in Irvine purported to apply the trinity of elements as outlined above. Nonetheless, in order to accommodate the “realities of the marketplace”,214 it expanded the doctrine significantly – by means yet to be tested in the Scottish courts.

207  As, eg, in Cellular Clothing Co Ltd v Maxton & Murray (1899) 1 F (HL) 29; Dunlop Pneumatic Tyre Co Ltd v Dunlop Motor Co Ltd 1907 SC (HL) 15; and see discussion in E M Clive, 1963 JR 117 at p 117; W Stewart, Reparation (2000), para 7-10; Lang v Goldwell 1980 SC 237 at 245 per Lord Wheatley. 208  Eg Treadwell’s Drifters Inc v RCL Ltd 1996 SLT 1048; William Grant v Glen Catrine Bonded Warehouse 2001 SC 901; Gleneagles Hotels Ltd v Quillco 100 Ltd 2003 SLT 812; Wise Property Care Ltd v White Thomson Preservation Ltd [2008] CSIH 44; 2008 GWD 28-440. 209   Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 at 499 per Lord Oliver. 210   [2002] 2 All ER 414; [2003] 2 All ER 881 (damages). Cf The Times 23 February 2006 at p 83, reporting an award of €1.2 million damages against the Frankfurter Allgemeine Sonntagszeitung newspaper for unauthorised use of Boris Becker’s image, alongside the slogan “the faltering favourite”, in promoting the launch of its new edition in 2001. 211  At Section 7.2.5. 212   [2002] 2 All ER 414 at para 11 per Laddie J, citing Simon Brown LJ in In re Elvis Presley Trade Marks [1999] RPC (Reports of Patent, Design and Trade Mark Cases) 567 at 597–598. 213   [2002] 2 All ER 414 at para 75 per Laddie J. 214   Ibid at para 43 per Laddie J.

282

r i ght s of p e rs o n al i t y

(a) Goodwill. The reasoning in Irvine relied upon a construction of goodwill as existing independently of the claimant’s prime area of activity, or of any broad category of goods or services provided by the claimant to consumers.215 Instead, goodwill attached entirely to the personal “fame or notoriety”216 which Irvine could exploit by means of endorsing the products of others in fields unrelated to his own sport of motor racing. There is no Scots authority to date which has applied such a broad understanding of goodwill. Indeed there is also a lack of recent English authority, which Hazel Carty suggests may be explained “on the basis that the battle is seen to be won by the celebrity industry”. 217 (b) Misrepresentation. In traditional passing-off cases, in Scotland as well as England, the central question is: did the defenders’ misrepresentation induce customer confusion as to whether their product was produced by the pursuers, or as to whether there was a link between the products offered by the parties? “The element of misrepresentation is the key which unlocks the door in a claim for passing off.”218 But in Irvine there was no confusion of that nature – indeed Laddie J dispensed altogether with the need for a “goods for goods substitute”219 in consumer perception. Any misrepresentation, if such existed, was purely to the effect that Irvine had endorsed the production of the defendants’ brochures. In effect, the test became misappropriation 220 rather than misrepresentation: the claimant succeeded because of the defendants’ “unlicensed appropriation”221 of goodwill by “squatting”222 on his reputation. In this respect also, there is no relevant Scots authority, although there would appear to be no reason in principle why a delictual remedy should only be available in the event of misrepresentation to a third

  Contrast recent Scots cases, eg Pebble Beach Co v Lombard Brands Ltd 2002 SLT 1312 (OH) (fields of activity insufficiently close to induce confusion); Gleneagles Hotels Ltd v Quillco 100 Ltd 2003 SLT 812 (OH) (connection between fields of activity sufficient); Bonnier Media Ltd v Smith 2003 SC 36 (OH). 216   [2002] 2 All ER 414 at para 39 per Laddie J. 217   “The Common Law and the quest for the IP effect” 2007 IPQ 237 at p 257. 218   SME, vol 18, sv “Intellectual property”, para 1364 (H L MacQueen). 219   [2002] 2 All ER 414 at para 18. He also expressly rejected (at para 29) the approach adopted in McCulloch v May (1948) 65 RPC 58, in which the claim had failed due to the lack of a “common field of activity”. 220  See commentary in H Carty, “The Common Law and the quest for the IP effect” 2007 IPQ 237 at p 257. 221   [2002] 2 All ER 414 at para 75. 222   Ibid at para 34. 215



p rot e c t i o n o f p e rs o n al i t y ri g h t s

283

party causing diminution in value of an asset, as opposed to an asset’s wrongful appropriation. (c) Damage. Little harm appeared to have been caused to Irvine’s pecuniary interests. The impact was “negligible in direct money terms” since the “misrepresentation” had not caused business to be transferred away from him. While the “potential longterm damage” was said in general terms to be “considerable”, 223 an analogy drawn with Taittinger SA v Allbev Ltd, where the damage to the plaintiffs was “incalculable but severe”, 224 seems unconvincing. The latter case involved erosion of a brand image by similar rival products, and the effect upon future sales, as yet unquantified, was nevertheless plain. The emphasis in Laddie J’s judgment was less on the damage to Irvine than on the fact that Talksport had been enriched by pirating his image for its own purposes: “Manufacturers and retailers recognise the realities of the market place when they pay for well known personalities to endorse their goods. The law of passing off should do likewise.”225 The importance attributed to enrichment was implicitly recognised by the fixing of damages, in the court above, 226 by reference not to any loss suffered by Irvine but to the amount which Talksport would have expected to pay in order to obtain his genuine endorsement of the brochure. However, this element is the problematic where, as in Scotland, passing off is regarded as delictual in character. For it goes without saying that the principle damnum injuria datum is fundamental to the law of delict; liability to make reparation arises only if the pursuer has suffered loss or harm as a consequence of the defender’s wrongful conduct. It is not evident how Scots law can accommodate cases such as Irvine without first reconsidering the view that a remedy for “passing off” of this kind is founded in delict.227 A relative lack of resident “celebrities” means that Scotland has little case law of this particular type228 (a much greater proportion   [2002] 2 All ER 414 at para 74 per Laddie J.   [1993] FSR 641 at 678 per Sir Thomas Bingham, cited by Laddie J at para 37 in Irvine. 225   [2002] 2 All ER 414 at para 43. 226   [2003] 2 All ER 881 (CA). 227   For discussion of disgorgement of gains arising from unauthorised exploitation of personality rights, see Chapter 3, Section 3.7.7. 228  While there are no recent reported Scots cases directly in point, there have been some missed opportunities. Eg, on 21 January 2005, the Scotsman newspaper reported that Cygnet Potato Breeders of Perthshire had launched an advertising campaign for a new type of potato, the “Cabaret”, for use in fish and chip shops. 223 224

284

r i ght s of p e rs o n al i t y

of passing-off claims have involved the drinks, and in particular the whisky, industry). It remains to be seen therefore whether the Scots courts will find the decision in Irvine to be a step too far in restraining appropriation of personality by bogus celebrity endorsements, although a case note published by two practitioners in the field shortly after the Irvine decision anticipated no conceptual barriers to the Scots courts applying similar reasoning.229 However, the final paragraph of Laddie J’s judgment in Irvine merits further consideration. He noted that at trial he had referred counsel to ECHR, Art 8, and Art 1 of the First Protocol:230 “Had I come to the conclusion that passing off had not developed sufficiently to cover false endorsements it would have been necessary to go on to consider whether this new strand of law was effective, to use the words of Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, 998, para 111, to ‘give the final impetus’ to reach that result.”

It is arguable that it would be more straightforward, and certainly no more taxing upon judicial creativity, to use the “impetus” of ECHR, Art 8, and Art 1 of the First Protocol in order to reconceptualise such cases of commercial plagiarism.231 In this connection it might also be noted that such appropriation of name or likeness falls squarely within Prosser’s fourfold categorisation of breach of privacy in the

Their publicity used an image of Liza Minnelli, with legs replaced by deep-fried chips, and the slogan: “Life is a Cabaret. Worth making a song and dance about”. This was apparently withdrawn after it came to the attention of Minnelli’s New York lawyers. And on 8 November 2004, the same newspaper reported that Caledonian MacBrayne, the Scottish ferry operators, received protests after issuing a brochure which falsely represented a number of celebrities as having endorsed its routes. Again, the matter was apparently resolved without litigation. 229  R Buchan and G Grassie, “Personality rights: a brand new species?” (2004) 49 JLSS (No 5) 48 (available at http://www.journalonline.co.uk/Magazine/49-5/1000319. aspx). 230   [2002] 2 All ER 414 at para 77. 231  See Q Stewart, “The law of passing off – a Scottish perspective” (1983) 3 EIPR 64 at p 65: “. . . passing off in Scotland is not a particular wrong or tort but merely a label that is applied to those cases, in which liability arises ex delictu [sic], whose facts would found an action under the English tort of passing off”. Stewart argued (at p 66) for a reconceptualisation of passing off, suggesting that “recognition of a delict of unlawful competition – or to be more accurate, the recognition that the law of delict gives a right of action where unlawful competition has occurred – would release Scots law from the straightjacket of the action of passing-off, which it has unnecessarily donned”. For further English comments on the merits of dealing with commercial plagiarism by way of a general law of unfair competition, see P Walsh, “Customers as powerful competitors: the implications for litigation” University of Oxford Centre for Competition Law and Policy, Symposium 9 Jun 2005 (at http:// www.competition-law.ox.ac.uk/). (I am grateful to James McLean for this last reference.)



p rot e c t i o n o f p e rs o n al i t y ri g h t s

285

United States,232 and also represents one of the actionable invasions of privacy outlined in the Privacy Bill recently laid before the Irish Parliament.233 4.4.2  “Image rights” and the position of third parties seeking to protect information The House of Lords has expressly set itself against recognition of a free-standing proprietorial interest in personal information in English law.234 However, the law of Equity may be invoked to provide a remedy not only for the individuals concerned but also for third party assignees when information is misused. In the long-running litigation arising out of Douglas v Hello! Ltd235 the House of Lords held that not only the aggrieved couple, but also the magazine with whom they had entered into an exclusive agreement, had title to sue for breach of confidentiality when photographs of their wedding were pirated by a rival publication. (The cause of action was breach of confidence in the traditional sense of an equitable wrong rather than the new tort of misuse of personal information.) The reasoning was that when the recipient of information knows that a third party has put in place measures to keep that information confidential, and has a financial interest in maintaining such confidentiality, an obligation is owed to that third party as well as to the subject of the information. As Lord Hoffmann stated:236 “‘OK!’ had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. That was quite clear. Unless there is some conceptual or policy reason why they should not have the benefit of that obligation, I cannot see why they were not entitled to enforce it. And in my opinion there are no such reasons. Provided that one keeps one’s eye firmly on the money and why it was paid, the case is . . . quite straightforward.”

And just as the Douglases’ right to protect their position arose in “equity”,237 the right of third parties to confidentiality was also “equitable”;238 there was apparently “no question of creating   “Privacy” (1960) 48 California LRev 383.   Bill no 44 of 2006 (available at www.oireachtas.ie), cl 3(2)(c)(i). 234   Douglas v Hello! Ltd [2008] 1 AC 1 at para 124 per Lord Hoffmann; at para 293 per Lord Walker. 235   [2008] 1 AC 1. 236   Ibid at para 117. 237   [2006] QB 125 at para 113 per Lord Phillips. 238   Ibid at para 1 per Lord Hoffmann. 232 233

286

r i ght s of p e rs o n al i t y

an ‘image right’ or any other unorthodox form of intellectual property”.239 This decision is no doubt pragmatic in recognising the valuable commercial arrangements which commodification of celebrity has made commonplace. However, were such a case to come before the Scots courts, the basis upon which title to sue could be extended to a third party is problematic. In principle, there remains a clear distinction between the primary personality rights on the one hand, and the secondary right to defend or control those rights by means of the law of contract or delict or (possibly) unjustified enrichment on the other. The former remain extrapatrimonial, while the latter – the contractual or delictual or enrichment rights which derive from them – are patrimonial. No mechanism in Scots law has been asserted by which one individual might assign image, name, or honour to another, and these are rights to which creditors do not lay claim in the event of bankruptcy. The English framework, which in this aspect rests still upon the law of Equity, gives limited assistance. If an obligation between A and C is to be recognised in Scots law, it will require a more principled foundation than the assertion that A has paid a great deal of money to B. 4.5  PROTECTION FOR PRIVACY 4.5.1  General Long before the ECHR became part of domestic law, it was ventured that the position of privacy was “more favourable” in Scotland than in England.240 Nonetheless, considerable uncertainty has persisted. It is uncontroversial that the right to protect one’s privacy from invasion may be asserted in the form of a “shield” – as an underlying principle in the adjudication of other issues. It is accepted as relevant in relation, for instance, to the admissibility of evidence,241 or to the pursuer’s right in a personal injuries action to resist examination by a person who is not medically qualified as a doctor.242 On the other hand, the effectiveness of privacy as a “sword” – as an independent basis of liability – has been little tested. Scots pleaders, like their counterparts in England, have advanced cautiously, preferring to   Ibid at para 124 per Lord Hoffmann.   K W B Middleton, “A right to privacy?” 1963 JR 178 at p 189. 241   Martin v McGuiness 2003 SLT 1424 (evidence obtained by private investigators’ surveillance); Connor v HM Advocate 2002 JC 255 (evidence obtained by police surveillance); Edgley v Barbour 1995 SLT 711 (evidence obtained from search without warrant). 242   Rawlinson v Initial Property Maintenance Ltd 1998 SLT (Sh Ct) 54; Mearns v Smedvig Ltd 1999 SC 243 (OH). 239

240



p rot e c t i o n o f p e rs o n al i t y ri g h t s

287

assert privacy interests by reference to established heads of delictual liability, such as defamation in relation to false disclosures,243 or, more commonly, breach of confidence where the disclosure was true.244 4.5.2 Breach of confidence and protection for informational privacy (a)  Preliminary As John Blackie has shown,245 early sources provided clear authority for the principle that certain information should be kept secret, but discussion mainly concerned those categories of witness privileged against giving evidence;246 there was little analysis in the Institutional writings or in case law of liability for unauthorised disclosure outwith the courtroom. In Scotland, as in England, it was not until the 19th century that significant numbers of cases began to appear in which the pursuer claimed a remedy for what is now termed “breach of confidence”. Initially this was not so much a discrete category of liability, but a common principle which might have different application depending upon the context in which it was invoked. A few cases involved personal information or secrets confided to professional advisers,247 the content of private letters,248 or unpublished material over which a property right was claimed,249 but the category most frequently encountered, then as now in the Scots courts, was commercial information – or “trade secrets”.250 In most cases therefore, a contractual relationship between confider and confidant determined the range of obligations of confidentiality.251  Eg, Adamson v Martin 1916 SC 319; Robertson v Keith 1936 SC 29.  Although in principle breach of confidence may also apply to false information, see discussion at P Stanley, The Law of Confidentiality (2008), pp 15–17. 245   Chapter 2, Section 2.2.5. 246  Stair, Institutions IV,43,9; Bankton, Institute IV,3,27; IV,4,10; Erskine, Institute IV,2,25; Sir George Mackenzie, Observations upon the XVIII. Act of Parliament XXIII. K. James VI. against dispositions made in defraud of creditors (1699) pp 58–60. 247  Eg AB v CD (1851) 14 D 177 (doctor disclosing date of conception of child); Kerr v Duke of Roxburgh (1822) 3 Mur 126 (client’s secrets disclosed by law clerk). 248   Cadell and Davies v Stewart (1804) Mor App “Literary Property” No 4, 1 June 1804 F.C; White v Dickson (1881) 8 R 896; see also Dodsley v M’Farquhar (1775) Mor 8308, fuller report in 27 July 1775 FC (Appendix to vol. 7). 249   Caird v Syme (1887) 14 R (HL) 37 (crib of lecture notes); Brown’s Trs v Hay (1898) 25 R 1112 (set of accounts). 250  Eg Roxburgh v McArthur (1841) 3 D 556; also Rutherford v Boak (1836) 14 S 732. 251  See, eg, Craig v Collie (1828) 6 S 1147 in which the court held that there was nothing in the relationship between a member of a dissenting church and its Synod which would entitle him to interdict publication of the proceedings in which a disciplinary charge was made against him. 243

244

288

r i ght s of p e rs o n al i t y

In the absence of such a relationship, or distinct property rights over the material in question, the law of delict might provide a remedy when disclosure caused or threatened injury. The English authorities, by contrast, were more plentiful and more diverse. Unsurprisingly, therefore, when protection came to be claimed for secrets in new contexts the Scots courts readily drew upon English sources, notwithstanding that where there was no contractual relationship, protection for confidentiality south of the border rested primarily upon the law of Equity.252 The early 20th-century case of M’Cosh v Crow,253 for example, was one of the first cases involving the unauthorised use of photographs.254 The pursuer was granted interdict to prevent the defenders dis-playing pictures of his young daughters on the wall of the defenders’ photographic studio. Since the defenders were the successors of the photographer originally commissioned to take the photographs, there was no contract between the parties. However, Lord Trayner applied the principle that the contract between McCosh and the original photographer bound successors who bought the pictures “in the knowledge which I attribute to them and all photographers that they are not entitled to sell or exhibit them without the consent of the subject”.255 In support of this conclusion, the reasoning derived from recent English case law256 was applied, and the gloss subsequently placed upon M’Cosh was that, as regards breach of this type of confidence, “the law of England is to the same effect as our own. Indeed the laws could not well be different”.257 More recently, the leading case of Lord Advocate v Scotsman Publications Ltd in 1989 contained authority at the highest level for the proposition that although the juridical basis for the law of confidentiality in Scotland and in England “may differ to some extent . . . the substance of the law in both of them is the

252   For detailed discussion of jurisdictional sources for breach of confidence in English law, see F Gurry, Breach of Confidence (1984), pp 25–57. 253   (1903) 5 F 670. 254  See also Adamson v Martin 1916 SC 319 in which the wrongful inclusion by police officers of the pursuer’s photograph in a “rogues’ gallery” of known offenders was held to give rise to a claim for defamation and injury to reputation (although the action was unsuccessful as vicarious liability was not made out). 255  At 679. Gloag subsequently cited M’Cosh as the main, but “by no means conclusive”, authority for the more general proposition that transfer of moveable property may be subject to restrictions agreed by the original owner: The Law of Contract (2nd edn, 1929), p 268 256   Pollard v Photographic Co (1889) LR 40 Ch D 345. 257  In Morton & Co v Muir Brothers & Co 1907 SC 1211 at 1224 per Lord McLaren.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

289

same”.258 Since 1989, however, the framework of liability in England has been reconfigured, in particular to take account of ECHR, Art 8, which now informs common law protection of private and family life, home and correspondence. The important question for the Scots law of confidentiality is whether, in adapting itself to the Convention provisions, it should continue to follow the English example. (b)  The relationship between the parties (i)  Confidential relationships and the obligation of confidentiality The paradigm confidential relationships, as described by Lord Keith in Attorney-General v Guardian Newspapers Ltd, are that of “doctor and patient, priest and penitent, solicitor and client, banker and customer”.259 Where information has been shared between professional adviser and client, the obligation of confidentiality is implied if not express, and indeed the high expectation of secrecy is seldom disappointed. But in addition to medical problems,260 or business or legal interests,261 many aspects of private life may potentially be regarded as confidential – the conduct of close personal or family relationships,262 and in particular sexual relationships,263 or even, in some contexts, identifying features such as name and address.264 Often such material is shared between parties whose relationship is not professional or contractual but entirely informal.   Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122 at 164 per Lord Keith. Lord Jauncey, the other Scots lawyer on the House of Lords panel in that case appeared to accept without qualification, at 170ff, the applicability of the principles formulated in Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109, a case in which jurisdiction was found in Equity. 259   [1990] 1 AC 109 at 255. 260  Eg Hardey v Russel and Aitken. 2003 GWD 2-50; Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457. 261  Eg Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103; J H Begg, A Treatise on the Law of Scotland relating to Law Agents (1873), pp  269, 321; and see discussion in Conoco (UK) Ltd v The Commercial Law Practice 1997 SLT 372. 262  Eg Duchess of Argyll v Duke of Argyll [1967] Ch 302; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73; but cf White v Dickson (1881) 8 R 896 in which details of a family feud were deemed too innocuous to justify interdict against publication. 263   Stephens v Avery [1988] Ch 449; Barrymore v News Group Newspapers Ltd [1997] FSR 600; (Ch D); Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) per Eady J at paras 98–100. 264  Eg Dalgleish v Lothian and Borders Police Board 1992 SLT 721 (OH); Venables v News Group Newspapers Ltd [2001] Fam 430, [2001] 2 WLR 1038, [2001] 1 All ER 908; but cf Rowling v Mail on Sunday, Press Complaints Commission adjudication of 6 May 2008 (www.pcc.org.uk). 258

290

r i ght s of p e rs o n al i t y

Confidentiality as an equitable doctrine in England traditionally required some kind of relationship between confider and confidant, since it “fasten[ed] on the conscience of one party to enforce equitable duties which arise out of his relationship with the other”. Thus “the action did not depend upon the personal nature of the information or extent of publication but upon whether a confidential relationship existed between the person who imparted the information and the person who received it”.265 In Scotland, the obligation of confidentiality might similarly be recognised between parties who were not bound by contract, but north of the border the injury caused by disclosure was reparable under the law of delict. Notwithstanding this important difference in jurisdictional basis, Scots law adopted criteria broadly similar to those applied by the English law of Equity in that the obligation of confidentiality was regarded as deriving from the relationship between the parties.266 (ii)  Abandonment of the requirement for a prior confidential    relationship in English law Over the last 20 years there has been growing recognition of the “the artificiality of distinguishing between confidential information obtained through the violation of a confidential relationship and similar information obtained in some other way”.267 As a result the prior interaction between the parties has lost its central role in the law of confidentiality. In the leading English case of Attorney-General v Guardian Newspapers Ltd (involving threatened publication by a newspaper of extracts from the memoirs of an MI5 agent) Lord Goff appeared to replace the requirement for a pre-existing relationship with a doctrine of “notice” of confidentiality:268 “a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has 265   Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at para 44 per Lord Hoffmann. See also Megarry J in Coco v A N Clark (Engineers) Ltd [1968] FSR 415 at 419: “First, the information itself . . . must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.” (His Lordship cites Saltman Engineering Co v Campbell Engineering Co [1963] 3 All ER 413 (Note); (1948) 65 RPC 203 at 215 per Lord Greene MR.) These criteria were cited in Scots cases, eg Levin v Caledonian Produce (Holdings) Ltd 1975 SLT (Notes) 69 (OH); Hardey v Russel and Aitken. 2003 GWD 2-50 (OH). 266   For a clear statement of the requirement for an initial confidential relationship, see Fulton v Stubbs Ltd (1903) 5 F 814 at 817 per the Lord Ordinary, Lord Stormonth-Darling. 267   Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at para 46 per Lord Hoffmann. 268   [1990] 1 AC 109 at 281 per Lord Goff.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

291

notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others”.

Fifteen years later, in Campbell v Mirror Group Newspapers,269 the House of Lords reflected upon Lord Goff’s statement of the law and concluded that the requirement for a prior confidential relationship had receded in importance to the extent that it had ceased to be an independent requirement:270 “This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship . . . Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.”

An important additional impetus for this development was the need to provide an appropriate level of protection for material relating to the private life of the individual, irrespective of the route by which the defendant had acquired it. The elision of Art 8 with “the very content”271 of the common law had brought about a “shift in the centre of gravity of the action for breach of confidence” which no longer rested upon “the duty of good faith applicable to confidential personal information and trade secrets alike” but instead “the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.272 In England, therefore, the presence of an initial confidential relationship in the traditional sense is no longer a precondition for liability. Of course where such a relationship did exist, it is a relevant consideration,273 but liability may arise without the element of betrayal of trust which characterised earlier formulations of the doctrine. Thus the obligation of confidentiality may be imposed where the defendant has used unlawful or surreptitious means to obtain information that he or she should have known was to be   [2004] 2 AC 457.  At para 14. (Lord Nicholls was in fact in the minority in Campbell, but his dissent from the majority was on a different issue.) This dictum has since been cited as authoritative, eg in Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103. 271  See para 4.1 above 272  At para 51 per Lord Hoffmann. 273  As pointed out by Lord Goff in Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 at 281, and see eg HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch 57; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73. 269 270

292

r i ght s of p e rs o n al i t y

kept secret, as for example in Campbell v MGN Ltd274 or Douglas v Hello! Ltd275 (where photographs were taken surreptitiously by a photographer who had no prior relationship whatsoever with the claimants). Indeed clandestine gathering of information can be particularly harmful since unsuspecting individuals are prevented from “responding to observation with their usual self-presentation methods”.276 In the words of Lord Justice Buxton in McKennitt v Ash, the modern doctrine can accommodate the “purloining of private information” as well as “old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship”.277 English commentators278 have written at length on these developments which allow confidentiality to deal in general terms with intrusive use of private information and thus partially to make good the absence of a tort of breach of privacy in English law. This “shoehorning”279 of the ample dimensions of privacy protection into the narrower fitting of confidentiality has required two specific manoeuvres. The first is a terminological shift from “confidentiality” to “privacy”. This cause of action now encompasses material which is hardly “confidential”, in the natural sense of having at some point been confided by one person to another280 but which nonetheless merits the protection extended by Art 8 to private life. It is possible, for example, that information disclosing an individual’s conduct in a public place   [2004] 2 AC 457.   [2008] 1 AC 1. 276  N Moreham, “Privacy in public places” [2006] CLJ 606 at pp 629–630; see also Theakston v MGN Ltd [2002] EMLR 22 at para 78 per Ouseley J: “It did not seem to me remotely inherent in going to a brothel that what was done inside would be photographed, let alone that any photographs would be published.” 277   [2008] QB 73 at para 8. 278  Eg, G Phillipson, “Transforming breach of confidence? Towards a common law right of privacy under the Human Rights Act” (2003) 66(5) MLR 726; J Morgan, “Privacy, confidence and horizontal effect: ‘Hello’ trouble” [2004] CLJ 444; R Mulheron, “A potential framework for privacy? A reply to Hello!” (2006) 69 MLR 679. 279  The term seems to have been used first, in relation to privacy claims being shoehorned into other existing categories of tort, in H Beale and N Pittam, “The Impact of the Human Rights Act 1988”, in D Friedmann and D Barak-Erez (eds), Human Rights in Private Law (2001) 131 at p 140. See also A Sims, “‘A shift in the centre of gravity’: the dangers of protecting privacy through breach of confidence” [2005] (1) IPQ 27 at p 51). The term is taken up by Lord Phillips in Douglas v Hello! Ltd [2006] QB 125 at para 53. 280  The Oxford English Dictionary defines “confidential” as “spoken or written in confidence”, or “betokening private intimacy, or the confiding of private secrets”. Such a definition hardly fits, eg, the information purloined in Douglas v Hello! Ltd [2008] 1 AC 1, viz photographs of an event attended by 350 guests and numerous hotel staff, closely resembling other pictures published in the world press. 274

275



p rot e c t i o n o f p e rs o n al i t y ri g h t s

293

invades his or her privacy in the sense of a “legal principle drawn from the fundamental value of personal autonomy”,281 yet there is a high degree of artificiality in arguing that the wrong suffered is breach of confidentiality.282 As Lord Nicholls conceded in Campbell:283 “The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual’s private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private.”

English cases have therefore adopted the language of privacy where there is no element of confidentiality in the traditional sense. In Murray v Express Newspapers plc,284 for example, where the information misused was photographs of the infant claimant in a public street, the test applied was whether there had been a “reasonable expectation of privacy” rather than “confidentiality”. And indeed the plaintiff’s “expectation of privacy” has increasingly been considered as the relevant criterion for all instances of misuse of information, even where the offending information was in fact confidential “in ordinary usage”.285 The second, related, development is an even more fundamental change in the jurisdictional basis for breach of confidence. The equitable wrong of breach of confidence, has been “rechristened”,286 at least in this context,287 and is “better encapsulated now as misuse of private information”.288 While the English judiciary until very   Douglas v Hello (No 1) [2001] QB 967 at para 126 per Sedley LJ; eg Peck v UK (2003) 36 EHRR 41 (events in a public street). 282  Eg X v BBC 2005 SLT 796, in which the pursuer sought to interdict the broadcasting of film showing her embarrassing behaviour, mostly in the environs of Glasgow Sheriff Court. 283  At para 14. 284   [2008] EWCA Civ 446; [2008] EMLR 12. 285  Eg McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73; HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch 57; Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103; Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB). 286   McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73 at para 8 per Buxton LJ. 287  The equitable basis for breach of confidence remains relevant as a basis for the rights of third parties to protect the value of information. See, eg, Douglas v Hello! Ltd, where damages were claimed by the licensees of the confiders: there was: “. . . no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself in the same circumstances that it protects the opportunity to profit from confidential information in the nature of a trade secret” ([2006] QB 125 at para 113 per Lord Phillips). 288   Campbell v Mirror Group Newspapers [2004] 2 AC 457 at para 14 per Lord Nicholls. 281

294

r i ght s of p e rs o n al i t y

recently hesitated to pronouncing the “P word”,289 the term “breach of privacy”290 has come into currency, not as a label for the broad category recognised by Warren and Brandeis and Prosser,291 but as shorthand for the tort which arises specifically from misuse of private information. (iii)   The requirement for a prior confidential relationship in Scots         law One obvious problem in a small jurisdiction is the infrequency of case law in this area.292 Even when the Scots complain of intrusive media coverage, litigation often takes place in England or elsewhere because publication, or threatened publication, is out of the jurisdiction.293 There has so far been no judicial discussion, in the light of the Campbell judgment, on whether the need for an initial confidential relationship has likewise been “shaken off” in the Scots law of confidentiality. Nevertheless, the factors which in England have caused Arts 8 and 10 to become “the very content”294 of the common law are clearly of equal cogency in Scotland. If Scots law is “to prevent the violation of a citizen’s autonomy, dignity and

289  In the account of Lord Justice Sedley, “Towards a right to privacy” London Review of Books, 8 June 2006 (text of the Blackstone Lecture, delivered at Oxford on 13 May 2006). 290  Eg in McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73; HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch 57; Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB). 291  S Warren and L D Brandeis, “The Right to Privacy” (1890) 4 Harvard LRev 193, and glossed in W L Prosser, “Privacy” (1960) 48 California LRev 383 (privacy analysed as embracing: intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; public disclosure of embarrassing private facts; publicity placing the plaintiff in a false light; and appropriation of the plaintiff’s name or likeness). 292  See H McKechnie, “Delict and Quasi-Delict”, in G C H Paton (ed), Introduction to Scottish Legal History (Stair Soc vol 20, 1958), p 265 at p 279: “Intentional injuries bulk very small in our courts today as opposed to faults of omission, fraud alone being a usual ground of action, breach of promise rare and defamation infrequent” (as compared with the 19th century). Lord Kilbrandon in his survey of the law of privacy in the early 1970s also noted the rarity of defamation actions as compared with in England (“The law of privacy in Scotland” (1971) 2 Cambrian LRev 35 at p 38). The shortage of cases may be due partly to a greater tendency to settle potential disputes prior to litigation: for a practitioner perspective, see R Mackenzie, “Navigating the media maze” (2001) 46(12) JLSS 30; A Bonnington, “The aliens have landed” (2006) 10 Edin LR 140. 293  Eg the Duke of Argyll famously divorced the Duchess of Argyll in Scotland (1962 SC (HL) 88), but the Duchess sued for breach of confidence in England when publication was threatened in The People [1967] Ch 302; also Murray v Express Newspapers Plc [2008] EWCA Civ 446; [2008] EMLR 12, in which photographs taken in an Edinburgh street were the subject of litigation in London. 294  Section 4.1 above.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

295

self-esteem”295 it must find adequate means of protecting private information, regardless of whether the offending was originally divulged in the context of a pre-existing relationship. There is no reason why in principle the Scots courts should not follow the new English “rights-based” jurisprudence by recognising delictual liability for misuse of private information, without a restriction which, in any event, had its origins in Equity. And while in English the equitable wrong has been recast as a tort, in Scotland no such jurisdictional shift is necessary. The delictual basis for protection for confidential information means that its “centre of gravity”296 is already the nature of the injury inflicted rather than, as in equity, a prior obligation of “conscience”. However, a more fundamental question is whether the Scots conceptual structures, like the English, are limited to accommodating breach of privacy in this restricted sense. Alternatively can they be adapted to a “high level”297 delict of breach of privacy, dealing with intrusion into the pursuer’s private life by other means in addition to misuse of information? It is, after all, the absence of such a “high level” tort which has left important gaps in English law as exposed by the decisions in Peck v United Kingdom298 and Wainwright v United Kingdom.299 This issue is taken up in Section 4.5.3 below. (c)  Cross-border difference: the innocent third party recipient of     information? In Attorney-General v Guardian Newspapers Ltd, the Scots judges in the House of Lords gave judgments indicating broad agreement with Lord Goff’s statement of English law noted above,300 but had no reason to comment upon issues of English and Scots difference.301 However, the Scots case of Lord Advocate v Scotsman Publications Ltd,302 arising out of similar circumstances and decided by the   Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) at para 7 per Eady J. 296  See Section 4.1 above. 297  As rejected in Wainwright v Home Office [2004] 2 AC 406 at paras 31–35 by Lord Hoffmann (cited in Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) at para 183 per Eady J). 298   (2003) 36 EHRR 41. 299   (2007) 44 EHRR 40. 300  At Section 4.5.2(b)(ii). 301  According to Lord Keith, at 255: “The obligation [of confidentiality] may be imposed by an express or implied term in a contract but it may also exist independently of any contract on the basis of an independent equitable principle of confidence”. Moreover, (at 260) it was “a general rule of law that a third party who comes into possession of confidential information which he knows to be such, may come under a duty not to pass it on to anyone else”. 302   1989 SC (HL) 122. 295

296

r i ght s of p e rs o n al i t y

House of Lords a few months later, featured extensive discussion on this theme. The particular question considered was whether the difference between the jurisdictional basis for breach of confidence north and south of the border meant that third parties who had obtained confidential information innocently could not be treated in the same way. Doubts were expressed by the Lord Ordinary, Lord Coulsfield:303 “there has been no clear recognition in Scots law of a right to protect confidentiality effective against third parties who have come into possession of the information innocently. It can further be said that the conceptual basis of the English right does not fit easily into the framework of Scots law. So far as I can judge the English right does appear to be a species of equitable right in a more technical sense than merely one derived from considerations of fairness. . .There are, I think, substantial difficulties in the way of accepting that a right to protect confidential information effective against innocent third parties exists in Scots law”.

These doubts were, however, swept aside by Lord Ross in the Inner House who observed that: “The courts in Scotland administer an equitable as well as a common law jurisdiction.”304 Moreover, Scots authorities305 provided “ample justification for the conclusion that in this respect the laws of England and Scotland are to the same effect”.306 In the House of Lords, the leading judgment by Lord Keith307 endorsed this reasoning.308 Nevertheless, the possibility of cross-border difference was broached again a few years later, this time by Lord Kingarth in the Outer House case of Quilty v Windsor.309 Although breach of confidence had not in any event been pled with sufficient specification, his Lordship declared that he would have been “slow to suggest that

 At 134.  At 141–142. 305  Viz: Forrest & Barr v Henderson (1869) 8 M 187; Brown’s Trs v Hay (1898) 25 R 1112; McCosh v Crow & Co (1903) 5 F 670; William Morton & Co v Muir Brothers & Co 1907 SC 1211. 306  At 143. Lord Dunpark expressed similar views, citing, at 152, Bell, Commentaries, vol 1, pp 111–112, White v Dickson (1881) 8 R 896, and the English case of Abernethy v Hutchison (1825) 3 LJ (Ch) 209 as supporting the unexceptionable proposition that “Legal principles are capable of being developed and applied by the courts to new circumstances, and there are numerous examples of that in our law reports from at least as far back as Morison’s Dictionary of Decisions”. 307  Lord Goff, who was also on the bench, merely concurred with Lord Keith, making no reference to his statement of principle in Attorney-General v Guardian Newspapers Ltd. 308  At 164 (emphasis added). 309   1999 SLT 346 (concerning disclosure of medical records). 303

304



p rot e c t i o n o f p e rs o n al i t y ri g h t s

297

the law in Scotland at least was wholly in accordance” with Lord Goff’s statement.310 In particular, he would:311 “. . . not have been inclined to accept that the pursuer had made a relevant case against the first defender in the absence of any clear averments that he, the first defender, knew that the documents had been transmitted in confidence . . . [or] that the circumstances of the first defender obtaining the documents were such as to indicate that he knew that they were communicated to him in breach of an obligation of confidence”.

However, it is not evident from scrutiny of the English authorities that there are circumstances in which Scots third party recipients might expect to escape liability where their English counterparts would not. Where there has been no prior agreement between the parties as to the confidentiality of information, “it is the recipient’s perception of its confidential nature that imposes the obligation on him”.312 Thus liability arises in English law only where the defendant has received some form of “notice” that the information was confidential.313 The meaning of “notice” was explored by Lord Goff in Attorney-General v Guardian Newspapers:314 “I have used the word ‘notice’ advisedly, in order to avoid the . . . question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious . . . I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

While constructive notice, in the sense of turning “a proverbial blind eye” will suffice, therefore, Toulson and Phipps maintain that “more  At 356.   Ibid. It seemed to Lord Kingarth “that any development of the law in England at least to this extent would appear to rest on and take its force from different underlying principles, being based apparently on an obligation of conscience or an equitable right of property . . .”. 312   McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73 at para 15 per Buxton LJ. 313   Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 at 281 per Lord Goff. 314   [1990] 1 AC 109 at 281. 310 311

298

r i ght s of p e rs o n al i t y

is required than merely careless, naïve or stupid behaviour”.315 And if a third party has received information completely innocently, without notice, actual or constructive, of its confidentiality, he or she becomes liable for its misuse only after such notice is received. As explained by Megarry V-C in Malone v Commissioner of Police of the Metropolis:316 “If A makes a confidential communication to B, then A may not only restrain B from divulging or using the confidence, but also may restrain C from divulging or using it if C has acquired it from B, even if he acquired it without notice of any impropriety . . . [H]owever innocent the acquisition of the knowledge, what will be restrained is the use or disclosure of it after notice of the impropriety.”

On this basis, it is difficult to identify specific points of divergence between English and Scots law. Both jurisdictions appear to leave open the possibility that liability should not arise if a third party has come into possession of information and disclosed it entirely blamelessly. However, if the defender acquired information in circumstances where he or she appears deliberately to have ignored the possibility of its confidential nature, it seems likely that liability would arise in Scotland as in England. Even where the defender had originally obtained the material innocently, the Scots courts are likely to restrain or penalise disclosure made after the defender has been put on notice that information was confided by another and that its use would be injurious; breach of confidence is in those circumstances an intentional wrong. 4.5.3  Protection for privacy: beyond breach of confidence (a)  Zones of privacy Disclosure of information is only one mode of infringing privacy. The “right of individuals to limit access by others to some aspect of their persons”317 extends to three “zones” of private life – “those involving territorial or spatial aspects”, and “those related to the

315   Confidentiality (2006), para 3-070, applying the test used in Thomas v Pearce [2000] FSR 718; cf P Stanley, The Law of Confidentiality (2008) p 30, arguing that Thomas v Pearce was wrongly decided. 316   [1979] Ch 344 at 361; also Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR; and detailed treatment in F Gurry, Breach of Confidence (1984), pp 275–282. See R G Toulson and C Phipps, Confidentiality (2006) para 3-075 on the “accidental recipient” of information. 317  L O Gastin, “Health information privacy” (1995) 80 Cornell LRev 451 at p 454, n 18.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

299

person”, as well as “those that arise in the information context”.318 Without a general tort/delict of breach of privacy, the framework of civil liability is incomplete and fragmented in its coverage of these first two elements. (b)  Territorial privacy

The right to territorial privacy is deeply entrenched. The gravity with which intrusion into the home was regarded in Scots Institutional and Ius commune commentaries,319 finds an English parallel in Semayne’s Case: “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose . . . domus sua cuique est tutissimum refugium”.320 There may also be an expectation that one’s seclusion should not be invaded in locations such as a hotel rooms,321 a restaurants or private clubs, private cars,322 office premises,323 public streets, or even one’s cell in a police station.324 The analysis of the European Court of Human Rights in von Hannover v Germany325 indicates that the “zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”,326 must be understood in a “functional” as well as a “spatial” sense;327 the intrusiveness of the defender’s actions must be judged against what it is the pursuer was doing as well as where he or she was doing it. Nevertheless, there is a “hierarchy”328 of locations in which this protected “zone of interaction” is most likely to be recognised, at the top of which is the individual’s home. Privacy may be invaded by the defendant entering the protected space in person,329 or by using mechanical aids, such as listening 318   R v Dyment [1988] 2 SCR 417 at para 30 per La Forest J (Dyment was cited to the House of Lords in Campbell). Cf the rather different tripartite classificationframe in Graeme Laurie, Chapter 10, Section 10.3, categorising the interests of medical patients into spatial, informational and decisional. 319  See Chapter 2, Section 2.2.5. 320   (1604) 77 ER 194; 5 Co Rep 91 321   Restatement (Second) of Torts §652B, comment b); cf Wainwright v Home Office [2004] 2 AC 406 at para 51 per Lord Hoffmann. 322   R v Wise [1992] 1 SCR 527. 323   Niemietz v Germany (1993) 16 EHRR 97. (See also Response Handling Ltd v BBC 2008 SLT 51 (OH) in which the court accepted that a company’s right to privacy of possessions, on the authority of Art 1 of the First Protocol to the ECHR, extended in principle to working practices in its office.) 324   PG v United Kingdom (2008) 46 EHRR 51 325   (2005) 40 EHRR 1. 326   Ibid at para 50. 327   Ibid at para 54. 328   R v Tessling 2004 SCC 67 at para 22 per Binnie J. 329  Eg Jones v Warwick University [2003] 3 All ER 760.

300

r i ght s of p e rs o n al i t y

devices, binoculars or hidden cameras, to observe or listen into the pursuer’s private affairs.330 Any form of unjustified intrusion into the pursuer’s territorial privacy potentially breaches Art 8, regardless of whether information thereby obtained is disclosed to others. In this sense, territorial privacy cannot be properly protected by the law of confidentiality, since breach of confidence, even in its expanded meaning, requires some kind of disclosure. But although Art 8 is engaged in principle by such intrusion, the mechanism by which redress may be provided in the common law remains for the time being uncertain. There is some relevant discussion in Martin v McGuiness,331 where the pursuer in a personal injuries claim argued not only that evidence obtained by the defender’s private investigator watching his home should be declared inadmissible but also that damages were payable for the invasion of privacy which this had represented. The evidence was ruled admissible,332 making the case for damages irrelevant, but Lord Bonomy’s judgment noted briefly the debate between counsel as to the applicability of the actio iniuriarum to deal with this type of invasion of privacy, as well as counsel’s reference to the Digest333 and to Zimmermann’s The Law of Obligations.334 In the end, however, his remarks went no further than raising the possibility of civil liability:335 “[i]t may, however, be only a short step from an assault on personality of the nature of an insult to the dignity, honour or reputation of a person, causing hurt to his feelings, to deliberate conduct involving unwarranted intrusion into the personal or family life of which the natural consequence is distress”.

An area of protection closely related to private life in this sense is that expressly provided under Art 8 for correspondence. The disclosure to a third party of the content of letters plainly engages  Eg Khan v United Kingdom (2001) 31 EHRR 45.   2003 SLT 1424 (OH). 332  See also Jones v Warwick University [2003] 3 All ER 760 in which the Court of Appeal ruled that Art 8 was engaged by the defendants’ improper intrusion into the claimant’s home in order to obtain evidence of her true level of disability in relation to a personal injuries claim, but this was to be balanced against the public interest in ascertaining the truth in litigation and the evidence was held admissible; McGowan v Scottish Water [2005] IRLR 167 in which the level of surveillance was held to be “proportionate” in relation to the defender’s right to protect its own position. 333  Noted in Lord Bonomy’s judgment at para 29 as “Digest of Justinian, Mommsen (ed), at para 21.7 and 21.18”, although it is not clear which passages are indicated by this reference. 334  R Zimmermann (the author’s name is misspelt in the report), The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) pp 1053–1059 (on “The different forms of iniuria”). 335  Para 29. 330

331



p rot e c t i o n o f p e rs o n al i t y ri g h t s

301

the law of confidentiality. But the reading or interception of such communications, unless it is “in accordance with the law” in terms of Art 8(2), is also intrusive, even where there is no question of the defender disclosing the content.336 However, without such disclosure, it is not clear on what basis liability might arise.337 The same concerns attach to other communications338 such as telephone calls,339 and e-mail.340 (c)  Privacy of the person

Insofar as Art 8 extends to “physical and psychological integrity”, any intrusion upon the individual’s person threatens “the most intimate aspect of one’s private life”.341 Nonconsensual contact with, or exposure of, a person’s body therefore constitutes an interference with this right, even if no physical injury is inflicted. A compulsory medical examination, for example, even if “of minor importance”,342 violates the patient’s dignity and autonomy, as does the taking of physical samples without consent.343 Strip searches have also been found by the European Court of Human Rights to infringe Art 8 rights, even if there is no physical contact with the person conducting the search, and the circumstances do not suggest inhuman or degrading treatment for the purposes of Art 3 of the Convention.344 It is not clear, however, on what basis redress may be claimed in the English courts for this type of infringement of private life. In the House of Lords case of Wainwright v Home Office345 Lord Hoffmann, giving the leading judgment, maintained that there was no

  Boyle and Rice v United Kingdom (1988) 10 EHRR 425; Peers v Greece (2001) 33 EHRR 51. 337  See Watkins v Secretary of State for the Home Department [2006] 2 AC 395, and commentary in R Steven, “Torts, rights and losses” (2006) 122 LQR 565. 338  The regulatory frameworks now in place to determine which forms or surveillance are lawful are outlined in Chapter 12 below, along with the unanswered issues of civil liability which they raise: see Section 12.6.4. 339   Halford v United Kingdom (1997) 24 EHRR 523; Potter v Scottish Ministers 2007 SLT 1019. 340   Copland v United Kingdom (2007) 45 EHRR 37. 341   YF v Turkey (2004) 39 EHRR 34 at para 33. 342   Ibid. 343  See, eg, the Canadian case of R v Pohoretsky [1987] 1 SCR 945 (taking of blood samples from detainee incapable of giving consent; cf (non-invasive) collection of stool sample in R v Monney (1999) 6 BHRC 336 where Art 8 was engaged but intervention was justified in order to detect presence of drugs). 344   Wainwright v United Kingdom (2007) 44 EHRR 40 (although Art 3 is engaged if the search is carried out in a degrading manner: Wieser v Austria (2007) 45 EHRR 44). See also De Reus v Gray [2003] 9 VR 432, [2003] VSCA 84. 345   [2004] 2 AC 406, but note the finding of the ECtHR in Wainwright v United Kingdom (2007) 44 EHRR 40. 336

302

r i ght s of p e rs o n al i t y

“principle of privacy so abstract as to include the circumstances”346 of an inappropriate strip search of prison visitors by prison officers. While breach of confidence might protect against the disclosure of personal information, there was no general tort of invasion of privacy in English law and no “high level principle of privacy [was] necessary to comply with article 8 of the Convention”.347 The Scots authorities are perhaps not as clear cut, however. In the 1988 Outer House case of Henderson v Chief Constable, Fife Police348 a woman detainee was awarded damages to compensate for the invasion of “privacy and liberty”349 suffered by being compelled to remove her bra while in police custody. Lord Jauncey’s judgment in that case took a “broad axe” approach, reasoning that “since such removal must amount to an infringement of liberty I see no reason why the law should not protect the individual from this infringement”.350 He noted no “Scottish case in which it had been held that removal of clothing forcibly or by requirement could constitute a wrong”.351 Instead he relied upon the authority of the English case of Lindley v Rutter,352 in which Lord Donaldson had reviewed English materials at length to support the finding that an inappropriate body search was an “affront to the dignity and privacy of the individual”.353 (Both Henderson and Lindley were apparently cited to the House of Lords in Wainwright, although it is not clear why their Lordships were unpersuaded by them.) Henderson apart, there is little evidence that protection for this form of privacy is more securely established in Scotland than in England. In another Scots case heard shortly before Wainwright, McKie v Chief Constable of Strathclyde,354 the pursuer claimed that the manner of her wrongful arrest and detention, constituted “an invasion of her privacy and liberty and an assault” upon her person.355 The indignities suffered included being watched while she urinated and showered, and undergoing a strip search in a room which she alleged was insufficiently screened. The incident had occurred in 1998, before the ECHR was incorporated into domestic law. No reference was made to Strasbourg jurisprudence, and the question of infringement  Para 30.  Para 32. 348   1988 SLT 361 (OH). 349  At 367. 350  At 367. 351  At 367. 352  At 367 (Lindley v Rutter [1981] 1 QB 128). 353  At 135. 354   2002 Rep LR 137; 2002 GWD 7-246 (OH), affirmed 2003 SC 317. 355  As detailed in the Lord Ordinary, Lord Emslie’s, judgment, 2002 RepLR 137, 2002 GWD 7-246 (OH), at para 8. 346

347



p rot e c t i o n o f p e rs o n al i t y ri g h t s

303

of privacy was not discussed in any detail, since it was held that a case against the police required proof of malice (a requirement which was not imposed in Henderson). However, the Lord Ordinary, Lord Emslie, did concede that inter alia356 “the intimate watching of the pursuer as she prepared herself to leave the house [and] the intimate nature of the search carried out . . . could . . . conceivably be held, depending on how the evidence came out, to have gone well beyond what was necessary in the circumstances and to have amounted to assaults on the pursuer for the purposes of a civil claim”.

4.5.4  Closing the gaps in protection for privacy (a)  Preliminary Liability for breach of informational privacy is now well-developed in English law, and, as discussed above, there seems to be little reason in principle why the values enshrined in Art 8 should not also inform the Scots framework of delictual liability for misuse of private information. But how should the Scots courts respond when other aspects of the right to private life are infringed? The infrequency of Scots case law, noted above, means that comparative study is of particular importance for this developing area of the law. (b) Comparative law models: South Africa and the actio iniuriarum As a fellow mixed legal system with which many interesting parallels have already been drawn,357 South Africa is, as always, a focus of special comparative interest for the Scots. There is much valuable material to be considered in terms of the content of personality rights,358 but there is less to be drawn from South African law in regard to how protection for such rights may be structured, not least because the South African Bill of Rights359 is not directly comparable with the ECHR and takes its impetus from significantly different constitutional considerations. Moreover, the primary medium for the protection of personality rights in South Africa, the actio iniuriarum, is rooted in the strong presence of the Roman–Dutch tradition in the

 Para 31.  As, notably, in R Zimmermann, D Visser, and K G C Reid, Mixed Legal Systems in Comparative Perspective (2004). 358  See, eg, ibid Chapter 18 (n 10 above); Jonathan Burchell, Chapter 6 below; J Neethling, J M Potgieter and P J Visser, Neethling’s Law of Personality (2nd edn, 2005). 359   Chapter 2 of the Constitution of the Republic of South Africa, available at http:// www.concourt.gov.za/site/yourrights/thebillofrights.htm. 356

357

304

r i ght s of p e rs o n al i t y

modern law of delict.360 A rich and dynamic case law steeped in this tradition has allowed the actio iniuriarum to evolve so as to operate in modern conditions.361 Scots law does not replicate this and could not appropriate it. As Norman Marsh tartly observed in his review of the first edition of Walker’s The Law of Delict in Scotland: “. . . the actio injuriarum would seem, as Professor Walker says, to ‘justify a Scottish court in giving a remedy for infringement of privacy’ (p. 708) but much of his discussion of this topic is concerned with English and American cases and writings and the Scottish harvest in this field is a rather meagre one”.362

There are few recent Scots cases in which the actio iniuriarum has been asserted,363 and none in which the court has accepted its continuing role in providing the modern framework of civil liability for invasion of private life. The actio iniuriarum as received into Scots law was summarised by T B Smith as follows:364 “The proper scope [of the actio iniuriarum] has always been to deal with those many situations where there has been deliberate affront to the pursuer (or negligence so gross as to be the equivalent of intent) and the pursuer’s feelings have consequently been hurt. Damages are

360   By contrast, Voet, for example, whose writings are routinely cited in the South African courts, was cited in only 20 cases reported in Scots Law Times since 1893. 361  In its Consultative Memorandum on Confidential Information (No 40, 1977) at paras 48–58, the Scottish Law Commission used the modern South African cases to indicate the potential application of the actio iniuriarum in Scots law. The subsequent Report on Breach of Confidence (Scot Law Com No 90, 1984) did not pursue these references further. 362   (1968) 17 ICLQ 1061 at p 1062. 363  See Martin v McGuiness 2003 SLT 1424 (OH) discussed above at Section 4.5.3(b); Hardey v Russel and Aitken, 2003 GWD 2-50, in which the party litigant attempted to invoke the actio iniuriarum, but since there was a clear case based on confidentiality, this was not explored by the court (commentary in J Tunney and J Jameson-Till, “Do you want to know a secret? Exploring the boundaries of non-contractual confidence” (2003) 71(1) SLG 2003 7, where, at 11, the authors counsel against “over-admiring the glass case of historical concepts”); Stevens v Yorkhill NHS Trust [2006] CSOH 143; 2006 SLT 889 (OH) in which Temporary Judge MacAulay allowed proof on the issue of whether the pursuer might recover on the basis of the actio iniuriarum for injury to feelings consequent upon removal of organs from her child at post mortem (commentary in N R Whitty, “Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194). 364   “Designation of delictual actions – damn injuria damn” 1972 SLT (News) 125 at p 126. A dustier treatment was found in R W Lee, An Introduction to Roman– Dutch Law (5th edn, 1953) at p 335: the “actio iniuriarum unquestionably exists in Scots law though it is not an action which one would wish to see encouraged”.



p rot e c t i o n o f p e rs o n al i t y ri g h t s

305

for non patrimonial loss (solatium) and the malicious purpose of the defender is always relevant.”

As such the actio iniuriarum must clearly be acknowledged as an important legal “ancestor” (just as “the Roman ancestor of our action of reparation is lex Aquilia”365). But although there is no doubting its importance as a source, it is questionable whether it offers a sustainable model for the modern development of personality right protection, just as it is not now suggested that the lex Aquilia should be reasserted as the primary means of focusing the complex policy considerations in developing the law relating to physical damage.366 Without the jurisprudence that has informed the modern development of the doctrine in South Africa, it is difficult to see how in Scotland the actio iniuriarum could now be revived and reformed so as to apply not only to the traditional concerns on which the Roman law concentrated in terms of corpus, fama and dignitas, but also, for example, to the potential intrusions into privacy made by modern technology in collecting and disseminating information and images. A further difficulty is that the actio iniuriarum as received in Scots law required malice in the sense of intention to injure – “deliberate affront” in Smith’s account, and absence of ill intent was generally presumed on the part of those fulfilling professional or public office.367 However, it is evident that if personality interests generally, and privacy in particular, are to be protected adequately in terms of ECHR, Art 8, liability cannot be restricted to malicious infringement.368 Unlike delicts perpetrated by physical blows or defamatory remarks, infringement of privacy is seldom malicious in the sense of any specific intention or desire to harm the pursuer. The real motivation may be the defender’s wish to serve a conflicting

 Smith, 1972 SLT (News) 125.  See Lord Rodger of Earlsferry, “The use of the Civil Law in Scottish Courts”, in D Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law (1997) 225 at p 231 in which the author counselled against “yearn[ing] to make Scots law into some kind of civil law theme park in which visitors can inspect the last working model of an actio communi dividundo”. 367  Voet, Commentarius ad Pandectas 47,10,20. 368  If that were so, individuals such the applicant in Peck v UK (2003) 36 EHRR 41 (an English case), who complained that inappropriate use had been made of CCTV footage taken of him in a public street, would remain without a common law remedy, since the local authority responsible clearly had no intention to harm him. The offending images revealed the applicant brandishing a knife, but in an attempt to commit suicide rather than to injure others. These were released to the local press and to a television station as part of coverage publicising the utility of CCTV cameras. The authority’s actions were held by the ECtHR to be an infringement of the applicant’s Art 8 rights, for which the domestic courts had provided inadequate remedy. 365

366

306

r i ght s of p e rs o n al i t y

interest which he or she believes to be legitimate, for example public interest in the case of media intrusion, or the interests of crime prevention in the case of intrusive surveillance by law enforcement agencies. In Robertson v Keith,369 for instance, the pursuer sued the local police chief constable in defamation370 after he instructed an over-zealous surveillance operation on her house in order to verify the whereabouts of an absent detective inspector with whom she was friendly. Lord Hunter remarked: “It is abundantly clear that the defender in acting as he did was not in any way influenced by a desire to punish the pursuer. He did not even know her. I think it is impossible to affirm that the action taken by the defender was so extravagant as to afford evidence of malice.”371 As François Rigaux observed of personality rights generally:372 “Les biens de la personnalité apparaissent le plus souvent dans un milieu conflictuel: ils entrent en concours avec un autre droit fundamental ou doivent être réduits ou tempérés selon les necessities de l’intérêt general.”

In this area, as with nuisance373 (the other branch of the law of delict by which Art 8 interests are protected), a spectrum of relevant degrees of fault must be recognised, ranging from malicious to negligent374 infringement and encompassing those situations where in the pursuit of other interests the defender has wilfully375 disregarded the pursuer’s privacy. And as in the law of nuisance, the cogency of those other interests is a parallel consideration, along with the gravity of the harm suffered by the pursuer. Lord Kilbrandon once commented, in

  1936 SC 29.  Today her claim would likely be refocused on the right to private life and Art 8. 371  At 53. 372   La protection de la vie privée et des autres biens de la personnalité (1990), p 17. 373  As in SME Reissue, “Nuisance” (2001) (N R Whitty), para 89; Kennedy v Glenbelle 1996 SC 96 at 100–101 per LP Hope. 374  Although Lord Hoffmann took the view in Wainwright v Home Office [2004] 2 AC 406 at para 51 that negligent breach of privacy was not actionable, the ECtHR held that the absence of civil liability for the prison officers’ negligent breach of the Wainwrights’ privacy infringed their rights to an effective remedy under ECHR, Art 13. A further example where negligent breach of privacy might be actionable would be where an employee of an agency charged with protecting the new identities of individuals such as Venables and Thompson (see Venables v News Group Newspapers Ltd [2001] 2 WLR 1038 – the released prisoners who had in childhood committed a heinous crime) negligently allowed those identities to be disclosed. 375   Cf the Irish Privacy Bill 2006, s 2, which requires that the tortfeasor “wilfully and without lawful authority, violates the privacy of an individual”. 369

370



p rot e c t i o n o f p e rs o n al i t y ri g h t s

307

1971, that “Privacy law affords an excellent example of how legal doctrines have to compromise between lawful but contradictory interests”.376 This complex balancing process – between level of fault, injuriousness of the intrusion and the persuasiveness of the countervailing interests served by the defender – requires the kind of “intense focus” on the circumstances as is now found in the “new methodology”377 of English and European jurisprudence. (c)  Looking beyond England to Europe Although there has been substantial convergence in the English and Scots law of tort/delict378 significant differences remain in “intellectual superstructure”.379 As Bernard Rudden famously noted, “The key word is in the plural”380 in the English law of torts – a collection of compartmentalised “torticles”.381 Gordley’s account of protection for personality rights in English law suggests that “it was only in the 19th century that jurists tried explicitly to identify rights that the traditional forms of action were supposed to protect. The result of that effort was to leave unexplained gaps in the rights protected”.382 While the “new rights-based jurisprudence”383 has supported the use of Art 8 to fill out the content of the common law, English law, unlike some of the other Anglo–American Common Law jurisdictions,384 has not entirely escaped the legacy of the forms of action to create a   “The law of privacy in Scotland” (1971) 2 Cambrian LRev 35 at p 35.   For an exposition see Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) at paras 7ff per Eady J; also Campbell v Mirror Group Newspapers [2004] UKHL 22; [2004] 2 AC 457; Re S [2004] UKHL 47; [2005] 1 AC 593, esp at para 17 per Lord Steyn; X v BBC 2005 SLT 796; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73; HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch 57; Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103. 378  Particularly in relation to negligence: see H L MacQueen and W D H Sellar, “Negligence” in Reid and Zimmermann (eds), A History of Private Law in Scotland, vol 2 at pp 544ff. 379   Ibid at p 547. 380   B Rudden, “Torticles” (1991–1992) 6/7 Tulane Civil Law Forum 105 at p 109. 381  The listing of “torticles” (ibid at pp 111–120) included breach of confidence under “B”, but not breach of privacy under “B” or “P”. 382   Gordley, Foundations of Private Law, p 241. On the early history of iniuria in English law, see J S Beckerman, “Affronts to Honor and Origins of Trespass” in M S Arnold et al (eds), On the Law and Customs of England. Essays in Honor of Samuel E Thorne (1981) at pp 176–181. 383   Mosley v News Group Newspapers Ltd [2008] EWHC 1777; [2008] EMLR 20 (QB) at paras 128,130 per Eady J. 384  Most notably in the US, but see, eg, a draft Privacy Bill was laid before the Irish legislature in July 2006 (Bill no 44 of 2006, available at www.oireachtas.ie); also the decision of the New Zealand Court of Appeal in Hosking v Runting [2005] 1 NZLR 1. 376

377

308

r i ght s of p e rs o n al i t y

“high level”385 tort protecting private life more generally. The English approach remains “that when new needs arise it is better to deal with them by perverting existing institutions rather than creating new ones”.386 In Scotland, as in England, protection for personality interests in the modern law has been achieved largely through the medium of discrete categories of delictual/tortious liability. However, the historical constraints of the forms of action clearly have no relevance. As Peter Birks once noted, the “true difference” between English and Scots law is not in regard to the content of particular rules, but in regard to structure. The latter retains a “commitment to the institutional scheme or, in other words, to a more systematic approach”.387 As Quintin Stewart once argued, advocating the reconceptualisation of passing off, “the foundation upon which the Scottish lawyer is free to build is . . . wider than that available to his English brother”.388 In keeping with its Civilian roots, the Scots law of delict has always been rights-based, and specific categories of delictual liability are underpinned by general principle.389 There are no structural reasons for fettering judicial discretion with regard to the list of protected rights, and this list may exceptionally be capable of further development if there are cogent reasons why a particular category should be recognised. As summed up by Lord Dunedin:390 “Of course, different actions have different names, but the question in Scotland was never as to the remedy – it was always as to the right. You ask for what you want in your summons . . . You may not get what you want, but that will be because you failed to show that you had the right to get it.”

  Wainwright v Home Office [2004] 2 AC 406 at para 32 per Lord Hoffmann.   B Markesinis, “The familiarity of the unknown” in W Swadling and G Jones (eds), The Search for Principle (1999) 59 at p 65. Of the law of torts Peter Birks lamented that “Darwin would have got nowhere with so muddled a taxonomy” (“Harassment and hubris” (1997) 31 Irish Jurist 1 at p 32). 387   “More logic and less experience” in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition in Scots Law (1997) at p 174. 388   “The law of passing off – a Scottish perspective” (1983) 3 EIPR 64 at p 65. 389   On the development of general principle from the writings of the Institutional writers, see D W McKenzie and R Evans-Jones, “The development of remedies for personal injury and death” in R Evans-Jones (ed), The Civil Law Tradition in Scotland 277 at pp 286ff. 390   “The divergencies and convergencies of English and Scottish law” (Fifth lecture on the David Murray Foundation in the University of Glasgow, 21 May 1935). See also Micosta SA v Shetland Islands Council 1986 SLT 193 at 198 per Lord Ross, citing D M Walker, The Law of Delict in Scotland (2nd edn, 1981), p 9: “The decision to recognise a particular interest, and consequently to grant a remedy for its infringement, is a question of social policy, and the list recognised has grown over the years.” 385

386



p rot e c t i o n o f p e rs o n al i t y ri g h t s

309

Accordingly, there is little historical basis in Scots law for the kind of structural difficulties which have restricted English law to protection of informational privacy only. If it is accepted that other aspects of the right to private life are worthy of protection in terms of ECHR, Art 8, and that the common law must develop so as to achieve this, the inherent flexibility of the Scots law of delict allows a remedy to be found. The coherence of the law has already been compromised in England and in Scotland by forcing protection for privacy upon other areas of delictual liability, such as confidentiality or nuisance391 in England, or defamation392 in Scotland. There is clear merit in calling privacy exactly that – pronouncing the “P word” which for a long time could not be articulated in the English courts393– and recognising it as a protected interest in the law of delict. There may be a danger of balkanising394 protection for personality interests in the law of delict, a phenomenon which, in Peter Birks’ perception, had occurred in the United States as a result of Prosser’s four-part categorisation as between separate privacy torts.395 But in the same article Birks recognised the utility of lower-level headings such as privacy.396 He noted that subdivision into separate interests was “bound to go on” as it had done in Roman law, and that it “helps clear thinking”, without necessarily threatening general principle.397 Acknowledgement of breach of privacy as a category of delictual liability provides a solid basis for constructing a taxonomy of privacy interests,398 directly informed by jurisprudence in other jurisdictions   Khorasandjian v Bush [1993] QB 727 (overruled in part by Hunter v Canary Wharf Ltd [1997] AC 655); see P Birks, “Harassment and hubris” (1997) 31 Irish Jurist 1. 392  Eg Robertson v Keith 1936 SC 29. 393  In the account of Lord Justice Sedley, “Towards a right to privacy” London Review of Books, 8 June 2006 (text of the Blackstone Lecture, delivered at Oxford on 13 May 2006). 394   “Harassment and hubris” (1997) 31 Irish Jurist 1 at p 2, referring to E J Bloustein, “Privacy as an aspect of human dignity: An answer to Dean Prosser” (1964) 39 New York ULRev 962. 395  See W L Prosser, “Privacy” (1960) 48 California LRev 383. 396   “Harassment and hubris” (1997) 31 Irish Jurist 1 at p 44 (“privacy, sexual autonomy, equal opportunity and so on”). 397   Ibid at p 44. 398   Compare, eg, Irish Privacy Bill 2006, s 3(2), which provides that it is a violation of privacy: (a) to subject an individual to surveillance; (b) to disclose information, documentation or material obtained by surveillance; (c) to use the name, likeness or voice of the individual, without the consent of that individual, for the purpose of (i) advertising or promoting the sale of, or trade in, any property or service, or (ii) financial gain; (d) to disclose letters, diaries, medical records or other documents concerning the individual or information obtained therefrom; or (e) to commit harassment. 391

310

r i ght s of p e rs o n al i t y

bound by the ECHR. Furthermore, and equally importantly, it assists us to articulate clearly how other considerations should be weighed against privacy – issues of legitimate public interest and, perhaps most notably, freedom of expression as enshrined in ECHR, Art 10. In giving express recognition to protection of privacy as a necessary development in the common law, Scotland may look first to the emergent law of informational privacy in England, and England is no doubt the jurisdiction closest in terms of cultural perceptions of privacy and its legitimate boundaries. But it may also look beyond to broader developments in the jurisprudence of other European jurisdictions, where the actio iniuriarum may also be an acknowledged legal ancestor399 although it is not now articulated as representing the modern law.400 Even in codified systems, the law protecting personality interests has often grown up through the “interstices”401 of the Code, as courts have responded to changing social and cultural expectations. Few of the issues of privacy and confidentiality which so concern us today troubled Portalis, or the fathers of the German Civil Code. In effect, Art 9, inserted into the French Code civil in 1970,402 simply gives recognition to the law as made by the judges who had for some time been using the general provisions of Art 1382 to develop extensive protection for the private sphere.403 As Lindon describes in his classic account of Les droits de la personnalité, the notion of personality rights “n’a pas,  In relation to German law, see R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990), pp 1085–1094; “The Civil Law in European Codes”, in H L MacQueen et al (eds), Regional Private Laws and Codification in Europe, (2003) 18 at p 58. On French law, see H Beverley-Smith et al, Privacy, Property and Personality (2005), p 149. But cf also, on the significance of iniuria in the development of English law, J S Beckerman, “Affronts to Honor and Origins of Trespass”, in M S Arnold et al (eds), On the Law and Customs of England. Essays in Honor of Samuel E Thorne (1981) at pp 176–181. 400  See J Gordley, “Reconceptualizing the Protection of Dignity in Early Modern Europe: Greek Philosophy Meets Roman Law” in “Ins Wasser geworfen und Ozeane durchquert”: Festschrift für Knut Wolfgang Nörr 281 at pp 303–304. 401  The term used, in relation to the penetration of Roman law in modern Civil Codes, in R Zimmermann, “Civil Code and Civil Law” (1995) 1 Columbia Journal of European Law 63 at pp 94ff. 402  Law 70-643 of 17 Jul 1970. (Art 9 reads: “Chacun a droit au respect de sa vie privée. Les juges peuvent, sans préjudice de la réparation du dommage subi, prescrire toutes mesures, telles que séquestre, saisie et autres, propres à empêcher ou faire cesser une atteinte à l’intimité de la vie privée.”) 403  This process is analysed in R Lindon, Les droits de la personnalité (1974), pp  64–67; H Beverley-Smith et al, Privacy, Property and Personality (2005), pp 147–153. Such cases would include, eg, CA Paris, 13 Mar 1965, Olivier Philippe, 1965 JurisClasseur Périodique II 14223, D 1965 somm 114; C A Paris, 27 Feb 1967, Bardot, D 1967 jur 450. 399



p rot e c t i o n o f p e rs o n al i t y ri g h t s

311

à la façon de Minerve sortie tout armée du cerveau de Jupiter, été enfantée soudain par un juriste de génie”.404 Instead, he traces the gradual development of solutions for particular types of infringement through the medium of judicial decisions rather than legislation or secondary literature.405 In Germany, similarly, it was the courts which gave the lead: first in recognising the general right of personality as being one of those protected in terms of BGB, §823(1) (Bürgerliches Gesetzbuch, German Civil Code);406 and second in pushing open the restrictions contained in BGB, §253 on recovery for injury to nonpecuniary interests, by awarding damages for serious invasion of personality interests.407 4.6  CONCLUSION Incorporation of the ECHR compels a review of existing safeguards for personality rights, together with a reappraisal of those interests which may weigh against such rights. Scotland is not unprepared for this enterprise, given the protections traditionally available in the common law of delict and those more recently provided by statute. It is also assisted by the developing English jurisprudence of informational privacy and the new methodology which this provides for balancing Art 8 against public interest considerations. However, without a coherent law of privacy in all its aspects, capable   Les droits de la personnalité (1974), pp 2–3.  The introduction to Les droits de la personnalité (at p 8) promised that it would contain “une profusion de jugements et d’arrêts, dont le nombre permet de mieux suivre l’évolution des tâtonnements et des progrès de la pensée des juges”. 406  As being within the meaning of “any other right”. See in particular BGHZ 13, 334 (the case of Schacht, 1954, English translation by F H Lawson and B S Markesinis at http://www.utexas.edu/law/academics/centers/transnational/ work/german-cases/cases_bundes.shtml?25may1954). 407  In cases from 1958 onwards such as that of the unfortunate Herrenreiter BGHZ 26, 349 (English translation by F H Lawson and B S Markesinis at http:// www.ucl.ac.uk/laws/global_law/german-cases/cases_bundes.shtml?14feb1958); a development which Zimmermann characterises as “blatantly contra legem”, but which demonstrates that “a codification as monumental as the BGB is not completely detached from the ebb and flow of legal development” (The Law of Obligations: Roman Foundations of the Civilian Tradition (1990, reprinted 1996), p 1094). H Beverley-Smith et al, Privacy, Property and Personality (2005), p 113 in relation to the “open-textured” nature of the provisions relating to personality rights in the BGB: “The vague language of these [codified] provisions makes them impossible to apply by mere reference to the wording. Rather, these rules provide a frame for case-law the development of which has, in terms of legal methodology, a striking resemblance with the application of common law rules and principles”. On the importance of academic influence, see also S Vogenauer, “An Empire of Light? II: Learning and lawmaking in Germany today” (2006) 26 OJLS 627 at pp 647–648. 404 405

312

r i ght s of p e rs o n al i t y

of responding to a changing social and economic environment,408 significant gaps will remain between Art 8 obligations and domestic law. In determining how these may best be closed, Scots lawyers can learn much from looking beyond England to judicial development of the law of privacy in other European jurisdictions.409

 See Cassell and Co Ltd v Broome [1972] AC 1027 at 1127 per Lord Diplock: “If the common law stood still while mankind moved on, your Lordships might still be awarding bot and wer to litigants whose kinsmen thought the feud to be outmoded – though you could not have done so to the plaintiff in the instant appeal, because defamation would never have become a cause of action.” (Cited in P Birks, “Harassment and Hubris” (1997) 31 Irish Jurist 1 at pp 36–37.) 409  And see now C von Bar, E Clive and H Schulte-Nölke et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (2008) providing not only that breach of confidence should be reparable (VI.-2:205), but also infringement of dignity, liberty and privacy (VI.-2:203(1). 408

protection of personality interests in europe 313

chapter 5 protection of personality interests in continental europe: the examples of france, germany and italy, and a european perspective Gert Brüggemeier* 5.1 INTRODUCTION

5.1.1 Preliminary 5.1.2 The concept of the persona 5.1.3 Three civil law approaches to the protection of personality rights 5.1.4 The meaning and import of “personality rights”

5.2 THREE DIFFERENT PATHS OF THE CIVIL LAW – ONE END?

5.2.1 France (a) The French Revolution and the rights of man (b) From the Rachel affair (1858) to 1950s: development of personality interests into a new category of subjective rights (c) From “l’affaire Marlene Dietrich” (1955) to enactment of Code Civil, Art 9 (1970) (d) The period since 1970: the impact of constitutional jurisprudence and human rights (e) A right to publicity in French law? 5.2.2 Germany (a) The historical background up to the 19th century (b) From Savigny to the BGB (1900): the rejection of a doctrine of rights of personality (c) The early 20th century: Kunsturhebergesetz (1907) (d) The legal revolution of the 1950s; introduction of a general personality right (e) Typology of interests protected by general personality right under BGB, §823(1)

* I would like to thank the co-editor Reinhard Zimmermann for his manifold helpful critical comments; Niall R Whitty for his burdensome editorial work; and, last but not least, Patrick O’Callaghan for technical as well as linguistic support in writing this chapter.

313

314

r i ght s of p e rs o n al i t y 5.2.3 Italy (a) Three historical periods (b) Personality rights in Italy from the first Civil Code (1865) to 1942 (c) The Italian law from the second Civil Code (1942) to 1970 (d) Personality rights in Italy from 1970 to the present

5.3 A EUROPEAN PERSPECTIVE – ECHR, ART 8(1) 5.3.1 Preliminary 5.3.2 Approximation of laws of delict within Europe under ECHR 5.3.3 ECHR, Art 8(1) and the case of Caroline von Hannover v Germany (2004) 5.3.4 The significance of the von Hannover case 5.4 CONCLUSION: SUBJECTIVE RIGHTS, “PERSONALITY RIGHTS” AND “PUBLICITY RIGHTS”

5.1  INTRODUCTION 5.1.1  Prelimin ary1 There are two distinct but paradigmatic paths of the law of delict concerning the protection of personality interests in 19th- and 20thcentury continental Europe – the French law and the German law.2 This difference is in part due to the specific way in which each of these two legal systems adheres to the natural law heritage and its substantive concept of the persona. Italy stands as an example of a civil law system which has been shifting between these two regimes before developing its own shape. 5.1.2  The concept of the persona The notion “persona”, personnalité, Persönlichkeit entered the legal world at two different times in history and in two different forms – 1  This chapter is based on the results of two projects: the Research Training Network “Fundamental Rights and Private Law in the European Union”, funded 2002–2006 by the European Union (cf and . The results will be published in two volumes by Cambridge University Press (in preparation)), and the Trento “Common Core of European Private Law” project “Protection of Personality Rights in Europe” (cf G Brüggemeier, A C Ciacchi and P O’Callaghan (eds), Protection of Personality Rights in Europe (forthcoming)). 2  A different view is presented by the legal historian and comparatist J Q Whitman, describing the similar positive approach of French and German law to the protection of honour in sharp contrast to the US–American Law approach focusing instead on protection of liberty: see J Q Whitman, “The Two Cultures of Privacy: Dignity versus Liberty” (2004) 113 Yale LJ 1151.

protection of personality interests in europe 315 first through the Institutiones of Justinian’s Corpus Iuris Civilis in the 6th century AD (a legal transplant from Rome to Byzantium). Book I of the Institutes developed the formalistic understanding of the natural person as a subject of the law (Rechtssubjekt; soggetto di diritto), of his or her legal capacity, and of his or her social status in inter-personal relationships (marriage, parenthood, adoption, guardianship). Most 19th-century Civil Code drafters took this conventional notion as a model and as a starting point for their own structuring of private law. French and German Civil Law also share this common heritage. Another concept of persona was then fully worked out at the time of the transition from traditional to modern society in the 17th and 18th centuries by the Enlightenment philosophy and natural law theories. Building on the work of the scholastics it was with Grotius, and especially with Pufendorf, that the idea of human dignity as a characteristic feature of the persona that must be recognised in every individual came to the fore, as well as the concept of innate human rights and duties belonging to the persona as such.3 5.1.3  Three civil law approaches to the protection of personality rights The ways in which and the extent to which the continental European laws of delict from the 19th century onwards tackle the problem of protection of personality interests seemingly depend on their adherence to the latter of these two traditions. (1) One line of thought can be seen as a continuation of the Roman law of injuries (actio iniuriarum), but strengthened through the impact of natural law. This was the path of French law, followed in the 19th century by Belgium, the Netherlands, Spain, Switzerland – and initially by Austria and Italy. (2) The other path sacrificed personality interests on the altar of the formal rationality of private law focusing on freedom of contract, alienable patrimonial rights and the compensation of pecuniary losses. This private law concept was then later forced – involuntarily and with considerable difficulties – to recognise these suppressed personality interests and to integrate them into a system, which was not fitted for them. This was the path

 See, for greater detail and with comparative perspective, J Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006), Chapter 11; and, as locus classicus, F Wieacker, Privatrechtsgeschichte der Neuzeit (2nd edn, 1967), Chapter 4 (English translation by T Weir, A History of Private Law in Europe (1995) Chapter 4 “Canon Law and its Influence on Secular Law”) with further references. 3

316

r i ght s of p e rs o n al i t y

of German law, followed in the 20th century by other states such as Austria, Greece and Italy. (3) In the second half of the 20th century another dominant, neo-natural law factor entered the legal stage supporting the development of private personality rights – constitutionalism. After the breakdown of the national socialist and fascist political regimes following the Second World War, new democratic constitutions were inaugurated in most states of continental Europe. For the first time in the history of continental Europe they contained binding, judicially enforceable constitutional rights.4 In addition, an overarching European Bill of Rights, embracing both capitalist and (then) communist countries, was set in motion – the European Convention of Human Rights of 1950.5 Its human rights finally became an integral part of the Law of the European Union. It is this process of constitutionalisation of private law6 that helped at the end of the last century to bring these two distinct civil law traditions together again throughout Europe. 5.1.4  The meaning and import of “personality rights” These paths of the Civil Law are sketched below in a three-part analysis7 covering France, Germany and Italy, supplemented by a chapter on the EU/EC law. Before embarking on this analysis, another introductory remark has to be made. The term “personality rights” is misleading and needs some clarification. In modern Civil Law there are two clearcut notions of rights: Public law recognises fundamental rights, be they classic civil rights claiming citizens’ freedom from state intervention,8 be they social or economic rights claiming aid and performances for  In France and Italy it was due to the jurisprudence of the Constitutional Council (Conseil Constitutionnel) and the Constitutional Court that non-binding constitutional rights turned into judicially enforceable constitutional principles from the 1970s onwards. See Sections 5.2.1 and 5.2.3 below. 5  S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (2006); (C Ovey and R C A White (eds)), F G Jacobs and R C A White, The European Convention on Human Rights (5th edn, 2006); C Grabenwarter, Europäische Menschenrechtskonvention (2nd edn, 2005). 6   Cf, as a comparative stock-taking, T Barkhuysen and S Lindenbergh (eds), Constitutionalisation of Private Law (2006). 7  See also, as a broader comparative overview, G Brüggemeier, A Ciacchi and P O’Callaghan (eds), Protection of Personality Rights in Europe (n 1). 8  These – national or European – fundamental rights are in addition capable of developing states’ duties of protection as a third-party effect. Cf, on the European level, ECJ, Bosman (Case C–415/93) [1995] ECR I–4921; as a leading German monograph, see J Dietlein, Die Lehre von den grundrechtlichen Schutzpflichten (2nd edn, 2005). 4

protection of personality interests in europe 317 the citizens from public authorities. These are “innate” and inalienable rights of human beings as such or of the citizens of the respective political entity and are mostly enshrined in written constitutions. Private law provides for subjective rights9: (absolute) property rights in corporeal things or intellectual achievements and (relational) obligations (Forderungen), for example the right to claim money from a debtor. These subjective rights are by definition alienable and heritable. They constitute the assets of a person. Personality rights do not fit into this dichotomy. They are hybrids, a sort of private human rights. They function as a metaphor for non-bodily aspects of the personality and this nomenclature has helped them to be recognised by private law. The law of delict protects both the “have” and the “being” of individuals. The “being” was traditionally restricted to bodily (psychophysical) integrity and protection against defamation. In the guise of personality rights supposedly new non-bodily aspects of the persona re-appeared in the scope of the law of delict. These are: dignity, autonomy, privacy etc.10 This is what personality rights or an overarching general personality right are about: Under this terminological umbrella, legitimate personality interests are developed and protected by the law of delict. One has to lift this metaphorical veil to get to the substance – the diversity of personality interests and the specificity of their scope of protection. A special and controversial case, in this respect, is the “right” to one’s likeness. It appears to have a double nature. It can be an inalienable privacy “right” – or an alienable and descendible property right (“right to publicity”).11 5.2 THREE DIFFERENT PATHS OF THE CIVIL LAW – ONE END? 5.2.1  France12 (a)  The French Revolution and the rights of man France was the demiurge of civil society in Europe. It delivered the political philosophy, the fundamental rights; the revolutionary practice.  To this civilian category, alien to common lawyers, cf H Coing, “Zur Geschichte des Begriffs ‘Subjektives Recht’”, Gesammelte Aufsätze (vol 1, 1982), p 124; F H Lawson, “‘Das subjective Recht’ in the English Law”, Selected Essays vol 1 (1977), 176; G Samuel, “‘Le Droit Subjective’ and English Law” (1987) 46 CLJ 264. 10   Dignitas and fama had already been protected by the Roman actio iniuriarum. See R Zimmermann, The Law of Obligations, Roman Foundations of the Civilian Tradition (1990), Chap 31 and below in the text. 11   Cf, in general, J T McCarthy, Rights to Publicity and Privacy 2 vols (2nd edn, 2002). 12  Section 5.2.1 benefits from both the French report by A Lucas-Schloetter to the Trento project “Protection of Personality Rights in Europe” and the French Report by C Herrmann and C Perfumi for the EU Research Training Network (cf n 1). 9

318

r i ght s of p e rs o n al i t y

But during its revolutionary process all the atrocities, which modern civilised societies would face later in the 19th and 20th centuries, were anticipated. The starting point for the development of a civil law protection of privacy and other personality interests can already be found in the Déclaration des droits de l’homme et du citoyen of 26 August 1789. Article 2 states that the first and greatest commandment of any body politic is to protect the “natural rights” of a human being, especially liberty.13 Article 11 guarantees freedom of expression.14 But it was for the legislator to implement and protect these natural rights and to define its limits by statutory Acts and the Code Civil/Code Napoléon of 1804 was a masterpiece of this transforming legislation. With its liberal principles of freedom of contract and property as well as its broad scope of protection by the law of delict it became the constitution of the French bourgeois civil society. (b)  From the “Rachel affair” (1858) to 1950s: development of     personality interests into a new category of subjective rights As early as the middle of the 19th century, the reproduction of a person’s likeness began to attract the attention of jurists and was considered very soon to be the subject of a sort of exclusive right of the individual. The judgment in the “Rachel affair” is seen as the “birth certificate” of the right to one’s own image in France.15 It concerned a famous actress who had been photographed on her deathbed. Unauthorised sketches were made from the photograph and were then commercially marketed. In this judgment, dated 16 June 1858, the civil court stated that “no one may, without the express consent of the family, reproduce and make available to the public the features of a person on his deathbed, however famous this person has been and however public his acts during his life. The right to oppose this reproduction is absolute; it flows from respect for the family’s pain and it should not be disregarded; otherwise the most intimate and respectable feelings would be offended”. The outcome of the proceedings was the seizure and destruction of the wrongfully produced sketches and the payment of non-pecuniary damages (solatium) to the relatives. The language applied by the court focused much more on property rights discourse than personality interests. Nevertheless, from the   “Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la proprieté, la sureté et la résistance à l’oppression.” 14   “La libre communication des pensées et des opinions est un des droits les plus précieux de l’homme; tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l’abus de cette liberté dans les cas déterminés par la loi.” 15  Trib civ Seine, 16.6.1858, D.1858,3,62. 13

protection of personality interests in europe 319 middle of the 19th century onwards, it was admitted in France that a person’s image, name16 and likeness were subjects of an exclusive right, the violation of which led to seizure and interdict as well as to general damages for emotional suffering (dommage moral) under the general clause of Code Civil, Art 1382 (“wrongfully inflicted damage”). Many cases of the “belle époque era” deal with the conflict of the artist’s right to his work and the person’s right to his or her image and private life.17 The only subject of strife was the question of the legal nature of this “personality right”.18 As regards private life (vie privée), on the other hand, the situation was quite different. The right of every person to have his or her privacy respected was discussed neither by the courts nor in academic scholarship (la doctrine) of civil law. Interestingly though, Royer-Collard, a supporter of freedom of press legislation under the Restoration (Second Empire), had already in 1819 advocated a “wall of private life” (mur de la vie privée) as a borderline to press freedom and thereby concisely expressed the long dominant view of a spatial private sphere linked to the realm of the home. For a long time, however, this private sphere was only protected by criminal provisions which prohibited trespassing or breach of the secrecy of correspondence.19 The Press Act of 11 May 1868, s 11, which provided that “every publication about privacy in a periodical is treated as a summary offence punishable with a fine of 500 francs”, was another criminal provision which from the time of its enactment began to influence the civil law.20 Section 11 gave rise to some judicial decisions and doctrinal discussion about the principles and conditions of the protection of privacy.21 Only 13 years later, in the Third Republic, the Press Act was repealed by a Freedom of the Press Act of 29 July 1881.22 The new Act (Art 35) provided, in the contrary, that only a deliberate infringement of another’s private life by publication would be a wrongful act; and it introduced very restrictive procedural

 Trib civ Seine, 15.2.1882, D.1884,2,22 note Labbé.   Cf thereto J Q Whitman, “The two Western Cultures of Privacy” (2004) 113 Yale LJ 1151 at pp 1175 et seq with references. 18  Trib civ Seine, 16.6.1858, Rachel, D.1858,3,62. 19  This criminal law focus is also to be found in the Constitution du 3 septembre 1791, title III, chap V, art 17: “Les calomnies et injures contre quelques personnes que ce soit relatives aux actions de leur vie privée, seront punies sur leur poursuite”. 20  Warren and Brandeis considered it as having established a right to privacy in France: S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harv LRev 193 at p 214. 21   Cass crim, 28.2.1874, D.1874,1,233. See also after the repeal of the 1868 Act, Trib civ Seine, 28.1.1896, Ann prop ind 1897, 89; Cour d’appel (CA) Paris, 2.12. 1897, Ann prop ind 1899, 63. 22  Loi du 29 juillet 1881 sur la liberté de la presse, Bull. Lois no 637 p 125. 16 17

320

r i ght s of p e rs o n al i t y

requirements. In this respect, the protection of the persona against any form of defamatory and revelatory publication remained limited. But this had no implication for the protection of other personality interests founded on the general rules of the law of delict (C civ, Art 1382). As to written correspondence, the rule of inviolability was well acknowledged via the right to the secrecy of letters.23 By the end of the 19th century, diverse non-bodily aspects of the persona seemed to be protected in a satisfactory way in French law. The protection of name, likeness and secrecy of correspondence was founded on the general principles of the law of delict. The very broad formulation of Code Civil, Art 1382 allowed most of the conflicts arising from the unauthorised use of one’s name or likeness to be solved, without it being necessary to determine precisely the true nature of the power of self-determination each person has over his or her personal attributes. Private life and honour were governed – in a restrictive way – by the Press Act 1881. In the 19th century the development of “personality rights” remained – internationally – interwoven with the emergence of intellectual property rights – patents, copyright and trademarks. In France this relationship was, in this respect, more intense as the French copyright doctrine acknowledged from the beginning a moral right (droit moral) of the author or artist. In 1900 the Paris Court of Appeal held that an author’s right to modify or withdraw his work regardless of any contractual obligations was “inherent in his personality itself”.24 In the French tradition, personality rights are thus within a continuum leading from the alienable commercial copyright through the inalienable moral right of the creator to the privacy right of the persona. A first clarification was undertaken after the turn of the century by E H Perreau. In his famous article on “Des droits de la personnalité”, published in 1909,25 he delivered a taxonomy of these new rights. He made the distinction between the rights concerning the physical individual (life, limbs and health, including consent to medical treatment) and those concerning the moral personality. The latter category comprised honour, liberty and intellectual works (moral right). These rights of the moral personality were characterised by two aspects. They had effect erga omnes and could not be evaluated in money.26 As a consequence, they were inalienable, imprescriptible and inheritable. They could only be exercised and enforced by the  Eg Trib civ Seine, 11.3.1897, D.1898,2,359, about the exchange of letters between George Sand and Alfred de Musset. 24   CA Paris, 1.2.1900, S Jur II 121. 25   (1909) 8 Rev Trim Droit Civ 501. 26  Pp 514 et seq. 23

protection of personality interests in europe 321 “owner” him- or her-self.27 Although this was a remarkable step forward, the connotations with intellectual property rights are still present. This track was pursued by Roger Nerson in his thesis entitled “Les droits extrapatrimoniaux” in 1939.28 From the middle of the 20th century, the opinion that personality rights should be seen as a new category of subjective rights gained ground. This point was in particular made in 1952 by the Belgian author Jean Dabin, whose definition of personality rights is still used today: “These are the rights whose subject is the component elements of the personality considered under its manifold aspects, physical and moral, individual and social”.29 (c)  From “l’affaire Marlene Dietrich” (1955) to enactment of Code     Civil, Art 9 (1970) The second phase of the history of French privacy law began in the 1950s. In the famous “Marlene Dietrich affair”, a weekly magazine published parts of Ms Dietrich’s alleged memoirs in the form of an invented interview granted to a German journalist. On Ms Dietrich’s suit the court found for her and awarded 5,000 FF. On appeal, the Cour d’appel de Paris affirmed. It held: facts and stories “concerning the private life are part of the person’s moral property; . . . no one may publish them, . . . without the express and unequivocal authorization of the person whose life is recounted”.30 The court then raised the damages to 1,2 mill FF, taking into account not only her emotional suffering but also her patrimonial interests as far as she was in fact preparing her own memoirs for publication. This amount remains up to now one of the largest damages awards in French privacy cases. With the “Philipe affair” the available remedies in privacy cases were enlarged. The Cour de Cassation granted for the first time pre-trial interdictal (injunctive) relief to bar publication in order to prevent privacy violations.31 This relief requires an “intolerable intrusion into private life”. Because of these flourishing case law developments, the legislature decided to reform the Civil Code. The Act of 17 July 1970 “intending to reinforce the guarantee of individual rights of the citizen” marked a milestone in the history of the protection of personality  At p 514.  R Nerson, Les droits extrapatrimoniaux (1939); cf also P Roubier, Droits subjectifs et situations juridiques (1963). 29   J Dabin, Le droit subjectif (1952) p 169. See also A Decocq, Essai d´une théorie des droits sur la personne (1960); P Kayser, “Les droits de la personnalité. Aspects théoriques and pratiques” (1971) 69 Rev Trim Droit Civ 445. 30  Paris, 16.3.1955, M Dietrich, DS Jur 1955, 295. 31   Cass Civ 2e, 12.7.1966, G Philipe, DS Jur 1967, 181. 27

28

322

r i ght s of p e rs o n al i t y

interests in France.32 This is true even though the French legislature merely codified the case law relating to the protection of the private sphere into the Civil and Criminal Codes. The newly introduced Civil Code, Art 9(1), the wording of which is similar to that of ECHR, Art 8(1), reads: “Chacun a droit au respect de sa vie privée.” – “Each person has the right to respect for his or her private life”. Thus, privacy, the sanctity of the home and the secrecy of correspondence are officially recognised as protected personality interests (“rights”) by the French legislature. Article 9 provides for a twotiered system of privacy protection: (1) Infringements of private life in general are subject to an independent strict liability regime and to special and general damages after trial. (2) Revelations concerning the intimate core of private life justify pre-trial interdictal/injunctive relief. (d)  The period since 1970: the impact of constitutional     jurisprudence and human rights A third phase of legal protection of personality rights in France started in the 1970s. A new branch of law was born: constitutional jurisprudence (droit constitutionnel jurisprudentiel). Under the Fifth Republic a Constitutional Council (Conseil Constitutionnel) was inaugurated (Arts 56–63 of the Constitution of 1958). Through its landmark judgment of 197133 a body of binding constitutional rules (so-called bloc de constitutionalité) was established. The central elements of this “bloc de constitutionalité” are the text of the Constitution of the Fifth Republic, the Declaration of 1789 and the preamble of the Constitution of 1946 (with social and economic rights). Today this body of law is defined as “all principles and rules of constitutional rank which are binding (!) on the legislature as well as the executive and, in a general way, on any public authorities, courts, and indeed private parties”.34 Through the same judgment the Constitutional Council assumed its own competence to review the conformity of legislative Acts with these constitutional principles.35 32  Loi No 70-643, 17.7.1970, JO 19.7.1970, p 6751; cf R Badinter, “Le droit au respect de la vie privée” (1968) JCP I, 2136; H Trouille, “Private Life and Public Image: Privacy Legislation in France” (2000) 49 ICLQ 199. 33   CC, 16.7.1971, decision 71-44 DC (“Liberté d’association”). 34   “l’ensemble des principes et règles à valeur constitutionnelle dont le respect s’impose au pouvoir législatif comme au pouvoir exécutif, et d’une manière générale à toutes les autorités administratives et jurisprudentielles ainsi, bien sur, qu’aux particuliers” : L Favoreu et al, Droit des libertés fondamentales (2002), p 157. 35  This review procedure can only be triggered by the Government, the French President, the Presidents of the two chambers of Parliament, and a group of (at least 60) Members of Parliament (Art 61). Before 1971, the Constitutional Council’s

protection of personality interests in europe 323 In breaking from a long-established tradition of French law the ordinary courts can now refer directly to constitutional principles when adjudicating cases. From 1971 onwards the avenues for the protection of personality rights has been significantly broadened: protection by legislation (eg amendments to the Civil Code36) is now directly impacted by the national constitutional principles, especially fundamental rights, and the human rights of the European Convention. The ECHR was signed by France on 3 May 1974. According to Art 55 of the Constitution, the European Convention law has supremacy over national legislation. The right to sue the French Republic before the Court in Strasbourg was finally recognised in 1981. Public life and private life are traditionally quite separate in France. The right to one’s image (droit à l’image), for example, has been firmly established in the French general law of delict (C civ, Arts 1382/1383) since the “Rachel affair”. French courts ruled that it is unlawful to photograph an individual without his consent, even if the photograph was not for subsequent publication. The victim could claim non-pecuniary damages. This is true also for celebrities and public figures (personnalités publiques) as long as they are not engaged in any public function or professional activity. In addition, a right to one’s honour has been firmly established. The content and outline of this right under the Press Act 1881, however, remained uncertain.37 The French civil courts normally did not make explicit reference to the domestic Constitution or any international constitutional Treaties. The personality interests are covered by special legislation, and the broad delict provisions of the Civil Code give the courts enough leeway to achieve fair and just results. An academic discussion on Drittwirkung never gained ground.38 After the “constitutional turn” in French law in 1971 and after the coming into force of the ECHR in 1974 the legal situation changed slowly, but dramatically. Today, the influence of human

competence was restricted to check the balance of powers between the executive and legislature in order to assure the respect of constitutionality of the rule-making process. 36  In 1994 another fundamental constitutional value – human dignity – was concretised by legislation. A new article (Art 16) was introduced into the Civil Code: “La loi assure la primauté de la personne, interdit toute atteinte à la dignité de celle-ci et garantit le respect de l’être humain dès le commencement de sa vie.” C civ, Art 16.1 reads: “Chacun a droit au respect de son corps. Le corps humain est inviolable.” 37   Cf also J Q Whitman, “The Two Western Cultures of Privacy” (2004) 113 Yale LJ 1151 at pp 1171 et seq (overstressing the anti-liberal dominance of the protection of honour). 38   Cf L Favoreu et al, Droit des libertés fondamentales (2002).

324

r i ght s of p e rs o n al i t y

rights on private law is evident.39 Next to family law and labour law, the most important area of private law where fundamental rights exercise an acknowledged effect is the field of personality rights, and especially the right to privacy. Here, the Press Act 1881 lost de facto any influence. This is the result of a discourse, which has become well established, between legislative, jurisprudential and doctrinal formants. In this way the Act of 17 July 1970, introducing Art 9 into the Civil Code, has been reviewed and affirmed constitutionally, first implicitly,40 then explicitly in 1999 by the Conseil Constitutionnel.41 In accordance with the Council’s jurisprudence the Cour de Cassation held that the “respect de la vie privée” and freedom of expression have the same normative value, according to ECHR, Arts 8 and 10 and to Code Civil, Art 9 and the Declaration of 1789, Art 11. In cases of conflict between the two principles, the judge shall strike the balance to find a solution that may grant protection to the most legitimate interest under the given circumstances in the concrete case.42 If it is a reported event of public interest, “on the bases of ECHR, Article 10 and Articles 9 and 16 Civil Code, freedom of press includes the right to report on a subject of general interest; the limits of this freedom are marked by the respect of human dignity”.43 Leaving this case aside, privacy, especially the right to one’s image, is strongly protected by constitutional law (Declaration of 1789, Art 2; ECHR, Art 8) and by civil law (C civ, Art 9).

39   Cf A Debet, L’influence de la Convention européenne des droits de l’homme sur le droit civil (2002) (containing an account of judicial references to the ECHR); J-P Marguénaud, CEDH et droit privé (2001); id, “Le droit civil français sous influence de la Convention européenne des droits de l’homme” (1996) Rev Trim Droit Civ 505; O Lucas, “La convention européenne des droits de l’homme et les fondements de la responsabilité civile” (2002) JCP I. 111. 40  DC 76-75, 12.1.1977; DC, 18.1.1995, [1995] JCP 22525. 41  DC 99-422, 21.12.1999. Cf also DC 2003-467, 13.3.2003: “Considérant qu’aux termes de l’article 2 de la Déclaration des droits de l’homme et du citoyen le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sureté, et la résistance à l’oppression; que la liberté proclamé par cette article implique le respect de la vie privée.” 42   Cass civ, 9.7.2003, [2004] D 1634; [2004] Gaz Pal 3112 – This judicial approach reminds of the German constitutional law principle of “practical concordance”, developed by K Hesse. Cf K Hesse, Grundzüge des Verfassungsrechts (20th edn, 1995/1999), pp 142–143. For a critique, see A Fischer-Lescano, “Kritik der praktischen Konkordanz” (2008) KJ 166. 43   Cass 1st civ, 4.11.2004, [2004] JCP II 10186. – In balancing these conflicting rights, eg dignity has been found violated in publishing the photo of a body of a victim to a terrorist attack: Cass civ, 20.12.2000, [2001] D 872.

protection of personality interests in europe 325 (e) A right to publicity in French law? It is not free from doubt to what extent a “right to publicity” is acknowledged in French law. It seemed to be introduced by a statute relating to copyright and performing artists’ rights in 1985 but restricted to “performing artists” (l’artiste-interprète).44 A first instance court’s judgment from 1988, however, is straightforward in acknowledging a copyright-like “right to publicity”: “The right to one’s image is of a moral and pecuniary nature: the economic right which allows pecuniary gain from commercially exploiting the image is not purely personal and can be passed to the heirs.”45 This has also been acknowledged in a case of a non-public figure.46 5.2.2  Germany47 (a)  The historical background up to the 19th century “A general personality right is alien to the [German] civil law.” This was the position of the Imperial Court (Reichsgericht/RG) in 1908,48 at nearly the same time that Perreau undertook to categorise the French law of personality rights. In fact, the learned drafters of the German Civil Code (Bürgerliches Gesetzbuch – BGB) deliberately broke from the tradition of the Roman law of injuries (actio iniuriarum). Classical Roman law recognised no rights of personality; however, alongside the bodily integrity of the free Roman citizen, it protected his “personality” as well – dignitas and fama – against the most varied forms of impairments.49 There were various reasons for this decision by the BGB law-maker. One was the lack of a declaration of civil rights which gave legislative   Cf A R Bertrand, “A New Neighbouring Right to Copyright” (1991) 13 EIPR 184. 45  Aix-en-Provence, 24 11. 1988, JCP 1989, II, 21329, note by J Henderycksen (quoted from Bertrand (1991) 13 EIPR 184, 186); cf E Gaillard, La double nature du droit à l’image et ses conséquences en droit français (1984). 46  Riom, 26.2.2004, Gaz Pal 2004 no 328, p 14. 47   Cf, in greater detail, G Brüggemeier, Haftungsrecht. Struktur, Prinzipien, Schutzbereich (2006) pp 264–333; S Balthasar, Der Schutz der Privatsphäre im Zivilrecht (2006); U Amelung, Der Schutz der Privatheit im Zivilrecht (2002) (all three with comparative accounts); M Baston-Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrechts (1997). 48  RG, 7.11.1908, RGZ 69, 401, 403 (Nietzsche-letters). 49  There was a General Edict of the praetors against iniuria and three special delicts, namely, convicium, adtemptata pudicitia and infamatio. The civil suit of actio iniuriarum was aimed at the satisfaction of the unlawful public disrespect of persons through equitable monetary compensation (ie solatium for non-material injury) – quantum judici aequum et bonum videbitur. For an overview in English tracing the history of iniuria from its Roman foundations to the modern law of, inter alia, Germany, see R Zimmermann, The Law of Obligations, (1990), Chap 31. 44

326

r i ght s of p e rs o n al i t y

effect to the anti-absolutist doctrines of natural law. Nineteenthcentury Germany did not know a revolutionary declaration of human rights such as the French Declaration of 1789 or the US Bill of Rights of 1791.50 Attempts to establish a democratic constitution with fundamental rights were undertaken by the 1848 “PaulskirchenConstitution”.51 With the failure of the Revolution of 1848, these attempts remained unfulfilled. The second limitation for the enactment of a constitution was the absence of a nation state. Germany, in the 19th century, was a quilt of diverse kingdoms and principalities which were linked in the German Confederation (Deutscher Bund: 1815–66) as established at the Congress of Vienna as successor to the Holy Roman Empire (800–1806). The German Confederation was, to a great extent, incapable of action internationally, because it was blocked by its two largest Member States Prussia and AustriaHungary. The unification of Germany, with the exclusion of Austria, occurred much later under the leadership of Prussia after two wars with Austria (1866) and France (1871). The Constitution enacted in Versailles in 1871 was simply an organisational statute for a federation of principalities, named the (Second) “German Empire”.52 This imperial constitution did not contain any fundamental rights. So it was up to the private law development and codification to secure contemporary ideals of liberty and equality. This took place but with the break from the natural law concept of a fundamental right of the persona by the Historical School. Rights and duties based on human dignity and mutual recognition as a persona did not fit into a system of civil law focusing on patrimonial rights (property and obligations) and the compensation of patrimonial loss; the development of such a system was a central concern of market-oriented legal science at this point in history. (b)  From Savigny to the BGB (1900): the rejection of a doctrine of      rights of personality Savigny, imbued with the ideals of 19th-century liberalism, misconceived the personality right as a proprietary right in one’s own body.53 The German jurists of the 19th century took literally  See the first 10 Amendments to the US Constitution of 1787.  It provided for a third-party effect of basic rights in connection with the privacy of correspondence. See H Scholler (ed), Die Grundrechtsdiskussion in der Paulskirche: eine Dokumentation (2nd edn, 1982); see in general K Kröger, Grundrechtsentwicklung in Deutschland (1998). 52   Verfassung des Deutschen Reiches of 16.4.1871, Reichsgesetzblatt 1871, 64. 53   C F von Savigny, Das System des heutigen Römischen Rechts, vol 1 (1840) §53. Unlike his successors Savigny adhered to the protection of fama and dignitas by the Roman law actio iniuriarum. See I Ebert, Pönale Elemente im deutschen Privatrecht (2004) at pp 233–234 with further references. 50 51

protection of personality interests in europe 327 John Locke’s metaphor when he spoke of a man’s “property in his own person”.54 A personality right understood as a property right on one’s body does not make sense. There are no pieces of property to be transferred. And the analogy to the proprietor’s right to destroy the thing was the individual’s right to commit suicide. This, too, was rejected by Savigny. Savigny made reference to Hegel’s Philosophy of Law to support his refusal of a personality right. But Hegel just succinctly noted that there is no property in the persona.55 Thus the notion of persona was reduced to the aspect of legal capacity and personhood: persons, objects (things and rights), and legal relationships – personae, res, actiones/obligationes – became the building blocks of this system. At the ideological level, the guiding concepts were – Europe-wide – liberalism and possessive individualism:56 property (“have”) and bodily integrity (“being”) of the individual were the primary, if not exclusive, objects of legal protection. Thereby the BGB law of delict served at the same time freedom of contract (private autonomy) and the development of commerce.57 Injuries to honour and dignity of the persona were, in so far as necessary, avenged through penal law (defamation law: §§185 et seq of the Penal Code (StGB) of 1871). The civil law of damages was restricted to cases of restitution in kind and compensation of patrimonial loss (BGB, §§249–253).58 Thus the German Civil Code did not – in contrast to nearly every other private law system – acknowledge monetary compensation in defamation cases. Equitable indemnification for non-patrimonial losses (aequum et bonum) was only provided for exceptionally in cases of bodily injuries (BGB of 1896/1900, ex §847(1): compensation for pain and suffering). Finally, the indeterminacy of the contents of a general personality right was seen in Germany as a grave obstacle to the codification of such a right. Thus, in contrast to the system of subjective patrimonial rights, the field of personality rights and rights of the person remained underdeveloped.59 Only portions of the all-

  J Locke, Two Treatises of Government, Second Treatise (1690), Chapter 4, para 27. Compare the civil law tradition under which the body of a free person is not susceptible to ownership: D 9,2,13pr (Ulpian) “dominus membrorum suorum nemo videtur”/“no property in human body rule”. 55   G W F Hegel, Rechtsphilosophie §70 Supp (reprint of 1819/1820). 56   C B Macpherson, The Political Theory of Possessive Individualism (1962). 57   On this point, cf M Gruber, Freiheitsschutz als ein Zweck des Deliktsrechts (1998). 58  Motive, vol II, p 22; Protokolle, vol II, pp 637/638. – The RG even denied taking up the French doctrine of dommage moral in the Prussian Rhine provinces where the French Civil Code was in force till 1900: RG, 27.6.1882, RGZ 7, 295. 59  Among the minority opinions were K Gareis, O v.Gierke, J Kohler and others. 54

328

r i ght s of p e rs o n al i t y

encompassing legal complex of “personality” were regulated in the BGB: in particular, the right to one’s name (Namensrecht) in BGB, §12. Economic disadvantages brought about by false statements impairing the “credit” of a person could be sanctioned by §824. And finally the somewhat odd case of “the right of a woman’s virtue” (Geschlechtsehre – BGB of 1896/1900, ex §825)60 was incorporated in the Code. Violation of that right was compensated by general damages (BGB, ex §847(2)). (c)  The early 20th century: Kunsturhebergesetz (1907) The discourse on personality rights in the 19th century was governed internationally through the development of subjective rights which were similar to property rights – the rights to immaterial goods. Intellectual labour should lead to exclusive alienable patrimonial rights similar to property rights. Thus the personality rights of authors, artists, etc. came into being. In contrast to France, the German doctrine, however, did not recognise an independent moral right of the creator of an intellectual work. Thus, at the turn of the century, intellectual property rights were quite neatly separated from diffuse personality rights – the first acknowledged, the others suppressed. But there is one exception: In the aftermath of the Bismarck-photograph case of 1899,61 in the the Artists’ Copyrights Act (Kunsturhebergesetz – KUG) of 1907, the protection of the person portrayed, ie the right to one’s own image, was also introduced. KUG, §22 enshrined the principle, that pictures displaying individuals may only be disseminated with the consent of the person pictured. Exempt from this rule are however pictures relating to contemporary society or history (KUG, §23(1) no 1). This statute led to the firmly established jurisprudence that photographs of “public figures”62 could be taken and published without consent and at any occasion, unless there was an intrusion into these persons’ intimate living area like houses, flats, private gardens, etc.63

60  In 2002 this was transformed into the gender-neutral language of “protection of sexual self-determination”. 61  RG, 28.12.1899, RGZ 45, 170. Unlike the trial court, the RG denied personality rights of the children and referred conventionally to the Roman actio ob iniustam causam. The story of this case is told and the Bismarck-photograph reproduced in G Brüggemeier, Haftungsrecht pp 297 et seq. 62  So-called Personen der Zeitgeschichte/persons of contemporary history. 63  The Kunsturhebergesetz was in 1965 repealed by an all-embracing Copyrights Act (Urheberrechtsgesetz). The provisions concerning the right to one’s image, however, remained in force.

protection of personality interests in europe 329 The long list of substantive constitutional (civil and economic) rights that adorned the Weimar Constitution of 191964 were not judicially enforceable. These rights were seen as purely declaratory, as programmatic provisions. They did not change the denial by the legislature and judiciary of protection of personality interests via the law of delict. The Hoffmansthal judgment of the Reichsgericht in 192665 is a representative case. Only in extremely isolated instances do we find positions which hint at a protected right of personality according to BGB, §823(1).66 Extreme cases of injuries to freedom of employment, to personal or professional reputation, invasions of the private sphere, and special non-pecuniary personality rights would – insofar as patrimonial loss was found – be handled according to the principles of “wilful damaging in a manner contrary to public policy (bonos mores)” (BGB, §826).67 (d)  The legal revolution of the 1950s; introduction of a general     personality right In Germany a fundamental change in the protection of personality interests came about after the Second World War.68 The Federal Republic of (West) Germany was founded and the Bonn Constitution (“Grundgesetz”/GG) came into force in 1949.69 The Bonn Constitution contained for the first time a catalogue of mandatory fundamental rights, explicitly binding all public powers (GG, Art  1(3)). The recognition of the unassailability of the dignity of a human being stands right at the beginning. Guarantees of the free development of the person (Art 2(1)), of the secrecy of letters, post, and telecommunication (Art 10) and of the inviolability of the

  Verfassung des Deutschen Reiches of 11.8.1919, Reichsgesetzblatt 1919, pp. 1383; cf H C Nipperdey (ed), Die Grundrechte und Grundpflichten der Reichsverfassung 3 vols (1929/1930). 65  RG, 12.5.1926, RGZ 113, 413, at 414/415 cross-referencing the Nietzsche letters judgment (RGZ 69, 401). 66   OLG Kiel, 9.7.1929, JW 1930, 78 no 5 (“Fall Donner”) (Stage play regarding the murder of a spouse), annotated by Adler. 67  RG, 29.5.1902, RGZ 51, 369, 381 – black list; RG, 15.11.1909, RGZ 72, 175 – harm to reputation through the allegation of mental illness; Kammergericht Berlin, 28.5.1921, JW 1921, 901 no 2 – publication of letters of members of the imperial family to Bismarck; RG, 13.1.1927, RGZ 115, 416 – information about a previous conviction by a credit agency; OLG Kiel, JW 1930, 78, 80 – Donner; RG, 18.10.1939, RGZ 162, 7 – critique of music. 68   J Q Whitman, however, claims to have found evidence for roots of civil personality rights in the time and law of National Socialism. See J Q Whitman, “The Two Cultures” (2004) 113 Yale LJ 1151, at pp 1187 et seq. 69   Grundgesetz für die Bundesrepublik Deutschland of 23.5.1949, Bundesgesetzblatt 1949, p 1. 64

330

r i ght s of p e rs o n al i t y

home (Art 13) followed. Now the task for the courts, legislature and legal scholarship was to make the pre-constitutional 19thcentury private law of the BGB compatible with the values of the Constitution of 1949.70 This was brought about by a couple of landmark judgments by the highest courts – Federal Constitutional Court (Bundesverfassungsgericht – BVerfG)71 and Federal Court of Justice (Bundesgerichtshof – BGH). Concerning personality interests the point of change was marked by the Schacht-Leserbrief judgment of the Bundesgerichtshof in 1954.72 The case was based on facts which were thoroughly typical of the times: Dr Hjalmar Schacht was the President of the Reichsbank (until 1938) during the national socialist era and at times also minister of the economy under Hitler. In 1952, a newspaper looked critically into the new economic activities of Dr Schacht. The plaintiff, the legal counsel of Dr Schacht, filed a formal brief for his client, demanding rectifications of the article. The newspaper printed this legal demand next to other opinions in the rubric “Letters to the Editor”. Thereby the plaintiff was cast in a false light as being a sympathiser of Dr Schacht and national socialism. In this case, the BGH for the first time developed a private law “right of personality” as constitutionally guaranteed by Art 1(1) (respect for human dignity) and Art 2(1) (right to free development of the person) of the GG. The person has to be protected against altered and unauthorised publication of their written expressions. The general right of personality must, because of the Constitution, be accepted as a constitutionally guaranteed fundamental right, which not only is directed against the State and its public bodies, but also against private parties (individuals, businesses) in their relations inter se. This led to the famous doctrine of “Drittwirkung” (“third party effect”/horizontal effect”).73   For a majority of private law scholars this apparently did not cause any problems. From their point of view a “liberal civil law”, the BGB finally found its adequate liberal political and societal framework. Cf inter alia and with further references, J Rückert, “Introduction”, in M Schmoeckel, J Rückert and R Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol 1: Allgemeiner Teil (2003). 71  Most remarkable is the Lüth case of the Federal Constitutional Court: BVerfG, 15.1.1958, BVerfGE 7, 198; NJW 1958, 257; JZ 1958, 119 (stating an all-embracing “radiating effect” or “objectively normative effect” of constitutional principles on each area of German law); cf to this case T Henne and A Riedlinger (eds), Das Lüth-Urteil aus (rechts-)historischer Sicht (2005). 72   BGH, 25.5.1954, BGHZ 13, 334; NJW 1954, 1404; JZ 1954, 698 with note Coing; also cf BGH, 26.11.1954, BGHZ 15, 249 (Cosima Wagner). 73  The term was coined 1954 by H P Ipsen, “Gleichheit”, in F L Neumann, H  C Nipperdey and U Scheuner (eds), Die Grundrechte, vol 2 (1954), p 111, at p  143; H C Nipperdey, Grundrechte und Privatrecht (1961) (in the 1950s a 70

protection of personality interests in europe 331 In 1957 the general personality right was explicitly recognised as an “other right” in the sense of BGB, §823(1).74 Notwithstanding this, there is plain evidence that the “general personality right” is not an absolute property right which is regulated in §823(1)!75 In a short time the civil law protections of the personality were consolidated: through another landmark judgment in 1958 an equitable monetary compensation (solatium/damages for pain and suffering/Schmerzensgeld)) was made available in cases of grave infringements of the personality;76 and interdictal/injunctive relief under BGB, §1004 were made possible.77 Efforts to codify this new personality protection law had been undertaken since the end of the 1950s, but did not prosper.78 The second constituent79 of this ground breaking “legal revolution” – which was in opposition to the systematic schema of the BGB – was an undeniable requirement in society for protection of the individual in the post-war era. This resulted from the increased endangerment of a reserved realm of private life choices through the escalation of state, mixed, and private sector collection and administration of vital data of individuals; the growing intrusion into and publication of private life issues driven by ever more aggressive advertising and marketing practices; and, last but not least, from the oppressive experience of total control of individuals and information by the national socialist state which made indispensable the protection of a residual area of personal privacy against access and transfer of various kinds of private data.

prominent supporter of the doctrine of direct horizontal effect; he later dropped the term altogether); CW Canaris, Grundrechte und Privatrecht. Eine Zwischenbilanz (1999) (trying to do away with the doctrine of Drittwirkung by replacing it by the state’s duty to protect its citizens); as a European overview with further references, see T Barkhuysen and S Lindenbergh (eds), Constitutionalisation of Private Law (2006). 74   BGH, 2.4.1957, BGHZ 24, 72; NJW 1957, 1146 (Medical health certificate); hesitating to acknowledge it: Larenz, “Das ‘allgemeine Persönlichkeitsrecht’ in Recht der unerlaubten Handlungen” NJW 1955, 521. 75  Medicus still calls the personality right “eine juristische Mißgeburt” (a juristic monstrosity). Medicus, Bürgerliches Recht (21st edn, 2007), p 375. 76   BGH, 14.2.1958, BGHZ 26, 349; NJW 1958, 827; JZ 1958, 571 (Herrenreiter). 77   BGH, 18.3.1959, BGHZ 30, 7; NJW 1959, 1269 (C Valente). 78   Cf M Baston-Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrechts, p 166. 79  As a further basis of legitimation the re-discovered natural law, which enjoyed a certain renaissance in post-war Germany, came into the picture. On this point, cf H Coing, Die obersten Grundsätze des Rechts: Ein Versuch zur Neugründung des Naturrechts (1947); H Hubmann, Das Persönlichkeitsrecht (1953); W Maihofer (ed), Naturrecht und Positivismus (1962).

332

r i ght s of p e rs o n al i t y

(e)  Typology of interests protected by general personality right    under BGB, §823(1) The guarantee of personality rights by the national Constitution80 was the starting point. But private law necessarily goes further. The law of delict seeks – in the shadow of constitutional law – to formulate rules for the conduct of private parties in social spheres which are marked by a particular endangerment of the personality. It aims at the protection of legitimate interests of the persona. In this respect, it must be stressed again, that the concept of a general private law “personality right” is misleading!81 On the one hand, it is burdened with a debt to a pre-constitutional legal terminology based on subjective property rights (BGB, §823(1): “other right”); on the other, it is borrowed from the constitutional language of fundamental rights. Behind this metaphor a collection of various areas of protection of the persona is hidden. On the basis of the case law today, from both the Federal Constitutional Court (BVerfG) and Federal Court of Justice (BGH), five broad ranging protected personality interests developed under BGB, §823(1), with their own specific preconditions and sub-categories: (1) the protection of privacy; (2) the right to one’s own image, name and likeness; (3) the sphere of publicity; (4) the right of informational self-determination; and (5) protection of honour and reputation.82 (1) Privacy functions here as a catch-all category for a protected zone of personal identity and seclusion in society. “The right to be one’s self”; the right to privacy in one’s spoken or written expression; the right to anonymity; and the right not to be the object of reporting. The protection of privacy is a core area of general personality law. The boundaries of inadmissible encroachments are here quite often only able to be demarcated after a complex balancing of contemporary but in principle equally ranked fundamental rights: eg protection

80  In the shadow of the national constitution the ECHR, transformed into German law as ordinary statutory law, remained without relevance. This began to change only recently. See Section 5.3 below (on “European Perspective”). Cf also R Ellger, “Europäische Menschenrechtskonvention und deutsches Privatrecht” (1999) 63 RabelsZ 625 (in English: “The European Convention of Human Rights and Fundamental Freedoms and German Private Law” in D  Friedmann and D Barak-Erez (eds), Human Rights in Private Law (2001), pp 161 et seq). 81  As there is no (general) right to personal autonomy as such. Cf J Raz, The Morality of Freedom (1986) p 247. 82   Cf, in detail, G Brüggemeier, Haftungsrecht pp 264 et seq; M Baston-Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrechts (1997).

protection of personality interests in europe 333 of privacy (GG, Arts 1(1) and 2(1); ECHR, Art 8(1)) versus freedom of the press (GG, Art 5(1); ECHR, Art 10). (2) The right to one’s own image was, historically, the first expression of this new field of “personality rights” law. The development of photography brought with it an until then unknown potential danger: the possibility and temptation to profit through the marketing of unauthorised publication of photographs for illustration in magazines or for commercial promotion of products and services. In almost all countries this case group stands at the beginning of the development of civil personality rights. It has, even today, held on to its prominent position in the law. Its scope of protection is still subject to controversies. A recent example, discussed in greater detail below, are law suits concerning unauthorised photographs of celebrities such as the Princesses of Wales and of Monaco/Hannover taken of them in public places. Although in principle belonging to the private sphere, the particularities of the rights to one’s own image, to one’s own name, to one’s own voice justify their independent treatment. As far as celebrities are concerned, these rights have developed a double nature (Doppelcharakter) as (i) an inalienable and non-descendible personal dignitary right (“right to privacy”) and as (ii) an alienable and descendible property right (“right to publicity”). Famous German cases stressing this difference are “Herrenreiter”83 and “Mephisto”,84 on the one hand, and “Paul Dahlke”,85 and “Marlene Dietrich”86 on the other. With the Marlene Dietrich judgment from 2000, a “right to publicity” seems to be explicitly acknowledged in German law. (3) In the public sphere it is a matter of the protection of individuals who are participants in public discourse. It is a matter of the borders of the right to determine the presentation of one’s own persona in public. (4) The informational autonomy/self-determination addresses the competence of the individual to determine what personal information will be made accessible to social and state entities and to what extent. An important sector of this field is   BGHZ 26, 349.   BGH, 20.3.1968, BGHZ 50, 133; NJW 1968, 1773; BVerfG, 24.2.1971, BVerfGE 30, 173; NJW 1971, 1645. 85   BGH, 8.5.1956, BGHZ 20, 345. 86   BGH, 1.12.1999, BGHZ 143, 214; NJW 2000, 2195; JZ 2000, 1056 with note Schack; but see also BGH, 1.12.1999, NJW 2000, 2301; GRUR 2000, 715 with note Wagner (Blauer Engel); confirmed by BVerfG, 22.8.2006, NJW 2006, 3409. 83

84

334

r i ght s of p e rs o n al i t y

governed by data protection laws at both the European level and the state level within and outside of the EU. (5) Personal honour, a classical personality right of the law of delict with a long tradition, has stepped into the background when compared with these four other areas of protection of the persona. In Germany, since the enactment of the BGB, honour is principally protected by penal law. Civil law played more the role of a residual basis for the protection of “honour” by granting restitution in kind and interdictal/injunctive relief (StGB, §§185 et seq in connection with BGB, §§823(2), 249(1), 1004). 5.2.3  Italy87 (a)  Three historical periods The development of civil law protection of personality interests in Italy is only understandable if one distinguishes three historical periods: (b) the period of the first Civil Code 1865–1942; (c) the period dating from the enactment of the second Civil Code 1942 till 1970; and (d) the period from 1970 onwards. (b)  Personality rights in Italy from the first Civil Code (1865) to 1942 After the unification of Italy under King Victor Emmanuel II (1861) the first Italian civil code was enacted in 1865. This civil code of 1865 was a near copy of the Code Napoléon. Like the French civil code, it did not acknowledge nominate personality interests (for example, name, image, likeness, human body). But under the general clause of C civ, Art 1151 (a translation of Arts 1382 and 1383 of the French C civ) it was possible to recover for any “damage” caused by fault. Italian courts, following the French path, adopted a liberal interpretation of this rule, admitting – at least until the end of the 19th century – the redress of non-patrimonial loss. Many decisions can be found, which granted compensation for dommage moral/ danno non-patrimonale in cases of bodily injury and defamation. Also, at the beginning, most of the Italian legal scholars were influenced by French doctrine. A concept of personality rights however remained undeveloped. Sometimes, the idea of “human rights” was referred to. The leading philosophy was devoted to

 This chapter draws on the Introduction to the Italian report by Giorgio Resta, Bari (on file with the author) for the Trento project Protection of Personality Rights in Europe 2008 (forthcoming; cf n 1). In Italian language, see G Resta, “I diritti della personalità” in G Alpa and G Resta, Le persone fisiche e I diritti della personalità (2006) pp 361 et seq. Thanks also to Aurelia C Ciacchi for comments.

87

protection of personality interests in europe 335 property rights. The underlying idea – deduced from liberalism – was that, by protecting private property and freedom of contract, the free development of the personality would be a self-acting result. These were the same values which strongly influenced the drafters of the German BGB. Notions of private property as “the individual liberty applied to things” come close to Savigny’s concept of a subjective property right as “Willensherrschaft”. Things changed towards the end of 19th century. Italian civil lawyers felt strongly attracted to the German Pandectist school and the then completed new German Civil Code (BGB of 1896/1900). Paradoxically enough, as a consequence of this general Germanic orientation, the idea of “personality rights” also entered into the Italian legal discourse.88 Although ignored, even suppressed by the Pandectists and the BGB, the works of scholars such as Gareis, Gierke, Kohler and others were received and discussed. Property rights were no longer considered the only conceptual scheme apt to describe the legal relationship of a person to his or her body and to thematise the immaterial personal aspects. Personality rights appeared to be an alternative – and for many scholars a more persuasive – option. But unlike their German role models, the Italian scholars kept the concepts of intellectual property rights (patents, copyrights, trademarks) clearly separated from personality rights. The idea of personality rights was in this way finally adopted by the courts. After the turn of the 20th century there are quite a lot judgments relating to name, likeness and author’s moral right. At the same time, another German transplant from the BGB led to an inconvenient result in Italian law. The rule was accepted, that non-pecuniary damages could be awarded only in exceptional cases. Another paradox came to the fore: The general clause of C civit, Art  1151 was originally constructed following the French path to allow also compensation for non-patrimonial loss. After 1900, according to the German model (BGB, §§253, ex 847), it was applied with the opposite result! (c)  The Italian law from the second Civil Code (1942) to 1970 In 1942, in Mussolini’s Italy, a new Civil Code came into force. However, the First Book of this new civil code had already been enacted, in 1938. Six articles were devoted to personality rights (Arts 5–10). First among the European codes, this Italian civil code explicitly regulated the topic of dispositions of the human body and  Due to the translation of and the extensive comments on Windscheid’s Pandektenrecht by C Fadda and P E Bensa, Traduzione e note a Bernhard Windscheid, Diritto delle pandette, I, 1 (1902) . The first edition seems to go back to 1877. 88

336

r i ght s of p e rs o n al i t y

of body parts (Art 5). The right to one’s name (Arts 6–7), pseudonym (Arts 8–9) and likeness (Art 10) were also guaranteed. Such a comprehensive regulation of personality rights under a fascist regime is a surprise. But the rules of the civil code were technically drafted by experts following the liberal tradition and the provisions on personality rights just reproduced the given case law. Nonetheless, some influence of the fascist ideology can be detected in Art 5, relating to the human body. Bodily integrity was considered in that provision as more a person’s duty – aimed at fostering the State’s interest in having healthy workers, fathers and soldiers – than a personality right. In this second period (1942–70) all the weaknesses and incoherences of the Italian Civil Code’s legal regime became clear. Two points happened to be critical: (i) the absence of a general clause on protection of personality interests; and (ii) the limitation set out by Art 2059 with regard to non-pecuniary damages. The first issue (i) played an important role for the question of protecting privacy. Privacy interests were neither expressly guaranteed by the code nor were they subsumed under Art 2043. Although a general clause, Art 2043 had been read as being restricted to nominate absolute rights since the Germanic turn of Italian private law. When the first privacy cases were brought to the courts, the judges rejected the claims for interdict/injunction and/or general damages on the assumption that the code was silent on that point. At that time an act was considered “ingiusto”/unlawful (in the meaning of Art 2043) only if it violated absolute subjective rights. And privacy did not count as an “absolute right”. Very important in this respect is a decision of 1956 of the Italian Supreme Court (Corte di Cassazione), concerning a film on the great tenor Caruso.89 Second, even if a personality interest was protected by the code or by statutes (as it was the case for likeness and moral rights), only special damages for patrimonial losses could be claimed. Non-pecuniary damages (solatium) were only to be awarded if the unlawful act happened to violate criminal law; ie in practice, only if it amounted to a libel, slander, assault or battery. Indeed, C civ it, Art  2059 – like its German model BGB, §253 – referred quite generally to “cases provided by the law”. According to unanimous opinion this was understood as limiting these cases to criminal law.   Cass civ 22 December 1956 no 4487, Foro italiano 1957, I, 4. In this case, the trial court (Tribunale di Roma) and the appellate court (Corte d’Appello di Roma) had allowed claims for damages by Caruso’s heirs on the ground of violation of his right to personality and privacy. The Supreme Court (Corte di Cassazione), however, reversed these judgments by denying the existence of an absolute right to privacy under Italian law. 89

protection of personality interests in europe 337 As a consequence, even if a “subjective right” was given, the remedies for its violation were unsatisfactory. (d)  Personality rights in Italy from 1970 to the present This state of the law began to change about the end of the 1960s. What happened in Germany a decade and a half earlier after the coming into force of the Grundgesetz of 1949, now took place in Italy: private lawyers rediscovered the Italian Constitution of 1948. Until that moment, like in France until 1971, fundamental rights guaranteed by the Constitution were considered to be simple directives aimed at guiding the action of the legislature, but not rules directly binding all public bodies and private actors.90 After a sophisticated theoretical and methodological discussion that involved the most prominent civil law scholars,91 the public law/private law divide was challenged and the traditional insulation of private law from fundamental rights was gradually overcome. Civil judges started to look at the Constitution as a legitimate basis for expanding – in a sensitive way – personality rights into private law litigation. The Italian doctrine of Drittwirkung was born. As a consequence, in 1975 the right of privacy was for the first time expressly recognised by the Corte di Cassatione. The Court reasoned from Arts 2, 3 and 41 of the Constitution, guaranteeing the free development of personality and protection of human dignity.92 After some years, trial courts kept on applying the Civil Code’s provisions on name and likeness in order to contrast the delict of false light in the public eyes. Consequently, in 1985, the Corte di Cassazione openly recognised a new personality right, basing it upon Art 2 of the Constitution: the right to one’s own personal identity. This right protects the individual against untrue, but not defamatory

 At that time, a direct effect of constitutional rights in private law was only recognised in the field of labour law, with particular regard to the right to a fair salary under Art 36 Cost: see Cass 10 August 1953 no 2696, Giustizia civile 1953, 2687. VII, 1960, pp 243 et seq; S Pugliatti, “Diritto pubblico e diritto privato”, Enc dir, XII, 1964, pp 696 et seq; M Giorgianni, “Il diritto privato ed i suoi attuali confini” (1961) Rivista trimestrale di diritto e procedura civile 391. 91  Among the others R Nicolò, “Codice civile”, Enciclopedia del diritto, vol 8 (1960), pp 243 et seq; S Pugliatti, “Diritto pubblico e diritto privato”, Enc dir vol 12 (1964), pp. 696 et seq; M Giorgianni, “Il diritto privato ed i suoi attuali confini” (1961) Rivista trimestrale di diritto e procedura civile 391. 92   Cass 27 May 1975 no 2129, Foro italiano 1976 I 2895 with note Monteleone. In this case, the princess Soraya Esfandiari was awarded damages for violation of her rights to image and privacy, since intimate photographs of her and her friend in the garden of her house, taken with the help of a strong photo lens, were published in a tabloid. 90

338

r i ght s of p e rs o n al i t y

statements.93 The scope of protection of one’s name and likeness was also broadened by the courts in order to comply with the difficult issues of commercial exploitation of personal aspects, especially of celebrities.94 However, the problem of non-pecuniary damages remained unresolved until the late 1990s. The first move was made by the Italian Constitutional Court in 1986, when the possibility to recover for bodily injuries was affirmed even in the absence of crimes (socalled “danno biologico”95). This solution was based upon a direct application to private law of Art 32 of the Constitution, guaranteeing a right to health.96 At this point, a critical divide between the treatment of psychophysical and non-psychophysical aspects of the persona emerged: for bodily injuries, pecuniary and non-pecuniary damages now were always available; with regard to other infringements of the persona, non-pecuniary damages were awarded only in exceptional cases, provided for by criminal law. A solution to this problem was initially sought by statutory law ie via the legislation on data protection.97 There, non-pecuniary damages are provided for any illegal processing of personal data – Italian legislation applies also to non-automatic processes and the notion of personal data is very broad –, irrespective of criminal sanctions. Finally, in 2003, the Corte di Cassazione overturned its long-standing interpretation of C civ, Art 2059, and held that non-pecuniary damages were due for any violation of “personal interests guaranteed by the Constitution”.98 In

  Cass 22 June 1985 no 3769, Foro italiano 1985 I 2211 with note Pardolesi. In this case, the Court awarded damages to a famous physician who had been quoted without his permission in a tobacco advertisement. 94   Cass 10 November 1979 no 5790, Giustizia civile 1980 I 1372 with note Crugnola (a doll with the face of the football player Sandro Mazzola was sold on the market); Pret Roma, ord 18 April 1984, Foro italiano 1984 I 2030 with note Pardolesi (the characteristic hat and glasses of the singer Lucio Dalla were reproduced in an advertisement); Cass 16 April 1991 no 4031, Nuova giurisprudenza civile commentata 1992 I 44 with note Ricolfi (a photograph of and a statement by the designer Giorgio Armani were used in an advertisement without his consent). – As a comparative overview see H Beverley-Smith, A Ohly and A Lucas-Schloetter, Privacy, Property and Personality Civil Law Perspectives on Commercial Appropriation (2005). 95  To this broad discussion cf among others F Busnelli, Il danno biologico (2001); G Alpa, Il danno biologico (2003). 96   Corte Cost 14 July 1986 no 184, Foro italiano 1986 I 2053 with notes Ponzanelli and Monateri. 97  Data Protection Act of 31-12-1996, n 675. 98  The new doctrine was established in a series of judgments of 2003: Cass 12 May 2003 no 7281; Cass 12 May 2003 no 7283; Cass 31 May 2003 no 8828; Cass 31 May 2003 no 8827, all published in Foro italiano 2003 I 2272 with note Navarretta. 93

protection of personality interests in europe 339 that way, the method of constitutional re-construction of private law achieved one of its most important results. At present, the personality rights of corporations (in particular as regards non-pecuniary damages) and the recognition of an alienable and descendible right of publicity are among other highly controversial issues in the field of personality rights in Italian law. 5.3  A EUROPEAN PERSPECTIVE – ECHR, ART 8(1) 5.3.1  Preliminary The European perspective of protection of personality interests by the law of delict has many faces. One is represented by political (EC Commission; European Parliament) and academic attempts to unify Europe’s private laws by restatements and the like. The Study Group on a European Civil Code and the European Group on Tort Law have recently presented drafts of provisions on tort/delict.99 Each of the two proposals contains sections in which unenumerated personality interests are mentioned as the subject of protection.100 5.3.2  Approximation of laws of delict within Europe under ECHR Another development is the approximation of the national laws of delict of the EU Member States via constitutionalisation.101 In this context the most relevant constitutional document is the “European Convention for the Protection of Human Rights and Fundamental Freedoms” (ECHR).102 It was passed in 1950 by the Committee of

99   For the “Study Group”, see C von Bar, E Clive and H Schulte-Nölke (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR) (2008), Book VI: “Non-contractual liability arising out of damage caused to another”; see also J Blackie in M Bussani (ed), European Tort Law, Eastern and Western Perspectives (2007) 55 and G Brüggemeier, in A Somma (ed), The Politics of the Draft Common Frame of Reference (2009) (forthcoming). The “European Group” has published its proposal: European Group on Tort Law (ed), Principles of European Tort Law (PETL). Text and Commentary (2005). 100  DCFR, Art VI-2:203(1): “Loss caused to a natural person as a result of infringement of his or her rights to respect for his or her personal dignity, such as the rights to liberty and privacy, and the injury as such are legally relevant damage.” This is extended in para 2 to harm to reputation if national law so provides. – PETL, Art 2:102 Protected Interests (2) “Life, bodily or mental integrity, human dignity and liberty enjoy the most extensive protection.” Cf also Art 10:301(1) Non-Pecuniary Damages. 101  See T Barkhuysen and S Lindenbergh (eds), Constitutionalisation of Private Law (2006). 102   For literature on the ECHR, see n 5.

340

r i ght s of p e rs o n al i t y

Ministers of the Council of Europe.103 Signed in Rome in 1950, it came into force in 1953. The ECHR is a veritable European Bill of Rights. Its legal status today (2008) is twofold: (1) By its origin the ECHR is international law. As a multilateral international Treaty after ratification (with or without an additional transformation act by the Contracting State) it becomes an integral part of the legal orders of the (now) 47 Contracting States of the Council of Europe. In the domestic hierarchy of norms in these States the ECHR can take a different standing: sometimes it is on the level of domestic constitutional law (for example, Austria and Switzerland); sometimes it ranks between the national constitution and the statutory law (for example, France, Spain and Portugal); finally it has the standing as regular statutory law (for example, Germany, Finland, Italy, Sweden and the UK).104 The Contracting States and their public bodies (including courts) are obliged to comply with the judgments of the ECtHR (Strasbourg) in processes in which they were involved (ECHR, Art 46(1)). The enforcement of the judgments by the Contracting States is monitored by the Committee of Ministers (ECHR, Art 46(2)). (2) In the meantime the ECHR has been received by EU/EC law in its substance. This took place through the jurisprudence of the ECJ (Luxembourg). The TEC did not contain any fundamental rights; it provided only for the “four fundamental freedoms” (free movement of goods and services, capital and workers; and freedom of establishment). Their orientation is the completion of the single market. In all events, the ECJ started to apply fundamental rights as limits to state action from 1969 onwards under the head of “general principles of law”.105 These “general principles” – and thereby fundamental rights – have been understood as part of “law” 103  As to its legal bases, organisation and duties: see G Winkler, The Council of Europe (2006). 104   Cf C Grabenwarter, Europäische Menschenrechtskonvention (2nd edn, 2005), p 15. 105   Cf ECJ, 12.11.1969, case 29/69, Stauder [1969] ECR 419; [1970] CMLR 112; 14.5.1974, case 4/73, Nold [1974] ECR 491; [1974] 2 CMLR 338; 13.12.1979, case 44/79, Hauer [1979] ECR 3727; see for this ECJ case law J H H Weiler and K Lockart, “‘Taking rights seriously’: The European Court and its Fundamental Rights Jurisprudence” (1995) 32 CML Rev 51/579; H J Blanke, “Protection of Fundamental Rights afforded by the European Court of Justice” in H J Blanke and S Mangiameli (eds), Governing Europe under a Constitution (2006), pp 265 et seq.

protection of personality interests in europe 341 in the sense of TEC, Art 220.106 This advanced state of the ECJ case law has then occasionally been taken up by the EC- and EU-legislator (Single European Act; Treaty on the European Union). TEU, Art 6(2), for example, explicitly obliged the EU (ie EU/EC institutions) to respect the fundamental rights enshrined in the ECHR (and developed by the case law of the ECtHR) and the common constitutional traditions of the Member States. The legal consequences are free from doubt:



(i) The fundamental rights of the ECHR have been transformed into Community law by the jurisprudence of the ECJ. “Fundamental rights form an integral part of the general principles of law the observance of which the ECJ ensures. The ECHR has special significance in that respect.”107 In this quality as an integral part of EU/EC law the fundamental rights of the ECHR are superior to all Member States law, including national Constitutions.108 (ii) The scope of protection of these rights must be therefore even throughout the EU! The concept of a corridor of differentiated national solutions is incompatible with these legal conditions. As far as the (now) 27 EU Member States are concerned, it is no longer necessary for the application of human rights of the Convention to refer to the ECHR and initiate a procedure in Strasbourg. In cases of violation the private party can proceed against either the Member State or the EU/EC. As a last resort the way to the ECtHR in Strasbourg against infringements by the Member States is available. (Against violations of human rights by EU/EC institutions is for the time being only a claim to the ECJ possible. EU citizens can

106   Constant jurisprudence of the ECJ since Internationale Handelsgesellschaft (Case 11/70), [1970] ECR 1125. Cf, in general, G Winkler, Die Grundrechte der Europäischen Union (2006); A Williams, EU Human Rights Policies: A Study in Irony (2004); C Tomuschat, Human Rights: Between Individualism and Realism (2004). 107  ECJ, 27.6.2006, (Case C–540/03) [2006] ECR I–5769. 108  This clash of constitutions raised difficult questions in Germany. Cf the infamous “Maastricht” judgment of the Federal Constitutional Court: BVerfG, 12.10.1993, BVerfGE 89, 155; NJW 1993, 3047; comments by Herdegen (1994) 31 CML Rev 235; J H H Weiler, “The State ‘über alles’” in Festschrift Everling vol 2 (1995), pp 1651 et seq. But see, as a recent stock-taking in German: S Oeter and F Merli, “Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschenrechte”, in 66 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer: Bundesstaat und Europäische Union zwischen Konflikt und Kooperation (2007).

342

r i ght s of p e rs o n al i t y apply to the ECtHR, if the EU signs the Convention, which is envisaged by the Draft European Constitutional Treaty.) The ECtHR is de facto fulfilling a double function: It is primarily operating as the Court of the Council of Europe within its jurisdiction on the ECHR; and at the same time – indirectly – it is working on behalf of the European Union when judging on EU fundamental rights.109

5.3.3  ECHR, Art 8(1) and the case of Caroline von Hannover v Germany (2004) The basic provision in the ECHR dealing prominently with personality interests is Art 8(1). It reads: “Everyone has the right to respect for his private and family life, his home, and his correspondence.”110 This fundamental right is in notorious conflict with freedom of expression and press, enshrined in ECHR, Art 10(1). These two fundamental guarantees are in principle of equal value. The balance between them has been struck differently in the Member States of the European Union. In particular, the solutions in French and German law are directly in opposition to each other.111 This FrancoGerman antagonism in privacy protection law has been brought onto the European level by the spectacular case C von Hannover v Germany.112 Caroline Grimaldi, alias Caroline of Monaco, alias Caroline von Hannover, is the oldest daughter of (the late) Prince Rainier III of Monaco and his wife (the late) Ms Grace Kelly. She filed a series of civil law suits against publishers in Germany. German tabloids disseminated paparazzi photographs of the Princess, taken without her consent at different places and at different times. The first bulk of photographs were made during her vacation in southern France. They displayed her in various situations: shopping in the market, on horseback, playing with her children, visiting restaurants with her then partner (a French actor) and so on. The German courts, applying §§22 and 23 of the Kunsturhebergesetz (KUG) 1907, adhered to the long-standing distinction between private and public figures. Private

109   Cf G Ress, “The Legal Relationship Between the ECtHR and the ECJ According to the ECHR” in H J Blanke and S Mangiameli (eds), Governing Europe under a Constitution (2006), pp 279 et seq. 110  The wording is identical to Art II-7(1) of the Treaty on a European Constitution (Draft). 111   Cf above Sections 5.2.1 and5.2.2. As a broader European comparison, see H Koziol and A Warzilek (eds), Persönlichkeitsschutz gegenüber Massenmedien – The Protection of Personality Rights against Invasions by Mass Media (2005). 112   ECtHR, 26.4.2004, [2004] 40 EHRR 1.

protection of personality interests in europe 343

individuals are protected. Pictures can only be published with their express consent. Public figures are per se subjects of contemporary society (KUG, §23(1)(i)). Their privacy is restricted to their residential area. Outside their home photos can be taken and published without their consent. This pre-constitutional law did not change after the enactment of the (West) German Constitution 1949. In fact, the now guaranteed “freedom of the press” (GG, Art 5(1)) supported this legal position. Caroline of Monaco was regarded as a “person of contemporary history” par excellence.113 So it came by no surprise that the trial courts denied her claim. Before the Bundesgerichtshof (BGH) the judges for the first time made a move to expand the scope of protection of public figures.114 They accepted that celebrities’ freedom to decide whether and when pictures of them could be taken, does not end on leaving the home. There could be “secluded areas” outside where also public figures can have a legitimate expectation of privacy. This requires: The place must be secluded from the general public and this demarcation from the public must be objectively recognisable to third parties. Additionally, the taking of photographs must be secretive, quasi-“through the keyhole”, or, if the taking of  Within the meaning of KUG, §23(1), no 1: see n 61.   BGH, 19.12.1995, BGHZ 131, 332; NJW 1996, 1128; JZ 1997, 39 with note Forkel. 113 114

344

r i ght s of p e rs o n al i t y

the photos happens openly, it must have been as if the individual was taken by surprise.115 The judges saw these requirements as being fulfilled with respect to one photograph taken from great distance with a long-range camera, displaying the plaintiff with her partner at night in a dimly lit garden restaurant, as her partner kisses her hand.116 The BGH did not object, however, to the taking and publishing of all the other photographs from her vacation in France, the photographs with her later husband, Prince E A von Hannover, and those from the Monte Carlo Beach Club. The Princess filed a constitutional complaint to the Bundesverfassungsgericht (BVerfG) alleging an infringement of her personality right by the legalised publication of the other photos. On the one hand, the Bundesverfassungsgericht confirmed the restrictive exception made by the BGH.117 It even expanded the protection in one aspect – as far as the photos with her children were concerned.118 The familial contact between parents and children is under special protection by Art 6 of the Constitution. The constant media presence embodies a substantial danger for the development of the children. On the other hand, it restated the established line of reasoning in Germany: the basic distinction private/public figures (KUG, §23(1)(i)); very narrow exceptions from the rule that public figures can be photographed without permission; freedom of press also applies to tabloids, no restriction on serious political information; difficulties to delineate private and public areas in cases of celebrities. The Princess took an individual application to the European Court of Human Rights in Strasbourg alleging a violation of ECHR, Art 8(1) (“private life”) by these judgments of the Federal German Courts. The Chamber of the Strasbourg Court unanimously(!) decided that the restricted protection of privacy of public figures by the German law is an infringement of ECHR, Art 8(1).119 The judges in Strasbourg chose the opposite starting point to the German courts. It is not an exception from the non-protection rule that has to be proven – but an exception from the principle of privacy protection! The ECtHR took the basic principle of KUG, §22 seriously and did not follow the line of reasoning in Germany extending “situations” of contemporary society to “persons” of contemporary society. Every   BGHZ 131, 332 at 339.   Taken from the authorised reproduction in G Brüggemeier, Haftungsrecht (2006), p 304. 117   BVerfG, 15.12.1999, BVerfGE 101, 361; NJW 2000, 1021. 118   BVerfGE 101, 361 at 385/386. 119  ECtHR, 24.6.2004, [2004] 40 EHRR 1. The German Government did not request that the case be referred to the Grand Chamber (ECHR, Art 43(1)). The parties finally agreed that Germany should pay €115,000 non-pecuniary damages to the applicant. 115 116

protection of personality interests in europe 345 photograph and other picture displaying an individual person needs the consent of this person in order for it to be legally published. This principle also applies in cases of celebrities. Every human being has his/her right to privacy! Concerning public figures there are two important exemptions:



(i) when public figures act as persons of contemporary society, ie when they perform an “official function”. This is one main point which has been made by the ECtHR. By doing this it stated again that the position of French law (C civ, Art 9) is in compliance with its ECHR, Art 8(1) jurisprudence. The Court also reasoned that the central legal categories used by the German courts in this context were indeterminate (“absolute Person der Zeitgeschichte”; “secluded area”/“abgeschlossener Raum”). (ii) Second, the ECtHR stressed that the watchdog function of the press is indispensable for the political process in democratic societies in Europe. This function was not at stake in this case. The balance here had to be struck between the freedom of a tabloid publisher who exploits the persona of the princess to satisfy the voyeuristic demands of its customers and the legitimate privacy interests of the individual. In this conflict the balance between the two equal principles of protection of private life and press freedom has to be struck in favour of the privacy interest of the individual, however famous this person may be.

5.3.4  The significance of the von Hannover case It needed this judgment of the ECtHR to adapt the 100-yearold provisions of the Kunsturhebergesetz and the accompanying jurisprudence to the modern civil and constitutional law protection of personality rights in Europe. The highly complicated interwoveness of European fundamental rights, domestic fundamental rights, special legislation and general private law has been clarified by this judgment of the ECtHR but only for one typical scenario. This is the normative benchmark for similar fact patterns. EU private law systems have to comply with it. Some Member States will introduce new legislation, as Ireland has done;120 others will change the jurisprudence of their judiciary (be it that of Constitutional

 Privacy Bill 2006 (Draft); see P O’Callaghan, “The Draft Privacy Bill 2006: Comparative Perspectives on a Super Tort” (2006) 24 Irish Law Times 251. 120

346

r i ght s of p e rs o n al i t y

Courts). In Germany there are signs that both Federal courts, the Bundesgerichtshof and the Bundesverfassungsgericht, in their recent judgments have been moving tentatively towards the position of the ECtHR.121 5.4  CONCLUSION: SUBJECTIVE RIGHTS, “PERSONALITY RIGHTS” AND “PUBLICITY RIGHTS” To summarise, one can say that in the three private law regimes under scrutiny there are still these two concepts of the persona and two corresponding types of entitlements: • The formal personhood of the market citizen with his freedom to contract and his transferable subjective patrimonial rights, (corporeal and intellectual) property rights and obligations. Substance and justice are provided by the market processes monitored by competition law and constitutional review (constitutionalisation of contract law122). • The individual human person with his or her dignity interests, formulated as non-patrimonial, inalienable and non-descendible “autonomy rights”: protection of dignity, privacy and honour in their manifold aspects, including self-determination in relation to one’s body and body parts.123 It is not free from doubt whether a third category, the hybrid right of publicity of the celebrity, ie an alienable and descendible personality property right (analogies to copyright including a moral right), is thoroughly recognised.124 In many of the Continental civil laws, for example Germany and Italy, the protection of personality interests is initiated and backed by new Constitutions after 1945. It is performed by the case law of civil and constitutional courts. France developed its personality rights protection continuously on a statutory basis and opened its private law only recently to direct constitutional law influence. After 121  See again a Prince and Princess of Hannover case: BGH, 6.3.2007, BGHZ 171, 275 and BVerfG, 26.2.2008, NJW 2008, 1793. 122  See C Mak, Fundamental Rights in European Contract Law (2008) and A C Ciacchi, “The Constitutionalization of European Contract Law: Judicial Convergence and Social Justice” (2006) 2 ERCL 167, with further references. 123  This could not be taken up here. Cf inter alia N R Whitty, “Rights of Personality, Property Rights and the Human Body in Scots Law” (2005) 9 Edin LR 194. 124   Cf J T McCarthy, Rights of Publicity and Privacy (2nd edn, 2001) and, as a European overview, Beverley-Smith, et al, Privacy, Property and Personality. For a critical comment, see G Brüggemeier, in Festschrift G Teubner (2009) (forthcoming)

protection of personality interests in europe 347 the transformation of the human rights of the ECHR into European Union law by the jurisprudence of the ECJ “European fundamental rights” function as a normative benchmark for the protection of personality interests in all EU Member States. To concretise and harmonise the scope of protection in different scenarios is the task of discursive (constitutional and private law), comparative scholarship and of law making by the domestic and European judiciaries (“convergence by judicial governance”). The ECtHR’s Caroline von Hannover judgment125 and the Europe-wide legal discourse it initiated is an excellent example of this process in action.

125

 See n 118.

348

r i ght s of p e rs o n al i t y



p e rso na l i t y r i gh t s i n s o u t h af ri ca

349

chapter 6 personality rights in south africa: re-affirming dignity Jonathan Burchell*

6.1 ROMAN HERITAGE 6.2 THE MODERN SOUTH AFRICAN ACTIO INIURIARUM 6.3 THE PRE-CONSTITUTIONAL BACKDROP 6.4 THE BOUNDS OF DIGNITY 6.4.1 Preliminary 6.4.2 Dignity defined 6.4.3 Judicial precedent on the actio iniuriarum for impairment of dignity in pre- and post-Constitution South Africa 6.5 FUTURE PATHS: THE ROLE OF THE SOUTH AFRICAN ACTION FOR impairment of DIGNITY 6.5.1 Preliminary 6.5.2 The right to housing 6.5.3 The right to social security for permanent residents 6.5.4 The right to family life 6.5.5 The right to administrative justice and due process 6.5.6 The treatment of vulnerable persons such as refugees seeking asylum and deported persons 6.6 CONCLUSION: LONG LIVE THE ACTIO INIURIARUM

* I wish to acknowledge the invaluable help and insight of Ms Amanda Torr, a Teaching-Research Assistant in the Law Faculty at UCT, who meticulously garnered, collated and checked authorities in the preparation of this chapter. I also greatly appreciate the insightful comments of my colleagues, Professor Anton Fagan and Professor Danie Visser, on aspects of this chapter and the invigorating discussions on the actio iniuriarum I have enjoyed with Professor Niall Whitty in both Scotland and South Africa.

349

350

r i ght s of p e rs o n al i t y

6.1  ROMAN HERITAGE One of the most impressive legacies of the Roman legal mind has been the acknowledgement of the centrality of human dignity and the creation of a viable civil remedy for the protection of this fundamental right of personality. Justinian’s Digest provided that if anyone hinders me from fishing in the sea, bathing in a public area or sitting in a public stall at the theatre, I can institute an action for injury against him.1 Although certain South African writers have interpreted these passages of Justinian restrictively by requiring some physical interference with rights,2 this conclusion is unjustified and would serve to blur the line between the protection of physical integrity by means of a remedy for assault (which includes assault by threats) and the protection of dignity under the actio iniuriarum (where no physical violence or threat of violence need be present). It is clear that the activities protected in the Digest passage (which incidentally also finds expression in Voet’s3 writing in Roman–Dutch law) reflect the right to freedom of movement4 and freedom of movement is an integral part of individual autonomy, an essential facet of human dignity.5 Ideas of autonomy and freedom have a philosophical range wider than notions of physical existence.

D.47,10,13,7. Considerably earlier a Republican praetor P Mucius (praetor, 136 BC) had extended an action to a poet insulted from the stage: A Watson, The Law of Obligations in the later Roman Republic (1965), p 251. 2  W A Joubert, Grondslae van die Persoonlikheidsreg (1953), p 142 and J Neethling et al, Neethling’s Law of Personality (2nd edn, 2005), pp 11–12. Perhaps the effect of the only reported case on this passage (Sievers v Bonthuys 1911 EDL 525 at 531) has been too narrowly interpreted by Neethling loc cit who argues that the case indicates that the availability of the actio iniuriarum depends on whether physical interference is present. See J Burchell, “Beyond the Glass Bead Game: Human Dignity in the Law of Delict” (1988) 4 SAJHR 1 at 3. Although Neethling does appear to acknowledge a certain overlap between human rights and rights to personality (“Personality rights: a comparative overview” (2005) 38 CILSA 210 at 241–243) he would seem to shy away from the recognition of dignity as ‘ “embracing the whole human personality”, a general right to personality (as in Germany) and the “right to dignity as a human right”. Neethling would seem to prefer a concept of “dignity in the narrow sense of a substantive personality interest” (op cit 231). It is suggested by the author of this chapter that dignity does embrace the whole human personality, that there is merit in the German concept of a general right to personality (derived from the actio iniuriarum) and that the concept of dignity as a human right should be embraced unreservedly. 3   Commentarius ad Pandectas ad 47.10.7. 4  I would even like to argue that the freedom to fish, followed closely by the freedom to swim in the sea (which we South Africans obviously owe to our country’s climate and natural coastal beauty) have spiritual value for the soul far in excess of the conventional approach to the right to freedom of movement. 5  This is reinforced by the action for wrongful arrest, which is founded on deprivation of freedom of movement: see below n 59. 1



p e rso na l i t y r i gh t s i n s o u t h af ri ca

351

Certain Roman texts also provide authority for an actionable invasion of privacy – although these passages relate primarily to invasions of the sanctity of the home.6 The narrow provisions of the Twelve Tables, dealing essentially with personal assaults were widened by a series of edicts and finally the edictum generale to become a broad concept of iniuria, which Buckland describes as “a substantive wrong consisting in wanton interference with another’s rights, of which the edictal cases were only instances, any act shewing contempt of personality, or having a tendency to lower the public estimation of the victim . . .”.7

Zimmermann points out that, although “dogmatically” the extension of the concept of iniuria was linked to the classical Roman law edictum generale, in fact, instances of entering another’s house without permission and preventing a person from using his property, mark “an advance (a rather cautious one) beyond the confines of the edict”.8 6.2  THE MODERN SOUTH AFRICAN ACTIO INIURIARUM The actio iniuriarum – the general Roman remedy for impairments of personality rights to physical integrity, reputation, and dignity – forms the basis of the modern South African protection of personality rights. The common-law courts in South Africa have fashioned the actions for protecting reputation (defamation) and privacy into viable and vibrant modern remedies, and the Constitutional Court has also exerted some influence on the direction of the law in these fields.9 The 6  See R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) and the authority referred to by M D Blecher, “Privacy in the Civil Law” (1975) Tijdschrift Voor Rechtsgeskiedenis 279. 7  W Buckland, A Manual of Roman Private Law (1925), p 325. 8  R Zimmermann (n 6), pp 1058–1059. See also Watson (n 1), p 250. 9  In the law of defamation, the Constitutional Court in Khumalo v Holomisa 2002 (5) SA 401 (CC) affirmed the constitutionality of the parameters of the liability of the media set out in National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA). The development of the common-law protection of privacy, from its beginnings in 1954 in O’Keeffe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (C) to its contemporary remedy for both public disclosures of private facts and unreasonable intrusion into the private sphere, is traced by the author in Personality Rights and Freedom of Expression – The Modern Actio Injuriarum (1998) at pp 371–429 and “The Law of Privacy in South Africa: A Transplantable Hybrid” (2009) 13.1 Electronic J of Comparative L (http://www.ejcl.org.131.art141–2pdf. The role of a policy-based “public benefit” limit on the publication or disclosure of truthful matter and the liberation of the common law from the restrictive notion of contumelia (insult) in the evolutionary process of the viable South African remedy for protection of privacy is also recounted in Personality Rights (pp 414–415 and

352

r i ght s of p e rs o n al i t y

common-law remedy for defamation has already achieved a fair level of judicial and academic clarity10 and the development of the law on invasion of privacy by the South African courts,11 although not as considerable as that pertaining to defamation, has nevertheless been significant, especially in the light of the impact of the Constitutional Court’s definition of privacy.12 Dignity, although originally protected under the action for iniuria in Germany, had to await its renaissance under a general law of personality initiated in that country by legislation, subsequently interpreted by the courts.13 The South African law did not have to await a constitutional enactment for the blossoming of the full protection of dignity – the original Roman actio iniuriarum and its judicial interpretation formed the foundation for a general right of personality long before the 1990s. Moreover, the South African courts have since 190814 accepted that serious iniuriae are also criminal and crimen injuria is now well

331). See further the Constitutional Court pronouncements on privacy referred to in n 12 below. 10  See generally J M Burchell, “The Protection of Personality Rights” in R Zimmermann and D Visser (eds), Southern Cross – Civil Law and Common Law in South Africa at pp 639–650; J Burchell and K McK Norrie, “Impairment of Reputation, Dignity and Privacy” in: R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective – Property and Obligations in Scotland and South Africa, pp 545–566; J M Burchell, The Law of Defamation in South Africa (1985); J Burchell, Personality Rights (n 9), Chapters 9–22; and J Neethling et al, Neethling’s Law of Personality Law (2nd edn, 2005), pp 129–187. 11  See the authorities cited in Burchell, Personality Rights (n 9) at pp 371–429 and post-1998 cases: Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T) (interdict to protect the acoustic privacy of prisoners); Huey Extreme Club v McDonald t/a Sport Helicopters 2005 (1) SA 485 (C) (restraining order preventing violation of privacy in terms of s 14 of Constitution). See also the criminal cases of crimen injuria referred to by J Burchell, Principles of Criminal Law (3rd edn, 2005), pp 750 and 753 and S v Hammer 1994 (2) SA SACR 496 (C) where a policeman who read a detainee’s letter written to his mother was found guilty of crimen injuria in the form of invasion of privacy. See further the passage from the judgment of Lord Rodger of Earlsferry in R v HM Advocate [2002] UKPC D 3 (quoted below n 22) which supports a damages claim in Scots law for reading or threatened reading of a prisoner’s correspondence. Although Lord Rodger does not classify the specific nature of the claim, the conduct envisaged would appear to be based on an invasion of privacy or infringement of dignity. 12  See especially, Bernstein v Bester NO 1996 (2) SA 751 (CC) at paras [68]–[74]; Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC); National Coalition for Gay and Lesbian Equality v The Minister of Justice 1999 (1) SA 6 (CC) at paras [32] and [117] and NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC), especially O’Regan J at paras 131, 133, 145, 151 and 154. 13  Zimmermann (n 6), pp 1092–1093. 14  Innes CJ in R v Umfaan 1908 TS 62 at 67.



p e rso na l i t y r i gh t s i n s o u t h af ri ca

353

established15 in South African law, covering the same ground as the actio iniuriarum in delict. In the hope of finding new territory – and possibly common ground between South Africa and Scotland – this chapter will shun the relatively well-trodden paths of defamation and privacy and concentrate on the potential growth of the modern actio iniuriarum in providing a comprehensive remedy for impairment of dignity (rather than merely specific remedies for invasions of privacy and reputation) in South Africa. Of course, the compartments of dignity, reputation, and privacy are porous and an impairment of dignity might also lead to a lowering of the plaintiff in the eyes of right-thinking persons, so constituting defamation, or also involve an invasion of privacy. But, impairments of dignity might (and often do) impinge on self-worth, autonomy and freedom without impairing the other two personality rights. Reputation may be won or lost, deserved or undeserved. Privacy may be waived. But dignity is inalienable and inherent in all human beings, forming the essence of what it is to be human (ubuntu). The availability of the civil law actio iniuriarum can serve to encourage Scotland to utilise its Roman ancestry and avoid the historical English tardiness in recognising ‘privacy’ as a distinct personality right.16 Scots law, using the Roman and South African 15  See J Burchell, Principles of Criminal Law (3rd edn, 2005), Chapter 55. The prosecution for crimen injuria is even supple, yet distinct, enough to cover the contemporary conduct of “grooming” vulnerable persons for future sexual activity (at p 750). (However, ss 18 and 24 of the recently enacted Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 now criminalise “grooming” in specific terms.) There is some authority supporting the view that for a successful criminal prosecution the iniuria must be “serious”: see Burchell at p 754 and S v Seweya 2004 (1) SACR 387 (T). Acknowledging the inherent vagueness of a test of “seriousness”, Streicher JA in S v Hoho 2009 (1) SACR 276 (SCA) at para 22, while accepting (but not deciding) that “seriousness” may be a requirement for crimen iniuria, nevertheless rejected thge argument that a degree of seriousness should be a requirement of criminal defamation. The SCA affirmed that the South African crime of defamation is neither repealed by “silent consent of the whole community” (at para 15) nor inconsistent with the Constitution (at para 36). 16  Things may be changing in England: See Lord Mustill in R v Broadcasting Standards Commission, ex p BBC [2001] QB 885 at 900 (para 48): “An infringement of privacy is an affront to the personality . . .”. Campbell v MGN Ltd [2004] 2 All ER 995 (HL); Douglas v Hello! Ltd [2005] 4 All ER 128 (CA); [2007] UKHL 21; Murray v Big Pictures (UK) Ltd [2008] EWCA 446 and Mosley v News Group Newspapers [2008] EWHC 1777 (QB). For comments on the effect of the above judgments, see J Burchell, “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” Electronic Journal of Comparative Law vol 13 (2009) (forthcoming) http://www.ejcl.org,and for comment on Mosley, see Elspeth Reid, “No Sex Please, We’re European: Mosley v News Group Newspapers Ltd” (2009) 13 Edin LR (forthcoming). See, however, Professor John Blackie, above Chapter 2 Section 2.2.5(b) who, in discussing informational privacy in Scots law between the 16th and mid-18th centuries, emphasises the centrality of the ius commune concept

354

r i ght s of p e rs o n al i t y

actio iniuriarum as inspiration, could immediately craft a viable remedy for invasions of privacy. I hope to demonstrate that South African and Scots lawyers, by giving free rein to the concept of dignity, can also achieve a synergy between the protection of dignity under the civil law and under a Bill of Rights and ultimately provide a viable mechanism for enforcing fundamental human rights, even including socio-economic rights. Human dignity is one of the founding values17 of any human rights ideology and is enshrined explicitly or implicitly in numerous constitutions and human rights instruments, not the least of which is the South African Constitution of 1996.18 However, respect for dignity is not just a value – it is a right. The ultimate protection of dignity lies not merely in sweeping, normative exhortations contained in constitutional documents and international conventions but essentially in the viability of common-law redress for violated dignity. This is where the modern actio iniuriarum in Southern Africa – still faithful to its basic Roman origins – has exerted a profound influence on the legal protection of the essence of humanity and even offers a potential, practical way of contributing to the progressive realisation of socio-economic rights. 6.3  THE PRE-CONSTITUTIONAL BACKDROP Sadly during the dark days of apartheid, South African lawyers and courts did not fully acknowledge the potential role of the unique Roman remedy for impaired dignity in salvaging the few vestiges of individual dignity that remained after a sovereign, yet illegitimate, government had contaminated the very heart of humanity with racially-based legislation.

of “entrusted secret”, especially in the context of medical and legal confidentiality (relying on an interpretation of Mackenzie’s Observations upon the Bankruptcy Act 1621). The fact that Scots law at that time protected professional secrets does not necessarily mean that Scots law was and is, in principle, confined to the protection of such secrets and does not extend to an iniuria for invasion of “privacy”. Blackie emphasises the link between “secrets” and iniuria. The idea of entrusted secrets (especially in the context of legal professional privilege) persisted in early 19thcentury Scotland (see Section 2.3.6(a)) and, as Blackie acknowledges, one line of analysis in Newton v Fleming (1846) 8 D 677; 18 Sc Jur 346 could provide support for an iniuria concept of privacy (as opposed to defamation) outside of the field of “secrets” (see Blackie above Chapter 2, Section 2.3.6(b)). On the Newton case, see also Chapter 3, Section 3.4(b) (N R Whitty). 17  To borrow a term used by the former Chief Justice of South Africa, Arthur Chaskalson, in the Third Bram Fischer Lecture: “Human Dignity as a Foundational Value of our Constitutional Order” (2000) 14 SAJHR 193. 18  Section 10.



p e rso na l i t y r i gh t s i n s o u t h af ri ca

355

Nevertheless, prior to and during, this bleak, oppressive era, a few reported cases provided a glimmer of hope illuminating the way forward: • An old Natal judgment, with a Gandhian ring to its facts, used the actio iniuriarum to vindicate the dignity of an Indian, farepaying passenger on a municipal tram who was ordered by the conductor to travel at the back of the vehicle.19 • The Appellate Division affirmed that awaiting trial prisoners “were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed” and any remedy for abridgement of these residual rights lay in the actio iniuriarum for impairment of dignity.20 • Even during the apartheid era the actio iniuriarum had assisted in furthering prisoners’ rights: subjection of a detainee to extreme and prolonged interrogation was held to constitute an actionable iniuria; depriving a prisoner (or detainee) of access to news and reading material 21 was regarded by a former Chief Justice, in a strong dissenting judgment, as “a very serious psychological and intellectual deprivation”22 and, arguably, a severe impairment of dignity. • Shortly before the dawn of a democratic era, the Appellate Division once again advanced the rights of prisoners using   Purshotam Dagee v Durban Corporation 1908 NLR 391.   Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92. 21  However, there are reasonable limits to the rights of prisoners: A sentenced prisoner enrolled for the final year of the LL.B., who had also enrolled for a diploma course in information technology which he averred required him to have access to the internet, was informed by the High Court that prison was a “place of incarceration, not an internet café” (Thukwane v Minister of Correctional Services 2003 (1) SA 51 (T) at para 39). Ironically, continuous loud radio broadcasts via loudspeakers over which the prisoners had no control has been held to constitute an invasion of their privacy: Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T). 22   Goldberg v Minister of Prisons 1979 (1) SA 14 (A) at 50A. The words of Lord Rodger of Earlsferry in R v HM Advocate [2002] UKPC D 3; 2003 SC (PC) 21 at 62 para 18 (a case involving the right to trial within a reasonable time) pave the way for the availability of a remedy for damages in Scots law for the violation of prisoners’ rights: 19

20

“Therefore the Scotland Act itself would enable a prisoner who had been illtreated in contravention of article 3 to sue the Scottish Ministers for damages. Similarly, the Scotland Act would provide the basis for the prisoner to obtain appropriate redress from the Scottish Ministers for the reading or threatened reading of his correspondence in violation of article 8.” Although Lord Rodger does not classify the precise nature of the claim for damages, such degrading treatment of a prisoner could well fall within the scope of a revived Scots actio iniuriarum involving an infringement of dignity.

356

r i ght s of p e rs o n al i t y the dignity analogy by reaching the conclusion that holding a political detainee in solitary confinement, with certain other deprivations, formed the basis of a successful actio iniuriarum.23 The Zimbabwean High Court also held that the inhuman and degrading treatment of an arrested or detained person constituted an impairment of dignity under the actio iniuriarum.24

Were these cases brought under the common law simply because there was at that time no possibility of a constitutional remedy or do they indicate the seeds of a future expanded actio iniuriarum that could include the protection of fundamental rights in the form of an action for damages for (or interdict to prevent) breaches of basic political, administrative, labour, socio-economic or other rights? It is my contention that the latter conclusion is both in keeping with the South African jurisprudence and the most desirable interpretation. Returning briefly to the prisoners’ rights theme might give a hint of the implications of this contention.25 In the light of the relatively modest development in the field of prisoners’ rights, achieved under the previous highly oppressive environment, it is perhaps predictable that, with the catalyst of a Bill of Rights protecting both dignity and the right to vote, the highest court in a constitutional democracy, reflecting on the horrors of the disenfranchisement of the majority of the South African population in the past, would reach the conclusion that universal franchise (including voting for prisoners) is a “badge of dignity and personhood”26 and that the Electoral Commission had not complied with its obligation to take reasonable steps to enable eligible prisoners to register and vote.

  Minister of Justice v Hofmeyr 1993 (3) SA 131 (A).   Chituku v Minister of Home Affairs [2004] JOL 12724 (ZH) and Blanchard v Minister of Justice, Legal and Parliamentary Affairs 1999 (4) SA 1108 (ZS). Cf the decision of the Namibian Supreme Court in Namujenpo v Commanding Officer, Windhoek Prison 2000 (6) BCLR 671 (NmS) that the practice of placing prisoners in leg irons is unconstitutional. 25  It is not without significance that development of the concept of dignity as a broad-based personality right in Germany also arose to a large extent out of cases involving the bounds of prisoners’ rights (see the Lebach case BVerfGE 35 203 (Decision of the German Federal Constitutional Court, 5 June 1973)). 26   August v Electoral Commission 1999 (3) SA 1 (CC) at para 17. The judgment does not preclude Parliament from disenfranchising certain categories of prisoners and Dirk van Zyl Smit suggests that a “limited restriction on the voting rights of prisoners convicted of crimes that target the integrity of the state or the democratic order, the category excluded in Germany, might possibly pass constitutional muster”: D Van Zyl Smit, “Civil disabilities of former prisoners in a democracy” 2003 AJ 221, also published in Jonathan Burchell and Adele Erasmus (eds), Criminal Justice in a New Society– Essays in Honour of Solly Leeman (2003) 221 at 229. 23 24



p e rso na l i t y r i gh t s i n s o u t h af ri ca

357

In a further case relating to the voting rights of prisoners, the Constitutional Court held that s 8(2)(f) of the Electoral Act27 (which excluded all prisoners serving a sentence of imprisonment without the option of a fine from voting) was unconstitutional and invalid.28 The prisoners’ voting rights cases would seem to be constitutional cases par excellence,29 involving the vindication of fundamental rights and deterrence of their future infringement in the context of a challenge to legislation. But, instances of ill-treatment of detainees and prisoners would equally appear to be ideal cases for a civil claim for damages for impairment of dignity (and, in some instances, physical harm) compensating the plaintiff for the psychological and physical harm caused.30 Although, in exceptional instances, damages might constitute “appropriate relief” under the Constitution, it is the civil law of delict that is designed to provide compensatory relief by means of damages under the actio iniuriarum. There is also sound reason for certain cases relating to the denial of the fundamental rights of detainees and prisoners to involve the actio iniuriarum. The plaintiff may wish to pursue recourse for damages under the actio iniuriarum or an application under the Constitution to set aside a legislative provision or executive action. The possibility also exists of pursuing both remedies. It would, therefore, be a serious problem for delict and constitutional lawyers alike if there was a dissonance between the meaning of “dignity” and what constitutes “reasonable” behaviour in the two branches of law. The symbiosis between delict and constitutional law is already emerging in South Africa: the narrow concept of privacy in s 14 of the Constitution (which essentially regulates unlawful searches and seizures and unlawful interceptions of communications) is being enriched by the common-law detail on what constitutes an intrusion into the private sphere and the result of the process of mutual

  73 of 1998.   Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (Nicro) 2005 (3) SA 280 (CC). 29  Similarly, Stansfield v Minister of Correctional Services 2004 (4) SA 43 (C) (where the High Court set aside a decision not to release a terminally-ill prisoner on parole on the basis that even the worst of convicted criminals should be entitled to die with dignity) would seem to be a case where the appropriate remedy for the applicant would be the setting aside of the refusal to release on parole. 30  A recent analogy lies in the decision of Hockey AJ in S v Volkman 2005 (2) SACR 402 (C) who held that the “fundamental and precious right” to dignity under the Constitution was infringed by treatment in a psychiatric hospital which constituted crimen injuria. See also the brief comment on President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) (below n 52). 27

28

358

r i ght s of p e rs o n al i t y

enrichment is a concept of impairment of “individual autonomy”;31 the quintessential delictual interest in “reputation” has been read into the concept of “dignity” in s 10 of the Constitution;32 the compensatory nature of delictual damages has played a part in the rejection of punitive damages for breaches of the Constitution;33 the quantification of delictual damages (both for patrimonial loss and personality damage) has been reassessed in a particular High Court case so as to reflect constitutional values;34 a High Court has recognised that the objective test for dignity under the actio iniuriarum “is sufficiently flexible to permit recognition of new forms of injury to dignity including those that arise from violations of fundamental rights”;35 and the courts have affirmed that the criterion of the legal convictions of the community which is central to the examination of delictual wrongfulness is informed by constitutional norms and values.36 The mutually beneficial intertwining of the common law of delict and the Constitution has already progressed to such an extent that it would be difficult (and unwise) to try to prise the private law and the public law tendrils apart.  See Bernstein (above n 12) and Gay and Lesbian Coalition (above n 12).   Bogoshi (n 9), pp 263–264 and Holomisa (n 9), para 27 and 418F–419C. 33   Fose v Minister of Safety and Security 1997 (3) SA 786 (CC). See also Mogale v Seima [2005] JOL 16040 (SCA) where the Supreme Court of Appeal reduced damages awarded for defamation from R70 000 to R12 000, commenting that damages should not be used to “teach them [ie newspapers] a lesson” or to be punitive, as this would unjustifiably deter the exercise of freedom of expression (at para 10, 11 and 12). The court added that the matter should have been dealt with in the Magistrates’ Court not the High Court (at para 19). Recently, the majority of the South African Constitutional Court in NM v Smith (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC) granted leave to appeal to the Constitutional Court on a matter concerning the private law governing invasion of privacy (despite the fact that the High Court and the Supreme Court had dismissed applications for leave to appeal on the matter) and proceeded to deal with the appeal. The Constitutional Court examined the sweep of the common law of privacy against fundamental Constitutional concepts of dignity and privacy, upheld the appeal and set aside the order made by the trial judge, and reassessed the quantum of damages! 34   Seymour v Minister of Safety and Security [2005] 2 All SA 296 (W). 35   Dendy (n 83), para 29. Farlam JA’s judgment in the Supreme Court of Appeal in Dendy does not preclude this flexibility: see below. 36  It is significant that some of the leading constitutional cases setting the bounds of free speech have been defamation cases: Du Plessis v De Klerk 1996 (3) SA 850 (CC); Gardener v Whittaker 1996 (4) SA 337 (CC); Khumalo v Holomisa above n 9. Similarly, some of the leading common-law defamation cases have also given content to the constitutional balance between dignity (including reputation) and free speech: National Media Ltd v Bogoshi above and MthembiMahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA). See n 12 above for the Constitutional Court (and n 11 for other cases) that have given substance both to the meaning of “privacy” in the Constitution and in the actio iniuriarum. 31

32



p e rso na l i t y r i gh t s i n s o u t h af ri ca

359

6.4  THE BOUNDS OF DIGNITY 6.4.1  Preliminary What is meant by “dignity”? Should there be a difference between the scope of delictual and constitutional dignity? To what extent has the judiciary in a post-Constitutional South Africa relied on the actio iniuriarum to protect dignity? What opportunities lie ahead for this iconic action in South Africa (and possibly by analogy in Scotland)? In particular, is there a future for the actio iniuriarum in accommodating new claims for damages arising out of violations of fundamental constitutional rights, including socio-economic rights? Should courts, using their inherent power and constitutional duty37 to extend the common law, use the actio iniuriarum as a method of establishing an additional legal construct of a “constitutional delict” or should constitutional norms simply inform the existing concept of unlawfulness in the actio iniuriarum and so accommodate a damages claim for breach of some (or all) of the constitutional rights? 6.4.2 Dignity defined Dignity (or dignitas) under the Roman law clearly covered feelings of self-worth or self-respect. Some commentators have suggested that subjective contumelia (or insult) is a prerequisite for impairment of dignity but it is clear in the modern actio iniuriarum that dignity is not only subjectively but also objectively assessed.38 The bridge between dignity and a broader autonomy (or freedom of action) is even implicit in some early Roman texts39 and explicit in recent constitutional decisions. The objective, reasonableness dimension of the modern delictual inquiry into dignity serves a number of purposes: (i) It curbs the potential flood of litigation for dignitary harm; (ii) It allows persons, who are at the time of the infringing behaviour unaware that their dignity is being impaired, but later become aware (for instance, victims of “peeping toms” and even some victims of human rights abuses) recourse to a viable remedy for impairment of dignity; and (iii) It recognises that dignity incorporates not only one’s self-esteem (that is, what one thinks of oneself) but also involves an  In terms of s 39(2) of the Constitution.   De Lange v Costa 1989 (2) SA 857 (A) which holds that the ultimate criterion for judging whether an impairment of dignity subjectively experienced will give rise to a successful action for damages, is the objective standard of the reasonable person. This approach has been endorsed by the High Court and Supreme Court of Appeal in Dendy v University of the Witwatersrand, Johannesburg and regarded as compatible with constitutional norms: see nn 83, 98, 104 and pp 372–374. 39  See above n 1. 37

38

360

r i ght s of p e rs o n al i t y

assessment of whether others treat one in the way one deserves to be treated. In other words, dignity has, as Liebenberg suggests in the context of interpreting the Constitution, a “relational” aspect.40 The German Constitution, which refers not just to the right to dignity but also to the right to “free development of one’s personality”, succinctly captures the enabling or empowering facet of respect for dignity and implies an obligation to facilitate this development by providing an environment conducive to the full realisation of personality rights. Susie Cowen has explored the “instrumental power of dignity’s place in the equality jurisprudence . . . and ways in which it can serve aspirations of transformation”.41 Furthermore, the Supreme Court of Appeal, in the specific context of sexual harassment (probably the archetypical instance of unlawful, often gender-based, discrimination) has acknowledged the role of the delictual remedy, including damages for psychiatric injury, and, in determining the legal convictions of the community on this matter, quoted from commentators who rightly consider sexual harassment as potentially both an infringement of physical integrity and personality rights, such as the right to dignity.42 There is considerable evidence in the development of delictual and constitutional jurisprudence43 that dignity is not only regarded as encompassing an individual’s subjective feelings of self-worth and selfrespect but is a central facet of the objective inquiry into individual autonomy, freedom and equality. Of course, it is acknowledged that autonomy and freedom are double edged interests. One person’s autonomy to express himself or herself may require the curtailment of another’s autonomy (or dignity) in certain circumstances. Conversely, as in the leading German case of Lebach,44 an aboutto-be-released prisoner’s right to resocialisation may outweigh the media’s right to produce a documentary about his offence. These

40  S Liebenberg, “The Value of Human Dignity in Interpreting Socio-Economic Rights” (2005) 21 SAJHR 1 at 11. This relational aspect of dignity arises from the realisation that human beings are undoubtedly interconnected beings. It is already acknowledged that reputation has a relational aspect of estimation of others: see J M Burchell, “The Criteria of Defamation” (1974) 91 SALJ 178 at 183. See further below, n 55. The objective test of dignity also takes in account the availability of a concurrent remedy, such as one in administrative law: see below. 41  S Cowen, “Can ‘Dignity’ Guide South Africa’s Equality Jurisprudence?” (2001) 17 SAJHR 34 at 55. 42   Media 24 Ltd v Grobler 2005 (6) SA 328 (SCA) ((2005) 26 ILJ 1007) at para 67. 43  See Liebenberg (n 40), at 5–6 and 18 who refers to the authors who have warned against taking a narrow approach to personality rights in a constitutional context and the cases cited in n 12 above. 44   BVerfGE 35 203 (Decision of the German Federal Constitutional Court, 5 June 1973).



p e rso na l i t y r i gh t s i n s o u t h af ri ca

361

internal conflicts within the concept of dignity are resolved in South Africa by balancing rights and interests within the objective standard of reasonableness. The Constitutional Court clearly considers the concept of dignity under the Constitution in its quintessentially delictual sense of “selfworth”.45 In one of its earliest decisions, the Court referred to the recognition of dignity as the recognition of the “intrinsic worth of human beings” requiring that human beings are “entitled to be treated as worthy of respect and concern”.46 Constitutional jurisprudence also reflects a broader interpretation of dignity. In the context of the nature of privacy as a facet of dignity, the idea of human dignity is evolving to embrace “individual autonomy”.47 In similar vein, Sachs J in the Constitutional Court, recognising the true breadth of the concept of dignity, highlighted that dignity is the “motif which links and unites equality and privacy” but also recognised that dignity has a broader dimension than equality.48 Goldstone J in a number of judgments49 regarded an impairment of dignity as an integral facet of the concept “unfair discrimination”. These statements of Goldstone J have, however, evoked both detractors50 and, more recently, supporters.51 Without entering fully into the debate whether equality is part of dignity or an independent right, two observations are inescapable: (i) it is clear that dignity is “relevant to determining whether   Jaftha v Schoeman, Van Rooyen v Stolz 2005 (2) SA 140 (CC) at para 27 (speaking of the lack of housing under apartheid). 46   O’Regan J in S v Makwanyane 1995 (3) SA 391 (CC) at 328. 47  See above n 12 and Khumalo v Holomisa (2002) (5) SA 401 (CC), para 27. 48  See Sachs J in the National Coalition for Gay and Lesbian Equality case above n 12 at 120. As Liebenberg op cit n 40 at 13 points out, the Treatment Action Campaign (2) judgment (2002 (5) SA 721 (CC)) reveals that “[f]or society to deny poor women and their newborns access to ‘a simple, cheap and potentially lifesaving medical intervention’ [at para 73] would clearly indicate a lack of respect for their dignity as human beings entitled to be treated as worthy of respect and concern”. 49   President of the RSA v Hugo 1997 (4) SA 1 (CC); Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) and Harksen v Lane NO 1998 (1) SA 300 (CC). The Supreme Court of Appeal also appears to merge dignity and equality issues in Minister of Correctional Services v Kwakwa 2002 (4) SA 455 (SCA) where a privilege system implemented by the Commissioner of Correctional Services was set aside because it unfairly discriminated against unsentenced prisoners and impaired their dignity (paras 25, 27, 28, 32 and 33). 50  A Fagan, “Dignity and Unfair Discrimination: A Value Misplaced and a Right Misunderstood” (1998) 14 SAJHR 220; C Albertyn and B Goldblatt, “Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality” (1998) 14 SAJHR 248; and D Davis, “Equality: the Majesty of Legoland Jurisprudence” (1999) 116 SALJ 398. 51  S Cowen, “Can ‘Dignity’ Guide South Africa’s Jurisprudence?” (2001) 17 SAJHR 34; Liebenberg op cit n 40. 45

362

r i ght s of p e rs o n al i t y

there is discrimination on a ground that is not specified under the non-discrimination provision of the equality clause”;52 and (ii) even in cases of discrimination on specified grounds, issues of dignity cannot really be excluded – even the most ingenious of definitions of “equality” can actually be reframed in terms of dignity, without doing any injustice to the basic concept of ‘“equality” or “dignity”.53 Furthermore, it will become clear from the recent jurisprudence (some of which will be considered later in this chapter)54 that a concept of dignity in a “collective” sense is already being acknowledged by the Constitutional Court. For instance, O’Regan J in Khumalo stated that “the value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in society”.55 The obvious objection to such an all-embracing concept of dignity is that it is too vague to provide any real beacon for both delictual and constitutional jurisprudence.56 A rejoinder to this understandable criticism is that we already have a growing judicial understanding of the meaning of specific facets of “dignity” and that, as our relatively   Cowen (n 51), p 36. Where the discrimination is on one of the designated grounds, unfair discrimination surely also involves an impairment of dignity. In other words, all cases of unfair discrimination involve impairments of the dignity of the person discriminated against but all cases of impairment of dignity do not necessarily involve unfair discrimination. For instance, a refusal to grant a remission of sentence to a male prisoner who is a single parent with a child under 12 years of age, while granting remission of sentences to women prisoners who are mothers with children under 12, constitutes an unlawful impairment of the male prisoner’s dignity even though the discriminatory behaviour may ultimately benefit women, who form part of an historically disadvantaged group, and was conduct regarded by the majority of the Constitutional Court in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) as not constituting unfair discrimination. The freedom of the male respondent in Hugo was naturally limited by his incarceration but the unjustifiable deprivation of the prospect of an early release surely constituted an actionable impairment of his dignity. 53   Fagan’s definition of “equality” in terms of conferring benefits or imposing burdens on some but not others (op cit n 50) surely involves an impairment of the dignity of those deprived of the benefit or subjected to the burden. Similarly, the definitions of “equality” that emphasise “a commitment to ensuring that all within society enjoy the means and conditions to participate significantly as citizens” (Davis op cit n 50 at 413–414) or protecting the “ability of each human being to develop his or her full human potential and to forge mutually supportive human relationships in the home, the community, the workplace and society as a whole” (Albertyn and Goldblatt (n 50) at 254) can equally be expressed in terms of “dignity” as defined in this chapter. See Cowen (n 51) at 44 and Liebenberg (n 40). Are critics of the convergence of dignity and equality not trying to define the fundamental right to dignity by another name? 54  See below n 69. 55   n 9, para 27. See also O’Regan J in NM v Smith 2007 (7) BCLR 751 (CC) at para 131. 56  Davis (1999) 116 SALJ 398 and Liebenberg, op cit n 40, 5. 52



p e rso na l i t y r i gh t s i n s o u t h af ri ca

363

new Constitution proceeds well into its second decade, further clarification will inevitably emerge from both the common-law courts and Constitutional Court. The common ground occupied by the concepts of “dignity”, “humanity” and ubuntu is obvious and the need for the constitutional and delictual concepts of dignity to find further common ground is not only imperative for the sake of symmetry, but also for the survival of the Roman–Dutch law of delict. 6.4.3  Judicial precedent on the actio iniuriarum for impairment of dignity in pre- and post-Constitution South Africa A civil remedy for impairment of dignity (as opposed to privacy) under the actio iniuriarum in South Africa has already been recognised for insulting words57 (some of which might amount to meaningless abuse and so not constitute defamation), insulting conduct,58 infringement of personal liberty (in defined areas such as unlawful arrest59 and malicious prosecution),60 sexual harassment61 and unfair dismissal.62  See “bloody bitch” (Brenner v Botha 1956 (3) SA 257 (T)); “pig” (S v Jana 1981 (1) SA 671 (T)); “kaffir” (Henning v S [2004] JOL 13038 (E)); S v Steenberg 1999 (1) SACR 594 (N)) (both cases resulted in convictions of crimen injuria – the criminal version of the actio iniuriarum); “uza kunya wena – loosely translated ‘you are going to shit’” (Mbilini v Minister of Police 1981 (3) SA 493 (E)); “bloody Jew boy” (Tarloff v Olivier 2004 (5) BCLR 521 (C)); “bitch” (S v Mcapazelli [2004] JOL 12470 (Tk) (crimen injuria)); “dog” or “mad” (Ndebele v Ncube [1998] JOL 2418 (ZS)). Defences to such an action based upon insulting words tend to be seen in much the same light as defences to a defamation action, with the proviso that it might not be justifiable to insult others by calling them hurtful names. 58   Epstein v Epstein 1906 TH 87; Tiffen v Cilliers 1925 OPD 23; Innes v Visser 1936 WLD 44; Katzenellenbogen v Katzenellenbogen & Joseph 1947 (1) SA 622 (W); Shenker Brothers v Bester 1952 (3) SA 655 (C); Bennett v Minister of Police 1980 (3) SA 24 (C); Ramsay v Minister van Polisie 1981 (4) SA 802 (A); Van Heerden v Cronwright 1985 (2) SA 342 (T) at 342H-I; Boswell v Union Club of South Africa (Durban) 1985 (2) SA 162 (D). 59   Burchell, Personality Rights (n 9) 353–6 and for post-1998 cases, see Bentley v McPherson 1999 (3) SA 854 (E); Lu Qin Png v Aani Eoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W); Lombo v African National Congress 2002 (5) SA 668 (SCA); Minister of Correctional Services v Tobani 2003 (5) SA 126 (E); Ralekwa v Minister of Safety and Security 2004 (2) SA 342 (T); Seymour v Minister of Safety and Security [2005] 2 All SA 296 (W); Cele v Cele [2005] JOL 14977 (D). 60   Burchell, Personality Rights (n 9), pp 356–364 and for post-1998 cases: see Palmer v Minister of Safety and Security 2002 (1) SA 110 (W); Manase v Minister of Safety and Security 2003 (1) SA 567 (Ck); Heyns v Venter 2004 (3) SA 200 (T); Bande v Muchinguru [1999] JOL 5205 (ZH). 61  See Media 24 Ltd v Grobler 2005 (6) SA 328 (SCA). 62   Sibiya v NUM [1996] 6 BLLR 794 (IC) (failure to hold a hearing in a disciplinary inquiry can amount to an infringement of the employee’s dignity, giving rise to solatium for infringement of personality rights). Although the case involved 57

364

r i ght s of p e rs o n al i t y

6.5  FUTURE PATHS; THE ROLE OF THE SOUTH AFRICAN ACTION FOR IMPAIRMENT OF DIGNITY 6.5.1  Preliminary It is submitted that the delictual action for impairment of dignity has a major, as yet untapped, role to play in helping to give practical meaning to socio-economic rights. Some examples will suffice. 6.5.2  The right to housing Land and housing have been burning issues in South Africa for centuries. During the apartheid era forced removals, summary evictions and other forms of dispossession of property for ideological purposes were the order of the day. For the majority of the Black population, housing was not a governmental priority. Although the new government perceives housing as a priority, the reality is that delivery of housing cannot meet the overwhelming demand. Many of the poorest South Africans are forced to occupy informal shacks or to become squatters and land redistribution is moving slowly.63 Section 26(3) of the Constitution, read as a whole, attempted to address the iniquity of forced removals of persons by guaranteeing that a person would not be evicted from his or her home or have his or her home demolished without an order of court, considering all of the circumstances relevant to the particular case. The importance of adequate housing and security of tenure is a feature of the Constitution.64 In the Prevention of Illegal Eviction from and

an application for compensation for unfair dismissal under s 46(9) of the now repealed Labour Relations Act 28 of 1956 and the Industrial Court held that the employee’s dismissal was substantively justified, the judge held that the procedural unfairness of finding him guilty in his absence without establishing the reason for his absence constituted an actionable infringement of his personality rights (unfortunately, s 194(1) of the current Labour Relations Act 65 of 1995 limits the compensation for unfair dismissal to a capped amount of economic loss); Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC)): The Labour Appeal Court held that premature termination of a fixed-term contract rendered the dismissal substantively unfair and constituted an iniuria impairing the dignity of the appellant. 63  According to the South African Survey in The Economist (cited in Cape Times, 7 April 2006, 5) the South African Government (of course in collaboration with the private sector) can consider substantial progress to have been made by the building of 1.9 million new homes since 1994, connecting 4.5 million households to electricity and providing 11 million houses with running water. As far as land is concerned, recent reports in the popular press predict that certain protracted negotiations, unresolved on the willing buyer/seller basis, may result in expropriations. 64   Jafta v Schoeman 2005 (2) SA 140 (CC) at paras 28 and 29.



p e rso na l i t y r i gh t s i n s o u t h af ri ca

365

Unlawful Occupation of Land Act (PIE)65 (a consequence of s 26(3) of the Constitution) the Legislature decriminalised squatting, attempted to prevent unlawful eviction and to provide for procedures for the eviction of unlawful occupiers. “In my view, the Act should be viewed as an attempt by the Legislature to do exactly what it stated in the preamble to the Act that it intended to do. That is to prevent unlawful eviction and to provide procedures for the eviction of unlawful occupiers. For this purpose the Act provides, first, that an unlawful occupier may be evicted only by order of a court of law. Secondly, a procedure is prescribed which an applicant should follow and a procedure by way of which the court hearing the matter should approach the application. I do not interpret the obligation on the court first to consider whether it would be just and equitable to order the eviction after considering all the relevant circumstances of the particular cases in front of it as prohibiting an eviction of an unlawful occupier. What the court must ensure is that an eviction should be effected in such a manner that fairness and human dignity prevail.”66

Interpreting s 6 of PIE, the Constitutional Court has held that, in determining that an eviction order had been unjustly and inequitably made, an important factor is the fact that mediation has not been attempted.67 The Constitutional Court highlighted the obvious link between housing and dignity, holding “While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect”.68 Later in the judgment, the court stated that it is not only the dignity of the poor that is impaired when “homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when State action intensifies, rather than mitigates, their marginalisation”.69

In another recent Constitutional Court case,70 the appellants had had their homes sold in execution for debts of R250 and R190 respectively.71 The court emphasised that infringement of socio  19 of 1998. The movement from the previous Prevention of Illegal Squatting Act (PISA) to the Prevention of Illegal Eviction Act (PIE) vividly charts the reversal of governmental policy. 66   Groengras Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants 2002 (1) SA 125 (T) at para 26. 67   Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC). 68  At 224, para 12. 69  At 227 para 18. Note the “collective” aspect of dignity suggested in this passage. 70   Jaftha (n 64). 71  In terms of ss 66(1)(a) and 67 of the Magistrates’ Courts Act 32 of 1944. 65

366

r i ght s of p e rs o n al i t y

economic rights invariably involved impairments of dignity, that “housing is linked to dignity and self-worth” and that in this particular case the appellants stood to lose further state housing subsidies after eviction. The court held that the sale in execution scheme was overbroad because it lacked a proportionality inquiry that balanced the advantage caused to the creditor against the immense hardship caused to the debtor and permitted eviction without judicial intervention. The court rejected the contention of counsel for the appellants that a blanket prohibition against sales in execution below a particular value would be appropriate. Once the dispossession of property has been declared invalid after the exhaustion of any internal statutory or common-law remedies, and the court has declared that an infringement of dignity has taken place, surely the way is open to a civil claim for damages for that impairment of dignity. Why should the appellants who have been unlawfully deprived of their property (albeit temporarily) not receive compensation for treatment impairing their dignity (and even for consequent economic loss where this and the requisite fault can be established)? It is generally acknowledged that it is futile for the courts, in applying private law rules, to attempt to compel a government to provide everyone with housing if public funds are not sufficient to cover these costs. Perhaps the best a court can do is to ensure, through, for instance, a structural interdict, that the government has a reasonable housing policy and, if it does, that it complies with that policy.72 However, if a person who is in possession of a house (even of a rudimentary nature) is deprived of his or her home without due process or unjustifiably, a remedy in damages under the actio iniuriarum for impairment of dignity could lie against the offender, who would often be government (central or local) or a landowner. Similarly, if the State or any one else breaches its negative obligation to desist from preventing or impairing the right of access to adequate housing, a delictual action for unlawful73 impairment of the dignity of the person deprived of the right to access would lie. The extent of damages would not necessarily correspond with the value of the 72   Government of Republic of South Africa v Grootboom 2001 (1) SA 46 (CC); City of Cape Town v Rudolph 2004 (5) SA 39 (C) where the court held that the applicant had displayed an unacceptable disregard for the order made by the Constitutional Court in Grootboom and so considered the case an appropriate one for a structural interdict granting the applicant four months to present a report to court. 73   Obviously, not all evictions are unlawful: see Groengras Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants 2002 (1) SA 125 (T) where there was an imminent danger of substantial injury and damage to persons and property if the unlawful occupiers were not immediately evicted.



p e rso na l i t y r i gh t s i n s o u t h af ri ca

367

actual dwelling lost or to the right to a particular type of dwelling but rather to the degree of degradation to which the plaintiff is exposed by the decision and its consequences. (Of course, this remedy would be different in nature from a claim for compensatory restitution in terms of the Restitution of Land Rights Act.74) This chapter commenced with a brief reference to Roman law texts on the applicability of the actio iniuriarum where someone prevents another from bathing in a public area or sitting in a public stall at the theatre. It was suggested above that these texts and one of the few early cases interpreting them (Sievers v Bonthuys)75 involved impairments of dignity in the form of an unjustifiable interference with freedom of movement. A modern case where an interdict was sought preventing homeless persons from entering the Cape Town Waterfront provides a vivid contemporary instance of where property rights were trumped by the right to dignity and the application for the interdict refused because, so the court reasoned, the Waterfront was not like a restaurant but was “for all practical purposes a suburb of Cape Town”. It was an area to which the public had access and, if the applicants, wanted to exclude the respondents, they could do so only if the respondents were engaging in unlawful conduct. The court queried whether a prohibition against begging might not be unconstitutional. 6.5.3  The right to social security for permanent residents Section 27(1) of the South African Constitution provides that “[e]veryone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance”. According to the Constitutional Court in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development,76 the word “everyone” means all the people in the country and cannot be construed as referring only to “citizens”. The Constitutional Court consequently read into the relevant legislation the words “or permanent resident” after the word “citizen”. “The fact that the differentiation between citizens and non-citizens may have a rational basis does not mean that it is not an unfairly discriminatory criterion to use in the allocation of benefits.”77

Citizenship is not a ground of differentiation specified in s 9(3) of the Constitution but, so the court held, “it is clearly differentiation on a   22 of 1994. See, for instance, Hermanus v Department of Land Affairs; In Re Erven 3535 and 3536, Goodwood 2001 (1) SA 1030 (LCC). 75   1911 EDL 525, discussed in Burchell (n 2), pp 2–3. 76   2004 (6) SA 505 (CC). 77  At para 68. 74

368

r i ght s of p e rs o n al i t y

ground analogous to those listed in s 9(3)”.78 Strictly speaking, it would be unnecessary for the court to classify the form of discrimination: if focus had been placed on “dignity” (a concept naturally broader than equality) both the constitutional and the delictual issues could be decided on this basis because the inherent personality right of dignity extends beyond the listed grounds of discrimination. After Khosa, permanent residents who are deprived of access to social security would ultimately be able to bring a delictual action for impaired dignity (and even for economic loss where the requirements for such an action are established). 6.5.4  The right to family life The Constitutional Court in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs79 held that the right to dignity includes the right to family life. The court held that a provision in the Aliens Control Act80 that empowered immigration officers and the Director-General to refuse to grant a temporary residence permit to spouses of South African citizens infringed the right to cohabit by forcing the South African citizens to choose between going abroad to be with their partner (while the application for an immigration permit was considered) or remaining in South Africa alone. Section 26(2)(a) of the Aliens Control Act81 provides that an application for a work permit may only be made while the applicant is out of the Republic and the applicant shall not be allowed to enter the Republic until a valid permit has been issued to him or her. The Constitutional Court in Lawyers for Human Rights v Minister of Home Affairs82 held that this provision seriously disrupted family life and impeded the possibility of persons living together and giving each other marital support. Furthermore, the court held that even aliens are entitled to administrative justice and that the applicant was entitled to a hearing. The issue of the right to administrative justice and due process leads naturally to the following, most recent example of the potential of the modern actio iniuriarum in furthering human rights.  At para 68.   2000 (3) SA 936 (CC). Although the South African Constitution does not eo nomine incorporate the right to family life, Art 18 of the African Charter on Human and Peoples’ Rights recognises the family as the “natural unit and basis of society” which “shall be protected by the State”. 80  Section 25(9)(b) of Act 96 of 1991. 81   96 of 1991. 82   2004 (4) SA 125 (CC). 78

79



p e rso na l i t y r i gh t s i n s o u t h af ri ca

369

6.5.5  The right to administrative justice and due process The first case in South Africa where argument was raised on the full potential of the post-Constitution actio iniuriarum as a remedy for protecting dignity involved the claim of an erstwhile South African delict academic that the treatment he had received from a professorial selection committee at his University amounted to an iniuria.83 A central question confronted by the court was whether defects of a procedural nature, especially the failure to furnish an unsuccessful applicant for appointment to an academic post with reasons, could constitute an actionable impairment of dignity? The High Court affirmed the objective test of dignity enunciated in De Lange v Costa84 and declared it compatible with the Constitution.85 Accepting that for the present case there was little difference between the right to dignity under the Constitution and its common-law counterpart, Boruchowitz J nevertheless distinguished between what he saw as the narrower concept of dignitas in the common law and the broader concept of dignity in the Constitution.86 According to the judge of the High Court, dignitas encompasses “only the subjective feelings of dignity, self-respect or a person’s self-worth and is not concerned with personality rights such as the right to physical integrity (corpus) and the right to good name (fama)”.87 In short, the judge concluded that the essence of an infringement of dignitas is conduct that is “insulting, humiliating or degrading”.88 Boruchowitz J acknowledged the foundational nature of dignity in the Constitution,89 and concluded that “[w]hatever its exact scope, there is consensus that the protection of human dignity under s 10 of the Constitution encompasses something broader than the Roman law concept of dignitas”. The authority, cited by Boruchowitz J, for a distinction between a narrow interpretation of the right to dignity in delict as opposed to a broader interpretation of the right under the Constitution is meagre in the extreme. Boruchowitz J relies on a passage from the High Court judgment of Froneman J in Gardener v Whitaker,90 where (relying on Cachalia et al),91 the judge states that protection   Dendy v University of Witwatersrand, Johannesburg 2005 (9) BCLR 901 (W).   n 38. 85  Para 29. 86  Para 23. 87  Para 1. 88   Ibid. 89  At paras 11 and 12. See also above n 17. 90   1995 (2) SA 672 (E) at 690G–H. 91  A Cachalia et al (eds), Fundamental Rights in the New Constitution (1994), p 34. 83

84

370

r i ght s of p e rs o n al i t y

of dignity in various international human rights instruments “seems to encompass something broader than the Roman–Dutch concept of dignitas”.92 However, both Froneman J and Cachalia et al, after commenting that the interpretation of dignitas in delict appears to be narrower than that in international law, proceed to adopt a definition of dignitas that is in fact broader than the perceived Roman–Dutch law. Froneman J states that “dignity” is broad enough to include “reputation” and Cachalia et al comment that the exact scope of dignity remains “elusive” and, correctly assert, that the “right to respect for one’s dignity interfaces with many, and, indeed implies respect for all, of a person’s rights”.93 Boruchowitz J in Dendy relies also on two passages of Sachs J’s judgment in the National Coalition case.94 In both these passages Sachs J is concerned not with a comparison of delictual dignitas and constitutional dignity but rather with the much-debated relationship between constitutionally protected “dignity” and constitutionally protected “equality”.95 Sachs J endorses the argument that dignity is at the heart of the concept of equality and identifies the specific dignitary aspects of equality as focusing on the impact on a person “because of membership of an historically vulnerable group that is identified and subjected to disadvantage by virtue of certain closely held personal characteristics of its members”.96 With respect, none of the authority cited by Boruchowitz J in Dendy really supports a narrow interpretation of dignitas, or dignity for that matter, in either the ancient or the modern actio iniuriarum and, in fact, Boruchowitz J accepts that for the purpose of the case there is little difference between the right to dignity in delict and its constitutional counterpart. The trial court held that, except for the failure to give reasons, no “overt act” was required for an impairment of dignity. Furthermore, it was held that the objective threshold for determining an impairment of dignity had not been attained and the applicant could, in any event, have invoked an administrative remedy for review of the decision of the professorial selection committee on the basis of the failure to give reasons. The High Court, while recognising that the actio iniuriarum could in principle extend to infringements of constitutional rights in exceptional circumstances, was not prepared to extend the remedy to the present case.

 At 690G–H.   (n 12), p 34. 94   (n 12) at paras 120 and 124. 95  Discussed above (nn 48–56). 96  At para 124, 64D–E. 92 93



p e rso na l i t y r i gh t s i n s o u t h af ri ca

371

On appeal, the appellant’s argument was based on similar grounds to that advanced in the trial court, emphasising that the common law actio iniuriarum required developing in order to accommodate the protection of Constitutional rights and that even if an administrative remedy was available and had been successfully invoked it would not have erased the hurt experienced at the time when the alleged violation of dignity had taken place. Farlam JA, delivering the unanimous judgment of the Supreme Court of Appeal,97 did not dispute the correctness of the allegations that the appellant felt insulted by the conduct of the selection committee, that irregularities had taken place and that the appellant at some stage had become aware of the fact that an administrative remedy was available to obtain reasons for the rejection of his application for the post. Assuming without having to decide the correctness of these allegations (because the matter was heard on exception) the judge of appeal dismissed the appeal on the following grounds: It was held that there was little difference in the instant case between the concept of dignity in the common law and under the Constitution, since an insult was claimed. The judge of appeal, focusing on the objective nature of the concept of dignity in the common law actio iniuriarum, held that “a reasonable person in the position of the appellant who became aware of the manner in which the decision not to appoint him had been arrived at and that that decision could accordingly be set aside on review in consequence thereof would not have had feelings of insult and humiliation . . .”.98 The appellant had accepted the objective nature of the legal concept of dignity by pleading that a reasonable person in his position would have felt insulted by the conduct. The Supreme Court of Appeal held that this objective threshold had not been attained on the facts. Both claims advanced by the appellant therefore failed to disclose a cause of action and the appeal was dismissed. Ponnan JA delivered a separate judgment, agreeing with Farlam JA that the appellant had failed the “objective threshold”,99 but this separate judgment went further by dealing with the issue of the Constitutional development of the common law.100 Ponnan JA stated that it is “beyond dispute” that “courts are enjoined to develop the common law, if this is necessary . . .” in order to “promote the spirit, purport and objects of the Bill of Rights” and to ensure that the “common law will evolve, within the framework 97   Concurred in by Scott, Van Heerden, Jafta and Ponnan JJA: [2007] SCA 30 (RSA). 98  At para 18. 99  At para 24. 100  Ponnan JA’s judgment was concurred in by Van Heerden and Jafta JJA

372

r i ght s of p e rs o n al i t y

of the Constitution, consistently with the basic norms of the legal order that it establishes”.101 However, the judge of appeal pointed out that the Constitutional Court had “already cautioned against overzealous judicial reform” and that, “if the common law is to be developed, it must occur not only in a way that meets the s 39(2) objectives, but also in a way most appropriate for the development of the common law within its own paradigm”.102 Emphasising the two-fold approach to the development of the common law (ie (i) whether the common law should be developed beyond existing precedent; and (ii) if it should be so developed, how this development should occur and by which court) Ponnan JA took the view that the appellant had available an administrative remedy of review and an application to compel the production of documents. Therefore, the common law was not wanting and requirement (i) was lacking. In fact, Ponnan JA opined that the “novelty” of the claim is “entirely self created” by the appellant who had “consciously chosen to eschew a range of legal remedies that have traditionally served to vindicate the complaints encountered here”.103 The unanimous judgment of the Supreme Court of Appeal in Dendy confirms some important aspects of principle and policy regarding the actio iniuriarum:

(i) The concept of “dignity” in the common law is assessed both subjectively and objectively. The objective threshold involves an inquiry whether a person of reasonable sensibilities would also have felt insulted or humiliated by the conduct or words. Insult or humiliation is a central feature of an impairment of dignity, so it was held. These principles have already been recognised as an integral part of the assessment of dignity under the actio iniuriarum, being affirmed in De Lange v Costa.104 (ii) Farlam JA in Dendy regarded the common-law principles as flexible enough to resolve the matter at hand and rightly did not consider it necessary to comment on whether the common law needed developing beyond its existing parameters. The common-law concept of impairment of dignity, with its objective threshold, is flexible enough to include any insulting or humiliating behaviour whatever its source. As long as the common-law requirements for impairment of  At para 22.   Ibid. 103  At para 24. 104  See n 38. 101

102



p e rso na l i t y r i gh t s i n s o u t h af ri ca

373

dignity under the actio iniuriarum are satisfied, an action for damages will lie. In the Dendy case, however, the existence of an administrative remedy to compel the giving of reasons for the decision was held to remove the raison d’être for the allegation that the failure of the selection committee to give reasons for its decision constituted an unlawful impairment of dignity. The existence of an administrative remedy and the knowledge by the appellant of its existence were factored into the reasonableness inquiry. Therefore, on the facts, the objective threshold had not been attained (or, more specifically, it was not reasonably capable of being attained since the case was decided on exception). Farlam JA rightly left any detailed consideration of the relationship between “common-law” and “Constitutional” dignity and the future sweep of the actio iniuriarum to a future case, but his judgment, like that of Boruchuwitz J in the trial court, certainly does not foreclose on any future development of the actio iniuriarum to include infringements of Constitutional rights. In fact, both the judgments of Boruchuwitz J and Farlam JA in Dendy could be seen as compatible with such incremental development of the actio iniuriarum in order to accommodate modern Constitutional parameters.



(i) The truth is that the facts of the Dendy case did not lend themselves to a sophisticated argument that the common law should be developed in order to include infringements of Constitutional rights. Ponnan JA’s remarks (concurred in by Van Heerden and Jafta JJA) about the cautious approach that should underlie any argument for such extension are well taken but strictly speaking unnecessary in a case where the facts did not even meet the available minimum common-law threshold. It is hoped that this separate concurring judgment will not be used as an undue brake on any creative and necessary development of the common-law actio iniuriarum, consistent with the actio iniuriarum “paradigm”, in an appropriate case. The fact that a reasonable person would have to have been insulted by the conduct provides sufficient limit on the action’s scope, whether the common-law or Constitutional form of dignity is invoked as its basis. (ii) If an impairment of dignity is based on a failure to be given reasons for an administrative decision, the existence of an administrative remedy to obtain such reasons (or to have access to information that will clarify the basis for the decision) will be taken into account in determining whether a reasonable

374

r i ght s of p e rs o n al i t y person would have been insulted by the failure to give reasons. In other words, the availability of alternate remedies cannot simply be ignored by the plaintiff. This conclusion is akin to the rule of administrative review incorporated in s  7(2)(a) of the Promotion of Administrative Justice Act105 that requires the exhaustion of internal remedies before review of administrative action can take place.106

The issue of other available remedies arose in Hlophe v Constitutional Court of South Africa.107 A complaint of judicial misconduct was made against the Judge President (JP) of the Cape High Court by the Justices of the Constitutional Court. Another division of the High Court (the Witwatersrand Local Division) had to decide whether the lodging of the complaint by the Justices against the JP and their simultaneous distribution of a media statement (in virtually identical terms to their complaint) prior to a full hearing of the matter by the Judicial Service Commission (JSC),108 violated the JP’s Constitutional rights, including his right to be heard and his right to dignity.109 The High Court entertained an application for an order declaring that the JP’s Constitutional rights (including his right to procedural fairness) had been infringed. A majority (three judges) of the High Court conceded that lodging a complaint was in itself a legitimate process, but emphasized the manner in which the complaint had been lodged. Invoking overseas precedent on the importance of confidential investigations of complaints against the judiciary, the court held that the JP’s right to be heard, not just at the impending JSC hearing, but also in the preliminary stages of the complaint, had been infringed, especially since the Justices who had become aware of the alleged misconduct, initially at least, did not join the other Constitutional Court Justices in lodging the complaint against the JP. Furthermore, the majority judgment highlighted that the initial complaint against the JP did not contain sufficient details of the charge against him, although it was acknowledged that this predicament endured for only just over two weeks until the JSC eventually notified the Judge President of further particulars of the complaint against him. The majority of the court issued a declaratory order that  Act 3 of 2000   On this rule of administrative law and the criticism of its scope by Plasket J, see C Hoexter, Administrative Law in South Africa (2007), pp 478–482. 107   [2009] 2 All SA 72 (W). 108  The body, inter alia, charged with hearing complaints against judges. 109  The complaint alleged that the Judge President had approached two of the Justices of the Constitutional Court in an improper attempt to influence a pending judgment of the Court. 105

106



p e rso na l i t y r i gh t s i n s o u t h af ri ca

375

certain of the JP’s rights had been infringed, adding that this decision did not in any way prejudge the consideration of the JSC of the allegations of misconduct against him.110 The two dissenting judges, however, are surely correct in concluding that the impugned JP was simply in the position of a person against whom a complaint of misconduct had been lodged.111 Such person would not be entitled to be heard prior to the JSC’s full disciplinary inquiry, but he would clearly be entitled to be heard at the tribunal.112 In other words, any remedy that the JP could invoke was at the JSC hearing not in any other forum. The two dissenting judges would also seem to be correct in regarding the declaration of rights’ procedure as an inappropriate remedy for alleged infringements of personality rights because potential defences to the infringements could not be fully adjudicated simply on the papers. Nevertheless, one aspect of the JP’s case which fits in with the central theme of this chapter can be endorsed: He was apparently not given sufficient details in the initial complaint (or media release) on which to base any defence that he might have. He should have been given the basic right afforded all accused – “to be informed of the charge with sufficient details to answer it”.113 The infringement of this right could have led to a successful action for damages for impairment of dignity under the actio iniuriarum,114 although the quantum of damages awarded would have been moderated by the fact that the plaintiff only endured this indignity for two weeks. Incidentally, although counsel in the Port Elizabeth Municipality case115 had argued that the appellants’ reliance was on a self-standing right to dignity rather than a right to housing, the Constitutional Court in that case did not fully comprehend the import of this argument when it concluded that the distinction “did not add anything to this  At para 45.  As one of the dissenting judges (Gildenhuys J) expressed it: There is “no Constitutional right not to be named as an accused in a disciplinary inquiry” (at para 52). 112  See also Harms JA in the appeal to the Supreme Court of Appeal at [2009] ZASCA para 39: “. . . there is no authority that obliges a complainant to invite a judge to be heard before laying a complaint”. 113  Section 35(3)(a) of the Constitution of South Africa (1996). It is, of course, acknowledged that the JP was never in the position of an “accused” in any strict criminal sense. 114  This infringement of dignity would seem unjustifiable and so different in nature to an impairement of dignity/reputation implicit in an allegation of judicial misconduct which, if there were subsequent evidence of truthfulness, might be justifiable. See the discussion in the Supreme Court of Appeal’s judgment in the Hlophe case (n 112 above) at paras 51 and 52 115  See n 67. 110 111

376

r i ght s of p e rs o n al i t y

matter making it unnecessary to consider the attempted amplification of their [the appellants’] case in this regard”. Reliance on “dignity” invokes a specific identifiable right whose scope is reasonably welldefined in the case law and the infringement of which invokes an enforceable action for damages (or application for an interdict) within the existing law of delict rather than a nebulous right to housing, whose enforceability is not universally recognised. It makes a world of difference whether the claim is framed in terms of an infringement of dignity (where an enforceable civil remedy will lie) or in terms of a particular substantive socio-economic right whose enforceability is debatable. 6.5.6  The treatment of vulnerable persons such as refugees seeking asylum and deported persons In Minister of Home Affairs v Watchenuka116 the Supreme Court of Appeal held that a decision by the Standing Committee for Refugee Affairs that a permit issued pending application for asylum must contain a prohibition against work infringed the applicant’s right to dignity by prohibiting him or her from working and, in fact, forced the applicant to turn to crime since there was no state support for asylum seekers. Similarly, a general prohibition against study was also an infringement of dignity. The prohibitions in question were regarded as unconstitutional and therefore unlawful. Although the case was framed in terms of setting aside the prohibitions, there would have been no obstacle to awarding the applicants damages for the unlawful treatment to which they had been subjected and so not only compensating them for their loss but also invoking a potent method of securing governmental compliance with human rights in the future. However, not all subjective infringements of dignity will necessarily lead to liability. The applicant in Mohamed v President of the Republic of South Africa117 had been deported to the United States of America in terms of the Aliens Control Act.118 The FBI was also involved in his arrest and interrogation on charges of the bombing of various United States foreign embassies. The South African authorities deported him without making the deportation conditional upon the non-implementation of the death penalty in the event of conviction. It was argued that his deportation was a “disguised extradition” and that the failure to impose as a condition to his deportation the

  2004 (4) SA 326 (SCA).   2003 (4) SA 64 (C). 118   96 of 1991. 116 117



p e rso na l i t y r i gh t s i n s o u t h af ri ca

377

exclusion of the possibility of the death penalty (as the death penalty was not applicable in South Africa) constituted a violation of his right to life, dignity and constituted cruel, inhuman and degrading treatment. The court held that the deportation was in fact bona fide and dismissed the application. 6.6  CONCLUSION: LONG LIVE THE ACTIO INIURIARUM The civil action for damages for impairment of dignity under the Roman law actio iniuriarum not only has extensive contemporary relevance in South Africa but also has the innate ability to become a major method of practical enforcement of constitutional rights, including the progressive realisation of socio–economic rights. The inherent suppleness of the concept of iniuria in Roman law has been highlighted by Zimmermann.119 It is submitted that this flexibility also holds immense potential in a human rights era. Those systems of law that are privileged to have a Roman heritage are able to use this vehicle to elevate personality rights to their rightful place as enforceable human rights. The Roman actio iniuriarum, as developed in the pre- and post-Constitutional era in South Africa, may be able to provide inspiration for other systems based on the Roman model which are grappling for solutions in a universe where human rights must not only be respected but also legally and effectively protected. The objective test used for determining whether an infringement of dignity is actionable in the civil law will assist in containing the action within reasonable limits and ensuring that the supremacy of the right to dignity is not debased.120 The objective criterion will allow a court to balance the interests involved, engage in a proportionality inquiry weighing issues such as need, available resources, degree of harm, urgency of relief, including availability of alternative remedies, and recognise those defences that reflect reasonable behaviour. The pivotal nature of dignity, as a right not

 Above n 8.  See the media defence of “reasonable publication” acknowledged by the Supreme Court of Appeal in Bogoshi (n 9) and Holomisa (n 9) in defamation actions. A similar defence could apply to media invasions of privacy. See also Markesinis and Unberath, The German Law of Torts (4th edn), pp 420–423 for a translation of a German Federal Supreme Court judgment that emphasises not only the objective boundaries of the action for compensation for immaterial loss but also the inherent balancing of interests that must take place (the professor and the ginseng root case). On the award of damages for compensation for immaterial loss resulting for personality infringement see also the Herrenreiter judgment (Markesinis and Unberath, p 418). 119

120

378

r i ght s of p e rs o n al i t y

just a value, in any human rights ideology is surely not undermined by the realisation that, in certain limited circumstances, one person’s right to dignity may in law have to yield to another’s right to dignity. This is especially the case where freedom of expression and autonomy are rightly regarded as facets of human dignity. Similarly, in order to redress imbalances of the past, individual dignity might have to be balanced against collective dignity, as the recent history of South Africa so vividly reveals. No one has suggested that the most fundamental of all rights, the right to life, without which all other rights will cease to exist, cannot be qualified by circumstances of legitimate killing in self defence. If the right to life can be qualified in limited circumstances, why can the right to dignity also not be subject to qualification in very special circumstances? There might be a superficial attraction in leaving the protection of human and socio–economic rights essentially to the constitutional arena rather than stretching the common law or civil law to provide remedies for infractions of these rights.121 But, the common-law precedent on the meaning and scope of personality rights, building on the civil-law tradition, is rich in detail. The common-law courts have also developed an extensive precedent on the difficult matter of computation of damages for such infringement. Why not utilise this rich heritage for the mutual benefit of both branches of the law? The civil law and common law are ready and able to accommodate an incremental (but vital) growth. It is surely preferable to invoke capacity for growth in the civil law and common law (in response to constitutional impulses) rather than expect judges, interpreting the Constitution122 to use the relatively pristine constitutional slate to mould what is essentially a foundational charter of broadly-framed fundamental rights into a practical instrument for enforcing these rights. Liebenberg123 has identified a possible practical obstacle to the effective enforcement of socio–economic rights using constitutionallyframed rights and the constitutional process. She argues that in the case of ss 26 and 27 constitutional rights (ie rights to housing, health care, food, water and social security) the Constitutional Court has emphasised124 that it is not enough for the applicant to simply 121 The High Court in Minister of Correctional Services v Tobani 2003 (5) SA 126 (E) appeared to take this view, commenting that there is no reason why breach of a fundamental Constitutional right could not be remedied by “appropriate relief”, including an award of damages, at least where the exercise of public power was at stake. 122  Possibly even in a single appeal chamber if the Constitutional Court and Supreme Court of Appeal were eventually to be merged in South Africa. 123   (n 50) at 22–23. 124  See Grootboom (n 72).



p e rso na l i t y r i gh t s i n s o u t h af ri ca

379

establish a prima facie infringement of such a right in order to shift the burden of proof onto the respondent to prove the reasonableness of the conduct. Litigants in cases involving ss 26 and 27 claims will have to establish that the respondent’s acts or omissions constituted an unreasonable failure at least to adopt a reasonable programme aimed at facilitating the progressive realisation of these rights. Litigants could well end up in these cases with the unenviable task of showing that the state’s acts or omissions were unreasonable. Liebenberg suggests giving applicants in these cases the benefit of a “presumption of unreasonableness” which would cast onto the state the burden of rebutting the presumption with “compelling reasons”.125 If the remedy were framed in delict, on proof of an impairment of dignity there would arise, as a matter of well-established law, two rebuttable presumptions – a presumption of the unlawfulness (ie unreasonableness) of the conduct and a presumption of the existence of intention, including knowledge of unlawfulness. The actio iniuriarum in South Africa, like its Roman ancestor, is based on intentional conduct and the fact that the iniuria is based on dolus126 means that the defendant can raise as a defence lack of intention to impair the plaintiff’s dignity or even lack of foresight of the unlawfulness of the conduct. Compelling arguments can, however, be raised in contemporary South Africa for a lesser form of fault applying to impairments of dignity.127   Loc cit.   Dolus eventualis (or subjective foresight of the possibility of the unlawfulness of the conduct) would suffice in current South African law (J Burchell, Personality Rights (n 9), pp 303–304). Liability of the media for defamation is, however, based on negligence: see Bogoshi (n 9) and Mthembi-Mahayele (n 36). On whether the negligence fault criterion should be extended to invasions of privacy by the media, see NM v Smith (n 55) and H Scott, “Liability for the Mass Publication of Private Information in South Africa: NM v Smith (Freedom of Expression Institute as Amicus Curiae)” (2007) 18 Stellenbosch LR 387. 127  The highest South African courts (above n 9) have recently affirmed that defamation by the media is based on negligence (n 126) rather than intention, or no-fault liability for that matter, and it might be arguable, using this analogy, that the action for infringement of a constitutionally-entrenched right to dignity should also be based on a normative, negligence-based liability. Another approach would be to invoke the precedent on unlawful arrest that subjective lack of knowledge of unlawfulness is not a defence to this wrong because of the importance of freedom of movement protected by the delict of wrongful arrest (see J Burchell, Personality Rights (n 9), p 356). The protection of dignity was the distinguishing feature marking the transition from apartheid to a human rights dispensation in South Africa. If dignity is to receive its rightful protection in this new democracy, it cannot be undermined by those who rely on ignorance or mistake (albeit genuine) as a defence. Thus, it could be argued, that although intention remains subjectively assessed, knowledge of unlawfulness should not have to be established as a part of intention for a successful actio iniuriarum for impaired dignity. 125 126

380

r i ght s of p e rs o n al i t y

In the face of a rebuttable presumption of the unreasonableness or unlawfulness of the conduct favouring the plaintiff, the burden would then lie on the defendant to prove the reasonableness of the conduct on a balance of probabilities. The presumption of unlawfulness in delict arises in the context of positive conduct, including positive conduct that impairs dignity. Whether the same presumption arises where the conduct takes the form of an omission has not yet been the subject of adjudication.128 Furthermore, cautious courts might be more comfortable, at least in the formative stage of the extension of the actio iniuriarum to the protection of constitutional rights, with an approach compatible with the jurisprudence on the action for damages for negligently inflicted pure economic loss. In other words, courts may initially prefer not to rely on a presumption of unlawfulness in those cases where an impairment of dignity was based solely on the infringement of a constitutionally-entrenched right but rather to place the full burden of persuasion on the plaintiff to convince the court that, on grounds of policy and law, a remedy should be extended in the particular circumstances.129 Even if one accepts that Khumalo v Holomisa130 “can be read as holding that the Bill of Rights must be applied directly to the common law wherever appropriate”131 so embracing the full effects of horizontal, direct application of constitutional norms to the civil law, even where no vertical relationship between state and individual is present, the ultimate practical balancing of interests involved in personality infringement cases nevertheless indisputably forms part of the domain of trial court judges applying common-law principles, albeit defined in terms of Bill-of-Rights parameters. In the end, it may not be exaggeration to suggest that the survival of a significant part of the South African (and maybe even the Scots) civil-law heritage and the attainment of enforceable fundamental rights (including the progressive realisation of socio-economic rights) in both countries lies in a vibrant and evolving modern actio

 I am indebted to Professor Anton Fagan who, in commenting on a draft of this chapter, has suggested that the operation of the presumptions of unlawfulness and fault in the context of omissions may be more difficult (although I would suggest not impossible) to justify. 129  A colleague of mine, Professor Danie Visser, contributed this realistic observation based on the analogy of the court’s caution in imposing liability for negligently caused pure economic loss, on which see: J Burchell, “The odyssey of pure economic loss” 2000 AJ 99, also published in T J Scott and D Visser (eds), Developing Delict – Essays in Honour of Robert Feenstra (2000), p 99. 130  See n 9. 131  I Currie and J de Waal, The Bill of Rights Handbook (5th edn, 2005), p 390. 128



p e rso na l i t y r i gh t s i n s o u t h af ri ca

381

iniuriarum that affirms the pivotal value of human dignity within objective boundaries. T B Smith argued for a rejuvenated Scottish actio iniuriarum focusing on the concept of “affront” (contumelia)132 and other academic scholars have rightly taken up the call.133 In similar vein, the Outer House of the Court of Session134 has affirmed that Scots law “recognises as a legal wrong for which damages by way of solatium can be claimed the unauthorised removal and retention of organs from a dead body” and that the “true juridical basis” for this type of claim lies in the actio iniuriarum for “affront”.135 Perhaps it is an opportune time to reflect that it is not enough simply to add “insult” to iniuria – the hallowed actio iniuriarum must also guide us into an era where human rights are not just part of ideology but are effectively realised through the civil law.

 T B Smith, A Short Commentary on the Law of Scotland (1962), pp 653–654.  See N R Whitty, “Rights of Personality, Property Rights and the Human Body in Scots Law” (2005) 9 Edin LR 194, esp at pp 199–205. 134   Stevens v Yorkhill NHS Hospital Trust [2006] CSOH 143; 2006 SLT 889 (OH). 135  The action was initiated by the mother of a baby, born with a congenital abnormality of the diaphragm, who had not given informed consent to the removal of her deceased daughter’s brain for neuropathological examination and retention. The availability of the actio iniuriarum in these circumstances was strongly advocated by Niall R Whitty (n 133). 132 133

382

r i ght s of p e rs o n al i t y



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

383

chapter 7 personality rights and english law Hazel Carty

7.1 INTRODUCTORY 7.2 The tort of passing off: protecting against the unauthorised commercialisation of personality 7.2.1 The celebrity image as a commercial magnet 7.2.2 The need to show identifiable harm and a specific tort 7.2.3 The tort of passing off 7.2.4 A “protean tort”: connection misrepresentation, dilution and misappropriation of image 7.2.5 Irvine v Talksport Ltd (2003): “false endorsement” as passing off 7.2.6 The post-Irvine debate on the rationale of passing off 7.3 The action for breach of confidence: its importance to both the dignitary and commercial aspects of personality rights 7.3.1 General 7.3.2 The action for breach of confidence and the “dignitary conception of personality” 7.3.3 Breach of confidence and the unauthorised commercial exploitation of personal information 7.4 SUMMARY

7.1 INTRODUCTORY The aim of this chapter is to explore the approach of the English common law (ie judge-made law) to the concept of “personality rights”. Such a concept involves two distinct manifestations: image/ publicity rights and privacy rights. So this chapter will explore developments in the common law protection of both the economic 383

384

r i ght s of p e rs o n al i t y

and dignitary conceptions of personality rights. However, as case law reveals, these two sides of the same coin of personality may overlap at times,1 causing uncertainty in the law’s development. What is fundamental to an understanding of the English approach in this area is the realisation that, unlike both the Continental European and American approaches, the English common law has traditionally been mistrustful of generalised rights. Therefore those who object to an unauthorised use of their image have to find a specific civil wrong to cover their grievance: there is no right against misappropriation/ unfair competition, 2 there is no express publicity right, nor is there a right of privacy as such. To this end, developments in the tort of passing off and the action for breach of confidence will be analysed. 7.2 The tort of passing off: protecting against the unauthorised commercialisation of personality 7.2.1  The celebrity image as a commercial magnet Clearly, the celebrity image is perceived to be a commercial magnet by those who use it: hence the phenomenal sums that are paid to the likes of David Beckham for authorised use of his image3 in an advertising campaign (often accompanied by active participation in that advertising). Once it is conceded that such an image has commercial value, it is clear that the celebrity industry will demand legal protection against any unauthorised use of that “valuable intangible”. In essence, the obvious basis for such a demand rests on the notion of misappropriation – the celebrity has created that valuable intangible and therefore should be able to prevent its unauthorised use, such use being “theft” or an example of “reaping what you have not sown”. The problem for the industry is that English law has no action for unfair competition as such. In part

1  See Douglas v Hello! litigation, examined below, which was characterised by Lindsay J as a “hybrid” claim, involving both dignitary and commercial aspects of personality interests: [2003] EWHC 786; [2003] EMLR 31. 2  During the debates on what became the Trade Marks Act 1994 there was a campaign by market brand leaders for protection to be provided against the “unfair” practice of “own-brand lookalikes”. The aim was to introduce an action for unfair competition based on Art 10bis of the Paris Convention. Although the amendment was not included in the 1994 Act, there was some support, especially in the House of Lords. 3  Image, of course, extends beyond the mere physical image of the celebrity – it includes voice, name, signature and even (according to American case law) the celebrity’s catchphrase: see Carson v Here’s Johnny Portable Toilets Inc 698 F 2d 831 (6th Cir, 1983).



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

385

this appears to be due to the nature of the common law. With its emphasis on precedent, which develops within a cautious, case-bycase approach, English common law creates specific legal wrongs rather than, for example, a general theory of tort liability. Unlike the European approach, involving some sort of general rule forbidding unscrupulous business practices, “the law of ‘unfair competition’ in English law involves a number of discrete civil actions which have in common their usefulness in protecting traders in their relationships with one another”.4 7.2.2  The need to show identifiable harm and a specific tort Given the above discussion, a claimant who would seek to complain simply on the basis that the defendant has gained from an unauthorised use of the claimant’s image5 will not gain redress in an English court. In essence, English law looks to harm suffered by the claimant, rather than any free-riding of the defendant. If the unauthorised use of the famous image involves lowering the celebrity in the regard of right-minded members of the public, or disparages the commercial attractiveness of the celebrity, then harm may be shown and specific actions may be relied upon (defamation and malicious falsehood respectively). But simply to allege that an unauthorised use is “unfair” does not suffice.6 Again, the traditional English approach, unlike the Continental European experience,7 has been to offer no particular protection to names or images. There is no right in the use of a name8 – Parker J in Burberrys v Cording & Co9 commented that “apart from the law as to trade marks, no one can claim monopoly rights in the use of a word or name”, while some 90 years later, in 1997, Laddie J noted that “there is nothing  And it is on the basis of this that the UK contends it complies with Art 10bis Paris Convention for the Protection of Industrial Property. 5  Though, of course, there is self-regulation by the advertising industry which issues guidelines on the use of name or image without consent. Ofcom, the media regulator, found in favour of the former athlete, David Bedford, who complained about the use of apparent lookalikes in the advertising for the directory enquiry company 118118. However, Ofcom has no power to award damages. 6  Apart from the common law, the celebrity may seek statutory IP protection – through registered trade mark law or the law of copyright. However, neither offers a comprehensive protection against unauthorised use per se. 7  Eg in Germany, the right to one’s image was provided for by Arts 22–24 of the Artistic Copyright Act 1907 (prohibiting the publication of a person’s portrait without his consent). 8   Cf, of course, if harm is likely from that use, so the doctrine of Routh v Webster can be used to prevent the use of a name where that might expose the claimant to liability. 9   (1909) 26 RPC 693 at 701. 4

386

r i ght s of p e rs o n al i t y

akin to copyright in a name”.10 And as for the “right” in an image: in the 1906 case of Corelli v Wall 11 – where the defendant was clearly “cashing in” on the celebrity of the famous plaintiff novelist by publishing postcards showing pleasant imaginary incidents in her life – no wrong was revealed. Swinfen Eady J rejected the claim based on the publication of her portrait without consent, on the basis that the plaintiff had cited no authority to support such a claim. The block on development remains the same: an identifiable harm has to be shown and a specific action relied upon. 7.2.3  The tort of passing off Given the need to show a specific tort, the obvious choice for those who seek “publicity” protection is the tort of passing off. An elastic tort12 (commonly pleaded at interim level only), it has indeed been dubbed by one Court of Appeal judge13 the tort of “unfair competition”. Hence it is likely to be pleaded where there is a “theft” of a commercial asset. However, the tort remains a tort of misrepresentation, not misappropriation per se.14 So simply creating a valuable image or useful marketing ploy, even though that may be the culmination of the exercise of skill or ingenuity or the expenditure of time or money, does not as such attract the protection of the tort of passing off. This was the view in 1981 of the Privy Council in Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd,15 where the real complaint was that the defendant was somehow “appropriating” the success of

  Re Elvis Presley Trade Marks [1997] RPC 543 at 547.   (1906) 22 TLR 532. 12  Having been perceived (wrongly) by mainstream tort academics as a minor tort, it was perhaps inevitable that it is a tort “of which the legal rules and factual limitations . . . are unclear . . . and in respect of which the policy underlining its development . . . remained sadly obscure”: J Phillips and A Coleman, “Passing off and the ‘common field of activity’” (1985) 101 LQR 242. 13  Aldous LJ in Arsenal FC plc v Reed [2003] EWCA Civ 696; [2003] RPC 39 (he asserted that the tort could “perhaps best [be] referred to as unfair competition”). In the earlier case of British Telecommunications plc v One in a Million Ltd [1991] FSR 1 the same judge had noted that this was a cause of action still evolving “to meet changes in methods of trade and communication as it had in the past”. 14  And note the strong signal sent out by Dixon J (in the High Court of Australia) in Victoria Park Racing v Taylor (1937) 58 CLR 479 at 509: “courts of equity have not in British jurisdictions thrown the protection of an injunction around the intangible elements of value, that is value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organisation of a business or undertaking or the use of ingenuity, knowledge, skill or labour . . .”. Compare, of course, Pitney J’s judgment in the American case INS v Associated Press 248 US 215 (1918) US Sup Ct. 15   [1981] 1 WLR 193 (PC). 10 11



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

387

the plaintiff. There, the defendant copied the plaintiff’s marketing concept – a “macho” soft drink (and the advertising theme that went with it) – and in so doing “stole” 15 per cent of the market that the plaintiff had created. However, the Privy Council decided that as passing off depends on misrepresentation, not on the wider notion of misappropriation, competitors such as the defendant were free to jump on the bandwagon created by the plaintiff – indeed, it was felt to be in the public interest that such competition should be allowed. The tort of passing off requires a misrepresentation because at its heart, in theory, is the protection of successful traders16 against the harm of customer confusion. To this end, the tort is defined by reference to three concepts (the so-called “classic trinity”): misrepresentation, goodwill and harm. Goodwill is the customer connection, the claimant’s trading activity that has created a reputation for his goods or services. The tort protects against those misrepresentations (including innocent misrepresentations)17 that harm that reputation, the standard heads of damage being diversion of custom and/or devaluation of reputation. 7.2.4  A “protean tort”: connection misrepresentation, dilution and misappropriation of image Thus, the tort is classically pleaded where the defendant “passes off” his goods as those of the claimant, a fact accepted by Lord Oliver in Reckitt & Colman Products v Borden Inc.18 Here, the customer is misled into believing that the goods he acquires from the defendant are sourced from the claimant. The harm to goodwill involves a diversion of sale from the claimant to the defendant. As such, the tort would appear to offer little scope for the protection of the celebrity image used without permission. However, though this form of the tort is still the most commonly pleaded, the courts have been willing to expand its coverage, acknowledging it to be a “protean tort”.19 So, over the years, the notion of misrepresentation has expanded to include (inter alia) not only a misrepresentation as to source per se but also a “connection misrepresentation”: a representation that  Successful traders in that the tort requires the claimant to show existing “goodwill”, ie customer connection or base. 17  Although the tort appears to have its origins in deceit, equity refocused it on the effect of the misrepresentation rather than on the defendant’s intention. It is therefore a tort of strict liability. That said, however, the presence of deceit may mean that the court is willing to apply the tort (especially in interim proceedings) even when it is not apparent that all the ingredients of the tort are present. 18   [1990] RPC 341 (HL). He summarised the general proposition contained in the tort as: “no one may pass off his goods as those of another”. 19  Lord Diplock in Advocaat [1979] AC 731 at 740. 16

388

r i ght s of p e rs o n al i t y

the claimant’s and defendant’s businesses or goods are in some way connected.20 This is an allegation that has become increasingly easy to maintain since judicial acceptance of the public awareness of licensing and diversification. At the same time, the concept of harm has expanded to include allegations of “dilution” – a less concrete, more speculative form of harm than the classical version, involving an allegation of loss of distinctiveness or “erosion” of commercial impact.21 These developments – a wider view of material misrepresentations and of harm – were clearly of potential use to those who seek protection for their celebrity magnetism against unauthorised use. Added encouragements for such litigants were the judicial acknowledgment of the phenomenon of merchandising and endorsement22 and an acceptance that the tort did not require that the parties be competitors in the same line of business (the so-called “common field of activity” test that had led to the rejection of an early claim for false endorsement brought under the tort of passing off).23 Yet, even so, courts indicated that simply to allege an unauthorised use of the celebrity image would still not amount (in itself) to passing off. The actual facts would have to involve a misrepresentation, with the consumer/public confused into assuming a material commercial link. Moreover, harm – actual or potential – would have to be shown.24 In Re Elvis Presley

 A form of misrepresentation accepted as relevant to the tort by Lord Diplock in Advocaat. 21  Varieties of this speculative head of damage include allegations of “loss of licensing opportunity”, “loss of distinctiveness” and “loss of control”. 22  This is a recent development as the common practice of merchandising is fairly recent: neither Abba nor Peter Stringfellow were able to succeed in actions brought to prevent the unauthorised use of their magnetism as, at the time (1977 and 1984, respectively), they were not involved in merchandising – see Lyngstad v Anabas Products Ltd [1977] FSR 62 and Stringfellow v McCain Foods (GB) Ltd [1984] RPC 501. 23   McCulloch v Lewis A May [1947] 65 RPC 58. Here, the plaintiff was a radio presenter who objected to his name and character being used to sell a breakfast cereal. Wynn-Parry J held that as the parties were not in the same business (“the plaintiff is not engaged in any degree in producing or marketing puffed wheat”), the tort of passing off was not applicable. However, this was never an acknowledged ingredient of the tort: the heart of the tort is potential confusion and, obviously, the closer the parties’ line of business, the higher the likelihood of that confusion but, that said, there is no requirement that the parties be involved in similar lines of business. 24  In Stringfellow v McCain Foods (GB) Ltd [1984] RPC 501 the Court of Appeal accepted that the defendant’s disco-based advertising campaign might have led to some customer confusion between the plaintiff’s nightclub and the defendant’s product, however, there was no harm shown as the plaintiff was not merchandising his name and there was no evidence that membership of his club had been adversely affected. 20



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

389

Trade Marks25 both the lower court and the Court of Appeal rejected the assertion that the celebrity (and his commercial partners) could object merely on the basis of an unauthorised commercial use of the famous image, Robert Walker J categorising this as an “extravagant claim”. In the same year, 1997, Lightman J found that the defendants’ unauthorised sticker book featuring the then popular Spice Girls was not representing itself as “official”, so no misrepresentation was present and no liability for passing off resulted. The defendants might have been cashing in on the fame of the group but that in itself did not constitute the tort of passing off.26 However, the celebrity industry, having seen the tort widening to include vaguer allegations of misrepresentation and harm, was not going to be put off by these discouraging reactions. Moreover, the industry could draw comfort (and ammunition) from developments in Australia. As early as 1960, the Supreme Court of New South Wales signalled a relaxation of the ingredients where the unauthorised use of a celebrity image was at issue. In Henderson v Radio Corp Pty Ltd 27 a well-known pair of ballroom dancers successfully objected to the unauthorised use of their photograph on the defendant’s record of ballroom dancing music. Though in theory applying the tort, in fact the court justified its decision by emphasising the misappropriation of the plaintiffs’ reputation. In theory it found a misrepresentation – that the public would believe that the plaintiffs were recommending the product – but the court dismissed the need to show harm as “the wrongful appropriation of another’s professional or business reputation is an injury in itself, no less in our opinion, than the appropriation of his goods or money”. 28 The argument was bound to develop that the presence of the celebrity image indicated some sort of connection between the celebrity and the defendant’s product or service – and once that false connection was accepted by the court then harm – not in the tangible sense of diverted sales or tarnished reputation but in the vague sense of dilution/lost opportunity for an endorsement fee – should be assumed. The key to this argument was how the court defined the connection necessary to be proved in order for a material misrepresentation to be present.

  [1997] RPC 543 per Laddie J; [1999] RPC 567 (CA).   Panini SpA v Halliwell, unreported (1997) Ent LRev 8(5) E94-5. 27   [1969] RPC 218 (in fact decided in 1960). 28   [1969] RPC 218 per Evatt CJ at 236. A similar cavalier attitude to the tort was present in the fictional character merchandising cases Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187 (Fed Court of Australia) per Pinctus J and Pacific Dunlop v Hogan (1989) 87 ALR 14 (Fed Court of Australia) per Beaumont J. 25 26

390

r i ght s of p e rs o n al i t y

7.2.5   Irvine v Talksport Ltd (2003): “false endorsement” as passing off The culmination of this campaign for protection is (at present) to be found in Irvine v Talksport Ltd, 29 the first English case to accept that “false endorsement” is covered by the tort of passing off. Here, the defendants advertised their new radio station by the use on promotional literature of a photograph of the then successful Formula 1 driver, Eddie Irvine. The photograph had been doctored so that the celebrity appeared to be holding a radio (rather than a mobile phone) to which the defendant’s logo had been added. Laddie J (and subsequently the Court of Appeal) found this to be a connection misrepresentation – a false representation that the celebrity approved of or was happy to be associated with the service (and therefore more than “mere merchandising”).30 This misrepresentation would harm – through lost licensing opportunities and dilution – the celebrity’s goodwill in his endorsement activities. Although the decision appears to follow the “classic trinity”, in fact it reveals a radical application of the tort. So the “connection misrepresentation” was vague – the public might believe that the celebrity was “happy to be associated”, ie happy to be paid. Again, the harm was the equally vague – “dilution”. 31 Indeed, the third ingredient of the tort – goodwill – was also adjusted to include not merely source or product customer connection but also “promotional” goodwill, defined by Laddie J as “the attractive force which is the reputation” of the famous person (so rather than customer connection we are informed of the wide press coverage and public exposure of Irvine at the height of his fame). Goodwill, therefore, was redefined to include the magnetism of the claimant’s fame, his promotional “goodwill” rather than his goodwill in any product or service he promotes. Indeed, it is significant that throughout the judgment Laddie J appears to highlight the misappropriation that is taking place – criticising the defendants for their unlicensed appropriation of the claimant’s fame, for “squatting” on the celebrity’s “magnetism” and for exploiting Irvine’s personality. The result looks curiously circular: because the public believes the celebrity is being paid, therefore he should be paid. Interestingly (and not surprisingly), Laddie J cited with approval the Henderson decision, stated that the underlying principle of the tort 29   [2003] FSR 60 per Laddie J; the Court of Appeal upholding his judgment on passing off in Irvine v Talksport (Damages) [2003] 2 All ER 881. 30  Which for Laddie J simply involves exploiting the celebrity image without implying endorsement – recalling his views expressed in Re Elvis Presley (see text above). 31  Laddie J accepted that there was no direct harm but rather that “the law will vindicate the claimant’s exclusive right to the reputation or goodwill”.



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

391

was “the maintenance of what is currently regarded as fair trading” and impliedly accepted that he was developing the tort when he noted that though the “old cases” provide us with the origins of the tort, “they do not illustrate more recent developments”. So he felt that this area of the common law “tries to ensure, in its own limited way, a degree of honesty and fairness in the way trade is conducted”. 7.2.6  The post-Irvine debate on the rationale of passing off Strangely, there have been no reported cases building on this approach in Irvine. This might be because other courts are reluctant to follow suit. Indeed, earlier passing-off cases brought by celebrities, unhappy with unauthorised use of their image, indicated a more focused interpretation by some judges of the concept of “endorsement”. So Lightman J in Panini v Halliwell defined this as involving an authorisation of quality, 32 while Robert Walker LJ in Re Elvis Presley Trade Marks expressly rejected “extravagant”33 claims based on unauthorised use of image, while, in the same case, Simon LJ noted “there should be no a priori assumption that only a celebrity or his successors may ever market (or license the marketing of) his own character. Monopolies should not be so readily created”. Such analyses comply with the traditional information-based rationale of the tort of passing off. The action protects the customer connection of the successful claimant and in doing so is in line with the public interest in encouraging correct information to be presented to consumers. By these means successful traders are rewarded and coherent market choices are facilitated. Both Panini and Elvis Presley are based on the premise that the “grab value” of the celebrity magnet is not, as such, protected by this tort.34 And such an approach also ties in with a concern voiced by some judges that the courts should not intrude too far on the competitive process; as Lord Scarman asserted in Pub Squash, “competition must remain free”. However, not all judges agree with this traditional, restrictive approach to the tort. It may be conjectured in the alternative that the Irvine approach has led to less reported “celebrity” litigation precisely because it appears to give wide protection to the celebrity image. By alleging a vague “connection” misrepresentation and demonstrating advertising magnetism, the celebrity is able to protect his image against “free-riders” who “unfairly” promote their product by using  Unreported 1997 Ch D, 1997 Ent LR 8 (5) E94–5.   Re Elvis Presley Trade Marks [1999] RPC 567 (CA). 34   Cf Laddie J in Irvine, where he takes judicial note of the fact that “it is common for famous people to exploit their names and images by way of endorsement”, such use enhancing the attractiveness of goods or services for the target market. 32 33

392

r i ght s of p e rs o n al i t y

attention-grabbing images of the claimant. This may well have caused those who seek to use the celebrity image to avoid litigation risks by paying for that use. Indeed, the solicitors for Talksport predicted that the result of the litigation would be that courts would widen the range of image use that could be taken to imply endorsement. Any such cautious approach by advertisers and promoters would be further fuelled by dicta such as that contained in the judgment of Aldous LJ in Arsenal v Reed:35 that unfair unlicensed use of a “character” might in itself involve the tort in the future.36 Indeed, in case law not involving image use there is a growing tendency to use the language of “misappropriation” for this tort. So Sir Thomas Bingham MR in Taittinger SA v Allbev Ltd asserted that the use of the prestige name “champagne” by the defendants for their nonalcoholic cordial meant that they were “cashing in “on the reputation of the claimants’ famous product.37 What English courts need to explore is the modern rationale of the tort of passing off. If its aim is to prevent customer confusion then simply using a celebrity image (without permission) to add glamour to a product or for eye-catching effect would not be tortious, despite the “misappropriation” involved. The traditional rationale would require a real likelihood of a material misrepresentation that would lead to consumer choice in purchase being misled. In effect, the representation of an endorsement extolling the quality or utility of the product being promoted would be required. Simply unauthorised use of the celebrity persona in order to gain customer attention would not suffice (as was arguably the case in Irvine). However, if the tort after Irvine is taken to protect against any use of the magnetism of the image without consent then it has taken on a new role – to prevent “free-riding” per se. In such a case it would be preferable for the courts to abandon the fiction of misrepresentation and simply protect promotional glamour. Interestingly (and rather tantalisingly), Laddie J noted in Irvine that had passing off not been available on the facts of this case, he would have had to consider the relevance to a claim of false endorsement of Art 8 and the First Protocol of the European Convention on Human Rights – which relates to the protection of property – to the claim.

  [2003] EWCA Civ 696; [2003] RPC 39.  It was reported in The Times in 2003 that Ian Botham had reached an out-ofcourt settlement with Diageo for the unauthorised use of his image in their Guinness advertising campaign. His solicitors were quoted as saying that this was an area of law they would “work on and create” and noted that if advertisers saw another company getting his magnetism for free, they might be tempted to do the same (The Times, 28 October 2003). 37   [1993] FSR 641 (CA). 35

36



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

393

7.3 The action for breach of confidence: its importance to both the dignitary and commercial aspects of personality rights 7.3.1  General Parallel to the recent developments in the tort of passing off, the common law has continued to develop its protection of confidential information.38 Lord Nicholls in 2004 summarised the law of confidence as “[the imposition] of a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential”.39 The protection of confidential information (which need not be complex or novel, provided it has not entered the public domain)40 – whether that be personal, commercial or indeed even governmental – arises from a broad equitable principle of good faith: an unusual process for the common law. This categorises the action41 and its remedies as flexible and permits the action to be used against both initial recipients of such information and third parties who knowingly use or disclose such information. As the action protects all categories of private information, including personal information, the courts have been keen to develop the action in line with modern expectations about the protection of privacy, prompted by the enactment of the Human Rights Act 1998 and the incorporation of the ECHR that this involves.42 Indeed, even where no issue arises as to privacy, Art 10 of the Convention, with its protection of freedom of expression, may have to be weighed against the law of confidence.43 It is hardly surprising, therefore, that the boundaries of this action have been tested in recent years. Indeed, in 2001 Keene LJ in Douglas v Hello! Ltd (No 1)44 noted (with apparent approval) that the action continues to develop “to reflect changes in society, technology and  The Victorian origins of the action can be traced back to Prince Albert v Strange (1849) 2 De G & Sm 652 and Morrison v Moat (1851) 9 Hare 241. 39   Campbell v MGN Ltd [2004] UKHL 22; [2004] AC 457 at 464–465. The traditional principles of the action can be found in the judgment of Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41. 40  Megarry J noted in Coco v A N Clark (Engineers) Ltd [1969] RPC 41: “the simpler the idea, the more likely it is to require protection”. However, useless information, trivia and “vague aspirations or concepts” (at least where new entertainment ideas are concerned) will not merit protection. 41  The majority judicial view still appears to be that this is not a tort, though there is uncertainty on this point, with the action being referred to as a tort by Lord Phillips MR in the CA decision in Douglas v Hello! Ltd (No 6) [2005] EWCA Civ 595; [2006] QB 125. 42   Given Art 8 and the right to respect for private life. 43  See Lindsay J in Douglas v Hello! (No 6) [2003] EMLR 31. 44   [2001] QB 967. 38

394

r i ght s of p e rs o n al i t y

business practice”. One of the most significant developments has been the acknowledgment that the obligation of confidence arises from a “reasonable expectation” that the information will remain confidential, rather than requiring that there be a pre-existing relationship.45 The action thereby was acknowledged potentially to apply to industrial spies, eavesdroppers and celebrity snoopers. Such developments, as will be seen, impact on the creation of “personality” protection in two ways. Most obviously, they could expand the protection of the privacy of the celebrity who objects to the commodification of his image per se. In addition, as will be seen, the expansion of the action may also lead to the protection of the celebrity information/image against unauthorised commercial exploitation, where that item has commercial worth. 7.3.2  The action for breach of confidence and the “dignitary conception of personality” Despite the fact that privacy protection can be found in most European jurisdictions from the mid-19th century onwards,46 there remains no privacy tort in English law. Though Sedley LJ47 in Douglas v Hello! Ltd (No 1)48 suggested that the common law might have developed a right of privacy to protect those subjected to “an unwanted intrusion into their personal lives”,49 the House of Lords subsequently in S/S Home Dept v Wainwright50 held that a tort of invasion of privacy was not necessary in order to comply with Art 8 ECHR, a view echoed by Baroness Hale in Campbell v MGN Ltd.51 However, though no over-arching privacy tort has emerged, litigation in recent years has revealed a judicial willingness to reshape the action for breach of confidence to reveal its privacy protection credentials.52 This development was solidified by the House of Lords’ decision in Campbell v MGN Ltd. Here, the celebrity model  This was stressed by Lord Goff in AG v Guardian Newspapers (No 2) [1990] 1 AC 109. He gave as an example an obviously confidential document being wafted out of a window into a crowded street: the obligation of confidence would attach to anyone who found such a document. Of course, the majority of cases will involve a relationship, often based on contract. 46  In France, the courts recognised the right of privacy in 1858. 47  Note the discussion of his 2006 Blackstone Lecture, below. 48   [2001] 2 WLR 992 (CA). 49   Ibid. 50   [2003] WLR 1137 (HL). Now, however, see the judgment of the ECtHR in Wainwright v UK (2007) 44 EHRR 40. 51   [2004] UKHL 22; [2004] WLR 1232. 52  See, eg, Hellewell v Chief Constable [1995] 1 WLR 806 per Laws J; Lord Woolf MR in R v Chief Constable of North Wales, ex p AB [1998] 3 All ER 310. 45



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

395

Naomi Campbell objected to the tabloid newspaper, in addition to publishing allegations of her drug addiction,53 providing details of her treatment, including a covertly taken photograph of her attending for that treatment. These details (and particularly the photograph) involved information within the scope of the claimant’s private life. 54 Given that, the House of Lords found that Art 8 had reshaped the action where private or family life was concerned, so that it now protected against the “misuse of private information”, so as to protect the claimant’s “informational autonomy”. The court then balanced the interest it had recognised in keeping that information private with the defendant’s free speech interest in publishing that information. In so doing, the focus, as Lord Hoffmann acknowledged, was not so much on the unconscionable behaviour of the defendant (as in the traditional application of the action) as on the claimant’s reasonable expectation of privacy, “the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.55 This indicates a fresh perspective on the role of the action in personal information: the case itself acknowledged protection for informational privacy as a species of the action. But, in addition, further possibilities were hinted at, indicating that, in time, further species of privacy-based actions may develop. Lord Nicholls noted that privacy could be invaded in other ways such as strip searches (at issue in Wainwright), though here he left the issue open: “the extent to which the common law . . . protects other forms of invasion is not a matter arising in this present case”.56 At the same time, the limiting principle in the traditional application of the action for breach of confidence – that the information must not be in the public domain – may not have the same force in cases of personal information. The argument seems to be accepted that even if the information has previously been public, there is a good reason based on privacy to prevent further dissemination.57 Indeed, Lord

53  The claimant did not object to the publication of the fact of her addiction and treatment, as she had lied about these matters. Lord Nicholls said: “by repeatedly making these assertions [that she was drug free] in public [the claimant] could no longer have a reasonable expectation that this aspect of her life should be private”. 54  As Baroness Hale acknowledged, certain information – about health, personal relationships and finances – is obviously private. Beyond these categories the court should adopt a “reasonable expectation of privacy” test. 55   [2004] WLR 1232 at 1234. 56   Ibid at 1237. And now see the judgment of the ECtHR in Wainwright v UK (2007) 44 EHRR 40. 57  See Lord Hope in Campbell; Lawrence Collins J in Mills v MGN Ltd [2001] EMLR 41 to the effect that even if the information had previously been disseminated, there will be cases where restraining further publication “may be justified to prevent harm”; and Lord Phillips’ views in Douglas v Hello! Ltd (No 6), discussed below.

396

r i ght s of p e rs o n al i t y

Nicholls noted that the phrase “duty of confidence” might no longer be appropriate in this context. However, the court did not adopt the course of action adopted by the New Zealand Court of Appeal in Hosking v Runting58 when it sanctioned a new tort of wrongful publicity to private lives – a distinct head of liability from the action for breach of confidence. This room for expansion (in line with ECtHR jurisprudence) was underlined in the discussion of the action by Lord Phillips MR in Douglas v Hello! (No 6). 59 Here, the Court of Appeal held that the surreptitious photographs of the claimant celebrities’ wedding, published by Hello!, infringed rights of confidence or privacy enjoyed by the Douglases. The celebrity couple had taken measures to ensure that no unauthorised photographs would be taken by either guests or employees of the hotel where the reception took place. They had further sold the exclusive rights to publish their authorised photographs to OK! magazine, a rival to the defendants’ publication. Applying the test propounded by the House of Lords in Campbell v MGN, the wedding photographs plainly portrayed aspects of the Douglases’ private life and involved personal information. Interestingly, the court rejected the defendants’ contention that the photographs were in the public domain: “Insofar as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph, is confronted by a fresh publication of it.” However, Lord Phillips went further in his review of the action. Noting that the ECHR obliged member states to protect individuals from intrusion into their private domain, he cited the 2004 ECtHR decision in von Hannover v Germany.60 Here, the European Court of Human Rights held that the “legitimate expectations” of a private life were protected by Art 8 ECHR, so that Princess Caroline of Monaco was entitled to complain about paparazzi photographic activity that invaded not just her private sphere but also her normal activities in public spaces. Her presence in public restaurants, markets and beach clubs was protected from such intrusion, as no legitimate public interest attached to the photographs. With this in mind, Phillips MR, though accepting that there was as yet no tort of privacy in English law, appeared unhappy with this stance, asserting “We cannot pretend that we find it satisfactory to be required to   [2004] NZCA 34.   [2005] EWCA Civ 595; [2006] QB 125. 60   (2005) 40 EHRR 1. 58

59



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

397

shoe-horn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion”. It may well be, therefore, that we are witnessing the emergence in English common law of specific privacy-based actions, notionally part of the original action for breach of confidence. So far, these may be identified as the action for misuse of private information and the action for harassment (in line with the von Hannover decision). In addition, some of the discussion in Campbell indicates further possibilities such as unreasonable physical interference (see Lord Nicholls’ comments on Wainwright, above) and unwanted publicity, as Lord Hoffmann referred to the ECtHR case of Peck v UK61 where the applicant successfully argued that the release to the media of the CCTV coverage of his attempted suicide in a public place was a breach of Art 8.62 The action, therefore, has begun to develop special characteristics where personal information or space is involved. There appears to be a dilution of the requirement that the information be secret and not in the public domain. Indeed, in Douglas v Hello! (No 6), Lord Phillips referred to “the cause of action formerly described as breach of confidence”.63 Perhaps, then, it is hardly surprising that Stephen Sedley, in his 2006 Blackstone Lecture “Sex, Libels and Video-Surveillance”,64 commented that by this stage “the law had . . . reached the position that invasion of privacy might be actionable as breaches of confidence so long as nobody actually spoke the P word”. This development will gather pace with the emerging ECtHR jurisprudence on Art 8. And indeed in appellate decisions subsequent to Sedley’s comment, this has been apparent.65 The net result is that, as Lord Nicholls noted in Douglas v Hello! (when it finally reached the House of Lords), the action “now covers two distinct causes of action, protecting two different interests: privacy and secret (‘confidential’) information. It is important to keep these two distinct”.66

  [2003] EMLR 15.  Indeed the Court of Appeal in Murray v Express Newspapers plc [2008] EWCA Civ 446 considered it arguable that the family of the famous author J K Rowling was entitled to have its recreation time free from paparazzi interference. 63   [2005] EWCA Civ 595 at para 53. 64   Oxford, 13 May 2006. 65  In particular, attention is drawn to HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2007] 2 All ER 139; McKennitt v Ash [2006] EWCA Civ 1714; [2007] EMLR 4; and Douglas v Hello! [2007] UKHL 21 (discussed in more detail below). 66  As at this stage it was part of a consolidated appeal and is reported under the name OBG v Allan [2007] UKHL 21. However, it is referred to as Douglas v Hello! in this discussion. Lord Nicholls’ comments are at para 255. 61

62

398

r i ght s of p e rs o n al i t y

7.3.3 Breach of confidence and the unauthorised commercial exploitation of personal information As this action has expanded its coverage where privacy/dignitary concerns are involved, so too has it enhanced its protection in the commercial sphere of confidential information. As has already been noted, the action no longer focuses on a pre-existing relationship, opening up liability where eavesdroppers or intruders are involved. But in this area of commercial or trade secrets, case law also reveals a growing trend to include within the protection of the action not simply “information” simpliciter. Where commercial disputes are concerned, courts have been prepared to accept that that the notion of “information” extends beyond the traditional area of ideas or specific items of information (such as customer lists; development ideas etc) to include the protection of what might be termed a “valuable image”. So in Shelley Films v Rex Features67 and Creation Records v Newsgroup Newspapers 68 a film set and an album cover respectively were kept “under wraps” by the claimant (with steps being taken to avoid unauthorised photographs). The aim was to stimulate interest in the ultimate “product”, namely the film and the new Oasis album – the secrecy being in effect a marketing ploy that might increase attendances at the film and sales of the album. In each case the court found that these “images” were “confidential information”: in both cases the court was persuaded to protect a “valuable intangible” – exclusive and intriguing photographic image. That this is a development of the action is clear from the fact that the information contained in such photographs – what the actor who was to play Frankenstein’s monster looked like in character (Shelley Films)/what the bizarre arrangement of objects in the empty swimming pool involved (Creation Records) – was not so protected, the judge acknowledging in Creation Records that the defendant would have been entitled to sketch the scene (members of the public having been allowed to view the arrangement as it took shape). These developments – the imposition of a duty even on strangers and the wider concept of protectable information – were evident in the Douglas case. Here, the claimants wanted exclusivity when it came to the photographs of the wedding – that exclusivity being a valuable intangible. Having kept their wedding image “under wraps”,

  [1994] EMLR 134.   [1997] EMLR 444. Though it should be noted that Lord Walker in his dissenting judgment in Douglas v Hello! [2007] UKHL 21 was critical of this decision, castigating the subject-matter of the claim as “trivia”, not worthy of equity’s protection. 67 68



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

399

they objected to unofficial photographs of the wedding appearing in Hello! magazine, the chief rival of OK! magazine, to which they had sold exclusive rights to publish the official photographs. The fact that all guests and employees were clearly required to desist from photographing the happy couple allowed the action to be raised, while the photographic image of the couple was held to be “information” (following the approach of the earlier cases, above). As well as claiming invasion of privacy, the celebrity couple complained that the action of Hello! undermined their commercialisation of their own image. In the lower court Lindsay J had found that the “secret” image was a valuable trade asset, akin to a trade secret, while at Court of Appeal level Lord Phillips MR asserted there to be “no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself”. And – no doubt to the delight of the celebrity industry – he contended: “Where an individual (‘the owner’) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner.”

This obviously has implications for those who seek something like a publicity or image right against unauthorised exploitation of their image. However, the Court of Appeal rejected any notion that confidential information could be property and rejected OK!’s (separate) claim that their exclusive contract enabled them to buy into the protection of the law of confidence. On appeal to the House of Lords the focus became OK!’s action for breach of commercial confidence, the Douglases no longer being part of the action. There were unusual features in OK!’s claim in confidence: as an exclusive licensee (rather than the creator of the information) they sought to protect a photographic image which arguably they had placed in the public domain shortly before Hello!’s unauthorised “spoiler”. However, the majority found in OK!’s favour.69 The image – in effect the “spectacle” of the wedding – had been kept under wraps and Hello! were guilty of surreptitious behaviour. Added to that, OK! had paid a substantial amount for their exclusive deal. Though OK! had published the official photographs

 They failed in the separate claim for the tort of unlawful interference with trade.

69

400

r i ght s of p e rs o n al i t y

before the publication of Hello!’s almost identical unauthorised wedding photographs, this was held to be not fatal for OK!’s claim. The majority held that each photograph was secret, given that, as Lord Hoffmann noted, “the point of the transaction was that each picture should be treated as a separate piece of information which OK! would have the exclusive right to publish”.70 This extremely liberal view of the action for breach of commercial confidence – hailed by Black as “a sensible result . . . [ensuring] that the commercial value of these exclusive deals . . . is protected”71 – will promote excitement in the celebrity industry for celebrities and their commercial partners, even though Lord Hoffmann in Douglas v Hello! was adamant that no “image right” was created by the majority decision. However, Arnold suggests otherwise, given that “each image is treated as a separate item of ‘confidential information’ even though the informative content of the image is no different to that of other images which are no longer confidential”.72 7.4 SUMMARY Despite all of the above developments, there are still no concrete “personality rights” in English law. Where dignitary interests are at issue, no blockbusting privacy tort is on the horizon but the common law, mindful of Art 8 ECHR, is edging towards specific categories of private information/personal autonomy protection, using the action for breach of confidence as the “host” action for this development. Eventually (as Lord Phillips in Douglas v Hello! (No 6) appears to be suggesting), new nomenclature will have to be developed to meet these new areas of dignity protection. Of course, should the common law continue to develop wider privacy protection, we may see a parallel development taking place (as happened in American and many European jurisdictions) whereby the protection of privacy spawns a publicity right. So, in America, Prosser included “appropriation of the plaintiff’s name or likeness” as one of his four torts of privacy. Where commercial interests are concerned, there is still no right of publicity in English law. However, the tort of passing off has expanded and is ripe for further development, though in theory still wedded to the need for a misrepresentation. An added impetus for development is the fact that American celebrities and European

  [2007] UKHL 21 at para 122.   G Black, “OK! for Some: Douglas v Hello! in the House of Lords” (2007) 11 Edin LR 402 at p 409. 72  R Arnold, “Confidences in Exclusives: Douglas v Hello! in the House of Lords” 2007 EIPR 339 at p 343. 70

71



p e rso na l i t y r i gh t s a n d e n g l i s h l aw

401

football stars will assume that England offers the same protection that their home jurisdictions do – so that litigation to protect what they have been taught to believe is their “property” is likely. Moreover, the application of the action for breach of commercial confidence in Douglas v Hello! by the majority in the House of Lords provides more food for thought for those eager to prevent the “misappropriation” of their valuable image.73 It should be noted, however, that there was a strong dissenting judgment from Lord Walker.74 He rejected the use by OK! of the action for breach of confidence. He identified OK!’s claim as in essence a “quasi-copyright”: the right to a spectacle, having nothing to do with protecting confidential information, especially given OK!’s prior publication. For him, such a claim proposed a new form of intellectual property right which needed to be rejected in order to maintain the rational development of the law of confidentiality. Clearly, these are interesting times for those who follow the development of “personality” rights in the common law. It is to be hoped that whatever developments the House of Lords ultimately signals for both the tort of passing off and the action for breach of confidence will be based on a clear rationale for both causes of action, with the proper scope of common law protection of dignitary and commercial personality interests – and their relationship to free speech concerns – articulated.

 See H Carty, “The common law and the quest for the IP effect” 2007 IPQ 237.  Lord Nicholls also dissented but focused on the prior publication by OK!.

73 74

402

r i ght s of p e rs o n al i t y

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 403

chapter 8 does intellectual property have personality? David Vaver*

8.1 Introductory 8.2 Overview 8.3 Personality theory and intellectual property 8.4 Personality and intellectual “property” 8.5 Moral rights 8.6 Copyright 8.6.1 Personality and copyright ownership 8.6.2 Privacy and copyright 8.6.3 Privacy generally 8.6.4 Personality generally 8.6.5 Persona 8.6.6 Name 8.6.7 Signature 8.6.8 Image 8.7 Trade names and trade marks 8.7.1 General (a) Celebrities (b) Artist and designer marks 8.8 Cybersquatting 8.9 Conclusion

* Thanks to Sir Robin Jacob, Sir Richard Arnold and Dr Justine Pila for commenting on earlier versions of the manuscript. Remaining infelicities are mine.

403

404

r i gh t s of p e rs o n al i t y

8.1  Introductory How far do intellectual property (“IP”) laws protect personality interests? This paper examines mainly copyright, trade mark and passing-off laws as they affect the protection of features such as the name, voice, image or other personal characteristics of individuals.1 The focus is on English law, with the occasional comparative foray. I briefly touch on privacy rights, but do not discuss publicity, confidentiality rights or the expansion of passing off to cover celebrity advertising; these are covered by others in this volume. 8.2  Overview IP laws and personality interests interact in complex and often random ways. While IP usually protects commercial interests, the commercial and the personal can overlap. For example, everyone traditionally could do business under his or her own name, a right that was variously labelled as “absolute”, “natural and inherent”. 2 While the right could usually be sold together with the associated business, its transfer was restricted where an employee was involved. So in the silent movie era, a hard line was taken against a production company which tried to stop one of its stars from continuing with his stage name when he switched jobs. A clause to that effect was struck down on public policy grounds as an unreasonable restraint on the actor’s right to earn a living. The company’s attempt through contract to own the star’s name was called “entirely unreasonable  Animals are not considered here. However anthropomorphic, in Anglo– American law they are things (Daly v Cannon [1954] 1 WLR 261 at 263 (DC): goldfish) and so have no personality rights: cf A Drassinower, “Capturing Ideas: Copyright and the Law of First Possession” (2006) 54 Cleveland St LRev 191 at pp 193–196 (how hunted animal becomes property); S Hankin, “Not a Living Room Sofa: Changing the Legal Status of Companion Animals”, Uni Maryland Law School Legal Stud Res Paper 2006-16 (2006), p 8 (proceeding to argue for change from traditional position). So Blackie The Talking Cat has no right of free speech under the First Amendment to the US Constitution as it is not a “person”: Miles v City Council of Augusta, Georgia 710 F 2d 1542 at n 5 (11th Cir, 1983); also Dye v Wargo 253 F 3d 296 (7th Cir, 2001) (statutory tort law imposing liability on “person” excludes dog). Nor are animals authors or performers under international or national copyright laws: D Vaver, “The National Treatment Requirements of the Berne and Universal Copyright Conventions: Part One” (1986) 17 IIC 577 at 592. Nor may they or their owners have publicity rights: see, eg, the Japanese supreme court’s judgment of 13 February 2004 (Cases No 2001 (Ju) No 866 and 867; 58:2 Minshu), denying a racehorse owner the right to prevent the unauthorised use of the horse’s name in a video game. 2   Turton v Turton (1888) Ch D 128 at 136 (CA); Marengo v Daily Sketch and Sunday Graphic Ltd (1948) 65 RPC 242 at 251 (HL). 1

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 405 and unfair” and “most unconscionable”. Had the actor’s real name been in issue, the company’s case would have been virtually unarguable. 3 As businesses, trade marks and trade names have multiplied and commerce has grown more international, the right to trade under one’s name has weakened. The “natural” right is now a right that applies only where “necessary”4 and that, as we shall see, rarely works for corporations.5 Since business is now regularly conducted through companies, it follows that the right’s practical field of application has become quite narrow. Other changes have also occurred, often with equally little extended policy debate. As we shall see, statutory IP laws often joined contract and property theory to eclipse such common law inclinations as favoured personality and privacy interests. Nineteenth- and much of 20th-century trade mark law continued to reflect common law concerns to prevent over-easy registration of personal names that gave first comers an unfair advantage over later ones; but the European Community has set aside such cavils and ostensibly treats names no differently from any other aspiring trade marks. Celebrities once had difficulty in registering their names as trade marks for their licensing businesses; today trade marks registries are more welcoming. In copyright law, those who commissioned pictures of themselves or their family would receive preferential treatment; they, rather than the artist, got first ownership. This position has formally weakened, although English courts have tried robustly to compensate for what they see as shortfalls in the new rules. The addition in 1988 of statutory moral rights for authors and in 2006 for performers, to ensure correct attribution and to control unwanted changes to their output, might at first sight seem to bolster personality interests.6 The rights are, however, weakly drawn and easily waived or avoided,7 so their impact in the UK will likely remain marginal. On the other hand, EC law has forced rights over unpublished material, such as personal correspondence and diaries, to be strengthened; so in the UK, while fair dealing for private study and non-commercial research is allowed, criticisms or   Hepworth Mfg Co Ltd v Ryott [1920] Ch 1 at 16 (Ch) and 32 (CA).   Asprey & Garrard Ltd v WRA (Guns) Ltd [2001] EWCA Civ 1499; [2002] ETMR 47, affirming [2001] IP & T 1273 at 1278 (Ch). 5   Fine Cotton Spinners & Doublers’ Association Ltd v Harwood Cash & Co Ltd [1907] 2 Ch 184 at 190 (“a new company with a title of which the name ‘A’, for instance, forms part has not the natural rights that an individual born with the name ‘A’ would have”). See, further, Section 8.7 below. 6   Copyright, Designs and Patents Act 1988 (UK), Ch IV (“CDPA”). 7  D Vaver, “Moral Rights Yesterday, Today and Tomorrow” (1999) 7 Int’l JL & IT 270. 3 4

406

r i gh t s of p e rs o n al i t y

reviews can use only insubstantial extracts from the source work. I shall expand on these matters. At least IP laws usually let other rights that regulate personality use do their thing. Nor do IP rights grant immunity from the European Convention on Human Rights 1950 (“ECHR”), as incorporated by the Human Rights Act 1998 or the Scotland Act 1998. Whoever defames, or who obtains or uses another’s personal information in breach of contract, confidence or privacy, or who exposes another to risk by a wrong attribution or endorsement, cannot seek refuge in his ownership of any copyright or trade mark. The Mirror newspaper no doubt held copyright in the covertly taken photographs it published of Naomi Campbell outside a drug rehabilitation clinic, but this ownership did not affect Campbell’s successful privacy case for damages against the Mirror. 8 One may be safe in copyright but sorry in tort. 8.3  Personality theory and intellectual property Personality affects IP at the most basic level by providing theories to justify the field, at least apart from trade mark law. In a case where the Barbie doll trade mark owner unsuccessfully tried to prevent registration of Barbie for a restaurant chain, the Canadian supreme court distinguished trade marks from other IP rights: “Trade-marks are something of an anomaly in intellectual property law. Unlike the patent owner or the copyright owner, the owner of a trade-mark is not required to provide the public with some novel benefit in exchange for the monopoly. Here, the trade-mark is not even an invented word like Kodak or Kleenex. The appellant has merely appropriated a common child’s diminutive for Barbara. By contrast, a patentee must invent something new and useful. To obtain copyright, a person must add some expressive work to the human repertoire. In each case, the public through Parliament has decided it is worth encouraging such inventions and fostering new expression in exchange for a statutory monopoly (ie preventing anyone else from practising the invention or exploiting the copyrighted expression without permission). The trade-mark owner, by contrast, may simply have used a common name as its ‘mark’ to differentiate its wares from those of its competitors. Its claim to monopoly rests not on conferring a benefit on the public in the sense of patents or copyrights but on serving an important public interest in assuring consumers that they are buying from the source from whom they

  Campbell v MGN Ltd [2004] 2 AC 457 (HL); see also D Vaver, “Advertising Using an Individual’s Image: A Comparative Note” (2006) 122 LQR 362.

8

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 407 think they are buying and receiving the quality which they associate with that particular trade-mark. Trade-marks thus operate as a kind of shortcut to get consumers to where they want to go, and in that way perform a key function in a market economy. Trade-mark law rests on principles of fair dealing. It is sometimes said to hold the balance between free competition and fair competition.”9

For copyright and patents and other IP involving authorship or invention, the justification usually contains some mix of utilitarian, desert and natural right theories. The proportions may vary: sometimes an ingredient is dropped, or a dash of economics or ethics is tossed in, according to taste and the cook’s provenance. A bouillabaisse version goes something like this: since creative work benefits society, society should encourage and reward it; whoever casts his net deserves the catch. IP is the incentive and reward that protects the catch from foreign fishers, pirates and other predators.10 Sometimes this brew is fortified with a dollop of personality theory; sometimes the theory demands its own separate dish, claiming a place as the main course. Its recipe then reads something like this: an individual projects his personality and defines himself through what he creates, invents and communicates. By his works shall his personality be known; by his works shall he develop and fulfil himself. So his works deserve protection as much as he does himself. IP is his desert.11 In more digestible form, personality theory sometimes associates itself with Kant and Hegel.12 It underpins continental European approaches to IP, especially French law with its emphasis on droits d’auteur, and German law with its insistence that copyright is indissolubly attached to the author and so may only be licensed for use. Personality theory avoids some difficulties faced by utilitarians and natural righters. It does not care whether the creator’s product benefits society or not, or whether the product results from work or play. It is enough that it is the vessel for the creator’s personality. Social 9   Mattel Inc v 3894207 Canada Inc [2006] 1 SCR 772; 2006 SCC 22 at para 21, per Binnie J for the court. 10  See E Penrose, The Economics of the International Patent System (1951), pp 20–41, succinctly analysing both natural right and economic theory. 11  See, generally, J Hughes, “The Philosophy of Intellectual Property” (1988) 77 Georgetown LJ 287 at 330ff; L Treiger-Bar-Am, A Right of Autonomy in Expression: Section 80 of the Copyright, Designs and Patents Act 1988 (unpublished D.Phil. thesis, Oxford, 2006), arguing that moral rights protect Kantian notions of dignity and respect contained in free expression ideals deriving from personal rights of autonomy. 12  Whether Hegel actually said what some say he did is questioned by J Schroeder, “Unnatural Rights: Hegel and Intellectual Property”, Cardozo Law, Legal Studies Research Paper No 80 (1 Mar 2004).

408

r i gh t s of p e rs o n al i t y

good flows from the freedom all have to develop their personality to the utmost. Personality theory also goes places that utilitarians and natural righters usually avoid. Thus it more easily justifies the institution of moral rights: for non-attribution denies the individual’s personality, and hacking his work or performance disrespects it. Utilitarians and natural righters tend to discount these rights, saying they should rest, if anything, on contract or economic rationales;13 beyond that, moral rights are just nuisances that impede IP’s tradeability. Personality theory nevertheless has its own conceptual difficulties. Little, if any, of an individual’s personality is found in much IPprotected material. How is an inventor’s personality found in a patentable compound that eases migraine, however ingenious and socially useful the medicine may be? Using my mobile phone camera, I snap a picture of Walter Scott’s statue in Glasgow’s George Square; a fine photo, no doubt, but with slight claim as an expression of my individual personality, little different really from the hundreds of other snaps taken of Scott. What personality exists in routine commercial correspondence, standard legal forms,14 clinical data for new pharmaceuticals, or even some creative work done under a third party’s control – all subject to IP rights? Nor does personality theory handle time well. It prevaricates on why IP rights – unlike truly personal rights such as those involving reputation, dignity or privacy – run on despite their creator’s death. A patent persists though its inventor dies mid-term; copyright’s wake revels on for some seven decades after the author’s funeral. Ultimately, personality theory is one course on the tasting menu: more an intriguing morsel than a meal in itself. 8.4  Personality and intellectual “property” How far do IP rights protect an individual’s personality? We may start with the uncontroversial proposition that no-one “owns” his or her personality in the full sense in which we talk of owning land or goods, any more than anybody owns his or her body.15 What is done with a person’s personality may however produce IP rights.

D Vaver, “Authors’ Moral Rights – Reform Proposals in Canada: Charter or Barter of Rights for Creators?” (1987) 25 Osgoode Hall LJ 749; H Hansmann and M Santilli, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26 J Leg Stud 95. 14   Alexander v Mackenzie (1847) 9 D 748 (conveyancing styles), discussed in D Vaver, “Copyright in Legal Documents” (1993) 31 Osgoode Hall LJ 661, passim. 15   On this matter I prefer J Harris, Property and Justice (1996), Ch 11, to John Locke et al. 13

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 409 The interesting questions are: (a) what acts do this, and (b) who owns the rights? The second question may cause a slight frisson. One drive behind personality theory is to let the individual control what others may do with or to his personality. It can be only his to control, his to “own” in that sense. Once property enters the discourse, so does contract. The spectre of losing control then arises. Most IP these days is classed as “property”.16 Admittedly, there is property and property. To answer all, perhaps even most, IP problems with the incantation “IP is property” can mislead. My rights as owner of a book are different from my rights as owner of its copyright. I can physically assault you with my book; I cannot assault you with my copyright. I can lose my books to the bailiffs if I do not pay my judgment debts; I cannot lose my copyright to them (in England, what they cannot load in a van, they generally cannot seize).17 I can make my book disappear by burning it; my copyright needs more than a match. Some say copyright cannot disappear at all before the term expires naturally by effluxion of time. I may seal and publish a deed poll declaring abandonment; I may walk round a copy of my Copyright Law book on the village green, thrice chanting “Copyright Law: I abandon thee”; and yet apparently the rights to it may still cling on for 70 years after death do us part. IP’s biggest problem for personality is one it shares with conventional property: transferability. Personality interests are personal: they may be waived, or modified by contract or custom, but their key feature is their attachment to the person. They cannot be transferred any more than he can be. That is not true of IP. In Anglo–American law IP is usually a commodity that can be transferred, bought and sold, along with any personality aspects it contains. How much personality hangs back when ambient IP is sold is not always clear.18  Moral rights are, exceptionally, hybrid: personal because non-assignable, property-like because transmissible on death to the estate (CDPA, ss 94 and 95). Some performers’ rights, eg consenting to a live performance, are like moral rights in this respect (CDPA, ss 192A and 192B). Others are not: eg the right to reproduce or distribute a performance constitutes assignable and transmissible property (CDPA, ss 191A and 191B; R Arnold, Performers’ Rights (3rd edn, 2004), paras 3.05–3.15). 17  Elsewhere, copyright may be seizable property: D Vaver, “Can Intellectual Property be Taken to Satisfy a Judgment Debt?” (1991) 6 Banking & Finance LR 255, criticising Planet Earth Productions Inc v Rowlands (1990) 69 DLR (4th) 715 (Ont), where a sheriff seized copyright in photographs under Ontario law; moral rights were unmentioned but were clearly unseizable. 18  IP’s tradeability may indeed affect what aspects of personality can fall under IP: ie consequentialist arguments may help determine what IP encompasses. 16

410

r i gh t s of p e rs o n al i t y

8.5  Moral rights Patent law contains a weak moral right requiring the inventor to be named in the patent application and ultimate patent.19 Later misattribution may amount to a passing off; otherwise the inventor’s name need not be associated with goods or processes embodying his invention, nor may he stop alterations to the invention.20 Moral rights apply more commonly to copyright work (and now also performances). They are ancillary to and concurrent with the copyright or performer’s right, and pass to the estate on the author’s or performer’s death; otherwise they can be waived but not transferred. They engage personality interests more directly than does copyright. Right holders can claim attribution, disclaim wrong attribution, and prevent their work from being changed in ways that prejudice their honour or reputation.21 Moral rights cases are rarely run in common law jurisdictions except when tacked on to more substantial claims such as copyright infringement, defamation or passing off. By itself, a moral rights claim is rarely worth the candle compared with the cost and trouble of pursuing it. The claimant must be unusually persistent and grumpy. So Canadian artist Michael Snow managed to persuade a court to order a shopping mall to take Christmas decorations off his naturalistic sculpture of Canada geese because the decorations prejudicially distorted his artistic intent.22 So too Tory Minister Alan Clark got damages against the London Evening Standard, which carried a spoof of his best-seller diaries that was held to infringe his attribution right23 – a surprising result because the parodist’s byline appeared prominently alongside the spoof. Only the axiomatic “moron in a hurry” (in whom the law, and Tory Ministers, are usually uninterested) would have thought Clark actually wrote the spoof against himself. Under the Berne Convention, authors can prevent some “derogatory action” on their work beyond infringements of attribution and

 European Patent Convention 2000, Art 62 (similarly, in its predecessor EPC 1973); Patents Act 1977 (UK), s 13(1). 20   Balanyk v University of Toronto (1999) 1 CPR (4th) 300 at 339–340 (Ont). 21 Performers may claim prejudice only to their reputation, not their honour: see WIPO Performances and Producers Treaty 1996, Art 5(1); and CDPA, ss 205F and 205G, as inserted by the Performances (Moral Rights, etc) Regulations 2006, s 6. Have performers no honour to prejudice? 22   Snow v Eaton Centre Ltd (1982) 70 CPR (2d) 105 (Ont); D Vaver, “Snow v The Eaton Centre: Wreaths on Sculpture Prove Accolade for Artists’ Moral Rights” (1983) 8 Can Bus LJ 81. Cf CDPA, ss 80–82. 23   Clark v Associated Newspapers Ltd [1998] RPC 261 (Ch) on CDPA, s 84 (also holding for claimant on passing off). 19

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 411 integrity rights.24 But UK copyright law lacks provisions often found in continental European states that take moral rights, including the right against derogatory treatment, rather more seriously. Common law sometimes takes up the slack. For example, moral rights theory grants authors the right to create or to refuse to create a work – an idea that is reflected in common law rules that invalidate unreasonable restraints on the right to work and that allow dilatory authors to plead “writer’s block” to specific performance (but not damages) actions brought by impatient publishers. The continental European author’s right to prevent excessive criticism of his work is vindicated in England through defamation law. The continental rule that lets authors decide when or whether to make a work public appears in UK copyright law as the right to issue copies to the public, but there it is a transferable economic right which is the author’s only as long as he owns the copyright. France also lets authors withdraw or disavow work that no longer represents their views – a right rarely exercised there because publishers can insist on being compensated for the cost of withdrawing existing stock. English law disfavours this droit de repentir: Robert Southey could not suppress distribution of a youthful poem he no longer believed in.25 On the other hand, old Scots law affirms a letter-writer’s right to insist that a newspaper not publish his letter when he later discovered his facts were wrong and the letter was defamatory.26 8.6  Copyright Copyrights protect primary material such as original literary, artistic, musical or dramatic works. Performers’ rights over their recorded work are also located in the UK copyright statute. The UK Act includes as well another miscellaneous class of material: allied or neighbouring rights in film production, sound recordings, broadcasts (including things such as webcasts and podcasts), typographical arrangements, and routinely assembled databases such as telephone directories. Protection for these latter rights depends less on originality than on material investment, and so bypasses personality interests. 8.6.1  Personality and copyright ownership Traditional copyright law does recognise personality interests in original work, but only indirectly and often weakly. Thus, the 24   Berne Convention for the Protection of Literary and Artistic Works (Paris 1971 rev), Art 6bis(1). Performers lack rights over derogatory action: see WIPO Treaty and Performances Regulations (n 21). 25   Southey v Sherwood (1817) 2 Mer 435 (Ch). The poem was “Wat Tyler”. 26   Davis v Miller & Fairly (1855) 17 D 1166.

412

r i gh t s of p e rs o n al i t y

work embodying the individual’s personality may be copyright, but in Anglo–American law copyright is treated as fully transferable property. The author is usually first owner of the copyright and, as such, can control its publication and exploitation. In practice, however, few authors ultimately own what they create. If they are employees, their employer typically owns the copyright. If they work on their own account, whoever commercialises and distributes the copyright often requires a transfer of the right. The decision to enforce copyright is that of the copyright owner alone, who usually protects and recovers for his own benefit and interest alone, unless a contract provides otherwise. So not only may the owner be different from the author; he may also (in the case of a biography or picture) be different from the subject of the work. Indeed, he or she is typically an “it”: a corporation with only a legal, hence fictional, personality. 8.6.2  Privacy and copyright Copyright includes a right to prevent copying as well as a first publication right, ie the right to issue copies to the public. Authors cannot use copyright to prevent the showing of the original work in public, for example by displaying a private letter in a shop window: such an act may defame, or infringe the author’s or recipient’s privacy but not any copyright (unless a copy is made). 27 Authors who retain their copyright may then vindicate privacy and personality interests by having unauthorised copies handed over. Professional advisers may also vindicate their clients’ interests through copyright. A doctor or the hospital which employs him may protect photographs, notes and medical records on patients. 28 A lawyer may transfer copyright in work done for a client to allow the latter to pursue copiers. 29 27   British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch 383; Musical Fidelity Ltd v Vickers [2002] EWCA Civ 1989; [2003] FSR 50 (CA); Cembrit Blunn Ltd v Apex Roofing Services LLP [2007] EWHC 111 (Ch). Unauthorised forwarding of e-mails may breach copyright because a copy is incidentally made, although damages for the infringement may be small: Woolworths Ltd v Olson (2004) 63 IPR 258, reversed on other grounds [2004] NSWCA 372. CDPA, s 19(2)(b) provides that “any mode of visual . . . presentation” of a work is included within the concept of “performance”; but display and performance were not equivalents under the prior law and are not presumed so under CDPA: see s 172. 28   Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002] EWHC 409 (Ch); [2002] RPC 962 (Ch); Auckland Medical Aid Trust v Comm’r of Police [1976] 1 NZLR 485 (SC). 29  Eg Musical Fidelity Ltd v Vickers [2002] EWHC 1000 at para 24 (Ch); (2002) 25(8) IPD 25054, affirmed (n 27); London General Holdings Ltd v USP plc [2006] FSR 6; [2005] EWCA Civ 931 at paras 4–5.

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 413 Since the mid-19th century, the Royal family has benefited – royally, one might say – from the way copyright protects privacy and personality interests. Queen Victoria and Prince Albert stopped the unauthorised publication and exhibition of impressions of their private etchings, as well as a catalogue a third party had drawn up. 30 More recently, Princess Margaret’s lady-in-waiting got damages for copyright infringement against the Daily Mail for publishing photographs she had taken of Margaret at a private party.31 Princess Diana figured in a case where a newspaper was enjoined from publishing an unauthorised still taken from security camera footage showing her and Dodi Al Fayed leaving the Ritz Hotel in Paris just before their fatal car journey. The suit was based on the hotel’s ownership of copyright in the video tape.32 Prince Charles, as copyright owner, has also successfully prevented newspaper publication of excerpts from his private journals on political matters. The newspaper was unable to rely on its right fairly to criticise or review for, as from 2003, this defence no longer applies to unpublished material. Preferring Charles’s privacy over press freedom, the court also ruled that the publication went beyond fair reporting of current events and was not otherwise justified by the public interest.33 8.6.3  Privacy generally How privacy interests may be protected independently of IP rights is currently up in the air. In 1890, Warren and Brandeis famously analysed Victoria and Albert’s lawsuit as a breach of privacy case, with copyright and other interests as mere sideshows.34 The incorporation into UK law of the ECHR, with Art 8(1)’s requirement of respect for everyone’s private life, enables the courts to follow 30 Prince Albert v Strange (1849) 1 H & Tw 1 (LC), a common-law copyright case which survives as an authority under the substituted statutory right covering unpublished work, starting with the Copyright Act 1911 (UK), s 1(1)(b) and First Sch. The catalogue is caught on the principle that the copyright owner of work A can have work B delivered up where B, whether or not itself infringing, derives from infringing A: Chappell & Co Ltd v Columbia Graphophone Co [1914] 2 Ch 745 (CA). 31   Tennant v Associated Newspapers Group Ltd [1979] FSR 278 (Ch). 32   Hyde Park Residence Ltd v Yelland [2001] 1 Ch 143 (CA). Mohamed Al Fayed controlled the claimant company. 33   Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch); [2006] ECDR 20 at paras 162ff, affirmed [2006] EWCA Civ 1776; [2007] 2 All ER 139, applying CDPA, s 30(1) and (1A), implementing Art 5(3)(d) of Directive 2001/29/ EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. 34  S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harv LR 193, analysing Prince Albert v Strange (n 30).

414

r i gh t s of p e rs o n al i t y

Warren and Brandeis and develop the law of tort and delict to create a new privacy right. The Lords have so far not taken this course. Instead, existing causes of action, particularly breach of confidence, have been manipulated to protect privacy interests.35 The results are not pretty. Both privacy and confidence doctrines have been correspondingly distorted. Commentators have been unimpressed with both technique and results.36 So too have other courts. On technique, the court of appeal has found it unsatisfactory “to be required to shoe-horn” privacy claims over unauthorised media publication of photographs into the breach of confidence action. On substance, the European Court of Human Rights has found that the Lords’ narrow view of privacy caused the UK to be in breach of the ECHR.37 The common law need not work this way. American courts from the early 20th century, and Canadian and New Zealand courts from the late 20th and early 21st, created privacy torts at common law to protect personality and dignity, for example by preventing commercial use of a private individual’s image. 38 From the mid  Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 (HL); Campbell v MGN Ltd (n 8); followed in Ash v McKennitt [2006] EWCA Civ 1714; [2007] EMLR 4; OBG Ltd v Allan [2007] UKHL 21; [2007] 2 WLR 920. 36  Eg B Markesinis, C O’Cinneide, J Fedtke and M Hunter-Henin, “Concerns and Ideas About the Developing English Law of Privacy (And How Knowledge of Foreign Law Might Be of Help)” (2004) 52 Am J Comp Law 133 at 136 and 137: “This expectation that a cautious, pragmatic approach is preferable to one based on the application of a general principle of privacy is very questionable. . . . [The recent] development of the law of confidence . . . is only the latest and unsatisfactory attempt to stretch the fabric of an existing tort to fit privacy within its straitjacket.” 37   Douglas v Hello! Ltd [2005] EWCA Civ 595; [2006] QB 125 at para 53, per Lord Phillips for the court (affirmed [2007] UKHL 21; [2007] 2 WLR 920); Wainwright v UK [2006] ECHR 807, awarding damages against the UK for its failure to protect the applicants’ rights under ECHR, Art 8. 38  Eg Pavesich v New England Life Insurance Co 50 SE 68 (Ga SC 1905); Dyne Holdings Ltd v Royal Insurance Co of Canada (1996) 135 DLR (4th) 142 (PEI AD); Hosking v Runting [2005] 1 NZLR 1 (CA); Rogers v Television New Zealand Ltd [2007] NZSC 91; Restatement of the Law of Torts (2nd edn, 1977), para 652C. Contra: eg Roberson v Rochester Folding Box Co 64 NE 442 (NY AD 1902); Hung v Gardiner 2002 BCSC 1234 at para 110, affirmed on other grounds 2003 BCCA 257 (but note that both New York in 1903 and British Columbia in 1968 created a privacy tort by legislation, the latter comprehensively, the former merely against commercial taking of anyone’s name or image). Cf Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at para 132, admitting that Australian common law could develop such a tort (albeit not for corporations) despite the comments against a general right of privacy in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. See also Vaver, (2006) 122 LQR 362; J Pinckaers, From Privacy Toward a New Intellectual Property Right in Persona (1996); Section 8.7.1(a) below. 35

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 415 1950s courts in South Africa and the former Rhodesia achieved parallel results by developing the actio iniuriarum of Roman law. 39 The issue is essentially one of judicial method. The negligence action too has ebbed and flowed. Accumulated experience has cyclically replaced cautious pragmatism with new principles, followed by periods of refinement, consolidation and reassessment. All it takes is time and imaginative judges – more Reids, fewer Simondses. Privacy still awaits its Reids in hope. 8.6.4  Personality generally Personality as such is unprotected by the copyright law or performers’ rights. Hamlet could declare “What a piece of work is man!”,40 and so he is; but no court would declare man a piece of work for copyright purposes.41 Nor does copyright exists in aspects of personality – an individual’s name, nickname, voice, image or other natural features – however “original” they seem. In saying “le style est l’homme même,” Buffon also spoke good copyright law; the distinctive way a person speaks, writes or creates does not attract copyright.42 Copyright protects the expression of that style, the original work created by an individual; and passing-off law may protect the style itself where the way it is marketed might confuse the public between products or businesses. Otherwise an artist may freely recycle his individuality for different works or clients without  Starting from the 1950s in O’Keeffe v Argus Printing & Publishing Co Ltd 1954 (3) SA 244 (C) and S v I 1976 (1) SA 781 (R AD); see now, eg, Van Vuuren v Kruger 1993 (4) SA 842 (AD) and National Media Ltd v Jooste 1996 (3) SA 262 (AD), affirming privacy as a right of personality vindicated by the actio iniuriarum. In commencing the second of his two judgments for the court, Harms JA quoted extensively from the opening paragraphs of Warren and Brandeis’s article (n 34), adding “these words . . . a century ago, were well said” (Jooste at 268). 40   Hamlet, II,ii. 41  No temporal court may declare the Deity as man’s author; curial jurisdiction is “of the earth earthy”: Cummins v Bond [1927] 1 Ch 167 at 175 (declaring the medium, rather than her spirit, the author of written channellings). So any authorship of the “original work” that comprises a person would presumably reside in the individual’s parents as joint authors. But no court would recognise the parents as copyright owners of their progeny, holding the exclusive (and transferable) right of reproduction (either in copyright or in biology) for 70 years past the year the later of them dies. Similarly remote is any moral rights claim by parents to prevent their offspring from body piercing, tattooing, undertaking plastic surgery or any other “distortion, mutilation or other modification” of “their” work. 42   Norowzian v Arks Ltd (No 2) [2000] FSR 363 (CA); Cummins v Vella [2002] FCAFC 218 (Full Fed Ct, Aust): no copyright infringement where artist merely copies another’s style, subject and technique. Similarly for passing off: Marengo v Daily Sketch & Sunday Graphic Ltd [1992] FSR 1 (CA, 1946), reversed on other grounds (n 2). 39

416

r i gh t s of p e rs o n al i t y

embroiling him or them in legal proceedings.43 Performers also may prevent their performances from being recorded or copied. So aspects of their individuality revealed in performance are indirectly protected by these rights. 8.6.5  Persona Whether an artificial character or persona that an individual creates – Dame Edna Everage or Boy George – is protected by copyright is a difficult question. Neither the individual nor his therapist may be able to answer how far his persona is artificially “created” or is simply the individual being himself. Who is the real Billy Connolly: the stage persona we see or (one hopes) someone else? The point may have IP significance since a distinctive character, such as that created for a comedy routine or a television sitcom, may be protected as a substantial part of the copyright dramatic work in which it appears. A Quebec court so held in banning, as copyright infringement, the unauthorised use of a sitcom character in an adult video.44 The case was brought not by the person playing the character (who was also its author) but by the production company, which held copyright in the films. The character’s author might however have brought a separate moral rights claim for prejudicial distortion of his work. Elements of persona – a specific hairstyle45 or an overall look achieved by prosthetics46 – may also be protectable. A person’s scent, whether naturally or artificially produced, is however not the subject of copyright.47 Nor, oddly it seems, is a pop singer’s facial make-up. The attempt to protect it as a painting failed because the 43   GMG Radio Holdings Ltd v Tokyo Project Ltd [2005] EWHC 2188 (Ch); [2006] ECDR 3: no passing off where same artist designs similar-style compact disc covers for competitors with distinctly different trade marks on their products. 44   Productions Avanti Ciné-Vidéo Inc v Favreau (1999) 1 CPR (4th) 129 (Que CA) on provisions comparable to the CDPA. Under former law, see Tate v Fullbrook [1908] 1 KB 821 at 832 (CA), holding that a character in a comic routine was not a dramatic work but might be an element to take into account in determining whether a substantial part of the routine had been taken. 45  At least in France: A Lucas and P Kamina, “France” in P E Geller and M B Nimmer (eds), International Copyright Law & Practice (2005) at para 2[2][b]. 46   Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134 (Ch), interlocutory injunction; 682330 Ont Inc v Cineplex Odeon Corp (1990) 33 CPR (3d) 408; affirmed ibid 413 (Fed Ct, Can): sculpture for prosthetics for Phantom of the Opera held, on preliminary motion, protectable by copyright. 47  UK and US law, agreeing with French law and disagreeing with Dutch, would hold that scents are not copyright: Bsiri-Barbir v Haarmann & Reimer [2006] ECDR 380 (Cour de Cass.) (“la simple mise en œuvre d’un savoir-faire”, not “la création d’une forme d’expression”); L’Oréal SA v Bellure NV [2006] EWHC 2355 (Ch); [2007] ETMR 1 at para 13 (“It is common ground that it is not an infringement of

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 417 court claimed paintings were things that went on walls.48 This view confuses message with medium and is also historically untrue: body painting is one of the oldest known arts. It also seems odd that copyright in irezumi – Japanese body tattooing – may depend upon whether or not it is (or is intended, when created, to be?) displayed on its being detached from the body after death.49 8.6.6  Name If, after prolonged labour, one Joan Blair names her newborn Tony, the former British Prime Minister has no copyright (or other) complaint against her or the babe.50 Quite apart from anything else, neither forename nor surname was the Prime Minister’s creation. Nor is a word or short combination of words usually copyright. The product may be one’s own but still, in law, it is a poor ill-favoured thing: too little in size, too little in the skill or judgment needed for it to become an “original literary work” under most copyright laws.51 In a case where Elvis Presley’s estate failed to register the late singer’s name as a UK trade mark over opposition from an unrelated registrant, Laddie J said: “There is nothing akin to a copyright in a name. This has been part of our common law for a long time. . . . Even if Elvis Presley was still alive, he would not be entitled to stop a fan from naming his son, his dog or goldfish, his car or his house ‘Elvis’ or ‘Elvis Presley’ simply by reason of the fact that it was the name given to him at birth by his copyright in the United Kingdom to manufacture a perfume that mimics the smell of a successful fragrance”); contra: Kecofa BV v Lancôme Parfums et Beauté et Cie SNC [2006] ECDR 363 (SC Netherlands, 1st Chamber).  Trade mark registration is available in the US for non-functional scents, (eg plumeria for sewing thread but not plumeria as a scent for perfume): J Gilson and A Lalande, “Cinnamon Buns, Marching Ducks and Cherry-Scented Racecar Exhaust: Protecting Nontraditional Trademarks” (2005) 95 Trademark Rep 773 at 795ff. In the EC and EEA, scents cannot be “represented graphically” (eg Trade Marks Act 1994 (TMA), s 1(1)) and so are unregistrable: D Vaver, “Recent Trends in European Trademark Law: Of Shapes, Senses and Sensation” (2005) 95 Trademark Rep 895 at 899–901; Eden v OHMI (T–305/04) [2005] EUECJ (CFI, 27 October 2005) (“smell of ripe strawberries” not registrable for toiletries, clothing and accessories); cf L’Oréal v Bellure, above, at paras 14 and 164 (“a smell can, in theory, be protected as a trade mark” but “the smell of a perfume is not capable of being protected by the law of passing off”). 48   Merchandising Corp of America Inc v Harpbond [1983] FSR 32 (CA). 49  R Brain, The Decorated Body (1979), p 64. 50  Indeed, anyone can change his or her full name to Tony (or Toni) Blair without Prime Ministerial recourse: Du Boulay v Du Boulay (1869) LR 2 PC 430. Fraudulent use may, of course, be stopped. 51   Exxon Corp v Exxon Insurance Consultants Int’l Ltd [1982] Ch 119 (CA): “Exxon” not copyright, although protected under trade marks or passing-off law.

r i gh t s of p e rs o n al i t y

418

parents. To stop the use of the whole or part of his name by another he would need to show that as a result of such use, the other person is invading some legally recognised right.”52

Adding “©” to one’s name, or even including “©” as part of one’s name, 53 makes no difference: the symbol may notify the world of the claimant’s intentions but creates no copyright where none otherwise existed. Copyright might nevertheless (pace Laddie J) be a relevant “legally recognised right” where the name is recorded as, or as part of, an artistic work. Artistry may be involved in representing a name in a logo; if so, the design is protected by copyright as an original artistic work and copying its artistic features may infringe copyright. More artistic skill is required outside the UK and most other Commonwealth countries for a work to be held original. A single stylised letter “R” or “B” has been held original in Australia, applying UK standards (not copied, and with the requisite modest modicum of skill and labour);54 not so in the United States, where originality implies creativity.55 Where copyright exists, it is usually owned, either in law or equity, by the firm that employed the designer whether as an employee or freelancer.56 8.6.7  Signature An artistically produced individual’s signature, for example an intricate one in Chinese or Japanese calligraphy, may have artistic

52   Elvis Presley Trade Marks [1997] RPC 543 at 547 (Ch); affirmed [1999] RPC 567 (CA). 53  As one “Kent © Norman” has apparently done in the US: see Kent © Norman v Reagan 95 FRD 476 (D Ore, 1982), a case noteworthy only for the miscellany of personal grievances the claimant alleged against President Reagan; duly dismissed by a federal court for lack of prosecution – as good a ground as any. 54   Roland Corp v Lorenzo & Sons Pty Ltd (1991) 22 IPR 245; affirmed (1992) 23 IPR 376 (Full Fed Ct, Aust). 55   Muller & Co v New York Arrows Soccer Team Inc 802 F 2d 989 (8th Cir, 1986), affirming the US copyright register’s refusal to accept as artistic a mark comprising the New York Arrows’ arrow design over the word “Arrows” in cursive script. The logo could, of course, be protected under US trade mark or unfair competition law.   Canada is somewhere in between the UK and the US on this question. Artistic drawings of an elephant and a bear on chocolate wrappers were there held original and copyright, but a red shield and words comprising a word trade mark in plain, sans-serif script were each held not to be protectable: Kraft Canada Inc v Euro Excellence Inc [2004] 4 FC 410 at paras 33–37;, not challenged on appeal [2006] 3 FCR 91 (CA) and further appeal 2007 SCC 37. 56   R Griggs Group Ltd v Evans [2003] EWHC 2914 (Ch); [2004] ECDR 15; affirmed [2005] EWCA Civ 11; [2005] ECDR 30 (commissioned work); Vitof Ltd v Altoft [2006] EWHC 1678 (Ch) (director trustee of copyright for company in work he created both before and after formation of company).

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 419 copyright. Picasso’s signature has qualified, perhaps because of a widespread (if aesthetically doubtful) view that any doodle of his is artistic. 57 “Artistic” however hardly describes the ordinary scrawl that is most people’s signature. Most of us do not do art when we sign; we do writing. Some of us may be artistic Messieurs Jourdain and create art without knowing it; but the act of signing seems a marginal case for the application of that theory. Signing is a literary, not artistic, act; nor, however multi-barrelled our name and florid the result, should it qualify as original. In a Scottish case a century ago, Lord Dundas, after hearing evidence, denied that even careful copperplate qualified either as a drawing or as original: writing has no “claim to a place – be it even a humble one – in the sphere of the fine arts . . . as a product of artistic faculty”. 58 He would have expressed himself even more strongly on today’s scribbles. Even without the benefit of the Scottish case, a UK trade mark hearing officer more recently doubted that a signature – in that case, Anne Frank’s – could be copyright; and, even if it were, he held that copyright could not protect the words themselves. 59 Although not copyright, a signature may be protected against the use of a similar form that leads people into misattributing the first work. So a cartoonist with the pen-name of Kem (his initials) could stop a later cartoonist from innocently using “Kim” in a rival paper, especially where both worked in similar styles and people familiar with Kem’s work thought it was his.60 The signature may also be considered a substantial part of a copyright work. In the case mentioned above involving Victoria and Albert, the royal couple were able, as part of their suit for infringing copyright in their unpublished etchings, to restrain the separate supply of impressions of their autographs taken from those works.61   Picasso v Thomas [2001] ATMO 84 (Aust TM Off) (Picasso’s signature held, on the evidence, to be copyright, but not copied by a pizza parlour for its trade mark); Picasso, succession v PRC Inc [1996] FCJ No 969 (Fed Ct, Can) (interlocutory injunction against restaurant for anticipated use of Picasso name, signature and art works, on seriously arguable, though unspecified, “intellectual property” grounds); cf Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd [2003] FCA 878 at paras 107–109; affirmed [2004] FCAFC 201 (Full Fed Ct, Aust) (four Chinese characters in newspaper masthead protected as an original painting). 58   Millar & Lang Ltd v Macniven & Cameron Ltd (1908) 16 SLT 56 at 58 (OH). 59   Anne Frank Trade Mark [1998] RPC 379 at 389 (TMO), following Elvis Presley Trade Marks (n 52). 60   Marengo v Daily Sketch & Sunday Graphic Ltd (n 2); see also Canadian Picasso, succession v PRC Inc case (n 57). 61   Prince Albert v Strange (n 30). The separate impressions of the autographs might equally be restrained as benefits derived from an act of infringement: see Chappell & Co Ltd v Columbia Graphophone Co (n 30). 57

420

r i gh t s of p e rs o n al i t y

8.6.8  Image An “original” photograph of a person can be copyright. In the UK, little skill beyond pointing and shooting is needed to show originality.62 Elsewhere, greater photographic ability – how much is not always clear – may be insisted on before copyright attaches. A person who appears in a photograph, film or portrait can protect his image where he owns copyright in the work; ie (1) if he authors the item involved – takes the photograph himself, paints a self-portrait, or makes or produces the film that features him; (2) if he employs someone to do those things under an employment contract.63 Where the photograph was taken by another person, whether with consent or “on the sly”, the subject can do nothing under copyright law, although he may have a privacy or confidence claim for an unauthorised publication.64 He cannot ordinarily compel the copyright owner to transfer or license the right to him.65 Where the work is done by a freelancer “on spec” or on order, the position varies considerably among states. The Copyright Act 1911 (since repealed) had a default rule which allocated copyright in a commissioned portrait, engraving or photograph to the person placing the order.66 That rule went in 1988 with a new UK Act. The standard default rule, that the author first owns copyright, now applies equally to commissioned work. A narrow exception bans unauthorised exhibition or publication of a photograph or film commissioned for private and domestic purposes.67 Fortunately for personality interests, courts have not treated these provisions as exhaustive. Whatever the copyright statute formally provides, portrait painters and photographers working to order may find they cannot do anything they want with the work, or even that they do not own the copyright. Old law that stops them from acting outside the express or implied terms under which they were allowed to do their work continues undiminished, whether the occasion is domestic or commercial and whatever the nature of the work   Antiquesportfolio.com v Rodney Fitch & Co [2001] FSR 345; [2001] ECDR 5 (Ch) (photographs of single static household item, eg jug, sofa or candelabra); Oriental Press Group Ltd v Apple Daily Ltd [1997] HKCFI 49 (ordinary news photos); damages increased on appeal at [1998] HKCFA 32. 63   CDPA, ss 11(1) and (2). 64   Pollard v Photographic Co (1888) 40 Ch D 345; Campbell v MGN Ltd (n 8). 65   R (on the application of Ahmed) v Secretary of State for the Home Department [2004] EWHC 158 (Admin); [2005] 1 Prison LR 6: prisoner or wife cannot compel prison authorities to license use of photographs taken of their prison wedding by a prison officer, where the Crown owned the copyright. 66   Copyright Act 1911 (UK), s 5(1)(a). 67   CDPA, s 85; S Frankel, “The Copyright and Privacy Nexus” [2005] VUWLR 21. 62

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 421 done.68 The implicit understanding under which work is done may even shift copyright ownership in the work to the commissioning person.69 So the artist who painted a portrait of a restaurant owner to hang in his shop could not complain when the restaurateur used the picture to decorate the eatery’s menus, match covers and postcards. The court actually reached much the same result as the 1911 UK Act would have dictated: the restaurateur was found to be the beneficial owner of the copyright and entitled to a transfer of the legal interest. The court reasoned that the subject of a portrait would usually expect to have complete control of the work, and that no-one expected the artist to be able freely to multiply, or let others multiply, copies of the painting as he wished.70 The result of the case, however, creates an anomaly. A person who commissions two portraits, one for her office and one for her home, may end up with different rights over each: full copyright on the first,71 but only a carve-out from the artist’s copyright on the second.72 The outcome is even more arbitrary if the subject changes her mind and switches the works round after receiving them. Faced with this situation, a court would likely treat both works alike – but how would depend on the facts. 8.7  Trade names and trade marks Personal names often feature in corporate names and trade marks. Since buyers identify more easily with people than things, marketers may try to give their firms and marks a “personality” – a face or identity. One way to do that is to personalise the mark. So in its advertising Nike tries to make its “tick” mark feel human or actually associates it with famous athletes.73 A more traditional strategy is to use a person’s name or other identifiers for the business name or mark. The name may sometimes be invented: there was no real Sara Lee behind the eponymous maker of processed food. Other times founders find it natural, a point of pride, to feature their name in their trading style or marks. A century ago, Mr Marks and Mr Spencer joined to run a little shop in Manchester that is today’s Marks & Spencer plc trading empire. The company protects its custom with a thicket of registered Marks & Spencer (as well as other) trade marks; and even if it did not, its   Pollard v Photographic Co (n 64).   R Griggs Group Ltd v Evans (n 56). 70   Durand v Molino, unreported, 30 July 1999, Ch D, per Pumfrey J. 71   Ibid. 72  See n 67. 73   C Lury, Brands: The Logos of the Global Economy (2004), p 90.

68 69

422

r i gh t s of p e rs o n al i t y

reputation is well enough established that anybody seeking to market almost anything under that name in the UK will be passing off, even though their real surnames happen to be Marks and Spencer. Preliminary acts such as setting up a website may equally be stopped.74 The general principle is that it is wrong to injure another’s business by saying or implying that one’s own business is connected with it. We have already noticed the “own name” exception: everyone’s “natural” right to use his name in business. So a century ago the Dunlop brothers could run their little Kilmarnock car and repair business as the Dunlop Motor Co over protests from the mighty Dunlop Pneumatic Tyre Co Ltd; for in Kilmarnock “only a thoughtless person might unwarrantly jump to the conclusion”75 that the two businesses were connected, given the many Dunlops found in Scotland. But the “own name” exception has its own exceptions: it does not apply if (1) the user does something “more than that to cause confusion with the business of another”, or (2) he acts dishonestly.76 In practice today, these exceptions to the exception almost swallow it whole. An unsympathetic court can always find that a defendant did “something more” or less than use his own name. The second entrant may even have to use his full name, not just a forename or surname, if that is the only way to avoid confusion.77 The exception may continue where a company takes over the goodwill of an existing business with a personal trading name, at least if the named person has some substantial role in the new company.78 But the exception does not apply if the prior goodwill belongs to the transferor’s employer, or in respect of any name first selected or used for a company as its trading name. Nor does it apply where public deception occurs or the name is used as a trade mark rather than a trade name.79   British Telecommunications plc v One In A Million Ltd [1998] EWCA Civ 1272; [1999] 1 WLR 903. 75   Dunlop Pneumatic Tyre Co Ltd v Dunlop Motor Co [1907] AC 430 at 438 (HL), per Lord James, quoting from Lord Low’s judgment in the Court of Session. 76   Joseph Rodgers & Sons Ltd v W N Rodgers & Co (1924) 41 RPC 277 at 291 (Ch), approved by the majority (other than Lord Denning) in Parker Knoll Ltd v Knoll Int’l Ltd [1962] RPC 265 (HL). 77   Joseph Rodgers & Sons Ltd v W N Rodgers & Co (n 76); Biba Group Ltd v Biba Boutique [1980] RPC 413 at 420 (Ch). 78   Cf Kerly’s Law of Trade Marks & Trade Names (14th edn, 2005), para 14-284; Parker Knoll Ltd v Knoll Int’l Ltd (n 76). 79   Fine Cotton Spinners & Doublers’ Association Ltd v Harwood Cash & Co Ltd (n 5); Kingston Miller & Co Ltd v Thomas Kingston & Co Ltd [1912] 1 Ch 575; Marengo v Daily Sketch and Sunday Graphic Ltd (n 2) at 251; Asprey & Garrard Ltd v WRA (Guns) Ltd (n 4). 74

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 423 More basically, when can a person today honestly insist on using his name when he knows the result is public confusion and trade injury? In the 19th century, the “own name” exception may have operated as an “absolute right”, but today it is a frail reed.80 Its very existence has been criticised as inconsistent with the informational requirements of modern marketing. It may nevertheless nominally hang on because of its cousin provision in the Trade Marks Act 1994 (“TMA”): “the use by a person of his own name or address [does not infringe a registered trade mark] provided the use is in accordance with honest practices in industrial or commercial matters.”81 Since statutes that use the word “person” (as distinct from “individual” or “natural person”) usually include corporations as well, the passingoff and trade mark rule may eventually blend into one: that the honest and reasonable use of one’s trading name, as a trade mark or otherwise, is not infringement or passing off even if some public confusion results.82 To run different versions of the “own name” rule or exception depending on whether the claim is passing off or trade mark infringement would perpetuate or create fine and unnecessary distinctions.83 In practice, as is true with most such defences, all will turn on the facts of the individual case. Whoever seems to be acting more reasonably, or at least less unreasonably, tends to be preferred. After all, the public is quite used to people of similar names operating in different lines of work. Just because one name may become more famous than another should not give its owner the right to close others down or obstruct new entrants who wish to use the same name for their business. Lurking behind most cases are questions such as the following: (1) Is it a fair business decision for the second entrant to use his name in the type of business he is carrying on? Dr Ronald McDonald can hardly stop another Dr Ronald McDonald from practising medicine under his name.   Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159; [2004] ETMR 56 at paras 109–112. 81  TMA, s 11(2)(a); Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, Art 6(1)(a); Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark, Art 12(a). 82   Reed Executive plc v Reed Business Information Ltd (n 80) at paras 114ff, effectively continuing the doctrine of honest concurrent use found under the Trade Marks Act 1938 (UK); see also Parker-Knoll Ltd v Knoll Int’l Ltd (n 76), per Lord Denning (dissenting), who thought the common law and 1938 statutory rule were (and should be) identical. 83  A comparable statutory rule invites common law mimicry: cf Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 at 743 (HL). 80

424

r i gh t s of p e rs o n al i t y

(2) Is the way the second entrant uses the name reasonably designed to minimise deception and confusion? There is often an element of choice in how we present our names.84 To return to the Marks & Spencer example: Jane Marx and Bob Spencer are legally handicapped if today they wish to start up a business jointly under both their birth names. They may be as proud of their names as their earlier namesakes, but pride does not excuse telling lies, even unintentionally. Second comers can usually find some honest way to use their names as trading styles. They could, for example, trade as Bob Spencer & Jane Marx, especially if the letterpress, colouring and other features they use to present the business differ from how Marks & Spencer plc presents its brand to the public. But if Marks & Spencer customers are misled by the way Bob and Jane market their business and their products into believing that Bob and Jane are connected with Marks & Spencer, the new traders can be stopped from harming Marks & Spencer’s goodwill. If they cannot find a way to trade without misleading Marks & Spencer customers, Bob and Jane may just have to forsake using their surnames in trade.85 They could still use “Bob & Jane” as their business name (unless there is another “Bob & Jane” business already out there); or they must find some arbitrary name or symbols for their business. 8.7.1  Registration Registration of a name mark provides better cumulative protection than would exist at common law. Enforcement is broader and easier against second entrants who use the same or a similar name in a similar line of trade. UK law formerly discouraged the early registration of common names such as Smith and Jones – and Marks and Spencer, for that matter – because of a concern that other Smiths, Jones, Marks and Spencers would be hindered from trading under their own names. Registration was allowed only if the name was relatively rare, so nobody else with that name would likely want to start a similar line of trade, or if the mark became distinctive of the business through use. EU law has overruled those concerns. Anyone can apply to register a personal name, whether their own or not, before or after using it. 84 So when the McAlpine family divided its construction business into two companies, Alfred McAlpine Ltd and Robert McAlpine Ltd, the latter could stop the former from rebranding itself simply “McAlpine” because of potential market confusion: Sir Robert McAlpine Ltd v Alfred McAlpine plc [2004] EWHC 630; [2004] RPC 36 (Ch). 85   Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus (Pty) Ltd [1985] FSR 434 (N), affirmed with modification [1986] FSR 479 (SA AD).

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 425 It is unregistrable only if the relevant consuming public would find it undistinctive for the class of goods or services for which registration is sought.86 Personality protection goes to the swift; the second comer may be unable to register his interest,87 and may be indulged rather than protected. (a)  Celebrities In 2000 the UK trade marks office refused to register Diana, Princess of Wales as a trade mark at the suit of Diana’s estate. The hearing officer said the princess had no right of publicity during her life, since all knew of her policy (and that of the royal family generally) of not lending one’s name or image for commercial exploitation. Her estate got no better rights than she had during her life.88 Yet just a few years later, sports and entertainment celebrities are registering their name and image as UK trade marks across wide ranges of goods and services.89 The registry continues to refuse registration for items such as photographs or posters where the public would think the name or image simply described or depicted the person in the photograph or poster.90 But this stand seems to represent the last gasp in trying to hold the line against equating registration with full American-style publicity rights. For 86   Nichols plc v Registrar of Trade Marks (Case C–404/02 ) [2004] ECR I–8499 (ECJ). 87 Lorna Morgan Trade Mark (15 Oct 2004, LC Appointed Person), rejecting registration of that mark for women’s clothing to a company with “glamour model” Lorna Morgan as its director, over opposition from the owner of the well-known Morgan registered mark for such clothing. The registration was, however, accepted for other classes of goods. 88   Diana, Princess of Wales’ Trade Mark Appn [2001] ETMR 25 (TMO); see also A Story, “Owning Diana: From People’s Princess to Private Property” ([1998] 5 Web JCLI, http://webjcli.ncl.ac.uk/1998/issue5/story5.html) in D Vaver, Intellectual Property Rights: Critical Concepts in Law (2006), vol 4, pp 310ff. Nor can Prince Charles require pubs called “The Prince of Wales” to change their names: Queen Diana Trade Mark [1991] RPC 395 (Jacob QC for Secretary of State for Trade), dicta. 89  Personal features of those with fame are increasingly being protected by the common and civil law against unauthorised commercial use throughout Europe (including England), and beyond: eg Pinckaers, From Privacy Toward a New Intellectual Property Right in Persona (n 38); J Klink, “50 years of publicity rights in the United States and the never-ending hassle with intellectual property and personality rights in Europe” [2003] IPQ 363; I Blackshaw and R Siekmann (eds), Sports Image Rights in Europe (2005); N Wee Loon, “Trade Mark Protection for Personality and Characters” in F Grosheide and J Brinkhof (eds), Intellectual Property Law 2004: Articles on Crossing Borders Between Traditional and Actual (2005), on Singapore, China and other Asian jurisdictions. 90   Linkin Park LLC’s Appn (7 Feb 2005, LC Appointed Person); Alex Ferguson’s Appn (23 Sep 2005, TMO), further appeal adjourned (26 Mar 2006, LCAP), setting out UK practice as it appears in the Trade Mark Office manual.

426

r i gh t s of p e rs o n al i t y

any registration of a celebrity’s name or image involves some wilful blindness of traditional doctrine. For example, Elvisly Yours is apparently validly registered as a trade mark to a company unconnected with the Presley estate for a wide variety of bric-àbrac.91 The products are all bought as Elvis memorabilia; nobody cares who makes or sells them. Yet the mark must have been registered on the basis that it denoted or would denote the trader behind the goods, not the pictures on them; those pictures are, however, never of Johnny Hallyday. In practice, trade marks therefore have already moved on to protect celebrity rights. The US registry has long accepted the names of individual performers and musical groups such as Abba for marks for recordings over which the performer or group exercised quality control.92 Case law reveals that the UK and Australian registries have acted similarly in respect of records by both single artists and bands. Australia has registered Rolling Stones, and the UK registry has registered Bon Jovi.93 The scope or validity of these registrations has been challenged by unauthorised copiers who have asked whether the name on the record worked as a trade mark or just identified the performer. If the latter, the registration was invalid. If the former, the copier then would ask: did the defendant use the name as a trade mark (infringement) or just to identify the performers (no infringement)? Decisions have so far gone either way, depending, as it is said, on “essentially a question of fact (of a fairly complex sort)”.94 But record company lawyers know enough about label design to structure the facts in such a way that would encourage judges to find validity and infringement. Thus are celebrity rights de facto progressively created, and officially sanctioned by trade mark registries and eventually courts. (b)  Artist and designer marks Suppose David Hockney registers his signature as a mark for paintings and shirts. He continues signing his art and allows his name to be stuck on shirts the design of which he approves. He sells his business   Elvis Presley Trade Marks (n 52).   Re Polar Music Int’l AB 714 F 2d 156 (Fed Cir, 1983) (Abba). The Drifters, The Platters and New Edition are among the many other groups that have long held US registrations: see Musidor BV v Tansing (1994) 123 ALR 593 (Full Fed Ct, Aust). 93   R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 (Bon Jovi for records); Musidor BV v Tansing (n 92) (Rolling Stones for records); cf Christodoulo v Disney Enterprises Inc [2005] FCA 1401, further proceedings [2006] FCA 902 (Fed Ct, Aust) (“Hunchback of Notre Dame” used descriptively for movie title did not infringe registration for entertainment services). 94  R v Johnstone (n 93) at para 87, per Lord Walker. 91

92

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 427 and its marks to X. How does one answer these questions: (1) can X validly apply the mark to paintings not painted by Hockney and shirts not approved by him; (2) must Hockney start signing his future work “the artist formerly known as David Hockney”? An initial reaction may be that the Hockney mark in X’s hands would deceive the public and so cannot be valid, unless X tells all of its change of meaning: “[d]eception is deception, and the fact that it is brought about by the use of a trade mark duly acquired does not make it anything else.”95 So it was said that “[i]f an artist or an artisan has acquired by his personal skill and ability a reputation which gives to his works in the market a higher value than those of other artists or artisans, he cannot give any other persons the right to affix his name or mark to their goods, because he cannot give to them the right to practise a fraud upon the public.”96

This statement does not apparently apply to the Trade Marks Act 1994. Elizabeth Emanuel, who designed Diana’s wedding dress, sold her eponymous company and trade mark, together with its accompanying goodwill, to a buyer who employed her for a month. She then left after a disagreement. Another company to which the mark was assigned applied to register a further mark Elizabeth Emanuel in capital letters in a number of classes. Emanuel opposed the registration and also applied to invalidate the earlier mark. She lost before the European Court of Justice and, consequently, before the UK trade mark authorities. In a ruling affecting trade marks throughout the EC and EEA, the ECJ accepted that the registrant would be “fraudulent” if it falsely suggested the goods were designed by Emanuel. Yet that fraud did not affect the mark or registration: only deception as to the nature, quality or geographical origin of the goods would do that.97 Admittedly, the designer of goods may in fact be a different person from the person who marketed them and took responsibility for their quality. Courts and trade mark registries may understand that distinction. So may consumers. Yet they may 95 Heublein Inc v Continental Liqueurs Pty Ltd (1960) 103 CLR 435, refusing registration for vodka of a Smirnoff label featuring Russian insignia, where the registrant was unconnected with the original Russian distillery. 96 Leather Cloth Co v American Leather Cloth Co (1865) 9 HLC 523 at 545, approved in Heublein Inc v Continental Liqueurs Pty Ltd (n 95). 97 Emanuel (Approximation of laws) (C-259/04) [2006] EUECJ, applied in Re Continental Shelf 128 Ltd’s Trade Mark Appn No. 2161562B (Appointed Person, 3 November 2006). Note, however, that Art 3(1)(g) of the EC Trade Marks Directive and corresponding Regulation (both n 81) seems non-exhaustive, rendering unregistrable or invalid marks “which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service”.

428

r i gh t s of p e rs o n al i t y

believe a designer mark also to mean that goods bearing that name are designed or at least endorsed by the eponymous designer. What’s more, the marketer often intends that they believe that.98 Sometimes a personal name on a product may lose its personal connection and no longer suggest that its bearer continues to be connected with it. For example, in the late 19th century, Samuel Beeton sold the copyright and goodwill in Beeton’s Christmas Annual to a publisher. The latter was held to acquire the right to continue to issue annuals under that name even when Beeton was no longer employed by it. Beeton could advertise the lack of connection if he wished, but could not issue a competing annual under the Beeton name.99 Beeton differs from Emanuel because the court seemed to accept that the public had come to treat Beeton’s as an arbitrary mark,100 just as the public did with Harrod’s when Harrod junior retired from the company and floated it on the stock exchange in the late 19th century. The public did not expect Beeton to have any input into the work, any more than it expected Harrod to be any longer in charge of overseeing the company’s stock. In Emanuel, by contrast, the tribunals accepted that a large sector of the public continued to act on the belief that Emanuel still was designing or approving products bearing her name. We are faced with the unpalatable truth that contract can trump third party fraud, and did so in Emanuel. Fraud in fact may not always be fraud in law. English law has long accepted that two or more entities can concurrently use an honestly acquired trade name or mark. Any of them can stop a third party interloper from passing off goods or wares as the claimant’s. Such cases are really, it is said, “cases of tolerated deception or a tolerated level of deception”.101 The same thought seemed to animate the ECJ, and the UK trade mark tribunal that followed the ECJ ruling, in Emanuel. Yet instances of  The court also seemed to distinguish between the mark as a commodity (in rem) and personal conduct that might disentitle its holder from enforcing the registration or succeeding in an application to register: Emanuel (Approximation of laws) (n 97) at para 50. How this distinction, which the ECJ did not elaborate, may play out in practice is unclear. Telling lies about a branded product may disentitle the liar from suing for passing off: Bile Bean Mfg Co v Davidson (1906) 8 F 1181; (1906) 23 RPC 725 (Ct Sess). The rule is a part of a wider principle, applicable to both registered and registered marks, that no one may benefit from his wrong: Ford v Foster (1872) LR 7 Ch App 611; Sterling-Winthrop Group Ltd v Farbenfabriken Bayer AG [1976] RPC 469 (HC Ire). May (must?) national courts apply this rule in a case like Emanuel’s in both national and Community trade mark cases? 99   Ward v Beeton (1874) LR 19 Eq 207. Beeton was the husband of Mrs Beeton of cookbook fame. 100  See, eg, Hall v Barrows (1863) 4 De GJ & S 150 at 155–158 (LC). 101   Phones4u Ltd v Phone4u.co.uk [2006] EWCA Civ 244; [2007] RPC 5 at para 21, per Jacob LJ for the court. 98

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 429 tolerated or tolerable deception should be few and far between in a law that proclaims consumer information and protection as major goals. In cases such as Emanuel, does a mark that misleads the public about a relevant quality of the goods to which it is attached – who designed them – really serve its essential function of informing or protecting consumers? Buyers often pay a premium for this quality and are defrauded if they do not get it. If the ECJ is right, the European directive and regulation on trade marks102 may need amending. More generally, can the pretence that all marks are alike be sustainable in the long run? Perhaps some marks are so personal that they should not be assignable;103 or, if they are assignable, at least their change of meaning should be immediately notified to the relevant public to avoid deception and potential invalidation. The ECJ plainly had no sympathy for Emanuel. It is not alone. In like cases, courts in France, England and Canada have also preferred successors over sellers or former employees.104 After all, Elizabeth got a price that included the value of the marks and was trying partly to renege on her deal, offering the buyer neither refund nor discount. But such behind-the-scenes inter partes issues do not affect consumer perception of the mark. In addition, buyers can protect themselves by contract, if they choose and the seller is willing, against the consequences of trade mark invalidity. The well-known default rule is that sellers do not warrant the validity of any IP they transfer; the buyer just succeeds to whatever rights the seller had and frees itself of any infringement claim of the seller. The main purpose of the trade mark system ought not to be to protect trade mark buyers and sellers, who usually know how to look after themselves in IP matters. It ought to be to protect consumers, who usually do not know how, and who are unrepresented in trade mark disputes. The ECJ decision in Emanuel did not drive Elizabeth out of business. As earlier noted, she could still use her own name and address without infringing the Elizabeth Emanuel marks if she acted “in accordance with honest practices in industrial or commercial matters”. In fact, Elizabeth has a website  See n 81.   Just as a popular silk’s goodwill is personal and thus unassignable on his leaving practice for the Bench: see Jacob LJ’s example in I N Newman Ltd v Adlem [2005] EWCA Civ 741; [2006] FSR 16 at para 26. 104   I N Newman Ltd v Adlem (n 103) (majority); Fressange v Inès de la Fressange SA (Cour de cass, 31 Jan 2006) (supermodel and designer could not prevent unapproved licensing of trademarked versions of her name by her eponymous ex-employer); Cheerio Toys & Games Ltd v Dubiner [1966] SCR 206 (Can) (principle of assignor estoppel or non-derogation from grant barred a trade mark seller from challenging the validity of the mark for later genericism, over a dissent which preferred the public interest to prevail). 102 103

430

r i gh t s of p e rs o n al i t y

where she displays her signature, announces the launch of her new label The Art of Being, and states that: “Elizabeth’s designs are made to order from her studio only and cannot be found in any shops. Authentic Elizabeth Emanuel designs will display the Art of Being logo on the label.” Presumably, notices like this come under the personal name right or defence. 8.8  Cybersquatting Celebrities usually have little difficulty seeing off the various parasites who register websites with names identical or very similar to theirs, and who then try to sell the sites to them for enormous sums, typically after first softening the celebrity up by linking the site with some unsavoury or tinpot business. The rules on these abusive registrations vary among domain name registries.105 Holding a registered trade mark or two helps the complainant’s case but is not critical. Footballer Michael Owen and author J K Rowling succeeded more easily against cybersquatters on the registry because they or their holding companies own registered trademarks over their names in a wide variety of classes, in Rowling’s case pretty well worldwide.106 Author Louis de Bernières and footballer Wayne Rooney had more difficulty against their cybersquatters, but won anyway. De Bernières had no registered mark but his right to sue impersonators for passing off was held equivalent to a common law trade mark. Rooney was treated even more charitably. At the time the domain name was registered, neither he nor his management company held any registered trade marks; but his right to use his birth name was found enough by itself to give him standing to oust a speculator who had bet on Rooney’s ascendant star at a time when the footballer was known only to ardent fans of Everton youth team fixtures.107 Fame alone does not dislodge every squatter, as North American media moguls Izzy Asper and Ted Turner found out. Asper  T Willoughby, “Domain Name DRS Policies: from the sublime to the ridiculous” (2006) 1 JIPLP 539. 106   Owen v Alliance of Enfeld, DRS No 03411 (23 Mar 2006) (Nominet UK Dispute Resolution Service); Rowling v Collazo, Case No D2004-0787 (22 Nov 2004) (WIPO Arb Center): ordering and to be transferred to the complainants because of registrants’ bad faith. 107   De Bernières v Old Barn Studios Ltd, Case No D 2001-0122 (26 Mar 2001) (WIPO Arb Center): transferred to complainant; Stoneygate 48 Ltd & Rooney v Marshall, DRS No 03844 (5 Oct 2006), Nominet UK Dispute Resolution Service: transferred to Rooney’s management company, which somehow was found to hold rights to Rooney’s name before he had assigned them to it; similarly, Stoneygate 48 Ltd & Rooney v Marshall, Case No D2006-0916 (6 Oct 2006) (WIPO Arb Center), relying on “consensus view” of WIPO arbitrators. 105

does i nt e l l e c t ua l p rop e rt y h ave p e rs o n al i t y? 431 complained to the World Intellectual Property Organisation when a cybersquatter tried to sell him . Under WIPO’s Uniform Dispute Resolution Policy, Asper had to have a common law or registered trade mark that was the same as or confusingly similar to the domain name. He had neither, although he was famous for his good works and business holdings. His complaint was therefore dismissed.108 The following year Ted Turner similarly failed against a cybersquatter who beat him to .109 Ordinary folk of little or no fame will fare no better unless dispute rules are written and interpreted as liberally as they were in Wayne Rooney’s case – which is not always the position. No change to the WIPO rules is currently envisaged. A 2001 report stated: “199. . . . Persons who have gained eminence and respect, but who have not profited from their reputation in commerce, may not avail themselves of the UDRP [Uniform Dispute Resolution Procedure] to protect their personal names against parasitic registrations. The UDRP is thus perceived by some as implementing an excessively materialistic conception of contribution to society. Furthermore, persons whose names have become distinctive in countries that do not recognize unregistered trademark rights are unlikely to find consolation in the UDRP in respect of bad faith registration and use of their personal names as domain names in those countries. . . . “201. The most cogent of the arguments against modification of the UDRP is, we believe, the lack of an international norm protecting personal names and the consequent diversity of legal approaches deployed to protect personal names at the national level. We consider that this diversity would place parties and panelists in an international procedure in an untenable position and would jeopardize the credibility and efficiency of the UDRP.”110

Since national laws and judgments often differ in their content, reasoning and result, it is hardly surprising that registry decisions vary even within the same system. Claimants win in court when they would have lost before a registry tribunal, and vice versa.111 Also unsurprisingly, forum-shopping is rife. 108   Asper v Communication X Inc, Case No D2001-0540 (11 Jun 2001) (WIPO Arb Center). 109   Turner v Fahmi, Case No 2002-0251 (4 Jul 2002) (WIPO Arb Center). 110  Report of the Second WIPO Internet Domain Name Process, The Recognition of Rights and the Use of Names in the Internet Domain Name System (3 Sep 2001), paras 199 and 201. 111  Eg Lamparello v Falwell 420 F 3d 309 (4th Cir, 2005), cert den 2006 WL 283870, allowing a site to criticise preacher Jerry Falwell’s views; Melbourne University Student Union Inc (in Liq) v Ray [2006] VSC 205 (Vic),

432

r i gh t s of p e rs o n al i t y

8.9  Conclusion What principles should IP rights follow in protecting personality interests? The following ideas are tentatively suggested: (1) Individuals should be able honestly to use their personal features in trade if they wish. (2) Whether they trade or not, individuals should be able to stop others from using those features for their own purposes without consent. (3) These rights should be balanced against free expression imperatives. So biography, research, news and documentaries should generally not be inhibited, but advertising uses should. Privacy interests should also be broadly respected. (4) Celebrities’ control over decorative uses such as posters and T-shirts should not be assumed but should be debated. Post mortem control, particularly, should not be assumed. (5) Otherwise the rights should generally last for at least the longer of the individual’s lifetime or the continuation of goodwill in a trade that uses those features. (6) How far such rights should be freely tradeable needs further debate.

denying liquidator McVeigh’s claim to close down any website that was critical of his conduct and that included his name (eg “makemcveighpay”); cf Willoughby, (2006) 1 JIPLP 539 at 541–543 on registry practices.



t he sc o t s l aw of d e fam at i o n

433

chapter 9 the scots law of defamation: is there a need for reform? Kenneth McK Norrie

9.1  Introduction 9.2  The Dual Nature of Defamation in Scotland 9.2.1 Janus-headed delict protecting personality right to honour (dignity) and patrimonial right to reputation 9.2.2 Byproduct of jurisdictional history: infringement of distinct patrimonial and personality interests coalesce into single cause of action 9.2.3 The connection betweeen self-esteem and reputation 9.2.4 Animus iniuriandi superseded by strict liability as basis of liability in defamation for patrimonial loss 9.3 Defamation as a Delict of Strict Liability 9.3.1 Rebuttable presumption of falsity; irrebuttable presumption of intent to injure 9.3.2 The development of strict liability in defamation 9.3.3 Explanation for development of strict liability 9.4  Avoiding OR QUALIFYING Strict Liability 9.4.1 Strict liability for infringing personality right not normally justifiable 9.4.2 Need to protect defender’s right to freedom of expression 9.4.3 Strategies avoiding or qualifying strict liability 9.4.4 Reynolds v Times Newspapers and the defence of “responsible journalism” 9.4.5 The impact of the defence of “responsible journalism” 9.5  The Way Forward 9.6  Conclusion

433

434

r i ght s of p e rs o n al i t y

9.1  INTRODUCTION This chapter attempts to build upon the foundations established in the work that I did in collaboration with Professor Jonathan Burchell for the recent project comparing the private laws of Scotland and South Africa,1 though it addresses a rather narrower issue and does so from a purely Scottish (or at any rate United Kingdom) perspective instead of as a comparative exercise with our sibling jurisdiction in South Africa. The question of whether the law of defamation is in need of reform is a particularly apt one to pose in a book on personality rights in Scots law because defamation in Scotland is in large part a remedy for an attack on honour and dignity, which are quintessential elements of personality. But defamation has always been rather more than that and it provides a remedy for the infringement of patrimonial interests too, which would have been alien to the actio iniuriarum, and the ius commune from which that actio developed into the law on personality rights in modern European legal systems. The reform that I want to suggest is one of purification: that is to say to remove from the ambit of defamation per se its patrimonial aspects and to limit it to exclusively personality interests. The reason for this suggestion is one of balance. Insofar as the law permits the communication of ideas to be actionable, this is necessarily a limitation on free speech or free communication of ideas, and the primary aim of the law must be to strike an appropriate balance between the right of free expression and the rights that may be compromised thereby.2 Where that balance will be struck is likely to be very different depending upon whether the court is asked to limit free speech in order to avoid patrimonial loss, or to avoid the emotional reaction of affront to dignity.

1   J Burchell and K Norrie, “Impairment of Reputation, Dignity and Privacy” Chapter 18 in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective, Property and Obligations in Scotland and South Africa (2005) 545. 2  This is a large topic of great constitutional, political, social and cultural importance whose wide implications cannot be fully explored here. The balance is now mandatorily required by the European Convention on Human Rights and related jurisprudence. In 2004 reputation was recognised as an interest protected by the European Convention on Human Rights, Art 8 (right to respect for private life): see Radio France v France (App no 53984/00) 30 March 2004. As a Convention right (and not merely a private law right) reputation ranks equally in the balance with the Convention right of freedom of expression under Art 10. See generally H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006) chapter 21 on “Defamation and Political Speech”.



t he sc o t s l aw of d e fam at i o n

435

9.2  THE DUAL NATURE OF DEFAMATION IN SCOTLAND 9.2.1  Janus-headed delict protecting personality right to honour (dignity) and patrimonial right to reputation From the earliest writings and case law (as can be seen in the magisterial work of John Blackie on the history of defamation)3 it is clear that the delict or cause of action of defamation in Scotland has always had a rather schizophrenic character. The action is a remedy for attacks on two quite distinct interests. On the one hand, there is the personality interest: telling lies about someone can be an attack on their honour and dignity and the harm suffered is affront. In more modern terms we might perceive this as an attack on self-worth – the psychological need to believe in one’s own innate worthiness and to be the possessor of the dignity inherent in membership of the human race. However it is expressed, there can be little doubt that this interest is the modern manifestation of what the Romans called dignitas, or that in many countries including Scotland redress for its infringement is traceable fairly directly to the actio iniuriarum. On the other hand, there is the patrimonial interest in reputation as an economic asset – what the Romans called fama, 4 a word that gives us the root of the verb “to defame”. Telling lies about someone may destroy businesses as well as individuals’ abilities to pursue their trade or profession5, and given proof of the appropriate causal connection between the false communication and the loss, the action for defamation appears at first sight an entirely appropriate basis of liability. It is not, however, the only means of remedying the wrong of destroying, by words, someone’s business. One of the forms of verbal injury (by which is meant in this chapter non-defamatory harmful communications) is what in England is called “slander of trade or business” and this can provide redress for patrimonial loss when the pursuer is able to show that the communication was false, that it was designed to injure and that loss was caused thereby.6 It has indeed been persuasively argued that this type of action is a more appropriate way of providing protection to businesses than defamation.7   K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000), Chapter 21. 4  Ulpian classifies the protected interests into three: corpus (bodily integrity), fama (fame, or reputation), and dignitas (honour and dignity): D.47,10,1,2. 5  See, for example, Baigent v BBC 2001 SC 281. 6  See Hamilton v Arbuthnot (1750) Mor 13923; Lamond v Daily Record (Glasgow) Ltd 1923 SLT 512 (OH); Craig v Inveresk Paper Merchant Ltd 1970 SLT (Notes) 50 (OH); Barratt International Resorts Ltd v Barratt Owners Group, unreported, 20 December 2002 (OH) (noted at (2003) 7 Edin LR 390). 7   F Patfield, “Defamation, Freedom of Speech and Corporations” 1993 JR 294. 3

436

r i ght s of p e rs o n al i t y

9.2.2 Byproduct of jurisdictional history: infringement of distinct patrimonial and personality interests coalesce into single cause of action Be that as it may, the modern action for defamation continues to protect both patrimonial and personality interests. How infringements of these two interests came to coalesce into a single cause of action or delict is a matter of speculation. T B Smith8 pointed out that infringements of the two interests by verbal delicts were originally actionable in different courts – the Commissary Court dealing with insult infringing honour and dignity and the civil courts dealing with reputation as an economic asset – and he suggested that it was the establishment of the Jury Court and the extension of its jurisdiction to deal with both interests that led to the amalgamation of the claims into one cause of action. However, the more sustained historical analysis of Blackie suggests that this amalgamation occurred at a rather earlier date. He accepts that the Court of Session originally heard actions for damages to repair commercial loss rather than solatium to repair hurt feelings,9 but he points out that this position was no longer sustained in the middle of the 18th century,10 and a full 50 years before the establishment of the Jury Court, the Court of Session was dealing with both aspects of defamation in a single claim.11 Different writers across the centuries have placed differing emphases on these interests and have seen the protection of one or other as the primary purpose of the action for defamation. In the 17th century, Stair12 limited his exposition of the law to attacks on economic reputation: he explicitly took the lead from English law,13 though he noted but offered no explanation for the phenomenon, apparent even then, that actions for defamation were far more common in England than in Scotland. Bankton,14 in the 18th century, took a much more Romanist approach by locating defamation within the general wrong of injury (iniuria) which, including injury to the person, he described as “an offence, maliciously committed” against the “fame, dignity or reputation” of the pursuer. He goes on to explain that damages may be awarded without any direct proof of the quantum, “that being hardly possible”, pointing to “injury” as a wrong sounding in solatium for affront rather than in damages   Short Commentary, pp 724–730.   Blackie, “Defamation” in Reid and Zimmermann (eds), History (n 2) at p 676. 10   Wilkie v Wallace (1765) Mor 7360. 11   Blackie, “Defamation” in Reid and Zimmermann (eds), History (n 2) at p 679. 12   Institutions I,9,4. 13  However, the six Digest texts cited all relate to the actio iniuriarum: see Chapter 3, Section 3.2.2 above. 14   Institute I,10, 21 and 24. 8 9



t he sc o t s l aw of d e fam at i o n

437

for patrimonial loss. However, in a passage strongly indicative that patrimonial interests were already included in the personality action of defamation, Bankton points out15 that an allegation of “bankruptcy” is, without anything more, defamatory. At first blush this suggestion is surprising:16 it is not in itself a calumny, nor even disreputable, to suggest that the vagaries of business have bankrupted a merchant. It may well be a matter of shame but not, always, of guilt to be rendered bankrupt. Yet the result could be damning and a false allegation become a self-fulfilling prophecy.17 For that reason it is no real surprise that a false allegation of insolvency be considered a civil wrong and, as a wrong committed by false words rather than by deeds it was, perhaps, inevitable that it came to be seen as an aspect of, or at least very closely related to, defamation. By the middle of the 19th century, Guthrie Smith18 opens his chapter on defamation by referring to “the right to one’s honour and good name” (ie dignity and economic reputation), encapsulating thereby the dual nature of the modern law of defamation. In the latter part of the 20th century, Professor David M Walker19 was presenting the purpose of defamation as the vindication of honour but with a secondary design to protect and restore reputation, and he clearly perceives defamation as primarily an attack on personality interests. By the time my own book appeared in 1995, 20 it was far too late for a textbook to do other than draw attention to the dual nature of the action. 9.2.3  The connection betweeen self-esteem and reputation Different courts and different academic treatments are part of the explanation of how personality and patrimony, two quite separate interests, came to be coalesced into one action. Another part of that explanation is the undeniable connection between the two: an attack on reputation may well have, as a direct and inevitable consequence, a lowering of self-esteem. As Cory J put it in the Supreme Court of Canada: “Good reputation is closely related to the innate worthiness and dignity of the individual.”21 And in an

  Institute I,10,34.  Though it has featured in virtually all the texts since without challenge. 17  See, for example, Capital and Counties Bank v Henty (1882) 7 App Cas 741 where an allegation that a bank was not meeting its commitments caused a run on its funds. 18   The Law of Reparation (1st edn, 1864) p 187. 19   Delict (2nd edn, 1981) p 729. 20   Defamation and Related Actions in Scots Law (1995). 21   Manning v Hill (1995) 126 DLR (4th) 129 at 160. 15 16

438

r i ght s of p e rs o n al i t y

insightful analysis of why the (English) law protects reputation, Gibbons22 argues that a person’s wish to protect reputation derives from his or her broader interests in exerting control over personal information, which the law protects because the ability to control one’s own public image is actually an assertion of autonomy, a concept that may well underpin all personality interests. However, it is a fundamental error to assume that just because the two interests overlap, even substantially, they are nothing more than different aspects of the same thing. In some types of action for defamation, only one element may be claimed: only non-patrimonial loss can be claimed for if the harmful words are not published but are said to the pursuer alone; 23 only patrimonial loss can be claimed if the pursuer is an artificial body like a company which is incapable of feeling affronted (a reaction of the mind). 24 The two claims are in their fundamentals conceptually different. 9.2.4  Animus iniuriandi superseded by strict liability as basis of liability in defamation for patrimonial loss A more important doctrinal difference than title to sue (though one which, as we will see, was never explicitly made by Scots law) concerns the very basis of liability itself. The necessary element of fault in infringements of personality rights, such as in Scotland wrongful detention or abuse of process and, earlier, insult and adultery, properly lies in animus iniuriandi, or malice as it tends to be put in modern language. 25 Intent to injure is a more serious aspect of fault, and consequently more difficult to establish, than culpa (in the narrow sense), which is the alternative manifestation of fault and typically associated with economic injuries or patrimonial loss recoverable under negligence, or quasi-delict in the now obsolete language of Bell.26 Yet modern Scots law treats the two types of loss as little more than an issue of quantification of damages: two losses from a single wrong. In doing so, the law has taken a wrong turning. The coalescence of what logically are two separate causes

 T Gibbons, “Defamation Reconsidered” (1996) 16 OJLS 587 at p 589.  As in Mackay v McCankie (1883) 10 R 537 and Ramsay v MacLay & Co (1890) 18 R 130. 24   North of Scotland Banking Co v Duncan (1857) 19 D 881 at 885 per Lord Ardmillan; Derbyshire County Council v Times Newspapers [1993] 1 All ER 1011 at 1017 per Lord Keith. 25   Stair Memorial Encyclopaedia, vol 15, Obligations, esp at paras 439, 453–454 and 459. For an examination of malice within the context of verbal injury, see K McK Norrie, “Actions for Verbal Injury” (2003) 7 Edin LR 390. 26   Principles §553. 22 23



t he sc o t s l aw of d e fam at i o n

439

of action into one has, not surprisingly but with disastrous effects on the coherence of the law, led to a coalescence of the very basis of liability itself. If there is only one cause of action, there is only one basis of liability, and locating defamation within personality meant that fault had to take the form of animus iniuriandi even when it was economic standing and not dignity that the pursuer was seeking to have restored. The incoherence has been exacerbated by the law’s response to the fact that malice was simply too difficult a hurdle for pursuers in certain fairly common types of claim in which the major loss suffered was patrimonial. The hurdle was lowered through the emergence of strict liability.27 9.3 DEFAMATION AS A DELICT OF STRICT LIABILITY 9.3.1  Rebuttable presumption of falsity; irrebuttable presumption of intent to injure It is trite law that, once the pursuer in an action of defamation has established the defamatory nature of the words complained of, he or she acquires the benefit of two presumptions: that the words are false, and that they were communicated with intent to cause injury to the pursuer. Words are “defamatory” for this purpose if they are derogatory or demeaning, 28 tested objectively. The classic modern definition of defamation is found in the words of Lord Atkin in the English case of Sim v Stretch29 that is to say whether the ideas communicated by the defendant “tend to lower the plaintiff in the estimation of right-thinking members of society generally”. It is for the court to determine how “right-thinking” members of society would react to particular words. The issue is neither how members of society do in fact react nor how the pursuer did react, but how this judicial anthropomorphisation of a legal standard would have reacted. The presumption of falsity is rebuttable, and its effect is to shift the onus onto the defender to show, as a defence, that the words are true (the defence of veritas). But the presumption of intent to injure is irrebuttable with the result that it avails the defender nothing to be able to show lack of intent – lack, that is, of any fault. Liability for defamation appears therefore to be possible without fault in fact and it is, in that sense, strict.  At least in relation to damages (and solatium). With other remedies, such as interdict and, previously, palinode, the basis of liability is not fault, so questions of the levels of fault do not arise. 28  See K Norrie (n 19) at pp 17–27. 29   [1936] 2 All ER 1237 at 1240. 27

440

r i ght s of p e rs o n al i t y

9.3.2  The development of strict liability in defamation This rule of strict liability is often traced to the English House of Lords decision of Hulton v Jones30 but in fact in Scotland its history is older, and is revealing. There is a series of cases, all involving newspapers as defenders, in which names had been published referring to one person but which could be (and were) taken to refer to other persons with identical or similar names, and in which the honesty of the newspaper publishers (in the sense of lack of any positive intention to injure the pursuer) was held to provide no defence. The earliest example of these “common name” cases is typical. Finlay v Ruddiman31 concerned a newspaper report that one John Finlay, shoemaker, had been charged with rape. The pursuer was a shoemaker of that name, but a different person altogether, and it was held that the newspaper had no defence to the effect that it had not intended to defame the pursuer (of whom it knew nothing32) but only to report a fact concerning the other man. In Craig v Hunter & Co, 33 a similar mistake was immediately retracted by the newspaper and an apology offered. The court held that damages were not due unless either intent on the part of the newspaper could be shown by the pursuer or patrimonial loss could be shown to have been suffered as a result of “inadvertence or negligence”. This important case suggests an acceptance of the distinction between patrimonial and non-patrimonial loss at the level of fault: solatium for the injury to personality required animus iniuriandi while the redress of patrimonial loss required only culpa in a wider sense, including negligence. Importantly, for both some form of actual fault required to be shown. Yet in the next case, Outram & Co v Reid34 no special damage in the form of patrimonial loss was pled but the court nevertheless held that loss to a merchant must have occurred and found for the pursuer in the absence of animus iniuriandi.35

9.3.3  Explanation for development of strict liability Blackie suggests36 that it was the very development of newspapers in the 18th century that moved the law from animus (which newspapers   [1910] AC 20.   (1763) Mor 3436. 32  Except, in fact, as one of its subscribers. 33   29 June 1809, FC. 34   (1852) 14 D 577. 35  The case is not without ambiguity. The sheriff seems to have regarded the claim as one for a solatium because of the “very mental distress and anxiety” the pursuer must have felt (at seeing his trade damaged) but both he and the Inner House found the defenders to have been negligent in not designating the bankrupt more precisely: all the judges drew particular attention to the effect on Mr Reid’s business. 36   Blackie (n 2) at p 662. 30 31



t he sc o t s l aw of d e fam at i o n

441

and their corporate owners cannot have) to strict liability. In other words it was an accidental rather than deliberate development whereby “the law slipped into strict liability”. I should like to suggest a rather more deliberate explanation. The cases in which strict liability developed in Scotland certainly had in common that they were raised against corporate defenders, as Blackie correctly points out. But they also had in common (until Hulton) that the loss suffered was primarily patrimonial – loss of trade. I suspect that the courts found themselves in a dilemma. The personality element of the action pulled them towards a requirement for animus iniuriandi (which in the common name cases would usually be impossible to establish) but on the other hand they were not willing to let loss in the form of a destroyed business lie where it fell rather than transferring it to the person who had caused the loss by a mistake, non-deliberate but perhaps culpable. The way out of this dilemma was to hold that though intent to injure, or malice, was required its existence would be presumed in favour of the pursuer. That presumption had to be irrebuttable in order to guarantee the appropriate transference of loss from defender to pursuer because otherwise newspapers could rebut the presumption (and so escape liability) by the too-easy route of showing that they were unaware of the pursuer’s existence. Of course negligence has always been available as an alternative ground of action if the loss is patrimonial rather than affront, but why would any pursuer choose to sue for negligence (where the onus would be on them) rather than for defamation where malice was presumed in his or her favour?37 The real importance of Hulton was not that it created strict liability but that the courts could not then escape their own logic, and the House of Lords was obliged to extend strict liability to a case in which damages for affront were being sought rather than damages for the patrimonial loss of a ruined business.38 Very shortly after Hulton the Court of Session followed that case in Wragg v DC Thomson & Co Ltd39 in which a music hall artist who performed

  Spring v Guardian Assurance [1995] 2 AC 296 reminds us that pursuers are free to formulate their own cases the way they choose. Here, the plaintiff chose to sue in negligence because, the facts raising the defence of qualified privilege, malice required to be proved and, in the circumstances, could not be. 38  The earlier English House of Lords case in which there are hints of strict liability arose in the context of a claim for economic loss (obiter, in the event, since no defamatory imputation was found): Capital and Counties Bank v Henty (1882) 7 App Cas 741. For discussion, see P Mitchell, “Malice in Defamation” (1998) 114 LQR 639. 39   1909 2 SLT 315 (OH) at 409. 37

442

r i ght s of p e rs o n al i t y

under the stage-name George Reeves40 sued a newspaper that carried a headline “George Reeves Shoots Wife”. The newspaper was repeating a report from an American publication and the story referred to someone quite different from the pursuer, but with the same name. Interestingly, however, Wragg may well have been a loss of trade case as well, though the loss actually sued for is not clear in the report. But the subsequent common name cases41 where issues were allowed without averments of malice were clearly cases of affront, that is to say, personality infringement, rather than cases of patrimonial loss.42 Strict liability had invaded the protection afforded to personality. 9.4  AVOIDING OR QUALIFYING STRICT LIABILITY 9.4.1  Strict liability for infringing personality right not normally justifiable Now, this might not have mattered so much if damages for patrimonial loss and damages for affront serve the same compensatory purpose. But they don’t. Damages for patrimonial loss are reparative, based on what in quantifiable terms has been lost, while damages or solatium for affront are largely symbolic and always notional, because the real aim is not to quantify loss but (i) to clear a person’s name from an unfounded allegation and (ii) to restore feelings of dignity by a monetary symbol. In principle a judicial declaration of where the truth lies is entirely sufficient for the first purpose and the fact that a solatium is also given for the second purpose is confirmation (if such be needed) that we are dealing with a personality interest. But the point I am trying to make is that there never was either necessity or justification for strict liability where non-patrimonial injury to personality rights is involved. In relation to patrimonial rights, strict liability clearly favours pursuers: it is necessary in order to shift the loss from a pursuer whose business has been ruined by another person’s mistake to that other person, whether the mistake was culpable or not, and it is justifiable because it achieves that sound policy objective.  No. Not that George Reeves.   Harkness v Daily Record Ltd 1924 SLT 759; Harper v Provincial Newspapers Ltd 1937 SLT 462 (OH). 42  In both Harkness and Harper reports of criminal convictions were taken to refer to the pursuer in each (in the former due to an erroneous designation and in the latter due to the convicted person having the same name and, being the pursuer’s son, the same address as the pursuer). 40 41



t he sc o t s l aw of d e fam at i o n

443

9.4.2  Need to protect defender’s right to freedom of expression The balance of fairness, however, will be very different when the correct policy is achieved by preferring the defender. There are situations in which it is especially important that the defender’s right to freedom of expression be given as high a regard as possible – higher, certainly, than the right to be free from upset feelings or affront. Representative democracies require, even demand, for their legitimacy that there be free speech, especially (i) the freedom to disseminate as widely as possible criticisms of those democratically elected to represent the people and (ii) the freedom to take part in robust political debate. Pre-constitutional South Africa was not a democracy, but nor was it a dictatorship because of the inability of the apartheid regime totally to stifle the press in that country. And a free press is the surest way to protect freedom of expression. Freedom of expression is important for reasons other than economic ones. People, including journalists, want to be able to speak as an exercise of autonomy rather than as a means to turn a profit; politicians see their reputations as a matter of respect, or self-worth, and as an asset that enhances (or otherwise) the credibility of their political opinions, rather than as a means to economic advantage. 9.4.3  Strategies avoiding or qualifying strict liability So the problem with strict liability is that it favours pursuers even when the political and social imperatives point in the opposite direction. Recognising this fundamental disadvantage in the operation of the strict liability principle (or at least the unacceptability of its consequences), courts across the world have adopted a variety of strategies to avoid or to qualify strict liability and to allow actions to proceed only when the pursuer can show that the defender has been guilty of some form of fault. One of the first courts to recognise that the balance is necessarily different when the needs of democracy come into play was the Supreme Court of the United States when it drew a distinction between public officials and private persons: the former (who are far more likely to be of interest to the media) do not have the benefit of any presumption of malice or intent to injure, far less an irrebuttable presumption.43 The category of person covered by this special rule never was susceptible to ready delineation, and the movement in the United States since the decision in Sullivan has been one of inexorable expansion of the category of “public officials”.44   New York Times v Sullivan 376 US 254 (1964).   For a short exposition of the important cases, see Gibbons (1996) 16 OJLS 589 at pp 610–611.

43

44

444

r i ght s of p e rs o n al i t y

Other courts have more recently refocused their attention on the reasonableness or otherwise of the defender’s actions rather than who the defender is. Typical of this movement is South Africa, where the courts have, in relation to media defenders at any rate, turned their attention to the reasonableness of the defendant’s actions and away from the plaintiff’s actions.45 The courts in South Africa now take into account, inter alia, the “nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information . . . and the opportunity given to the person concerned to respond”.46 At around the same time, the courts in Australia and New Zealand departed from the strict liability rule in matters of “political discussion”,47 replacing it with a reasonableness test (the onus resting with the defendants to show that they had acted reasonably).48 This is as it should be. Will Scots law follow the lead of South Africa, Australia and New Zealand? It may be noted that, with its long history of strict liability, Scots law provides examples of its application in the law reports only in relation to media defenders. It is tempting to conclude, therefore, that in Scotland as was the case in South Africa, the strict liability rule is limited to media defenders and that any reform should be limited to that context. Though there is no hint of such a limitation to strict liability, even obiter, in any of the cases49 it is nevertheless

  National Media Ltd v Bogoshi 1998 (4) SA 1196 (Supreme Court of Appeal); Khumalo v Holomisa 2002 (8) BCLR 711 (Constitutional Court). 46   Bogoshi at 1211. The standard of reasonableness also, in essence, underpins the approach of the European Court of Human Rights. The issue for that Court is “proportionality” between restrictions on free speech and the aims sought to be achieved by the restrictions. The Court has held that what must be taken into account includes the extent to which reputation is damaged, the reasonableness of the defender’s efforts or lack of efforts to verify its facts, and “its vital role of ‘public watchdog’”: Bladet Tromsø v Norway (2000) 29 EHRR 125. 47   Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (High Court of Australia); Lange v Atkinson [1998] 3 NZLR 424 (New Zealand Court of Appeal). The Privy Council ([2000] 1 NZLR 257) in an appeal in the latter case handed down a decision on the same day as the House of Lords (with the same judges) decided the English case of Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL), and remitted Lange v Atkinson back to the New Zealand Court of Appeal to reconsider their decision in the light of Reynolds. The Court of Appeal did so and affirmed their earlier decision: [2000] 3 NZLR 385. 48   Theophanus v H & W Times (1994) 124 ALR 1. 49  The nearest one gets to a suggestion that newspapers should be treated differently from other defenders is in Morrison v Ritchie (1902) 4 F 645 and McLean v Bernstein & Ors (1900) 8 SLT 42 but the issue in both was whether the negligence-based defence that is now known as “innocent dissemination” applied to newspaper publishers as well as news vendors (and the answer given in both cases was no). 45



t he sc o t s l aw of d e fam at i o n

445

clear that limited reform has already been effected, based on the development of English law since Reynolds v Times Newspapers.50 9.4.4  Reynolds v Times Newspapers and the defence of “responsible journalism” As is well known, the defendants in Reynolds tried to persuade the court to extend the defence of qualified privilege to cover “political discussion”. This would have the effect of removing the irrebuttable presumption of malice in such cases, and requiring the pursuer to prove (if he can) that the defender intended to injure him: the result would be that the defender’s contribution to “political discussion”, however destructive of the pursuer’s reputation, would not sound in damages unless the pursuer can show that the defender had been motivated by malice. This would be a substantial shift in the balance from favouring pursuers to favouring defenders, because malice is notoriously difficult to establish. The Court of Appeal in Reynolds accepted the defendants’ argument, but the House of Lords did not and they refused to extend the concept of qualified privilege in the way sought by the defendants. 9.4.5  The impact of the defence of “responsible journalism” Nevertheless there is little doubt today that the House of Lords in Reynolds did alter the balance between pursuer and defender.51 The major dispute before that court was not so much the context in which qualified privilege arose but the extent to which the reasonableness of the defendants’ behaviour could be taken into account in determining whether or not the case fell within the parameters of privilege. The Scottish judge, Lord Hope of Craighead, gave a strong, but dissenting, speech to the effect that it was entirely illogical to take account of the defendant’s behaviour at the stage of determining whether privilege arose. Reasonableness or otherwise of journalistic practices, he held, was a matter that helped determine whether malice existed or not. But in a system of strict liability malice becomes a live issue only once it has been established that the case is indeed one of qualified   [2001] 2 AC 127.  In the words of the Privy Council in Seaga v Harper [2008] 1 All ER 965: “For the purposes of the present appeal the precise jurisprudential status of the Reynolds privilege is immaterial. What is significant is that it is plain in their Lordships’ opinion that the Reynolds decision was based . . . on a ‘liberalising intention’. It was intended to give, and in their Lordships’ view has given, a wider ambit of qualified privilege to certain types of communication to the public in general than would have been afforded by the traditional rules of law” (at para 10 per Lord Carswell). 50 51

446

r i ght s of p e rs o n al i t y

privilege and so factors relevant to malice cannot be used to determine whether the case is one in which malice is relevant. This was not accepted by the three judges in the majority and since this case, in determining whether a media defender can rely on what has (rather unhelpfully) come to be called “Reynolds privilege”, the issue has been one of whether there has been “responsible journalism”: if the defender can show that it acted responsibly and in accordance with good journalistic practices then the harmful words will be protected by the defence of privilege. This has not replaced the traditional “duty to speak and interest to hear” test for qualified privilege but it has clearly moderated the terms of that test. The Court of Appeal in Loutchansky v Times Newspapers52 described the test as follows: “The interest in question is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The corresponding duty upon the journalist is to play his proper role in discharging that function by behaving as a responsible journalist.”

“Reynolds privilege” has different boundaries from the “political discussion” approach in Australia and New Zealand, but it has much the same effect. As the Privy Council put it in Bonnick v Morris:53 “Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputation of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.”

A well-known and high-profile case that illustrates the operation of the “responsible journalism” test is Galloway v The Telegraph Group Ltd.54 Here, the MP, Mr George Galloway, had been accused by a newspaper of profiting by selling oil to the Iraqi regime of   [2002] EMLR 14.   [2003] 1 AC 300 at para 23 per Lord Nicholls of Birkenhead. See also Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 where Lord Hope accepted (at para 105) that in Reynolds (in which he dissented in part) the House of Lords had been unanimous that the common law duty-interest test for qualified privilege needed to be adapted, and that the law did not seek to set a higher standard than that of responsible journalism. 54   [2006] EWCA Civ 17; [2004] EWHC 2786 (QB). A similar discussion is to be found in Charman v Orion Publishing Group Ltd & Ors [2007] EWCA Civ 972; [2008] 1 All ER 750. 52 53



t he sc o t s l aw of d e fam at i o n

447

Saddam Hussain, the allegations being based upon documents purportedly found in one of the ex-dictator’s palaces after the US-led invasion of Iraq. The newspaper’s defence of “Reynolds privilege” failed because the newspaper was not simply reporting a dispute. Legitimate reportage requires that both sides of the argument are fairly put. However, Mr Galloway had not been given an opportunity to respond by the newspaper to the allegation, and the newspaper had indeed embellished it and reported it with what the judge at first instance described as “relish”. This turned the allegations in the contentious documents upon which the newspapers were founding into the newspaper’s own allegations. There had therefore been no responsible journalism in this case and so the case was not one of qualified privilege. So, as in South Africa, Australia and New Zealand, the enquiry of the court has become one into the acts of the defender at least as much as into the alleged acts of the pursuer – and in particular into whether the journalist “exercised due professional skill and care”. So Reynolds has, after all, achieved a refocusing of attention from the pursuer’s activities (till then the typical enquiry in an action for defamation) to the defender’s behaviour.55 It confers a protection from suit on journalists who act responsibly. 9.5  THE WAY FORWARD Now, this is all needlessly complex, and the way forward, in my view, is to recognise that the significant difference is not so much between cases of privilege and no privilege but between cases of affront and cases of patrimonial loss. Different causes of action should protect each, and criteria for fault, appropriate to each, should be identified and applied. If the law were to develop in this way the need for strict liability, compromised already, will simply fall away. As I have argued above, that concept was originally developed in patrimonial loss cases, but this was at a period before the maturing of the concept of negligence. Today, a coalescence of the concepts of negligence and responsible journalism would readily achieve the purpose for which strict liability was designed in cases of patrimonial loss.

55  A similar phenomenon, from Scotland, is apparent in the jury’s decision in Sheridan v News of the World, unreported, 6 August 2006 (OH). The defenders in that case had argued that the sting of their allegations (adultery and group sex) were true though they admitted that the story they had printed which contained these allegations had been embellished with side-details that had, frankly, been invented. Though a jury decision, it may be speculated that whatever the jury felt about the defamatory sting, they were clear that newspapers simply ought not to be allowed to make up salacious details and print them, knowing them to be false.

448

r i ght s of p e rs o n al i t y

Patrimonial (ie economic) loss should not be recoverable through the action for defamation: this has been the whole thrust of the reform I am advocating here. But this does not make such loss irrecoverable. It simply forces pursuers back onto another ground of action, particularly negligence, which is where we started at the beginning of the 19th century.56 If a newspaper reports that “George Reeves Shoots Wife”, then the innocent George Reeves should be able to recover his patrimonial loss in the form of cancelled bookings or the like only if (i) the newspaper did not act responsibly (for example by not making clear that it was not referring to the well-known performer but was reproducing a report from a country an ocean away57) and, in addition, (ii) the pursuer establishes that it would be fair, just and reasonable to require the shifting of his loss – from himself to the newspaper. If a newspaper reports a bankruptcy but does so in a way that does not make plain who has been bankrupted, it is falling below the standard of responsible journalism and that lack of due professional care and skill (we call this negligence) should make the loss recoverable in the normal way.58 In virtually all the common name cases there was some flaw in journalistic practice which the judges referred to, even though these flaws were not the primary causes of action. The point is that they could have been – and would have been had the pursuers not had the benefit of strict liability. The question for the court would have been whether the patrimonial losses the pursuer suffered should lie where they fell or be transferred to a defender – and the answer would have been that these losses will be so transferred if the defender was at fault in the sense of falling below an appropriate standard of care. And if the pursuer can in fact prove malice (animus iniuriandi or intent to injure), an alternative to negligence is available in the form of an action for verbal injury (in its economic or patrimonial guise of slander of title, property or trade or business). If, on the other hand, the action is truly for personality infringement and it is a solatium for affront that is being sought, then defamation in a more focused and limited sense is the correct action, at least if the contentious communication is both false and defamatory. If the defamatory nature of the communication cannot be established then an action for affront may be available as a form of verbal

  Craig v Hunter & Co 29 June 1809, FC.  The pursuer did not argue, as he could have done, that omission from the report of time and place of the incident being reported was “a reckless neglect of an ordinary and reasonable precaution”. Had he done so, the judge indicated there would have been no problem about sending the question of whether the defenders were culpable to a jury. 58   Outram & Co v Reid (1852) 14 D 577. 56

57



t he sc o t s l aw of d e fam at i o n

449

injury.59 Fault in defamation, as with all intentional affront-based delicts (including non-patrimonial verbal injury), should be found in wrongful intent to injure but without a presumption of malice, far less an irrebuttable presumption. It is worth pointing out that removing this presumption may be less dramatic than is often assumed because proving malice may sometimes be relatively easy, at least when political celebrities (who are today the main beneficiaries of strict liability) sue newspapers, especially those with a history of antipathy towards the celebrity. Indeed the very facts that prevented the defence of privilege in Galloway could easily have been used to establish malice – this was Lord Hope’s very point in his dissent in Reynolds – lack of responsible journalism, failure to give a right of reply, adopting allegations from suspicious or unverifiable sources,60 combined with the defendants’ history of antipathy towards Mr Galloway. There has always been an assumption that if the newspapers in Reynolds and Galloway had won on the privilege argument they would have won the whole case because malice would not have been established. But in fact Mr Galloway could have established malice without much difficulty and Mr Reynolds might well have managed too (remembering the nature of malice as something other than evil or spiteful motive to harm another).61 So there is no real need in affront cases to maintain the presumption of malice, which does no more than make things easy for pursuers and difficult for defenders – for no sustainable reason of social policy. To require a showing of malice when all that is being pursued is a personality infringement would achieve a more appropriate balance

 In Defamation and Related Actions in Scots Law (1995) I propose a taxonomy of (non-defamatory) verbal injuries based on the factual backgrounds of the various claims. Some, like slander of title or business, allow redress for economic loss. Others, exemplified most clearly by the “public hatred, contempt and ridicule” cases, provide redress for affront. I do not here suggest any change in the law of non-defamatory verbal injuries, for it is unquestioned that they are not actions of strict liability. 60  A factor in both Galloway and Bonnick. 61  As long ago as 1841, the Scottish courts were adopting a wide interpretation of the concept of malice. In Adam v Allan (1841) 3 D 1058, Lord Jeffrey at 1073 defined malice as “animosity, ill-temper, love of scandal and gossip, or mere rash and thoughtless loquacity”. See also K Norrie, Defamation and Related Actions in Scots Law (1995), p 120: “Malice is proved by showing that the defender was motivated not by duty or interest, but by either intent to injure or any other intention that is not referable to the fulfilment of the duty or the protection of the interest. Malice does not in this context connote bad intent, but more lack of good intent.” That malice is, however, rather more than mere intent to injure but means instead illegitimate intent to injure is strongly asserted in the judgment of Lord Wheatley in Barratt International Resorts Ltd v Barratt Owners Group, unreported, 20 December 2002 (OH). 59

450

r i ght s of p e rs o n al i t y

between free speech and reputation than we presently have – one closer to that in the USA. And in the modern democratic world, this is as it should be. The European Court has already indicated that those who put themselves in the public eye need to be robust in the face of public criticism to a far greater extent than the purely private citizen, 62 and this has long been the approach of the courts in Scotland.63 The trial judge in Galloway too pointed out that the “political speech” defence in Reynolds had been rejected there,64 but he accepted nevertheless that there is a need for politicians to be more robust than private individuals.65 9.6  CONCLUSION So, in sum, the law of defamation should be reformed as follows. A clear distinction should be drawn in terms of the loss or harm being sued upon, and that should govern the nature of fault that the pursuer needs to plead. If the pursuer suffers patrimonial loss through false communications, the action should be one of negligence (with fault lying in culpa), or alternatively patrimonial verbal injury (based on wrongful intent to injure or animus iniuriandi): if neither form of fault can be established then there is no cause of action and there is nothing conceptually peculiar about that. If the pursuer suffers affront, this is a different type of harm with a different cause of action: the remedy is damages for defamation if the words complained about are false and defamatory, and otherwise a remedy for non-patrimonial verbal injury might be available. As with other wrongs traced ultimately to the actio iniuriarum, fault in both these cases is established by showing wrongful intent to injure (animus iniuriandi). Such wrongful intent should not be presumed, because strict liability, developed in patrimonial loss cases, is not appropriate in personality rights cases. The end result, I admit, is a retraction from the existing protections granted by Scots law to the personality  See Oberschlick v Austria (1995) 19 EHRR 389 at para 59.  Scots law allows an almost American breadth in determining the category of public figure about whom this expectation is held. In Moffat v West Highland Publishing Co Ltd 2000 SLT 335 (OH) a pursuer was “in a position of responsibility in the media industry” and was held, therefore, to be obliged to accept “rough language and unmannerly jests”. 64  See especially the speech of Lord Hope of Craighead at 234. 65   [2004] EWHC 2786 at para 146 per Eady J, quoting Branson v Bower (No 2) [2002] QB 737 at para 25 to the following effect: “In a modern democracy all those who venture into public life, in whatever capacity, must expect to have their motives subjected to scrutiny and discussed. Nor is it realistic today to demand that such debate should be hobbled by the constraint of conventional good manners – still less of deference.” 62

63



t he sc o t s l aw of d e fam at i o n

451

right of dignity (by making it more difficult to sue). But this result is, I suggest, more structurally coherent in that it avoids the problems of confusion with other interests and it would allow the courts to strike the appropriate balance. To recognise that will allow defamation to develop as it should, as a protection against personality infringement but subject to the same constraints as those with other personality actions rather than those imposed upon it which are designed to serve quite separate purposes. Ridding personality rights as protected by defamation of its unsustainable accretions may well help the Scottish courts to become more open to the idea of embracing the European and South African models of personality rights for use in the modern world.

452

r i ght s of p e rs o n al i t y

p ersonality, privacy and autonomy in medical law 453

chapter 10 personality, privacy and autonomy in medical law Graeme Laurie*

10.1

Introduction

10.2

Setting the scene: the medico–legal context

10.3

What is at stake?

10.4

The rise and rise of personal autonomy

10.5

Revisiting Sidaway

10.6

McFarlane and Rees

10.7

A negligence analysis

10.8

A human rights focus

10.9

Right to respect for autonomy as a human right

10.10 From rights to remedies 10.11 A solution for Scots law? 10.12 Autonomy, dignity and personality protection: where next? 10.13 From the concrete to the conceptual: challenging assumptions about autonomy and dignity 10.13.1 Preliminary 10.13.2 Is information disclosure the proper focus of our attention? 10.13.3 Is information disclosure necessarily a good thing? 10.13.4 Is information disclosure necessarily autonomyenhancing?

* The author is indebted to his colleagues Professor J K Mason and Professor N R  Whitty for invaluable comments and input on an earlier draft of this chapter. The usual disclaimer applies.

453

454

r i ght s of p e rs o n al i t y

10.1  INTRODUCTION Until recently the standard account of the evolution of medical law in the United Kingdom suggested considerable judicial deference to the medical profession. Traditionally,1 paternalism, rather than respect for personality, held sway in the development of the jurisprudence, this being most notable in the context of the medical negligence action. Discernible shifts have, however, occurred in recent years, partly because of the implementation of the Human Rights Act 1998, and partly as a result of several high-profile inquiries, such as those into practices at Alder Hey Hospital and the Bristol Royal Infirmary, which have seriously challenged the authority of the medical profession. But most significant among these changes has been the increasing attention paid to patient autonomy which is now established as a prominent feature of the medico–legal landscape. Patients now have an absolute right to refuse medical treatment even if this results in death, 2 to receive compensation when lifestyle choices, such as not to have children, are thwarted through negligence, 3 or when negligence conspires to limit the range of choices as to treatment.4 However, the precise nature of the interests that can legitimately be subsumed under the notion of autonomy, and how these may find protection in different areas of medical law, is still unclear. This chapter considers how autonomy has been constructed thus far in medical law both in Scotland and in England and Wales, and in particular how this has involved an increasing emphasis on as-yetto-be-defined notions of human dignity. Dignity might be described as “the state or quality of being worthy of respect”, 5 and a dictionary definition6 is as good as any because dignity has eluded successful description since its proliferation in legal instruments and declarations on human rights in the post-Second World War era.7 Some consider

 The standard account also assumes that medical law began only some three decades ago. While others might dispute this, this chapter confines itself to developments that have occurred in this period. 2  See Re T (1992) [1992] 4 All ER 649 (CA). 3   Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309. 4   Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. 5   The New Oxford Dictionary of English (1998; rev 2001). 6  This is not to deny that some jurisdictions have developed their own concepts of dignity, see, for example, South Africa and the discussion by Jonathan Burchell in Chapter 6 in this volume, but this is yet to be true of Scotland. 7  United Nations, Universal Declaration on Human Rights (1948), European Convention on Human Rights (1950), and more recently, UNESCO, Universal Declaration on Bioethics and Human Rights (2005). 1

p ersonality, privacy and autonomy in medical law 455 it as a worthless concept adding nothing to debate,8 while others find value in both subjective assessments of one’s own dignity and objective constructs of the term that seek to protect individuals from undignified treatment.9 Notwithstanding, it is undeniable that the protection of autonomy through dignity is an option of increasing interest in many quarters.10 This work adopts a somewhat sceptical view of dignitarian-based models – either subjectively or objectively assessed – and questions the extent to which it can be said that current developments reflect anything approximating a principled approach. The impetus for this examination is a series of decisions from the House of Lords11 which purports to recognise and promote interests in autonomy and dignity through the negligence action, but which have met with controversy in doing so.12 A recently published treatment of Scots medical law by Earle and Whitty13 has argued that a revitalised actio iniuriarum could do much of the work necessary for Scots law to give proper and appropriate effect to patients’ rights. Particular emphasis is placed on developing or extending the action of solatium for hurt to feelings or personality. These arguments are examined in the light of interim conclusions about autonomy and its relationship to dignity, personality and privacy rights. The overall conclusion is that it is probably too early to say whether a viable actio iniuriarum can or will be developed by the courts, but there is certainly scope for this to happen; indeed, there may be a need for it to happen now that “the notion of autonomy”14 has been recognised within the human rights regime and adequate remedies must be found or created. In this last respect it is illuminating to compare and contrast the actio iniuriarum with the negligence action, as happens in Section 10.12.  R Macklin, “Dignity is a Useless Concept” (2003) 327 British Medical Journal 1419. 9   For analysis, see D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (2001). 10   For a helpful overview, see R E Ashcroft, “Making Sense of Dignity” (2005) 31 Journal of Medical Ethics 679. 11  The cases in question are McFarlane v Tayside Health Board 2000 SC (HL) 1; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] AC 309; and Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. 12  As is explained below, this chapter is concerned with decisional aspects of autonomy, that is, self-determination, as a sub-set of the interests which can be subsumed under personality rights within the medico-legal context. Compare, for example, the notion of “informational autonomy” as discussed by the House of Lords in Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 at para 134 per Baroness Hale. 13   SME Reissue, “Medical Law” (2006) (M Earle and N R Whitty). 14   Pretty v United Kingdom (2002) 35 EHRR 1. 8

456

r i ght s of p e rs o n al i t y

We move finally from concrete cases to conceptual concerns about the basis upon which protection of autonomy and dignity seems to be proceeding. In the ultimate section, Section 10.13, various caveats are raised and a plea is made to view autonomy in the context of the broader range of claims that make up personality rights. An overly dominant paradigm of autonomy should not be allowed to emerge at the expense of other, equally valid, rights. 10.2

SETTING THE SCENE: THE MEDICO–LEGAL CONTEXT

The Edinburgh Law School hosted a conference in 1998 to consider the implications of the Human Rights Act 1998 for Scots law. In that conference I considered the subject from the perspective of medical law, and in doing so I offered the following characterisation of the discipline in England and Wales and in Scotland as I saw it at the time, which was hopefully not a caricature. I suggested that thus far there had been: • grudging acceptance of the right to self-determination of patients, that is, recognition of the ethical principle of respect for individual autonomy; • dominance by the “best interests” test where patient competence was in doubt; • undue deference by the courts to the medical profession to determine what should be meant by “best interests”; and, • perhaps most surprisingly, the rarely qualified surrender by the courts to the medical profession for deciding the scope of its duty of care to patients.15 A radical shift has taken place since then, yet it is one which, in the main, has not necessarily been linked to human rights arguments.16 This is not to suggest that these have not played a role nor been important in numerous areas, but perhaps of greater import have been other influences such as the growing use of ethical arguments17 and recognition of academic writings in the development of medical 15   G T Laurie, “Passing the Parcel Back to the Profession?” in A Boyle et al (eds), Human Rights and Scots Law (2002), Chapter 12. 16  See too, Lord Woolf, “Are the Courts Excessively Deferential to the Medical Profession?” (2001) 9 Med L Rev 1. 17   For an extreme example, see R (on the application of Burke) v General Medical Council [2004] 3 FCR 579, reversed at [2006] QB 273 (CA). For commentary, see J K Mason and G T Laurie, “Personal autonomy and the right to treatment: A note on R on the application of Burke v General Medical Council” (2005) 9 Edin LR 123.

p ersonality, privacy and autonomy in medical law 457 jurisprudence,18 significant and sustained challenges to the authority of the medical profession,19 an important increase in the number of medico–legal cases, 20 and more governmental attention paid to the field than ever before. This last point can be seen, inter alia, through the establishment of a plethora of regulatory bodies21 and the increase in the political agenda of public engagement in healthrelated matters.22 As a consequence, it is possible to discern the following changes since 1998: • a judicial shift of attitude away from the medical professions and a corresponding focus on patient rights; • the rapid rise in attention paid, in particular, to autonomy-based arguments; • judicial willingness to assume the role of ultimate arbiters in disputes; • a change in the language of medical law whereby we now see free and liberal references to the autonomy and dignity of patients and the need to afford respect accordingly. This is not an insignificant observation because the language that we use predisposes us towards certain attitudes as to what is at stake. 10.3

WHAT IS AT STAKE?

Medical law is ideally suited for a discussion of personality rights because it involves a range of interests of persons which lie at the

 See, for example, Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134, para 22.  See the Alder Hey and Bristol inquiry reports on the internet respectively: http:// www.rlcinquiry.org.uk/index.htm (Alder Hey) and http://www.bristol-inquiry.org. uk/ (Bristol). 20  Although the numbers of medical negligence cases that reach court in Scotland is significantly lower than in England and Wales, see Royal Society of Edinburgh, Encouraging Resolution: Mediating Patient/Health Services Disputes in Scotland (2002), Chapter 5. 21  Examples include the Human Genetics Commission (1999), Central Office for Research Ethics Committees (2001), now NRES (2007), Genetics and Insurance Committee (2001) and the Medicine and Healthcare Products Regulatory Agency (2003). Most recently, see the report of the Chief Medical Officer (for England and Wales), Good doctors, safer patients: Proposals to strengthen the system to assure and improve the performance of doctors and to protect the safety of patients (2006). 22  See here the Department of Health website on patient and public involvement: http://www.dh.gov.uk/PolicyAndGuidance/OrganisationPolicy/PatientAnd PublicInvolvement/fs/en. The Scottish Health Council was established in 2005 “to ensure that the views of patients and the public are properly taken into account by Health Boards”: http://www.scottishhealthcouncil.org/. 18

19

458

r i ght s of p e rs o n al i t y

heart of most theories of personality. These can be grouped into three overlapping categories: 1. Spatial interests (which concern both physical and psychological integrity). 2. Informational interests (which concern patient confidentiality and privacy). 3. Decisional interests (which concern autonomy and selfdetermination).23 We begin with an analysis of recent rulings which purport to protect patients and their decisional interests, but there is much to disentangle conceptually, and it is important to separate out various interests where possible and to understand their relationships to each other, particularly if one’s concern is to understand some holistic sense of personality in the medico-legal context. This is why the chapter ends with an example which demonstrates the importance of appropriate categorisation of an interest in helping us to understand what may be at stake for patient personality. Our primary concern for now is to consider how constructs of autonomy are taking shape in medical law and to ask whether there is growing recognition of a stand-alone interest in, or right to, self-determination. As already stated, 24 the starting point for this discussion is recent House of Lords rulings which have tested the negligence action by attempting to provide remedies for autonomybased harms which do not fit easily within the negligence action. They raise the question whether new interests, or even new rights, are being recognised in and around the rhetoric of autonomy. To the extent that there is evidence of such emerging interests or rights, we will explore what the consequences of this might be for patients and health care professionals alike and whether other remedies beyond negligence are necessary or preferable. 10.4

THE RISE AND RISE OF PERSONAL AUTONOMY

It is fitting that recent developments in the protection of autonomy have emerged from within the medical negligence action because this action is the quintessential example that has been used to characterise medical law in the (perhaps-ungenerous) terms outlined above. This is the view that there has been inappropriate and undue deference to the medical profession by the judiciary in determining the scope of duties towards patients. This can be seen most notably   For a discussion and defence of this approach, see G T Laurie, Genetic Privacy: A Challenge to Medico–Legal Norms (2002). 24  See n 11 above, and text. 23

p ersonality, privacy and autonomy in medical law 459 through the readiness of the courts when applying the standard of care Bolam test25 – which asks what would “a responsible body of medical opinion” consider to be an appropriate standard of care? – to accept that a responsible body of opinion was determinative of the appropriate standard required by law.26 And from the autonomy perspective, this approach reached a nadir in 198527 when the House of Lords ruled in Sidaway v Board of Governors of the Bethlem Royal Hospital28 that such a doctor-oriented approach applied equally to the determination of what patients should be told about prospective treatment, even when the decision of the patient whether or not to proceed was, in essence, a matter of self-determination. While some may disagree, the Scottish courts seem to have endorsed this view whole-heartedly. Thus, we have Lord Caplan stating in Moyes v Lothian Health Board 29 in 1991: “I can read nothing in the majority view on Sidaway which suggests that the extent and quality of warning to be given by a doctor to his patient should not in the last resort be governed by medical criteria.”30

But, as has been indicated, while 1998 may have been a turning point with the passing of the Human Rights Act, this event was also contemporaneous with developments in the common law indicating a movement in judicial thinking towards a more patientoriented approach, at least in England and Wales. Thus we have the ruling in that year from the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust31 which seems more accepting of a  Derived from Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. This decision was itself based on the earlier Scots ruling in Hunter v Hanley 1955 SC 200 and it is now generally accepted that the standard both north and south of the border is the same, albeit that the tests are formulated in a slightly different manner. I have cited Bolam in the text since this is the decision upon which the House of Lords decisions proceed. 26   For an extreme example from the House of Lords, see Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 (HL). 27  Although see Gold v Haringey Health Authority [1987] 3 WLR 649 (CA). 28   [1985] AC 871. 29   1990 SLT 444 (OH) at 449 per Lord Caplan. 30  To my knowledge, there has been no successful action for negligent failure in information disclosure in Scotland since that time, with the possible exception of Goorkani v Tayside Health Board 1991 SLT 94 (OH), in which damages in the sum of £2,500 were awarded for “the loss of self-esteem, the shock and anger at the discovery of his infertility together with the frustration and disruption which ignorance and the sudden shock of discovery brought to the marital relationship” arising from a failure to inform that sustained use of a drug to prevent blindness might give rise to infertility, which did indeed happen. The main action failed on grounds of causation, and this point was not pled directly. 31   (1999) 48 BMLR 118. 25

460

r i ght s of p e rs o n al i t y

prudent patient test for information disclosure, 32 and we also have the decision of the House of Lords in Bolitho v Hackney Health Authority33 which has been hailed as making important inroads into the professional grip on the Bolam test by requiring that medical opinion at least have a logical basis.34 Against this background, however, the more recent decision of the House of Lords in Chester v Afshar 35 provides us with the starting point for our discussion of the jurisprudence – both for its bold advance in the protection of autonomy, and for its remarkably similar facts to the House’s 1985 decision in Sidaway. The contrast is extremely illuminating in revealing how much the House of Lords’ attitude has changed in the space of 20 short years. The similarities in the facts of Sidaway and Chester are: 1. Both patients suffered from recurrent pain and surgery was advised. 2. Both patients alleged that they were not informed of a risk in the region of 1–2 per cent of nerve damage and paralysis. 3. Both patients underwent surgery and the aforementioned damage materialised but there was no suggestion in either case that this was due to negligent execution of the procedure – each was a “failure to warn” case. Notwithstanding, the outcomes of the cases were radically different. Mrs Sidaway lost on an application of the Bolam test which served to delimit the scope of the duty of care owed to her, while Ms Chester won, even although she could not prove on traditional causation rules that her physical injury was caused by the negligent failure to inform because she could not show that she would never have undergone the operation if she had known. At best, she could claim that if she had been told she would not have undergone the surgery on the day that she did. The inherent risk in the procedure would not, of course, change no matter when she underwent the surgery.

 Lord Woolf said: “it seems to me to be the law . . . that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of the doctor to inform the patient of that risk, if the information is needed so that the patient can determine for him or herself as to what course he or she would adopt”. It should be noted, however, that the medical profession still had the discretion to decide what was a “significant” risk, and in the instant case held that the risk was not significant and so the case failed. 33   [1998] AC 232. 34  See M Brazier and J Miola, “Bye-Bye Bolam: A Medical Litigation Revolution?” (2000) 8 Med L Rev 85; and contrast A MacLean, “Beyond Bolam and Bolitho” (2002) 5 Med L International 205. 35   [2004] UKHL 41; [2005] 1 AC 134. 32

p ersonality, privacy and autonomy in medical law 461 Another radically different feature when comparing Chester with Sidaway is the approach to the discussion of what is at stake. The House of Lords in Sidaway unanimously saw the issues as concerning the duty of care in the negligence action, although Lord Scarman took a circuitous route to this point as we shall see presently. The majority in Chester saw it, rather, as a rights-based issue. Thus, variously we have Lord Hope who talks of “the right to choose”, 36 and Lord Walker who was concerned with “the right to make his own decisions as a basic human right”.37 And, while Lord Steyn took as his starting point “the right of every individual of adult years and sound mind . . . to decide what may or may not be done with his body”38 – implying that the harm in question with which we should be concerned is physical harm to the body – he goes on to talk of “the right [of patients] to make important medical decisions affecting their lives for themselves”. Indeed, he saw the role of informed consent as protecting two important interests: (a) physical integrity, and (b) due respect to autonomy and dignity.39 A confusing feature of Chester is the association made by the majority between the perceived affront to patient autonomy and the physical injury suffered by the patient which, all agreed, was not caused by the doctor on conventional causation principles. It is the modification of those principles to allow recovery which has preoccupied most commentators.40 The focus of this chapter, however, is to ask what precedent might have been established in respect of the interests in autonomy and dignity, primarily with an emphasis on liability for negligent failure in information disclosure, but also with an eye to how this relates to broader judicial recognition of autonomy or dignity-related rights or interests.41 10.5

REVISITING SIDAWAY

It is informative to return to the House of Lords’ decision in Sidaway for some guidance – where, incidentally, neither the term “autonomy”   [2004] UKHL 41 at para 56.   Ibid, para 92. 38   Ibid, para 14. 39   Ibid, paras 17–18 40 See M Hogg, “Duties of care, Causation, and the implications of Chester v Afshar” (2005) 9 Edin LR 156 and J Stapleton, “Occam’s Razor Reveals an Orthodox Basis for Chester v Afshar” (2006) 122 LQR 426. 41  As Mason and Brodie have pointed out: “the measure of damages allowed does not, in truth, reflect the loss suffered because, at the end of the day, the loss lay in an invasion of autonomy per se, and an award of full damages can be said to overcompensate”; see K Mason and D Brodie, “Bolam, Bolam – wherefore art thou Bolam?” (2005) 9 Edin LR 298 at p 305. 36 37

462

r i ght s of p e rs o n al i t y

nor the term “dignity” was once mentioned. Of particular interest is Lord Scarman’s discussion of the action. As he pointed out, the case raised a question never before considered by the House, viz: “Has the patient a legal right to know, and is the doctor under a legal duty to disclose, the risks inherent in the treatment which the doctor recommends?”42 He continued: “There is further a question of law as to the nature of the cause of action. Is it a cause of action in negligence, ie a breach of the duty of care, or is it based on a breach of a specific duty to inform the patient which arises not from any failure on the part of the doctor to exercise the due care and skill of his profession but directly from the patient’s right to know?” [emphasis added]43

On this last point, he stated that this was new ground for the court, but that “the circumstance that this House is now called upon to explore new ground is no reason why a rule of informed consent should not be recognised and developed by our courts”. In the event, however, he did not seek to recognise any such right on the basis that: “English law has not accepted a ‘no-fault’ basis for the liability of a doctor to compensate a patient for injury arising in the course of medical treatment.”44 The way to proceed, therefore, was by way of the negligence action. One has to wonder, however, how far the ruling in Chester v Afshar has now brought us to such a no-fault position. We must remember that in such cases we are not dealing with medical mishaps; these are inherent risks in procedures not brought about by negligent medical conduct on the part of a practitioner. Any sub-standard conduct to be found is in the duty to warn, but with the removal of a need to show actual causation between some fault and actual physical injury – the way has been cleared for recovery even in circumstances where the patient would have accepted treatment anyway.45 This simply does not square with the existing negligence regime.46 While Cane has observed that “whatever the ideological basis of the duty to warn (or, in other words, the interest which it protects), its importance in practice lies in providing a basis for imposing liability for physical injury not caused by negligence”,47 we must ask if there is a necessary link between failure to disclose and the physical injury?

  Sidaway v Bethlem Royal Hospital [1985] AC at 877.   Ibid. This was, in fact, Mrs Sidaway’s second submission. 44   Ibid at 885. 45  This was expressly observed by Lord Bingham in Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134, para 9. 46   Compare Stapleton, (2006) 122 LQR 426. 47  P Cane, “A Warning About Causation” (1999) 115 LQR 21 at p 23. 42

43

p ersonality, privacy and autonomy in medical law 463 Put another way, is the physical injury the actual harm or interest with which we are to be concerned? Would recovery still be possible if there was no physical harm? As we have seen, Lord Steyn began his analysis in Chester with the right of every individual to decide what may or may not be done with his body – suggesting, perhaps, injury as an interference with, or harm done to, the body itself. But the rest of the majority was not so concerned, talking instead of “the right to choose”, and implying that the harm or affront is to choice itself, that is, a direct interference with self-determination. If this is the interest now to be given recognition, it has potentially far-reaching implications for patients’ rights and doctors’ duties. For one thing, it may require a role for the law beyond the confines of the negligence action where injury is confined to that which is physical, economic or psychiatric. Being deprived of a choice does not fit within such categories,48 yet it is the basis upon which the House of Lords was able to make the link to Ms Chester’s physical injury and so cast the action as a near-approximation to a traditional negligence action. But, we must ask again, what if there was no physical injury? Is there a basis for recovery nonetheless for affront to “mere, sheer choice”?49 Albeit dissenting, Lord Hoffmann could see that “there may be a case for a modest solatium in such cases”.50 He recognised the basis of the argument in these cases thus: “Even though the failure to warn did not cause the patient any damage, it was an affront to her personality and leaves her feeling aggrieved.”51 He did, however, opine that difficulties of assessing a suitable figure and the costs of litigation mean that “tort is an unsuitable vehicle for distributing modest compensation”.52 This recognition apart, Lord Hoffmann saw the issue very much as one of duty: to give the opportunity to avoid or reduce a risk. This reflects the clear focus of the 1985-constituted House of Lords which was on the duty of the doctor. But the majority of the 2004-constituted House of Lords not only upheld the claimant’s claim – against Lord Hoffmann’s better judgment – but did so on the basis of the rights of the patient, begging the question as to the nature and content of such rights.

48  Absent arguments about loss of a chance, but these still require recognised heads of damage in negligence. 49  I borrow this phrase from Baroness O’Neill in the Gifford Lectures 2001. These lectures formed the basis of O O’Neill, Autonomy and Trust in Bioethics (2002). 50   Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134, para 34. 51   Ibid, para 33. 52   Ibid, para 34.

464

r i ght s of p e rs o n al i t y

Lord Scarman in Sidaway saw “no reason in principle” not to allow recovery for the “right to know” but there was no evidence of English law recognising any such free-standing right. So, is Chester an aberration or a reflection of trends to come? Other decisions would suggest the latter, and evidence is to hand of the House of Lords recognising autonomy-related interests elsewhere. These decisions have also arisen in the context of the negligence action, and also purport to extend protection of interests beyond the confines of that action. 10.6

McFARLANE AND REES

In McFarlane v Tayside Health Board53 the House of Lords was unanimous in its rejection of the claim in negligence of parents for recovery of the costs associated with the upbringing of a healthy child born after a failed vasectomy.54 Solatium (or in English terms general damages) was nonetheless payable in respect of the pregnancy and childbirth itself, and Lord Millett was also concerned not to send Mr and Mrs McFarlane away empty-handed: “[t]hey have suffered both injury and loss. They have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. Their decision to have no more children is one the law should respect and protect”.55 None of the other Lords of Appeal took up this somewhat unusual suggestion in the instant case, but it was adopted by the majority of the House a few years later in Rees v Darlington Memorial Hospital NHS Trust, 56 which is one of a series of cases that set out to test the limits of the McFarlane ruling and potentially to exploit its loophole that some costs are recoverable when an “uncovenanted child” is disabled.57 Once again a wrongful conception case, the

  2000 SC (HL) 1.   For a full account and insightful analysis, see J K Mason, “Unwanted Pregnancy: A Case of Retroversion?” (2000) 4 Edin LR 191, and on the aftermath, see J K Mason, “Wrongful Pregnancy. Wrongful Birth and Wrongful Terminology” (2002) 6 Edin LR 46, and “From Dundee to Darlington: An End to the McFarlane line?” 2004 J R 365. 55   McFarlane v Tayside Health Board 2000 SC (HL) 1 at 114. He continued: “They are entitled to general damages to reflect the true nature of the wrong done to them. This should be a conventional sum which should be left to the trial judge to assess, but which I would not expect to exceed £5,000 in a straightforward case like the present.” 56   [2003] UKHL 52; [2004] 1 AC 309. 57   Once again, for full commentary one could scarcely do better than following the writings of Mason, at n 54 above (who also explains the origins of the term “uncovenanted”). 53

54

p ersonality, privacy and autonomy in medical law 465 distinguishing fact of Rees was that the mother was disabled, while Catherine McFarlane’s parents were healthy. Notwithstanding, the majority of a panel of seven Lords of Appeal held that McFarlane could not be distinguished because the child herself was healthy, and there could therefore be no recovery for the costs of bringing her up. Lord Bingham, however, supported an autonomy-based award of “conventional damages”: “the fact remains that the parent of a child born following a negligently-performed vasectomy or sterilisation, or negligent advice on the effect of such a procedure, is the victim of a legal wrong. . . To speak of losing the freedom to limit the size of one’s family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned”. 58 [emphasis added]

But while this injury seems contingent on the negligence of another, it is an injury which is not recognised in negligence. The injury clearly cannot be the birth of the child because McFarlane and its progeny set out explicitly to exclude this on policy grounds. Moreover, it engages an interest which is potentially incredibly-broadly conceived, namely, the interest in living one’s life as we would wish and plan – otherwise known as self-determination.59 This position was endorsed, inter alia, by Lord Millett: “for . . . the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law”.60 58  He continued: “I would accordingly support the suggestion favoured by Lord Millett in McFarlane’s case ([2000] 2 AC 59 (HL) 1 at 114) that in all cases such as these there be a conventional award to mark the injury and loss, although I would favour a greater figure than the £5,000 he suggested (I have in mind a conventional figure of £15,000) and I would add this to the award for the pregnancy and birth. . . . This solution is in my opinion consistent with the ruling and rationale of McFarlane’s case. The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane’s case rule” (para 8). 59   Other jurisdictions such as Germany and South Africa remain uncertain whether self-determination is properly considered as a right of personality, see this volume, Whitty, Chapter 3, Section 3.4.11. 60   “I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected

466

r i ght s of p e rs o n al i t y

The core question arising from both of these rulings – taken in tandem with Chester – is whether we are merely seeing the courts struggle with the vagaries of the negligence action – and in the case of Rees is it indeed some desire to evade the legal policy in McFarlane 61 – or is something more profound going on? 10.7

A NEGLIGENCE ANALYSIS

In both Chester and Rees the patient was sub-optimally informed, that is, the patient was not given sufficient information on which to make a valid, informed decision. What is also common to the cases is the characterisation of this as an interference with the claimants’ autonomy and dignity; moreover, each claimant was let down by the negligence action on conventional rules but a remedy was found nonetheless. But is it a remedy in negligence? In favour of this view is the general tenor of discussion in Chester and the need to depart from conventional causation principles in the name of fairness.62 But this does not address the mismatch of the interest that is wronged and the physical harm that resulted. Their Lordships in McFarlane and Rees who supported an award did so on the basis of the same language as we find in Chester – autonomy and dignity. Furthermore, the particular examples given in these cases of the interests thwarted are “the loss of the opportunity to live one’s life in the way one has planned” and “the loss of the freedom to limit the size of one’s family”. Added to this, we can sum up the rationale of the majority in Chester as to the interest at stake in the words of Lord Walker: “the right to make [one’s] own decisions as a basic human right”.63 This language of human rights and freedoms is not only amorphous, but it suggests that in the case by law. The loss of this right is not an abstract or theoretical one. As my noble and learned friend Lord Bingham of Cornhill has pointed out, the parents have lost the opportunity to live their lives in the way that they wished and planned to do. The loss of this opportunity, whether characterised as a right or a freedom, is a proper subject for compensation by way of damages” (para 123).  With respect, it can matter very much whether the putative interests at stake are characterised as freedoms or rights. Protection of procreative freedom, for example, might be a reason to object to interferences such as forced sterilisations (noninterference with bodily integrity), but to talk of a “right” to limit the size of one’s family not only begs the question of the source of such a right, but also implies some positive entitlement to the realisation of one’s self-regarding autonomy interests. 61  I am grateful to Professor J K Mason for pointing out that the short time frame between the cases may have been another factor explaining the judicial reluctance in Rees to change McFarlane. 62   For a discussion of these arguments, see J K Mason and G T Laurie, Mason and McCall-Smith’s Law and Medical Ethics (7th edn, 2006), para 9.95. 63   Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134 at para 92.

p ersonality, privacy and autonomy in medical law 467 of a Chester-scenario there should be no need at all to link one’s affront to a tangible physical harm, save that these are the current constraints of the negligence action. 64 This leaves us with two options, or, at least, two questions: 1. Is this jurisprudence the recognition of a particular kind of harm to autonomy or choice from within the negligence action’ or 2. Is it the beginning of recognition of a (human) right to autonomy and dignity which, inter alia, can be infringed by the negligent conduct of another? At least some of their Lordships considered that the latter may be happening, as demonstrated in the words of Lord Steyn in Rees, who was highly critical of the “conventional award”: “Like Lord Hope I regard the idea of a conventional award in the present case as contrary to principle. It is a novel procedure for judges to create such a remedy.”65 He added: “[the creation of a new remedy is] . . . a radical and important development which should only be embarked on after rigorous examination of competing arguments”.66 If this is the creation of a new remedy, then we need to know what is the right, in both its nature and scope. The idea of “the right to make one’s own decisions as a basic human right” is a very principled prima facie stance but it also suggests that it would be very difficult to confine the precedents in Chester and Rees to their specific factual circumstances. As has been said, notions of autonomy and dignity are notoriously vague and difficult to pin down.67 An interest in protecting or promoting one’s own autonomy or dignity has potentially limitless application. Is there a principled reason to recognise this in some contexts and not others? 10.8

A HUMAN RIGHTS FOCUS

The introduction of human rights discourse at this juncture is apt because our domestic courts are not at liberty to deny remedies if  The SME Reissue “Medical Law”, para 262 (M Earle and N R Whitty) refers to Outer House authority for an award of solatium for hurt to feelings/shock in Goorkani v Tayside Health Board 1991 SLT 94 (OH) – £2,500 for loss of selfesteem and shock and anger at discovery of infertility. This is to be contrasted with Lord Reed’s comments in Ward v Scotrail Railways Ltd 1999 SC 255 (OH) wherein he noted that evidence of emotional distress is not enough to recover in a negligence action and that there has to be, at least, “recognisable psychiatric injury” (as a form of physical injury). 65   Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309, para 46. 66   Ibid. 67   For an excellent discussion, see Beyleveld and Brownsword, n 9 above. 64

468

r i ght s of p e rs o n al i t y

human rights are truly at stake. It is of course common ground in the human rights sphere that the recognition of a right as a human right necessitates the availability of an adequate remedy.68 There has been considerable discussion, for example, about whether the common law action of breach of confidence is sufficient to protect privacy interests, as Woolf CJ explored in A v B Plc,69 and wherein he suggested that “it is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy”.70 Certainly, the House of Lords has indicated its antipathy to the development of a free-standing tort of invasion of privacy that might fill gaps left by a breach of confidence action. And, as to the range of interests which might be subsumed under the right to respect for private life, guaranteed by Art 8 of the European Convention on Human Rights, Lord Hoffmann had this to say in the decision in Wainwright v Home Office 71 which concerned an invasion of spatial privacy interests (ie bodily integrity) rather than decisional interests: “Although Article 8 guarantees a right of privacy, I do not think that it treats that right as having been invaded and requiring a remedy in damages, irrespective of whether the defendant acted intentionally, negligently or accidentally. It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs. Article 8 may justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage is suffered other than distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety.”72

But the House of Lords must be read in light of the European Court of Human Rights in the Wainwright appeal,73 when the United Kingdom was found to be in violation of both Arts 8 and 13 for failure to provide an effective remedy for negligent interference with the right to respect for private life. In particular, it was stated:

 Art 13 ECHR provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 69   [2002] 3 WLR 550. 70   Ibid at paras 205–206. 71   Wainwright v Home Office [2004] 2 AC 406. 72  Para 51. 73   Wainwright v United Kingdom (Application No 12350/04) [2006] ECHR 807, 26 September 2006. 68

p ersonality, privacy and autonomy in medical law 469 “. . . the Court observes that the House of Lords found that negligent action disclosed by the prison officers did not ground any civil liability, in particular as there was no general tort of invasion of privacy. In these circumstances, the Court finds that the applicants did not have available to them a means of obtaining redress for the interference with their rights under Article 8 of the Convention.”74

Whether this now requires the UK domestic courts to accept or develop a common law action of invasion of privacy does not specifically concern me here.75 The broader point is the reinforcement of the obligation of Signatory States to provide adequate remedies for the rights protected by the Convention, and the specific questions of what those rights look like and how they might be violated. The European Court in Wainwright confirmed that negligent intrusions on bodily integrity are actionable, even when these do not result in tangible psychiatric injury but, rather, upset and hurt to feelings.76 This is akin to our second option above, that is, that rights of autonomy and dignity can be infringed by the negligent acts of others without having to prove a negligence action. It thereby suggests a considerable expansion of the circumstances in which privacy interests can be compromised. Where, then, do decisional interests (autonomy and self-determination) fit within this emerging rubric of personality interests, or rather, personality-associated human rights? 10.9

RIGHT TO RESPECT FOR AUTONOMY AS A HUMAN RIGHT

The “notion of personal autonomy” was recognised expressly by the European Court of Human Rights for the first time as an important principle underlying “respect for private life” in Pretty v United Kingdom in 2002.77 The Court confirmed that “private life” itself  Para 55.  The Scottish decision of Henderson v Chief Constable, Fife Police 1988 SLT 361 (OH), allowed recovery of £300 for solatium for “the invasion of privacy and liberty which Mrs Henderson suffered as a result of having to remove her brassiere” after an inappropriate police search. It indicates that Scots law already conforms to the European Convention. The basis for this recovery is, however, disputed, see, eg, Elspeth Reid, Chapter 4 and Hector MacQueen, Chapter 12, Section 12.5). 76  The facts of Wainwright were that while the second applicant suffered from posttraumatic stress disorder has a result of his experiences, the first applicant did not. None the less, each was awarded Euro 3,000 by the European Court of Human Rights. 77   Pretty v United Kingdom (2002) 35 EHRR 1. See para 61: “Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.” 74

75

470

r i ght s of p e rs o n al i t y

enjoys an expansive interpretation to encompass both negative and positive aspects – that is, that the promotion of private life is as much a part of Art 8 as the protection from harm.78 In particular, Art 8 has been interpreted to give citizens a right to “essential information” in respect of threats to their health, which is seen as part of a right to have assistance in the fulfilment and enjoyment of one’s private life. Thus, in Guerra and Others v Italy,79 citizens of Manfredonia, Italy, were entitled to information about the nature of the work and associated risks of a toxic chemical plant located less than one kilometre from their town. Similarly, in McGinley v UK80 the European Court confirmed that where a state engages in hazardous activities which might have hidden adverse consequences on the health of those involved, Art 8 requires that an effective and accessible procedure be established to enable such persons to seek relevant and appropriate information. These cases impose positive obligations on the state to ensure that adequate information is given to people to allow them to make truly autonomous choices about matters concerning their health. They represent the beginning of acceptance of the centrality of selfdetermination to human rights which are crucial to the protection of the personality, and this was eventually expressly acknowledged in Pretty. However, before this is of any assistance to the development of domestic patient rights, a greater elucidation is required of how much information must be given, or rather, can be expected or demanded as part of the rights in question. In Guerra, for example, no indication was offered of what constituted “essential information” necessary to respect the private lives of the inhabitants, nor was any guidance or test provided on how to determine the extent of disclosure required.81 Notwithstanding, it is difficult to escape the See, too, more recently, Evans v United Kingdom, 7 March 2006: “It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant’s right to respect for her private life. The Court agrees, since ‘private life’, which is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world (Pretty v United Kingdom, para 61), incorporates the right to respect for both the decisions to become and not to become a parent” (para 57). 78  The Court said: “Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p 37, § 47, and Friedl v Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p 20, §45)” (para 61). 79   (1998) 26 EHRR 357. 80   McGinley v UK (1999) 27 EHRR 1. In the present case the UK had fulfilled its obligation. 81  This passage draws from my chapter in Boyle et al, n 15 above.

p ersonality, privacy and autonomy in medical law 471 notion that an obligation of information disclosure that is imposed in the name of the autonomy of a person is in part an obligation of autonomy-enhancement or -promotion, that is, to put the patient in a position of being in possession of information relevant to their life and their immediate decision. On a human rights analysis, autonomy might be expanded considerably.82 10.10 FROM RIGHTS TO REMEDIES Human rights may be taking us down a path where domestic courts have little choice but to recognise autonomy or dignity-based interests. The House of Lords may, indeed, be pre-empting the kinds of arguments to come, wittingly or otherwise. But, can expansion – or distortion – of the negligence action adequately address the range of possible interests and provide a suitable remedy? If not, what might be available to ensure sufficient protection? We have already seen how the House of Lords has categorised the autonomy issues at stake, and it is reasonable to deduce that this includes an element of promotion as well as protection. If a concern is indeed the promotion of patient autonomy, and not merely the avoidance of some physical or economic harm as is the primary concern of the negligence action, then there may be numerous scenarios that could be autonomy-enhancing through information disclosure but which may not fall into the negligence paradigm. For example, while the focus thus far has been on disclosure of risks, truly autonomous choices depend on a range of factors – it is about being in possession of material facts that have a bearing on your life choices – and this could include the non-medical as well as the medical. In the context of treatment choices, for example, it extends to information about alternative treatments, alternative techniques, and it could even extend to information about the underlying rationale for denying particular treatments for fiscal reasons: am I entitled to know which treatments I am not getting in the public sector to empower me to seek them in the private sector? Outside the purely therapeutic context, it could extend to information about who might be carrying out the operation, about their skills in doing so, about their standing in government league tables, and even about their lifestyle if this impacts on their ability to do their job. Of course, each of these pieces of information could have a bearing on a negligence action so long as recognised harm results. But what if I discover that a better surgeon was available on the day, or indeed, that I was operated on by a 16-year-old and not a qualified surgeon? 82

 Subject, of course, to the rights and freedoms of others under ECHR, Art 8(2).

472

r i ght s of p e rs o n al i t y

Assuming all went well medically, what is my harm in negligence? Quite simply, there is none. Common to each of these is, however, harm to choice. And this brings us back to the question of whether harm to choice is enough? It might be. It depends on how much value we place in autonomy itself. We might consider it problematic, for example, where there is a permanent closing down of options. This is, in effect, what happened in Chester and Rees. Once again, there may be a way to construct this within the negligence action as a form of “loss of a chance” but the harm to be recognised will still be in the categories of negligence-based harms. Other issues may arise from the intentional withholding of information from a patient in either good faith or bad faith. The former may occur when, for example, a health care professional considers that it is not in a person’s best interests to hear a particular piece of information at a particular time: this is the so-called “therapeutic privilege”.83 Alternatively, what of the doctor who invites her patients to take part in a clinical trial but does not disclose that it is a commercial trial nor that she has a personal financial interest in it? This might lead to participation that patients would otherwise have avoided had they known – and which potentially involves loss of control of personal data and tissue samples. There is no fiduciary relationship between NHS professionals and their patients in the United Kingdom,84 this is intentional and not negligent conduct, and there is no harm beyond harm to choice. Is any remedy available in such cases?85 Once again, the answer would seem to be negative from the perspective of the negligence action. Autonomy and dignity-based arguments might, then, support obligations of information disclosure in a range of circumstances depending on the level of abstraction at which the arguments are constructed, particularly if a notion such as “the denial of the opportunity to live [one’s] life in the way that [one] wished and

83  The doctrine has been accepted in many US states and Commonwealth countries: see for example, Canterbury v Spence 464 F 2d 772 (DC, 1972) and Battersby v Tottman 37 SASR 524 (South Australia Supreme Court). It has not been necessary to deploy the concept in the UK because the Bolam test has left discretion on disclosure with the medical profession. It was none the less discussed in Sidaway v Bethlem Royal Hospital [1985] AC 871 at 888. 84  I Kennedy and A Grubb, Medical Law (3rd edn, 2000), pp 1004–1012; SME Reissue “Medical Law” (2006), para 5. This is not to deny that doctors are bound by certain specific obligations inherent in a fiduciary relationship such as the doctors’ duty of medical confidentiality owed to their patients. 85  There are prohibitions on the uses of data and samples under the Data Protection Act 1998, the Human Tissue Act 2004, and the Human Tissue (Scotland) Act 2006.

p ersonality, privacy and autonomy in medical law 473 planned” becomes actionable in law. For now, it seems clear that the negligence action cannot alone hope to protect autonomy or dignity to the extent that might be required. So what other options are available to us? 10.11 A SOLUTION FOR SCOTS LAW? Earle and Whitty have suggested in a recent contribution to the Stair Memorial Encyclopaedia that recovery of the Rees-type conventional award for solatium is best seen as “an infringement of a non-patrimonial right of personality, an impairment of dignity in a wide sense of that term” protectable under an actio iniuriarum [emphasis added].86 Much has been said already in this volume about the actio iniuriarum: how it may allow recovery for hurt to feelings alone, how it may require intentional conduct, and how its scope in Scots law is controversial and in some areas its existence highly doubtful.87 This proposal from Earle and Whitty is premised on a wide interpretation of dignity (and so, one would assume, also of autonomy) and may well support remedies in the kinds of circumstances outlined above. But numerous problems remain, not least for the absence of clear authority supporting the existence of the action in Scots law. Earle and Whitty rely on Martin v McGuiness88 as evidence that dignity is a protected interest in Scots law, but to the extent that the actio iniuriarum was raised (let alone discussed), Lord Bonomy had only this to say: “[counsel for the defender] submitted that the actio iniuriarum provides redress only where deliberate conduct involves an attack on personality for an unlawful purpose. Examples were insulting and abusive behaviour, harassment or stalking, which was seen as an attack on the honour of another, beating another man’s slave, which was an insult to the honour of the owner, and intruding into another’s home for an unlawful purpose. It may, however, be only a

  SME Reissue “Medical Law” (2006), para 132.  See Niall Whitty, Chapter 3 (overview of personality rights, real and verbal injury and actio iniuriarum but referring at Section 3.4.11 to the problematic character of a personality right to autonomy); Elspeth Reid, Chapter 4; Hector MacQueen, Chapter 12, Section 12.5 (analysing the case for and against the actio iniuriarum as a remedy protecting privacy and other personality rights); for the historical background of the actio iniuriarum in Scots law, see John Blackie, Chapter 2. 88   2003 SLT 1424. 89  This language reflects traditional notions that the actio iniuriarum in Roman law protected interests in dignitas (dignity), corpus (body), and fama (reputation). 86 87

474

r i ght s of p e rs o n al i t y short step from an assault on personality of the nature of an insult to the dignity, honour or reputation of a person,89 causing hurt to his feelings, to deliberate conduct involving unwarranted intrusion into the personal or family life of which the natural consequence is distress . . . I have done no more than reflect the submissions made. Whether an infringement of art 8 by one private individual causing loss to another, which has not in the past given rise to a successful claim, should now have that result,90 and the basis on which such a claim may be made remain to be determined in a case where these questions arise as live issues.”91

There is currently scant authority for substantive, direct protection of dignity in Scots law, despite some nice rhetoric in Law Hospital v Lord Advocate about “death with dignity”.92 Most recently, however, we have the opinion of Temporary Judge CJ MacAulay QC in Stevens v Yorkhill NHS Trust.93 This case arose after the organs of a dead baby girl were removed and retained without the knowledge or consent of her mother. It reflects similar cases south of the border, which were dealt with most comprehensively by Gage J in AB v Leeds Teaching Hospital NHS Trust,94 and to which Temporary Judge MacAulay makes significant reference throughout. Stevens is relevant to the present discussion because it proceeds along two lines: (1)  it was claimed that “[i]t was the duty of the first defenders to take reasonable care for the safety and health of the pursuer as the mother of Nicola, and not to expose her unnecessarily to a risk of injury to her health. They knew or ought to have known that to carry out a post-mortem examination of a deceased person without the informed permission of their near relatives et separatim to remove et separatim to retain body parts of the deceased without the informed permission of said relatives would, reasonably foreseeably, cause pathological harm to such relatives or in any event a substantial proportion of them”;95 and (2) “the removal and retention of body parts from Nicola were acts which were unlawful in the absence of consent of the pursuer 90  The application of the doctrine of horizontal effect, ie acknowledging that individuals can breach human rights as between themselves, has long been recognised by the European Court of Human Rights, see X and Y v Netherlands (1986) 8 EHRR 235. 91   Martin v McGuiness 2003 SLT 1136 (OH), paras 29–30. 92   Law Hospital NHS Trust v Lord Advocate 1996 SC 301. 93   [2006] CSOH 143; 2006 SLT 889. 94   [2004] EWHC 644 (QB); [2005] QB 506. 95   [2006] CSOH 143; 2006 SLT 889, para 7.

p ersonality, privacy and autonomy in medical law 475 and that these unlawful actings have caused loss, injury and damage”.96 In other words, there is a claim in fault – ie negligence, and a claim that an independent legal wrong exists in Scots law concerning unauthorised removal and retention of organs. As to the latter, the question arose about the legal basis for such a wrong. The defenders opined that if this line of argument was to succeed then the most likely source was assythment, but because this action was abolished by the Damages (Scotland) Act 1976, s 8, there was no case to answer.97 Temporary Judge MacAulay disagreed, however, and applied three post-mortem cases from the early 20th century which have been promoted previously in support of the existence of the actio iniuriarum in Scots law.98 The cases are Pollok v Workman, Conway v Dalziel and Hughes v Robertson 99 and the facts in all involve an attempt to recover for the hurt feelings and affront to relatives’ dignity occasioned by an unauthorised post mortem on a family member. Temporary Judge MacAulay accepted the pursuer’s argument that the case of Pollok v Workman supports an independent legal wrong in respect of unauthorised post mortems, and that Conway v Dalziel supports a separate and different legal wrong of unauthorised removal and retention of organs. In both circumstances,100 relatives could recover for solatium: “it is the notion of the affront caused that seems to be the basis of the claim”.101 It was essential to the pursuer’s case to be able to argue that organ removal and retention was an independent wrong because she had accepted that she had consented to the post-mortem per se. But on what basis is she entitled to recover for solatium? The Judge considered himself bound by Conway unless it had been superseded, e.g. by statute, and on this point he concluded that it had not been,  Para 8.  Arguments were also advanced about the Human Tissue Act 1961, but these are not relevant for present purposes. 98   For an excellent treatment, see N R Whitty, “Rights of Personality, Property Rights and the Human Body in Scots Law” (2005) 9 Edin LR 194. 99   Pollok v Workman (1900) 2 F 354; Conway v Dalziel (1901) 3 F 918; Hughes v Robertson 1913 sc 394. 100   Hughes v Robertson was accepted as indirectly supporting the notion of two separate legal wrongs through the words of Lord President Balfour in the Reclaiming Motion: at 921 “it could not be said that the removal and retention were ordinary incidents of a post-mortem examination. It might perhaps have been possible to regard the temporary removal of organs for the purpose of laboratory examination as an incident of a post-mortem examination, but this cannot be suggested with regard to their permanent retention” (para 37). 101  Para 39. 96

97

r i ght s of p e rs o n al i t y

476

by either the Human Tissue Act 1961 or the Anatomy Act 1984. His final position, then, was thus: “Although there is little legal reasoning in the opinions in the three Scottish cases . . . what appears to lie at the heart of those decisions is the fact that near relatives suffered affront by the unauthorised actings. The Judges in the Scottish cases considered that, in the circumstances, the unauthorised post-mortems and the unauthorised removal and retention of body parts, disclosed such an insensitivity to the feelings of near relatives following upon the death of a loved one, that such conduct constituted an affront to their dignity as relatives of the deceased so as to justify being classified as a civil wrong in which damages by way of solatium could be claimed.” [emphasis added]102

He concluded: “[i]n my opinion Scots law recognises as a legal wrong for which damages by way of solatium can be claimed the unauthorised removal and retention of organs from a dead body. The Scottish cases suggest that the true juridical basis for this type of claim lies in the actio injuriarium.”103

At no point is there any discussion on the nature or scope of the actio iniuriarum, least of all to explain why the Judge believes that this is the appropriate legal basis on which to proceed. He endorses Walker in his tome Delict where it is stated that the better basis for the right of action in Pollok is the actio injuriarum”,104 but no authority for this view is given therein. Indeed, the Judge acknowledges later in the same paragraph that:105 “although there is no real analysis of the legal basis for the claim either in the opinion of Lord Kyllachy or in the opinions of the judges of the Second Division, the underlying legal basis of the pursuer’s claim in Pollok v Workman lay in the actio injuriarum”. There appears to be a measure of judicial volonté that the parameters of this action be tested, and this is exciting and interesting from the academic perspective.106 From the practical point of view, however, we are very much starting with a blank sheet. There is no attempt in Stevens to lay out the existing criteria for the actio iniuriarum in Scots law, assuming that it does indeed exist. Nor are we any further forward on the role of intentional conduct. Must this always be in bad faith? A pertinent example arises from the case  Para 57.  Para 62. 104  Para 34 paraphrasing D M Walker, Delict (2nd edn, 1981), p 671. 105  Para 34 (emphasis added). 106  I refer the reader to the recent writings of my colleague, Niall Whitty, for a robust defence of the view that the actio iniuriarum is alive and well in Scots law: (2005) 9 Edin LR 194 and chapter 3 above. 102 103

p ersonality, privacy and autonomy in medical law 477 itself whereby it came to light that a blanket policy of not informing parents of the details of a post mortem was followed by all health care professionals. The concern was to avoid further upset to the parents. This was roundly condemned by the judge for the blanket nature of the approach; each case should be considered on its own merits.107 But could such “intentional” conduct give rise to a viable claim under the actio iniuriarum, even although the health care professionals were acting in what they saw as the best interests of parents? Parents might argue that their dignity had been compromised by excessively paternalistic behaviour, while the profession itself, as a whole, might argue exposure to more detail than necessary could be upsetting, harmful and disrespectful, and so in some sense also constitute an affront to parental dignity (if, for example, one sees respect as allied to dignity). In other words, dignity arguments could be put forward from both sides either to require disclosure or to support silence. This brings us back to an earlier caveat about the potential scope of dignity and what might be prayed in aid of it. Moreover, if good faith intentional conduct which results in affront is actionable, it potentially leaves the action extremely wide-open and subject to the vagaries of subjective notions of affront and dignity. The ruling in Stevens does, nonetheless, highlight one important factor which distinguishes the actio iniuriarum from the negligence action. This concerns solatium. While modest solatium can be paid in certain negligence actions,108 we have seen above that there are well-established and closed categories of harm in negligence, being psychiatric, physical and economic. Solatium in respect of a claim under the actio iniuriarum, however, is a different concept, as Temporary Judge MacAulay suggests in the case, although he heard no argument on the point. He did consider, however, that both counsel were equiparating the concept as between negligence and the actio iniuriarum and that it was inappropriate to do so.109 If they are indeed different, this indicates another way in which the actio iniuriarum in Scotland might provide a broader, more suitable remedy for affronts to dignity than the attempts we have seen to date using the negligence action. As indicated, Mrs Stevens sought also to proceed in negligence, and the discussion is illuminating for the further potential limits that this exposes. In particular, while Mrs Stevens was arguing psychiatric harm and loss of employment within traditional negligence rules, a question arose about whether or not she cleared the very first  Para 84, largely following the views of Gage J in AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644; [2005] QB 506. 108  See, eg, McFarlane v Tayside Health Board 2000 SC (HL) 1, in respect of the pregnancy and childbirth. 109   [2006] CSOH 143; 2006 SLT 889, para 63. 107

478

r i ght s of p e rs o n al i t y

hurdle in a negligence action, namely, was she owed a duty of care? Temporary Judge MacAulay held that she was not owed such a duty because she could not show a pre-existing doctor/patient relationship, and he distinguished AB v Leeds Teaching Hospital NHS Trust110 on this basis since both claimants in that case had sought advice from clinicians over future pregnancies, and one had, in fact, been the doctor’s patient at the time of the birth of her child. None of this applied to Mrs Stevens, and so on a doctor/patient analysis she would fail.111 In the event, Temporary Judge MacAulay made an attempt to argue for a duty of care applying the standard criteria of foreseeability and proximity and was prepared to accept that a duty could be so constructed. Notwithstanding, the case suggests that, despite the judge’s best efforts, pursuers in such scenarios may face greater hurdles in seeking a remedy through the negligence action for affront to feelings. Certainly, recent cases involving claims from a party external to the doctor/patient relationship have been unsuccessful,112 and have even survived a human rights analysis.113 10.12 AUTONOMY, DIGNITY AND PERSONALITY PROTECTION: WHERE NEXT? We stand at a crossroads in the protection of autonomy and dignityrelated interests. Rulings from the European Court of Human Rights have confirmed that autonomy is an important underlying aspect of the right to respect for private life, and the Court has always stated that dignity itself underpins the entire Convention, albeit with precious little guidance on how these concepts should be defined. It is far less clear, still, what the content of any related rights might be in concrete terms. We have more of an idea at the domestic level, where we have considered recent developments in negligence and in Scots common law which embody adventurous attempts to recognise and give effect to autonomy and dignity claims. At the same time, this has revealed serious limitations in the remedies as they might be applied to personality claims, whether this be the problem of demonstrating a duty of care or a recognised head of damage in negligence, or whether we can even determine the existence and content of the actio iniuriarum in Scotland. But to the extent that   [2004] EWHC 644; [2005] QB 506.   [2006] CSOH 143; 2006 SLT 889, para 67. 112   Fairley v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200 (OH) (no duty owed to a father after accusations of abuse of his daughter) and MK (a child) v Oldham NHS Trust [2003] Lloyd’s Rep Med 1 (upset and disruption to family from social services investigation about child’s injuries not recoverable). 113   D v East Berkshire Community NHS Trust [2004] QB 558. 110 111

p ersonality, privacy and autonomy in medical law 479 adequate protection must be provided as a matter of human rights, Scotland may have an opportunity to provide additional options through the actio iniuriarum, especially if developments proceed along the lines suggested by Earle and Whitty, namely, that our courts recognise “an infringement of a non-patrimonial right of personality, an impairment of dignity in a wide sense of that term protectable under an actio iniuriarum”.114 My chief concern is: how wide a sense of the term “dignity” would be adopted? It is abundantly clear that there is building pressure both at common law and from the human rights sphere to recognise dignitarian-based claims, most particularly those linked to autonomy. Few could have a problem with this per se, but what assumptions are informing these developments and where do the limits lie? The volte face that we have witnessed in medical law in recent years has brought us from an unhealthy deference to the medical profession to a potentially unhealthy concern with “patient autonomy”.115 In the context of personality rights, where sets and sub-sets of rights and interests interact, it will not be a positive development if autonomy, or a certain view of autonomy, comes to dominate personality rights in the medico-legal sphere. At this current crossroads we still have the opportunity to shape and guide future developments in autonomy and dignity protection in the broader context of personality rights, and the chapter ends with a discussion of how we should be sceptical about some of the assumptions that underpin the concrete cases discussed above. Understanding how autonomy might relate to other personality interests at the conceptual level is an essential feature of ensuring the future developments proceed in an appropriate direction. 10.13 FROM THE CONCRETE TO THE CONCEPTUAL: CHALLENING ASSUMPTIONS ABOUT AUTONOMY AND DIGNITY 10.13.1 Preliminary Many of the examples discussed in this chapter have concerned the value and importance of information disclosure. There are, however,  See n 86 above.   For an extreme example in relation to a patient demanding treatment in the name of autonomy and dignity, see R (on the application of Burke) v General Medical Council [2004] 3 FCR 579, reversed [2006] QB 273 (CA), above. For general comment, see G T Laurie, “The Autonomy of Others: Reflections on the Rise and Rise of Patient Choice in Contemporary Medical Law” in S A M McLean (ed), First Do No Harm: Law, Ethics and Healthcare (2006). 114

115

480

r i ght s of p e rs o n al i t y

at least three assumptions about information disclosure which should be challenged to ensure that overly-expansive interpretations of autonomy or dignity do not take hold. These are: 1. The assumption that information disclosure itself is the proper focus of concern. 2. The assumption that information disclosure is necessarily a good thing. 3. The assumption that information disclosure is necessarily autonomy-enhancing. 10.13.2 Is information disclosure the proper focus of our attention? To focus obligations, or even rights, around the act of information disclosure is not necessarily in any sense to do with the autonomy of the patient. Indeed, too much focus on information disclosure as an end in itself might detract significantly from a doctor’s “duty to act affirmatively on the patient’s behalf”, which Grubb has argued is the true underlying basis of the duty to inform.116 Mere disclosure – like mere choice – may do nothing to enhance the interests of patients. We should avoid at all costs a situation whereby the act of disclosure alone is seen as autonomy-enhancing and the end of the professional’s duties. This sort of conduct may actually be tantamount to abandonment of a patient in the name of her own autonomy. 10.13.3 Is information disclosure necessarily a good thing? A further potential consequence of focusing on information disclosure is the risk of a harmful outcome as a result of over-information. There is evidence in certain medical spheres that disclosure of certain types of health information may be a serious psychological burden for some patients.117 Moreover, there has been judicial recognition that disclosure of information which is overly-burdensome can result in recoverable harm. Van Oosten draws our attention to a German case in which an action in damages was successful against a health care professional who told a patient that he was suffering from a  A Grubb, “Consent to Treatment: The Competent Patient” in A Grubb (ed), Principles of Medical Law (2nd edn, 2004), p 180. 117  E Almqvuist et al, “Risk reversal in predictive testing for Huntington disease” (1997) 61 American J of Human Genetis. 116

p ersonality, privacy and autonomy in medical law 481 rapidly growing brain tumour and that the care team was uncertain whether it was malignant or benign or, indeed, whether anything could be done to excise it.118 The patient suffered considerable shock and agitation as a result, which in turn resulted in physical symptoms including a heart condition and partial paralysis. The Oberlandesgericht held that while a health care professional has the right and duty to inform patients about their health, excessive information disclosure can found liability in certain circumstances; namely: (a) where the diagnosis or opinion is inadequately substantiated by the facts; (b) where it would lead a reasonable person to conclude that he suffers from a very serious and/or fatal condition; and (c) where the patient tends to overreact to the information psychologically. 10.13.4 Is information disclosure necessarily autonomyenhancing? Taking this one step further, there may be interests in not receiving information: (a) even when it is accurate; (b) even if it relates to your own health; and (c) even if there may be reasons to believe that its communication would be autonomy-enhancing.119 A case example below demonstrates these points and illustrates some of the limits of autonomy-based arguments, challenging the idea that information disclosure is necessarily autonomy-enhancing. An initial and obvious objection to autonomy is that its focus is overly 118   F F W van Oosten, “The Doctor’s Duty of Disclosure and Excessive Information Liability” (1992) 11 Medicine and Law 633. 119   But even when information is accurate there may be an interest in how information is communicated. In AB v Tameside and Glossop Health Authority (1997) 35 BMLR 79 (CA), the Court of Appeal rejected the plaintiffs’ claim that the health authority had been negligent to inform them by letter that they had been exposed to a health worker with HIV, and to do so when no counselling service was immediately available, rather than doing so face to face. While the court accepted that it is part of the duty of care to someone who is to be informed of bad news that due care is taken in the manner of disclosure, it did not hold it to be part of the duty to select the best method of disclosure. Moreover, Brooke LJ found no authority which “imposed liability in negligence for the communication of accurate, but distressing news in a careless manner”.

482

r i ght s of p e rs o n al i t y

individualistic. The example to be discussed, however, is about genetic information which concerns the health interests of blood relatives. Responsibilities about what should be done with that information can, therefore, extend across a group of individuals. Consider this scenario: Sophie discovers that she is carrying the gene for Huntington’s disease. This is a hereditary, incurable, degenerative brain disorder which has a 50 per cent chance of affecting siblings if one parent is affected. The condition is late-onset, however, and family patterns are not obvious. Sophie did not know the condition was in her family and the question arises (a) whether she should approach her brother to tell him, and (b) whether she should test her 5-year-old daughter for the condition. No effective medical intervention is available.

If we adopt an autonomy-based approach to this we might argue that disclosure could enhance autonomy, at least in respect of the brother, for example by allowing him to prepare for the future onset of illness. By the same token, why would we unquestioningly assume that he would want to know, when there is nothing that can be done, and when this knowledge may not only be a psychological burden but could lead to refusal of employment or insurance where obligations of uberrimae fides would require disclosure of that which is known? This may result in a drastic closing down of options rather than any autonomy-enhancement. In the context of the daughter, we have to ask if testing would be in her best interests (which is the sole parameter to legitimate testing in the absence of patient consent). If there is no effective medical intervention likely to be available during her childhood, why not wait until the girl is mature enough to take her own decisions? But, in each case, what interest would be compromised if an approach was made or testing carried out? I would argue that this is an example of a particular kind of privacy interest – a psychological or spatial privacy interest120 – which could be the subject of intrusion by the unwarranted imposition of information, even when that information is about oneself.121 I prefer this categorisation rather than one in autonomy, for two reasons: first, in the case of the brother, we cannot rely on his choice to know or not to know, that is, we cannot approach him and ask: “Would you like to know if there is Huntington’s disease in your family?” because, clearly, by asking the question we alert him to the fact that there is something to know! In 120  Recall the three categories of personality interests outlined at the beginning of the chapter: spatial interests (physical and psychological), informational interests, and decisional interests. 121  This is argued fully in Laurie, Genetic Privacy, n 23, above.

p ersonality, privacy and autonomy in medical law 483 the case of the child, obviously, she is insufficiently autonomous to exercise choice, but it would not be acceptable to say that her interests could not be infringed merely because of this. In both cases, then, an appeal to autonomy does not help in our dilemma to disclose or not to disclose, although many of the assumptions about autonomy suggest that we should disclose, while a privacy analysis would lead us to question this. In doing so we are not brought to any particular conclusion, for each case should be considered on its own merits, but it may be enough to have us think twice about how to enshrine a personality right such as autonomy in law. Moreover, it helps us to tease out some of the conceptual underpinnings as between the relationship of autonomy rights and privacy rights in the medico– legal sphere and how these relate to a broader notion of protection of patient personality.

484

r i ght s of p e rs o n al i t y



a r i gh t s of p e rso n al i t y databas e

485

chapter 11 a rights of personality database Charlotte Waelde and Niall R Whitty*

11.1   INTRODUCTORY 11.1.1  Preliminary 11.1.2  The Comparative Personality Research Survey 11.1.3  The personality database 11.1.4   Comparative Personality Research Survey – case studies   (a)  Eight case studies and twelve jurisdictions   (b)  The purpose of the case studies 11.2   SOURCES OF THE LAW ON RIGHTS OF PERSONALITY AND   EXTENT OF RECEPTION OF DOCTRINE 11.3   SOME DIFFERENCES BETWEEN THE CIVIL LAW AND   COMMON LAW ON RIGHTS OF PERSONALITY 11.4   THE STRUCTURE OF THE LAW PROTECTING   DIGNITARIAN AND PATRIMONIAL INTERESTS IN   PERSONALITY 11.4.1  Preliminary 11.4.2  Models of protection of dignitarian (non-patrimonial) and   economic (patrimonial) aspects of personality rights 11.4.3   Civil law systems: the structure of dignitarian and   patrimonial (commercial) rights of personality (a) General (b) Civil law systems: inalienability of personality rights (c) Civil law systems: consents and non-exclusive licences authorising commercial exploitation of personality rights (d) Civil law systems: exclusive licences for commercial exploitation of personality rights?

* The authors thank Thorsten Lauterbach for meticulously checking the footnote references in this chapter. Any remaining mistakes are the authors’ responsibility.

485

r i ght s of p e rs o n al i t y

486

(e) Protection after victim’s death in civil law; active transmissibility by succession or relatives’ own rights of personality 11.4.4 Common law systems: the structure of dignitarian rights of personality and commercial (patrimonial) rights of publicity (a) The main equitable and tortious wrongs protecting interests in personality and publicity (b) Misuse of private information and breach of confidence: the dignitarian right of privacy; Australia; Canada; and England and Wales (c) Passing off: Australia; England and Wales (d) Misappropriation of personality: Canada (e) Breach of confidence: secret information; the commercial right of publicity; and licences in equity 11.4.5 Classification of rights of personality and of publicity

11.5 BALANCING THE RIGHT TO PRIVACY AGAINST THE RIGHT TO FREEDOM OF EXPRESSION; PROPORTIONALITY AND THE PUBLIC INTEREST 11.6

REMEDIES

11.7

CASE-STUDY RETURNS 11.7.1 Preliminary 11.7.2 Case study (1) – Portrait rights (a) Civil law systems (Argentina, France, Germany, Italy, the Netherlands, Spain) (b) Common law systems (Australia, Canada) (c) Mixed systems (Quebec, Scotland, South Africa) 11.7.3 Case study (5) – Merchandising (a) Civil law systems (Argentina, France, Germany, Italy, the Netherlands, Spain) (b) Common law systems (Australia, Canada, England and Wales) (c) Mixed systems (Quebec, Scotland, South Africa)

11.8

COMMONALITIES, DIFFERENCES AND FUTURE RESeARCH 11.8.1 General: legal structure 11.8.2 Dignitarian (non-patrimonial) aspects of personality 11.8.3 Patrimonial (economic) aspects of personality 11.8.4 Future research



a r i gh t s of p e rso n al i t y databas e

487

11.1  INTRODUCTORY 11.1.1  Preliminary The AHRC Research Centre for Studies in Intellectual Property and Technology Law at Edinburgh University (“the Centre”) has been conducting a research project into comparative law aspects of the protection of personality rights and interests. This research has taken two forms, namely: • the development of a “personality database” made available through the Centre website; and • a survey (called the Comparative Personality Research Survey) of key aspects of the law on protection of personality rights based on eight case studies within 12 different legal systems each of which responded to an agreed, uniform questionnaire. The personality database is a continuing project which we briefly describe at Section 11.1.3 below. The main purpose of this chapter, however, is to describe the other research project (which has been completed) namely the Comparative Personality Research Survey and its main findings. As stated elsewhere in this volume, the generic concept of rights or interests of personality is primarily a creation of the civil law and was unknown, or at any rate unarticulated, in common law systems until very recently. As originally conceived, personality rights protect only the personal attributes of individual human beings, that is to say, who they are rather than what they have. The same understanding emerges from the civil law and mixed system national reports in the Comparative Personality Research Survey.1 In all the legal systems surveyed however this conception has had to be modified because certain personal or dignitary interests such as a person’s name, image or voice, may be capable of commercial exploitation and may therefore acquire a patrimonial or economic aspect. Perhaps the main value of the Survey lies in the light which it throws on the relationship between the dignitary and economic aspects of personality attributes in the various legal systems surveyed. 11.1.2  The Comparative Personality Research Survey The Comparative Personality Research Survey project originated in a meeting, held under the auspices of the Centre in 2002, which brought together academic lawyers from common law, civil law and 1

 See, eg, Argentina: Genovesi, p 7 (quoted at p 505 below).

488

r i ght s of p e rs o n al i t y

mixed jurisdictions who possess expertise in the law of property, personality and privacy. The purpose was to discuss interfaces between these domains to facilitate a deeper understanding of how each related to the others, and to examine synergies and tensions within and between them. It was agreed that there is a need for further research in this area. In particular it was suggested that the Survey should examine comparative aspects of the protection of rights or interests of personality in order to determine how far there are common elements in the protection of personality between and among legal systems. 11.1.3  The personality database The personality database has, to date, been compiled with the enthusiastic assistance of research assistants. At the time of writing, the database contains information on, and cases illustrating, elements relevant to the protection of personality in the following jurisdictions or groups of jurisdictions: Argentina; Australia; Canada (common law provinces); England and Wales; France; Germany; Italy; Mexico; the Netherlands, Quebec; Scotland; South Africa; Spain; and the United States. The database has been developed as a resource for all those interested in the area. It attracts extensive comment from academics, practitioners, students and other interested parties in a variety of jurisdictions. Recently the database has been converted to an open wiki format, that is a website which allows visitors to add, remove or edit its content. The purpose is to encourage and enable the community to become involved in updating and developing this resource. It is hoped that, through participation, the database will grow both in terms of numbers of jurisdictions and in depth and breadth of information. The personality database can be found at: www.personalityrightsdatabase.com. 11.1.4  Comparative Personality Research Survey – case studies (a) Eight case studies and twelve jurisdictions In the second research project, contributors from 12 jurisdictions (or groups of jurisdictions2) have provided answers to the legal questions raised in the following series of eight case studies.

 The Australian states and Canadian provinces have their own separate legal systems. In Spain the states have varying degrees of autonomy; Catalonia, for example, has its own Civil Code.

2



a r i gh t s of p e rso n al i t y databas e

489

(1) Portrait rights: newspaper photograph of individual in public park. A press photographer takes photographs (for a publication) of a person in a public park which are neither embarrassing nor morally offensive. What protection, if any, is available for the subject? (2) Portrait rights: newspaper photographs of contact between two individuals. A press photographer takes photographs for publication of two individuals in various situations showing different degrees of intimate social or sexual contact What protection do the subjects have in the different situations? (3) Newspaper report of facts concerning an affair between two individuals. A newspaper intends to report on an affair between two individuals. What, if anything, can the individuals do to prevent publication in various different situations? (4) Newspaper report on an individual’s medical condition, love-life or stale criminal offence. Without the knowledge or consent of a person a newspaper reports correctly on the person’s medical condition, or love-life, or criminal offence committed 10 years previously. (5) Merchandising. A company produces without licence T-shirts bearing a photograph, or a drawing, or a caricature of an individual, or a newspaper story of the individual’s extramarital affair, or the individual’s signature. What are the individual’s remedies? What if the individual is famous and has goodwill, or is dead? (6) Endorsement. A company releases a commercial advertisement using an individual’s physical and vocal likeness, which gives the impression that the individual endorses the advertised product. Various modifications of these core facts are considered. (7) Production of artistic items relating to a person. A company produces the following artistic items relating to a person (without the person’s knowledge or consent) namely a musical, or a film, or a book, or another article, about the individual’s life; a computer-game containing a pixel-version of the individual; or a fan-book about the individual; or a set of collectable cards containing images of individuals. (8) Doctor’s disclosure of patient’s medical condition. A doctor discovers that a patient is suffering from an inherited genetic condition carrying a 50 per cent chance that siblings and children of the patient might be affected. The condition does not manifest itself until late in life and a cure is available. Many relatives may not know that they have the disease. What options are legally open to the doctor for disclosing the condition?

490

r i ght s of p e rs o n al i t y

The 12 legal systems examined are named in the following list in which six systems belong to the civil law tradition; three to the common law tradition; and three are “mixed” legal systems in the technical sense of comparative law (ie partly civil law and partly common law). Civil law: Argentina; France; Germany; Italy; Netherlands; Spain. Common law: Australia; Canada (common law provinces, ie excluding   Quebec); England and Wales. Mixed systems: Quebec; Scotland; South Africa. Quebec law is codified and the private laws of Scotland and South Africa are uncodified. Quebec is the most civiliste of the “mixed” legal systems and in the present context has virtually all the hallmarks of a civil law system.3 Scotland is nearest to the common law and South Africa stands in between. USA law is not represented in the case studies but is described in the Centre’s database. For many comparative lawyers, the American “right of publicity” is the most advanced system, and therefore the benchmark, of celebrities’ exclusive rights of commercial exploitation of their image.4 (b)  The purpose of the case studies The purpose of the case studies was to test the following hypothesis: Personality rights may be protected either on the basis of private economic interests or on the basis of dignitary interests. Permeating both of these are public interest considerations which serve to limit the scope of the rights in question.

In more detail the aims were:

  Quebec has a codified private law system strongly influenced by French law and also some important common law components, but these extend mainly to court structures and procedures and to public law rather than to substantive private law. 4  See Section 11.4.2. 3



a r i gh t s of p e rso n al i t y databas e

491

• to discover whether there are commonalities in the ethic underlying the protection of personality rights in particular jurisdictions. In other words to examine if there is a common core of rights and interests across jurisdictions and to investigate the values underpinning that core; • to highlight points of difference and similarity, both in the underlying ethical considerations and in the application of the law to a given set of facts, and to investigate why these differences or similarities arise; and • to consider the extent to which any personality rights which are recognised are tempered or limited by other considerations, for example the public interest. A round-table meeting of contributors was held over a period of two days in March 20065 at which the following individuals spoke to the law in a particular jurisdiction: Argentina, Luis Mariano Genovesi; Australia, Megan Richardson; Canada excluding Quebec, Lorian Hardcastle; Canada – Quebec, Sylvie Bordet; England and Wales, Huw Beverley-Smith, Simon Smith and Hazel Carty; France, Pascale Bloch and Arnaud Cermolacce; Germany, Olaf Weber; Italy, Federica Gioia; Netherlands, Saskia Werther; Scotland, Gillian Black and others; 6 South Africa, Enyinna Nwauche; and Spain, Urko Ochoa. Each contributor had prepared a paper responding to the case study questions many of which also give a synopsis of the personality law in his or her jurisdiction.7 11.2  SOURCES OF THE LAW ON RIGHTS OF   PERSONALITY AND EXTENT OF RECEPTION OF  DOCTRINE The civil codes. In the six civil law systems studied and in Quebec, private law is codified and the primary vehicle for protecting rights of personality is normally the civil code, except in Spain where it is constitutional legislation (Ley Orgánica 1/1982, Art 2.1). In all such systems general provisions in the civil code are supplemented by particular enactments affirming or regulating particular rights of

 See www.law.ed.ac.uk/ahrc/personality/Personality_Workshop_Minutes.   Gillian Black was present at the meeting. The contribution was written by a team consisting of Gillian Black, John Blackie, Alasdair Maclean, Hector MacQueen, Elspeth Reid and Niall Whitty. 7  The responses to the case studies can be found at www.personalityrightsdatabase. com. Responses to some questions are omitted in a very few jurisdictions. 5 6

492

r i ght s of p e rs o n al i t y

personality and may be influenced by constitutional legislation. The relevant articles of the code reflect different historical experiences. In Argentina, Luis Mariano Genovesi explains that in 1975 an express safeguard for privacy (Art 1071b) was inserted in the Argentine Código Civil8 which complemented legislation of 1933 protecting image rights. Such rights of privacy had been developed by jurisprudence long before 1975 inter alia because the courts and jurists considered them to be protected by constitutional guarantees. In the French Code Civil of 1805 the famous Art 1382 on delictual liability for faute has since the 19th century been construed as protecting personality rights. It is supplemented by Art 9 inserted in the Code Civil by the Law of 17 July 1970 which (influenced by the wording of ECHR, Art 8) provides: “Each individual has the right to the respect of his privacy”. In early 20th-century German law, protection extended to one’s name9 and portrait or image10 but not to one’s honour, dignity and privacy which had been deliberately omitted from the interests protected by the law of delict and specified in §823 of the BGB (1900). A general, monistic,11 private law right of personality however was developed in and after the 1950s, based on the recognition of dignity as one of the residual “other rights” referred to in BGB §823, by case law relying on the constitutional rights to dignity (Art 1) and free development of the personality (Art 2(1)) in the Grundgesetz (Basic Law) of 1948. In contrast to the general, monistic right of personality in German law, the Italian Codice Civile of 1942 originally adopted a pluralistic approach involving several independent rights of personality12 supplemented by the general tort/delict provisions of Art 2059 CC. Federica Gioia remarks that Italy was ‘quite a pioneer’ in recognising the sui generis nature of personality: there are articles on the right to  Article 1071b provides: “Anyone who arbitrarily interferes in someone else’s life, publishing portraits, broadcasting correspondence, mortifying others about their customs or feelings, or disturbing in any way their privacy, and while the act did not constitute a crime, shall be compelled to cease such activities, had they not already ceased, and to pay compensation to be fixed fairly by the courts, according to the circumstances. In addition, the courts may, at the request of the aggrieved party, order the publishing of the court ruling in a local newspaper or journal, if such measure were useful toward an adequate redress.” 9   BGB, §12 protects one’s name from unauthorised use. 10   Kunsturhebergesetz (KUG) (Act of Copyright in Works of Visual Arts) of 1907. 11  The German law is monistic in two senses. First, its single general right of personality is the antithesis of pluralist systems which have several rights of personality. Second, it subsumes the protection of both dignitarian and commercial interests in image within the general right of personality. 12   C von Bar and U Drobnig, The Interaction of Contract Law and Tort and Property Law in Europe (2004), p 33. 8



a r i gh t s of p e rso n al i t y databas e

493

one’s physical integrity (Art 5), name (Art 6) and image (Art 10) in Book 1 of the Codice Civile. New rights are added by analogy. There is a view that this pluralistic theory is being superseded by a monistic theory of personality.13 Saskia Werther explains that, in the Netherlands, privacy is protected by the Civil Code and the Dutch Constitution.14 Read short, in Art 6:162 of the new Dutch Civil Code (Burgerlijk Wetboek) of 1992, para (1) imposes liability for unlawful acts and para (2) provides inter alia that an act is unlawful if it violates a right. The Constitution protects the rights to physical/bodily integrity, freedom, honour, good name and privacy.15 These are then treated as “rights” within the meaning of BW, Art 6:162(2), and are therefore rights of personality protected by the general private law of delict. There are also rules protecting personal identity in the Dutch Copyright Act 1912 (Auteurswet) and Trademark Law. In Spain before 1978 the rights to honour, privacy and image were linked by scholarship and case law to the general tort/delict provision in Art 1902ff in the Spanish Código Civil.16 In Book 1 (Persons), Title 1 of the Civil Code of Quebec (CCQ), Art 3 provides: “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy”.17 Title 2 (Arts 10–49) of CCQ deals with “Certain personality rights”. Sylvie Bordet states that the notion also includes rights unspecified in the CCQ such as the right to dignity.18

13  A Zaccaria and M Faccioli, “The Protection of Personality Rights against Invasions by Mass Media in Italy” in H Koziol and A Warzilek (eds), The Protection of Personality Rights against Invasions by Mass Media (2005) 181 at pp 181–182 state that this pluralistic theory is being superseded by a monistic theory of personality postulating wider protection and an “open set” of rights which can expand to meet social needs. Under the new theory (based on the Italian Constitution, Arts 2 and 3(2)), “it is no longer necessary to adopt an extensive and analogical legal reasoning” to cover new rights: ibid, p 182. 14  Dutch Constitution, Art 10, para (1) which provides: “Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament.” 15 See the Dutch Constitution, Art 11 (the right to inviolability of the person); Art 12 (privacy of the home); Art 13 (privacy of correspondence). See also F Oppenoorth, “Facets of Dutch Portrait Law” (1993) 28 Copyright World 38. 16  See also M Martin-Casals and J S Feliu, “The Protection of Personality Rights against Invasions by Mass Media in Spain” in Koziol and Warzilek (eds), The Protection of Personality Rights against Invasions by Mass Media 289 at p 300. 17   CCQ, Art 3. 18  See Quebec report by Bordet who states that most authors distinguish a “hard core” of rights attaching to the physical person, such as the right to life and integrity of the person, and a more fluid type of right, grouped together by some

494

r i ght s of p e rs o n al i t y

As the case studies show, the 20th-century development of privacy in the codified systems was driven by jurisprudence (case-law) so that “the differences between codified and noncodified systems are really only stereotypes, which . . . do not always accurately represent the reality of the living law”.19 Constitutional legislation combined with private law. The importance of constitutional legislation in developing the private law on personality rights in, for example, Argentina, Italy, Germany and the Netherlands is evident from the above. In particular Germany’s evolution of a general personality right, not only outside the BGB but even against its prohibition of moral damages, was made possible by the Basic Law (Grundgesetz). The Spanish Constitution of 1978, Art 18.1 provides that the right to honour, to personal and family privacy and to image is guaranteed 20 and the civil protection of those rights is now governed by the Ley Orgánica 1/1982, Art 2.1.21 Constitutional legislation has also been important in South Africa.22 Common law systems: specific wrongs. Traditionally in common law systems protection depends on specific torts or equitable wrongs rather than general rights. Even in the USA where “a right of privacy” is recognised, the law has been reformulated by the Restatement as four torts.23 Hazel Carty remarks:

authors as the rights to “moral integrity”, which include rights to privacy, honour and reputation, and dignity and covers elements such as a person’s name, image, voice, reputation, domicile and personal information. Further “’personality rights’ is considered to be an empirical notion, not exhaustively defined in the law and generally including all the rights that belong to a person as such and permit her to determine the course of her life”: ibid. 19  This point is made with respect to the Italian law by G Alpa, “The Protection of Privacy in Italian Law: Case Law in a Codified System” (1997) 12 Tul Eur & Civ L F 1 at p 23 but is true also of other codified systems; see, eg, the Fallgruppen (clusters of cases) in the German law analysed by Markesinis and Unberath, The German Law of Torts (4th edn) 74–79 at pp 402–505. 20  See Personality Rights Database, Personality Rights in Spain. An introduction. http:/personalityrightsdatabase.com/index.php?title=Spain. 21   La Ley Orgánica 1/1982 de 5 de Mayo de protección del derecho al honor, la intimidad personal y familiar y la propria imagen. BOE Nr 115 of 14th May 1982. See Art 2.1, quoted at pp 530–531 below. 22  See n 32 below. 23  American Law Institute, Restatement, Second, Torts (1977) §652A; following W L Prosser, “Privacy” (1960) 48 California LRev 383.



a r i gh t s of p e rso n al i t y databas e

495

“Unlike both continental European and American experience, the English common law has traditionally been mistrustful of generalized rights and those who object to a misappropriation of their image have to find a specific civil wrong to cover their grievance : there is no right against misappropriation/unfair competition nor is there a right of privacy as such.”24

So, for example, to prevent unauthorised use of one’s image for merchandising, Carty identifies several possible causes of action in English law.25 In explaining the English law on preventing a newspaper from invading privacy by reporting on an affair between two individuals (case study 3), Simon Smith observes: “The causes of action in question are likely to be defamation (libel) – if the allegation is false; or confidence (privacy) – if the allegation is true. However, there are ancillary causes of action such as harassment (eg, persistent pursuit and repeated publications by paparazzi or journalists creating a pattern of conduct causing alarm or distress); copyright (eg, if the newspaper has love letters – a literary copyright owned by the author even if the physical property in the letter is owned by its recipient; or if the newspaper has incriminating photographs – a copyright in the image – owned by the individual whose image is captured if commissioned for a private purpose); or data protection (if sensitive personal data, such as one’s sexual habits or history, is reproduced in the absence of a public interest justifying it).”

Megan Richardson acknowledges that common law systems including Australian law prefer a flexible and incremental approach to traditional causes of action rather than the creation of new causes of action to meet new situations and circumstances. 26 Likewise Lorian Hardcastle states that in the Canadian common law provinces, to maintain an action for acts which constitute an invasion of privacy, it appears that some well-established tort such as trespass, nuisance, defamation or deceit must often be committed as well. 27 On the other hand, Hardcastle refers also to

  Carty, England and Wales, case study (5), p 266.  The torts of passing off, malicious falsehood and defamation; the economic torts; the action (equitable wrong) of breach of confidence; and registered trademark law. 26  Richardson, Australia, p 38, citing Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, per Deane J. 27  Hardcastle, Canada, p 46. She continues: “There are indications that the courts are prepared to stretch the scope of a particular tort to afford protection of privacy interests, but this is generally only incidental to the protection of other interests.” 24

25

496

r i ght s of p e rs o n al i t y

Canadian cases (mainly from Ontario)28 which recognise a new tort of misappropriation of personality resembling the American tort of that name. With that notable exception, there is a striking contrast between the conservatism of these Commonwealth, common law systems and the American common law which in the 20th century established first a new right of privacy protected by new torts29 and subsequently a right of publicity protected by a tort of misappropriation of personality.30 Human Rights Charters. Since 1976 Quebec has been bound by the Quebec Charter on Human Rights and Freedoms, and since 1982 all Canadian provinces by the Charter of Rights and Freedoms in the Canadian Constitution. As Bordet states, the Quebec Charter (though lacking constitutional status) explicitly affirms inter alia certain rights of personality31 and has both vertical and horizontal effect. In their separate contributions Hardcastle and Bordet explain that the Canadian Charter has only vertical effect, but does influence private law by analogy. In the Republic of South Africa the rights to dignity and privacy are fundamental rights recognised by the Bill of Rights in the Republic’s post-apartheid Constitution of 1996 and have horizontal effect in private law blending with the actio iniuriarum and the doctrine of rights of personality.32 International conventions. International conventions on human rights have played an increasingly important role. Five of the civil law systems studied (France, Germany, Italy, the Netherlands and Spain) together with the United Kingdom legal systems are bound by the European Convention on Human Rights which, through the doctrine of horizontal effect, is strongly influencing the private law protection of privacy under Art 8 throughout Europe. Since the early 1990s Argentina has been subject to the American Convention on 28   Krouse v Chrysler Canada Ltd (1974) 1 OR (2d) (CA); Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425; Joseph v Daniels (1886) 11 CPR (3d) 544 (BCSC); Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA). 29  S D Warren and L D Brandeis, “Privacy” (1890) 4 Harvard L Rev 193; Pavesich v New England Life Insurance Co 50 SE 68 (Ga 1905). 30   Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir, 1953); approved by the US Supreme Court in Zacchini v Scripps-Howard Broadcasting Co 433 US 564 (1977); M B Nimmer, “The Right of Publicity” (1954) 19 Law & Contemp Problems 203. 31  Eg the right to inviolability and freedom, to safeguard of a person’s dignity, honour and reputation, respect for private life and the inviolability of a person’s home. 32   Cf D McQuoid-Mason, “Invasion of Privacy: Common law v constitutional delict – does it make a difference?” 2000 Acta Juridica 227.



a r i gh t s of p e rso n al i t y databas e

497

Human Rights or Pact of San José, Costa Rica, which recognises the right of privacy. 33 Other instruments include Council of Europe conventions on data protection34 and biomedicine. 35 Specific enactments.  In addition protection of certain personality rights is afforded by a wide variety of more narrowly focused enactments usually directed at particular interests. Thus, for example, reproduction of an image is regulated by provisions in copyright legislation in Argentina, Germany, Italy and the Netherlands.36 Data protection legislation (which in Europe implements EC Directives)37 has the effect of prohibiting or restricting the unauthorised disclosure of private information. In many systems medical confidentiality is imposed or enforced by legislation on health services and the medical profession.38 In Australia the Trade Practices Act 1974 (Cth) and equivalent state legislation prohibit misleading or deceptive conduct in trade and are used in tandem with passing off actions in cases of “image-filching” by false endorsement.39 11.3  SOME DIFFERENCES BETWEEN THE CIVIL LAW AND   COMMON LAW ON RIGHTS OF PERSONALITY Different attitudes to generalised rights.  The doctrine and terminology of rights of personality have been accepted in all the 33  See Corte Suprema de Justicia de la Nación, case Ekmedjian vs. Sofovich, July 7th, 1992, Fallos 315:1992. Cited by Genovesi fn 4; Argentinian Constitution as amended in 1994. 34   Council of Europe, Convention for the Protection of individuals with regard to automatic processing of personal data (1981). 35   Council of Europe, Convention on Human Rights and Biomedicine, 1997. 36  See Copyrights Act of 1933, s 31 (Argentina); Kunsturhebergesetz (Germany); Copyright Act, Law of 22 April 1941, no 633 (Italy) Art 96; Copyright Act 1912, Arts 19–21 (Netherlands). 37  EU Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995; implemented, eg in the UK by the Data Protection Act 1998; in Germany by the Bundesdatenschutzgesetz; in Italy by Law of 31 December 1996 no 676 and later by Legislative Decree No 196 of 30 June 2003. See also Directive 2002/58/EC of the European Parliament and the Council of 12.7.2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector; Council of Europe Convention for the Protection of individuals with regard to automatic processing of personal data (1981), which entered into force in Italy on 1 July 1997. 38  See the references to the following French enactments: Art L1111-1 Code de la Santé Publique; Code de Déontologie Medicale Law of 4 March 2002 (Law 2002203); Charter of Hospital Patients; Code Pénal, Art 226-13 (disclosure of secret information); Le Statut Général des Fonctionnaires Publics, Art 26; in Spain, Act 41/2002 (regulating patients’ rights and obligations). 39   On the latter, see Section 11.4.4(c).

498

r i ght s of p e rs o n al i t y

civil law legal systems studied and in the mixed systems of Quebec and South Africa. The doctrine is much less secure in the legal mind in common law systems and in Scotland’s mixed system in all of which it is still too unfamiliar. The doctrine postulates a system of generalised rights but, as Hazel Carty remarked, the English common law has traditionally been mistrustful of such rights. As Megan Richardson observes (of the Australian law): “It may be that (as with freedom of speech) privacy, publicity and more broadly personality are relegated to being treated as ‘basic values which the corpus of the law promotes or protects’40 without having specific causes of action of their own.” In common law systems, claimants seeking redress for a violation of an interest in personality must found their claim on a specific tort or equitable wrong or statutory cause of action. Different degrees of protection of personality rights. At least until recently, it could be said that the summation of the grounds for legal action for invasion of personality interests in English law often do not reach the continental European standard of protection.41 Examples might be the exclusive rights to one’s name and to one’s image. This view is supported by the Comparative Personality Research Case studies. The responses to case studies (1) and (5) summarised in Section 11.7, for example, show that at the time of the Survey (2006) civil law systems gave a stronger and clearer protection against unauthorised dissemination and exploitation of one’s image than did the common law systems. The common law catching up. The position of common law courts however is rapidly changing. The ECHR has indirectly required or induced the English courts to extend the action for breach of confidence and eventually to invent a new tort (or possibly as equitable wrong) of “misuse of private information” to cover certain cases of breach of privacy (eg the unjustifiable public disclosure of private information).42 The English courts have also recognised the right of an exclusive licensee in equity of a photographic “celebrity exclusive” to sue a rival third party who published forbidden

  Citing the words of the High Court of Australia in Tame v New South Wales (2002) 211 CLR 317 at 395. 41   C von Bar and U Drobnig, The Interaction of Contract Law and Tort and Property Law in Europe (2004) p 31. 42  Eg Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E); Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; [2006] QB 125; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 reversing Murray v Express Newspapers plc [2007] EWHC 1908 (Ch). 40



a r i gh t s of p e rso n al i t y databas e

499

photographs in breach of confidence43 and, following Australian precedents,44 have extended the tort of passing off to cover cases of “false endorsement”.45 Influenced by American law, Canadian courts (especially in Ontario) are developing a tort of misappropriation of personality.46 The enactment of a statutory tort of breach of privacy is under official consideration in Australia47 and elsewhere in the common law world.48 The ECtHR has raised standards of protection of privacy throughout Europe49 including United Kingdom legal systems. English law is “at a cross-roads”.50 11.4  THE STRUCTURE OF THE LAW PROTECTING  DIGNITARIAN AND PATRIMONIAL INTERESTS IN   PERSONALITY 11.4.1  Preliminary Traditionally, rights or interests of personality were and are protected not because of their monetary value (which may be nil or inestimable)51 but because, with some exceptions, they have reference to basic and fundamental personal attributes, 52 many of which are treated as human rights protected by constitutional legislation or international instruments or both. In all countries of the civil law tradition, intangible personality rights such as one’s name, image and privacy were originally regarded as purely dignitarian (nonpatrimonial) and inalienable. The same was originally true of the right to privacy in the USA in the period following its inception in the 1890s. Then in the course of the 20th century, with the rise of the modern pervasive celebrity culture and the proliferation of

  OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21. 44  Eg Henderson v Radio Corporation [1960] SR (NSW) 576. 45   Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2003] EWCA Civ 423. 46  Eg Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA). 47  Australian Law Reform Commission, Discussion Paper No 72 on Review of Australian Privacy Law (2007). 48  Including legal systems not (or not yet) covered by the personality database such as Ireland and New Zealand. 49  Eg even in German law: von Hannover v Germany (2005) 40 EHRR 1. 50  See Carty, case study (5), summarised at Section 11.7.3. 51   Cf the famous Roman law brocard: D.9,1,3: liberum corpus aestimationem non recipiat (the body of a free man is not capable of valuation). 52  Viz life; bodily integrity; physical liberty; reputation; freedom from insult; privacy; identity; publicity; moral rights to copyright; autonomy; rights in family relationships; and deceased relatives’ rights after death. 43

500

r i ght s of p e rs o n al i t y

commercial contracts exploiting celebrity images for profit, courts and jurists in many countries came to acknowledge that a celebrity has an economic or patrimonial as well as a dignitarian or nonpatrimonial interest in his or her indicia of identity (such as image or likeness, and name) and addressed the question whether, and if so how, this interest should be protected by law from misappropriation for commercial purposes.53 The policy arguments about introducing rights of publicity. This issue has proved to be very controversial in policy terms. As Hazel Carty observes: “The celebrity image is perceived to be a commercial magnet by those who use it. The growing use of celebrity image in advertising – whether that be the celebrity’s physical image, voice, name (including nickname), signature or even catchphrase – is evidence of that. The celebrity industry argues that the magnetism of the celebrity persona is a valuable intangible that ‘belongs’ to the celebrity or those commercial partners who have ‘bought into’ that celebrity, through contract so that only they may profit by the use of their celebrity persona in advertising or promotion generally. However, those who deny this argue that celebrity magnetism is public property (and part of popular culture) rather than a private right. In other words, that exploitation is fine, provided no specific harm is inflicted.”54

Policy arguments have been fully stated on both sides.55 Most supporters of rights of publicity advance economic arguments – such as incentives for individual enterprise and creativity and fair distribution of resources – in their favour56 as well as economic realism57 but others argue that human dignity is the true decisive basis for introducing rights of publicity.58

 The pioneering and classic American study favouring such protection is M B Nimmer, “The Right of Publicity” (1954) 19 Law & Contemp Problems 203. 54  H Carty, “Advertising, Publicity Rights and English Law” [2004] IPQ 209, abstract. 55  Surveyed in Carty [2004] IPQ 209 at pp 245ff. 56  Eg G M Armstrong, “The Reification of Celebrity: Persona as Property” (1991) 51 La LRev 443; S Bains, “Personality rights: should the UK grant celebrities a proprietary right in their personality?” (2007) 18 Ent LRev 170(Pt 1), 205(Pt 2), 237(Pt 3). See also G Black, “Douglas v Hello! – An OK! Result” SCRIPT-ed vol 4, Issue 2, June 2007; G Black, “OK! for some: Douglas v Hello! in the House of Lords” (2007) 11 Edin LR 402. 57   G Black, “OK for some: Douglas v Hello! in the House of Lords” (2007) 11 Edin LR 402. 58   O Weber, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan Consensus in Publicity Rights” (2004) 1:1 SCRIPT-ed 178. 53



a r i gh t s of p e rso n al i t y databas e

501

Opponents of rights of publicity rely on doctrinal, traditional and communitarian arguments. 59 In civil law and some mixed systems, fully fledged rights of publicity are seen as infringing the primordial principle of the inalienability of personality rights.60 Since personality rights partake of the same inherently personal character as human rights, they should not (so the argument runs) be “reified” or “commodified” or “propertised”, that is, transformed by law into alienable things or commodities to be bought and sold in the market place. In English law the argument that publicity rights are inconsistent with privacy rights was advanced by dissenting judges in the Hello! litigation61 but the argument was characterised as merely aesthetic and brushed aside on the ground that being a celebrity and celebrity-licensing are lawful trades from which the law’s protection should not be withheld.62 The common law critics of rights of publicity63 regard them as a commodification too far64 and advance communitarian arguments to the effect that (in Madow’s words) celebrity images should “be treated as part of our cultural commons, freely available for use in the creation of new cultural meanings and social identities as well as new economic values”.65 11.4.2  Models of protection of dignitarian (non-patrimonial) and   economic (patrimonial) aspects of personality rights Relying on an instructive comparative analysis by Beverley-Smith, Ohly, and Lucas-Schloetter, it is convenient to distinguish three

59  H Carty, “Advertising, Publicity Rights and English Law” [2004] IPQ 209 at pp 249–252 summarises (and supports) the case against publicity rights from a common law standpoint. 60   On this principle see Section 11.4.3(b). 61  See OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21 at para 298 per Lord Walker of Gestingthorpe (citing Sedley LJ in [2001] QB 967 at para 140) quoted in Section 11.4.4(e). 62  See Section 11.4.4(e). 63  Eg M Madow, “Private Ownership of Public Image: Popular Culture and Publicity Rights” (1993) 81 California L Rev 125; J Boyle, “The Second Enclosure Movement and the Construction of the Public Domain” (2003) 66 Law & Contemp Problems 66; H Carty, “Advertising, Publicity Rights and English Law” [2004] IPQ 209. 64   Cf W Cornish and D Llewellyn, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (5th edn, 2003) p 618. 65   (1993) 81 California L Rev 125 at p 239. A civil law equivalent of “cultural commons” might be “res communes omnium”, things like the sea and the air available for use by all: D.8,2pr/1 one’s enjoyment of which was protected by an actio iniuriarum: D.47,10,13,7.

502

r i ght s of p e rs o n al i t y

basic models of protection of dignitarian and economic interests in privacy or use of name or image.66

(i) Most common law, civil law and mixed legal systems adopt a purely “defensive” model of protection of non-patrimonial, dignitarian interests in personality. Protection is afforded by recognising rights to attributes (eg to name, image, identity or privacy) or by allowing causes of action under the law of tort/delict or by a combination of the two. In general these dignitarian rights or causes of action are treated (at least in in civil law systems) as inalienable. On the other hand, one’s consent to another’s use of one’s image is a defence implying at least a limited waiver of rights to object to it. A consent (and therefore payment) for use of the image forms a possible growth-point from which a right to license the commercial exploitation of the image may develop. (ii) Then there is the dualistic model of American law in which dignitarian interests in image or privacy are protected by the right of privacy and patrimonial interests in image rights are protected by a separate “right of publicity” established in the 1950s which enables individuals, especially celebrities, to protect and profit from the commercial exploitation of their image.67 This right has acquired many of the characteristics of a fully-fledged incorporeal right of moveable property, akin to intellectual property, in so far as it is assignable, as well as licensible, and transmissible on death. (iii) It is said that differing from both of these is the hybrid, monistic model of the German law in which a general right to personality protects both dignitarian or non-patrimonial interests in privacy and commercial or patrimonial interests in publicity.68 However, German law resembles the systems in model (i) in its defensive approach to protecting commercial interests in publicity. It seems that all the legal systems in the case studies – whether civil law, common law or mixed – conform to the traditional “defensive” pattern in model (i) despite the differences between them. It is true that German law is the exemplar of the monistic approach in model 66  H Beverley-Smith, A Ohly, and A Lucas-Schloetter, Privacy, Property and Personality (2005) pp 212–214. 67   Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir, 1953); approved in Zacchini v Scripps-Howard Broadcasting Co 433 US 564 (1977). 68  See Chapter 5, Section 5.2.2(d) and (e).



a r i gh t s of p e rso n al i t y databas e

503

(iii). But in fact German law also closely resembles the defensive systems in model (i) and therefore has the same difficulty in allowing the licensing of the commercial use of a person’s image. None of the systems in the case studies have (as yet) adopted the radical American dualistic approach providing a separate right of publicity as in model (ii) which, however, is increasingly influential. 11.4.3  Civil law systems: the structure of dignitarian and   patrimonial (commercial) rights of personality (a)  General The traditional “defensive” model accommodates all the systems in the case studies namely the six civil law systems based on generalised rights, the three common law systems based on specific torts and equitable wrongs and the three mixed systems.69 However, the structure of the civil law systems differs considerably from the structure of the common law systems and it is convenient to deal with the former here in Section 11.4.3, reverting to common law systems in Section 11.4.4. Beverley-Smith et al explain that the most important characteristic of this model “is the existence of rules prohibiting certain unauthorised acts such as the invasion of another person’s private sphere, the disclosure of confidential information or the use of another person’s name or picture”.70 These authors argue that so long as those rules “remain restricted to the protection of the private sphere or of confidential information they remain deficient, as the US experience and the emerging English case law illustrate. Many celebrities deliberately seek media attention, thus arguments based on privacy fail in many typical situations of commercial exploitation of personality”. In all or most of the civil law systems studied and in Quebec and South Africa, the rights to one’s name and to one’s image (likeness or portrait) are generally treated as separate, autonomous rights of personality distinct from one’s right to privacy. It should follow that one can obtain damages for the unauthorised publication of one’s image without being required to show that the publication constituted also an invasion of one’s privacy. Logically it would then be possible for celebrities to claim an exclusive right to the commercial exploitation of their image without relying inconsistently on an interest in privacy which the celebrities have themselves already undermined by seeking out media attention for profit. However, although the exclusive right 69

 See Section 11.1.4.   Ibid (n 66), p 212.

70

504

r i ght s of p e rs o n al i t y

to name or image is not necessarily a component of a right to privacy, it is a right of personality in civil law systems and therefore subject to the principle of the inalienability of personality rights. Beverley-Smith et al observe that under the traditional “defensive” model “licensing causes conceptual problems, since only positive rights can be licensed whereas a purely negative tort law protection can only be waived. The same applies to descendibility: only rights can be inherited”.71 Since in protecting interests in image and privacy, common law systems rely on specific wrongs (such as breach of confidence and passing off) rather than rights, it might seem to follow that licensing is conceptually impossible in those systems. However, the recent House of Lords decision in Douglas v Hello 72 shows that in some cases at least the English jurisdiction in equity for breach of confidence is sufficiently flexible to allow an exclusive licensee in equity to sue third parties for breach of confidence. In due course the law on personality in common law jurisdictions may change from a wrong-based to a rights-based approach.73 Indeed such a transformation may have already begun74 and be unavoidable since the UK courts are bound by law to recognise the existence of a right to privacy under ECHR, Art 8, which Strasbourg jurisprudence requires them to balance against the right of freedom of expression under Art 10.75 (b)  Civil law systems: inalienability of personality rights Subject to some exceptions, the orthodox theory in the civil law countries studied76 and in the mixed systems of Quebec and South Africa, is that, unlike patrimonial (or economic) rights, rights to personality are inalienable that is, intransmissible inter vivos or mortis causa. Of course, the secondary right to claim solatium from a particular person for the infringement of a right of image or privacy or other primary right of personality may be assignable

  Beverley-Smith et al, Privacy, Property and Personality, p 212.   OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21. 73  The conceptual structure of tort law did not prevent American law in the 1890s from recognising a right of privacy: see D W Leebron, “The Right to Privacy’s Place in the Intellectual History of Tort Law” (1991) 41 Case West Res L Rev 769. The law of delict/tort is concerned with the secondary obligations generated by the infringement of primary rights: see R Stevens, Torts and Rights (2007). 74  P O’Callaghan, “Reversing Ubi Remedium Ibi Ius in the Common Law: The Right of Privacy” [2007] Eur Rev Pte Law 659. 75   Campbell v MGN Ltd [2004] UKHL 22 at para 133; [2004] 2 AC 457 (HL). 76  Argentina, France, Germany, Italy, the Netherlands and Spain. 71

72



a r i gh t s of p e rso n al i t y databas e

505

but it does not follow that the primary right itself is assignable.77 So, for instance, Genovesi observes that “under Argentine law, the right to one’s own image and the right to privacy are among those called ‘derechos personalísimos’ – absolutely inalienable rights – together with the rights to honour, to identity, to physical, mental and moral integrity, to freedom, etc”. They are “inherent to a person for the sole fact of being a person; not awarded by human power, not transferable to another [person], and incapable of repudiation, as they are essential and not deemed part of one’s property”. As to Italian law, Federica Gioia remarks: “Traditional features of property rights not easily reconcilable with personality rights include the following: freedom of assignment; freedom of waiver to another’s benefit; forfeiture upon failure to use. None of these seem acceptable when it comes to one’s name or portrait; even less so, when we consider one’s health or physical integrity.”

In some civil law or mixed systems the principle of inalienability is expressly enshrined in a specific enactment or the civil code. In Spain, for example, the Organic Act 1/1982, Art 3 describes the rights to honour, privacy and image as non-renounceable, inalienable and imprescriptible. Again, the Civil Code of Quebec, Art 3, provides that personality rights are “inalienable” (incessibles). In other codified civil law and mixed systems (such as Argentina, France, Germany, Italy and the Netherlands), the principle of inalienability depends on extra-codal doctrine and jurisprudence (case law). In South Africa it depends on the common law. (c)  Civil law systems: consents and non-exclusive licences     authorising commercial exploitation of personality rights Short of an out-and-out assignment/assignation of the right of exploitation of a person’s image, it is possible to identify a range or spectrum of types of authorisation – for example a bare revocable consent; or a non-exclusive licence; or an exclusive licence – by which a person may (for a money prestation) grant a limited right of exploitation without infringing the principle of inalienability. Under this heading we consider the use of revocable consents and non-exclusive licences as revealed by the case studies. These seem to differ in form but not much if at all in substance. Under the next heading we consider exclusive licences.  So, for example, in Scots law a claim of solatium for wrongous imprisonment is assignable (Milne v Gauld’s Trs (1841) 3 D 345, approved in Cole-Hamilton (Purdon’s CB) v Boyd 1963 SC (HL) 1) but nobody would suggest that the right of freedom from physical restraint is assignable. 77

506

r i ght s of p e rs o n al i t y

(i) Imprescriptible. It is generally accepted in civil law systems that personality rights are imprescriptible. As Federica Gioia observes in relation to the Italian law, forfeiture for failure to use is not reconcilable with personality rights. This may depend on express enactment78 or on doctrine and jurisprudence. It follows that generally if one tolerates an infringement of one’s personality rights by not taking action to prevent it, one does not thereby lose the right to object (eg by negative prescription through non-use).79 As Bloch and Cermolacce remark of the French law, somebody’s past leniency does not mean that she has renounced her right to respect of her private life.80 (ii) Bare consent as defence.  Generally speaking it is not contrary to public order (ordre public) or otherwise unlawful for individuals, whether famous or not, to profit from consenting to another’s use of their image.81 In principle an individual’s prior consent to what would otherwise be a delict invading an interest of personality is a defence in the strong sense that it takes away the delictual character of the invasion.82 Whether the consent is a unilateral or a bilateral juridical act may differ in different legal systems. Normally the consent may be express or implied.83 It may be challenged on the ground of incapacity or a vice of consent.84 (iii) Consent as limited waiver. A consent is a waiver of the exercise of the consenter’s right of action against a particular person. It is not a waiver of the right itself nor a renunciation in favour of persons generally.85 In Spain the Organic Act 1/1982, Art 3 provides that a waiver of the protection afforded by the Act will be void without prejudice to cases of authorisation provided by Art 2. The effect

 Eg in Spain the Organic Act 1/1982, Art 3, quoted above.   Of course, the action, or more properly the right, for claiming against a particular infringement of personality rights is prescriptible. 80   Bloch and Cermolacce commenting on case study (2)(e). 81   Les Éditions Vice-Versa v Aubry [1998] 1 SCR 591 (Can); (1998) 157 DLR (4th) 577. 82   Cf D M Walker, Delict (2nd edn, 1981) 345; 496–498; Adamson v Martin 1916 SC 319. An agreement or promise by the victim not to sue (pactum de non petendo) would also raise a defence. 83   Genovesi states that in Argentina at one time the courts indicated that consent must be express (Foto Mundo case) but more recent authorities hold that implied consent may be admitted in exceptional circumstances provided the consent is clear and leaves no room for doubt. 84  See eg the Scottish case of X v BBC 2005 SLT 796; 2005 SCLR 740 (OH) discussed in case study (3). 85   Beverley-Smith et al, Privacy, Property and Personality, p 197. 78

79



a r i gh t s of p e rso n al i t y databas e

507

is that “whereas a global waiver [of] the right is void, in certain cases and under certain conditions . . . a partial and specific disposal of these rights is valid as long as it does not entail their indefinite transfer either in time or in the number of persons to whom it is made”.86 German commentators observe that since the waiver only affects remedies, the consentee’s commercial exploitation of the image remains unlawful. This criticism may be only theoretical. According to one Dutch source, however, when one consents to publication of one’s portrait, then under Dutch law one gives up one’s claim to one’s right of portraits.87 This may also be true mutatis mutandis of the English law.88 (iv) Consent specific and restrictively construed. The case studies show that in Civil law systems and Quebec it is widely accepted that the consent must, in order to be valid, relate to a closely defined specific use of the personality attribute concerned. Furthermore consent to invasion of privacy rights is interpreted restrictively. In France it is said: “An authorisation is specific and revocable. For every new disclosure a new authorisation is required”.89 As Bordet states of Quebec law, “Whether explicit or implicit, consent is interpreted restrictively, even when implicit: consent to publication of a picture for one purpose or occasion does not entail consent for other purposes or occasions”.90 So in a German case,91 where a student male-model consented to the use of photographs of himself “for all purposes, including commercial use”, the photographs were used for advertising under-wear in 1986 but a decade later could not be used to illustrate a pornographic story in a mass-market magazine. Clearly the consent “for all purposes” was not sufficiently specific. In the Dutch Naturiste case,92 a girl had given consent to her picture being taken and perhaps publication in a nudist magazine, but the consent was held not to cover publication on the back of a camping guide.93

86  M Martin-Casals and J S Feliu, “The Protection of Personality Rights against Invasions by Mass Media in Spain” in Koziol and Warzilek (eds), The Protection of Personality Rights against Invasions by Mass Media 289 at p 301. 87  Saskia Werther, case studies (1) and (2), citing G Schuijt and D Visser, Portrerecht voor iederen (2003) 41. 88  Simon Smith on case study (3), quoted above. 89   Bloch and Cermolacce on case study (2)(e) in French law. 90   Bordet on case study (1) in Quebec law. 91   Kammergericht Berlin, 28.08.1998, 25 U 7198/97, KG-Report 1999, 74, noted by Olaf Weber commenting on case study (1)(d). 92   9 HR 30 October 1987, NJ 1988, 277, m. nt. L. Wichers Hoeth (Naturiste). 93  Similar rules and examples are described in the case studies for Argentina, France, and Quebec.

508

r i ght s of p e rs o n al i t y

(v) Consent revocable. In many if not all civil law systems the general rule is that consent may be revoked prospectively at any given moment because of the special nature of personality rights. In some, for example Argentina, France and Spain, the revocation is conditional on indemnification of the party holding the consent.94 A capricious change of mind however may not be given effect.95 In Italy the competence of a revocation of consent to publication of one’s image is normally assessed by reference to the same general statutory and other principles as regulate the question of whether the consent was necessary in the first place.96 In Spain, it has been held that an actress who had consented to publication of photographs of herself could not waive her right to revoke her consent and so the consent always has a revocable character.97 The revocation, however, must be aimed at protecting personality rights and must not be merely a clever tool to strengthen a celebrity’s bargaining power in negotiations about the commercial exploitation of her image. Celebrities “have the same personality rights as anybody else except for the limits drawn by the publicity of their acts on their fame”.98 Nevertheless revocability had to be reaffirmed because under Spanish law personality rights are above the rights created by contractual cession (assignment or assignation).99 In Germany some authors contend that consent to an invasion of personality is similar to a patient’s consent to medical treatment, which is revocable.100 This contention has been criticised as unduly paternalistic; a celebrity exploiting his or her image for profit needs and merits protection less than a patient undergoing medical treatment. In the Netherlands, general principles of the law of contract apply with the effect that a consent once given cannot be withdrawn.101 The same is said to be “almost certainly” true of English law.102

 In Argentina the rule is statutory: see Copyrights Act of 1933, s 31.   Beverley-Smith et al, Privacy, Property and Personality, pp 192–193. 96  Italian Copyright Act, s 97. 97   Doña Ana Garcia Obregón v Editorial Origen SA (Constitutional Court, 2d Chamber) case 117/1994. 98   Ibid. 99   Ibid. 100   Beverley-Smith et al, Privacy, Property and Personality, p 131. 101  Saskia Werther, case studies (1) and (2). 102  Simon Smith on case study (3): “The fact that consent had been given to the journalist would be almost certainly determinative of the issue in favour of the newspaper. The claimant would be considered to have forfeited his/her right to privacy.” 94 95



a r i gh t s of p e rso n al i t y databas e

509

(d)  Civil law systems: exclusive licences for commercial        exploitation of personality rights? Most (perhaps all) civil law systems have not yet clarified the exact nature of the above-mentioned revocable consent to the commercial exploitation of one’s right to one’s image or other personality right. Is it a waiver in personam or a renunciation erga omnes? Or is it a consent similar to a revocable consent to treatment under medical law? Should it be revocable or irrevocable? None of the civil law systems seek to abandon the traditional doctrine of the inalienability of personality rights. A growing number of civil law commentators however argue that while that doctrine precludes a complete out-andout assignation/assignment or transfer under which the individual is divested and the contracting party vested in the personality right, it should not be taken as precluding a partial, limited transfer by licence. In such a limited transfer, the licensor (it is said) retains the core of his or her personality. 103 An exclusive licence would differ from a revocable consent in the following respects. (i) It would be irrevocable save in very exceptional circumstances. (ii) It would allow for the transfer of the licence from the licensee to a third party perhaps with the licensor’s consent. (iii) It would confer on the licensee a title to sue a third party for infringement of the licensee’s exclusive right of commercial exploitation of the licensor’s personality. An exclusive licence on these lines would differ from an out-and-out assignment/ assignation in being revocable in very exceptional circumstances; it is restrictively construed and confined to specific permitted acts; and normally it would have a limited duration and restrictions on transmissibility. There are at least two methods of accommodating an exclusive licence on these lines within a civil law legal system. As mentioned above, German law, which provides for a single general right (rather than a plurality of particular rights) of personality, adopts a monistic approach under which the general right covers both dignitary and patrimonial interests. Since the licence is revocable and of limited duration, the licensee’s right is not entirely cut off from the parent general right. The details of this monistic right could be filled in by analogy with the monistic regime of authors’ rights under the German Copyright Act.104 The Nena case105 of

  Beverley-Smith et al, Privacy, Property and Personality, p 130 and pp 132– 134. 104  See ibid, p 133. 105   Ibid, p 134; BGH GRUR 1987, 128 (singer assigned all rights necessary to the exploitation of visual and acoustical circumstances to a commercial merchandising 103

510

r i ght s of p e rs o n al i t y

1987 could be “explained” on the basis of an exclusive licence, a solution which is also supported by inconclusive obiter dicta in the Marlene case.106 It seems that in France jurisprudence (case-law) has not yet resolved the problem of whether the consent to the commercial exploitation of personality operates merely as an enforceable promise not to sue or as the transfer of a right, in the nature of a property right, in the attributes of the transferor’s personality enabling the licensee to sue third parties.107 Loiseau argues that the right to one’s image cannot be a full right of ownership since a personality right cannot be appropriated. It is rather a monopoly of exploitation over the image (un monopole d’exploitation sur l’image) which could itself be regarded as an incorporeal thing (bien incorporel).108 In France and Quebec commentators generally favour a dualistic approach conform to the dualistic approach of French copyright law under which non-patrimonial dignitary interests and patrimonial economic interests are the objects of two different types of right. On this view, the dualist approach is necessary to avoid the doctrinal incoherence which arises when one type of right is subjected to the influence of the other.109 Likewise the South African jurist Johan Neethling argues that the commercial value of indicia of identity “should be regarded as part of the right to publicity and not an element of the personality right to identity which in essence has a non-patrimonial character. Therefore a dualistic model which recognizes two separate rights in this regard, rather than the monistic model of Germany, is to be preferred”.110 The case study questions covered much ground but understandably did not focus in detail the issue of whether it is competent to grant an exclusive licence to exploit the licensor’s image having the foregoing features,111 and in particular whether in civil law systems such a licence would infringe the principle of the inalienability of image

agency. Third parties merchandised Nena posters and T shirts for sale. The Bundesgerichtshof upheld a claim by the agency against the third parties but left the juridical basis of its judgment in doubt.) 106   BGH, 1 December 1999; BGHZ 143. 107   Beverley-Smith et al, Privacy, Property and Personality, pp 198–200. 108   G Loiseau, “Des Droits Patrimoniaux de la Personnalité en Droit Français” (1997) 42 McGill LJ 319 at p 328. 109  See, eg, Loiseau, (1997) 42 McGill LJ 319. 110   J Neethling, “Personality Rights”, Chap 48 in J Smits (ed), Elgar Encyclopedia of Comparative Law (2006) 543. 111  Ie of limited duration; irrevocable save in exceptional circumstances; partly assignable; and conferring on the licensee a title to sue third parties who infringe the licensee’s monopoly.



a r i gh t s of p e rso n al i t y databas e

511

rights. The fine tuning of personality licensing might be a most useful topic for further comparative research. (e)  Protection after victim’s death in civil law; active transmissibility    by succession or relatives’ own rights of personality The case studies reveal that personality rights generally are not actively transmissible by succession on the victim’s death but that after death relatives (or universal successors) of the deceased may have remedies in their own right under rules prohibiting any interference with a deceased person’s body or reputation. The law in France, for example, is lucidly described by Bloch and Cermolacce on the following lines. The death of a person brings an automatic end to the legal persona. In principle, the protection of privacy ends with death, since the personality rights cannot be transmitted. Tarnishing someone’s memory, however, can provoke a moral prejudice for the relatives, who can then seek a remedy.112 The heirs can also seek a remedy if they can show a personal prejudice resulting from this attack on the memory.113 In the Affaire Mitterrand it was held: “The fixation of a person’s image, whether she is dead or alive, is prohibited in the absence of prior consent from persons having the power to give this authorisation”.114 The heirs have this right not as the deceased’s successors115 but as their own personal right:116 they protect their own private life, not the private life of the deceased. Moreover, in the Erignac case,117 the court established the principle that “the publishing in the press of the picture of somebody who has been murdered, while his family and friends were still mourning, is, if they have not agreed to this publication, a serious attack on their sentiment of affliction, and thus, to the intimacy of their private life”. Of the German law Olaf Weber remarks: “The death of a personality leads to a split in rights: Commercially founded rights do not survive the person, while certain – not all – dignitary rights do.[118] Some commercial positions derived from dignitary positions can still be enforced by the heirs. Marlene’s heir, hence, could stop the listing of a trade mark ‘Marlene’ bearing her portrait . . . However,   Bloch and Cermolacce, citing, for example, CA, Rennes, 31/05/1951, D. 1951, 484, comment Lalou; (the press by damaging the reputation of a man can cause harm to his widow). 113   Ibid, citing TGI, Paris, 16/11/2000, Gaz. Pal. 2000, 2, 2434. 114   Ibid, citing “Affaire Mitterrand”, dated October 20, 1998 (Criminal Division of the Cour de Cassation) (D. 1999. 106, comment Beignier). 115   Ibid, citing CA, Paris, 6 May 1997, D., Jur. P. 596. 116   Ibid, citing CA, Paris, 24/02/1998, D. 1998, D. 1998). 117   Ibid, citing Préfet Erignac Civ 1, 20/12/2000; D. 2001 885. 118   Citing the Mephisto case: BGH, 20 March 1968, BGHZ 50. 112

512

r i ght s of p e rs o n al i t y

it was made clear that those positions disappear with the [march of] time. As soon as the memory of a person as such disappears and the historical interest overrides it, those positions become weaker.”119 In Argentina in the Váldes case120 the court decided that although it is generally correct to affirm that death extinguishes the inalienable rights of the deceased, nevertheless in certain situations those rights may extend beyond the life of a person, as in the case of the right to privacy. The photographing of the corpse violates that right and provides heirs [and assigns] with the required legal standing to request protection. In Italy, after the death of the person portrayed in a portrait, the power of consent to its showing, reproduction or sale is vested in the deceased’s spouse or sons and daughters or remoter relatives in a prescribed order which failing the judicial authority.121 In the Netherlands the fact that a person is dead does not mean that no one can object to the use of the person’s image or portrait. While the deceased cannot raise an action based on his personality rights, the deceased’s relatives may argue that there has been an unlawful act. If there were an injury to the deceased person’s memory, the relatives could claim damages under BW, Art 6:106(c).122 In Spain the courts hold that transmission on death is not competent because of the Codígo Civil, Art 32 which provides that “civil personality is extinguished at the death of the person”. Personality, however, can include the family.123 11.4.4  Common law systems: the structure of dignitarian rights of   personality and commercial (patrimonial) rights of publicity

(a)  The main equitable and tortious wrongs protecting interests in     personality and publicity The case studies reflect the considerable structural differences which exist between the civil law and common law systems. For   Case study (5) referring to the Mephisto and Marlene cases cited above.   Cámara Nacional de Apelaciones en lo Civil, Sala F, Váldez vs. Editorial Perfil, October 14, 1999, Jurisprudencia Argentina, 2000, T. III, p. 457. Lexis 0003/007766. 121  Italian Copyrights Act, Art 96. 122   “If the harm consists of injury to the memory of a deceased person inflicted upon the non-separated spouse or upon a blood relative up to the second degree, provided that the injury took place in a fashion which would have given the deceased, had he still been alive, the right to reparation of injury to honor or reputation.” Translation by P Haanappel, Nieuw Nederlands Burgerlijk Wetboek: het vermogensrecht (zakenrecht, verbintenissenrecht en bijzondere overeenkomsten): New Netherlands Civil Code (1992), cited by Werther. 123  See Doña Isabel Pantoja Martín v Prographic SA 19881223 BOE num.307 (deceased matador’s widow brought action for violation of right of privacy and of 119

120



a r i gh t s of p e rso n al i t y databas e

513

example, the civil law systems are based on generalised rights whereas the common law systems are based on specific (equitable and tortious) wrongs. Furthermore the civil law case study responses suggest that consent to use of an individual’s image is the first stage in the development of commercial (patrimonial) rights in image in civil law systems. By contrast in the common law case study responses, consent seems relatively unimportant.124 It is scarcely mentioned in the Australian case studies. It does bulk larger in the Canadian common law case studies125 but this seems to reflect the civil law influence emanating from Quebec.126 The analysis in the common law case studies focuses on how specific wrongs are being developed in order to protect both dignitary and commercial interests in an individual’s image and similar indicia of identity. In common law systems, there seem to be four main non-statutory wrongs protecting such interests, namely: • a new “tort of misuse of private information”, recently developed out of the equitable wrong of breach of confidence, in which the cause of action is the infringement of the claimant’s dignitarian right or interest in privacy;127 • the tort of passing off as extended beyond its original role to cover cases of “false endorsement”; • (in Ontario and common law Canada) the relatively new tort of misappropriation of personality; and • the equitable wrong of breach of confidence in its traditional role (in which the cause of action is the wrongful disclosure of secret information).

image by film containing unauthorised images of him, the bullfight in which he was fatally injured by goring, and the ensuing medical assistance). 124   Consent was once important in the shape of the now largely discredited doctrine of a celebrity’s implied waiver of the right to object to invasion of privacy classically stated in Woodward v Hutchins [1997] WLR 760 (CA) at 765 per Bridge LJ. For the decline and present status of this doctrine, see H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006), pp 772–778. 125  See eg the references to consent in Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA) (liability for misappropriation arising when someone consents to the initial use of photographs of himself, later becomes famous, and thereafter the photographs are published though he had not consented to their later use.) 126  Especially Les Éditions Vice-Versa v Aubry [1998] 1 SCR 591 (Can); (1998) 157 DLR (4th) 577. 127  See Campbell v MGN Ltd [2004] UKHL 22 at para 14, per Lord Nicholls; applied in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 at para 24.

514

r i ght s of p e rs o n al i t y

In the three common law systems surveyed, (Australia; the Canadian common law provinces; and England and Wales) the main nonstatutory remedy against invasion of the dignitarian aspects of privacy is the extended equitable action for breach of confidence in which the cause of action is the infringement of the claimant’s right of privacy or its offshoot the new English tort of misuse of private information.128 In Australia since 1960129 and in England and Wales (which eventually followed Australia’s lead in 2002)130 a main remedy against commercial exploitation of image has been and is the tort of passing off extended to cover cases of false endorsement. By contrast in Canada (Ontario) since the mid-1970s the main remedy against commercial exploitation of image is the new tort of misappropriation of personality131 influenced by American law. This difference between Australia and Canada probably resulted in part from historical accident for in Canada the development of the new tort of misappropriation of personality “appears to have happened because the two cases which gave rise to it[132] clearly did not involve endorsement by the celebrity plaintiff involved. This meant that the tort of passing off was inapplicable”.133 Finally, at least in England and Wales (quaere Australia and common law Canada?), the action of breach of confidence in its traditional role (in which the cause of action is the wrongful disclosure of secret information) will lie at the instance of a celebrity or his/her licensee in circumstances where the secret information consists of or includes valuable information about the celebrity’s image or other personality attributes.134 (b)  Misuse of private information and breach of confidence: the     dignitarian right of privacy; Australia; Canada; and England     and Wales The approach of Australian and Canadian laws to breach of confidence as a cause of action in respect of misuse of private

 See Section 11.7.2(b).  See Section 11.7.3(b); Henderson v Radio Corporation [1960] SR (NSW) 576. 130  See Section 11.7.3(b); Irvine v Talksport Ltd [2002] EWHC 367 (Ch); [2003] EWCA Civ 423. 131  See Section 11.7.3(b). 132   Krouse v Chrysler Canada Ltd (1974) 1 OR (2d) (CA); Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425. (Footnote added.) 133  H Carty, “Advertising, Publicity Rights and English Law” [2004] IPQ 209 at p 227. 134  See OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21. 128

129



a r i gh t s of p e rso n al i t y databas e

515

information, is shortly described at Section 11.7.2(b). Since the time of the Comparative Personality Research Survey in 2006, there have been significant developments in English law. The House of Lords in both Campbell v MGN135 and Douglas v Hello!136 accepted that within the equitable wrong of breach of confidence, there are two distinct but partially overlapping causes of action protecting two different interests – namely privacy, and secret (“confidential”) information137 – each with its own distinct test of liability. Indeed, in influential dicta in Campbell Lord Nicholls reasoned in effect that the privacy cause of action had emerged from its equitable-wrong chrysallis in breach of confidence and now constituted an independent tort of “misuse of private information”.138 In the subsequent English litigation concerning the unauthorised publication of paparazzi photographs of the 18-months-old son of J K Rowling – the Murray case139 – the Court of Appeal accepted this approach.140 In the Murray case at first instance the judgment of the ECtHR in the von Hannover case141 was held to have established two propositions. First, a celebrity may have a legitimate expectation of privacy in private family and personal activities even though they are not per se embarrassing or intimate. Second, publication of photographs of a celebrity who is not a public figure in the sense of being a politician or the like “cannot be justified as a legitimate exercise of the right to freedom of expression where the sole purpose of publication is to satisfy readers’ curiosity rather than to contribute to a debate on or the raising of an issue of general public interest or importance”.142 This goes further than the Campbell case143 or the previous   Campbell v MGN Ltd [2004] UKHL 22.   OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21 (Lord Hoffmann, Lady Hale; Lord Brown; dissenting Lord Nicholls and Lord Walker) revg Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; and reinstating the judgment on liability of Lindsay J at first instance in Douglas v Hello! Ltd (No 5) [2003] EWHC 786 (Ch). 137   We revert to secret information in Section 11.4.4(e). 138   Campbell v MGN Ltd [2004] UKHL 22 at para 14: “The essence of the tort [sic] is better encapsulated now as misuse of private information.” 139   Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, reversing Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) (action brought on behalf of the infant son of the author J K Rowling (Mrs Murray) in respect of the unauthorised publication in a newspaper of unauthorised photographs of her family in a public street in Edinburgh). The action so far as against Express Newspapers at first instance was settled but was continued against Big Pictures (UK) Ltd on appeal. 140   [2008] EWCA Civ 446, especially at para 24. 141   von Hannover v Germany (2005) 40 EHRR 1 noted by the contributors on Australia, Germany, England and Wales; and Scotland. 142   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) at para 47 per Patten J. 143   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E). 135

136

516

r i ght s of p e rs o n al i t y

German law144 and resembles French law and Quebec law which prohibit unauthorised publication of photographs subject to some exceptions.145 The judge accepted that “the unfettered application of this view of von Hannover ‘would herald a revolution in Britain’s journalistic culture’”146 because of the distinctively aggressive and prurient attitude of the UK tabloid press (compared with the European press) to the private lives of celebrities and politicians. Instead he followed the Campbell case which (notwithstanding von Hannover) he was bound by precedent to do147 holding that in English law “there remains an area of routine activity which, when conducted in a public place, carries no guarantee of privacy”.148 Reversing the decision, the Court of Appeal emphasised that it depended on circumstances whether the child claimant had a reasonable expectation of privacy. Since, arguably, a son of noncelebrity parents could reasonably expect that the press would not publish targeted photographs of him, the same was true of the son of a very famous author especially since the photographs had been taken or published only because he was the author’s son. Even after von Hannover, there might, depending on circumstances, be no reasonable expectation of privacy. Nevertheless the law did not sharply distinguish between, on the one hand, a person’s private recreational activities and, on the other hand, routine activities such as a walk down the street or a trip to the grocer’s to buy milk since, in some circumstances, the latter could also attract a reasonable expectation of privacy. Normally children merited protection from intrusive media attention and could reasonably expect that they would not be the subject of targeted photographs made in a public place for publication, where the taking of such photographs would be objected to by their parents on their behalf. In this case the child claimant had an arguable case and his parents should be permitted to proceed to trial on his behalf. (c)  Passing off: Australia; England and Wales Australian law.  In the case studies Megan Richardson observed that in Australia passing off is a particularly important cause of action for

 See Chapter 5 (G Brüggemeier).  See Sections 11.7.2(a) and 11.7.2(c). 146   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) at para 47 per Patten J, citing M Tugendhat and I Christie (eds), The Law of Privacy and the Media (2nd edn, 2002), Supplement at para 6.52. 147  See Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465, applied in Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D). 148   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) at para 66, per Patten J. 144 145



a r i gh t s of p e rso n al i t y databas e

517

protecting personality interests.149 In the leading case of Henderson v Radio Corporation150 the court held that the tort of passing off encompassed a misrepresentation of sponsorship or approval by professional ballroom dancers of the defendant’s records of ballroomdancing-music carrying a picture suggestive of them on the cover.151 The assessment of damage was not restricted to proven loss of actual or potential sponsorship income. The defendant’s wrongful appropriation of the plaintiffs’ recommendation “was an injury in itself”152 remediable by damages or injunction. After Henderson, although Australian courts refer to passing off in classical terms of reputation, misrepresentation and damage (or likely damage in a quia timet action). The last tends to follow if the first two are shown and the second is most important. Australian courts have been generous in finding a misrepresentation of sponsorship or approval (or other association) where personality interests are concerned. Despite views that Australian courts are moving in the direction of a de facto publicity right153 this is rarely explicitly acknowledged.154 Rather, the common theme is that a misrepresentation can be very subtle so that a false association of “some desirable character with the product”, that involves no logical train of thought but is emotional and necessarily imprecise, may be enough.155 English law. In the case studies Hazel Carty points out that there are three: “key ingredients to the tort of passing off: namely a misrepresentation, existing goodwill (or customer base – this means that the claimant  This paragraph is based on Richardson’s instructive case study contribution.   [1960] SR (NSW) 576 (New South Wales Full Supreme Court). 151  Witness evidence of confusion helped establish the pictures did not merely indicate the type of music on the record but would indicate their recommendation or approval, used as an inducement to purchase. It did not matter that the Hendersons did not have their own licensing program – there was no need, the court said, for a common field of activity. 152   Ibid at 595. 153  See, eg, S Ricketson, “Character Merchandising in Australia: Its Benefits and Burdens” (1990) 1 AIPJ 191. 154  With the limited exception of Pincus J in the early case of Hogan v Koala Dundee (1988) 12 IPR 508 that “image-filching” is a wrong per se, and in Campomar Soc Ltd v Nike International Ltd (2000) 202 CLR 45 the High Court simply referred to the “adaptation” of passing off to meet new circumstances involving “the deceptive or confusing use of names, descriptive terms or other indicia” (at 511, citing Deane J in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 445–446; and Henderson v Radio Corporation [1960] SR (NSW) 576). 155   Hogan v Pacific Dunlop Ltd (1989) 14 IPR 398 (Full Federal Court) at 429, per Burchett J. 149

150

518

r i ght s of p e rs o n al i t y must be capable of being defined as a trader) – and harm to that goodwill. The essence of the tort is customer confusion. However these ingredients have been applied in a more expansive way in recent years. In the ‘classic’ case of passing off the defendant misrepresents his goods as those of the claimant. There is source misrepresentation, therefore and the ‘classic’ heads of damage consequently focus on the potential harm to the claimant’s existing customer base ie through diversion of sales and a devaluation of the claimant’s reputation (particularly if the defendant’s goods are inferior). The tort now also protects against a connection misrepresentation – falsely alleging a link of some kind with the claimant (or his business). At the same time, such cases equate goodwill with the concept of reputation or fame and provide for more exotic heads of damage such as ‘lost licensing opportunity’ ‘loss of distinctiveness’ or ‘loss of control’. Indeed the (imprecise) allegation of “dilution” of goodwill or reputation is now common in the tort. All these developments are obviously of interest to those who seek protection for the “economic conception of personality” particularly in the area of advertising and promotional activities.  The culmination of these developments is to be found in Irvine v Talksport Ltd [2002] FSR 943 (Laddie J [2003] FSR 50; the Court of Appeal upholding his judgment on passing off in Irvine v Talksport (Damages) [2003] 2 All ER 881). This . . . is the first English case to accept that ‘false endorsement’ is covered by the tort of passing off. The tort now also protects ‘promotional’ goodwill, defined by Laddie J as ‘the attractive force which is the reputation’ of the famous person. The development is likely to continue, fuelled by dicta such as that contained in the judgment of Aldous LJ in Arsenal v Reed [2003] RPC 39 that unfair unlicensed use of a ‘character’ might in itself involve the tort in the future.”

(d)  Misappropriation of personality: Canada In the legal systems surveyed the tort of misappropriation of personality is found only in common law Canada, most cases emanating from Ontario. Lorian Hardcastle explains that appropriation of personality “is the branch of the tort of invasion of privacy that protects against appropriation or pirating of one’s image, name, likeness or other distinguishing personal characteristics”. There are relatively few Canadian cases considering this issue.156 As to classification and the basis of liability, Hardcastle states that the existing jurisprudence is somewhat contradictory and continues:  See, however, Krouse v Chrysler Canada Ltd (1974) 1 OR (2d) (CA); Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425; Joseph v Daniels (1886) 11 CPR (3d) 544 (BCSC); Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA). 156



a r i gh t s of p e rso n al i t y databas e

519

“The right to one’s personality had been treated both as a form of property and as a privacy right, depending on the court’s characterization. While this offers a remedy regardless, there is no clear policy as to whether the loss is compensable under property or privacy. Under property, misappropriation of personality may be regarded as a form of unfair competition and proof of exploitation and conversion. This may commonly be applied to celebrities and public figures who have identifiable characteristics that are valuable to advertisers for marketing purposes (although it may be applicable to ordinary citizens as well). Under a privacy analysis, misappropriation is regarded as undermining autonomy and dignity.”

(e)  Breach of confidence: secret information; the commercial right    of publicity; and licences in equity Several case study responses refer to the decision of the Court of Appeal in Douglas v Hello! Ltd which, however, was subsequently reversed by the House of Lords.157 The celebrity magazine OK! contracted with the film-stars Michael Douglas and Catherine Zeta-Jones (the Douglases) for the exclusive right (or licence) to publish photographs of their celebrity wedding in the Plaza Hotel, New York at a price of £1m. All other photography was forbidden. The rival magazine Hello!, however, published photographs of the wedding which it knew to have been surreptitiously taken by an unauthorised paparazzo gatecrasher pretending to be a guest or waiter. In an action at the instance of the Douglases and their licensee OK!, the Court of Appeal upheld the award to the Douglases of a relatively small sum for distress caused by the invasion of their privacy. As regards the claim by the licensee OK!, the House of Lords by a 3:2 majority reversing the Court of Appeal held that the publication of the photographs was a breach of the equitable right of OK! to confidentiality in the photographic images of the wedding and awarded damages of £1m.

The House of Lords held by a bare 3:2 majority that the exclusive licensee of confidential information may have a title to sue a third party for breach of confidence.158 The information was capable of 157   OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21 (Lord Hoffmann, Lady Hale; Lord Brown; dissenting Lord Nicholls and Lord Walker) revg Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; and reinstating the judgment on liability of Lindsay J at first instance in Douglas v Hello! Ltd (No 5) [2003] EWHC 786 (Ch). 158   For previous doubts on this point, see G Wei, “Licensing of Confidential Information: Hello and Goodbye to the Rights of the Licensee and Third Parties” (2007) 23 JCL 55.

520

r i ght s of p e rs o n al i t y

being protected, not because it concerned the image or the private life of the Douglases, but simply because it was “information of commercial value over which they [the Douglases] had sufficient control to enable them to impose an obligation of confidence”.159 Christina Michalos points out that this was a direct acknowledgement that the rights of control were those of the Douglases and not of OK! Since it was accepted that the grant of a licence to OK! passed no proprietary interest, it is (as Michalos remarks) “difficult to see how the House of Lords makes the jurisprudential jump that imbues OK! with its own right of action”.160 The action of the exclusive licensee against the third party was held by the majority to be based neither on breach of privacy nor on an “image right” nor on any other unorthodox form of intellectual property but on the traditional cause of action for breach of confidence designed to protect “a generic class of commercially confidential information”. The decision has been subjected to powerful criticism.161 The majority did not consider the juridical basis of the action for breach of confidence. Its basis has been said to rest at different times on contract, equity or property162 or (as the Court of Appeal held in this case) unjust(ified) enrichment163 or to be sui generis.164 Some of the judges had found it “not obvious why a claimant should be able to invoke the law’s protection for the confidentiality of his or her private life (this claim being based on the high principle of respect for human autonomy and dignity) and also to invoke its protection for the commercial confidentiality of the same or similar material, as a trade secret, until it is to be disclosed for profit at a time of his or her own choosing”.165 Why should the Douglases be able to sell their privacy and yet claim the protection of the law for it? Lord Hoffmann, however, flatly denied that there was any reason of public policy why the law of confidence should not protect

 At para 124, per Lord Hoffmann.   C Michalos, “Douglas v Hello: The Final Frontier” (2007) 18 Ent LR 241. 161  See eg Michalos, (2007) 18 Ent LR 241; cf G Black, “OK for some: Douglas v Hello! in the House of Lords” (2007) 11 Edin LR 402. 162   F Gurry, Breach of Confidence (1984) p 58. 163   Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595 at para 119. 164   Gurry, Breach of Confidence p 58: “The view offered here is that the courts have relied on principles freely drawn from the fields of contract, equity, and property, and that the liberal use of these principles points to the existence of a sui generis action which has, in terms of conventional categories, a composite jurisdictional basis.” 165   [2007] UKHL 21 at para 276, per Lord Walker of Gestingthorpe, citing Sedley LJ in [2001] QB 967 at para 140. 159 160



a r i gh t s of p e rso n al i t y databas e

521

this valuable commercial information for which magazines were prepared to pay £1m.166 He remarked:167 “Some may view with distaste a world in which information about the events of a wedding, which Warren and Brandeis in their famous article on privacy in (1890) 4 Harvard LR 193 regarded as a paradigm private occasion, should be sold in the market in the same way as information about how to make a better mousetrap. But being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer.”

Lord Walker explained, however, that his dissent arose not from any distaste for the modern celebrity world but from his perception of the need for consistent and rational development of the law of confidentiality.168 But that need was trumped by Lord Hoffmann’s reasoning based on “economic realities”.169 Four other criticisms of the decision may be noticed. First, it bypassed the first requirement of the classic Coco test for breach of confidence: “the information itself must have the necessary quality of confidence about it”.170 Thus “the law appears to be developing so that the nature of the information is irrelevant, all that is required is that it is inaccessible”.171 Second, confidentiality should in principle depend on the nature of the information (which does not include trivial tittle-tattle) and not on its market value, nor on the fact that it was publicly inaccessible being protected by stringent security arrangements.172 Third, Lord Walker observed (expressly disagreeing with Lord Hoffmann) that the decision does seem to go “some way to creating an unorthodox and exorbitant form of intellectual property”.173 Whether or not it is exorbitant, the licensee’s right does seem to be a novel form of incorporeal moveable property since it derives from a grant by the licensor and since the exclusive licensee has an independent right and title, separate from that of the licensor, to sue third parties for infringement of the right. Finally by squeezing the licensee’s claim into traditional breach of confidence, the House of Lords was able to side-step the issue of whether English law recognises a right of publicity. That question remains open.   [2007] UKHL 21 at para 124.   Ibid. 168   Ibid at para 298, per Lord Walker of Gestingthorpe. 169   Ibid at para 117. 170   Coco v A N Clark Engineers Ltd [1969] RPC 41 at 48, per Megarry J. 171  Michalos, (2007) 18 Ent LR 241 at p 244. 172   [2007] UKHL 21 at paras 299 and 300. 173   [2007] UKHL 21 at para 297. 166

167

522

r i ght s of p e rs o n al i t y

11.4.5  Classification of rights of personality and of publicity In civil law and mixed systems, it is said that rights of personality generally do not fit well into the traditional civil law classification of real rights and personal rights.174 So, for instance, Roderick Macdonald remarks of the Quebec law:175 “A number of rights universally opposable have no object external to their titulary. These ‘personality rights’ (droits de personnalité) – a person’s name, physical integrity, image, reputation, etc – long relegated to the realm of the extra-patrimonial, have begun to acquire patrimonial consequences. Once this possibility is admitted, [790] classical theory must conceive of them either as real rights – which they cannot be since they could only be considered as bearing on a thing if the human body itself were a thing – or as personal rights – which they cannot be since they inhere in the human personality and are opposable to everyone.”

It may suffice, however, to say that rights of privacy are primary rights infringement of which triggers secondary rights and obligations in delict or in unjustified enrichment which are classifiable as in the relevant sense “personal” (ie the antithesis of “real”). Rights of publicity on the American common law pattern pose different problems. In the common law systems of the USA (which fall outside the case studies) the right of publicity is regarded as a fully fledged property right transmissible both during life and on death.176 Some distinctive features of the common law tradition facilitated this development. As emerges from the case studies noted above, in the civil law there is a deeply entrenched, universally held doctrine of the inalienability of dignitarian personality rights which, when combined with the difficulty of disentangling dignitarian from patrimonial aspects of rights of personality, undoubtedly impedes the development of a separate right of publicity. This impediment is absent in the common law. Moreover, common law systems have an “open” system of property law (which rejects a numerus clausus of real rights on the pattern of the civil law),177 liberal notions as to the boundaries of “property” and a jurisdiction in equity which has enabled the courts to recognise novel equitable rights and interests

174  Eg R A Macdonald, “Reconceiving the Symbols of Property: Universalities, Interests and Other Heresies” (1994) 39 McGill L J 761; G Loiseau, “Des Droits Patrimoniaux de la Personnalité en Droit Français” (1997) 42 McGill LJ 319. 175  R A Macdonald, (1994) 72 McGill LJ 761 at pp 789–790. 176   Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2nd Cir, 1953); approved in Zacchini v Scripps-Howard Broadcasting Co 433 US 564 (1977). 177  See n 181 below.



a r i gh t s of p e rso n al i t y databas e

523

having some or all of the characteristics of property rights178 and without the “classificatory angst” (in Eric Reiter’s phrase) which recognition of novel rights of property invariably arouses in civil law systems.179 By contrast, most civil law and mixed legal systems, including probably Scots law,180 have “closed” systems of property law, 181 so that the courts (still less, contracting parties) have no power to recognise and create new types of real rights.182 In the civil law the right to one’s image cannot be a full right of ownership because of the rule against alienation of personality rights. As mentioned at Section 11.4.3(d), however, some civil law commentators favour transforming one’s right of commercial exploitation of one’s image into a monopoly of exploitation over the image (un monopole d’exploitation sur l’image) which could itself be regarded as an incorporeal thing (bien incorporel). This would be a primary (not a subordinate) real right of incorporeal moveable property on the analogy of intellectual property rights and other sui generis property rights.183 There are, however, obstacles to overcome. “The underbelly of privacy is publicity.”184 It is difficult to disentangle the dignitarian right of privacy from the commercial (patrimonial) right of publicity because although distinct in some respects they are fundamentally two sides of the same coin, namely the right to prevent and to control the dissemination of one’s image.  In the analysis of Lord Walker of Gestingthorpe, the case of OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21 is an example. 179   Cf E H Reiter, “Personality and Patrimony: Comparative Perspectives on the Right to One’s Image” (2002) 76 Tul LRev 673 at p 716. 180  See K G C Reid, The Law of Property in Scotland (1996), para 5 (reprinted from Stair Memorial Encyclopaedia, vol 18, para 5) lists the real rights recognised in Scots law adding at n 1: “The possibility that other real rights exist cannot be entirely excluded. But the rights listed are certainly the main ones and may also be the only ones.” See also, eg, K G C Reid, “Obligations and property: exploring the border” 1997 Acta Juridica 225; Burnett’s Trs v Grainger [2004] UKHL 8; 2004 SC (HL) 19, noted G L Gretton, (2004) 8 Edin LR 389. 181   Cf J H Dalhuisen, “European Private Law: Moving from a Closed to an Open System of Proprietary Rights” (2001) 5 Edin LR 273. 182   For a wide-ranging comparative survey of the classification of real rights, see G L Gretton, “Ownership and its Objects” (2007) 71 RabelsZeitschrift 802. 183  Eg goodwill and authors’ moral rights. See E H Reiter, (2002) 76 Tul LRev 673; G Loiseau, “Des Droits Patrimoniaux de la Personnalité en Droit Français” (1997) 42 McGill LJ 319. On the current paucity of Scottish authority on this issue, see D L Carey Miller and M M Combe, “The Boundaries of Property Rights in Scots Law” vol 10.3 Electronic Journal of Comparative Law (December 2006) p 19. http://www.ejcl.org/103/article103-4.pdf. 184  W Cornish and D Llewellyn, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (5th edn, 2003), para 8–60. 178

524

11.5 

r i ght s of p e rs o n al i t y BALANCING THE RIGHT TO PRIVACY AGAINST     THE RIGHT TO FREEDOM OF EXPRESSION;     PROPORTIONALITY AND THE PUBLIC INTEREST

In each jurisdiction a balance has to be struck between the interest in personality sought to be protected and the public interest. In the context of the dignitarian right to prevent or control the public disclosure of private information, the public interest generally includes freedom of expression and opinion, freedom of speech and the right of the public to be informed. Eight out of the 12 systems in the Survey are subject to the common interpretative regime imposed by ECHR which involves striking a balance between the right to privacy under Art 8 and the right to freedom of expression under Art 10 in accordance with Strasbourg jurisprudence. But in any event in all 12 legal systems in the Survey, the balancing process will involve what is sometimes called an “intense focus” on the facts, that is, a sensitive, nuanced and contextually specific examination of the particular factual circumstances of each case, incorporating an evaluation and attachment of weight to both of the competing interests. Although it is possible that each legal system is generally striving towards similar goals, there are differences in the way in which the interests are balanced and in particular in the relative weight given to the interests in privacy and freedom of expression. In the context of the taking of photographs of an individual, to a greater or lesser extent emphasis may be placed on the status of the person (eg celebrities are less well protected than those who are not famous); the character of the place where a person is photographed (eg an unsecluded place or public right of way is less well protected than a secluded place or private property); and the nature of the subject matter or activity (eg the protection of, say, health records contrasts with the exposure of wrongdoing). A number of jurisdictions give greater weight to dissemination for scientific, educational, artistic or cultural purposes or for caricature (eg Italy, France, Germany). Generally, dissemination purely for commercial profit is not treated as justifying an invasion of privacy. Fenwick and Phillipson contend that until the Campbell case,185 while the English judges evaluated and attached weight to the Art 8 privacy interest, they tended to assume that Art 10 was fully engaged even though they had not evaluated and attached weight to the public interest.186 They argue that the weight of the interest in   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E).  H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006), p 780, citing as examples A v B plc [2002] EWCA Civ 337; [2003] QB 195; Theakston v MGN Ltd [2002] EWHC 137; [2002] EMLR 22. 185

186



a r i gh t s of p e rso n al i t y databas e

525

free expression under Art 10 should be assessed by reference to the contribution which the publication in question makes to a debate of serious public concern. If it made no such contribution, it could very readily be overridden by Art 8.187 They point out that the Campbell case was the first in which a UK court fully evaluated the interest in freedom of expression as well as the interest in privacy and, like the ECtHR in the von Hannover case,188 treated the public interest as affecting the weight of the interest in freedom of expression.189 The problem is however that this approach would entail a revolution in Britain’s journalistic culture.190 This dilemma has not yet been resolved. A description of the different approaches in the Survey to the publication of unauthorised photographs is set out in the description of the case study returns in Section 11.7.2. 11.6  REMEDIES The case studies contain much detailed comparative information on remedies. In all legal systems studied, the main remedies for infringement of personality rights or personality-related wrongs are interdict/injunction and damages. Remedies for the redress of unjustified enrichment (without mirror loss) are established in German law and mentioned in Quebec but may be competent elsewhere.191 Amounts awarded as solatium or moral/sentimental/ non-patrimonial “damages” for affront (iniuria) or other infringment of non-patrimonial personality rights, tend to be very low. Generally speaking, in civil law systems, damages must be purely compensatory but exceptionally there are examples of punitive damages.192 Aggravated damages are competent in common law systems. Specific remedies may be competent such as a retraction and apology by the wrongdoer and the wrongdoer’s publication of the claimant’s reply to a defamatory, insulting or otherwise injurious statement. In common law Canada, a declaration of constructive   Fenwick and Phillipson, p 780.   von Hannover v Germany (2005) 40 EHRR 1. 189   Ibid. 190   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch) at para 66 per Patten J, citing M Tugendhat and I Christie (eds), The Law of Privacy and the Media (2nd edn, 2002) Supplement at para 6.52. In that case a celebrity’s routine activity (pushing a child in a pram) conducted in a public place was held to be protected under von Hannover but not under Campbell. This was reversed on appeal but on other grounds. 191  See BGB, §812; CCQ, Art 1493. 192  Eg under the Quebec Charter s 49; CCQ, Art 1621; Valliquette v The Gazette (Division Southam Inc) [1996] A Q 4045 (QCA). 187

188

r i ght s of p e rs o n al i t y

526

trust is a remedy for breach of confidence.193 In some systems real or verbal injury (iniuria) is a criminal offence as well as a tort/delict.

11.7   CASE STUDY RETURNS 11.7.1 

Preliminary

The purpose of this next section is to give a synopsis of the responses to two of the case studies involving images: first of the intended publication of the image of a person in a newspaper (Case 1), and second the reproduction of an image on a T-shirt for merchandising purposes (Case 5). These cases illustrate the two sides of personality protection: dignitarian and commercial. 11.7.2  Case study (1) – Portrait rights A press photographer takes photographs of a person (without his/ her knowledge or consent) in a public park in a city. These are intended for publication. The photographs are neither embarrassing nor morally offensive. What protection is available for the subject? (a)  Civil law systems (Argentina, France, Germany, Italy, the      Netherlands, Spain) Argentina – Luis Mariano Genovesi – publication unlikely to be permitted. Genovesi explains that the main relevant source in this case study is the Argentine Copyrights Act of 1933, s 31, which provides: “the photographic portrait of a person may not be commercialised without express consent of the person himself or herself, . . . Having given his or her consent, a person may revoke it compensating for damages. The publication of portraits shall be free where such portraits are related to scientific, educational and cultural purposes in general, or connected with facts or events of public interest or [which] occurred in public places”.

The right to one’s own image is distinct from rights arising from an act of intellectual creation.194 It is also an autonomous inalienable right distinct from other inalienable rights such as the right to privacy, to honour, to identity, etc. So for instance there may be a violation of the right to one’s own image even though one’s honour and privacy remain unaffected. Infringement of the right consists merely in the use of the

  Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14, criticised by T H Wu, “Confidence and the constructive trust” (2003) 23 Legal Studies 135. 194  The effect of consent is considered at Section 11.4.3(d). 193



a r i gh t s of p e rso n al i t y databas e

527

image without consent.195 The right to one’s own image has been characterised as absolute196 but it is limited by the last sentence of s 31 quoted above. France – Pascale Bloch and Arnaud Cermolacce – publication unlikely to be permitted. Bloch and Cermolacce note that in French law, protection against intrusion into private life is based on Code Civil, Art 9 (“Everyone is entitled to respect for his private life”) and Art 1382 on tort/delict. The right to one’s image is considered to be a component of one’s personality and thus of one’s private life.197 The wording of Art 9 suggests that everyone is entitled to privacy regardless of their rank, birth, wealth, current or future role in life.198 Thus in principle publication of one’s image requires one’s consent. The fact of being in a public place does not imply renunciation of the rights to image and private life, nor raise a presumption of consent to publication.199 Limits on the scope of the right concern both the status of the person and the location at which the image was captured. Consent is not necessary when the subject, a public or famous person, is in a public space and acting in the course of their public activity or in their public capacity (for instance politicians on the campaign trail), 200 but consent is necessary if the subject is engaged on a private or leisure activity albeit in a public place. In that common type of case, the scope of the protection under French law is broader than in German law at least until the von Hannover case201 discussed in the next paragraph. Germany – Olaf Weber – publication unlikely to be permitted.  In Germany protection rests on a combination of the Constitution, the BGB and a specific enactment on portrait rights, namely the Kunsturhebergesetz (KUG). These, Weber reports, would together enable the individual to stop publication ex ante or to claim compensation ex post. KUG, §22 provides inter alia that “portraits may only be disseminated or exhibited with the consent of the person portrayed”. KUG, §23(1) provides four exceptions one of which is that if the picture is “from the context of

 See the leading Thamar case: Cámara Nacional de Apelaciones en lo Civil, Sala A, January 24, 1966, Revista Jurídica El Derecho, T. 26, p. 785. 196   Citing Rivera, Julio César y Rodríguez Burmester, Gloria, “Indemnización del daño moral y del daño material por afectación al derecho a la imagen”, in Revista Jurídica El Derecho, T. 162, p 285. 197   Bloch and Cermolacce cite Paris, 25/10/1982, D. 1983, 363, comment Lindon. 198   Ibid, citing Civ.1re 23/10/1990, Bull. civ. I n°222. Bloch and Cermolacce note that even “a monarch has, like anybody else, the right to the respect for her private life”. This was said about Queen Farah Diba Civ.1re, 13/04/1988, JCP 1988. II.21320. 199   Ibid, citing Paris, 16/06/1986, D. 1987, Somm. 136.  Bloch and Cermolacce add that authorisation, when given, is a special one and only applies to the expressly intended publication and to its finality. Civ. 1°, 30/05/2000, Bull. civ., I, n° 167.   200   Ibid, citing Civ. 1°, 13/04/1988, JCP. 1989, II, 21320.  201   von Hannover v Germany (2005) 40 EHRR 1. 195

528

r i ght s of p e rs o n al i t y

contemporary history”, then it may be disseminated and exhibited without consent. 202 German case law distinguishes “absolutely famous persons from contemporary history” who are famous in their own right; “relatively famous persons of contemporary history” who are famous because of an event; and people who are not famous. The exception to the prohibitory rule applies to absolutely famous persons of contemporary history, whether by virtue of position (eg the Chancellor) or status (eg a celebrity) each of whom may be photographed without consent so long as the content is not embarrassing and/or the place of photographing was not within the private sphere. Where persons are relatively famous, then their picture may be published only in relation to the context for which they are famous. In the “Lisa Loch” case203 film footage of a 16-year-old girl who competed in a local beauty contest could be used without consent in a TV news item about the contest but could not be used without consent as a daily gag in a late-night TV show. It should be noted that in the von Hannover case the ECtHR strongly criticised these distinctions (absolute fame; relative fame; no fame) as unclear in practice and insufficiently protective of privacy. 204 In that case Princess Caroline von Hannover obtained a finding that the German courts were in breach of ECHR, Art 8, in refusing to interdict the publication in German magazines of photographs taken of her in scenes from her daily life and activities of a purely private nature (such as practising sport, out walking, leaving a restaurant or on holiday). 205 The Princess could not – in the name of freedom of the press and the public interest – rely on protection from publication of photographs of her private life unless she was in a secluded place out of the public eye and moreover succeeded in proving it (which could be difficult). 206 To this extent German law was less protective of privacy than French law under which her prior agreement was necessary for the publication of any photographs not showing her at an official event. 207 Italy – Federica Gioia – publication unlikely to be permitted. Provisions protecting the portrait or “image” of an individual are enacted in the Italian Civil Code of 1942, Art 10, 208 and in special laws on copyright 209 and trademarks. 210 Article 96 of the Italian Copyrights Act (ICA) sets out

202   KUG, §23(1), phrase 1. KUG, §23(2) requires the court to balance privacy and freedom of expression. 203   OLG Hamm, 04.02.2004 (Az.: 3 U 168/03). 204   von Hannover v Germany (2005) 40 EHRR 1. 205   Ibid, para 61. 206   Ibid, para 74. 207   Ibid, para 44. See also para 46 (submission of interveners that German law was half-way between French law and United Kingdom law). 208   “Abuse of the image of a third party.” 209  Law 22 April 1941, no. 633: Italian Copyright Act, ICA. 210  R.D. 21 June 1942, no. 929: Italian Trade Mark Act (consolidated into the comprehensive Codice dei diritti di proprietà industriale by Legislative Decree 10 February 2005, no. 30).



a r i gh t s of p e rso n al i t y databas e

529

the basic rule: the portrait of a person cannot be shown, reproduced or put on the market without the consent of its legitimate owner. Under Art 97 of the ICA the consent of the person portrayed is not necessary where the reproduction of the image is justified upon the basis of the person’s fame or “celebrity” (notorietà) or by his/her public office, or by the requirements of justice or public order, or where the reproduction was made for scientific, educational or cultural purposes, or is linked to facts, events or ceremonies which are of public interest or took place in public. These exceptions, however, are subject to the proviso that publication or exhibition must not prejudice the honour, the reputation and the dignity of the person portrayed. Gioia explains that the interpretation of the exceptions has led to the development of a significant body of case law. The “cultural” purposes exemption for example was held to be fulfilled by the reproduction of the portrait of the model and actress Claudia Schiffer by a painter belonging to the mainstream of American pop art, within the context of a magazine article purporting to provide an insight into the work and life of the artist. 211 The scientific, educational or cultural purposes exemption does not apply whenever the dominant aim of the reproduction and publication is commercial. In the case of the “informative exception”, the personality right, which is protected by the Constitution, 212 has to be balanced against the right to freedom of expression, which is also constitutional. 213 In this respect, the person’s celebrity or public office is of relevance but as Gioia observes that does not justify per se any and all interference with the person’s private life. A balanced assessment has to be made bearing in mind such factors as the truth and accuracy of the reported information; the public or private nature of the location in which the picture is taken; 214 and its impact on the public perception of the portrayed person. On the whole, a line has to be drawn between the (permissible) use of the portrait as a means of providing information and the (prohibited) commercial exploitation of the commercial value of the person portrayed. The Netherlands – Saskia Werther – unclear whether publication likely to be permitted.  Differing from the usual continental European pattern of a prohibition of publication of unauthorised portraits subject to exceptions, the Dutch Copyrights Act, Art 21, 215 provides not that the person portrayed 211  Some commentators pointed out that the decision ran counter to the latest trends in the area of personality rights, according to which any and all commercial benefit possibly arising in connection with a well-known feature, including personality features, has to be reserved to the legitimate owner as sponsible for such renown. 212  Italian Constitution, Art 2. 213  Italian Constitution, Arts 21.1 and 21.2. 214  Even public spaces, such as a restaurant, do not justify the reproduction of pictures without consent whenever no public circumstance or relevance is attached to the presence of the person in that location. 215  The Copyrights Act 1912, Arts 19 and 20, apply to portraits which the author was commissioned to make by or on behalf of the person portrayed and confer on the latter strong rights of prohibition against the owner of the copyright.

530

r i ght s of p e rs o n al i t y

has an absolute right to prohibit its publication but rather that he must have “a reasonable interest” to do so. The article states: “If a portrait is made without having been commissioned by or on behalf of the persons portrayed, the copyright owner should not be allowed to communicate it to the public, in so far as the person portrayed or, after his death, his relatives have a reasonable interest in opposing its communication to the public.”

Werther explains that the legislator thought that a hard-and-fast rule prohibiting unauthorised portraits might have disrupted the development of press photography; would have taken insufficient account of the particular circumstances of each case; and would have had an unduly deterrent effect on the media which realistically cannot be expected in practice to ask authorisation for making each picture or film. This (so the argument ran) would amount to a form of censorship. In any event, often publication of photographs does not lead to problems except where the person portrayed is famous, or in a private environment, or is disturbed by the picture in public. In the Vondelpark case, 216 the Hooge Raad laid down a standard as to when there is a reasonable interest. It held that when disclosure of a portrait infringes the right of privacy, there is in principle a reasonable interest to object to publication. Whether there is an infringement, depends on the factual circumstances, in particular the nature and amount of intimacy in which the subject is portrayed, the character of the photograph, and the context of publication. The case concerned the picture in a magazine of a young lady walking intimately with her ex-fiancé in an Amsterdam park. As a result of the publicity, her relationship with a (new) boyfriend was ended and she suffered distress. The lower court had found the picture too innocent to be an infringement of privacy, but the Hooge Raad gave another standard. 217 The trial court must pay regard to all the factual circumstances of the case including the nature and extent of intimacy; the character of the photo; and the context of the publication (which was very important in the Vondelpark case). Relevant factors include the private or public character of the place portrayed (not necessarily decisive) and the fact that the person is on a picture incidentally and not its primary subject. A picture which is not by itself embarrassing nor morally offensive can nevertheless have negative effects for the person portrayed. Therefore, the context of the picture and the accompanying text are also important. Spain – Urko Ochoa – publication unlikely to be permitted.  The Organic Law 1/1982, 218 Art 2.1 provides “Civil protection of honour, intimacy and

 HR 1 July 1988, NJ 1988, 1000 m nt L Wichers Hoeth (Vondelpark I).  The Hooge Raad did not explicitly state that there was a reasonable interest in this case, for this the facts are decisive. The Hooge Raad does not rule on the facts: this is up to the lower courts. 218   La Ley Orgánica 1/1982 de 5 de Mayo de protección del derecho al honor, la intimidad personal y familiar y la propria imagen. 216 217



a r i gh t s of p e rso n al i t y databas e

531

one’s own image is to be framed by statutes and social customs regarding the sphere that, by one’s personal acts, each person reserves for himself or his family”. Ochoa observes that under Spanish law the right to one’s personal image (portrait rights) is independent from the right to personal intimacy (privacy rights), although they have been often mixed by Spanish case law since they share common features and it is usual to enforce them altogether. The public interest is the inherent limit to such rights (the ultimate value being freedom of information). Different factors must be taken into account when these essential rights are in conflict. The general principle is that no one can use the image of another person for commercial, economic or analogous purposes, and that any person must authorise his portrait being made public. The exception to the rule applies when the information disclosed is of public interest (that is, “cultural, historical or scientific interest”). Ochoa concludes that such authorisation of the subject will certainly be needed in the present case since there is no public interest in using the image of a person who is not famous.

(b)  Common law systems (Australia, Canada) There is no entry in the Survey for English law on this question. See, however, the discussion elsewhere in this chapter. 219 Australia – Megan Richardson – Publication likely to be permitted. Richardson notes that the starting point in considering whether publication could be prohibited would be the action for breach of confidence. It would appear that it would be difficult for the individual to argue that the photographs should not be published on the facts since it is hard to argue breach of confidence if information is only questionably confidential, such as where it occurs in a public place and is not obviously private. 220 If the person is famous, this would count against an argument of breach of confidence, especially if fame is courted. In these circumstances an expectation of privacy may be considered less reasonable. 221 If there is evidence of harassment a court might be inclined towards finding breach of confidence, at least if the information is sufficiently confidential. 222 Canadian common law provinces – Lorian Hardcastle – outcome uncertain.  The protection of privacy in the common law provinces of Canada depends on (i) the common law itself; (ii) the Personal Information

 Eg Section 11.4.4(b).   Cf the New Zealand case of Hosking v Runting [2005] 1 NZLR 1. 221  Richardson suggests that as a result, an Australian court may be more prepared to find a public interest in publication. 222  Richardson notes that there may be a separate action available in tort for the harassment relying on Grosse v Purvis [2003] Aust Torts Reports §81-706 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 although the status of such a tort is still somewhat uncertain. 219

220

532

r i ght s of p e rs o n al i t y

Protection and Electronic Documents Act 223 (PIPEDA); (iii) privacy statutes enacted in four provinces; and (iv) other legislation. 224 Hardcastle points out that the Canadian common law courts do recognise a right of privacy at common law sometimes by stretching the scope of an existing tort, though usually some well-established tort must be committed as well. The Quebecois Aubry case225 (regarded by Hardcastle as persuasive authority in common law provinces) suggests that if photos are taken of an individual, the photographer cannot publish them without consent. Although privacy legislation would also ordinarily require consent, there is a journalistic exception. 226 Hardcastle concludes that it is difficult to speculate what a Canadian common law court would find. Under the Privacy Act, the reasons for publishing these pictures may be looked at, such as whether it was for news or in the public interest. 227

(c)  Mixed systems (Quebec, Scotland, South Africa) Quebec – Sylvie Bordet – publication unlikely to be permitted. In Quebec, the case is governed by the Canadian and Quebec Charters, 228 the Civil Code of Quebec 1994 (CCQ) and relevant case law. The CCQ designates as personality rights inter alia the right to the respect of one’s privacy including the right to dignity. 229 More specifically, CCQ, Art 36 provides that using a person’s name, image, likeness or voice for a purpose other than the legitimate information of the public may be considered an invasion of privacy. The famous Quebec case of Aubry v Éditions Vice-Versa 230 established that a photographer who takes photographs of a person without that person’s knowledge or consent, in a public park or city may not publish these photographs without the person’s consent, even where these photographs are neither embarrassing nor morally offensive. A young woman was photographed while sitting on steps on a downtown street. Her photograph was published on the cover of an art magazine and a friend of hers showed 223  Personal Information Protection and Electronic Documents Act SC 2000 c 5. The Canadian Charter of Rights and Freedoms has been construed as affording citizens a “right to a reasonable expectation of privacy” but it only applies vertically against governmental activities and not horizontally as between private individuals. 224  Manitoba (1987), Newfoundland (1990) and Saskatchewan (1979) have created one general tort of privacy which incorporates appropriation of personality while British Columbia (1996) has created separate torts of privacy and appropriation of personality. 225   Éditions Vice-Versa v Aubry [1998] 1 SCR 591 (1998) 157 DLR (4th) 577. 226  PIPEDA, s 4(2)(c). 227  Eg Saskatchewan Privacy Act 1979, s 4(1)(e)(i). 228  Noted in Section 11.2 above. The provisions of the Canadian Charter, section 7 dealing with the right to life, liberty and the security of the person have been interpreted as including certain rights to privacy. The Quebec Charter of 1975 explicitly names certain rights of the person such as the right to inviolability and freedom, to safeguard of a person’s dignity and honour. 229   Bordet references E Deleury and D Goubau, Le droit des personnes physiques (3rd edn, 2002), pp 73ff. 230   [1998] 1 SCR 591.



a r i gh t s of p e rso n al i t y databas e

533

it to her. She sued the magazine and the photographer for moral damages231 and obtained $2,000 as compensation. The Supreme Court of Canada focused on balancing the individual’s right to control her image with freedom of expression, and concluded that in this situation there was no public interest justifying publication of the photograph without the young woman’s consent. Public interest balancing factors are contained in CCQ, Art 36. These include freedom of expression and opinion, freedom of the press and the right to information. Bordet notes that in the instant case factors to be considered would include: whether the person complaining of publication is recognisable; whether the person constitutes the focus of the photograph or is incidentally included; the location of the photograph; and whether the individual had a reasonable expectation of privacy. While public aspects of professional activity are not protected, 232 a person’s actual fame is an incidental consideration although a famous person may be considered by her actions to have brought aspects of her private life to public attention and partially relinquished her expectation of privacy. 233 Scotland – Gillian Black and others 234 – publication likely to be permitted.  Black and others observe that at Scots common law, it may be possible to build upon either an extended version of the established breach of confidence action (now called “misuse of private information”) as developed in England especially after Campbell v MGN, 235 or the somewhat neglected indigenous action of solatium for affront (actio iniuriarum) to interdict publication of the picture. Each would be influenced by the ECHR and Strasbourg jurisprudence. There is little authority on any “right” to take photographs or not to be photographed in the common law of Scotland. An ambiguous obiter dictum in Adamson v Martin 236 could be taken as meaning either that the person photographed has no general right of complaint or that the photographer has no absolute right to take an unauthorised photograph. Relevant cases include X v BBC 237 (filming and surveillance in public places); and Martin v McGuiness238 (admissibility of evidence procured by private investigators through intrusions upon an individual’s privacy contrary to ECHR, Art 8, by way of uninvited visits to his home and surveillance of his house from a neighbouring property)   Bordet notes that the injury appears to be the plaintiff’s embarrassment at teasing from her classmates. 232   Bordet references Aubry v Éditions Vice-Versa Inc. [1998] 1 SCR 591; (1998) 157 DLR (4th) 577. Valiquette v The Gazette (Divison Southam Inc) [1996] AQ 4045 (QCA). 233   Bordet references Vallières N, La presse et la diffamation – Rapport soumis au ministère des Communications du Québec, 1985, Wilson and Lafleur. 234   Gillian Black, John Blackie, Alasdair Maclean, Hector MacQueen, Elspeth Reid and Niall Whitty. 235   [2004] UKHL 22; [2004] 2 AC 457. There is a view that the cause of action has been transformed into a tort of misuse of private information. 236   1916 SC 319 at 328, per Lord Salvesen. 237   2005 SCLR 740. 238   2003 SLT 1424; 2003 SCLR 548. 231

534

r i ght s of p e rs o n al i t y

decided by the Court of Session as well as Peck v United Kingdom 239 and von Hannover v Germany 240 in which the ECtHR held that privacy could be infringed by the publication of photographic images of individuals even if taken in public places, and that this would have horizontal effect as an invasion of a private law right. 241 South Africa – Enwinna Nwauche – publication unlikely to be permitted.  The modernised South African version of the actio iniuriarum has been developed into a pluralistic system of private law rights of personality. These rights include a broad right to dignity (dignitas) in which there is subsumed both the right to privacy (infringed by wrongful intrusion into seclusion and wrongful publication of private facts) and – if not subsumed within privacy – the right to identity (infringed by wrongfully placing a person in a false light and by wrongful commercial appropriation of image). 242 Thus the unauthorised publication of a photograph may invade both privacy243 and identity. 244 Nwauche observes that the consent of the plaintiff to the photograph is the critical factor, and that accordingly the photograph is an infringement in principle, but that the mere fixation of the image in a photograph is not an infringement. Nwauche states that while it does not matter if the pictures are truly embarrassing or morally offensive with respect to the right to privacy, it does matter with regard to the right to dignity whose main element is insult. 245 An interdict is therefore in order restraining publication.

11.7.3  Case study (5) – Merchandising A company produces without the knowledge or consent of the individual concerned: (a) T-shirts bearing a photograph of an individual (b) T-shirts bearing a drawing of an individual (c) T-shirts bearing a caricature of an individual

  (2003) 36 EHRR 41   (2005) 40 EHRR 1. 241   Campbell v Mirror Group Newspapers [2004] UKHL 22; [2004] 2 AC 457. 242  Some authors (eg D McQuoid-Mason) subsume identity within the concept of privacy while other authors (eg J Neethling) treat it as a distinct dignitarian right. 243   La Grange v Schoeman 1980 1 SA 885 (E) (the publication of the photographs of policemen identified by counsel as the assailants of a person held in custody); Mhlongo v Bailey 1958 1 SA 30 (W) (publication of details of alleged romance between the plaintiff and a singer). 244   O’Keeffe v Argus Printing and Publishing Co 1954 (3) SA 244 (E) (unauthorised use of a photograph of SABC broadcaster in an advertisement). 245  This seems to give an unusually narrow meaning to the concept of dignity since there is good authority that the old requirement of insult is no longer always essential: see, eg O’Keeffe v Argus Printing and Publishing Co 1954 (3) SA 244 (E). See also Ch 6 (J Burchell). 239

240



a r i gh t s of p e rso n al i t y databas e

535

(a)  Civil law systems (Argentina, France, Germany, Italy, the     Netherlands, Spain) Argentina – Luis Mariano Genovesi – reproduction of portrait unlikely to be permitted.  For the reasons given above246 it seems that in Argentina unauthorised reproduction of the portrait would not be permitted. France – Pascale Bloch and Arnaud Cermolacce – reproduction of portrait unlikely to be permitted.  Bloch and Cermolacce note that Art 9 of the Civil Code allows an individual to prevent the use and dissemination of their image without prior consent.247 This extends to both famous and non-famous people:248 “Regardless of the protection of her private life, any person, even a famous one, has in her image, which is a part of her personality, an exclusive right, allowing her to authorise or prohibit its reproduction, the conditions and circumstances of this reproduction and to oppose its use, whatever the means, without prior express or implied consent.”249 An exception is made to the image right in France in the interests of freedom of information. However, that freedom is also itself subject to the higher principle of respect for human dignity. 250 Thus when this exception arises a balance needs to be considered as between the informative value of the image and the conditions of its disclosure and the prohibition on the reproduction of an image, even an informative one, which breaches human dignity. If the image is a caricature then reproduction may be tolerated in the interests of freedom of speech, notably if the subject is a politician and in the public eye. 251 However, while such a caricature can be outrageous or offensive, it cannot be defamatory. 252 Neither can the right to caricature be used as an excuse to merchandise T-shirts and other items featuring the image of public persons and celebrities without their authorisation 253 which may be the case where the representation of physical traits is only slightly

 Section 11.7.2(a).   Bloch and Cermolacce report that this is because the image is considered as part of one’s personality (TGI, Nanterre, 6/04/1995, «Affaire Cantona», Gaz Pal 1995, 1, 285, comment J G M). 248   Bloch and Cermolacce note that the person pictured needs to be recognisable (TGI, Paris, 2/06/1993, Gaz Pal 1994, 1, 133) or even the main subject of the picture. CA, Paris, 11/02/1987, «Arche Pub vs Sitruk», D. 1987, somm 385, obs R Lindon.  249   Bloch and Cermolacce note that this applies to both famous and non-famous people. TGI, Marseille, 6/06/1984, «Izzo vs Seppin», D. 1985, somm 323, obs R Lindon. 250   Civ 1, 20/02/2001, Bull civ 1, n°42. 251   CA, Versailles, 31/01/1991, «Edi vs Belmondo»; D. 1991; and A BERTRAND, «Droit d’auteur et droits voisins», Dalloz, 2ème édition 1999, p 248 et seq.  252  TGI, Paris, 9/03/1987; Gaz Pal 6/03/1987. 253   Bloch and Cermolacce make the following point: “the reproduction of someone’s image as a caricature is allowed, according to the rules of caricature, only to ensure the exercise of freedom of speech but does not imply the right to commercialise this reproduction”; Civ 1, 13/01/1999, D. 1999, J 120, comment J Ravanas. 246 247

536

r i ght s of p e rs o n al i t y

altered. 254 If a defence of caricature is pled, the main difficulty is thus to distinguish between the legitimate caricature (whose aim is to entertain the public), and the caricature which is used as an excuse to sell a product by using the celebrity of the person caricatured. Germany – Olaf Weber – reproduction of portrait unlikely to be permitted.  In Germany the general rule is that where the image of an individual is used on pure merchandise then, subject to some exceptions, permission of the individual is required. Weber notes that permission would not be required where the image is connected with an edited work such as an article of the press, 255 or where it forms a piece of art such as a musical 256 or possibly a caricature. As always there are difficult cases at the margins such as where images have been used in calendars. In one decision from Hamburg a “Backstreet-Boys Calendar” was found to be pure merchandise because it lacked a link to an “edited” report or newsworthy information, 257 while in another case, it was accepted that a football calendar bearing pictures of players contained sufficient information to trigger the press exception. Italy – Federica Gioia – reproduction of portrait unlikely to be permitted.  Gioia state that this is one of the areas in which studies in Italian law are most advanced. If no registration or use as a trademark occurs, the case would be assessed under the rules governing the right to one’s portrait in Arts 96 (basic prohibitory rule) and 97 (exceptions to rule) of the Italian Copyrights Act. The reproduction of one’s portrait in the form of a drawing might fall under the exception consisting of reproduction for “artistic” purposes, provided that an artistic aura can be claimed. Similar considerations would apply to a caricature of an individual, most likely in connection with the degree of celebrity attached to the portrayed person: the greater the celebrity, the less likely that a pure artistic intent, free of any intent of commercial gain, might be upheld. The Netherlands – Saskia Werther – reproduction of portrait unlikely to be permitted. Photographs, drawings and caricatures of a person used by a company for merchandising on T-shirts are all portraits within the meaning of Art 21 of the Dutch Copyrights Act. The fact that the company has produced T-shirts without the consent of a person means that the individual can object to the T-shirts on the ground that it infringes his or her portrait rights. The unlawfulness will not be hard to prove because of the case law on this subject. No one has to accept that his characteristics will be used for commercial goals and there is no doubt that the T-shirts have a commercial goal, since they are merchandising. If the individual on the T-shirt is famous 254   Bloch and Cermolacce note that in 1996 the Paris Court decided that: “the representation of slightly altered physical facial traits, is, in the absence of prior consent, a breach of a person’s image rights regardless of whether she has trademarked her silhouette or name.” 255   BVerfG, 15.12.99, I BvR 1082/95, AfP 2000, 163 – Kundenzeitschrift 256   BGH, judgment of 14.05.2002; Az: VI ZR 220/01 – Marlene. 257   OLG, Hamburg, 11.06.98, 3 U 284/97, NJWE-WettbR 99, 169.



a r i gh t s of p e rso n al i t y databas e

537

and has “cashable popularity” (verzilverbare populariteit), he or she may be entitled not only to compensation for immaterial damage but also to financial compensation for the use of the portrait. Spain – Urko Ochoa – reproduction of portrait unlikely to be permitted.  Ochoa states that Art 7 of the Act 1/82 258 requires one’s consent to reproduction of one’s image, voice, signature or other means by which one may be recognised for commercial purposes. This is strictly interpreted by the Spanish courts and the only boundary to such reproduction is imposed on the basis of the public interest. It does not matter if the individual is famous or not, although there is likely to be a difference from the point of view of the economic interests involved since the image of famous people generally has more economic value than the image of non-famous people. However, the damages granted are usually low. The commercial use of the image is protected for 70 years after the person involved is dead. The Public Prosecutor has the duty to enforce the personality rights of dead people, either ex officio or at the request of another individual.

(b)  Common law systems (Australia, Canada, England and Wales) Australia – Megan Richardson – reproduction of portrait likely to be permitted.  Megan Richardson notes that the approach to answering this case in Australia would be based on the common law of passing off. A lack of reputation would undermine a claim of passing off as it may be hard to show a misrepresentation if the individual is unknown. If the individual is known, and there is a misrepresentation of sponsorship or approval by the claimant of the T-shirts, the claimant may have an action in passing off. 259 Richardson reports that in Australian case law there are some hints that vague, emotional suggestions of approval are enough. 260 But without this, a bare photograph of an individual on a T-shirt may well not be enough on which to base a case of passing off and thus the individual would not be able to prohibit (enjoin) dissemination. Richardson notes that there are no specific defences, such as parody, “fan book”, or descriptive use, or disclaimed sponsorship. 261 However, if it does appear that there is a misrepresentation of sponsorship or approval, these kinds of uses may not pass off or mislead. Canadian common law provinces – Lorian Hardcastle – reproduction of portrait likely to be permitted. Some Canadian provinces have legislation on the lines of Saskatchewan’s Privacy Act, s 3, under which the unauthorised   La Ley Orgánica 1/1982 de 5 de Mayo de protección del derecho al honor, la intimidad personal y familiar y la propria imagen. 259  Richardson refers to Henderson v Radio Corporation [1960] SR (NSW) 576 and subsequent case law. 260   Hogan v Koala Dundee (1988) 12 IPR 508, per Burchett J. 261   Ibid; Twentieth Century Fox Corporation v South Australian Brewery Co Ltd (1996) 34 IPR 225. 258

538

r i ght s of p e rs o n al i t y

use of the likeness of a person for purposes of gain is prima facie evidence of a violation of the privacy if the person is identifiable and the user intended to exploit the likeness. As to the common law, as Lorian Hardcastle points out, case study 5 raises issues relating to the torts of appropriation of personality and passing off. Very few Canadian cases discuss the cause of action in appropriation of personality262 and its position in Canadian law is unclear. Exceptionally, in the Athans case263 the court held it to be clear that the plaintiff had “a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right . . .”. Assuming a tort of appropriation of personality exists, is the mere use of someone else’s image in order to sell a product sufficient, or must it be used in a manner suggesting falsely that the individual is endorsing the product? Hardcastle states that some of the limited case law suggests that the mere reproduction on the T-shirts may indeed amount to an appropriation of personality. The courts would find the facts at hand constituted an appropriation of personality, because the work is not like a biography, in that no insight is being provided into the life of the celebrity. Instead, the individual’s image is being used in a commercial manner. The court in Gould 264 gives an example of appropriation of personality analogous to the T-shirt fact scenario – posters – where it is said that the “essence of the activity is not the celebrity”. The Athans case265 could also be interpreted as suggesting that the facts at hand would constitute appropriation of personality. This case discussed the notion of endorsement, as the court found there was no language suggesting he endorsed the camp. This is similar to the fact scenario at hand, where a court would arguably not find that an individual’s image on a T-shirt meant that they had endorsed it. Interestingly, this court found that the mere “commercial use of his representational image . . . without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality and this, in my opinion, constitutes an aspect of the tort of appropriation of personality”. Arguably, the fact scenario at hand would fall into this category, as the image is being used for commercial purposes and without consent, and a finding of endorsement was not necessary. England and Wales – Hazel Carty – reproduction of portrait likely to be permitted (see also Scotland).  The analysis in England and Wales is similar to that of Australia (see also Scotland in the case studies). The tort of passing  See, however, Krouse v Chrysler Canada Ltd (1974) 1 OR (2d) (CA); Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425; Joseph v Daniels (1886) 11 CPR (3d) 544 (BCSC); Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA). Virtually all the cases accepting a common law tort of appropriation of personality are from Ontario. 263   Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425. 264   Gould Estate v Stoddart Publishing Co Gould Estate v Stoddart Publishing Co (1998) 161 DLR (4th) 321 (Ont CA). 265   Athans v Canadian Adventure Camps Ltd (1977) 17 OR (2d) 425. 262



a r i gh t s of p e rso n al i t y databas e

539

off will be applicable only if the use of the photograph is a misrepresentation. The leading case of Irvine v Talksport Ltd 266 held that “false endorsement” is covered by the tort of passing off. The tort now also protects a famous person’s “promotional” goodwill, defined as “the attractive force which is the reputation” of that person. 267 Hazel Carty notes that: “the need for a misrepresentation (central to the tort) means that unauthorised merchandising of the celebrity’s image is not per se passing off: misappropriation does not necessarily involve mis-representation. The question is whether the unauthorized use made of the celebrity’s image would be judged to be an endorsement or ‘merely’ merchandising (a distinction underlined by Laddie J in Irvine v Talksport). Only the former will give rise to liability in passing off, where an unauthorized use of image is involved, as only in the former case will a misrepresentation be involved”.

There is no defence of public interest in passing off. Black et al suggest that a South African case268 in which there was a successful parody defence to a trade mark infringement action might be persuasive authority in a passing-off case.

(c)  Mixed systems (Quebec, Scotland, South Africa) Quebec, Canada – Sylvie Bordet – reproduction of portrait unlikely to be permitted.  Bordet notes that early cases in Quebec seemed to make an implicit distinction in merchandising cases as between famous persons and others. Famous persons, who became so because of an artistic, athletic or other talent, were thought of as having an economic interest in their image and attributes. In Deschamps v Renault Canada Inc, 269 for example, two famous actors had consented to the taking of publicity photographs for a film they were in, which included a Renault car. When Renault tried to use these photographs to promote its cars, the actors obtained an injunction adopting a proprietary rights analysis. In contrast, non-famous persons whose image was used for commercial promotion were granted relief on privacy grounds. 270 However since Aubry v Éditions Vice-Versa Inc, 271 and using Art 36 CCQ as a basis (which as indicated above, includes as a possible invasion of

266   [2002] FSR 943 (Laddie J [2003] FSR 60; the Court of Appeal upholding his judgment on passing off in Irvine v Talksport (Damages) [2003] 2 All ER 881). 267   Arsenal FC plc v Matthew Reed [2003] RPC 39 per Laddie J. It was suggested by Aldous LJ that unfair unlicensed use of a “character” might in itself involve the tort – although this is yet to be fully argued in court. 268   [2005] BCLR 743. 269   Deschamps v Renault Canada Inc, unreported case, discussed at (1977) 18 Cahiers de droit 937. 270   Rebeiro v Shawinigan Chemicals [1973] CS 389; Cohen v Queenswear International Ltd [1989] RRA 570 (CS). 271   [1998] 1 SCR 591.

540

r i ght s of p e rs o n al i t y

privacy using a person’s “name, image, likeness[272] or voice for a purpose other than the legitimate information of the public”), Bordet notes that cases use a privacy approach, treating the right to image as a personality right with both pecuniary and non-pecuniary aspects. So in Laoun v Malo 273 an optician without consent used in an advertisement the picture of a model which had originally been taken for an advertising campaign by an eyeglass manufacturer. The court held that the model’s consent for the first campaign did not cover the use of the photograph in a different campaign by a different person years later. On balancing features, Bordet notes that CCQ, Art 36 includes the “legitimate information of the public”. In Quebec caricatures are traditionally permitted by freedom of expression, although it must not infringe the right to honour and reputation. Public figures, whose activities are likely to be the legitimate focus of public interest, are expected to tolerate more mockery than ordinary citizens. While T-shirts can be both a purely commercial product and a means of exercising freedom of expression in the case of a public personality, it may be difficult to oppose distribution of a T-shirt bearing a caricature. Bordet notes that an analogous situation arose in the Perron 274 case, where a book which was basically a caricature of a person’s speech habits was found not to be a breach of that person’s right to reputation. Perron was a famous hockey coach. Scotland – Gillian Black and others – reproduction of portrait likely to be permitted. This case study looks at the production of T-shirts which are intended to appeal to purchasers as a result of the image they bear rather than items of clothing in their own right, ie they are being used as “image carriers”. In most cases, the applicable law will be statutory, and will therefore be UK-wide. In passing off, however, there is distinct Scottish authority on some of the issues to be discussed. There is no definitive legal solution to any of the situations postulated in case study (5). In most instances, the individual (“the pursuer”) would wish to rely on a number of possible causes of action, with the caveat that none have been designed for this situation. Any remedies which lay in the Trade Marks Act 1994, the Copyright, Designs and Patents Act 1988 or the delict of passing off would be primarily economic (with the exception of a remedy arising from the pursuer’s moral rights), whereas a remedy arising from the Data Protection Act 1998 or the Human Rights Act 1998 would be dignitarian. The Scottish case study comments as follows on the case of T-shirts bearing a photograph of the individual. Economic actions. The CDPA 1988 would protect the owner of the copyright in the photo, but this is more likely to protect the photographer

272   Bordet notes that a drawing would be treated as a photograph, since it would be a representation of the person. 273   Laoun v Malo, No 500-09-009227-000, January 23, 2003 (QCA); Podolej v Rogers Media [2004] JQ 13889. 274   Perron v Éditions des Intouchables inc., REJB 2003-46170 (QSC)



a r i gh t s of p e rso n al i t y databas e

541

than the pursuer: the photographer will be the author and first owner of the copyright in the photo by virtue of ss 9 and 11, unless the photo is taken in the course of his employment, in which case the employer will own the copyright. The pursuer may have more luck if he has registered his image as a trade mark under the Trade Marks Act 1994. A third claim which may work for the pursuer is an action of passing off. The pursuer would need to prove that he had goodwill or reputation in his image, and that this has been misrepresented through the reproduction of his image on a T-shirt, causing resulting damage. The element of misrepresentation is probably the hardest element to prove, and the pursuer would be assisted if either (a) he already exploits his popularity by producing his own merchandise, ie the defender’s T-shirts could be mistaken for his own; or (b) the image used on the defender’s T-shirt had been doctored or altered in some way, as in the Irvine decision – albeit that this may allow the defender to use a defence of parody: cf the South African case Laugh It Off Promotions v South African Breweries International. 275 The key element to be proved in merchandising is simply the use of the pursuer’s image, whereas endorsement requires proof of implicit approval by the pursuer. Assuming that the pursuer is able to prove all other elements of the delict, he will still need to satisfy the court that it is reasonably foreseeable that the use of his face on a T-shirt will damage his professional reputation. Again, this question has not been addressed in Scottish case law to date. If damage to his reputation can be shown however, the appropriate remedy would be interdict or, if quantifiable loss can be shown, damages. An account of profits may also be available. Dignitary actions.  Data protection. An image which can identify an individual arguably amounts to that person’s “personal data” under the Data Protection Act 1998, although the judicial interpretation of “personal data” in the case of Durant v FSA 276 has narrowed the definition, so that a simple photograph with nothing else may not constitute personal data. Even if it could be shown that a photo amounted to personal data, and that the person producing the T-shirts was “processing” the pursuer’s personal data without consent or without one of the other justificatory reasons, and is therefore in breach of the 1998 Act, the remedies for the pursuer are likely to be limited to halting production of more T-shirts: the financial compensation could well be minimal (witness the small sum of damages awarded to Catherine Zeta Jones in the Douglas 277 case for the Data Protection element of her claim: £50). Privacy. The pursuer may also have a claim for an infringement of his privacy, by raising an action invoking ECHR, Art 8. He would be more likely to succeed if he was not famous. If he was famous then the photo would have to have been taken in a situation where he could expect

  [2005] BCLR 743.   [2003] EWCA Civ 1746. 277   [2005] EWCA Civ 595. 275

276

542

r i ght s of p e rs o n al i t y

privacy (as in von Hannover), or be an intrusion into his private life (as in Douglas). Parody – a defence? If the pursuer raises an action against the party manufacturing the T-shirts, it may be a possible defence to his claim that the T-shirts are not simply a commercial activity to capitalise on the pursuer’s fame, but an attempt at parody. Can parody act as a defence? There is authority for this as a general defence in South Africa but not in Scots law. 278 South Africa – Enwinna Nwauche – reproduction of portrait unlikely to be permitted.  The knowledge/consent of the person is critical in the mass publication of the facts in the scenarios listed in this section. In addition a right to identity may be crucial here. In this regard, the falsity of the representation is important. The appropriate remedy will include retraction and apology; damages for injured feelings and for monetary loss.

11.8  COMMONALITIES, DIFFERENCES AND FUTURE   RESEARCH 11.8.1  General: legal structure As was noted above, one of the intentions in preparing the case studies was: To discover whether there are commonalities in the ethic underlying the protection of personality rights in particular jurisdictions. In other words to examine if there is a common core of rights and interests across jurisdictions and to investigate the values underpinning that core;

The Survey sought answers to the questions whether the legal systems surveyed are striving, to a greater or lesser degree, towards some common understanding of the attributes of personality deemed worthy of protection, and of the limits which should be placed on that protection in pursuit of other public interest goals such as freedom of expression. All legal systems in the Survey are responding to similar global pressures (eg the surveillance society, mass media intrusiveness, and the celebrity culture). In this response, legal structures are not decisive but do affect at least the manner of the response and may sometimes reflect deeper cultural differences. Whether a system is codified or not is generally irrelevant: some codified systems can be more

  Laugh It Off Promotions v South African Breweries International [2005] BCLR 743. 278



a r i gh t s of p e rso n al i t y databas e

543

flexible than uncodified systems because less wedded to precedent. 279 It is a striking common feature of the six civil law systems, Quebec and South Africa, that they all expressly recognise and give effect to doctrines of rights of personality. These may be monistic (as in Germany) or more frequently plurastic.280 They can respond by recognising new personality rights. It is an equally striking common feature of the three common law systems that they do not (or not yet) expressly recognise generalised rights of personality at least at the operational level of causes of action. Instead they respond by extending the boundaries of existing torts or equitable wrongs281 or (despite disclaimers) by creating new torts.282 But the mechanism employed on all sides is mainly the law of delict/tort or its equivalent in Equity, equitable wrongs. In all 12 legal systems, the issue of liability most often depends not on fixed rules but on a balancing test involving an “intense focus” examination of the facts and an evaluation and weighing of both the personality right or interest invaded and the competing right or interest which, as in the case of freedom of expression, may involve the public interest, for example, the interest in maintaining a free press in a democratic society. There are still major differences between legal systems in the relative weight given to the interests in privacy and freedom of expression. Finally, the classic differences between the closed system of property law of civil law systems with their emphasis on correct classification, and the open system of property law of common law systems with their pragmatic, Equity-based approach and loose classifications, are very relevant to the development of assignable and descendible rights of publicity and monopolies over the commercial exploitation of image rights. 11.8.2 Dignitarian (non-patrimonial) aspects of personality The Survey uses the adjective “dignitary” to describe the nonpatrimonial interests protected by the rights of privacy and publicity. The cognate noun “dignity” or dignitas goes back to Ulpian’s triad of interests in personality protected by the actio iniuriarum. The term, however, is imprecise and as the Australian contributor, Megan Richardson, perceptively observes: “‘Dignitary’ may not quite capture all the non-economic interests at stake.” In her view:  See Section 11.2, n 19.  See Section 11.2, n 11 on Germany and n 13 on Italy. 281  Eg passing off and breach of confidence. 282  Eg the Canadian tort of misappropriation of personality; and the English tort of misuse of private information. 279

280

544

r i ght s of p e rs o n al i t y

“Some very utilitarian ideas lie behind the historical development of doctrines such as breach of confidence which Australia inherited and still relies on for protection of privacy – ideas about the social value of private institutions such as family, marriage, friendship, employer-employee and of individuals flourishing in an atmosphere of freedom from external restraint.”283 Richardson here captures the point that, in the common law tradition (and the same is true of the civil law tradition), “dignity” in legal usage goes beyond the narrow conceptions of “dignity” in common parlance. It imports high ideals such as those associated with one’s personal autonomy, self-fulfilment and maintenance of the civility and respect owed to oneself by others. In relation to such dignitarian concerns, it is evident that civil law systems of generalised rights have tended to protect interests of personality more explicitly and strongly than have the common law systems of specific torts and equitable wrongs. This emerges in the case studies on portrait rights. 284 The civil law approach is partly the legacy of the ius commune rules on iniuria, transformed by the 19th-century private law doctrine of rights of personality, and fortified by constitutional and human rights instruments with their emphasis on the dignity of all individuals, for example in postNazi Germany from the 1950s, post-dictatorship Argentina from the 1980s, and post-apartheid South Africa from the 1990s. It is seen by some285 to be a paradox that Commonwealth countries such as Australia, Canada and the United Kingdom, which helped to free Europe from Nazi tyranny, should lag behind continental and other civil law systems in the private law protection of dignitarian attributes of personality. A common answer has been the primordial importance of press freedom in protecting democracy and the rule of law which dignitarian doctrines of privacy are seen as endangering. 286 As noted elsewhere, 287 however, the ECHR, Art 8, is shifting the private law of European states towards a stronger protection of dignitarian image rights than the English law or even 283  Richardson, Australia, Survey, p 24, citing M Richardson, “Whither Breach of Confidence: A Right of Privacy for Australia?” (2002) 26 Melbourne Univ LR 381. 284   Case study (1) in Section 11.7.2. 285   Cf C van Dam, European Tort Law (2006) p 150: “it is a remarkable course of history that in Germany privacy is now protected on the basis of the general personality right, whereas in England, one of the allies that liberated the continent from the totalitarian Nazi regime, it underlies a number of legal remedies but is not in itself a principle of the common law”. 286   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D) at para 66, per Patten J. 287  See Sections 11.2 and 11.5.



a r i gh t s of p e rso n al i t y databas e

545

the German law had previously allowed and, incidentally, aligning them more with the French law. It seems probable that tangible attributes in personality such as bodily integrity and physical freedom of movement are protected in all systems, but there is divergence in some of the intangible dignitarian attributes. So, for instance, the interest in one’s name and the interest in one’s freedom from insult form important rights of personality in civil law systems but not in common law systems.288 As the case studies show, in relation to image or portrait rights there is a difference between legal systems (such as Argentina, France, Germany, Spain and Quebec) which in principle prohibit the unauthorised publication in the media of a photograph of the complainer even in a public place but subject to exceptions, and systems (such as the Netherlands) which allow such unauthorised publication unless it is established affirmatively that publication invades privacy. Both civil law approaches differ from the traditional common law which rarely protected image rights. But this is now changing in English law with the creation of the new tort of misuse of private information and the extension of breach of confidence to cover invasion of privacy under the influence of the ECHR, Art 8: “What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity.”289 These changes in English law constitute a remarkable step towards convergence with civil law systems. There remain, however, differences in the standard of protection. In the Murray case, 290 for example, the first instance judge refused to follow the Quebec case of Aubry 291 because it turned on the Quebec Charter. In the von Hannover case the Association of Editors of German Magazines (interveners) contended that German law being half way between French law and United Kingdom law struck a fair balance between privacy and press freedom, and argued that since there was no uniform European standard concerning the protection of private life, the State had a wide margin of appreciation. 292 The result of the von Hannover case, however, is that the ECtHR narrowed the margin of appreciation,

 Unless a name is registered as a trade mark, which creates a form of intellectual property rather than a right of personality. 289   Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 HL(E) at para 50, per Lord Hoffmann. 290   Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D). 291   Les Éditions Vice-Versa v Aubry [1998] 1 SCR 591; (1998) 157 DLR (4th) 577. 292   von Hannover v Germany (2005) 40 EHRR 1 at para 46. 288

546

r i ght s of p e rs o n al i t y

and seems to be implementing a policy of imposing a more or less uniform standard of dignitarian interests in privacy in European signatory States. As mentioned above, 293 the judicial intense-focus evaluation of the contribution to the public interest of UK, tabloidpress articles invading privacy threatens a journalistic revolution. The outcome is not yet clear. To sum up, despite significant convergence, there are still divergent legal approaches to the protection of privacy which reflect deepseated cultural differences but it seems likely that within Europe these legal divergences will be at least eroded, if not swept away, by the Strasbourg jurisprudence on ECHR. 11.8.3  Patrimonial (economic) aspects of personality The legal right to prevent and to control dissemination of one’s image is part of the right to be left alone (the dignitarian right of privacy) and in some countries part also of a distinct and separate monopolistic right to profit financially from dissemination of one’s image (a “right of publicity” or un monopole d’exploitation sur l’image). The issue whether individuals, normally (but not only) celebrities, should have such a commercial monopoly is controversial. The question whether their licensees or assignees should be entitled to acquire independent autonomous rights against third parties is even more controversial since it creates a new form of incorporeal moveable property. This is especially true in civil law systems and some mixed systems (eg Quebec) which, unlike common law systems, have a closed system of property law294 and in which the principle of the inalienability of personality rights is explicitly recognised in private law codes and therefore more deeply entrenched 295 than in common law systems. 296 Scots law has a closed system of property law297 but the Scottish courts have not yet addressed the issue of the inalienability of personality rights. These rights of publicity fall outside the ECHR, and no international instrument seeks to harmonise divergent laws on this topic according to a common ethic. It may be that none of the 12 legal systems in the case studies draws a clear line demarcating the dignitarian and the commercial aspects of the persona so as to provide for a right of privacy and a

 Sections 11.44(b), n 141; 11.5, n 184.  See Section 11.4.5. 295  See Section 11.4.3, para (b). 296  The former point but not the latter emerges clearly from the Survey. 297  See Section 11.4.5, n 180. 293

294



a r i gh t s of p e rso n al i t y databas e

547

separate right of publicity on the American model. 298 In a critical comment on the Canadian common law provinces, for example, Lorian Hardcastle notes that Canadian cases do not “(i) provide a consistent approach; (ii) directly address the property-privacy distinction; (iii) demarcate the nature of conduct that gives rise to an actionable wrong, and (iv) create clear policy for the basis of the tort for appropriation of personality”. Perhaps similar observations could fairly be made of several other legal systems in the Survey. This lack of clarity however is unsurprising because, as the Survey shows, the rights of privacy and publicity are two sides of the same coin, namely the power to prevent and to control the dissemination of one’s image, and are therefore not easy to disentangle. More important is the fact that this power to prevent and to control the dissemination of one’s image is conferred by law to be exercised by celebrities and others simultaneously for purposes – privacy and publicity – which, as their names imply, are very difficult to reconcile and even inconsistent. The reason why such incoherence is allowed is not far to seek. It lies in the enormous wealth and international or global reach of the modern celebrity culture, the example of the American right of publicity and the argument from “commercial realities”. The law will follow the money as it always has and no modern legal system can afford to be left out. There are indications that the imperative force of these pressures will simply brush aside all scruples based on the view that it is inconsistent and incoherent for the law to protect a person’s privacy for high reasons of human autonomy and dignity and at the same time to allow that person to sell it. 11.8.4  Future research Against this background, the following suggestions for future research might be considered. (1) The case studies show that in all civil law systems the dignitarian rights to one’s image and privacy are treated as inalienable and therefore non-assignable. It is however a question of degree as to what type of consent or licence, with what incidents, for commercial exploitation of the grantor’s image would be competent without violating the principle of inalienability. The details of the law on that issue seem well worth further research.  Among European systems there is less pressure for uniformity in patrimonial than in dignitarian aspects of image rights because the ECHR, Art 8, applies to the dignitarian but not the patrimonial aspects.

298

548

r i ght s of p e rs o n al i t y

(2) In the common law systems studied, a body of opinion holds that each of the three distinct personality interests privacy; publicity; and traditional confidentiality should have its own distinct cause of action. Further research might be made into the merits and means of achieving this aim. (3) In the common law systems studied, it also seems desirable to undertake research into the new system of licences in Equity for the commercial exploitation of confidential information, which was sanctioned by the House of Lords in the Douglas v Hello! litigation,299 and to consider whether it should be extended to information which is private but not necessarily (in the technical sense) confidential. (4) It is important to continue comparative research into the differing civil law, common law, mixed and ECHR solutions to common problems especially those arising from commercial appropriation and licensing of the use of image and other indicia of identity. The case studies give a snapshot of the position in 2006 but periodic updates are necessary because the law is rapidly changing in many if not all countries. (5) The Scots law on privacy and publicity is probably the most undeveloped and under-nourished of the 12 legal sytems surveyed. It does nothing to enhance the reputation of Scots law that a Scottish celebrity should prefer to sue in London in respect of an invasion of privacy occurring in an Edinburgh street.300 This backwardness and neglect, however, presents not only a challenge but an opportunity for reform and development relying on the experience of more advanced compatible systems. In legislative terms, both privacy and confidentiality are within the subjects devolved to the Scottish Parliament while intellectual property is reserved to the United Kingdom Parliament. It might nevertheless be practicable and would seem desirable to aim at producing a set of proposals which could form the basis of law reform legislation or act as recommendations to the Scottish courts for the principled development of the common law.

  OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21; [2008] 1 AC 1. 300   Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, reversing Murray v Express Newspapers plc [2007] EWHC 1908 (Ch D). 299



a hi t c h hi k e r ’ s g u i d e

549

chapter 12 a hitchhiker’s guide to personality rights in scots law, mainly with regard to privacy Hector L MacQueen 12.1

INTRODUCTION

12.2

THE IMPACT OF THE HUMAN RIGHTS ACT 1998, RESOLUTION 1165, AND VON HANNOVER 12.2.1 The Human Rights Act and Resolution 1165 12.2.2 The von Hannover decision 12.2.3 A requirement to act



12.3 BREACH OF CONFIDENCE: THE EXAMPLE OF ENGLISH LAW 12.3.1 Reaction in England: the Campbell case 12.3.2 Peck 12.3.3 Breach of confidence cases in England: Douglas v Hello! 12.3.4 McKennitt v Ash 12.3.5 HRH The Prince of Wales v Associated Newspapers Ltd (No 3) 12.3.6 CC v AB 12.3.7 The J K Rowling case 12.3.8 The Max Mosley case 12.3.9 A Scottish case: X v BBC 12.3.10 Limitations: freedom of expression and the prevention and investigation of crime 12.4

THE LIMITS OF THE ENGLISH LAW OF CONFIDENCE 12.4.1 The limits of confidence: Wainwright and Watkins 12.4.2 Pressure for further change: general or particular?

12.5

SCOTS LAW: THE ACTIO INIURIARUM 12.5.1 Scots law: a possible response beyond breach of confidence? 12.5.2 Potential of the actio iniuriarum



549

550

r i ght s of p e rs o n al i t y

12.6 USING STATUTES 12.6.1 Preliminary 12.6.2 Protection from Harassment Act 1997 (a) Content and scope (b) Howlett v Holding 12.6.3 Data Protection Act 1998 (a) Content and scope (b) The data protection principles (c) Rights of the data subject (d) Exemptions (e) Sensitive personal data (f) Applications (g) Use of the Data Protection Act to develop the common law 12.6.4 Regulation of Investigatory Powers Acts 2000 (a) Scope (b) Content (c) Civil liability under RIPA? 12.6.5 Copyright, Designs and Patents Act 1988 (as amended) (a) Scope (b) Protection of unpublished work (c) Anonymity, pseudonymity and attribution (d) Fair dealing and public interest defences 12.6.6 Overview 12.7

CONCLUSIONS 12.7.1 Issues still to be addressed: (a) basis of liability 12.7.2 Issues still to be addressed: (b) forms of affront 12.7.3 Issues still to be addressed: (c) defences 12.7.4 Issues still to be addressed: (d) remedies 12.7.5 Closing remarks

12.1  INTRODUCTION The crucial point about The Hitchhiker’s Guide to the Galaxy – the original rather than Douglas Adams’ book about it with the same title – is that “it has the words DON’T PANIC inscribed in large friendly letters on its cover”. This is one of the reasons why “in many of the more relaxed civilizations on the Outer Eastern Rim of the Galaxy, [it] has already supplanted the great Encyclopaedia Galactica as the standard repository of all knowledge and wisdom”, despite “many omissions” and the fact that it “contains much that is apocryphal, or at least wildly inaccurate”. These may or may not also be good



a hi t c h hi k e r ’ s g u i d e

551

reasons for paying attention to the paper that follows, although I do share with Ford Prefect, roving researcher for The Hitchhiker’s Guide, the mistaken choice of “a nicely inconspicuous name”. I also recall from Douglas Adams’ book the recurrent question about Life, the Universe and Everything, the answer to which is, after seven and a half million years’ worth of consideration, eventually provided by Deep Thought, the second greatest computer in the Universe of Space and Time: not, as some might have expected, the actio iniuriarum or convicium, but the number “42”.1 I shall do my best not to reach that particular conclusion as well, or to take seven and a half million years over it. My mission will, however, be to explore some parts of the legal galaxy from which Scots law may begin to formulate answers to the most pressing question in the modern law of personality rights: how to protect privacy. In our journey we will touch upon the common law of Scotland; but for most of the time our attention will be elsewhere, ranging from English decisions through human rights jurisprudence to the potential role of statutory provision, more extensive in its coverage and implications than has usually been realised.

12.2 THE IMPACT OF THE HUMAN RIGHTS ACT 1998, RESOLUTION 1165, AND VON HANNOVER 12.2.1  The Human Rights Act and Resolution 1165 Contemporary discussion of a general right to privacy in the different jurisdictions of the United Kingdom was stimulated by the passage of the Human Rights Act 1998 (HRA). From 2 October 2000 the Act required the courts to act to protect the rights enumerated in the European Convention on Human Rights (ECHR), not only for the individual against the state, but also horizontally, between individuals: in particular the general right to privacy set out in Art 8 of the ECHR.2 As the HRA entered the UK statute book, the Council of Europe, custodian of the ECHR, published its Resolution 1165 of 1998.3 This followed the death of Princess Diana in a Paris car crash in August 1997, widely attributed at the time to the intrusive pursuit

  For the quoted passages in The Hitchhiker’s Guide to the Galaxy (first published in book form in 1979), see its preamble and Chapters 1 and 27. 2  See generally H L MacQueen and J D Brodie, “Private rights, private law and the private domain” in A Boyle, C Himsworth, A Loux and H MacQueen (eds), Human Rights and Scots Law (2002) 141. 3   Available at http://assembly.coe.int/Documents/AdoptedText/TA98/eres1165.htm. 1

552

r i ght s of p e rs o n al i t y

of the Princess’s vehicle by paparazzi photographers. Public revulsion was also directed against the paparazzi for taking photographs of the dying Princess after the crash rather than going to assist her and her fellow passengers. The main message of the Resolution was that a balance fell to be struck between the Convention right to freedom of expression (Art 10), most frequently invoked to protect press freedom, and the Art 8 right to privacy, and that the ECHR did not privilege either over the other. Paragraph 12 of the Resolution emphasised the horizontal as well as vertical effect of ECHR, Art 8, that is to say the need to make it effective between non-state actors as well as against the state itself. Paragraph 14 was a call to ECHR Member States “to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy [and] containing the following guidelines”. First among the guidelines is the following: “the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy”. 12.2.2  The von Hannover decision The message of Resolution 1165 has since been reinforced by the European Court of Human Rights. In particular, in von Hannover v Germany,4 decided in 2004, the Court cited Resolution 1165 in full, and further elaborated the strong horizontal effect to be given to ECHR, Art 8: “The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations between individuals themselves. . . . The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.”5

The European Court has made clear since von Hannover that this message is not confined to cases of media intrusion, but encompasses other instances of privacy infringement.6   (2005) 40 EHRR 1.   Ibid, para 57 (emphasis supplied). 6  See Sciacca v Italy (2006) 43 EHRR 20 at para 29. 4 5



a hi t c h hi k e r ’ s g u i d e

553

12.2.3  A requirement to act The domestication of Convention rights in the United Kingdom thus entails for both Scots and English law a need to provide clearer and more explicit protection of individual privacy than has previously been the case, against both state and private actors. Relief cannot be realistically expected from the legislature, however, since it has a long history of failure to guarantee that invasion of privacy is civilly actionable as such, and is unlikely to want the inevitable confrontation with a highly hostile media which such attempts to legislate have always invited in the past.7 The passage of the HRA, which could not realistically be opposed by anyone once the Government had taken the decision to domesticate Convention rights, will be as much as the UK Parliament is ready, or perhaps even able, to do to protect privacy in general. In Scotland too the Scottish Parliament, scarred since its foundation by media hostility, is unlikely to show a greater relish for tackling the issue directly and independently of a wider British initiative. So the development of the law in Scotland, as in England and Wales, will most probably be deliberately left to the courts, by way of the horizontal effects of the HRA, with legislation being brought forward only to deal with social problems related to privacy that are thought (rightly or wrongly) to lie beyond the scope of breach of confidence or other common law rules: the best example being the provision of civil and criminal relief against personal harassment by “stalking” under the Protection from Harassment Act 1997.8 12.3 BREACH OF CONFIDENCE: THE EXAMPLE OF ENGLISH LAW 12.3.1  Reaction in England: the Campbell case The English courts have shown their acceptance of the burden thus cast upon them by our legislators. The Council of Europe Resolution has been referred to in a number of cases,9 notably by the House of Lords in Campbell v Mirror Group Newspaper Ltd10 when finding 7  See in support of this conclusion the Government’s negative response (Cm 5985; 2003) to the Fifth Report of the House of Commons Culture, Media and Sport Select Committee on Privacy and Media Intrusion (HC 458-1, 2003) and its recommendation of the introduction of a new privacy law against media intrusion. 8   For English judicial attempts to remedy the problem of “stalking” by way of the law of private nuisance, ultimately unsuccessful, see Khorasandjian v Bush [1993] QB 727 and Hunter v Canary Wharf [1997] AC 655. In Scotland, see Ward v Scotrail Railways Ltd 1999 SC 255. It is open to doubt how necessary the 1997 Act was in Scots law: see, eg, Lord Kilbrandon “The law of privacy in Scotland” (1971) 2 Cambrian LRev 35 at 44. 9  See, eg, A v B & C [2003] QB 195 (CA). 10   [2004] 2 AC 457.

554

r i ght s of p e rs o n al i t y

that, despite s 12(4) of the HRA, neither freedom of expression or privacy had any pre-eminence over the other,11 while at the same time developing the law of confidence to offer stronger protection to individual privacy. Campbell indeed anticipated the decision in the von Hannover case by holding that an individual might retain a right to privacy even when appearing in a public place, enabling the claimant (a well-known model) to object to the publication of photographs taken without her consent or knowledge while emerging on to the street from premises belonging to Narcotics Anonymous. In this, as in its downplaying of the importance of a pre-existing relationship of confidence between the parties, the Campbell case was a major move by the House of Lords in the direction of a law of privacy, and Lord Nicholls indeed conceded that the law might be “better encapsulated now as misuse of private information”.12 In one respect, however, the decision in Campbell did not seem to go so far as the later von Hannover judgment, which held that privacy protection should be available for quite unexceptional activities even if carried out by public figures and taking place in a public venue. The House of Lords, on the other hand, did not think that the claimant could have complained of photography had she simply been walking down a public street or, in Baroness Hale’s example,13 popping out to the shops for a bottle of milk.14 12.3.2  Peck Also influential in the Campbell decision was another case from the European Court of Human Rights, Peck v United Kingdom,15

  [2004] 2 AC 457, paras 113 (Lord Hope of Craighead) and 138 (Baroness Hale). On this point see also in confirmation Re S (FC) (A Child) [2005] 1 AC 593. 12   [2004] 2 AC 457 at para 14. The terminology is deployed again in the House of Lords in OBG v Allan; Douglas v Hello! [2008] 1 AC 1 at paras 118 (Lord Hoffmann) and 251–253 (Lord Nicholls), and may well effectively signal the birth of a new tort distinct from the equitable wrong of breach of confidence, as suggested elsewhere in this volume, eg by Niall Whitty and Charlotte Waelde (Chapter 11). In Murray v Big Pictures UK Ltd [2008] EMLR 12 the court refers to the “tort . . . [of] misuse of private information” (para 24), and there is discussion of whether invasion of privacy is a tort in Mosley v News Group Newspapers Ltd (No 2) [2008] EMLR 20 (QB) at paras 181–184 (Eady J). 13   [2004] 2 AC 457 at para 154. 14  See also John v Associated Newspapers Ltd [2006] EMLR 722 (held that the entertainer Sir Elton John could not prevent the publication of photographs taken in the street and showing him wearing a tracksuit and a baseball cap) and Wood v Metropolitan Police Commissioner [2008] EWHC 1105 (Admin) (held that the police did not infringe the claimant’s reasonable expectations of privacy by taking photographs of him in a public place and retaining the results for limited purposes). 15   (2003) 36 EHRR 41. 11



a hi t c h hi k e r ’ s g u i d e

555

where P’s privacy rights under ECHR, Art 8 were held infringed in circumstances very difficult to bring within even the extended idea of breach of confidence: publication by a local authority of closedcircuit television (CCTV) camera pictures of P carrying a knife in a public street, while failing to disguise his identity, the context for this being P’s attempt to commit suicide in the street by slashing his wrists with the knife. The authority’s publication of the material had been intended to show how the use of CCTV could deal with dangerous situations; the police had been prompted to arrest P (and so save his life) after sighting the images. 12.3.3 Breach of confidence cases in England: Douglas v Hello! Breach of confidence cases since Campbell show the continued willingness of the English courts to develop the law as a tool to protect privacy, in particular with regard to the question of privacy in the public domain. The best-known of the cases is Douglas v Hello!,16 in which two film stars recovered damages for breach of confidence by the defendant magazine for publishing surreptitiously taken photographs of their wedding, at which photography had been banned apart from that to be carried out by a different magazine (OK!) under a contract with the two stars concerned. The relatively modest awards included £3,750 each for loss of personal privacy as well as £7,000 for the harm to the stars’ commercial interest in images of their wedding. The decision remains controversial, because the wedding was a very public and well-publicised event. But there are other decisions in England, admittedly also involving well-known people, but rather more clearly than Douglas showing breach of confidence being developed to protect individual privacy. 12.3.4  McKennitt v Ash First is McKennitt v Ash,17 which was concerned with the memoirs of a former personal assistant (Ash) to a well-known Canadian folk musician (McKennitt), the latter being a jealous guardian of her own privacy. The memoirs, entitled Travels with Loreena McKennitt: 16   [2006] QB 125 (CA). There was no appeal on this aspect of the case to the House of Lords, which instead considered and upheld (by a majority of 3:2) the claim of OK! magazine to damages for breach of confidence by Hello! (OBG v Allan; Douglas v Hello! [2008] 1 AC 1). But the Law Lords seem to accept the development of breach of confidence to protect personal as well as commercial information: see Lord Hoffmann at para 118, Lord Nicholls at para 255, Lord Walker of Gestingthorpe at para 272 (but cf para 295). 17   McKennitt v Ash [2006] EMLR 10 (QB, Eady J); affirmed [2007] EMLR 4 (CA).

556

r i ght s of p e rs o n al i t y

My Life as a Friend, were in fact mostly about McKennitt’s rather than Ash’s life, and included material claimed as confidential by McKennitt, such as her relationships, her personal feelings and grief at the death of her former fiancé, her health and diet, her emotional vulnerability, and a property and financial dispute with Ash and her partner. Some of the material had, however, been made public in a controlled and limited way by McKennitt herself before the appearance of the book, which itself had also had a limited circulation of about 500 copies and therefore represented further publication of the information. At first instance Eady J invoked the recognition in both Campbell and von Hannover of the possibility of a private life in relatively public circumstances, to grant McKennitt the bulk of the protection she sought by way of an injunction restricting further publication of Ash’s book. McKennitt was also awarded “relatively modest”18 damages of £5,000 for hurt feelings and distress. Eady J distinguished the protection of commercial confidential information from that of private personal material, saying that with the latter courts should be less ready to assume that protection was lost once the information had some circulation amongst the public. “It does not necessarily follow that because personal information has been revealed impermissibly to one set of newspapers, or to readers within one jurisdiction, that there can be no further intrusion upon a claimant’s privacy by further revelations. Fresh revelations to different groups of people can still cause distress and damage to an individual’s emotional or mental well-being.”19 Only if the information was so generally accessible that it could no longer be regarded as confidential would it lose all protection. The judgment was upheld by the Court of Appeal after detailed review, although with an emphasis upon the initial confidential relationship of the parties, and perhaps the most important further observation being that the principle of the von Hannover case was not limited to cases of media intrusion.20 12.3.5  HRH The Prince of Wales v Associated Newspapers Ltd (No 3) In HRH The Prince of Wales v Associated Newspapers Ltd (No 3)21 Prince Charles obtained a summary judgment against the Mail on Sunday, upheld by the Court of Appeal, for its breach of confidence in publishing extracts from his private journals without   [2006] EMLR 10, para 162.   Ibid, para 81. See also para 64. 20   [2007] EMLR 4, per Buxton LJ at paras 15–17, 41. 21   [2006] EWHC 522 (Ch, Blackburne J); affirmed [2008] Ch 57 (CA). 18

19



a hi t c h hi k e r ’ s g u i d e

557

his permission, despite the absence of any relationship of confidence between the Prince and the newspaper, although there may have been one between the Prince and the source from which the newspaper obtained his private journals.22 The fact that the Prince of Wales circulated photocopies of his Hong Kong journal to some 21 friends did not amount to putting it into the public domain, when the copies were circulated in envelopes marked “private and confidential” and there was no suggestion that they were generally available to others. Information might remain confidential even when it was known to a group of people, so long as it was not so generally available and the person or group possessed of the information did not intend it to become so available. In the light of this and the McKennitt case, it is worth remembering in Scotland that in the leading breach of confidence case, Lord Advocate v Scotsman Publications Ltd, 23 it was left uncertain whether private distribution of 279 copies of a book containing confidential information deprived it of confidentiality, especially when the confidentiality pertained to a person other than the one who had circulated the information. Interdict was not granted then, however, on the basis that no damage to the public interest could now be prevented by use of the remedy. 12.3.6  CC v AB In CC v AB24 the defendant was enjoined from publishing to the media and on the Internet details of an affair between his wife and the claimant (who was also a married man). Eady J was careful not to uphold “the striking proposition that a spouse whose partner has committed adultery owes a duty of confidence to the third party adulterer to keep quiet about it”, 25 but also rejected a converse “principle to the effect that a party to an adulterous relationship can never, as a matter of law, obtain injunctive relief (interim or permanent) against the wronged party preventing him from disclosing the relationship”.26 Focusing instead on the particular facts of the case, the judge held that sexual relationships were an area where the participants had a reasonable expectation of privacy, and that it was appropriate to take into account the privacy rights of the adulterous wife and the claimant’s family. The defendant’s motives for seeking 22  There were also issues about copyright infringement and defences, which are not dealt with here; but see further below, text accompanying nn 148–150 and 162–163. 23   1989 SC (HL) 122. 24   [2007] EMLR 11 (QB, Eady J). 25  Para 3. 26  Paras 12–13.

558

r i ght s of p e rs o n al i t y

publication were revenge and the opportunity for financial gain. In this context, his right of freedom of expression was outweighed by the privacy interests at stake. The injunction was however only to prevent publication in the media and on the Internet; the defendant was free to discuss the matter with family and friends. 12.3.7  The J K Rowling case Murray v Express Newspapers plc and Big Pictures (UK) Ltd (henceforth the J K Rowling case)27 resulted from the publication of a covertly taken photograph of the then 18-month-old son of the well-known author J K Rowling, being pushed along an Edinburgh public street in a buggy by his parents. The claim, based on breach of confidence, 28 was made in the name of the boy and sought to prevent, not only republication of the photograph, but also publication of any other or similar photograph taken without his consent. The first defendants having settled the claim against them, Patten J struck out the action against the second. The essence of his reasoning was that “routine acts such as the visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy”. 29 This decision was however over-turned by the Court of Appeal, which directed that there should be a trial of the issues. The court said: “We do not share the predisposition identified [by Patten J] that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends upon the circumstances. The position of an adult may be very different from that of a child.”30 The decision thus appears to extend Campbell and move in the direction of von Hannover so far as photography in public places is concerned; the justification is the stress placed by the court on the rights of the child. The court denied that it was creating an “image right”: “the focus should not be on the taking of a photograph in the street, but on its publication.”31 12.3.8  The Max Mosley case Finally, Max Mosley, President of the governing body of global motor sport, recovered damages of £60,000 from the News of the

  [2007] EMLR 22; reversed [2008] EMLR 12.  And also under the Data Protection Act 1998 (see further below, text accompanying nn 87. 96 and 107). 29   [2007] EMLR 22 at para 66. 30   [2008] EMLR 12 at para 56. 31   Ibid, para 54. 27

28



a hi t c h hi k e r ’ s g u i d e

559

World for its publication of news stories and photographs showing him engaged in sado-masochistic and sexual activities at a party with five women.32 The material had been obtained covertly through and from one of the women in breach of confidence known to, and indeed assisted by, the journalists concerned. As Eady J remarked, the decision was “simply the application to rather unusual facts of recently developed but established principles”.33 The claimant had a reasonable expectation of privacy with regard to his sexual activities, and there was no countervailing public interest to justify disclosure; in particular, the purported exposure of a supposed Nazi or concentration camp theme to the party was unsupported by the material published. Nor was there any criminality or illegality in the claimant’s conduct. 12.3.9  A Scottish case: X v BBC Scottish courts seeking to develop the law to protect privacy can therefore draw upon such recent English precedents in the law on confidential information, as well as the jurisprudence of the European Court of Human Rights. Indeed, this seems to have happened already, in X v BBC.34 The pursuer, a private individual, succeeded in obtaining an interim interdict on the basis of breach of confidence, to prevent the BBC broadcasting a TV documentary showing her intoxicated and behaving in unusual ways in a public place. Temporary Judge Malcolm Thomson QC followed Peck and Campbell in reaching his decision. X initially consented in writing to being filmed for the documentary, but then withdrew her consent. What seems especially significant is that the information (surely private rather than confidential) was (1) behaviour in a public place and (2) material contained in a social inquiry report read out in open court, ie in some sense published. The judge’s difficulty in the law of confidence arose from the rule that, once published, information is no longer confidential and its further publication cannot be stopped, albeit there may be remedies such as damages or account of profits for the wrong of the initial disclosure.35 In the end Judge Thomson

32   Mosley v News Group Newspapers (No 2) [2008] EMLR 20. See also text accompanying n 37 below. 33   Ibid, para 234. 34   2005 SCLR 740. 35   For the rule, see Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, discussed for Scots law in Laws of Scotland: Stair Memorial Encyclopaedia, vol 18, paras 1460–1461. It is discussed and qualified in OBG v Allan; Douglas v Hello! [2008] 1 AC 1 at paras 120–122 (Lord Hoffmann), 255–259 (Lord Nicholls) and 329 (Lord Browne of Eaton-under-Heywood).

560

r i ght s of p e rs o n al i t y

overcame his difficulty by reference to the rules of interim interdict: the petitioner had raised questions to try on which she had real prospects of success, and the balance of convenience was in her favour, with a real risk of serious harm to her if the broadcast went ahead as planned.36 12.3.10 Limitations: freedom of expression and the prevention and investigation of crime The expansion of the law of confidence into the realm of personal information and privacy is not unlimited, however. The English courts repeatedly stress in the cases discussed above, all involving the publication of private information, the need to balance the claimant’s Art 8 privacy rights against the defendant’s ECHR, Art 10 freedom of expression rights, and underline the point that neither right has precedence over the other. Their comparative weight in any given case depends upon what has been termed an “intense focus” upon the particular facts and circumstances. Thus, for example, Max Mosley failed to obtain an injunction preventing the News of the World from displaying on its website a video showing him engaged in sadomasochistic sexual activities with five women, because it appeared that the material had already made its way on to an unquantified number of other websites and there was no point in barring the newspaper from showing what was widely available elsewhere.37 In Wood v Metropolitan Police Commissioner 38 it was held that police did not infringe the claimant’s reasonable expectations of privacy by taking photographs of him in a public place and retaining the results for limited purposes connected with the prevention and investigation of crime. This of course was not a disclosure or publication case, unlike most of the others discussed in this section, but the judge explored the limitations on privacy stated in Art 8(2) itself, allowing public authorities to interfere with the right in accordance with the law and as necessary in a democratic society.  In the end the documentary in question was broadcast on BBC Scotland on 31 January 2006, following a settlement between X and the BBC just before a threeweek court proof was due to commence. Under the settlement X appeared in the programme but was identified only by her first name. No money changed hands under the settlement. I am grateful to Alistair Bonnington and Rosalind McInnes of the BBC for this information. 37   Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (especially at para 36). 38   [2008] EWHC 1105 (Admin). Cf in Scotland Adamson v Martin 1916 SC 319, where it was held by the Second Division that police had no common law entitlement to take within a police station and then retain photographs (and fingerprints) of boy accused of theft and liberated without bail (and later found not guilty). 36



a hi t c h hi k e r ’ s g u i d e

561

12.4  THE LIMITS OF THE ENGLISH LAW OF CONFIDENCE 12.4.1  The limits of confidence: Wainwright and Watkins The willingness of the English courts to extend the law of breach of confidence to protect private information contrasts curiously with their reluctance to fill the gaps that even such a development leaves in the protection of privacy. The best-known example is another House of Lords decision, Wainwright v Home Office, 39 the facts of which occurred before 2 October 2000. Prison visitors who had been strip-searched contrary to the prison rules and in humiliating fashion by prison officers before admission to the prison were found to have no claim in relation to their consequent distress because English law knew no general right of privacy. In no way could the law of confidential or private information be stretched to cover such a case. A more recent example is the decision of the House in another case about prison officers, Watkins v Home Office.40 The facts are graphically described at paras 67–68 of Lord Walker’s speech: “67  [O]n three separate occasions (on 17 September 1998 and 5 October 1998 at Wakefield Prison, and on 5 December 2000 at Frankland Prison) three different prison officers, deliberately and in bad faith, broke the Prison Rules by opening or reading correspondence addressed to the respondent, Mr Watkins, (on the first two occasions) by his solicitors and (on the third occasion) by the Durham County Court. In the first incident the officer took out and inspected the contents of one package which had already been opened, and opened and inspected the other in front of the respondent. His protest was met by the comment ‘so report me to John Major’ (the prison officer cannot have taken much interest in current affairs). In the second incident the officer ‘proceeded to rip open’ a letter in front of him. In the third incident the officer read documents likely to relate to proceedings in which he (the officer) was a defendant (the officer’s evidence of his ignorance of the proceedings was disbelieved, as he had signed a statement of truth on his defence). 68 Each of these incidents was an immediate and intentional breach of the respondent’s right to unimpeded access to the court, either directly or through his solicitors. In its impact on the respondent each incident was likely to be much the same as an actual assault which occasioned no lasting harm, such as a slap in the face. Whether or not the respondent suffered distress or depression as a result (and the judge commented that he appeared ‘to thrive on these conflicts’) it 39

  [2004] 2 AC 406.   [2006] 2 AC 395.

40

562

r i ght s of p e rs o n al i t y was an affront, and a deliberate affront, at which he was entitled to feel real indignation.”

The House held that the prisoner so treated had no remedy under the tort of “misfeasance of public office” because he had suffered no damage that the law would recognise under that head. Despite the obvious intrusion upon the privacy of the prisoner’s correspondence, there could be no extension of that particular tort, although, even more clearly, there was no remedy for breach of confidence either.41 12.4.2  Pressure for further change: general or particular? So, although the decided cases make clear that at least some English judges will not allow the limits of breach of confidence to place undue or unwanted fetters upon the protection of informational privacy, in general the English courts do not see themselves in a position to make the kind of wholesale changes to the common law that would be needed against other forms of privacy infringement, such as the personal intrusions suffered by the claimants in Wainwright and Watkins. Giving the leading speech in the Wainwright case, for example, Lord Hoffmann argued that privacy was too protean a concept to lend itself to other than specific and detailed types of protection, together with appropriate defences, such as could only be achieved, he suggested, by legislation such as the Protection from Harassment and Data Protection Acts.42 Since that judgment, of course, another court working in the Common Law tradition, the New Zealand Court of Appeal, has fashioned a new tort of invasion of privacy, building from many of the English breach of confidence cases as well as New Zealand, Australian and United States jurisprudence.43 Moreover, Wainwright has been the subject of a damages award against the United Kingdom by the European Court of Human Rights, for failure to protect the Wainwrights’

 Remedies lay only in proceedings for judicial review (with no prospect of damages), by enforcement of the disciplinary code to which prison officers are subject, or by a criminal prosecution for misfeasance in public office. The facts of Watkins may be compared with the still to be explored substantive issues about the treatment of prisoners’ correspondence in Beggs v Scottish Ministers 2007 SLT 235 (HL), and also the official interference with prisoners’ outgoing telephone calls challenged as an infringement of ECHR, Art 8 in Potter v Scottish Prison Service 2007 SLT 363 (OH), rev’d 2007 SLT 1019 (IH). 42   [2004] 2 AC 406 at para 33. 43   Hosking v Runting [2005] 1 NZLR 1. See also Rogers v Television New Zealand Ltd [2007] NZSC 91 and note the discussion of Hosking in Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at paras 48–53. 41



a hi t c h hi k e r ’ s g u i d e

563

rights under ECHR, Art 8.44 So it is not impossible – perhaps even increasingly likely – that in a case with facts dated after 2 October 2000 the House of Lords will feel compelled to move from the protection of informational to other forms of privacy; although one is bound to say that the Watkins case is not particularly encouraging in this regard. 12.5  SCOTS LAW: THE ACTIO INIURIARUM 12.5.1  Scots law: a possible response beyond breach of confidence? For Scots law, on the other hand, it has been argued that there is already a basis within the common law for a wider, more general approach to a right of action for invasion of privacy such as the Council of Europe and the European Court of Human Rights want to see, namely the actio iniuriarum.45 The actio has been defined thus for Scots law: “[an action] claiming compensation for affront, dishonour or disgrace, naturally causing hurt feelings, though not necessarily any actual patrimonial loss.”46 The typical, although by no means the only kind of case, was the verbal insult.47 More than 40 years ago T B Smith was the first to suggest that the actio was the means by which modern Scots law could remedy invasions of privacy.48 And, significantly, since the passage of the HRA, there have been at least three cases referring directly or indirectly to the actio iniuriarum when privacy was in issue:49 two certainly concerned with issues that could not be reached by breach of confidence, namely stalking50   Wainwright v United Kingdom (2007) 44 EHRR 40. For the precedential value of ECtHR decisions in relation to otherwise binding domestic authorities in English law, see Kay v Lambeth LBC [2006] 2 AC 465, per Lord Bingham of Cornhill at paras 43–44. 45  M Earle and N R Whitty, “Medical law”, in SME Reissue Medical Law, paras 6, 282–306; see also N R Whitty, “Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194 at 199–208. 46  D M Walker, Civil Remedies (1974), p 986. 47  Space precludes any treatment here of verbal injury and convicium as bases for the protection of privacy in Scots law; but see John Blackie’s contribution to this collection (Chap 2). 48   Short Commentary on the Law of Scotland (1962), pp 653–656. See also K W B Middleton “A right to privacy?” 1963 JR 158; Lord Kilbrandon, above, n 8; Report of the Committee on Privacy, Chairman Rt Hon Kenneth Younger (Cmnd 5012, 1972), p 306; and Scottish Law Commission Memorandum No 40 Confidential Information (1977), paras 28–35. 49  See further H L MacQueen, “Searching for privacy in a mixed jurisdiction” (2006) 21 Tulane European & Civil Law Forum 73 at 88–94. 50   Ward v Scotrail Railways Ltd 1999 SC 255. 44

564

r i ght s of p e rs o n al i t y

and surveillance, 51 and the third a case where uncertain rules about third party havers raised doubts about the applicability of breach of confidence.52 There is also the pre-HRA case of Henderson v Chief Constable of Fife,53 providing a remedy against Wainwright-style physical intrusion, which is explicable on the basis of the principles underlying the actio iniuriarum. Lord Jauncey’s use of the English precedent of Lindley v Rutter54 in support of his decision does not preclude that interpretation, since in that case the court described the forcible removal of a police detainee’s underwear as “an affront to the dignity and privacy of the individual”, 55 language redolent of the actio iniuriarum.56 While, therefore, the judicial reaction to the invocation of the actio iniuriarum in privacy-type cases in the Scottish courts has been at best tentative, this probably reflects the nature of the arguments being put to them by counsel not wholly at ease with the concepts involved. The significance of all the decisions, however, is that in none of them has the argument about the actio iniuriarum been comprehensively rejected, and the actual outcomes of the cases are also broadly consistent with an extension of the principles of the action beyond the realm of the purely verbal injury or insult. 12.5.2  Potential of the actio iniuriarum The decision in Stevens v Yorkhill NHS Trust57 that Scots law recognises as a legal wrong the unauthorised removal and retention of organs from a dead human body, and that “the true juridical basis for this type of claim lies in the actio iniuriarum”,58 will undoubtedly strengthen the arguments for also using the actio as a means of protection against intrusions upon individual privacy.

51   Martin v McGuiness 2003 SLT 1424. The decision is applied in McGowan v Scottish Water [2005] IRLR 167. 52   Hardey v Russel & Aitken, 9 Jan 2003 (OH). 53   1988 SLT 361. The case was cited in argument but not discussed in the opinion given in McKie v Orr 2003 SC 317. 54   [1981] 1 QB 128 (CA). 55   Ibid, at 135, per Donaldson LJ. 56  Niall Whitty suggests to me that this interpretation is also supported by Scots authority: eg Newton v Fleming (1846) 8 D 677 at 694, per Lord Murray: “Injury according to Stair, Bankton, Erskine, and other writers on the law of Scotland, who in that respect adopt the language of the civil law, ‘is an offence maliciously committed to the reproach and grievance of another, whereby his fame, dignity or reputation is hurt’” (citing Bankton, Institute I,10, Section III on “Injury”; Justinian, Institutes IV,4, “De Iniuriis”; emphasis supplied). 57   2006 SLT 889 (OH). 58   Ibid, para 62.



a hi t c h hi k e r ’ s g u i d e

565

If it is accepted that breach of confidence does not, and cannot, provide all the answers to privacy questions, the great attraction of a generalised actio iniuriarum is that it can tackle invasions other than the publication of private information, such as those illustrated by Wainwright, Watkins, and Henderson, as well as the cases about stalking and surveillance. The actio iniuriarum also allows proper consideration of the kind of issues which so troubled the court in X v BBC, ie that in a privacy rather than a confidentiality matter, the public nature of the information concerned was of limited, or even no relevance. 12.6 USING STATUTES 12.6.1  Preliminary If the cases on the actio iniuriarum in Scotland, whether before or since the HRA, cannot yet be said to form a very solid platform of either principle or precedent for further development of the common law of Scotland relating to the protection of privacy, what alternative approaches exist to achieve the goal? Some help may be afforded by academic writing and the use of comparative law from cognate jurisdictions such as those represented in the present collection.59 But perhaps a still more persuasive approach for practitioners and courts will be to see how far the existing, apparently piecemeal, statutory protection of privacy can be taken, and what principles can be drawn from it to assist in the development of the common law, whether in a primary or, perhaps, subsidiary role. As Lord Diplock remarked many years ago in the House of Lords: “Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, developments of the common law in that part of the same field which has been left to it ought to proceed on a parallel rather than a diverging course.”60

So this section of the paper turns to privacy, or privacy-related, legislation (some of which has already been mentioned in passing on a number of occasions), in order to see, not only the extent to which it does in fact protect privacy, but also what indirect guidance can be gleaned from it for the future of the common law. This is to   Compare B Markesinis, C O’Cinneide, J Fedtke and M Hunter-Henin, “Concerns and ideas about the developing English law of privacy (and how knowledge of foreign law might be of help)” (2005) 52 AJCL 133. 60   Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 at 743C–D. 59

566

r i ght s of p e rs o n al i t y

adopt what Professor Jack Beatson (as he then was) has called the “analogical use of statute” to aid in the development of common law principles, that is, to consider statutory texts as a potential source for common law doctrine.61 In this approach, statute should be seen, not as damming the flow of the common law, but rather as diverting it into fresh courses and creating new possibilities for exploitation of existing resources more consonant with current legal policy and social need. Such a perspective is reinforced by the obligations upon courts, not only to uphold Convention rights in their decisionmaking generally, but also to interpret statutes as far as possible to be consistent with Convention rights, even when they were passed before 2 October 2000.62 We will take, in turn, the Protection from Harassment Act 1997, the Data Protection Act 1998, the Regulation of Investigatory Powers Acts of 2000, and the Copyright, Designs and Patents Act 1988.63 In Wainwright, Lord Hoffmann recognised that the 1997 and 1998 Acts were among “a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy considering their scope”.64 A slightly deeper analysis may enable us to assess his subsequent arguments   J Beatson “Has the common law a future?” (1997) 56 CLJ 291; J Beatson “The role of statute in the development of common law doctrine” (2001) 117 LQR 247. Beatson illustrates his approach with statutory examples of pre-contractual good faith and disclosure in “Public law influences in contract law”, in J Beatson and D Friedmann (eds), Good Faith and Fault in Contract Law (1995), Chap 10. For a previous general discussion of the topic, see P S Atiyah, “Common law and statute law” (1985) 48 MLR 1. 62  Human Rights Act 1998, s 3. See further J Beatson, “Common law, statute law and constitutional law” (2006) 27 Statute L Rev 1 at 11–14. 63  See all these Acts apart from the Copyright, Designs and Patents Act 1988 mentioned in Peck v United Kingdom (2003) 36 EHRR 41, para 46, as statutory protection of privacy in the UK. This article should not be taken, however, as suggesting that these are the only statutes potentially relevant to the protection of privacy. Indeed, some statutes may be relevant to the wider question of what might constitute affront going beyond the invasion of privacy for the purposes of the actio iniuriarum: see, eg, the criminal offences created by the Malicious Communications Act 1988 (which does not extend to Scotland) and the Communications Act 2003 (which does), discussed in DPP v Collins [2006] 1 WLR 2223 (HL). See also, for example, Land Reform (Scotland) Act 2003, s 6 (protecting persons’ privacy where they live, whether or not they also enjoy rights of ownership therein, against those using the Act’s “right to roam” on land), and the related provisions of the Scottish Outdoor Access Code 2004, paras 3.13–3.21. In the first case on these provisions, privacy prevailed over access: Gloag v Perth & Kinross Council 2007 SCLR 530 (Sheriff M J Fletcher). An opposite outcome was reached in the second and third cases, Snowie v Stirling Council 2008 SLT (Sh Ct) 61 and Ross v Stirling Council (accessible at http://www.scotcourts.gov.uk/opinions/ross.html), both decided on 23 April 2008 by Sheriff A M Cubie. 64   Wainwright [2004] 2 AC 406 at para 18. 61



a hi t c h hi k e r ’ s g u i d e

567

that privacy can only be effectively protected by specific and detailed legislation,65 and to suggest that (perhaps unwittingly) Parliament has in fact already granted several wide-ranging forms of protection for individual privacy. 12.6.2  Protection from Harassment Act 1997 (a)  Content and scope The Protection from Harassment Act 1997, which is divided into separate parts for Scotland and for England and Wales, in both jurisdictions gives every individual the right to be free from harassment by way of a course of conduct amounting to harassment, and either intended to do so or occurring in circumstances where a reasonable person would conclude that it did so.66 Conduct for these purposes includes speech, and harassment includes (ie is not limited to) causing the person alarm and distress.67 There is a right of civil action,68 and the remedies in Scotland include a sui generis “non-harassment order” as well as interdicts and damages.69 Damages may include a sum for any anxiety caused by the harassment and any resulting financial loss.70 The claim is treated as one for personal injuries under the Damages and Prescription and Limitation (Scotland) Acts.71 An employer may be vicariously liable for harassment by one of its employees.72 There are defences mainly intended for the benefit of (but not expressly confined to) the law enforcement agencies: that the course of conduct was authorised by law, or was pursued to prevent or detect crime, or was in the particular circumstances reasonable.73

  Wainwright [2004] 2 AC 406 at para 33.  Protection from Harassment Act 1997 (henceforth “PHA 1997”), s 8(1). 67  PHA 1997, s 8(3). 68  PHA 1997, s 8(2). The Court of Appeal has held that the test for civil liability is whether the gravity of the misconduct would give rise to criminal liability under s 1 of the Act: Conn v Sunderland City Council [2008] IRLR 324. Cf in Scotland Lord Eassie in Robertson v Scottish Ministers [2007] CSOH 186 at para 10. 69  PHA 1997, s 8(5). 70  PHA 1997, s 8(6). In Robertson v Scottish Ministers (above n 68) Lord Eassie held that damages could be awarded under the Act for both anxiety and distress and more serious psychiatric illness. 71  PHA 1997, ss 8(8) and 10. But it has been held in the Outer House that a harassment claim is not a personal injuries action for the purposes of Chap 43 of the Rules of Court: G v S 2006 SLT 795; Cunningham v Glasgow City Council [2008] CSOH 113. Chapter 43A deals with actions of harassment. 72   Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224; Conn v Sunderland City Council [2008] IRLR 324; Robertson v Scottish Ministers [2007] CSOH 186; see further S Middlemiss, “Liability of employers under the Protection from Harassment Act 1997” (2006) 10 Edin LR 307. 73  PHA 1997, s 8(4). 65

66

568

r i ght s of p e rs o n al i t y

Stalking cases such as Ward v Scotrail Railways Ltd,74 which concerned alleged sexual harassment of a woman by a male colleague at her workplace, would obviously now be dealt with under the 1997 Act. The legislation’s non-exhaustive definitions of harassment and recoverable loss leave plenty of room to go well beyond the “stalking” problem, however, as well as for judicial development of appropriate remedial responses. In CC v AB, for example, an e-mail and a phone call threatening public exposure of the claimant’s adulterous affair with the defendant’s wife led to the unopposed grant of an interim order under the Act, preventing the disclosure.75 The main limitation is the requirement of a “course of conduct”, although this “must involve conduct on at least two occasions”.76 On its facts, therefore, the Wainwright case did not involve harassment of the victims of the strip-searches. The Court of Appeal has held that the publication of a series of newspaper articles may amount to a harassing course of conduct under the Act;77 so, presumably, might repeated attempts to take photographs of an unwilling subject. (b)  Howlett v Holding The potential breadth of the protection, however, especially when its use is informed by Convention rights, is apparent from Howlett v Holding (No 4).78 There Eady J applied the Act to enjoin the defendant permanently from continuing various courses of conduct against the claimant: flying banners behind his aircraft over the area where the claimant lived, addressing her or referring to her in derogatory terms; dropping leaflets with similar content into the area from the plane; and carrying out, or threatening to carry out, secret surveillance of her to find out whether she was a “benefits cheat”. The claimant’s Art 8 rights strongly informed the judge’s interpretation of the 1997 Act: in particular, that the claimant was entitled to protection of her privacy in public places, and that this extended to her psychological as well as physical integrity. So there could be harassment by conduct of which the claimant was unaware,   1999 SC 255.   [2007] EMLR 11. See also, eg, Georgallides v Etzin [2005] EWHC 1790; Church of Jesus Christ of the Latter Day Saints v Price [2004] EWHC 3245; Potter v Price [2004] EWHC 781 (telephone messages and e-mails in pursuit of debts owed). 76  PHA 1997, s 8(3). In England and Wales the equivalent provision says that this rule applies where the conduct is directed at one person; but there may be also be a course of conduct by conduct on one occasion to each of two or more people (s 7(3), as amended by the Serious Organised Crime and Police Act 2005, s 125(7)(b)). For a claim failing because the conduct only happened once, see Banks v Ablex Ltd [2005] ICR 819. See also Conn v Sunderland City Council [2008] IRLR 324. 77   Thomas v Mirror Group Newspapers Ltd [2002] EMLR 4 (CA). 78   [2006] EWHC 41 (QB). 74

75



a hi t c h hi k e r ’ s g u i d e

569

such as secret surveillance or covert photography, provided that she was aware that it might be happening. Defences under the Act had to be interpreted to be proportionate in line with ECHR, Art 8(2), ie necessary in the interests of national security or economic wellbeing, public safety, crime or disorder prevention, protection of health and morals, and protection of the rights of others. The conduct of the defendant was not justified by the law enforcement defences in the 1997 Act; a right of surveillance for a private citizen had to have some rational basis, and “[h]ere there was none. It was merely carried out in the hope that something unlawful might be exposed”.79 The requirements of a fair trial might justify one party to a litigation keeping secret watch on the other for evidential purposes,80 but “here there was no on-going litigation in which Mr Holding was seeking to protect himself”.81 While the defendant was entitled to freedom of expression, he was a wealthy man victimising a woman of modest means and unprepared to accept the adverse outcomes of legal process, and his rights did not outweigh the other party’s claim to privacy. 12.6.3 Data Protection Act 1998 (a)  Content and scope The Data Protection Act 1998 is another instrument of considerable breadth in the protection of privacy, applicable throughout the United Kingdom and enforceable by way of civil action in the courts. The Act implements the European Parliament and Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data, the recitals to which make clear that a fundamental aim of the instrument is the protection of privacy in accordance with ECHR, Art 8.82 The Act deals with “personal data”, defined as: “data which relate to a living individual who can be identified— (a) from those data, or

  [2006] EWHC 41, para 33.  As in Martin v McGuiness 2003 SLT 1424. 81   [2006] EWHC 41 (QB), para 18. The judge continues: “He wanted to expose Mrs Howlett, if at all possible, as a benefits cheat. His excuse was that he was anticipating that she might sue him for libel, and that the evidence might come in useful in that event. To put it more bluntly, he was goading her into having to launch a third set of libel proceedings [Mrs Howlett had twice previously successfully sued Mr Holding for libel]. Effectively, therefore, . . . he was using the surveillance as a weapon of attack rather than by way of defending his own interests.” 82  See Recitals 2, 7, 9–11. 79

80

570

r i ght s of p e rs o n al i t y (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual . . .”83

This has been taken to cover data that affect the privacy of an individual whether in his personal or family life, business or professional capacity, but has otherwise been interpreted less widely than might at first appear from the statutory wording. Not all information retrieved from a computer or a manual filing system against an individual’s name or unique identifier is to be regarded as personal data; mere mention of the individual’s name in a document or file is not enough to make that document or file personal data. Among the tests to be applied are whether the data subject is the focus of attention in the material held (rather than another person or the data subject’s relationship with that person), and whether it is significantly biographical.84 (b)  The data protection principles The processing by a data controller of personal data must comply with eight data protection principles.85 Amongst these are the following: (1) Processing must be “fair and lawful”, in determining which regard is to be had to the method by which the data are obtained.86 In the J K Rowling case, the Court of Appeal pointed out that if at trial it were to be held that the claimant’s privacy rights should prevail over the defendant’s rights of free expression, it would follow that the latter’s processing of the claimant’s personal data was unlawful and, since the data subject had not consented to it, unfair.87 (2) Personal data are to be obtained only for one or more specified and lawful purposes and are not to be further processed in any manner incompatible with that purpose or purposes.88 Processing means, obtaining, recording, or holding information or data, or carrying out any operation on it: operation for these purposes, including retrieval, consultation, use, and disclosure by transmission, dissemination, or otherwise making  Data Protection Act 1998 (henceforth “DPA 1998”), s 1(1).   For the foregoing, see Durant v Financial Services Authority [2004] FSR 28 (CA). Note also Common Services Agency v Scottish Information Commissioner [2008] UKHL 47; [2008] 1 WLR 1550; 2008 SC 184 (HL) 85  DPA 1998, s 4(4). 86  DPA 1998, Sch 1, Pt I. 87   Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at para 62. 88  DPA 1998, Sch 1, Pt I, para 1. 83

84



a hi t c h hi k e r ’ s g u i d e

571

it available.89 This definition is not limited to computer, electronic or automatic processing. There must however be a system in place, under which, not just documents or files mentioning the data subject can be recovered, but files within which there can be easily located specific information about the data subject.90 (c)  Rights of the data subject Personal data must be processed in accordance with the rights of the data subjects under the Act,91 which include the right to prevent processing likely to cause damage or distress to the subject or another person which is or would be “unwarranted”.92 The Act thus distinguishes between “damage” and “distress” as events resulting from unlawful processing, although both trigger a right to compensation for individuals against data controllers.93 Damage is presumably mainly, if not entirely, about the victim’s patrimonial interests. In Johnson v Medical Defence Union Ltd, however, it was held at first instance that loss of professional reputation was not damage;94 and in the Court of Appeal it was said obiter that there was no compelling reason to find that the word “damage” had to go beyond its root meaning of pecuniary loss, nor did the Directive envisage that compensation must be available for every type of loss.95 A restitutionary damages approach, based on the market value of the data misused, was rejected at first instance in the J K Rowling case, because no proprietary or contractual right of the claimant was infringed; but the Court of Appeal said that it was “at least arguable that the judge . . . construed ‘damage’ too narrowly, having regard to the fact that the purpose of the Act was to enact the provisions of the relevant Directive”.96 Claims for distress can only be made by those who have also suffered damage, or if the data controller’s contravention relates to processing for “the special purposes”97 – that is, the purposes of journalism, or artistic or literary purposes.98

 DPA 1998, s 1(1). See Johnson v Medical Defence Union Ltd [2007] EWCA Civ 262. 90   Durant v Financial Services Authority [2004] FSR 28 (CA). 91  DPA 1998, Sch 1, Pt I, para 6 (the sixth data protection principle). 92  DPA 1998, s 10. 93  DPA 1998, s 13. 94   [2006] EWHC 321 (Ch). 95 [2007] EWCA Civ 262. See also Murray v Express Newspapers plc [2007] EMLR 22 at para 89. 96   Murray v Express Newspapers plc [2007] EMLR 22 at paras 90–92; Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at para 63. 97  DPA 1998, s 13(2). 98  DPA 1998, s 3. 89

572

r i ght s of p e rs o n al i t y

A defence of reasonable care is available to the data controller against such compensation claims.99 (d) Exemptions There are also many exemptions from the requirements of the Act.100 Most importantly in the context of privacy protection issues, there is an exemption for processing of personal data only for the special purposes (already listed above), if: • it was carried out with a view to the publication by any person of any journalistic, artistic or literary material; and • the data controller had a reasonable belief, with regard to the special importance of the public interest in freedom of expression, that publication would be in the public interest; and • the data controller had a reasonable belief that, in all the circumstances, compliance with the data protection principles would be incompatible with the special purposes.101 (e)  Sensitive personal data Finally, the Act deploys the concept of “sensitive personal data”, which goes beyond data from which a person is identifiable to cover information about the data subject’s racial or ethnic origin, political opinions, religious or similar beliefs, trade union membership, physical or mental health or condition, sexual life, commission or alleged commission of offences, and proceedings for any such offence, disposal of such proceedings or the sentence of any court in such proceedings.102 Before such data may be processed, at least one of a number of conditions must be met, including the data subject’s explicit consent to the processing, or that steps have already been deliberately taken by the data subject to make the information public.103 (f)  Applications The European Court of Human Rights noted in Peck v United Kingdom that “many users of CCTV will have to comply with the

 DPA 1998, s 13(3).  See generally Pt IV of the Act, covering such matters as in respect of national security, prevention or detection of crime, arrest and prosecution of offenders, assessment and collection of taxes, discharge of statutory functions, provision of health services, education and social work, regulatory activity, research, and purely domestic purposes. 101  DPA 1998, s 32. 102  DPA 1998, s 2. Peck (2003) 36 EHRR 41 provides an example of sensitive personal data. 103  DPA 1998, Sch 3, paras 1 and 5. 99

100



a hi t c h hi k e r ’ s g u i d e

573

provisions of the Data Protection Act 1998”.104 The Act was invoked in the Campbell case when it was on its way to the House of Lords; but unfortunately, despite a difference of view between Morland J and the Court of Appeal on the matter, the highest court did not address the question. Morland J held that the information about Campbell’s drug addiction and treatment, including the photographs, was “sensitive personal data”, and the Mirror newspaper a “data controller”, with none of the defences or exemptions under the Act availing it against a claim of unlawful processing. The Court of Appeal disagreed, holding the Mirror entitled to the public interest exemption in relation to journalistic publication. At first instance in Douglas v Hello!,105 Lindsay J held, perhaps surprisingly, that the wedding pictures were sensitive personal data, and, possibly less surprisingly, that Hello!, as a data controller, was not entitled to the benefit of the public interest defence. He awarded the Douglases nominal damages on this aspect of the case. The Act does not seem to have been discussed in the Court of Appeal; certainly there is only a glancing reference to it in the court’s judgment, while summarising Lindsay J’s findings.106 The House of Lords had no occasion to consider the matter either, since the rights of the Douglases were not in issue before them. At first instance in the J K Rowling case Patten J took the very wide view that the photograph of the claimant was sensitive personal data in so far as it indicated his racial or ethnic origins (this would make every photograph of an individual sensitive personal data); on the other hand, the judge acknowledged that “a photograph of an apparently healthy individual tells one nothing about his actual state of health”.107 X v BBC108 is worthy of consideration as a case to which the Data Protection Act 1998 might have been applied. The makers of the documentary held personal data about X; probably sensitive personal data, since they (the data) related to her physical or mental health or condition, her commission or alleged commission of offences, and the proceedings for any such offence, disposal of such proceedings or the sentence of any court in such proceedings. Her explicit written consent to the processing of the data had been obtained, as required under the first data protection principle in relation to sensitive personal data. But it seems clear that under s 10 of the Act, as a data subject she was entitled to withdraw her consent, since she had a right to prevent processing likely to cause unwarranted   (2003) 36 EHRR 41 at para 46.   [2003] 3 All ER 996. 106   [2006] QB 125 (CA) at para 25. 107   Murray v Express News papers plc [2007] EMLR 22 at para 80 (Patten J). 108   2005 SCLR 740. 104 105

574

r i ght s of p e rs o n al i t y

distress to her, a right not qualified by any previous consent that may have been given. If so, then it would be for the BBC to demonstrate that its proposed processing fell within the public interest exemption available for journalistic activity with personal data. The double “reasonable belief” test in that exemption – in the public interest in publication and in the incompatibility of compliance with the data protection principle with their journalistic purposes – would probably again involve consideration of the subject’s consent and the fact that the behaviour and the court proceedings were all in some sense in the public domain.109 (g)  Use of the Data Protection Act to develop the common law Finally, a case where the Data Protection Act concepts can be seen in use to develop the common law on the protection of personal information is Green Corns Ltd v Claverly Group Ltd.110 Tugendhat J granted an injunction to prevent a newspaper publishing the addresses of care homes for problem children with a history of involvement in sex offences and the intended locations of future such homes. In determining that the ECHR, Art 8 rights of the children in care were engaged and could be protected by the extended breach of confidence action, the judge commented as follows: “A useful indication of the sort of personal information that is regarded as sensitive can be found . . . in the Data Protection Act 1998, s 2 (although no reliance is placed upon that statute by the applicant in this case). ‘Sensitive information’ as defined in that section includes information as to a person’s physical or mental health or condition, sexual life, and the commission or alleged commission by him of any offence. The conjunction of information as to two or more of these matters, namely an individual’s address, the fact that that person is a child, and the fact that that child has a troubled history of mental health, sexual life and involvement in the commission of crime, will inevitably be regarded as a highly sensitive combination to which the court is very likely to accord some form of protection, subject to other considerations.”111

12.6.4  Regulation of Investigatory Powers Acts 2000 (a)  Scope The regulation of investigatory powers legislation is detailed and complex, but since it deals with interception of communications, the  I am indebted to Rebecca Wong, then tutor and doctoral student in the Department of Law at Sheffield University, for first suggesting this line of argument to me. 110   [2005] EMLR 31. 111   Ibid, paras 62–63. 109



a hi t c h hi k e r ’ s g u i d e

575

acquisition and disclosure of communications data, and surveillance, its relevance to privacy concerns is immediately apparent.112 Only the broadest brush strokes will be used for our purposes, with the focus on civil liability under the Acts.113 Public bodies such as the police, security services, and tax and social security authorities are those most obviously affected by the legislation; but the provisions are not expressly limited in this way, and seem to envisage – or at least not to prevent – the possibility of horizontal application between private parties as well. The Acts replace the Interception of Communications Act 1985, which itself was introduced after the cases of Malone v Metropolitan Police Commissioner114 and Francome v Mirror Group Newspapers115 had established that, while police wire-tapping of telephone conversations might not be unlawful despite lacking any legal authority, similar tapping of phone calls by a newspaper was unlawful and gave rise to a claim by the victim for breach of confidence. (b)  Content The main points about the regime of the 2000 Acts are as follows: (1) The sender, recipient or intended recipient of a communication made by means of a private telecommunications system has a right of action against interception of that communication, if made with the consent of the owner of the private system but otherwise without lawful authority and by way of either the private or the public telecommunications system.116 Lawful authority is constituted by (a) an interception warrant issued by the Secretary of State;117 or (b) the consent of the parties to the communication,118 or by the interception being the result of surveillance authorised under other provisions of the  The Regulation of Investigatory Powers Act 2000 (henceforth “RIPA 2000”) is a Westminster statute mostly applying throughout the UK; but the surveillance controls fall within devolved powers so are the subject of a separate Act passed by the Scottish Parliament: Regulation of Investigatory Powers (Scotland) Act 2000 (henceforth “RIPSA 2000”). So far as relevant here, its provisions are substantively identical with those in the relevant part (Pt II) of the Westminster Act. 113 Almost all the decided cases on the Acts are criminal ones. For a conspicuous example, see the conviction of News of the World journalists for intercepting the voicemails of several public figures, including members of the Royal family: BBC News Online, 29 November 2006, http://news.bbc.co.uk/1/hi/uk/6194988.stm. 114   [1979] Ch 344. 115   [1984] 1 WLR 892 (CA). 116  RIPA 2000, s 1(3); definitions in s 2. See, for a possible example of the situation, Halford v United Kingdom [1997] 24 EHRR 523. 117  RIPA 2000, s 5. 118  RIPA 2000, s 3(1). 112

576









r i ght s of p e rs o n al i t y

legislation (see below) together with the consent of one of the parties.119 (2) Acquisition of communications data other than by interception, and disclosure of such data, is lawful so long as it is authorised or required by an authorisation or notice granted or given under the provision.120 The legislation backhandedly recognises the possibility of civil liability by saying that there is no such liability in respect of conduct that is either incidental to authorised conduct, or is not itself conduct, an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.121 (3) Covert surveillance – that is, surveillance carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place122 – is declared lawful for all purposes provided there is authorisation under the legislation conferring an entitlement to engage in that conduct on the person whose conduct it is, and the conduct is compliant.123 Once again the possibility of civil liability is recognised in negative fashion in the legislation by saying that there is no such liability in respect of conduct that is either incidental to authorised conduct, or that is not itself conduct for which an authorisation or warrant can be granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.124 Three types of covert surveillance are defined: (a) directed, ie for a specific investigation or operation which is not an immediate response to events, and likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);125 private information includes any information about the person’s private or family life;126 (b) intrusive, ie taking place on any residential premises or in any private vehicle, and involving either the presence

 RIPA 2000, s 3(2).  RIPA 2000, s 21(2). 121  RIPA 2000, s 21(3). 122  RIPSA 2000, s 1(8)(a). 123  RIPSA 2000, s 5. 124  RIPSA 2000, s 5(2). 125  RIPSA 2000, s 1(2). 126  RIPSA 2000, s 1(9). 119

120





a hi t c h hi k e r ’ s g u i d e

577

of an individual on the premises or in the vehicle, or the use of a surveillance device;127 (c) covert use of human intelligence sources, ie establishing or maintaining a personal or other relationship with another person in order covertly to obtain information or to provide access to any information to another person, and disclose that information to another person.128

The first and third kinds of surveillance require authorisation by designated public authorities,129 but only chief constables are empowered to authorise intrusive surveillance.130 In all cases the authorisation must be both necessary for the prevention or detection of crime or public disorder, or for the maintenance of public safety, or in the interests of public health, and proportionate to what is sought to be achieved by the activity.131 (c)  Civil liability under RIPA? The legislation contains savings clauses saying that nothing in it makes unlawful engaging in conduct of the kind in question which is not otherwise unlawful under the statutes and would not be unlawful apart from the statutes.132 This contorted formulation leaves it somewhat unclear, to say the least, whether and to what extent the legislation affects the activities of private inquiry agencies such as those whose investigations were the subject of Martin v McGuiness,133 or of investigative journalists in all media, such as those at work in the Francome case in the 1980s. In Howlett v Holding, an argument was put forward suggesting that the Regulation of Investigatory Powers Acts might have a role in the protection of one individual’s privacy against surveillance by another private individual, summarised and dealt with thus by Eady J: “Miss Page raised a further argument based on the requirement that any encroachment on a citizen’s privacy rights contemplated RIPSA 2000, s 1(3)–(5). Note that the Chief Surveillance Commissioner reported in July 2006 that automatic number plate recognition (ANPR) cameras, used covertly by the police to catch stolen cars, untaxed and uninsured drivers, and vehicles suspected of use in crimes, needed authorisation as covert intrusive surveillance (Times, July 15 2006). Traffic, speed and CCTV cameras are not covert, and so do not fall under the RIPSA requirements. 128  RIPSA 2000, s 1(6) and (7). 129  RIPSA 2000, s 9. 130  RIPSA 2000, s 10. 131  RIPSA 2000, ss 6–8 and 10. 132  RIPA 2000, s 80; RIPSA 2000, s 30. 133   2003 SLT 1424. 127

578

r i ght s of p e rs o n al i t y in Article 8(2) would have to be ‘in accordance with the law’. Thus it is necessary to consider whether there were any legal constraints restricting surveillance outside the specific context of the [Protection from Harassment] Act [1997]. She drew my attention to Part II of the Regulation of Investigatory Powers Act 2000, and submitted that any surveillance, even by the law enforcement agencies, would have to be authorised in writing. Obviously Mr Holding could not point to any such authorisation, and he could hardly be in a stronger position by virtue of his amateur status. That is an attractive argument but, although I have found it persuasive, it is not essential to my determination of how s.1(3)(a) [of the 1997 Act] bears upon this case.”134

12.6.5  Copyright, Designs and Patents Act 1988 (as amended) (a)  Scope The last body of statutory law capable of use to protect individual privacy with which we will deal is copyright, currently governed by the Copyright, Designs and Patents Act 1988 as many times amended. Space does not permit a comprehensive analysis.135 It is important to remember that copyright is a property right protecting only persons who have produced relevant works – particularly literary, dramatic, musical and artistic ones, but also films and sound recordings, and that these works have to be recorded in some recognisable form before any right arises.136 So, for example, copyright can protect speech, but it is only if the speech is recorded (whether or not with the authority or permission of the speaker) and then reproduced in some form without permission that copyright becomes an available and useful form of protection.137 As against the mere eavesdropper, in other words, copyright has no particular utility.138 Further, a person only receives protection as the author or creator of a copyright work, or as someone who can trace title back to that person by way of assignations or transmissions.139 The latter category of persons seems unlikely to be able to seek protection of personal privacy through copyright unless perhaps they are successors through inheritance from the original author.   [2006] EWHC 41 (QB) at para 34.  See further David Vaver’s contribution to the present collection (Chapter 8). 136   Copyright, Designs and Patents Act 1988 (henceforth “CDPA 1988”), ss 1 and 3–5B. 137   CDPA 1988, s 3. 138  See further H L MacQueen, “‘My tongue is mine ain’: copyright, the spoken word and privacy” (2005) 68 MLR 349. 139   CDPA 1988, ss 9–11 and 90–93. 134 135



a hi t c h hi k e r ’ s g u i d e

579

(b)  Protection of unpublished work In relation to individual privacy, copyright is at its most important with regard to unpublished works; British copyright law has not yet stretched so far as to allow the copyright owner to recall or withdraw published works.140 Unpublished material may neither be copied or, more importantly for privacy purposes, made available or communicated to the public, or performed in public, or broadcast, or adapted, without the permission of the copyright owner.141 Even if the owner intends to publish in due course, he or she is allowed to choose the moment to do so, and can prevent premature or early publication by unauthorised others.142 In one mid-19th-century Scottish case, it was held that a person who had submitted a letter to a newspaper editor for publication was entitled to withdraw the communication before its publication in the paper.143 (c)  Anonymity, pseudonymity and attribution Another important way in which copyright supports privacy is its recognition that anonymous and pseudonymous works enjoy copyright as much as those whose authorship is fully proclaimed in the work; albeit that if the anonymous or pseudonymous author places his or her identity beyond recovery through reasonable inquiry, the term of copyright, to say nothing of any potential for revenue earning, is certainly reduced.144 The increasingly important (and inalienable) moral rights of attribution and integrity are also capable of supporting privacy interests;145 while there is explicit recognition

  Contrast, eg, French law, especially the famous case of Eden v Whistler DP 1900, I 497, where the well-known artist was allowed to refuse to deliver a portrait to its commissioner, despite previously exhibiting it himself. The court’s permission was conditional, however, on Whistler repaying his fee and undertaking not to exhibit the painting again. 141   CDPA 1988, ss 16–21. 142   For recent examples, see Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134 (photograph of film); Ashdown v Telegraph Group Ltd [2001] Ch 685 (Ashdown memoirs). The case of Times Newspapers v Mirror Group Newspapers Ltd [1993] EMLR 442, in which a newspaper was refused an injunction to prevent a competitor from publishing unauthorised extracts from Mrs Thatcher’s diaries which the plaintiff was planning to publish in serial form, was argued under the law of confidential information rather than copyright. 143   Davis v Miller (1855) 17 D 1166 (kindly drawn to my attention by David Vaver). For further background, showing that the case began as a defamation action, see (1855) 17 D 1050. The defender editor of The Witness newspaper was the wellknown literary figure, Hugh Miller (1802–56), for whom see the life in the Oxford Dictionary of National Biography. 144   For the relevant provisions see CDPA 1988, ss 9(4), (5), 12(3), (4), 13B(3)–(5) and 57. 145   CDPA 1988, ss 77–83. 140

580

r i ght s of p e rs o n al i t y

of a right to privacy for commissioners of photographs and films who may prevent copies of the works being issued or communicated to the public, or exhibited or shown in public.146 A person’s right to prevent the false attribution of a work to him or her, which is infringed only by public activity making the attribution, can also be regarded as protecting a significant aspect of personal privacy.147 (d)  Fair dealing and public interest defences There are defences to claims of copyright infringement which may be of relevance in privacy cases. Fair dealing for purposes of criticism and review was raised by the Mail on Sunday in the Prince of Wales case. The defence failed on the basis that the work being criticised or reviewed (the Prince’s journal) was not published, and so a precondition for its use was not met.148 There are also fair dealing defences in respect of private study, non-commercial research, and reporting current events (in the final example, except for photographs, which may be a particularly important point in the defence of privacy).149 A defence of public interest has been recognised in copyright cases, including the Prince of Wales decision, but its current scope is uncertain.150 In the Prince of Wales case, the use of copyright to defend privacy was challenged as an abuse of copyright, quoting the view of Professor Eric Barendt: “It is surely wrong to allow a copyright action to succeed, when it acts as a surrogate for a privacy claim which would, rightly or wrongly, almost certainly fail.”151 Blackburne J, rightly, it is submitted, rejected the argument. The court would not countenance reliance on copyright to prevent disclosure of wrongdoing – but this was the public interest defence. Copyright was essentially a negative right to prevent others doing things, not a positive right requiring the owner to do something.   CDPA 1988, s 85. The right was recognised at common law in England and Scotland: Pollard v Photographic Co (1888) 40 ChD 345; McCosh v Crow & Co (1903) 5 F 670. 147   CDPA 1988, s 84. 148   [2006] EWHC 522 (Ch, Blackburne J); affd [2008] Ch 57 (CA). For the criticism/ review fair dealing defence, see CDPA 1988, s 30(1) and (1A). 149   CDPA 1988, ss 29 and 30. 150   CDPA 1988, s 171(3). See further R Burrell and A Coleman, Copyright Exceptions: The Digital Impact (Cambridge, 2005), Chapter 3; and HRH The Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch, Blackburne  J); affirmed [2008] Ch 57 (CA). 151  E Barendt, Freedom of Speech (2nd edn, 2005), p 262 (citing Service Corporation International plc v Channel Four Television Corporation [1999] EMLR 83, in which Lightman J refused to grant an interim injunction to restrain the broadcasting of a film indicating that the claimant engaged in malpractice in the conduct of one of its funeral homes). 146



a hi t c h hi k e r ’ s g u i d e

581

“There is no scope for arguing . . . that the court will only entertain a copyright action if the claimant can demonstrate an intention to publish his work or otherwise exploit it for some commercial purpose. . . . The right is not conditional, even inferentially let alone expressly, on an intention to exploit the copyright work commercially. Copyright is a property right. . . . [A] copyright owner does not have to justify the assertion of his copyright. The fact alone that the copyright owner may have no present intention of exploiting his property right does not justify another in expropriating that right for himself for free. The fact, if fact it be, that the copyright owner asserts his copyright in a work does not appear to me to be any kind of abuse of his ownership right.”152

12.6.6  Overview Legislation in the United Kingdom provides a variety of forms of protection for privacy, the full potential of which has scarcely been explored in civil litigation, although it might well have been in some of the more recent cases. It is hard to see with some statutes, notably the Protection from Harassment and Data Protection Acts, how they can be described as specific and closely defined mechanisms for the defence of privacy. There is little here in truth to support Lord Hoffmann’s contention that the “broad brush” of common law principle is inappropriate for the privacy context; indeed the Regulation of Investigatory Powers Acts seem to depend on the development of the common law for their horizontal effect to become clear. The Westminster Parliament has established regimes which cumulatively have the effect that attacks upon individual peace of mind and seclusion, the collection and processing by others of personal information, and the unauthorised publication of private creations, are unlawful in a wide range of circumstances.153 But despite the breadth of the statutes that have been considered, the coverage is still incomplete. As Patten J remarked in the JK Rowling case, “as a matter of principle, harassment ought at best to be regarded as an aggravating feature in any proper scheme for invasion 152   [2006] EWHC 522 (Ch, Blackburne J) at para 183. Note, of course, that competition law may have something to say about refusal to license; but generally only where the copyright owner is exploiting the right commercially and effecting a monopoly, ie abusing a dominant position. 153   Compare the taxonomy of privacy interests proposed in D J Solove “A taxonomy of privacy” (2006) 154 Pennsylvania LR 477 (information collection, information processing, information dissemination, invasion), and the categorisation assessed by R Mulheron “A potential framework for privacy? A reply to Hello!” (2006) 69 MLR 679 at 696–712 (territorial, personal, informational).

582

r i ght s of p e rs o n al i t y

of privacy but not as the determinant of whether such a right exists”.154 There are obvious gaps: intrusions which are not courses of conduct under the Harassment Act, for example, or activities not amounting to processing under the Data Protection Act, or dissemination of information in a way that is not infringement of works protected by the Copyright Act. Room is left, in other words, for the common law. In the Wainwright case, Lord Hoffmann remarked of the Protection from Harassment Act that “[t]he requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution”.155 This of course represents the classical view of statute as restrictive of the common law, precisely the converse of the approach advocated by Jack Beatson and made necessary by the domestication of Convention rights. The common law should instead develop in at least a subsidiary role, picking up the protection of privacy where statute falls silent or reaches its self-imposed limits; it could also take upon itself the creation of principles, binding together the various ways in which the right to privacy is recognised, and enabling itself to meet new challenges to that right. Conversely, as the Green Corns case illustrates, statute law can be of use in helping to give specificity and content to broad principles and concepts already found in the common law. The Acts also point up fairly consistently what will be justified breaches of privacy (eg for the prevention and detection of crime), and tend to provide, with varying degrees of exactitude, for public interest defences, especially with regard to journalism, news reporting, and the freedom of the press. Finally, the Data and Harassment Acts provide for compensatory remedies extending beyond the distress of the individual into his or her other, presumably patrimonial interests. 12.7  CONCLUSIONS 12.7.1  Issues still to be addressed: (a) basis of liability If Scots lawyers are to respond, by way of an extended breach of confidence action along with a generalised or modernised actio iniuriarum, to the pressure to protect privacy coming from the Council of Europe and the European Court of Human Rights, with development of both aspects of the common law being informed by existing statutory provision in the manner suggested in the preceding section of this paper, a number of issues must still be addressed. For   Murray v Express Newspapers plc [2007] EMLR 22 at para 46.   Wainwright [2004] 2 AC 406 at para 46.

154 155



a hi t c h hi k e r ’ s g u i d e

583

example, what is to be the basis of liability – intention or malice, or negligence; or is liability to be strict? Statute may again be of assistance in pointing up the guiding policy. The Protection from Harassment Act establishes liability on the twin bases of intention and objective reasonableness in the circumstances, while the Data Protection Act appears to provide for strict liability, tempered in some circumstances by defences of reasonable care and the like. The starting point in the human right to privacy may suggest that the approach should be a victim-oriented one like that in the Data Protection Act. As Elspeth Reid points out in her contribution to this book, if intention or malice were required by Scots law, Mr Peck would have had no remedy against the misuse of the CCTV images of his time of distress; those who infringe privacy often have quite other motivations than intention to harm the victim. But the defender’s intention or malice, and perhaps negligence as well, are nonetheless potentially relevant factors in weighing the balance between parties, for example when the intrusion takes place in purported pursuit of some official function such as a police investigation.156 12.7.2  Issues still to be addressed: (b) forms of affront Again, what forms of affront will be recognised as worthy of protection? In Campbell, the House of Lords recognised that “the law of privacy is not intended for the protection of the unduly sensitive”,157 but held that the right arose where there was a reasonable expectation of privacy.158 The majority was against the minority view that, since the photographs in the case were not in themselves depictions of the subject in an embarrassing or undignified state, no wrong had been committed. What mattered was that the newspaper must have acquired its information through betrayal by a fellow-patient of Narcotics Anonymous or a member of Campbell’s entourage. Different views were expressed on whether to be actionable an invasion of privacy had to be “highly offensive”.159 In McKennitt v 156  See Section 3.4.1. For examples, see Robertson v Keith 1936 SC 29 and McKie v Orr 2003 SC 317, and consider also Howlett v Holding [2006] EWHC 41 (QB). 157   [2004] 2 AC 457, per Lord Hope of Craighead at para 94. 158  See further in defence of this approach N A Moreham, “Privacy in the common law: a doctrinal and theoretical analysis” (2005) 121 LQR 628. Mulheron (above, n 153) takes a different view (at 703), and so, it seems, does Lord Walker of Gestingthorpe in OBG v Allan; Douglas v Hello! [2008] 1 AC 1 at para 293 (but cf the same judge at para 288). 159  The test proposed by Gleeson CJ in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 (HCA) following the US Restatement of Torts (2d), Art 652D (1977), and adopted by the New Zealand Court of Appeal in its new common law right of privacy in Hosking v Runting [2005] 1 NZLR 1.

584

r i ght s of p e rs o n al i t y

Ash Eady J held that the anodyne or trivial nature of the information was generally not material in assessing whether or not the subject of the information had a reasonable expectation of privacy about it, but was rather relevant to weighing the importance of protecting it against the competing interest in freedom of expression.160 This approach was developed further by the Court of Appeal in the J K Rowling case, where it was also suggested that the offensiveness of the invasion of privacy was relevant, not to determining whether or not a right to privacy arose, but rather in any balancing of that right against the right of free expression.161 In the Prince of Wales case, the Hong Kong journal related to public rather than private events; but it was a handwritten document not intended for public scrutiny, and it was kept in conditions meaning that the Prince’s expectation of privacy was indeed reasonable in relation to its contents. The journal was however published with laudatory comment by the defendant newspaper: the Prince was hailed as “highly perceptive”, “one of the greatest chroniclers of our times”, “a literary figure of stature”, and “a wise man truly fit to be our King”, with a “sensitive grasp of Sino–British relations”.162 These high praises were discussed, however, not in the context of the confidence claim, but in the copyright one, as part of the newspaper’s unsuccessful defence that its efforts constituted fair dealing for the purposes of criticism and review.163 Blackburne J accepted, however, that the comments might have amounted to criticism or review had the journal not been unpublished. In so far as “affront” (or even “offensiveness”) might have been required in a full-out privacy law, presumably it could have lain both in the newspaper’s support of the Prince’s betrayal by a former member of his staff, and its decision to publish knowing that the Prince was opposed to that action. A final point arising from the J K Rowling case in particular is the relevance of the capacity of the victim to feel “affront” at the particular intrusion complained of. An 18-month-old child could feel no distress as a result of the taking or the publication of the photographs. Should this mean that there can be no claim in such cases? Or is affront an objective concept founded, not on what the victim subjectively feels, but upon a legal criterion of what conduct   [2006] EMLR 10 (QB, Eady J) at paras 58 and 67; approach approved by the Court of Appeal, para 12, and also cited with approval by Lord Walker of Gestingthorpe in OBG v Allan; Douglas v Hello! [2008] 1 AC 1 at para 291 (see also para 292). Note also Lord Walker’s comments in M v Secretary of State for Work and Pensions [2006] 2 AC 91 at para 83. 161   Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at paras 21–40. 162  This last is startling in view of the reference in the Hong Kong journal to the entourage of the Chinese President as a “group of appalling old waxworks”. 163  See above, text accompanying n 148. 160



a hi t c h hi k e r ’ s g u i d e

585

is consistent with the individual’s human dignity and human rights? The point is significant not only for children but also for others lacking capacity, or lying comatose, or suffering from senility or other conditions beyond individual control. In the J K Rowling case Patten J and the Court of Appeal concluded that the approach in the case of a child could take account of the parents’ reasonable wishes and expectations and the way in which they conducted his upbringing.164 12.7.3  Issues still to be addressed: (c) defences A generally victim-oriented approach must however be balanced by the defences or justifications to be available to the alleged invader of privacy. The Scottish cases already give some pointers: for example, lawful authority (such as might be provided now under the Regulation of Investigatory Powers Acts) and absence of malice where that authority existed,165 the victim’s consent to the intrusion,166 and the defender’s competing human right, under ECHR, Art 6, to a fair trial.167 As already noted, Art 8 contains its own limitations in its second paragraph.168 The Convention right to freedom of expression has been constantly referred to by the defendants in many of the recent major English cases discussed in this chapter, and the theme running throughout the relevant judgments is the need to find the balance between the competing rights, using concepts such as proportionality to that end. If so far privacy has generally seemed to trump expression, it does not follow that this will always be the result.169 It may be that some of the defences already found in the law of confidence and of defamation could be translated into the context of privacy without undue difficulty. Perhaps the most significant – certainly from the point of view of the media – would be the public interest defence. This is reinforced by its consistent recognition in the legislative protection of privacy, albeit that the legislature rarely makes the substance of the public interest much

164   Murray v Express Newspapers plc [2007] EMLR 22 at para 23; Murray v Big Pictures (UK) Ltd at paras 50 and 55. A different approach was taken in Hosking v Runting [2005] 1 NZLR 1 which may dwell too much on the “offensiveness” of the publication as distinct from whether there is a reasonable expectation of privacy. 165  See Robertson v Keith 1936 SC 29. Note also in England Wood v Metropolitan Police Commissioner [2008] EWHC 1105 (Admin). 166   X v BBC 2005 SCLR 740. 167   Martin v McGuiness 2003 SLT 1424. 168  See above, text following n 38. 169  See, eg, Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB).

586

r i ght s of p e rs o n al i t y

clearer than the judiciary.170 Another kind of defence, perhaps to be characterised as “fair comment”,171 may be exemplified by the older Scots case of Murray v Beaverbrook Newspapers,172 in which a newspaper revealed details of the motoring offence conviction of a sheriff who had published a letter in another newspaper advocating heavier penalties for motoring offences. As T B Smith noted, “the learned sheriff, having deliberately entered the arena of controversy and having attracted publicity to himself, could scarcely justify his demand for immunity from comment, even if of dubious taste”.173 12.7.4  Issues still to be addressed: (d) remedies On remedies, the Scottish case law to date shows an emphasis on interdict and damages, with the latter measured typically as solatium for injured feelings.174 But there is as yet no clearly stated limitation of damages to that head; nor has the possibility been excluded of a financial remedy linked to the profits made by the invader of privacy.175 In so far as the Protection from Harassment and Data Protection Acts do not limit damages recovery to compensation for distress, they provide indicators that the common law should provide a flexible remedial response as well.176 Avoiding limitation of compensation to the protection of non-patrimonial interests will at least leave open the possibility of publicity as well as privacy rights.177

170  See also on public interest Mosley v News Group Newspapers Ltd (No 2) [2008] EMLR 20 at paras 110–171 (Eady J), holding that the question is to be determined solely by the court ex post facto, not the reasonable judgement of the journalist deciding whether or not to publish. 171   Following the law of defamation: Laws of Scotland: Stair Memorial Encyclopaedia, vol 15, paras 539–45. 172   18 June 1957, Second Division Court of Session, unreported; described in Smith, Short Commentary, 655. 173   Ibid, 655–656. 174  See, eg, Ward v Scotrail Railways Ltd 1999 SC 255 at 259; Hardey v Russel & Aitken (OH) 9 Jan 2003 at para 12. 175  Note that in the breach of confidence case, Levin v Caledonian Produce (Holdings) Ltd 1975 SLT (Notes) 69, Lord Robertson overcame doubts as to the relevancy of a claim in recompense and allowed a proof before answer. The denial by Patten J of a claim for restitutionary damages under the Data Protection Act 1998 in Murray v Express Newspapers plc [2007] EMLR 22 seems to be doubted by the Court of Appeal in Murray v Big Pictures (UK) Ltd [2008] EMLR 12 at para 63. 176   For English awards of damages, see now Mosley v News Group Newspapers Ltd (No 2) [2008] EMLR 20 at paras 212–231 (Eady J). 177 See further Elspeth Reid’s contribution to the present collection, in Section 3.4.2.



a hi t c h hi k e r ’ s g u i d e

587

There seems no need, however, to follow the Data Protection Act in limiting the availability of distress claims to cases where either a damages claim is made or the disclosure was made for literary, artistic or journalistic purposes. In Watkins v Home Office178 Lord Hope and Lord Rodger stated that the affronted prisoner would also be denied a compensatory remedy in the Scottish courts because exemplary damages are not recognised in Scots law.179 The observations about exemplary damages as such are correct, but are they relevant, if a remedy would be provided in the Watkins situation by way of the actio iniuriarum or its modern equivalent in Scots law? Since generally a pursuer in delict is not limited to damages for patrimonial loss, and there can be compensation for non-patrimonial loss, Mr Watkins should recover, not exemplary damages, but an award reflecting the injury to his feelings caused by the affront, ie compensation for the loss actually suffered, if any. This would be just an example of solatium, in other words.180 12.7.5  Closing remarks The argument of this chapter is that the Scottish courts can fashion from available material a structure of principle and remedy by which the Convention right to privacy may be protected in a modern and not excessively restrictive way. The developing English case law extending breach of confidence can be brought into play alongside the actio iniuriarum so long as the underlying principles rather than the local and historic details of each are brought into the foreground of thinking, along with an awareness of the direction of contemporary legal policy apparent from both the jurisprudence of the European Court of Human Rights and the law-making activities (as distinct from the rhetoric) of government and legislature. But it does not seem yet to be necessary – if indeed it is possible for courts – to locate the protection of privacy within a still broader concept of personality rights. Juristic and comparative reflection upon the obvious relationships between a privacy law and such other topics as defamation and liability for the distress caused by the post mortem removal and retention of organs from human bodies may, however, eventually take us down that attractive if still somewhat uncertain path. To return at the last to The Hitchhiker’s   [2004] 2 AC 406.   Ibid, paras 30–31 (Lord Hope) and 64 (Lord Rodger). 180   Further on exemplary damages for invasion of privacy in English law, see Mosley v News Group Newspapers Ltd (No 2) [2008] EMLR 20 at paras 172–211 (Eady J). 178

179

588

r i ght s of p e rs o n al i t y

Guide to the Galaxy, we are probably almost through the How and Why phases of legal development and beginning to reach out to the Where.181

 See Chap 35: “The history of every major galactic civilisation tends to pass through three distinct and recognisable phases, those of Survival, Enquiry, and Sophistication, otherwise known as the How, Why, and Where phases. For instance, the first phase is characterised by the question How can we eat?, the second by the question Why do we eat?, and the third by the question Where shall we have lunch?”. 181



i nde x

589

  index References are  to page number.

Abduction children, 67 spouse, 69 Abortion right to life, 166 Abuse of process right to honour and reputation, 171 Act anent Wrongous Imprisonment 1701 see Wrongous imprisonment Actio iniuriarum see also Iniuria assessment of approach, 17–18 criticism of approach, 16–17 distorted meaning, 158–159 medical law, 473–479 modernisation, 15–16 paramours’ liability, 124 privacy, 563–565 secrets, 72–73 South Africa future developments, 377–381 generally, 351–354 judicial precedent, 363 Roman origins, 350–351 Scots law compared, 303–307 Active transmissibility of claims see Transmissibility of claims Ad factum praestandum, orders remedies, 236 Administrative justice South Africa, 369–376 Adultery history of personality rights, 69–70 rights in family relationships, 202 Affront assault, 252–253 history of verbal injury, 81–82 meaning, 162–163

Affront (cont.) privacy, 583–585 solatium, 237–240, 241 Aggravated assault history, 106–108 AHRC Research Centre for Studies in Intellectual Property and Technology Law see also Comparative Personality Research Survey personality database, 487, 488 Amende honorable see Palinode Anonymous and pseudonymous works privacy, 579–580 Antenatal injury assault, 168 right to life, 166 Apologies see Palinode Appropriation of image see Name and image rights Aquilian liability see also Bodily integrity; History of personality rights (Scotland) categories of liability, 46 iniuria distinguished, 37, 39, 86–87 mutilation, 48–49 verbal injury, 155 Argentina American Convention of Human Rights, 496–497 civil code, 492 constitutional legislation, 494 inalienability of personality rights, 505 merchandising, 535 portrait rights, 526–527 post mortem protection of rights, 512

589

590

r i ght s of p e rs o n al i t y

Arrest introduction, 258 private parties, 262 reasonable justification, 259–260 with warrant, 258–259 without justification, 260–261 Artistic works copyright names forming part of works, 418 signatures, 418–419 works relating to persons, 489 Artists copyright, 418–419 trade marks, 426–430 Assault see also Bodily integrity actual assault, 252 affront, 252–253 battery, 251–252 bodily integrity, right to, 167–169 criminal liability, 251 emotional distress inflicted independently of other wrong, 256–257 generally, 251–252 gestures, 252–253 harassment, 253 history aggravated assault, 106–108 assault as nominate delict, 104–109 late 18th century position, 102–103 mental element, 109–110 real injury, 108–109 remedies, 135–137 16th to mid-18th century, 52–54 indirect assault, 254–255 notional assault, 252–253 silence, 253 spitting, 254 threatening behaviour, 252–253 Assignability of claims see Transmissibility of claims Assignees of name/image rights title to sue, 285–286 Asylum-seekers South Africa, 376 Attribution right moral rights, 410, 579 Australia breach of confidence, 514–515 merchandising, 537 misleading or deceptive trade practices, 497

Australia (cont.) passing off, 516–517 portrait rights, 531 sources of law, 494–496 Autographs copyright, 418–419 Autonomy meaning, 160–161 right to autonomy, 201–202 Band names trade marks, 426 Bankruptcy transmissibility of claims, 227–230 Battery generally, 251–252 Besetting history of personality rights, 51 Bigamous marriage, entrapment into right to dignity, 172 Blooding history of personality rights, 47 Bloodwite history of personality rights, 49 Bodily integrity see also Assault; Deprivation of liberty; Wrongful detention; Wrongous imprisonment acts threatening bodily injury, 78 mid-18th to mid-19th century aggravated assault, 106–108 assault as nominate delict, 104–109 late 18th century position, 102–103 mental element, 109–110 real injury, 108–109 remedies, 135–137 overview, 167–169 privacy of the person, 301–303 16th to mid-18th century Aquilian liability, 48–49 assault, 52–54 demembration, 47–48 generally, 46–47 ius commune background, 51–52 mechanism, 50 molestation, 55–56 mutilation, 47–49 place of iniuria, 51 riot, 54–55 status of injured party, 50–51 sub-categories, 47–49 Bodily organs, wrongful removal/ retention of actio iniuriarum, 564



i nde x

Bodily organs, wrongful removal/ retention of (cont.) medical law, 474–478 post mortem personality rights, 204 real injury, 79–80 Body decoration copyright, 417 Books Comparative Personality Research Survey, 489 Breach of confidence Australia, 514–515 breach of commercial confidence, 189–191, 398–400 Campell v Mirror Group Newspapers, 553–554 Canada, 514–515 CC v AB, 557–558 Comparative Personality Research  Survey exclusive licensees’ rights, 519–521 generally, 514–516 confidential information, 393–394 confidential relationships abandonment of requirement in English law, 290–294 obligation of confidentiality, 289–290 requirement in Scots law, 294–295 crime prevention, 560 dignitary conception of personality, 394–397 Douglas v Hello!, 555 exclusive licensees’ rights, 519–521 freedom of expression, 393, 560 generally, 393–394 history, 71–75 innocent third-party recipients of information, 295–298 introduction, 287–289 J K Rowling case, 558 limitations, 561–563 Max Mosley case, 558–559 McKennitt v Ash, 555–556 Peck v UK, 554–555 Prince of Wales v Associated Newspapers, 556–557 privacy of information breach of commercial confidence, 189–191 development of law, 183–189 public domain information, 395–397 right to respect for private and family life, 394–397

591

Breach of confidence (cont.) Wainwright v Home Office, 561, 562–563 Watkins v Home Office, 561–563 X v BBC, 559–560 Breach of promise of marriage rights in family relationships, 202 Business interests verbal injury, 267 Canada breach of confidence, 514–515 Charter of Rights and Freedoms, 496 merchandising, 537–538 misappropriation of personality, 518–519 portrait rights, 531–532 Quebec Charter on Human Rights and Freedoms, 496 civil code, 493 inalienability of personality rights, 505 jurisdiction type, 490 merchandising, 539–540 name/image rights, 503–504 portrait rights, 532–533 sources of law, 494–496 CCTV breach of confidence, 554–555 data protection, 572–573 Chastity, infringement of moral sexual relations, 65–67 Children abduction, 67 affront, 584–585 breach of confidence, 514–516, 558 right to life of unborn children, 166 Church seats and lofts real injury, 79 Citizen’s arrest wrongful detention, 262 Civil claim enforcement deprivation of liberty, 122–123 Civil law systems see also specific jurisdictions classification of personality/publicity rights, 522–523 common law systems compared attitudes to generalised rights, 497–498 degrees of protection, 498 extension of common law, 498–499

592

r i ght s of p e rs o n al i t y

Civil law systems (cont.) commonalities and differences dignitarian interests, 543–546 legal structure, 542–543 patrimonial interests, 546–547 consent for exploitation of personality rights, 505–508 exclusive licences of personality rights, 509–511 generally, 503–504 inalienability of personality rights, 504–505 jurisdictions covered, 490 non-exclusive licences of personality rights, 505–508 post mortem protection of rights, 511–512 transmissibility of claims, 511–512 Classification of personality rights generally, 163–165 Codification development of law, 25–26 Collectible cards Comparative Personality Research Survey, 489 Commercial information breach of commercial confidence, 189–191, 398–400 Commissioned works copyright, 420–421 privacy right in commissioned photographs/films, 580 Common law systems see also specific jurisdictions breach of confidence exclusive licensees’ rights, 519–521 generally, 514–516 civil law systems compared attitudes to generalised rights, 497–498 degrees of protection, 498 extension of common law, 498–499 classification of personality/publicity rights, 522–523 commonalities and differences dignitarian interests, 543–546 legal structure, 542–543 patrimonial interests, 546–547 jurisdictions covered, 490 misappropriation of personality, 518–519 passing off, 516–518 sources of law, 494–496 specific wrongs, 512–514

Common name cases defamation, 440, 448 Companies personality rights of, 165 Comparative Personality Research Survey Argentina American Convention of Human Rights, 496–497 civil code, 492 constitutional legislation, 494 inalienability of personality rights, 505 merchandising, 535 portrait rights, 526–527 post mortem protection of rights, 512 artistic works relating to persons, 489 Australia breach of confidence, 514–515 merchandising, 537 misleading or deceptive trade practices, 497 passing off, 516–517 portrait rights, 531 sources of law, 494–496 Canada breach of confidence, 514–515 Charter of Rights and Freedoms, 496 merchandising, 537–538 misappropriation of personality, 518–519 portrait rights, 531–532 sources of law, 494–496 case studies jurisdictions covered, 488, 490 legal questions, 488–489 purpose, 490–491 case study returns introduction, 526 merchandising, 534–542 portrait rights, 526–534 civil law systems see also specific jurisdictions classification of personality/publicity rights, 522–523 common law systems compared, 497–499 consent for exploitation of personality rights, 505–508 exclusive licences of personality rights, 509–511 generally, 503–504 inalienability of personality rights, 504–505



i nde x

Comparative Personality Research Survey (cont.) civil law systems (cont.) jurisdictions covered, 490 non-exclusive licences of personality rights, 505–508 post mortem protection of rights, 511–512 transmissibility of claims, 511–512 civil law/common law systems   compared attitudes to generalised rights, 497–498 degrees of protection, 498 extension of common law, 498–499 classification of personality/publicity rights, 522–523 common law systems see also specific jurisdictions breach of confidence, 514–516 breach of confidence (exclusive licensees’ rights), 519–521 civil law systems compared, 497–499 classification of personality/publicity rights, 522–523 jurisdictions covered, 490 misappropriation of personality, 518–519 passing off, 516–518 sources of law, 494–496 specific wrongs, 512–514 commonalities and differences dignitarian interests, 543–546 legal structure, 542–543 patrimonial interests, 546–547 consent for exploitation of personality   rights bare consent as defence, 506 consent as limited waiver, 506–507 exclusive licences, 509–511 imprescriptibility of rights, 506 introduction, 505 restrictive construction of consent, 507 revocability of consent, 508 specificity of consent, 507 contributors, 491 damages, 525 endorsement, 489 England and Wales breach of confidence, 514–516 breach of confidence (exclusive licensees’ rights), 519–521 merchandising, 538–539

593

Comparative Personality Research Survey (cont.) England and Wales (cont.) passing off, 517–518 sources of law, 494–496 France civil code, 492 European Convention on Human Rights, 496 exclusive licences of personality rights, 510 merchandising, 535–536 portrait rights, 527 post mortem protection of rights, 511 freedom of expression, balancing privacy with, 524–525 future research, 547–548 Germany civil code, 492 constitutional legislation, 494 European Convention on Human Rights, 496 exclusive licences of personality rights, 509–510 merchandising, 536 monistic nature of personality right, 502–503 portrait rights, 527–528 post mortem protection of rights, 511–512 inalienability of personality rights, 504–505 injunctions, 525 introduction, 487 Italy civil code, 492–493 constitutional legislation, 494 European Convention on Human Rights, 496 inalienability of personality rights, 505 merchandising, 536 portrait rights, 528–529 post mortem protection of rights, 512 jurisdictions covered, 488, 490 licences of personality rights (exclusive) civil law systems, 509–511 common law systems, 519–521 licences of personality rights (non  exclusive) bare consent as defence, 506 consent as limited waiver, 506–507 imprescriptibility of rights, 506 introduction, 505

594

r i ght s of p e rs o n al i t y

Comparative Personality Research Survey (cont.) licences of personality rights (non  exclusive) (cont.) restrictive construction of consent, 507 revocability of consent, 508 specificity of consent, 507 medical confidentiality, 489, 497 merchandising case study terms of reference, 489 civil law systems, 535–537 common law systems, 537–539 introduction, 534 mixed systems, 539–542 mixed systems see also specific jurisdictions jurisdiction type, 490 jurisdictions covered, 490 merchandising, 539–542 portrait rights, 532–534 models of protection, 501–503 Netherlands civil code, 493 constitutional legislation, 494 European Convention on Human Rights, 496 merchandising, 536–537 portrait rights, 527–528 post mortem protection of rights, 512 newspaper reports, 489 objectives, 487–488, 490–491 offences, 526 personality database, 487, 488 portrait rights case study terms of reference, 489 civil law systems, 526–531 common law systems, 531–532 mixed systems, 532–534 post mortem protection of rights, 511–512 privacy, balancing freedom of expression with, 524–525 protection of dignitarian and   patrimonial interests civil law systems, 503–512 classification of personality/publicity rights, 522–523 common law systems, 512–521 introduction, 499–500 models of protection, 501–503 policy arguments concerning publicity rights, 500–501

Comparative Personality Research Survey (cont.) Quebec Charter on Human Rights and Freedoms, 496 civil code, 493 inalienability of personality rights, 505 jurisdiction type, 490 merchandising, 539–540 name/image rights, 503–504 portrait rights, 532–533 remedies, 525–526 Scotland European Convention on Human Rights, 496 jurisdiction type, 490 merchandising, 540–542 portrait rights, 533–534 sources of law civil codes, 491–494 constitutional legislation, 494 human rights charters, 496 international conventions on human rights, 496–497 specific enactments, 497 specific wrongs in common law systems, 494–496 South Africa Bill of Rights, 496 constitutional legislation, 494 jurisdiction type, 490 merchandising, 542 name/image rights, 503–504 portrait rights, 534 Spain civil code, 493 constitutional legislation, 494 European Convention on Human Rights, 496 merchandising, 537 portrait rights, 530–531 post mortem protection of rights, 512 Composition of claims remedies, 84 Computer games relating to persons Comparative Personality Research Survey, 489 Confidential information see Breach of confidence Consent for exploitation of rights bare consent as defence, 506 consent as limited waiver, 506–507



i nde x

Consent for exploitation of rights (cont.) exclusive licences civil law systems, 509–511 common law systems, 519–521 imprescriptibility of rights, 506 introduction, 505 restrictive construction of consent, 507 revocability of consent, 508 specificity of consent, 507 Consistorial law demise of role, 40–44 historical basis of personality rights, 35–40 Constitutionalisation of private law Comparative Personality Research Survey, 494 European civil law approach, 316 European Convention on Human Rights, 8–9, 339–342 France, 322–323 Germany, 329–331 Italy, 337–339 national constitutions protecting fundamental rights, 7–8 South Africa, 354–358 Convention rights see Human rights Convicium privacy of information, 181–183 species of verbal injury, as, 157–158 verbal injury, 272–277 Copyright image, 420–421 introduction, 411 names, 385–386, 417–418 ownership, 411–412 persona, 416–417 personality, 411–412, 415–416 privacy anonymous and pseudonymous works, 579–580 fair dealing defence, 580–581 generally, 412–415 moral rights, 579–580 protection of unpublished works, 579 public interest defence, 580 scope, 578 signatures, 418–419 Corpses, wrongful treatment of actio iniuriarum, 564 medical law, 474–478 post mortem personality rights, 204

595

Correspondence, privacy of generally, 300–301 interception of prisoners’ correspondence, 561–563 Council Resolution 1165 privacy, 551–552 Covert surveillance harassment, 568–569 invasion of privacy, 299–300 need for privacy rights, 5–6 private individuals, 568–569 Regulation of Investigatory Powers Act   2000 civil liability, 577–578 content, 575–577 scope, 574–575 right to privacy, 173–174 Crime prevention breach of confidence, 560 Crimen privati carceris history of personality rights, 61–63 Criminal law, history of see also History of personality rights (Scotland) bodily integrity Aquilian liability, 48–49 assault, 52–54 demembration, 47–48 generally, 46–47 ius commune background, 51–52 mechanism, 50 molestation, 55–56 mutilation, 47–49 place of iniuria, 51 riot, 54–55 status of injured party, 50–51 sub-categories, 47–49 demise of role, 40–44 deprivation of liberty crimen privati carceris, 61–63 ius commune classifications, 57–64 nature of right infringed, 56–57 plagium, 59–61 ravishment, 59–61 wrongous imprisonment, 63–64 historical basis of personality rights, 35–40 jurisdictional changes in mid-18th century, 101–102 nature of criminal actions, 44–46 remedies generally, 45–46 interaction between rights of Crown and pursuer, 83–84

596

r i ght s of p e rs o n al i t y

Criminal proceedings remedies, 236 Cybersquatting intellectual property, 430–431 Damages Comparative Personality Research Survey, 525 exemplary/punitive damages, 242–243 Human Rights Act, 242–243 patrimonial loss, 236–241 Data protection application of statutory provisions, 572–574 content and scope of 1998 Act, 569–570 data protection principles, 570–571 data subjects’ rights, 571–572 exemptions, 572 merchandising, 541 personal data, 569–570 sensitive personal data, 572 use for development of common law, 574 Database of personality rights see also Comparative Personality Research Survey AHRC Research Centre project, 487, 488 Database rights intellectual property, 411 Deceased persons see also Transmissibility of claims defamation, 203–204 wrongful treatment of corpses actio iniuriarum, 564 medical law, 474–478 post mortem personality rights, 204 real injury, 79–80 Deceptive trade practices Australia, 497 Declarator remedies, 233–234 Declarator of freedom acceptance of unmarried status, 67 Defamation see also Defamation, reform of; Verbal injury deceased persons, 203–204 history emergence as freestanding delict, 132–134 relationship with informational privacy, 130–132 remedies, 135

Defamation (cont.) passing off, 385 right to honour and reputation, 171 South Africa, 351–352 verbal injury distinguished, 263–267 Defamation, reform of common name cases, 440, 448 conclusion, 450–451 dual nature coalescence of dual interests into single cause of action, 436–438 connection between self-esteem and reputation, 437–438 patrimonial and personality interests, 435 strict liability for patrimonial loss, 438–439 introduction, 434 issues and options, 27 strict liability development, 440 explanation for development, 440–442 freedom of expression, 443 justifiability in personality right cases, 442 presumptions of falsity and of intent, 439 “responsible journalism” defence, 445–447 strategies to avoid or qualify liability, 443–445 supersession of requirement of intent, 438–439 way forward, 447–450 Deforceing of women history of personality rights, 65 Deforcement history of personality rights, 50–51 Delict see also specific delicts delicts protecting both personality and other interests, 206–207 generally, 248–251 liability in affront-based delicts, 204–205 role of, 164–165 Delivery up/destruction of infringing    articles remedies, 236 Demembration history of personality rights, 47–48 Deported persons South Africa, 376–377



i nde x

Deprivation of liberty see also Wrongful detention; Wrongous imprisonment acts threatening deprivation of liberty, 78 history (mid-18th to mid-19th century) changes of context, 111–112 detention without lawful power, 117–121 enforcement of civil claims, 122–123 impressment for naval service, 121 liability at common law, 113–116 liability under Act anent Wrongous Imprisonment 1701, 112–113 malicious prosecution, relationship with, 123–124 mental patients, 117–121 personality right in reputation and self-worth, 116–117 remedies, 134–135 slaves, 117 history (16th to mid-18th century) crimen privati carceris, 61–63 ius commune classifications, 57–64 nature of right infringed, 56–57 plagium, 59–61 ravishment, 59–61 wrongous imprisonment, 63–64 right to liberty and security of person, 169–170 Derogatory treatment of copyright works moral rights, 201, 410–411 Designers trade marks, 426–430 Dignity meaning, 159–161 right to dignity, 171–173 Dignity (South Africa) actio iniuriarum, role of, 352–354 discrimination, 361–362 impairment of dignity, role of action for administrative justice and due process, 369–376 deported persons, 376–377 family life, 368 housing, 364–367 introduction, 364 judicial precedent, 363 refugees and asylum-seekers, 376 social security, 367–368 introduction, 359 meaning, 359–363 pre-Constitutional backdrop, 354–358 prisoners’ rights, 355–357

597

Discrimination right to dignity, 173 South Africa, 361–362 Disgorgement of gains remedies, 241–242 Dismembration history of personality rights, 47–48 Doctor and patient see Medical law Domain names cybersquatting, 430–431 Due process South Africa, 369–376 Eavesdropping see Surveillance Effusion of blood criminal law, 47 Emotional distress infliction independently of other wrong, 256–257 Endorsement see also Merchandising Comparative Personality Research Survey, 489 Enforcement of civil claims deprivation of liberty, 122–123 England and Wales breach of confidence breach of commercial confidence, 398–400 confidential information, 393–394 dignitary conception of personality, 394–397 exclusive licensees’ rights, 519–521 freedom of expression, 393 generally, 393–394, 514–516 public domain information, 395–397 right to respect for private and family life, 394–397 commercial value of celebrity image, 384–385 Comparative Personality Research  Survey breach of confidence, 514–516 breach of confidence (exclusive licensees’ rights), 519–521 merchandising, 538–539 passing off, 517–518 sources of law, 494–496 harassment, 397 identifiable harm, 385–386 introduction, 383–384 names, rights in, 385–386

598

r i ght s of p e rs o n al i t y

England and Wales (cont.) passing off connection misrepresentation, 387–389 dilution, 388 false endorsement, 390 generally, 386–387 goodwill, 387, 390 harm, 387–389 loss of opportunity, 389 misappropriation of image, 387–389 misrepresentation, 387–389 protean nature of tort, 387–389 rationale of tort, 391–392 specific torts, 385–386 summary, 400–401 unfair competition, 384–385, 386–387 Enticement of spouses rights in family relationships, 202–203 Entrapment into bigamous marriage right to dignity, 172 Escheat to Crown remedies, 83–84 Europe see also specific jurisdictions approximation of national laws of delict, 339–342 civil law approaches to protection of personality rights, 315–316 conclusion, 346–347 constitutionalism, 316 formal rationality of private law, 315–316 introduction, 314 meaning and import of personality rights, 316–317 persona, concept of, 314–315 privacy, 307–311 public and private law rights, 316–317 publicity rights, 346–347 von Hannover case, 342–346 European Convention on Human Rights see Human rights Exclusive licences of personality rights civil law systems, 509–511 common law systems, 519–521 licensees’ title to sue, 285–286 Exemplary damages remedies, 242–243 Fair dealing with copyright works privacy, 580–581 False attribution of authorship moral rights, 201, 410, 580

False endorsement passing off, 390 “False light” privacy see Name and image rights Family life see also Right to respect for private and family life history (mid-18th to mid-19th century), 124–127 history (16th to mid-18th century) abduction of children, 67 abduction of spouse, 69 acceptance of unmarried status, 67–68 adultery, 69–70 deforceing of women, 65 infringement of chastity, 65–67 integrity of family life, 67–70 introduction, 64–65 parental claims, 67 stuprum, 65–67, 91–93 rights in family relationships, 202–203 South Africa, 368 Fan-books Comparative Personality Research Survey, 489 Fault affront-based delicts, 209 malice and intent, 209–212 malice and want of probable cause, 212–213 negligence, 213–214 Feelings, injury to see Injury to feelings Fictional characters copyright, 416–417 Films copyright, 420 films relating to persons, 489 privacy in commissioned films, 580 France Comparative Personality Research  Survey civil code, 492 European Convention on Human Rights, 496 exclusive licences of personality rights, 510 merchandising, 535–536 portrait rights, 527 post mortem protection of rights, 511 history of personality rights codification, 321–323 constitutional jurisprudence, 322–323



i nde x

France (cont.) history of personality rights (cont.) declaration of rights, 318 development of subjective rights, 318–321 human rights, 323–324 Marlene Dietrich affair, 321 publicity right, 325 Rachel affair, 318–319 revolution, 317–318 Freedom of expression balancing with privacy breach of confidence, 393, 560 Council Resolution 1165, 551–552 defences, 585 generally, 524–525 defamation, 443 privacy of information, 193 Freedom to manifest religious belief right to dignity, 173 Germany Comparative Personality Research  Survey civil code, 492 constitutional legislation, 494 European Convention on Human Rights, 496 exclusive licences of personality rights, 509–510 merchandising, 536 monistic nature of personality right, 502–503 portrait rights, 527–528 post mortem protection of rights, 511–512 history of personality rights Bonn Constitution, 329–331 Bürgerliches Gesetzbuch, 326–328, 332–334 early 20th century, 328–329 Grundgesetz, 329–331 image rights, 333 informational autonomy/selfdetermination, 333–334 introduction of general personality right, 329–331 Kunsturhebergesetz, 328–329 19th century, 326–328 personal honour, 334 pre 19th century, 325–326 privacy, 332–333 public persona, 333

599

Germany (cont.) history of personality rights (cont.) typology of protected interests, 332–334 von Hannover case, 342–346 Gestures assault, 252–253 real injury, 79 Graves, injury to real injury, 79–80 Hamesucken history of personality rights, 51, 71 Harassment assault, and, 253 England and Wales, 397 Howlett v Holding, 568–569 Protection from Harassment Act 1997, 567–568 right to security of the person, 169–170 History of personality rights (Europe) see also History of personality rights (Scotland) France codification, 321–323 constitutional jurisprudence, 322–323 declaration of rights, 318 development of subjective rights, 318–321 human rights, 323–324 Marlene Dietrich affair, 321 publicity right, 325 Rachel affair, 318–319 revolution, 317–318 Germany Bonn Constitution, 329–331 Bürgerliches Gesetzbuch, 326–328, 332–334 early 20th century, 328–329 Grundgesetz, 329–331 image rights, 333 informational autonomy/selfdetermination, 333–334 introduction of general personality right, 329–331 Kunsturhebergesetz, 328–329 19th century, 326–328 personal honour, 334 pre 19th century, 325–326 privacy, 332–333 public persona, 333 typology of protected interests, 332–334 von Hannover case, 342–346

600

r i ght s of p e rs o n al i t y

History of personality rights (Europe)    (cont.) Italy constitutional rights, 337–339 first Civil Code, 334–335 introduction, 334 modern law, 337–339 second Civil Code, 335–337 History of personality rights (Scotland) see also History of personality rights (Europe) bodily integrity (mid-18th to mid-19th   century) aggravated assault, 106–108 assault as nominate delict, 104–109 late 18th century position, 102–103 mental element, 109–110 real injury, 108–109 remedies, 135–137 bodily integrity (16th to mid-18th   century) Aquilian liability, 48–49 assault, 52–54 demembration, 47–48 generally, 46–47 ius commune background, 51–52 mechanism, 50 molestation, 55–56 mutilation, 47–49 place of iniuria, 51 riot, 54–55 status of injured party, 50–51 sub-categories, 47–49 concept of personality rights, 33–35 conclusion continuity of tradition, 144–145 influence of ius commune, 142–143 iniuria as dynamic source of future developments, 145–146 iniuria as organising category, 143 consistorial law demise of role, 40–44 historical basis of personality rights, 35–40 criminal law bodily integrity, 46–56 demise of role, 40–44 deprivation of liberty, 56–64 historical basis of personality rights, 35–40 interaction between rights of Crown and pursuer, 83–84 jurisdictional changes in 18th century, 101–102

History of personality rights (Scotland)    (cont.) criminal law (cont.) nature of criminal actions, 44–46 remedies, 45–46, 83–84 defamation emergence as freestanding delict, 132–134 relationship with informational privacy, 130–132 remedies, 135 deprivation of liberty (mid-18th to mid  19th century) changes of context, 111–112 detention without lawful power, 117–121 enforcement of civil claims, 122–123 impressment for naval service, 121 liability at common law, 113–116 liability under Act anent Wrongous Imprisonment 1701, 112–113 malicious prosecution, relationship with, 123–124 mental patients, 117–121 personality right in reputation and self-worth, 116–117 remedies, 134–135 slaves, 117 deprivation of liberty (16th to mid-18th   century) crimen privati carceris, 61–63 ius commune classifications, 57–64 nature of right infringed, 56–57 plagium, 59–61 ravishment, 59–61 wrongous imprisonment, 63–64 family life and moral sexual relations abduction of children, 67 abduction of spouse, 69 acceptance of unmarried status, 67–68 adultery, 69–70 deforceing of women, 65 infringement of chastity, 65–67 integrity of family life, 67–70 introduction, 64–65 mid-18th to mid-19th century, 124–127 parental claims, 67 stuprum, 65–67, 91–93 iniuria as dynamic source of future developments, 145–146 iniuria as organising category affront, insult and offence, 81–82 conclusion, 143



i nde x

History of personality rights (Scotland)    (cont.) iniuria as organising category (cont.) mental element, 82 real injury where no sub-category applicable, 77–80 real/verbal injury distinguished, 75–77 verbal injury, 80–81 jurisdictional changes in 18th century, 101–102 juristic writing (mid-18th to mid-19th   century) Bell, 141–142 Erskine, 139 Hume, 139–141 introduction, 139 juristic writing (16th to mid-18th   century) Bankton, 98–101 Bayne, 98 introduction, 93–94 Mackenzie, 94–95 remedies, 88–91 Stair, 95–97 malicious prosecution, 123–124 mid-18th to mid-19th century bodily integrity, 102–110 deprivation of liberty, 111–123 family life and moral sexual relations, 124–127 jurisdictional changes, 101–102 juristic writing, 139–142 malicious prosecution, 123–124 privacy of information, 127–132 remedies, 134–137 transmissibility of claims, 137–138 verbal injury, 132–134 overview, 10–12 privacy of home, 70–71 privacy of information entrusted information, 127–129 relationship with defamation, 130–132 remedies, 135 16th to mid-18th century, 71–75 unauthorised taking and disclosure, 129–132 real injury acts threatening bodily injury, 78 acts threatening deprivation of liberty, 78 church seats and lofts, 79 injury to dead bodies or graves, 79–80

601

History of personality rights (Scotland)    (cont.) real injury (cont.) mental element, 82 no sub-category applicable, 77–80 rude gestures, 79 verbal injury distinguished, 75–77 remedies (mid-18th to mid-19th   century) breach of confidence, 135 defamation, 135 deprivation of liberty, 134–135 physical injury, 135–137 verbal injury, 135 wrongous imprisonment, 134 remedies (16th to mid-18th century) Aquilian liability, 86–87 composition of claims, 84 criminal law, 45–46, 83–84 escheat to Crown, 83–84 generally, 82–83 heads of damage, 87 injury to character/reputation, 91 interaction between rights of Crown and pursuer, 83–84 juristic writing, 88–91 monetary compensation theory, 88–89 non-patrimonial consequences, 84–87, 89–91 patrimonial consequences, 86–87, 91 quantum, 87 solatium, 90–91 stuprum, 91–93 16th to mid-18th century bodily integrity, 46–56 criminal law, 35–64 deprivation of liberty, 56–64 family life and moral sexual relations, 64–70 iniuria as organising category, 75–82 juristic writing, 93–101 privacy of home, 70–71 privacy of information, 71–75 remedies, 82–93 transmissibility of claims, 137–138 verbal injury (mid-18th to mid-19th   century) emergence of defamation as freestanding delict, 132–134 relationship with informational privacy, 130–132 remedies, 135 verbal injury (16th to mid-18th century) affront, insult and offence, 81–82

602

r i ght s of p e rs o n al i t y

History of personality rights (Scotland)    (cont.) verbal injury (16th to mid-18th century)   (cont.) generally, 80–81 mental element, 82 real injury distinguished, 75–77 wrongous imprisonment Act anent Wrongous Imprisonment 1701, 111–112 liability, 112–116 remedies, 134–135 16th to mid-18th century, 63–64 Home, privacy of generally, 299–301 history, 70–71 Honour and reputation, right to see also Defamation generally, 170–171 Housing South Africa, 364–367 Human rights   see also Right to respect for private and    family life damages under HRA 1998, 242–243 deprivation of property, 284–285 discrimination, 173 European Convention on Human Rights constitutionalism, 8–9, 339–342 indirect horizontal effect, 9 legal consequences, 341–342 legal status, 340–341 origins, 339–340 freedom of expression balancing with privacy, 524–525 breach of confidence, 393, 560 Council Resolution 1165, 551–552 defamation, 443 defences, 585 privacy of information, 193 freedom to manifest religious belief, 173 integration of privacy rights into Scots   law actio iniuriarum approach, 15–18 breach of privacy as new category of delictual liability, 18–19 generally, 14–15 impact on Scots law, 551–552 principled eclecticism, 19 liberty, right to, 170 medical law remedies, 471–473 right to effective remedy for invasion of privacy, 467–469

Human rights (cont.) medical law (cont.) right to information, 469–471 political and legislative background, 12–14 security of the person, right to, 170 Hurting criminal law, 47 Identity see Name and image rights Image rights see also Merchandising; Passing off; Portrait rights assignees’/licensees’ title to sue, 285–286 copyright, 420–421 “false light” privacy identity, 194–195 image, 196 name, 195–196 non-patrimonial verbal injury, 195 passing off, 200 right to publicity, 196–200 France, 318–319 Germany, 333 Quebec, 503–504 South Africa, 503–504 Importance of personality rights comparative law, 6–7 concept of personality rights, 3–4 constitutionalisation of private law European Convention on Human Rights, 8–9 national constitutions protecting fundamental rights, 7–8 privacy rights development, 4–5 integration of Convention rights into Scots law, 14–19 modern need for, 5–6 Impressment for naval service deprivation of liberty, 121 Inalienability of personality rights Comparative Personality Research Survey, 504–505 Indirect assault assault, 254–255 Informational privacy see Privacy of information Iniuria see also Actio iniuriarum; Injury; Real injury; Verbal injury



i nde x

Iniuria (cont.) dynamic source of future developments, as, 145–146 organising category, as affront, insult and offence, 81–82 conclusion, 143 mental element, 82 real injury where no sub-category applicable, 77–80 real/verbal injury distinguished, 75–77 verbal injury, 80–81 Injunctions Comparative Personality Research Survey, 525 interim interdict, 234–235 Injury see also Actio iniuriarum; Iniuria; Real injury; Verbal injury elements of liability, 207–208 Injury to feelings elements of liability, 207–208 false statements, 268–271 injury from slander on third party, 271 solatium, 237–240, 241 true statements, 271–277 Insult see also Verbal injury history of verbal injury, 81–82 right to freedom from insult, 171–173 Integrity of the person see Bodily integrity Integrity right moral rights, 410–411, 579 Intellectual property conclusion, 432 copyright image, 420–421 introduction, 411 names, 385–386, 417–418 ownership, 411–412 persona, 416–417 personality, 411–412, 415–416 privacy, 412–415 signatures, 418–419 cybersquatting, 430–431 database rights, 411 introduction, 404 issues and options, 25–27 moral rights, 410–411 neighbouring rights, 411 overview, 404–406 performers’ rights, 411, 416 personality theory, 406–408

603

Intellectual property (cont.) privacy anonymous and pseudonymous works, 579–580 copyright, 412–415 fair dealing defence, 580–581 moral rights, 579–580 protection of unpublished works, 579 public interest defence, 580 scope, 578 property rights, 408–409 trade marks generally, 421–424 registration, 424–430 trade names, 421–424 transferability, 409 Interception of communications prisoners’ correspondence, 561–563 Regulation of Investigatory Powers Act   2000 civil liability, 577–578 content, 575–577 scope, 574–575 Interdict Comparative Personality Research Survey, 525 remedies, 234–235 Interim orders pendente lite remedies, 232 Internet cybersquatting, 430–431 Invading history of personality rights, 47 Invasion of privacy see Breach of confidence; Privacy Issues and options actio iniuriarum criticism, 16–17 modernisation, 15–16 neutral assessment, 17–18 codification, 25–26 concept of personality rights, 3–4 constitutionalisation of private law European Convention on Human Rights, 8–9 national constitutions protecting fundamental rights, 7–8 defamation, 27 importance of personality rights comparative law, 6–7 concept of personality rights, 3–4 constitutionalisation of private law, 7–9

604

r i ght s of p e rs o n al i t y

Issues and options (cont.) importance of personality rights (cont.) development of privacy rights, 4–5 modern need for privacy rights, 5–6 intellectual property, 25–27 integration of Convention privacy rights   into Scots law actio iniuriarum approach, 15–18 breach of privacy as new category of delictual liability, 18–19 generally, 14–15 principled eclecticism, 19 introduction, 2–3 meaning of personality rights, 3–4 medical law, 27–29 protection of personality rights, 19–22 publicity right dignitary and patrimonial aspects of personality rights, 22–23 extra-patrimonial privacy rights, 23–24 passing off, 23 waiver, licensing and reification of licensees’ rights, 23–24 statutory codes, provisions and analogies, 25–26 Italy Comparative Personality Research Survey civil code, 492–493 constitutional legislation, 494 European Convention on Human Rights, 496 inalienability of personality rights, 505 merchandising, 536 portrait rights, 528–529 post mortem protection of rights, 512 history of personality rights constitutional rights, 337–339 first Civil Code, 334–335 introduction, 334 modern law, 337–339 second Civil Code, 335–337 Legal personality right to life, 166 Liability, elements of affront-based delicts, 204–205 delicts protecting both personality and other interests, 206–207 fault affront-based delicts, 209 malice and intent, 209–212 malice and want of probable cause, 212–213

Liability, elements of (cont.)   fault (cont.) negligence, 213–214 injury, 207–208 level of protection, 205–206 patrimonial interests, 206 wounded feelings, 207–208 wrongfulness, 208–209 Libel see Defamation Liberty of the person see Deprivation of liberty Licences of personality rights exclusive licences civil law systems, 509–511 common law systems, 519–521 licensees’ title to sue, 285–286 non-exclusive licences bare consent as defence, 506 consent as limited waiver, 506–507 imprescriptibility of rights, 506 introduction, 505 restrictive construction of consent, 507 revocability of consent, 508 specificity of consent, 507 Life, right to generally, 166–167 Loss of society rights in family relationships, 202 Malice bases of liability malice and intent, 209–212 malice and want of probable cause, 212–213 wrongful detention arrest with reasonable justification, 259–260 arrest without justification, 260–261 Malicious falsehood generally, 385 Malicious prosecution history, 123–124 right to honour and reputation, 171 Marlene Dietrich affair France, 321 Marriage, breach of promise of rights in family relationships, 202 Medical law actio iniuriarum, 473–479 bodily organs, removal of, 474–478 confidentiality, 489, 497



i nde x

Medical law (cont.) development of personal autonomy, 458–461 future developments, 478–479 human rights remedies, 471–473 right to effective remedy for invasion of privacy, 467–469 right to information, 469–471 information disclosure, challenging assumptions concerning, 479–483 introduction, 454–456 issues and options, 27–29 medical examinations, 301 medical treatment, 168–169 medico–legal context, 456–457 McFarlane and Rees, 464–466 negligence analysis, 466–467 personality interests involved, 457–458 public engagement in health-related matters, 457 regulatory bodies, 457 Scots law solution, 473–478 Sidaway analysed, 461–464 wrongful conception, 464–466 Mental harm infliction independently of other wrong, 256–257 Mental patients deprivation of liberty, 117–121 wrongful detention, 261–262 Merchandising see also Name and image rights; Portrait rights Argentina, 535 Australia, 537 Canada, 537–538 England and Wales, 538–539 France, 535–536 Germany, 536 Italy, 536 Netherlands, 536–537 Quebec, 539–540 Scotland data protection, 541 economic actions, 540–541 generally, 540 parody 541–542 privacy, 541 South Africa, 542 Spain, 537 Misappropriation of image see Name and image rights

605

Misleading or deceptive trade practices Australia, 497 Misrepresentation passing off, 282–283, 387–389 Mixed systems see also specific jurisdictions jurisdiction type, 490 jurisdictions covered, 490 merchandising, 539–542 portrait rights, 532–534 Molestation history of bodily integrity, 55–56 security of the person, 169–170 Moral rights France, 320 generally, 410–411 overview, 201 privacy, 579–580 Moral sexual relations abduction of spouse, 69 acceptance of unmarried status, 67–68 adultery, 69–70 deforceing of women, 65 infringement of chastity, 65–67 integrity of family life, 67–70 introduction, 64–65 mid-18th to mid-19th century, 124–127 parental claims, 67 stuprum generally, 65–67 remedies, 91–93 Musicals Comparative Personality Research Survey, 489 Musicians’ names trade marks, 426 Mutilation bodily integrity, 47–49 Name and image rights see also Merchandising; Passing off; Portrait rights assignees’/licensees’ title to sue, 285–286 copyright, 420–421 “false light” privacy identity, 194–195 image, 196 name, 195–196 non-patrimonial verbal injury, 195 passing off, 200 right to publicity, 196–200 France, 318–319 Germany, 333

606

r i ght s of p e rs o n al i t y

Name and image rights (cont.) Quebec, 503–504 South Africa, 503–504 Names copyright, 385–386, 417–418 trade names, 421–424 Naval service, impressment for deprivation of liberty, 121 Negligence bases of liability, 213–214 medical law, 466–467 Neighbouring rights intellectual property, 411 Nervous shock infliction independently of other wrong, 256–257 Netherlands civil code, 493 constitutional legislation, 494 European Convention on Human Rights, 496 merchandising, 536–537 portrait rights, 527–528 post mortem protection of rights, 512 Nominal damages remedies, 234 Non-exclusive licences of personality rights bare consent as defence, 506 consent as limited waiver, 506–507 imprescriptibility of rights, 506 introduction, 505 licensees’ title to sue, 285–286 restrictive construction of consent, 507 revocability of consent, 508 specificity of consent, 507 Non-factual imputations against character verbal injury, 277–280 Non-natural persons personality rights of, 165 Notional assault assault, 252–253 Nubere aut dotare stuprum, 91–93 Offence history of verbal injury, 81–82 Offers to make amends remedies, 234 Options for development of law see Issues and options Orders ad factum praestandum remedies, 236

Overview of personality rights actio iniuriarum, distorted meaning of, 158–159 affront, meaning of, 162–163 autonomy meaning, 160–161 right to autonomy, 201–202 bodily integrity, right to, 167–169 classification and typology, 163–165 commonalities and differences between legal systems, 150 companies, 165 conclusion, 243–246 convicium as species of verbal injury, 157–158 corpus, fama, dignitas, 151 delict delicts protecting both personality and other interests, 206–207 liability in affront-based delicts, 204–205 role of, 164–165 dignity meaning, 159–161 right to dignity, 171–173 family relationships, rights in, 202–203 fault affront-based delicts, 209 malice and intent, 209–212 malice and want of probable cause, 212–213 negligence, 213–214 freedom from insult, right to, 171–173 fundamental concepts actio iniuriarum, distorted meaning of, 158–159 affront, meaning of, 162–163 autonomy, meaning of, 160–161 convicium as species of verbal injury, 157–158 dignity, meaning of, 159–161 introduction, 151 privacy, meaning of, 161–162 “real and verbal injury” as generic term, 151–152 verbal injury, 153–156 honour and reputation, right to, 170–171 identity or image, right to identity, 194–195 image, 196 name, 195–196 non-patrimonial verbal injury, 195



i nde x

Overview of personality rights (cont.) identity or image, right to (cont.) passing off, 200 right to publicity, 196–200 injury, 207–208 insult, right to freedom from, 171–173 introduction, 149–150 liability, elements of affront-based delicts, 204–205 delicts protecting both personality and other interests, 206–207 fault, 209–214 injury, 207–208 level of protection, 205–206 patrimonial interests, 206 wounded feelings, 207–208 wrongfulness, 208–209 liberty of the person, right to, 170 life, right to, 166–167 moral rights, 201 non-natural persons, 165 partnerships, 165 passing off fault, 212 generally, 200 patrimonial interests, 206 physical liberty, right to, 170 post mortem rights defamation of deceased, 203–204 wrongful treatment of corpses, 204 prescription, 165 primary and secondary rights and obligations, 164–165 privacy meaning, 161–162 right to privacy, 173–174 privacy of information breach of confidence, 183–191 change to requirement of falsity, 180–181 convicium and veritas convicii non excusat, 181–183 Institutional background, 174–176 Newton v Fleming, 176–180 test of liability, 192–194 trade secrets, 191 publicity, right to, 196–200 “real and verbal injury” as generic term, 151–152 remedies criminal proceedings, 236 damages for patrimonial loss, 236–241 declarator, 233–234

607

Overview of personality rights (cont.) remedies (cont.) disgorgement of gains, 241–242 exemplary/punitive damages, 242–243 generally, 232 interim interdict, 234–235 interim orders pendente lite, 232 nominal damages, 234 offers to make amends, 234 orders ad factum praestandum, 236 palinode, 233 solatium for non-patrimonial injury, 236–241 security of the person, right to, 169–170 Stair’s reparable interests, 151 subjective rights, 164 transmissibility of claims active transmissibility, 221–227 claims other than for personal injuries due to negligence, 230–231 infringement of right to privacy, 231–232 overview, 215–217 passive transmissibility, 221 solatium as private law penalty, 217–220 trustees in bankruptcy, 227–230 typology, 163–165 verbal injury affront to personality by words, 153–154 convicium as species of verbal injury, 157–158 insult, 155–156 non-defamatory malicious or injurious falsehood, 154–155 “real and verbal injury” as generic term, 151–152 voluntary associations, 165 wounded feelings, 207–208 wrongfulness, 208–209 Own name, trading under trade marks, 421–424 Paintings copyright, 420–421 Palinode acceptance of unmarried status, 68 breach of confidence, 135 defamation, 135 generally, 233 injury to character/reputation, 91

608

r i ght s of p e rs o n al i t y

Parody merchandising, 541–542 Partnerships personality rights of, 165 Passing off Australia, 516–517 connection misrepresentation, 387–389 damage, 283 deprivation of property, 284–285 development of law, 280–281 dilution, 388 false endorsement, 390 fault, 212 future Scottish developments, 283–284 generally, 386–387, 517–518 goodwill, 282, 387, 390 harm, 387–389 loss of opportunity, 389 misappropriation of image, 387–389 misrepresentation, 282–283, 387–389 overview, 200 protean nature of tort, 387–389 rationale of tort, 391–392 right to respect for private and family life, 284–285 trade names, 421–424 Passive transmissibility of claims see Transmissibility of claims Paternity right moral rights, 410, 579 Patient autonomy see Medical law Performers performers’ rights, 411, 416 publicity right (France), 325 trade marks, 426 Persona copyright, 416–417 European concept of, 314–315 Germany, 333 Personal data data protection, 569–570 Personality database see also Comparative Personality Research Survey AHRC Research Centre project, 487, 488 Photographs copyright, 420–421 privacy of commissioned photographs, 580 right to image, 196 right to privacy, 174 right to publicity, 196–200

Physical integrity see Bodily integrity Plagium history of personality rights, 59–61 Portrait rights see also Merchandising; Name and image rights Argentina, 526–527 Australia, 531 Canada, 531–532 France, 527 Germany, 527–528 Italy, 528–529 Netherlands, 527–528 Quebec, 532–533 Scotland, 533–534 South Africa, 534 Spain, 530–531 Post mortem rights Comparative Personality Research Survey, 511–512 defamation of deceased, 203–204 wrongful treatment of corpses actio iniuriarum, 564 medical law, 474–478 overview, 204 real injury, 79–80 Premises, privacy of generally, 299–301 history, 70–71 Prescription imprescriptibility of personality rights, 165, 506 Primary rights and obligations overview, 164–165 Principled eclecticism integration of Convention privacy rights into Scots law, 19 Prisoners’ rights South Africa, 355–357 unlawful interception of correspondence, 561–563 Privacy see also Breach of confidence; Privacy of information actio iniuriarum, 563–565 affront, forms of, 583–585 basis of liability, 582–583 comparative law actio iniuriarum (South Africa), 303–307 European jurisdictions, 307–311 introduction, 303 conclusions, 582–588



i nde x

Privacy (cont.) Copyright, Designs and Patents Act   1988 anonymous and pseudonymous works, 579–580 fair dealing defence, 580–581 generally, 412–415 moral rights, 579–580 protection of unpublished works, 579 public interest defence, 580 scope, 578 correspondence, 300–301 Council Resolution 1165, impact of, 551–552 Data Protection Act 1998 application of provisions, 572–574 content and scope, 569–570 data protection principles, 570–571 data subjects’ rights, 571–572 exemptions, 572 personal data, 569–570 sensitive personal data, 572 use for development of common law, 574 defences, 585–586 development of rights, 4–5 freedom of information, balancing with, 524–525 generally, 286–287 Germany, 332–333 home and other premises generally, 299–301 history, 70–71 Human Rights Act, impact of, 551–552 integration of Convention rights into  Scots law actio iniuriarum approach, 15–18 breach of privacy as new category of delictual liability, 18–19 generally, 14–15 principled eclecticism, 19 introduction, 550–551 issues and options development of rights, 4–5 integration of Convention rights into Scots law, 14–19 modern need for rights, 5–6 legislature’s requirement to act, 553 meaning, 161–162 modern need for rights, 5–6 privacy of the person, 301–303 Protection from Harassment Act 1997 content and scope, 567–568 Howlett v Holding, 568–569

609

Privacy (cont.) Regulation of Investigatory Powers Act   2000 civil liability, 577–578 content, 575–577 scope, 574–575 remedies, 586–587 right to privacy, 173–174 South Africa actio iniuriarum, 303–307 generally, 351–352 spatial privacy, 299–301 statutory protection Copyright, Designs and Patents Act 1988, 578–581 Data Protection Act 1998, 569–574 guide to development of common law, 565–566 introduction, 565–567 overview, 581–582 Protection from Harassment Act 1997, 567–569 Regulation of Investigatory Powers Act 2000, 574–578 territorial privacy, 299–301 von Hannover case, impact of, 552 zones of privacy introduction, 298–299 privacy of the person, 301–303 territorial privacy, 299–301 Privacy of information see also Breach of confidence; Privacy convicium and veritas convicii non excusat, 181–183 falsity, change to requirement of, 180–181 generally, 286–287 Institutional background, 174–176 medical law, 479–483 mid-18th to mid-19th century entrusted information, 127–129 relationship with defamation, 130–132 remedies, 135 unauthorised taking and disclosure of information, 129–132 Newton v Fleming, 176–180 16th to mid-18th century, 71–75 test of liability freedom of expression, 193 impairment of dignity, 194 iniuria, 192 intent to injure, 193–194 sources, 192

610

r i ght s of p e rs o n al i t y

Privacy of information (cont.) test of liability (cont.) threshold test, 192–193 wrongfulness, 193 trade secrets, 191 Private and family life, right to respect for see Right to respect for private and family life Promise of marriage, breach of rights in family relationships, 202 Prosecution, wrongful history, 123–124 right to honour and reputation, 171 Pseudonymous works privacy, 579–580 Psychiatric harm infliction independently of other wrong, 256–257 Psychiatric institutions, detention in deprivation of liberty, 117–121 wrongful detention, 261–262 Public interest defence privacy, 580 Publicity rights European approach, 346–347 generally, 196–200 issues concerning introduction of right dignitary and patrimonial aspects of personality rights, 22–23 extra-patrimonial privacy rights, 23–24 passing off, 23 waiver, licensing and reification of licensees’ rights, 23–24 policy arguments, 500–501 United States of America   classification of personality/publicity   rights, 522–523   dualistic nature of protection,   502–503   generally, 490 Punitive damages remedies, 242–243 Putting to silence acceptance of unmarried status, 67 Qualified privilege defamation, 445–447 Rachel affair France, 318–319 Ravishment history of personality rights, 59–61

Real injury see also Assault; Bodily integrity; Deprivation of liberty acts threatening bodily injury, 78 acts threatening deprivation of liberty, 78 church seats and lofts, 79 dead bodies and graves, 79–80 mental element, 82 no sub-category applicable, 77–80 “real and verbal injury” as generic term, 151–152 rude gestures, 79 verbal injury distinguished, 75–77 Refugees South Africa, 376 Religious belief, freedom to manifest right to dignity, 173 Remedies Comparative Personality Research Survey, 525–526 criminal proceedings, 236 damages exemplary/punitive damages, 242–243 patrimonial loss, 236–241 declarator, 233–234 delivery up/destruction of infringing articles, 236 disgorgement of gains, 241–242 generally, 232 history (mid-18th to mid-19th century) breach of confidence, 135 defamation, 135 deprivation of liberty, 134–135 physical injury, 135–137 verbal injury, 135 wrongous imprisonment, 134 history (16th to mid-18th century) Aquilian liability, 86–87 composition of claims, 84 criminal law, 45–46, 83–84 escheat to Crown, 83–84 generally, 82–83 heads of damage, 87 injury to character/reputation, 91 interaction between rights of Crown and pursuer, 83–84 juristic writing, 88–91 monetary compensation theory, 88–89 non-patrimonial consequences, 84–87, 89–91 patrimonial consequences, 86–87, 91



i nde x

Remedies (cont.) history (16th to mid-18th century) (cont.) quantum, 87 solatium, 90–91 stuprum, 91–93 interim interdict, 234–235 interim orders pendente lite, 232 nominal damages, 234 offers to make amends, 234 orders ad factum praestandum, 236 palinode, 233 privacy, 586–587 solatium categories, 237 purpose of awards, 236–237 quantum, 240 wounded feelings and affront, 237–240, 241 Removal/retention of bodily organs actio iniuriarum, 564 medical law, 474–478 post mortem personality rights, 204 real injury, 79–80 Reputation see Defamation Respect for private and family life, right to see Right to respect for private and family life Responsible journalism defamation, 445–447 Reynolds privilege defamation, 445–447 Right to respect for private and family life approximation of laws of delict within Europe, 339–342 bodily integrity, right to, 169 breach of confidence, 394–397 copyright, 413–414 correspondence, 300–301 European Convention on Human Rights legal consequences, 341–342 legal status, 340–341 origins, 339–340 freedom of expression, balancing with breach of confidence, 560 Council Resolution 1165, 551–552 defences, 585 indirect horizontal effect, 9 integration of Convention rights into  Scots law actio iniuriarum approach, 15–18

611

Right to respect for private and family    life (cont.) integration of Convention rights into  Scots law (cont.) breach of privacy as new category of delictual liability, 18–19 generally, 14–15 principled eclecticism, 19 introduction, 339 overview, 8–9 passing off, 284–285 privacy of the person, 301–303 territorial privacy, 300–301 von Hannover case, 342–346 Riot history of personality rights, 54–55 Rude gestures assault, 252–253 real injury, 79 Satire verbal injury, 271 Scent copyright, 416 Secondary rights and obligations overview, 164–165 Secret information see Breach of confidence Security of the person see Deprivation of liberty Seduction right to dignity, 172 Sensitive personal data data protection, 572 Sequestration transmissibility of claims, 227–230 Sexual relations see Moral sexual relations Signatures copyright, 418–419 Silence assault, 253 Slander see also Defamation slander of title/property, 267 slander on third party, 267 Slaves deprivation of liberty, 117 Smell copyright, 416 Social security South Africa, 367–368 Solatium categories, 237

612

r i ght s of p e rs o n al i t y

Solatium (cont.) history breach of confidence, 135 defamation, 135 injury to character/reputation, 91 transmissibility of claims, 137–138 purpose of awards, 236–237 quantum, 240 wounded feelings and affront, 237–240, 241 South Africa actio iniuriarum future developments, 377–381 generally, 351–354 judicial precedent, 363 Roman origins, 350–351 Scots law compared, 303–307 Bill of Rights, 496 conclusion, 377–381 constitutional legislation, 494 defamation, 351–352 dignity, right to actio iniuriarum, role of, 352–354 discrimination, 361–362 introduction, 359 meaning, 359–363 pre-Constitutional backdrop, 354–358 prisoners’ rights, 355–357 impairment of dignity, role of action for administrative justice and due process, 369–376 deported persons, 376–377 family life, 368 housing, 364–367 introduction, 364 judicial precedent, 363 refugees and asylum-seekers, 376 social security, 367–368 jurisdiction type, 490 merchandising, 542 name/image rights, 503–504 portrait rights, 534 pre-Constitutional backdrop, 354–358 privacy, 351–352 Roman heritage, 350–351 Spain civil code, 493 constitutional legislation, 494 European Convention on Human Rights, 496 merchandising, 537 portrait rights, 530–531 post mortem protection of rights, 512

Spatial privacy zones of privacy, 299–301 Spitting assault, 254 Stage/screen persona copyright, 416–417 Stalking harassment, 568 Statutory codes, provisions and analogies options for development of law, 25–26 Strict liability see Defamation Strip searches prison visitors, 561, 562–563 privacy of the person, 301–303 Stuprum generally, 65–67 remedies, 91–93 Surveillance harassment, 568–569 invasion of privacy, 299–300 need for privacy rights, 5–6 private individuals, 568–569 Regulation of Investigatory Powers Act   2000 civil liability, 577–578 content, 575–577 scope, 574–575 right to privacy, 173–174 Territorial privacy zones of privacy, 299–301 Threatening behaviour assault, 252–253 Trade marks generally, 421–424 registration artists/designers, 426–430 celebrities, 425–426 generally, 424–425 trade names, 421–424 Trade secrets breach of commercial confidence, 189–191, 398–400 privacy of information, 191 Transmissibility of claims active transmissibility conditional active transmissibility, 225–227 doctrine of election, 224–225 solatium as remedy for wrongs to personality, 221–224 unconditional active intransmissibility, 226–227



i nde x

Transmissibility of claims (cont.) claims other than for personal injuries due to negligence, 230–231 history, 137–138 infringement of right to privacy, 231–232 overview, 215–217 passive transmissibility before early 19th century, 218–220 modern law, 221 solatium as private law penalty, 217–220 trustees in bankruptcy, 227–230 True statements privacy of information change to requirement of falsity, 180–181 convicium and veritas convicii non excusat, 181–183 Institutional background, 174–176 Newton v Fleming, 176–180 verbal injury, 271–277 Typology of personality rights generally, 163–165 Unbesetting history of personality rights, 51 Unborn children right to life, 166 Unfair competition England and Wales, 384–385, 386–387 United States of America classification of personality/publicity rights, 522–523 dualistic nature of protection, 502–503 publicity right, 490 Unjustified enrichment disgorgement of gains, 241–242 Unmarried status, acceptance of history of personality rights, 67–68 Unpublished works privacy, 579 Verbal injury see also Defamation affront to personality by words, 153–154 convicium as species of verbal injury, 157–158 defamation distinguished, 263–267 history (mid-18th to mid-19th century) emergence of defamation as freestanding delict, 132–134 relationship with informational privacy, 130–132 remedies, 135

613

Verbal injury (cont.) history (16th to mid-18th century) affront, insult and offence, 81–82 generally, 80–81 mental element, 82 real injury distinguished, 75–77 insult, 155–156 limits of modern law injury to feelings from slander on third party, 271 injury/loss resulting from true statements, 271–277 introduction, 271 non-defamatory malicious or injurious falsehood, 154–155 non-factual imputations against character, 277–280 “real and verbal injury” as generic term, 151–152 scope of modern law injury to business interests, 267 injury to feelings by false statements, 268–271 introduction, 267 slander of title/property, 267 slander on third party, 267 Veritas convicii non excusat privacy of information change to requirement of falsity, 180–181 convicium and veritas convicii non excusat, 181–183 Institutional background, 174–176 Newton v Fleming, 176–180 verbal injury, 271–277 Voluntary associations personality rights of, 165 von Hannover case generally, 342–346 impact on Scots law, 552 Voyeurism right to privacy, 174 Website addresses cybersquatting, 430–431 Wounded feelings see Injury to feelings Wounding history of personality rights, 47 Wrongful conception medical law, 464–466 Wrongful detention see also Deprivation of liberty; Wrongous imprisonment

614

r i ght s of p e rs o n al i t y

Wrongful detention (cont.) arrest introduction, 258 private parties, 262 reasonable justification, 259–260 with warrant, 258–259 without justification, 260–261 generally, 257–258 mental patients, 261–262 private parties, 262 right to honour and reputation, 171 right to liberty, 170 Wrongful prosecution history, 123–124 right to honour and reputation, 171 Wrongful treatment of corpses actio iniuriarum, 564 medical law, 474–478 post mortem personality rights, 204 real injury, 79–80 Wrongfulness elements of liability, 208–209 Wrongous imprisonment see also Deprivation of liberty; Wrongful detention

Wrongous imprisonment (cont.) Act anent Wrongous Imprisonment 1701 liability, 112–113 purpose, 111–112 remedies, 134 criminal law, 63–64 liability at common law malice and lack of probable cause, 114–116 requirements for liability, 113–114 liability under Act anent Wrongous  Imprisonment 1701 requirements for liability, 112–113 scope of Act, 113 remedies Act anent Wrongous Imprisonment 1701, 134 common law, 134–135 right to liberty, 170 Zones of privacy see also Privacy introduction, 298–299 privacy of the person, 301–303 spatial/territorial privacy, 299–301