Eric Engle: Rights of Personality in the European Union
HARMONISATION OF RIGHTS OF PRIVACY AND PERSONALITY IN THE EUROPEAN UNION
ABSTRACT:
The objectives of this paper are:
1) To outline the similarities and differences between the common law and the civil law in order to determine
possible methods for their harmonisation.
2) To determine the basic laws of personality rights in the civil law and the common law and the civil law. To do so
it uses the examples of the U.K., the U.S., France and Germany.
3) To indicate possible paths of judicial harmonisation. These include: structural reconception of the common law.
Terminological and conceptual rapprochement between the common law and civil law. Privatisation through
contract. And universal law such as the European Convention on Human Rights.
The paper limits its discussion to the classical core of privacy and personality rights. It does not discuss harder
questions such as: 1) the right to privacy limits the power of the police to conduct searches and seize evidence. 2)
The liability for internet service providers for the content of web sites which they host. 1 3) The correct balance
between the right of a victim to privacy and the right of a criminal defendant to a fair trial. 4) Immunities of
politicians for statements made by them in their office, nor statements made against politicians or other celebrities.
This paper does not address the grey areas of this ill defined legal field because their resolution can only be
harmonised through legislation. Further detailing these grey areas in three or more legal systems would require much
more space than is available in an article. Harmonisation in those aspects of personality law will require legislation at
the E.U. level.
I BASES FOR HARMONISATION OF PERSONALITY AND PRIVACY RIGHTS IN THE EUROPEAN
UNION ........................................................................................................................................................... 3
A. Systemic Similarities between the Common Law and Civil Law .................................................................... 4
1. Historical Commonality ..................................................................................................................................... 4
2. Structural Similarities and Divergences ............................................................................................................. 5
3. Terminological Similarities ................................................................................................................................ 6
4. Conceptual Similarities ...................................................................................................................................... 7
5. Conclusion ......................................................................................................................................................... 8
B. Possible Methods for Harmonisation ................................................................................................................. 8
1. Theories of Liability ........................................................................................................................................... 8
2. Measure of Damages .......................................................................................................................................... 9
3. General Principles of Law .................................................................................................................................. 9
4. Harmonisation of Typological Differences ...................................................................................................... 10
5. Private Law ...................................................................................................................................................... 11
II A COMPARISON OF THE LAW OF PERSONALITY AND PRIVACY RIGHTS IN ENGLISH, FRENCH
AND GERMAN LAW: ................................................................................................................................. 12
A. Rights of the Person in the Common Law ....................................................................................................... 13
1. Defamation ....................................................................................................................................................... 13
2. A Right of Privacy? .......................................................................................................................................... 16
3. Economic Torts ................................................................................................................................................ 17
4. The European Convention on Human Rights ................................................................................................... 18
B. Droits de personnalité in French law ................................................................................................................ 19
1. Droit de la vie Privée ....................................................................................................................................... 19
2. Diffamation ...................................................................................................................................................... 20
3. Calomnie .......................................................................................................................................................... 20
See, e.g. Potts and Harris, “Defamation and the Internet”,
http://www.cyberlibel.com/defnet.html . There is, perhaps
unsurprisingly, an abundance of on-line material in all aspects
of computer law.
1
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Eric Engle: Rights of Personality in the European Union
4. Breach of Confidence (atteinte au secret) ........................................................................................................ 21
C. Persönlichkeitsrechte in Germany ................................................................................................................... 21
1. § 823 and § 1004 BGB ..................................................................................................................................... 21
2. 1 and 2 GG ....................................................................................................................................................... 22
3. § 187 StGB Verleumdung ................................................................................................................................ 22
4. § 186 StGB: Üble Nachrede............................................................................................................................. 22
5. § 185 StGB Beleidigung................................................................................................................................... 23
CONCLUSION............................................................................................................................................. 24
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Eric Engle: Rights of Personality in the European Union
I BASES FOR HARMONISATION OF PERSONALITY AND PRIVACY RIGHTS IN THE EUROPEAN
UNION
The rights of personality are, at least within the common law, a conceptually undefined subset of the set of torts.
Those rights could include protection against invasions of ones privacy, whether by the police or private persons,
against false statements to others, against intrusions, against misuse of one’s image, and in fact a wide variety of
social situations that do not admit of easy definition.
In European tort law these rights are marked by an absence of uniformity among the different national laws.2
Although these rights are ill defined we can nonetheless set out three theoretical points which will help us determine
the existence and extent of those rights.
- First, privacy rights often raise questions of the limits of the freedom of the press.3 As such they are a clash of
rights – namely the public’s “right to know” and the individual’s “right to be let alone”.
- Second, privacy rights protect either economic interests of persons over some alienable property right, e.g. the right
to their image, their voice, or they protect inalienable moral rights. The inquiry as to whether the right in question is
analienable property right or an inalienable moral right of the person will determine the extent of that right.
These two viewpoints - the clash of privacy and publicity and the question whether the right is economic or moral will help define and determine the extent of protection of the right of privacy.
We can add a third viewpoint which will also help shape our analysis: if the privacy rights often present a clash
between the freedom of the press and the individual’s right of privacy that clash can be decided by balancing the
interests. Where the privacy right is an property right by a comparison of cost/benefits and risks/rewards we can
determine the appropriate economic balance of these rights.
All privacy rights are not however property rights. In cases where the right is an inalienable moral right balancing
economic interests really is not appropriate. But in the former case economic cost-benefit analysis4 can determine the
extent of the right in question.
Resolving the conflict between the individual’s right to privacy and the right of society to know the truth requires
balancing competing claims to fundamental rights. As a consequence, much of the law of the rights of personality is
case law.5 These facts explain that harmonising the national laws of the Member States will be difficult. It also
explains why an E.U. codification would be desirable. This paper will nevertheless attempt to show ways in which
the judiciary can balance these competing interests and methods the judiciary can use to harmonize the divergent
laws in the field of personality rights. Comparative law can thus serve to harmonise national laws in the interest of
substantive justice.6 This brief comparison of the differing legal systems of the common law and civil law using the
examples of the U.K., the U.S., France, and Germany hopes to contribute to that process.
Westerman and Grosheide, „BGH Urteil Caroline von Monaco“,
European Review of Private Law 2: 237-260, 252 (1997).
3 Ibid, 258.
4 Gerhard Wagner, „Geldersatz für Persönlichkeitsverletzung“,
Zeitschrift für Europäischen Private Recht Vol. 8, 200, 207
(2000).
5 “Das deutsche Recht des Persönlichkeit ist seit jeher eine
Schöpfung der Rechtsprechung”,
Gerhard Wagner, „Geldersatz für Persönlichkeitsverletzung“,
Zeitschrift für Europäischen Private Recht Vol. 8, 200 (2000).
6 Walter van Gerven,
"The Case law of the ECJ and National Courts as a Contribution to
the Europeanisation of Private Law",
European Review of Private Law
Vol. 3, 367-378 (1995).
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Eric Engle: Rights of Personality in the European Union
A. Systemic Similarities between the Common Law and Civil Law
Despite cacophony in the field of personality rights, the national legislators often rely on similar conceptual pools.
This leads to some de facto harmonisation.7 How is the E.U. to transform this de facto similarity into de jure unity?
Efforts to harmonise the common law and the civil law would do well to first consider the history and the structure of
the two systems. Their common history and structure are a theoretical basis for harmonisation. Part of the task of
transforming that theory into practice will be the elaboration of common legal terms and concepts. Both terms and
concepts within the two systems already exhibit elements of commonality. Nevertheless at present the law of privacy
involves as many divergences as convergences. The task of European law is to encourage the latter and discourage
the former.
1. Historical Commonality
Efforts to harmonise the law of privacy and personality in the European Union should begin with an understanding
of the common history and methods which are the foundation of both the common law and the civil law. Historically
speaking the common law and civil law are both branches of Roman law tradition. Historical developments later on
also show that there are in fact civil elements in the common law. International law, chancery,8 canon law and
canons of construction,9 and Scottish law10 are clearly influenced by the civil law. Lex mercatoria and admiralty are
also influenced by the civil law. 11 So there are valid historical reasons to see the common law as another national
law system within the Roman law tradition which however relies much more strongly on custom and does not rely
on doctrine (the works of learned scholars), maxims or general deductive principles for its interpretation.
Nevertheless basic concepts such as property, crime, tort/delict and contract permeate both systems. The two systems
are substantively very similar though procedurally divergent.
Harmonisation can be used by drawing on common conceptual pools, especially in substantive law. But those
common points of reference exist side by side with lurking procedural divergences which cannot be ignored if they
are to be unified. Unlike continental civil law, the common law did not evolve out of universities 12 but rather through
the courts and is based principally on custom embodied in authoritative legally binding judicial decisions: In contrast
the civil law does not admit a principle of stare decisis. Legal inference in the common law is inductive, whereas
inference in the civil law is generally deductive. Finally, general principles of law, with the notable exceptions of
international law and constitutional law, do not exist as a source of authority in the common law.
This is not to say that customary law played no role in the civilian tradition. It did, especially in land law. History
also shows us, perhaps surprisingly, that the French legal system prior to the French revolution looked remarkably
similar to that of England: juries, great judicial discretion, and the binding power of precedent were features of
French law prior to the revolution. However the role of custom in the civilian tradition was not as extensive in
practice as in the common law. And since the French revolution, the jury in France as an institution has been almost
completely eliminated and the notion of judicial police (Greffiers, Huissiers, and the parquet) is alien to the common
law. So in the desire to achieve a unified European legal system we should be careful not to overemphasize the
commonalities lest we ignore the points of divergence.
Westerman and Grosheide, „BGH Urteil Caroline von Monaco“,
European Review of Private Law 2: 237-260, 260 (1997).
8 Reinhard Zimmerman,
"Der Europäischer Charakter des Englischen Rechts",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 1, No. 1 4, 27(1993).
9 Ibid, p. 21.
10 Ibid, 36.
11 Ibid, 29, 51.
12 Ibid., 10.
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2. Structural Similarities and Divergences
Structurally speaking the organisation of the civil law is perhaps the point of greatest theoretical divergence between
the civil law and the common law. The civilian organisation of the law into the four branches of law Public/Private
and National/International law is wonderfully logical. However while the public/private distinction exists in
international law there is no great divide between public and private law in the national law of the common law
jurisdictions. The notion of autonomous branches of law each with their own rules of interpretation does not exist in
the common law. Despite this fact similarities in the sources of law and similar legal mechanisms and methods
permit harmonisation of these two systems, particularly if the common law adopts the civil law typology – and in
international law it already does.
a. Sources of Law
The fact that the common law is one branch of the Roman law tradition can be seen most clearly when we consider
the sources of law. The sources of law in both systems are custom, statute, judicial opinion and the works of learned
scholars. Both systems also feature similar interpretative principles (the canons of statutory construction) and express
the essence of the law in latin maxims.
There are some divergences here however. The common law does not recognize general principles of law outside of
international law. Doctrine (i.e. the works of learned scholars) is not recognized as a source of law or even as a
persuasive authority in the common law – at least not since Blackstone. The various civil law regimes generally only
grant doctrine persuasive authority (which was not the case under Roman law which saw doctrine as obligatory).
Most of the divergences are to the weight given the sources of law, i.e. whether the authority is obligatory or merely
persuasive. Case precedents are obligatory in the common law (they are not in fact a source of law but rather
evidence of customary law). Case law is, at least theoretically, merely persuasive in the civil law. While the general
principles of law outside of international law had no role in the common law they are beginning to enter into the
common law via treaties with domestic application such as the Treaty of Amsterdam and the European Convention
on Human Rights. At their base, both European legal systems are founded upon the idea of the rule of law: their
similarities, especially if only substantive law is considered, are much greater than their differences.
b. Substantive and Procedural Law
Just as the sources of law are similar in the two systems so also are the legal methods applied by each system in the
administration of law. Both the common law and civil law employ the concepts of legal personality, legal capacity,
and presumptions (which are either rebutable or irrebutable). Though the particularized rules of a Werkvertrag or
Arbeitsvertrag do not find any similar formal expression in the common law, i.e. “a contract is a contract” they do in
French law (e.g. contrat de travaille, CDD CDI…). Apart from this statutory particularity of certain contracts (e.g.
work contracts) English, French and German contract law are remarkably similar: all three apply basic principles 13 of
Indeed once one understands the importance of general
principles of law – corresponding roughly to the notion of
fundamental rights – in the interpretation of civil law one can
be tempted to think that through a linkage of general principles
of European ius commune would be a way to harmonise European law
– a sort of “reverse functionalism”. This approach could be taken
and is not impossible, however the abstraction of general
principles indicates that they would lead to concrete divergences
in national laws and thus, probably, would not lead to a real
harmonisation. Thus one can be both sceptical and hopeful toward
the idea of a harmonisation of European law through judicial
interpretations relying upon general principles of ius commune.
13
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contract law: freedom of contract, offer, acceptance, and absence of incapacity. These common methods could form
the basis for judicial interpretation14 of general principles of European law, i.e. a ius commune.
Admittedly, procedural aspects of the common law and civil law can be very different in terms of positive law.
However even here the conceptual objectives and practical applications are similar. Thus, for example, an affidavit,
a Bestätigung, and an attestation all look suspiciously familiar to each other. Further, each system uses a system of
general rules with specific exceptions and presumptions (irrebutable or rebutable) to determine substantive rights.
If the history and structure of the two systems allow harmonisation in theory, transforming that theory into practice
will require a unified legal terminology and unified legal concepts. While there are plenty of similarities even at the
terminological level, it is also clear that the terminological divergences are the most readily remedied. Reform of
terminology can even occur merely through doctrinal and lexicographical work.
3. Terminological Similarities
Legal terminology can in practice either be a bridge or an obstacle to harmonisation. Almost every Member State has
its own language and each Member State’s language has equal value. That leads to a situation not unlike the
legendary tower of Babel.15 Because of linguistic polyarchy, terminological incertitude is an inherent problem in
harmonising the private law order.16 Each legal system has its own terms which it uses to describe legal concepts.
These terms may be similar or even the same but that is not always the case. Because of divergence in terms, there is
a great deal of room for ambiguity, uncertainty and confusion in European law. 17
On the illusion of general principles as a source of
harmonisation see:
Jaap Spier, Olav Haazen,
"The European Group on Tort Law (Tilberg Group)
and the European Principles of Tort Law",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 7, No. 3 471-472 (1999).
14 Van Gerven,
"The Case law of the ECJ and National Courts as a Contribution to
the Europeanisation of Private Law",
European Review of Private Law
Vol. 3, p. 367-378, 367 (1995).
15 Dieter Martiny,
"Babylon in Brussel?",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 6, No. 2 (1998).
16
On the possibilities and problems of creating a common
european legal language see, e.g. Daniela Caruso,
"The Missing View of the Cathedral: The private law paradigm of
European Integration",
European Law Journal
Vol. 3 No. 1, 3-32, 3 (1997).
17
Jaap Spier, Olav Haazen
"The European Group on Tort Law (Tilberg Group)
and the European Principles of Tort Law",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 7, No. 3 469, 472 (1999).
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This can be illustrated abstractly. Term A in one Member State has meanings one, two and three. Term B in another
Member State has meanings two, three and four. While both terms do describe the facts which lead to law two and
three they also diverge on terms one and four.
Some scholars of linguistics, notably Willard Quine 18, think that this sort of ambiguity is inevitable in language. As
Quine points out, language is in fact recursive: terms of a language are defined by other terms in the language.
However even if language is only a social construct (Saussure),19 having an arbitrary character because it is only
purely symbolic, 20 lawyers nonetheless agree to use and construct an intersubjective linguistic array 21 which they
then deploy to “solve” legal problems. In practical terms, the construction of an intersubjective lexicography for the
development of a common European law is the eventual goal of European comparative law scholarship.
So despite the syntactical problems, harmonisation of legal terms and legal concepts is possible. The first difficulty,
an absence of a common legal language, can be resolved to some extent by resort to law latin, and also to philology.
Terms within the latin countries are all roughly cognates. Many English law terms are in fact law French, and thus
can be traced to homologous concepts and cognate terms in French law – and other latin countries as well.
Philologically speaking, harmonisation is also helped by the fact that at least for now (with the exception of Finland
and Basque land) the EU Member States are members of either the latin or germanic group of languages. So there is
a real basis for terminological convergence in European law. Semiotics and linguistics, rather then being a source of
further confusion are in fact valuable tools to work toward harmonisation.
4. Conceptual Similarities
Terminological divergence is thus a manageable problem and by unification of terms a potential bridge towards
harmonisation. What about conceptual divergence? Conceptual divergence is unfortunately a real problem. Different
legal systems have different legal concepts which may be similar but which are rarely congruent. Even where similar
terms are found in neighboring lands referring to similar concepts the degree of correlation is imperfect. For
example, defamation in English law may be a term which corresponds to diffamation in French law, but even if the
“Both Willard Van Orman Quine’s and Donald Davidson’s theories
of reference and meaning are holistic in character. According to
that view, the interpretation of an utterance is necessarily
based on the interpreter’s system of knowledge, beliefs, and
attitudes including those about and towards the speaker. Quine’s
concept indeterminacy of translation (1960: ch. 2) that has also
inspired Davidson at numerous occasions (cf. essays 2, 4, 9-11,
13, and 14 in Davidson 1984) is central to the two authors’
accounts of linguistic interaction.”
Tilo Weber, “Shared Background and Repair in German Conversation
Committee”,
http://www2.germanistik.uni-halle.de/weber/Tilo/prosp.html
19 “Saussure argues that the relation between a sound pattern and
a concept is arbitrary; that the linguistic sign is an
‘arbitrary’ relation.”
Christopher Walker, “The Swiss and The Sign.”,
http://www.martnet.com/~lexicon/origins.html
20 “Saussure argues that the relation between a sound pattern and
a concept is arbitrary; that the linguistic sign is an
‘arbitrary’ relation.”,
Christopher Walker, “The Swiss and The Sign.”
http://www.martnet.com/~lexicon/origins.html ,
21 Drucilla Cornell “Transformations”
(1993),
http://www.marxists.org/reference/subject/philosophy/works/us/cor
nell.htm ,
18
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Eric Engle: Rights of Personality in the European Union
legal elements are similar or the same the procedural methods of proof will only be similar and the assessment of the
available damages will probably be very different. Another example: in contract law, the French notion of “cause”
and the English concept of “consideration” might appear at first glance tantalizingly similar – but in fact there are
real differences between the two! So while conceptual similarity encourages harmonisation it should not lead us to
ignore conceptual differences which must be squarely addressed.
5. Conclusion
Divergences in the positive law of the two systems are not the result of radically different legal structures. Nor are
they the result of differing legal cultures. Since both systems seek to govern the same material phenomena that also
cannot be the source of divergence. Divergences in the positive law are in fact the result of legislative and
interpretative decisions in individual instances. Thus building a European ius commune which would operate to
harmonise the French droit commun, i.e. the civil law, and the English common law is feasible.22
B. Possible Methods for Harmonisation
Legal diversity leads to divergent legal terms, concepts and rules which increases transaction costs. What are the
possible solutions to this “tower of babel” of rules, terms and concepts?
1. Theories of Liability
Despite differences in substantive law both theories of liability and measuring damages in the two systems will be
similar. By focusing on this judges can harmonise their decisions to those of other Member States.
The objective of the damage award may be to compensate the plaintiff for their loss or the defendant’s gain. 23 The
imputation of tort liability may also seek to punish – though at least in British law, the goal of torts against
personality rights is not to punish, but to compensate. 24 The determination of tort liability may also seek to prevent
further torts,25 either by the tort feasor or by other potential tort feasors. Thus tort law can serve the role of
deterrence.26 The imputation of tort liability may also seek to provide an emotional satisfaction to the injured party
for the wrong that was done to them. 27 Finally economic rationales will also justify the imputation or non-imputation
of tortious liability.28
None of these general conditions change the fact that the competing interests of privacy and freedom of the press
lead to legal ambiguity. Thus, for example, monetary compensation for immaterial damages in German law is in a
grey area between a theory of punishment and compensation for damages (Schadensersatz)29
Roman law answered these questions by focusing primarily on damage to one’s fortune in torts of personality rather
than on the injury to the honor of the victim. 30 Cases of injury to one’s honor would be remedied under a theory of
vengeance.31 However these theories of liability will be available in both systems.
Walter van Gerven,
"The Case law of the ECJ and National Courts as a Contribution to
the Europeanisation of Private Law",
European Review of Private Law
Vol. 3, 367-378 (1995).
23 Westerman and Grosheide, „BGH Urteil Caroline von Monaco“,
European Review of Private Law 2: 237-260, 258 (1997).
24 Ibid.
25 Ibid, 241.
26 Gerhard Wagner, „Geldersatz für Persönlichkeitsverletzung“,
Zeitschrift für Europäischen Private Recht Vol. 8, 2000. p. 200,
201.
27 Ibid, 241.
28 Ibid, 201.
29 Ibid, 204.
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2. Measure of Damages
Once a theory admits liability of the defendant for the loss to the plaintiff, the question arises how are those damages
to be measured. Again, by focusing attention on common methods of measuring damages some harmonisation can be
achieved via judicial decision. The measure of the damages will be determined according to the theory which
determined the liability of the defendant and also taking into account the substantive damage. 32 There is sufficient
ambiguity in the evaluation of damages generally to permit a volontarist judicial harmonisation.
When assessing material damages the inquiry as to their market value can either focus on the loss to the plaintiff, the
gain to the defendant or both. In determining that question we must examine whether the correct measure is to look
at what the defendant would buy the right for, what the defendant would sell the right for, or what the market would
pay for the right33 which should correlate to the appropriate measure of damages. 34 We may also have to determine
whether and to what extent punitive damages should be imposed.35
Ambiguity in evaluating the measure of damage also arises whenever the damaged interest is not a material good.
For example injuries to one’s pride, embarrasment, or emotional injuries are clearly injuries but are not injuries to
fungible goods.36 How are those injuries to be measured?
All of these facts show why economic analyses of law are not a panacea and raise as many methodological issues as
they claim to solve. It is no more simple and is not even necessarily more objective to balance competing economic
interests than it is to balance any other clash of interests. However their very manipulability could allow them to be
used to serve the ends of harmonisation.
Currently however national regime has its own answers to these questions because these are normative questions.
Yet the divergences in the determination of the correct measure of damages are greater than the divergences in
determining whether conduct constitutes a tort. So this paper focuses its comparison on the determination of the
existence of a tort. In the long term however a European civil code will have to supplement and replace national
efforts at harmonisation precisely because of these divergences and will have to define both what constitutes a tort
and what is the correct measure of damages.
3. General Principles of Law
One proposed solution to harmonise law would be to rely upon the general principles of law to create overarching
concepts which would be used to harmonize divergent national rules. This solution is possible but must take be
aware of systemic differences between the common law and the civil law.
In the civil law, general principles of law provide abstract general guidelines for the interpretation of statutes and can
even be the source of substantive rights, e.g. jus cogens. However the use of the general principles of law as a
method for harmonisation runs into the difficulty that the general principles of law as a source of law or even as
persuasive evidence of the law were not recognized at the common law. An analagous concept, “fundamental rights”
does exist in U.S. and Canadian law. The “canons of construction” and rules of interpretation also exist in the
common law jurisdictions and these interpretative principles are the same or broadly similar to the general principles
of law recognized by civil law jurisdictions. Indeed legal maxims, which in civil law are evidence of the general
principles, do exist in English common law but are merely synopses of other authoritative sources.
30
31
32
33
34
35
36
Ibid,
Ibid,
Ibid,
Ibid,
Ibid.
Ibid,
Ibid,
202.
202.
210.
211.
215.
211.
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Eric Engle: Rights of Personality in the European Union
The most likely inroad for the general principles of law to enter into the common law is via treaties such as the
European Convention of Human Rights (ECHR). The ECHR was incorporated into the national law of the U.K. with
the passage of the Human Rights Act. As time passes the notion of fundamental rights and general principles will
make inroads into British law and the use of the general principles of law as a method to harmonise European
Community law will become more and more likely.
It is the case that we are witnessing the emergence 37 of general principles of European law through an immanent
logic of justice.38 However the analysis should not be taken too far lest it disappoint itself. There is as of yet no
general European unified tort law like Unidroit, or the Vienna Convention which would create a harmonised
European law.39 On the other hand, Article 8 of the European Convention on Human Rights provides for the
protection of privacy. Unifying laws such as the ECHR will likely provide part of the solution to the problem of the
contents of the rights of personality.
4. Harmonisation of Typological Differences
If the common law is to harmonise with the civil law than it would do well to examine and adopt the eminent logic of
the civil law typology which divides the law into four great trunks: public international law, private international law,
public national law, and private national law. Each of these main branches has sub-branches some of which have
their own proper rules sometimes including their own autonomous rules of interpretation. The common law does
distinguish between national and international law but makes no distinction as to private vs. public law, which is part
of the reason that private international law is also known as conflicts of law at least in the United States. The
different branches of civil law, even when subject to autonomous rules of interpretation, are all guided by general
principles of law.
While the common law as a body of rules of law creation and interpretation does not develop different principles of
interpretation (with the possible exception of administrative law including tax law – even there the distinctions are
merely procedural and are not considered by appellate courts) in its different branches, it is nonetheless true that
there are some conceptual differences between the typology of private national law and the common law. Unlike the
civil law, the common law clearly distinguishes between tort and contract. Contract and tort can be distinguished by
the fact that one transaction is voluntary and the other is involuntary. Tort ordinarily implies some sense of fault, or
at least negligence, while breach of contract is not necessarily the result of fault. Torts in common law, unlike the
delikt in civil law, are also distinguished from crimes by different procedural rules. The tort, as it is not a crime, does
not have to meet a heightened standard of proof. Further the tort feasor must be generally shown to be only
negligent, and does not need to be proven to have been willful or malicious – though the tortfeasor’s mens rea can in
fact influence awards of punitive damages and, in the U.S., court costs.
"Rechtsprinzipien im Europäischen Privatrecht sind erst
rudimentär erkennbar",
Hans Micklitz,
"Perspektiven eines Europäisches Privatrechts"
Zeitschrift für Europäischen Private Recht
Vol. 6, 253, 267 (1998).
38 Hans Micklitz, ibid., 274 speaks of
"eine... immanente Gerechtigkeitslogik“ common to all European
law. The jus naturel argument implicit here should be met with
scepticism if only out of prudence as divergent practices have
always shattered natural law theories of imminant legal unity and
harmony leaving us with cold positivism and hard facts.
39 Jaap Spier, Olav Haazen,
"The European Group on Tort Law (Tilberg Group)
and the European Principles of Tort Law",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 7, No. 3 469, 469 (1999).
37
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All that is conceptually rather different from the civil law. In the civil law tort and contract are lumped together as
the sub-branch of private national law known as obligations. However criminal torts, i.e. intentional (or even
negligent) torts are considered délits (in German, delikts). Happily English law does have, though rarely uses, the
term delict. A délit is less severe than a crime, and French law does indeed use the terms “délit” and “crime” to
distinguish between what the common lawyer would call a “tort” 40 and a “crime” which could be analogised to the
distinction between misdemeanor (a crime bearing less than one year of imprisonment) and felony (a crime
punishable by one year or more of penal servitude).
5. Private Law
Another proposed solution is the use of private law relationships to provide harmonisation de facto via private law
contracts.
It is true that creation of a single European market has led to an increasing application of private law 41 – and
attendant problems42 - which may or may not be overcome with Euro-Enthusiasm.43 While “privatisation” of the law
through contract – e.g. permitting contracts to be governed by the law of a certain jurisdiction is a partial and
imperfect solution.44 If Europe is to develop a common private law of obligations it will eventually have to develop a
European Civil Code45 even in fields such as tort law.46 Whether codification includes Britain or the the Nordic
One of the ironies of the common law is that the word tort is
derived from a French word which means: “wrong” and a latin word
meaning “twist” (torquere).
41 Gerrit Betlem, Ewoud Hondius,
"European Private Law after the Treaty of Amsterdam",
European Review of Private Law
1: 3-20, Vol. 9 No. 1 p. 3 (2001).
42 Ibid, p. 9.
43 Ibid, p. 11.
44 Klaus Berger,
"The Principles of European Contract Law and the concept of the
creeping codification of law",
European Review of Private Law
1: 21-34 Vol 9, No. 1 (2001).
45 There is no absence of material calling for codification, i.e.
the creation of a common European Civil Code. See, inter allia
Winfred Tilman,
"Towards a European Civil Code",
ZEuP (Zeitschrift für Europäisches Privatrecht)
Vol. 3, No. 3 (1997);
Walter van Gerven,
"The Case law of the ECJ and National Courts as a Contribution to
the Europeanisation of Private Law",
European Review of Private Law
Vol. 3, 367-378 (1995).
In fact, an entire issue of the Review of Private European Law in
1997 was devoted to the subject.
46 Jaap Spier, Olav Haazen,
"The European Group on Tort Law (Tilberg Group)
and the European Principles of Tort Law",
ZEuP (Zeitschrift für Europäisches Privatrecht)
40
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Eric Engle: Rights of Personality in the European Union
countries is another question: a “two speed europe” with a federal core and a confederal rim may be the way forward
for “reluctant Europeans” – though it would not be the more economical choice.
II A COMPARISON OF THE LAW OF PERSONALITY AND PRIVACY RIGHTS IN ENGLISH, FRENCH
AND GERMAN LAW:
In the first half of the paper we considered general issues regarding the harmonisation of the European private law.
In this section we turn our attention to a comparison of the private law of personality rights in the common law (U.S.,
U.K.) and the civil law (France, Germany).
As was mentioned in the introduction, the individual rights of privacy and personality are in conflict with the right of
society to know the truth and the right of individuals to freedom of speech. These competing interests will be
balanced differently if the right in question is an inalienable right of the person over their personality (i.e. a moral
right) or instead is merely an alienable property right.47 This determination, whether the right is personal and
inalienable or economic and alienable will also influence the remedy for injury to those rights. Determining whether
these rights are property rights or moral rights may well best be left for a legislator - which underscores the necessity
of an EU civil code.
To a common law lawyer, particularly to an American common law lawyer, this question of personal rights vs.
property might appear moot. The remedy for breach of a right in the common law is ordinarily the monetary value of
that right. Almost all rights in the common law are de facto fungible, and one could fairly speak of a presumption in
practice of fungibility of rights in the common law. That is not however the case in the civil law.
In the common law the general rule is the remedy for injury is monetary compensation: exceptionally however nonpecuniary remedies such as injunctions are available. Some common law rights have no economic value and yet are
protected by remedies such as abatement (to prevent a nuisance) or nominal damages (to provide satisfaction to the
injured parties where there is injury without damages – damnum sine injuria or where the damages are so trifling as
to be without measure - de minimis non curat lex ). Such examples however are exceptions to the general rule and
Vol. 7, No. 3
p 469 at 470 (1999).
47
IDENTITY OR PROPERTY ?
“The traditional privacy torts of disclosure, intrusion, false
light, and appropriation in American law require an invasion, an
intrinsic harm caused by someone’s doing something to us without
our consent. Theorists have attempted to reduce all invasions of
privacy to one harm. It has been argued that all invasions
disclose information and so deny our freedom to regulate how
others perceive us and that they are all intrusions in which we
are treated as objects. But the way in which our privacy is being
put at risk has changed because we are now voluntarily giving up
information about ourselves - to our physicians, for instance that is being gathered into data bases to be appropriated. This
leads to a new understanding of the concept of privacy which
reconciles that divergent set of values which marked our
understanding of the old privacy torts. There is something
appropriated, but it is our identity, not our property. But
taking our identity as one takes a piece of property is to deny
our standing as autonomous moral agents.”
Wade L. Robison,
“Privacy and the Appropriation of Identity”,
http://www.ccsr.cse.dmu.ac.uk/resources/privacy/EIT-Robison.html.
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raise the theoretical question whether the right is fungible but uncompensated or infungible because they cannot be
measured. The answer would probably depend on the facts of the case.
Given the common law’s penchant for pragmatism and tendancy to monetise, schools of economics and the law find
fertile soil in the common law.48 The economic theory of law argues that all rights are de facto, and should be, de
jure, fungible because they believe that the competition to buy and sell rights leads to wealth maximisation. That
position, while comprehensible, ignores the fact that certain goods cannot in fact be priced. The limits of economic
valuation also explain the limits of an economic analysis of rights. Some goods cannot be valued by a market
economy, and other “goods” (“bads” in fact) should not be marketable.
The limits of economic reasoning about the law can be shown by a reductio: If there were to be no personal sphere of
existence apart from the economic than slavery and contract killing would be permitted as leading to the efficient use
of slaves and the useful elimination of uneconomic actors. Where to draw the line between alienable economic rights
and inalienable human rights is a political question and should be determined, at least in its broad lines, by referenda
or at least by directly elected legislators. Not only does Europe need a civil code, it also needs a truly democratic
legislator to enact it.
Lacking such codification, harmonistion efforts at present must focus on the existing national law orders and more
particularly on developing common terms, concepts, and legal methods. We now turn our attention to a study of the
rights of personality in the common law, in France and in Germany.
A. Rights of the Person in the Common Law
At common law, as opposed to statute, the torts of defamation, tresspass, and malicious falsehood are the bases for
an action to protect the right of the personality. There was no right to privacy as such, although such a right has
emerged in the US through the constitution and case law and in Britain through the European Convention on Human
Rights.
1. Defamation
Defamation is defined as “Protection against non-corporal injuries to one’s person”. 49 There are two types of
defamation, slander and libel.50 Both have common elements, namely an untrue statement which causes injury
leading to damages. To give rise to a cause of action the defamatory statement must be communicated to a third party
(i.e. someone other than the tort feasor and his or her victim).51
Truth is a defence to defamation.52 The consent of the plaintiff is also a defence. 53 Since truth is a defense it must,
like other affirmative defences, be proven by the defendant. Every other element of the claim must be proven by the
plaintiff like any other tort.
See, e.g. Landesand, Posner, The Economic Structure of Tort
Law, Cambridge: Harvard Univ. Press (1987).
49 “Defamation: An attack on the good reputation of a person, by
slander or libel.”,
DuHaimes Legal Dictionary,
http://www.duhaime.org/dict-s.htm#slander .
50 Arthur Hanson, Libel and Related Torts. New York: American
Newspaper Publishers (1969) p. 21-25.
51 For example the plaintiff must prove that the defendant
published or stated defamatory words or conduct. The defendant
however then may prove that the defamation was in fact true.
52 Wex Malone, Torts, St. Paul: West Publishing (1979) p. 143.
53 Arthur Hanson, Libel and Related Torts, New York: American
Newspaper Publishers (1969) p. 81-85.
48
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Eric Engle: Rights of Personality in the European Union
a. Slander
Slander is oral defamation.54 Because slander is “merely” oral communication, the plaintiff must show that the
slander caused him or her pecuniary harm. 55 That is, damages in cases of slander, like most other torts, must be
proven. This is not however the case in libel!
b. Libel
Libel is written defamation.56 In cases of libel, damages resulting from the defamation need not be proven, 57 they are
presumed.58 Thus the defendant bears the burden of proving that the plaintiff was not in fact injured by libelous
publications.59
Libel may result from print, image 60 or sound. The sale of each copy of a published libel is itself a distinct offense. 61
The libelous publication must be malicious; evidence of the malice may be either express or implied and a prima
facie libel will impute malice to its author though none be proven. 62
Wex Malone, Torts St. Paul: West Publishing (1979) p. 106.
With four exceptions:
a. Crime: Statements imputing morally culpable criminal behavior;
b. Loathsome disease: Statements alleging that P currently
suffers from a venereal or other loathsome and communicable
disease;
c. Business, profession, trade or office: An allegation that
adversely reflects on P’s fitness to conduct her business,
trade, profession or office;
d. Sexual misconduct: Statement imputing serious sexual
misconduct to.
56 “LIBEL, libellus, criminal law. A malicious defamation
expressed either in printing or writing, or by signs or pictures,
tending to blacken the memory of one who is dead, with intent to
provoke the living; or the reputation of one who is alive, and to
expose him to public hatred, contempt, or ridicule. Hawk. b. 1,
c. 73, s. 1; Wood's Inst, 444; 4 Bl. Com. 150; 2 Chitty, Cr. Law,
867; Holt on Lib. 73; 5 Co. 125; Salk. 418; Ld. Rgym. 416; 4. T.
R. 126; 4 Mass. R. 168; 9 John. 214; 1 Den. Rep. 347; 2 Pick. R.
115; 2 Kent, Com. 13.”,
Bouvier’s Law Dictionary,
http://www.constitution.org/bouv/bouvier_l.htm .
57 See, e.g. Hinsdale v. Orange County Publications, 171 NY2d
284.
58 “[T]he plaintiff in an action of defamation need not show that
the imputation has in fact damaged his reputation, but only that
it has a tendency to do so. Once he has established such a
tendency he is entitled to damages.”
Le Grand Dictionnaire Terminologique,
http://www.granddictionnaire.com/_fs_global_01.htm ,
59 Wex Malone, Torts, St. Paul: West Publishing (1979) p. 111.
60 “The reduction of the slanderous matter to writing, or
printing, is the most usual mode of conveying it. The exhibition
of a picture, intimating that which in print would be libelous,
54
55
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Cases of libel communicated solely to the person libelled are not actionable. 63
c. Privileged communications
Some communications are privileged and will not be able to be the object of a cause of action for defamation.
Privileged communications are either absolute or relative.
-Absolute Privilege:
An absolute privilege is a defense to defamation even where the defamation was malicious. 64 Statements made
during judicial or legislative proceedings, as well as statements by government officials, will enjoy an absolute
privilege, as do communications between spouses65 and publications which the plaintiff consents to. 66
-Qualified Privilege:
Other privileges are merely “qualified” or “conditional” ones. 67 Defendants can lose their qualified privilege if they
act from malice or if the reason for the privilege is not served by the privilege. 68
d. Group Defamation?
Unlike French law, there is no concept of “group defamation” or “hate speech” in the common law. Statutory
reforms have in some places been introduced, but not without resistance. If the group defamed is sufficiently small,
say a work-group or a family or a church, then the individual members might have a cause of action. But
is equally criminal. 2 Camp. 512; 5 Co. 125; 2 Serg. & Rawle 91.
Fixing a gallows at a man's door, burning him in effigy, or
exhibiting him in any ignominious manner, is a libel. Hawk. b. 1,
c. 73, s. 2,; 11 East, R. 227.”,
Bouvier’s Law Dictionary,
http://www.constitution.org/bouv/bouvier_l.htm
61 “The sale of each copy, where several copies have been sold,
is a distinct publication, and a fresh offence.”,
Bouvier’s Law Dictionary,
http://www.constitution.org/bouv/bouvier_l.htm
62 Bouvier’s Law Dictionary,
http://www.constitution.org/bouv/bouvier_l.htm,
4 Co. 14; 2 Burr. 807; Hawk. B. 1, c. 73, s. 8; 1 Saund. 131, n.
1; 1 Lev. 240; 2 Chitty's Cr. Law, 869; 2 Serg. & Rawle, 23.
63
“[I]t is not ordinarily actionable to send a libellous letter
directly to the person defamed”,
Le Grand Dictionnaire Terminologique,
http://www.granddictionnaire.com/_fs_global_01.htm .
64 Arthur Hanson, Libel and Related Torts, New York: American
Newspaper Publishers (1969) p. 85.
65 Wex Malone, Torts, St. Paul: West Publishing (1979) p. 164.
66 Arthur Hanson, Libel and Related Torts, New York: American
Newspaper Publishers (1969) p. 81-85.
67 Wex Malone, Torts, St. Paul: West Publishing (1979) p. 165.
68 Arthur Hanson, Libel and Related Torts, New York: American
Newspaper Publishers (1969) p. 95.
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defamations which inveigh against a class as such are not sanctioned at common law. 69 This could be justified if the
personality right is merely an economic right: the right to slur an individual would not be able to be bought or sold
and so its worth could not be determined. But if the personality right is a moral right to the integrity of one’s person
then that right is injured by epithets and slurs and the measure of damages would not be the market benefit to the
plaintiff but the moral detriment to the defendant. And thus the damage award would be determined not by a
rationale of compensation but by a rationale of prevention, deterrence and possibly retribution, i.e. punishment.
2. A Right of Privacy?
As we have mentioned, the common law recognizes no right of privacy as such. Rather a variety of torts protect
privacy interests: trespass for example protects a landowner or leaseholder from unwanted visitors. Britain has no
written constitution and British judges exercise more restraint in invading the legislative function so any
developments in the right of privacy outside of trespass, defamation, or an action on the case (trespass on the case) 70
will have to arise from treaties such as the Human Rights Act which incorporates the European Convention on
Human Rights into domestic British law. A plaintiff could also rely on the theory of trespass on the case. Trespass on
the case is a catch-all category for any tort which did not fit into the facts foreseen in the other torts. The remedy for
injury suffered depends on the case, i.e. on the actual facts of the case at bar 71 and hence the name of the tort.
Privacy interests against nuisances such as excessive noise or overuse of adjacent roads could also be remedied via
injunction – one of the exceptional instances of a non-monetary remedy in common law. Other than the possibility of
an action for trespass on the case, the privacy rights will have to be developed through the Human Rights Act which
is the enabling act for the European Convention on Human Rights.
American constitutional law, unlike Britain, has developed four independent torts designed to protect privacy rights.
The interest of the American law is only as a source of comparison and information as opposed to harmonisation. US
tort law recognizes the “right to be let alone.”72 There are four emanations of this general right:
Wex Malone, Torts, St. Paul: West Publishing (1979) p. 133.
“This is the name of an action in very general use, which lies
where a party sues for damages for any wrong or cause of
complaint to which covenant or trespass will not lie. Steph. Pl.
153 Wodd. 167 Ham. N. P. 1. Vide Writ of trespass on the case. In
its most comprehensive signification, case includes assumpsit as
well as an action in form ex delicto; but when simply mentioned,
it is usually understood to mean an action in form ex delicto. 7
T. R. 36. It is a liberal action; Burr, 906, 1011 1 Bl. Rep. 199;
bailable at common law. 2 Barr 927-8; founded on the justice and
conscience of the plaintiff's case, and is in the nature of a
bill in equity 3 Burr, 1353, 1357 and the substance of a count in
case is the damage assigned. 1 Bl. Rep. 200.”,
Bouvier’s Law Dictionary,
http://www.constitution.org/bouv/bouvier_c.htm .
71 “action on the case (torts)
an action on the facts of the particular case
i.e. an action that does not come within any of the ancient
categories”,
Peter Underwood, Australian Legal Information Institute,
http://www.law.uts.edu.au/~peteru/torts/f6336.htm .
72 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E.
68, 71 (1905); Summers v. Bailey, United States Court of
Appeals, Eleventh Circuit,
http://www.law.emory.edu/11circuit/june95/94-8722.opa.html .
69
70
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(1)
(2)
(3)
(4)
the tort of intrusion upon plaintiff's seclusion or solitude, or into her private affairs – which would also
be a cause of action for trespass;
public disclosure of embarrassing private facts about the plaintiff – which may or may not have been
protected at common law as a medical, clerical or marital secret;
publicity which places the plaintiff in a false light in the public eye;73 and
appropriation, for the defendant's advantage, of the plaintiff's name or likeness, 74 which might also give
rise to a common law cause for conversion.
Whether these rights should be adapted into European law is an eventual question for the European Parliament.
3. Economic Torts
Economic torts are common law consumer protection. They do not protect the person or personality, rather they
protect property rights.
a. The tort of passing off75
The tort of “passing off” is simply the tort committed by fraudulent misrepresentation to a buyer which injures a
competitor’s trade.76 As such there is an element of false statement regarding reputation which does explain the
“False light has been called a ‘lite’ version of libel.
Indeed, the two legal theories are so similar that some states do
not recognize a separate cause of action for false light.
Plaintiffs who sue for false light must prove that the media
published something false about them, just as in a libel suit.
However, the plaintiff need not show that his or her reputation
was damaged, but rather that he or she was falsely portrayed in a
manner that a reasonable person would consider offensive. False
light is intended to compensate for hurt feelings rather than
damaged reputation.”,
Reporter’s Committee of Freedom of the Press,
“The Privacy Paradox: Civil Suits”,
http://www.rcfp.org/pp_pt1.html .
74 Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409
S.E.2d 835, 836 (1991); Cabaniss v. Hipsley, 114 Ga.App. 367, 151
S.E.2d 496, 500 (1966).
75 Baldwin’s Law Firm, “Australian Passing Off Law”,
http://www.baldwins.com.au/passoff.htm .
76 “In Erven Warnink BV v. J Towned & Sons (Hull) Ltd (1979) Lord
Dipolock identified the five key elements of the tort of passing
off:
1. a misrepresentation,
2. made by a trader in the course of a trade,
3. to his prosective or ultimate customers,
4. which is claculated to to injure the business or goodwill of
another trader or injury to the business or goodwill is a
reasonably foreseeable consequence; and
5. which actually casuses damage to the business or goodwill of
the claimant trader or will probably do so.”
"Law Machine",
73
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similarity to the privacy rights or to defamation. The injured party is the competitor, although the tort does serve to
protect the interests of consumers as well as producers. The right protected is clearly economic and not that of the
moral integrity of the person. Nevertheless recent case law in several common law jurisdictions recognizes a
personality right against misappropriation of one’s image as protected by the tort of passing off. 77
b. The tort of deceit
The tort of deceit does not protect the interest of a competitor but rather that of the consumer. However the interest
protected is economic and not that of the moral integrity of the person. Essentially, tort law will punish intentional
misrepresentations intended to induce reliance which causes damage to the person thereon relying. 78 The reliance
must have caused some damage, but all damages, whether forseeable or not, will be compensated. 79
4. The European Convention on Human Rights
The European Convention on Human Rights is not self executing, that is it is not automatically transposed upon
enactment into domestic law because the U.K. is a dualist regime. Thus an enabling act was necessary to make the
convention applicable before British courts, 80 namely the Human Rights Act, which incorporates the ECHR into
British law.81 Prior to the Human Rights Act however the rights guaranteed under the ECHR could be defended
before the the European Court of Human Rights. For example, the British police practice of intercepting phone calls
http://www.startlawmachine.com/engwls/uklic_123/b_trt/module/a_tr
t_299.htm .
77 “The New Tort of Appropriation of Personality”, B. St. Michael
Hylton and Peter Goldson
http://www.mfg-law.com/marley.htm
78 “1. [A] defendant makes a false representation to the
claimant;
2. the false representation made is one of existing fact;
3. the representation of fact made by the defendant was known to
be false to the defendant, or the defendant was reckless as to
its truth or falsity;
4. the false statement was made with the intention that the
claimant should act in reliance upon the statement;
5. the claimant does act in reliance upon the statement; and
6. the claimant suffers damage on acting in reliance upon the
statement.”
http://www.startlawmachine.com/engwls/uklic_123/b_trt/module/a_tr
t_297.htm .
79 “In order to establish a claim for deceit the claimant must
show that he suffered some damage in consequence of the
defendant's false statement. The measure of damages for deceit is
by reference to reparation for all the loss suffered by the
claimant regardless of whether any consequential loss was
foreseeable or not (see Doyle v. Olby (1969)).”
http://www.startlawmachine.com/engwls/uklic_123/b_trt/module/a_tr
80 Sénat Francais : « La Protection de la Vie Privée Face aux
Médias », http://www.senat.fr/lc/lc33/lc33_mono.html#toc19 .
81 British Parliament, “The Human Rights Act”,
http://www.hmso.gov.uk/acts/acts1998/19980042.htm.
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was held to be a breach of the convention obligations of Great Britain. 82 Interpretation of the ECHR can ultimately
lead to a harmonised European law of rights of personality and this is one road to harmonisation.
As we can see the situation even within one legal system is not without confusion: on the one hand we see
overlapping multiple causes of action e.g. for invasions of privacy. On the other hand we also see unprotected areas,
e.g. for group defamations. One could conclude that the common law protects the wealthy land owner more than
religious or racial minorities. However European legislation would probably recognise the right of integrity of the
person as a group right, thus muffling some criticism.
B. Droits de personnalité in French law
We begin our comparison with France because it provides terms and even concepts which are often homologues to
the common law and thus serves as the best example for harmonisation by terminological rapprochement. The
French legal system, like that of Germany, organises injuries into either “obligations” or “délits”. Délits are crimes
and as such may be punished by imprisonment – unlike tort in English law tort. Obligations on the other hand may
either be contractual or tortious.
1. Droit de la vie Privée
Unlike the British common law French law recognises a general right of privacy in Article 9 of the French Civil
Code.83 The limits of that right have been described in the case law. This right can be limited by the public interest,
for example the amount of a persons revenue. 84
Malone v. Commissioner for the Metropolitan Police (no.2)
[1979] Chancery Division 344,
http://www.leeds.ac.uk/law/hamlyn/malone.htm.
83 "[C]hacun a droit au respect de sa vie privée". The civil
code, like Art. 1 and 2 of the German Grundgesetz, does not
define the contours and content of this right. Sénat Francais,
“La Protection de la vie privée fac aux Médias »,
http://www.senat.fr/lc/lc33/lc33_mono.html#toc19,
84 Sénat Francais, “La Protection de la vie privée face aux
Médias »,
http://www.senat.fr/lc/lc33/lc33_mono.html#toc19.
« [O]n peut conclure que le droit au respect de la vie privée est
"le droit pour une personne d'être libre de mener sa propre
existence avec le minimum d'ingérences extérieures", ce droit
comportant "la protection contre toute atteinte portée au droit
au nom, à l'image, à la voix, à l'intimité, à l'honneur et à la
réputation, à l'oubli, à sa propre biographie".
Les domaines inclus dans la protection de la vie privée
comprennent essentiellement l'état de santé, la vie sentimentale,
l'image, la pratique religieuse, les relations familiales et,
plus généralement, tout ce qui relève du comportement intime. La
jurisprudence admet que des informations sur le patrimoine ou les
revenus cessent de relever de la vie privée dans certains cas. Le
critère retenu est celui de la pertinence de l'information par
rapport au ébat d'intérêt public. Il peut donc être légitime de
consacrer une série de reportages à des affaires criminelles
ayant eu un grand retentissement dans le passé. En revanche, on
ne doit pas fournir, à cette occasion, des renseignements sur la
vie personnelle actuelle d'une personne condamnée lors d'un des
82
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Remedies for breach of this right include seizure or suppression of materials, damages and interest, and publication
of the court decision. Because suppression of the texts is in fact censorship that remedy is only available if the
divulgation is intolerable to the plaintiff. 85
2. Diffamation
The English law of defamation has its homologue in diffamation. The art. CP Art. R.622-1 of the French Penal Code
describes the délit of defamation.86 Truth is a defense and provocation can mitigate or excuse the diffamation. (CP
Art. R.621-2). Unlike the common law, diffamation in the French Penal Code specifically outlaws racist or
discriminatory defamation.87 Also unlike the common law a business entity can be judged guilty of a crime, 88 and
subject to punishment via forfeiture. US criminal law instead of targeting the corporation targets its directors.
Unauthorised use of a person’s image is sanctioned in the French Penal Code by Art. 226-8 which however only
imposes a pecuniary sanction.89
3. Calomnie
Calumny, or “bearing false witness” 90 is not an independent cause of action in the common law but is one form of
defamation. The word does however exist, and has its homologue in French law where we observe the délit of
procès en question et ayant purgé sa peine, sur sa famille et sur
ses habitudes. Ceci ne correspond en effet à aucune nécessité
pour l'information du public. »
85 Sénat Francais, “La Protection de la vie privée face aux
Médias »,
http://www.senat.fr/lc/lc33/lc33_mono.html#toc19.
86 Art. R.621-1 Code Pénal:
« La diffamation non publique envers une personne est punie de
l'amende prévue pour les contraventions de la 1ère classe.
La vérité des faits diffamatoires peut être établie conformément
aux dispositions législatives relatives à la liberté de la
presse. »
87 Art. R.624-3, Code Pénal,
« La diffamation non publique commise envers une personne ou un
groupe de personnes à raison de leur origine ou de leur
appartenance ou de leur non-appartenance, vraie ou supposée, à
une ethnie, une nation, une race ou une religion déterminée est
punie de l'amende prévue pour les contraventions de la 4ème
classe. »
88 Article R.624-6m, Code Pénal
« Les personnes morales peuvent être déclarées responsables
pénalement, dans les conditions prévues par l'article 121-2, des
infractions définies aux articles R.624-3 et R.624-4. »
89 Art. 226-8 Code Pénal,
« Est puni d'un an d'emprisonnement et de 100 000 F d'amende le
fait de publier, par quelque voie que ce soit, le montage réalisé
avec les paroles ou l'image d'une personne sans son consentement,
s'il n'apparaît pas à l'évidence qu'il s'agit d'un montage ou
s'il n'en est pas expressément fait mention. »
http://www.rabenou.org/divers/penal-tit.htm
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Eric Engle: Rights of Personality in the European Union
calomnie. Knowingly bearing false witness before an officer or agent of the state leads to 5 years of prison and a
300,000 franc fine. (Art. 226-10):91
4. Breach of Confidence (atteinte au secret)
The common law protects trade secrets and privileged communication with attorneys and physicians. French law
also protects professional secrets. Violating the professional secret is a délit punishable by one year of prison and a
100,000 franc fine.92 Under some cases however the state imposes a duty to divulge professional secrets, in which
case the punishment does not apply. (Art. 226-14). Reading or inhibiting others’ mail is also punished as a délit (Art.
226-15), including intercepting telecommunications. Art. 226 also protects against unauthorised, illicit, or fradulent
abuse of computer databases containing personal data.
As we can see the statutory torts in French law rather closely track the same common law torts in Anglo-Saxon law.
We now turn our attention to Germany. There we will see less similarity but still some points in common.
C. Persönlichkeitsrechte in Germany
Like the English common law and the French civil law, the basic contours of protection of the rights of personality
under German law revolve around a clearly defined central core which became recognized in the post war era. This
doctrinal similarity, stemming from similar goals sought by differing positive laws, is also seen in the “grey areas”
which are outside of this well defined core: the rights of the deceased; the rights – or absence thereof – of political
persons or even stage “stars” as the price or prize of fame; the rights to political speech; whether groups can be
defamed and if so to what extent.
We will discuss the uncontroversial core of personality rights and compare that with the other regimes of this study.
1. § 823 and § 1004 BGB
“Calumny: The intentional and generally vicious false
accusation of a crime or other offense designed to damage one's
reputation.”,
http://law.com/.
91 Art. 226-10, Code Pénal,
« Le dénonciation, effectuée par tout moyen et dirigée contre une
personne déterminée, d'un fait qui est de nature à entraîner de
sanctions judiciaires, administratives ou disciplinaires et que
l'on sait totalement ou partiellement inexact, lorsqu'elle est
adressée soit à un officier de justice ou de police
administrative ou judiciaire, soit à une autorité ayant le
pouvoir d'y donner suite ou de saisir l'autorité compétente, soit
aux supérieurs hiérarchiques ou à l'employeur de la personne
dénoncée, est punie de cinq ans d'emprisonnement et de 300 000 F
d'amende. »
92 Art. 226-13, Code Pénal,
« La révélation d'une information à caractère secret par une
personne qui en est dépositaire soit par état ou par profession,
soit en raison d'une fonction ou d'une mission
temporaire, est punie d'un an d'emprisonnement et de 100 000 F
d'amende. »
90
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Eric Engle: Rights of Personality in the European Union
One can raise a claim in tort for violation of privacy right as a general claim in tort under § 823 BGB. Because the
rights of personality are not defined in § 823 and § 1004, 93 the determination of the nature and extent of this right is,
as in France, largely a matter of case law decisions. 94 An injury to one’s right to privacy can give rise to monetary
damages, including a right to recover the unjust enrichment of the defendant 95 and a right of retraction.96 Like
English law, German law does not offer punitive damages to the plaintiff. 97
2. 1 and 2 GG
Invasions of privacy in German law can also be attacked on a theory of unconstitutionality. An action based on the
articles one and two of the German constitution are based on a theory not of compensation for damages
(Schadenersatz) but upon a claim for satisfaction (Genugtuung)98
3. § 187 StGB Verleumdung
Verleumdung appears similar to the tort of defamation: the assertion must be false, and known to be false by the tortfeasor. The reputation and good credit of the person are defended and the false statement which injures those
interests will be punished. Publication of the tortious assertion augments the penalty from two to five years of penal
servitude – or monetary punishment.99 The objective of this tort, at least according to the code, is not compensation
but punishment.
4. § 186 StGB: Üble Nachrede
Üble Nachrede, which might be translated as calumny, is defined in article 186 of the German Penal Code. The tort
of üble Nachrede punishes statements which, objectively speaking, will bring a person into bad public opinion. Truth
is a defense. Statements which are subjective and which injure another may constitute injury (Beleidigung).
Publication is an aggravating factor and elevates the imprisonment from one to two years or may augment the
monetary punishment.100
Westerman and Grosheide, „BGH Urteil Caroline von Monaco“,
European Review of Private Law 2: 237-260 1997, 241.
94 Ibid.
95 Ibid, 248.
96 Ibid, 242.
97 Ibid, 258.
98 Ibid, 201.
99 „Nach § 187 StGB macht sich derjenige strafbar, der wider
besseres Wissen über einen anderen eine unwahre Tatsache
behauptet, um diesen verächtlich zu machen, in der öffentlichen
Meinung herabzuwürdigen oder dessen Kreditfähigkeit zu
beeinträchtigen (siehe auch üble Nachrede). Die Strafe ist
Freiheitsstrafe bis zu zwei Jahren oder Geldstrafe. Wird die Tat
öffentlich, in einer Versammlung oder durch Schriften begangen,
so ist die Strafe Freiheitsstrafe bis zu fünf Jahren oder
Geldstrafe.“
E. Götze, "Rechtslexikon",
Fischer - Heymanns (2001),
http://www.heymanns.com/html/recht/ratgeber_recht/rechtslexikon/L
exikon.htm
100 Nach § 186 StGB macht sich derjenige strafbar, der in
Beziehung auf einen anderen eine Tatsache behauptet oder
verbreitet, die dazu geeignet ist, den anderen in der
öffentlichen Meinung herabzuwürdigen. Keine strafbare üble
Nachrede liegt dann vor, wenn die Tatsache nachweislich wahr ist.
93
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Eric Engle: Rights of Personality in the European Union
5. § 185 StGB Beleidigung
There is no tort in the common law which corresponds exactly to the German Delikt of Beleidigung: perhaps
calumny would be closest. Beleidigung compensates plaintiffs for injurious words uttered or written by the defendant
which insult the defendant and which bring them into bad public opinion. The fact that, at least in theory, injurious
words, even when subjective, can be punished under German law meets two objections in the common law: First, the
injury appears subjective, and certainly non-economic. The common law has to a certain extent developped a general
principle that damage must be measurable in market terms to be compensated and that damages are to be calculated
in terms of market value. Second, at least from an American perspective, punishing speech could be seen as a case of
the state violating the right to free speech. 101
Morally however there is much to be said for the German position. The callous indifference and amorality (or if you
prefer the cold logic) of the common law shows itself here. This harshness can be seen elsewhere as well. The
common law imposes no general obligation to help others. This is not the case in either the civil law of France or of
Germany. The absence of legal duty is presumed under the common law, unlike the civil law, and still only rarely
imposed statutorily. The unconvincing justifications for the presumption that no duty exists between persons in the
common law are concerns over freedom and the role of the state vis-à-vis the individual.
This is not the only instance of amoral indifference of the common law. In French law, even words which menace,
i.e. threaten, another can be punished as a crime. Assault can be merely words, but must be words sufficient to place
the victim in apprehension of imminent bodily harm.
Die Tatsachen sind von den bloßen Werturteilen und anderen
subjektiven Wertungen zu unterscheiden, die bloße Meinungen
ausdrücken, ohne daß sie durch Tatsachen elegt werden. Solche
Werturteile fallen nicht unter den Tatbestand der üblen Nachrede,
können jedoch eine Beleidigung darstellen. Die Strafe bei übler
Nachrede ist Freiheitsstrafe bis zu einem Jahr oder Geldstrafe.
Wird die Tat öffentlich oder durch Verbreiten von Schriften
begangen, so ist die Strafe Freiheitsstrafe bis zu zwei Jahren
oder Geldstrafe.
E. Götze, "Rechtslexikon",
Fischer - Heymanns (2001),
http://www.heymanns.com/html/recht/ratgeber_recht/rechtslexikon/L
exikon.htm
101 Nach § 185 StGB wird die Beleidigung mit Freiheitsstrafe bis
zu einem Jahr oder mit Geldstrafe bestraft. Ist die Beleidigung
mittels einer Tätlichkeit begangen, so ist die Strafe
Freiheitsstrafe bis zu zwei Jahren oder Geldstrafe. Die
Beleidigung ist ein Privatklagedelikt und wird nach § 194 StGB
fast ausschließlich nur auf Antrag verfolgt. Der Gesetzgeber hat
die Beleidigung nicht näher definiert. Es handelt sich um einen
rechtswidrigen Angriff auf die Ehre eines Anderen durch die
Kundgabe der Mißachtung oder Nichtachtung. Die Ehre ist die durch
Art. 1 GG geschützte Würde des Menschen. Also, sein innerer und
äußerer Wert und seine Geltung in der Gesellschaft.
E. Götze, "Rechtslexikon",
Fischer - Heymanns (2001)
http://www.heymanns.com/html/recht/ratgeber_recht/rechtslexikon/L
exikon.htm
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Eric Engle: Rights of Personality in the European Union
Another example is the case of group defamation. Again, unlike the common law, both the French and German
legislators have had no problem in determining first the existence of a legal concept of group defamation and second
a corresponding sanction for those who choose to malign groups. Germany has shown itself more reluctant to
recognise group defamation, but does in fact recognise such a case in the specific instance of hate speech against
those persecuted by the national socialist regime.102
Whether group defamation should result in compensation to the victims or the state is another question. But that
speech designed to incite groups to hatred and violence should be punished seems clear, since such speech cannot
contribute to political debate but is indeed the very method used to squelch it. Further for all the talk of “vigorous
counter speech in the market place of ideas” the reality has been unilateral oppression of the weak by the strong,
whether that oppression be racial, sexual, economic. In a democracy unpopular minorities are always in danger of
oppression by the majority.
Because of a history of racial segregation and despite the fact that democratic discourse requires tolerance hate
speech remains generally unrecognised in the common law jurisdictions. Attempts to legislate against hate speech
generally fail and even if legislated risk being stricken as an unconstitutional infringement on the freedom of speech.
Sometimes the lessons of comparative law are negative, i.e. what not to do. “Hate speech” may be a problematic area
of harmonisation.
As we have just intimated, it is possible under German law to commit a collective injury, i.e. a group Beleidigung.103
The group injured does not necessarily have to be racial or religious, it could merely be a group of co-workers or
social associates. It must however be definite.
Written publication is not necessary for this tort to arise. But although publication is not required the injurious words
must be stated in public: family discussions and private functions are excluded from liability. Further this tort will
not be initiated by the state’s prosecutor, and must be prosecuted by the injured.
Truth is a defense to Beleidigung. Injurious words and mutual exchanges of injurious words may ’cancel each other
out’.104
Conclusion
Johannes Hager, Januar 1999, BGB § 823 C 25
Op. Cit., Note 101.
104 „Eine Beleidigung ist dann nicht rechtswidrig (und damit nicht
strafbar), wenn es sich z.B. um tadelnde Urteile über
wissenschaftliche, künstlerische oder gewerbliche Leistungen, die
Wahrnehmung berechtigter Interessen sowie Vorhaltungen oder Rügen
dienstlicher Vorgesetzter handelt (§ 193 StGB). Das gleiche gilt,
wenn es sich um wahre Tatsachen handelt, es sei denn, daß die
Form der Bekanntgabe beleidigend ist (§ 192 StGB).
102
103
Bei wechselseitigen Beleidigungen kann der Richter nach § 199
StGB einen oder beide Täter für straffrei erklären. Um
wechselseitige Beleidigungen handelt es sich dann, wenn eine
Beleidigung auf der Stelle durch eine andere Beleidigung erwidert
wird.“
E. Götze, "Rechtslexikon",
Fischer - Heymanns (2001)
http://www.heymanns.com/html/recht/ratgeber_recht/rechtslexikon/L
exikon.htm
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Eric Engle: Rights of Personality in the European Union
The classical personality and privacy rights in the common law and civil law provide a basic framework of remedies
against fraudulent misrepresentation of the person. There are enough similiarities in these laws that they could be
harmonised without a European legislator. However the rise of mass media have forced the law to evolve beyond its
classical origins to balance the rights of privacy against the freedom of the press. The hard questions of whether to
protect the élite from paparazzi and tabloids, the personality rights of the deceased, and whether politicians should be
exempt from defamation – either as tortfeasor or victim – are political questions. As such they are best answered by
legislators – and the national legislators have reached divergences that would be too great to be harmonised merely
by judicial approximation.
The normativity of those issues explains why legislative solutions are preferable. Harmonisation will thus require an
E.U. Civil Code. There are too many Member States (currently fifteen with another half dozen seeking entry) and
some of the laws in question are too normative for any other solution to work. The EU needs a European Civil Code
– and a democratically elected legislature to enact it.
25