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Cite as: Eric Allen Engle Harmonisation of rights of privacy and personality in the European Union, 1 London Law Review 215-240 (2005).
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Eric Engle*


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 harmonization; 2) To determine the basic laws of personality rights in the civil law and the common 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 a 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) Does the right to privacy limit the power of the police to conduct searches and seize evidence? 2) Are internet service providers liable for the content of web sites which they host?1 3) What is the correct balance between the right of a victim to privacy and the right of a criminal defendant to a fair trial? 4) What level of immunity should politicians have for statements made by them in their office, or for 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.

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 one’s 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 an easy definition.

J.D., St. Louis University; DEA Paris II (Mention); DEA Paris X, Nanterre; LL.M Eur. Universität Bremen. He teaches courses on English legal terminology at Bremen where he has just submitted his doctoral thesis on private law remedies to human rights violations

1 See, e.g. Potts and Harris, ‘Defamation and the Internet’, . There is, perhaps unsurprisingly, an abundance of on-line material in all aspects of computer law.



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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.’ Secondly, 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). This inquiry as to whether the right in question is an alienable 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 a 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.

2Westerman and Grosheide, „BGH Urteil Caroline von Monaco’, European Review of Private Law 2: 237-260, 252 (1997).

3Ibid, 258.

4Gerhard Wagner, „Geldersatz für Persönlichkeitsverletzung’, Zeitschrift für Europäischen Private Recht Vol. 8, 200, 207 (2000).




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 why harmonising the national laws of the Member States will be difficult. It also explains why 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.

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.

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).

7 Westerman and Grosheide, „BGH Urteil Caroline von Monaco’, European Review of Private Law 2: 237-260, 260 (1997).



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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 universities12 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.

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 Public/Private law 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

8Reinhard Zimmerman, ‚Der Europäischer Charakter des Englischen Rechts’, ZEuP (Zeitschrift für Europäisches Privatrecht)

Vol. 1, No. 1 4, 27(1993).

9Ibid, p. 21.

10Ibid, 36.

11Ibid, 29, 51.

12Ibid. 10.




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.



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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 principles13 of 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 set 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.

13Indeed 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. 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).

14Van 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).




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

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 array21 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.

15Dieter Martiny, ‘Babylon in Brussel?’, ZEuP (Zeitschrift für Europäisches Privatrecht) Vol. 6, No. 2 (1998).

16On 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).

17Spier, J. and Haazen, O. ‘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).

18‘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’,

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.’,

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.’ ,

21Drucilla Cornell ‘Transformations’ (1993), ,



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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 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 than 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 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

22 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).




B. Possible Methods for Harmonisation

Legal diversity leads to divergent legal terms, concepts and rules which increase 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.

2. Measure of Damages

Once a theory admits liability of the defendant for the loss to the plaintiff, the question arises, how those damages are to be measured? Again, by focusing attention on common methods of measuring damages some harmonisation can be achieved via judicial decision.

23Westerman and Grosheide, ‘BGH Urteil Caroline von Monaco’, European Review of Private Law 2: 237-260, 258 (1997).


25Ibid, 241.

26Gerhard Wagner, „Geldersatz für Persönlichkeitsverletzung’, Zeitschrift für Europäischen Private Recht Vol. 8, 2000. p. 200, 201.

27Ibid, 241.

28Ibid, 201.

29Ibid, 204.

30Ibid, 202.

31Ibid, 202.



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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 voluntarist 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 right,33 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 simpler 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, the 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 be aware of systemic differences between the common law and the civil law.

32Ibid, 210.

33Ibid, 211.


35Ibid, 215.

36Ibid, 211.




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 level. An analagous concept of ‘fundamental rights’ already 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.

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 United Kingdom with the passage of the Human Rights Act 1998. 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 emergence37 of general principles of European law through an imminent logic of justice.38 However, the analysis should not be taken too far for fear that it disappoints 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

37Micklity, H. ’Rechtsprinzipien im Europäischen Privatrecht sind erst rudimentär erkennbar:’ ’Perspektiven eines Europäisches Privatrechts’ (Zeitschrift für Europäischen Private Recht) Vol. 6, 253,


38Hans 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.

39Jaap 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).



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autonomous rules of interpretation. The common law does distinguish between national and international law, but makes no distinction as to ‘private v. public’ law, which is part of the reason that private international law is also known as a conflict 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.

All this 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.

40 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).




It is true that creation of a single European market has led to an increasing application of private law41 and attendant problems42 which may or may not be overcome with Euro-Enthusiasm.43 ‘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 Code,45 even in fields such as tort law.46 Whether codification includes Britain or the the Nordic 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.

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.

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).

42Ibid, p. 9.

43Ibid, p. 11.

44Klaus 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).

45There is no absence of material calling for codification (i.e. the creation of a common European Civil Code) See, inter allia Tilman, W. ‘Towards a European Civil Code’, ZEuP (Zeitschrift für Europäisches Privatrecht) Vol. 3, No. 3 (1997); van Gerven, W., ‘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).

46Spier, J. and Haazen, O.‚’The European Group on Tort Law (Tilberg Group) and the European Principles of Tort Law’, ZEuP (Zeitschrift für Europäisches Privatrecht) Vol. 7, No. 3 p 469 at 470 (1999).

47Identity 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



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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 that remedy for injury is monetary compensation, exceptionally however non-pecuniary 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 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 then 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,

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.’ Robison, W., ‘Privacy and the Appropriation of Identity’,

48 See, e.g. Landesand, Posner, ‘The Economic Structure of Tort Law’, Cambridge: Harvard Univ. Press 1987).




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, trespass, 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 U.S. 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 defence 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.

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

49Defamation: ‘An attack on the good reputation of a person, by slander or libel’, DuHaimes Legal Dictionary,

50Hanson, A. ‘ Libel and Related Torts’. New York: American Newspaper Publishers (1969) p. 21-25.

51For 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.

52Malone, W. ‘Torts’, St. Paul: West Publishing (1979) p. 143.

53Arthur Hanson, Libel and Related Torts, New York: American Newspaper Publishers (1969) p. 81-85.

54Wex Malone, Torts St. Paul: West Publishing (1979) p. 106.

55With 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.



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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, image60 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

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:

56LIBEL, libellus, and 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, .

57See, 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, ,

59Wex 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, 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,

61‘The sale of each copy, where several copies have been sold, is a distinct publication, and a fresh offence.’,

Bouvier’s Law Dictionary,

62Bouvier’s Law Dictionary,,

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, .




An absolute privilege is a defence 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 in 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 family or a church, the individual members might have a cause of action.

But 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. However, 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.

64Arthur Hanson, Libel and Related Torts, New York: American Newspaper Publishers (1969) p. 85.

65Wex Malone, Torts, St. Paul: West Publishing (1979) p. 164.

66Arthur Hanson, Libel and Related Torts, New York: American Newspaper Publishers (1969) p. 81-85.

67Malone, W. ‘Torts’, St. Paul: West Publishing (1979) p. 165.

68Hanson, A. ‘Libel and Related Torts’, New York: American Newspaper Publishers (1969) p. 95.

69Malone, W. ‘Torts’, St. Paul: West Publishing (1979) p. 133.

70This 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



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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 bar71 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. U.S. tort law recognizes the “right to be let alone.”72 There are four emanations of this general right:

(1)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;

(2)public disclosure of embarrassing private facts about the plaintiff – which may or may not have been protected at common law, such as a medical, clerical or marital secret;

(3)publicity which places the plaintiff in a false light in the public eye;73 and

(4)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.

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, .

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, .

72Pavesich 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, .

73‘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’, .

74Yarbray 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).




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 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

75Baldwin’s Law Firm, ‘Australian Passing Off Law’, .

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’, .

77‘The New Tort of Appropriation of Personality’, B. St. Michael Hylton and Peter Goldson

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.’ .

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



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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 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. Obligations on the other hand may either be contractual or tortuous.

1. Droit de la vie Privée

reparation for all the loss suffered by the claimant regardless of whether any consequential loss was foreseeable or not (see Doyle v. Olby (1969)).’

80Sénat Francais : « La Protection de la Vie Privée Face aux Médias », .

81British Parliament, ‘The Human Rights Act’,

82Malone v. Commissioner for the Metropolitan Police (no.2) [1979] Chancery Division 344,


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 person’s revenue. 84

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. CP Art. R.622-1 of the French Penal Code describes the délit of defamation.86 Truth is a defence 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.

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’,,

84Sénat Francais, ‘La Protection de la vie privée face aux Médias’,

‘[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 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.

85Sénat Francais, ‘‘La Protection de la vie privée face aux Médias’,

86Art. 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.

87Art. 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. »

88Article 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. »



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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 calomnie. Knowingly bearing false witness before an officer or agent of the state leads to 5 years in prison and a 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 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

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. »

90‘Calumny: The intentional and generally vicious false accusation of a crime or other offense designed to damage one's reputation.’,

91Art. 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.

92Art. 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’.




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

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 defendant95 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 tort-feasor. 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.

93Westerman and Grosheide, „BGH Urteil Caroline von Monaco’, European Review of Private Law 2: 237-260 1997, 241.


95Ibid, 248.

96Ibid, 242.

97Ibid, 258.

98Ibid, 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’; Götze, E. ’Rechtslexikon’, Fischer - Heymanns (2001),



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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 defence. 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

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

100Nach § 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. 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: Götze, E. ’Rechtslexikon’,

Fischer - Heymanns (2001),

101Nach § 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)




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.

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, or 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.

102Johannes Hager, Januar 1999, BGB § 823 C 25

103Op. Cit., Note 101.



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Truth is a defence to Beleidigung. Injurious words and mutual exchanges of injurious words may ‘cancel each other out’.104


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 has 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.

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).

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)