Human Rights and Private Law: Privacy as Autonomy 9781472563934, 9781841137148

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Human Rights and Private Law: Privacy as Autonomy
 9781472563934, 9781841137148

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JOBNAME: Ziegler PAGE: 5 SESS: 6 OUTPUT: Wed Mar 14 11:38:38 2007

Series Editor’s Foreword Privacy is a fascinating topic. One of the reasons for this is surely that, as one commentator has observed, in many of the leading tort cases everyone involved ‘is acting appallingly badly’: the press is highly intrusive and fabricates interviews, whilst footballers cheat on their wives, supermodels deceive the public about their drug addiction or, to add a prominent but less recent German example, actors actively support the Nazi regime. For a long time, privacy has also been of considerable interest to comparative lawyers because of the very different ways in which the tort laws of the major legal systems react to such conduct. Furthermore, privacy provides one of the most graphic examples of the so-called ‘constitutionalisation’ of private law, the idea that the whole body of private law of many jurisdictions is increasingly informed by the respective constitution and its underlying values. Today, as is well known, the domestic constitutional laws of European jurisdictions are themselves informed by supra-national constitutional values, emerging from the European Union and from the European Convention on Human Rights. Consequently, this book takes the right to respect for private life, as enshrined in Article 8 of the European Convention, as its point of departure. It then adds a comparative dimension by assessing how this right has been understood and developed in Dutch, English and German law, as well as in the law of the European Communities. In doing so, the book does not neglect the traditional focus on the law of torts, but also transcends it by giving ample space to the implications of the right to privacy in other areas of private law, such as employment, media and intellectual property. This book, then, fits well within the Studies of the Oxford Institute of European and Comparative Law, a series which is particularly concerned with the specific intersection of the two disciplines and which understands comparative law in its broadest sense. It is all the more suitable for publication in the series as it collects the papers given at a joint colloquium between the Law Faculties of the Universities of Leiden, Munich and Oxford, hosted and organised by the Institute. This academic co-operation ties in with the successful student exchange between Oxford and these two partner faculties which has been taking place under the auspices of the Institute for more than a decade, and so the book links perfectly with our other activities in research and teaching. I am delighted to welcome it to our series. Stefan Vogenauer Director of the Institute Oxford January 2007

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Preface The contributions to this volume result from a conference between members of our partner faculties at the Universities of Leiden and Munich and the Oxford law faculty, held at the Oxford Institute of European & Comparative Law on 7-8 January 2005. For input into conceptualisation of the exchange and for helping to put together the delegations I thank Dagmar Coester-Waltjen (Munich), Henk Snijders (Leiden) and Stephen Weatherill (Oxford). Special thanks is also due to Jennifer Rasell for help with copy-editing and Jenny Dix for her help with organising the conference and putting finishing touches to this manuscript. In preparing these papers for publication, I hope that they will stimulate further discussion and provide comparative insights into a fast-changing area of law across disciplines and across the sometimes pronounced public-private divide. It is hoped that the book thus contributes to ongoing debates in some jurisdictions in- and outside Europe around an emerging body of privacy law. Katja S Ziegler Oxford, May 2006

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List of Contributors Roderick Bagshaw is Tutor and Fellow in Law at Magdalen College, Oxford. He is the co-author, with Nicholas McBride, of a textbook on Tort Law (2nd edn, 2005). NW Barber is Fellow of Trinity College, Oxford. He has written extensively on Constitutional Law, both in the context of the United Kingdom and the European Union. Aurelia Colombi Ciacchi, Dr Dr LL M (Kiel), Fellow of the Centre of European Law and Politics (ZERP) at the University of Bremen and Lecturer at the Hanse Law School, Bremen. Michael Coester is Ordinarius Professor of Law at the University of Munich. He specializes in the fields of civil law, labour law, and private international law. He has been visiting professor at various universities abroad. He has authored four books and 140 articles, published in journals of several countries. He is also the co-author of two leading German commentaries on private and private international law. Dagmar Coester-Waltjen, Dr iur (University of Kiel), LL M (University of Michigan) is Ordinarius Professor of Comparative Law at the LudwigMaximilians-University of Munich and Director of the Institute of International and Comparative Law there. She was Senior Teaching Fellow at the Oxford Institute of European and Comparative Law in 1998/99 and Visiting Fellow at that Institute in 2003. Josef Drexl is Professor of Private Law, European and International Economic Law at the University of Munich and Director at the Max Planck Institute for Intellectual Property, Competition and Tax Law in Munich. Lorenz Fastrich is Professor of Private Law, Labour Law and Corporate Law at the University of Munich. Mark Freedland, FBA, is Professor of Employment Law in the University of Oxford and an Official Fellow and Law Tutor of St John’s College, Oxford. From 2005 to 2008 he is the holder of a Leverhulme Major Research Fellowship, engaged on a European comparative research project in the field of employment law. From 2001 to 2004 he was the Director of the Oxford University Institute of European and Comparative Law, and is currently a Research Fellow of that Institute.

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xii List of Contributors Siewert D Lindenbergh is Professor of Civil Law, Erasmus University Rotterdam; previously he was assistant (1991-1998) and associate professor (1998-2005) at the University of Leiden. His research and teaching concentrates on civil law in general as well as on tort and damages. Jacob Hans Nieuwenhuis is Professor of Private Law at the University of Leiden and Fellow of the Leiden E.M. Meijers Instituut. His main topics of research are contract and tort law. He served as a judge at the Supreme Court of The Netherlands from 1992–1996. Henricus Snijders is Professor of Private Law at the University of Leiden and Fellow of the Leiden E.M. Meijers Instituut. His research is focussed on (fundamental and transnational) questions of property, civil procedure, contracts and the interaction of substantive and procedural law. Michael Spence is currently serving as Head of Social Sciences Division in the University of Oxford. He is a consultant to the London law firm Olswang. Having taught, given lectures and conducted research in the United Kingdom, Germany, Italy, the United States, Japan and Australia, he has a comparative perspective on the law of intellectual property. His work includes articles and books on both intellectual property law and the law of obligations, with a critical focus on suggested ethical and economic justifications of the existing regimes. Leslie Kim Treiger-Bar-Am, DPhil, received her doctorate from the University of Oxford, writing on the moral right of integrity under UK law, her MJur (Law) from Oxford, and her BA (Philosophy) and JD (Law) from Yale University. She has taught courses in human rights and jurisprudence for American university programmes in Oxford and London, and lectured on copyright and free speech in Oxford, London, Denmark, and Israel. Her publications include articles on free speech, copyright, defamation law, and public interest law. She has worked in the fields of civil rights, environmental law and international corporate practice in Israel. Alison Young, DPhil, Fellow and Tutor in Law at Hertford College and a Lecturer in Law at the University of Oxford. She specialises in Constitutional Theory and Human Rights, particularly looking at the Human Rights Act 1998. She is currently working on a book entitled Sovereignty and the Human Rights Act. Katja S Ziegler, Dr iur, Lecturer in Law, DAAD Fellow and Deputy Director of the Institute of European and Comparative Law, University of Oxford. Her research is in the fields of European and public international law, human rights and (comparative) constitutional law.

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Table of Cases Please note that this Table, apart from the European, UK and US Cases, is filed in chronological order (ie in order of date) European Court of Human Rights AB v The Netherlands, no 37328/97, 29 January 2002, ECHR 2002, 9, (2003) 37 EHRR 48 . . . . . . . . . . . . . . . . 107 Albert and Le Compte v Belgium, Series A no 58 (1983), (1983) 5 EHRR 533. . . . . . . . . . . . . . . . . . . . . . . . . 114 Appleby v UK, no 44306/98, ECHR 2003-VI, (2003) 37 EHRR 38 . 182 Buckley v UK, no 20348/92, Reports 1996-IV (1996) 23 EHRR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . 113–114 Burghartz v Switzerland, Series A no 280 B (1994), (1994) 18 EHRR 101 . . . . . . . . . . . . . . . . . . . . . . . 106 Campbell and Fell v UK Series A no 80 (1985) 7 EHRR 165 . . . . 115 Comingersoll SA v Portugal, no 35382/97, ECHR 2000-IV, 160, (2001) 31 EHRR 31 . . . . . . . . . . . . . . . . . . . 95, 111 Connors v UK, no 66746/01, 27 May 2004 . . . . . . . . . . . 113 Cossey v UK Series A no 184 (1990), (1991) 13 EHRR 622 . . . . 111 Friedl v Austria, Series A no 305 B (1995), (1996) 21 EHRR 83 . . 106 Golder v UK Series A no 18 (1975), (1979-80) 1 EHRR 524 . . . . 93 Goodwin v UK, no 28957/95, 11 July 2002, ECHR 2002-VI, 1, (2002) 35 EHRR 18 . . . . . . . . . . . . . . . . . . . . 200 Halford v UK, no 20605/92, Reports 1997-III (1997) 24 EHRR 523 . . . . . . . . . . . . . . . . 107, 110, 145, 153, 194, 205 Jersild v Denmark, Series A No 298 (1994), (1995) 19 EHRR 1 . . 181 Khan (Sultan) v United Kingdom, no 35294/97, 12 May 2000, EHCR 2000-V, (2001) 31 EHRR 1016 . . . . . . . . . . . . . 84 Klass et al v Germany, no 5029/71, Series A no 28 (1978), (1979/80) 2 EHRR 214 . . . . . . . . . . . . . . . . . 110, 200 Laskey v UK, no 21627/93, Reports 1997-I, (1997) 24 EHRR 39 . . 116 Lingens v Austria no 9815/82, 24 June 1986, Series A no 103, (1986) 8 EHRR 407 . . . . . . . . . . . . . . . . . . . . 196 Loizidou v Turkey, no 15318/89, 23 March 1995, Series A 310 (1995), (1995) 20 EHRR 99 . . . . . . . . . . . . . . . . . 200 Lopes Gomes da Silva v Portugal, no 37698/97, 28 September 2000, ECHR 2000-X, 85, (2002) 34 EHRR 56 . . . . . . 198, 200 Malone v United Kingdom no 8691/79, 2 August 1984, Series A no 82 (1984), (1985) 7 EHRR 14 . . . . . . . . . . . . . 84, 110 Marckx v Belgium, Series A no 31 (1979), (1979) 2 EHRR 330. . . 109

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xiv Table of Cases Niemietz v Germany, no 13710/88, Series A 251-B (1992), (1992) 16 EHRR 97 . . . . . . . . . . . . . . . . . . . . . 110, 145 Peck v United Kingdom, no 44647/97, ECHR 2003-I, 123, (2003) 36 EHRR 41 . . . . . . . . . . . . . . . . . . . . . . 76, 205 Pretty v United Kingdom, no 2346/02, 29 April 2002, ECHR 2002-III 155, (2002) 35 EHRR 1, (2002) NJW 2851 . . 31, 106, 178, 200 Société Colas Est et al v France, no 37971/97, ECHR 2002-III, (2004) 39 EHRR 17 . . . . . . . . . . . . . . . . . . . . 111 Soering v United Kingdom, no 14038/88, 7 July 1989, Series A no 161, (1989) 11 EHRR 439 . . . . . . . . . . . . . . . . 200 Tammer v Estonia, no 41205/98, 6 February 2001, ECHR 2001-I, 263 (2003) 37 EHRR 43 . . . . . . . . . . . . . . . . . . 200 Tolstoy Miloslavsky v United Kingdom Series A no 323 (1995), (1995) 20 EHRR 442 . . . . . . . . . . . . . . . . . . . . 99 von Hannover v Germany, no 59320/00, 24 June 2004, ECHR 2004-VI, 1, (2005) 40 EHRR 1, (2004) NJW 2647 . 9–10, 24, 27, 30, 61, 62, 63–64, 110, 189–208 European Court of Justice Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex p Factortame Ltd, Joint Cases C-46/93 & C-48/93, [1996] ECR I-1029 . . . . . 46 Caballero v Fondo de Garantia Salarial (Fogasa), Case C-442/00, [2002] ECR I-11915 . . . . . . . . . . . . . . . . . . 121 Defrenne v Societè Anonyme Belge et Navigation Sabena, Case C-43/75, [1976] ECR 455 . . . . . . . . . . . . . . . . 121 Köbler v Republik Österreich, Case C-2444/01, [2003] ECR I-10239 . 46

Gottardo v Istituto nazionale della previdenza sociale (INPS), Case C-55/00, [2002] ECR I-413 . . . . . . . . . . . . . 121 Nold v European Commission, Case C-4/73 [1974] ECR 372 . . . 54 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, Case C-36/02, [2004] ECR I-9609 . . . . . . . . . . . . . . . . . . . . . . 201 P v S and Cornwall County Council, Case C-13/94, [1996] ECR I-2143 . . . . . . . . . . . . . . . . . . . . . . . . 121 Phil Collins v Imtrat Handelsgesellschaft mbH, Case C-92/92, [1993] ECR I-5145 . . . . . . . . . . . . . . . . . . . . 172–173 Razzouk and Beydoun v Commission, Joint Cases C-75&117/82, [1984] ECR 1509 . . . . . . . . . . . . . . . . . . . 121 Angonese v Cassa di Risparmio di Bolzano SpA, Case C-281/98, [2000] ECR I 4139 . . . . . . . . . . . . . . . . . . . 121

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National Courts and Tribunals FRANCE

Cour de Cassation, 28 May 1991, (1992) 23 IIC 702 (John Huston) . . . . . . . . . . . . . . . . . . . . . . . . 161 Tribunal de grande instance (TGI) de Paris, 15 October 1992, (1993) 155 Revue internationale de droit d’auteur 225 (En attendant Godot) . . . . . . . . . . . . . . . . . . . . . . . . 165 Cass Soc, 24 March 1998 (1998) Bull civ V no 171 . . . . . . . 60 Cass Soc, 12 January 1999 (1999) D 645 . . . . . . . . . . . 59 Cass Soc, 11 July 2000 (2000) JCP IV, 2556 . . . . . . . . . . 59 Cass, 20 February 2001 (2001) D 1199 . . . . . . . . . . . . 58 Cass, 9 July 2003 (2004) D 1634 . . . . . . . . . . . . . . . 58 Cass, 30 June 2004 (2004) JCP II 10160 (Elf affaire) . . . . . . 58 GERMANY

Bundesgerichtshof (BGH), 10 June 1952, 6 BGHZ (Entscheidungen des Bundesgerichtshofs in Zivilsachen) 360 . . . . . . . . . . . 55 BGH, 25 May 1954, 13 BGHZ 334 (1954) = (1954) Neue Juristische Wochenschrift (NJW) 1404 (Schacht-Leserbrief) . . 5, 58, 97, 134 Bundesverfassungsgericht (BVerfG), 15 January 1958, 7 BVerfGE (Entscheidungen des Bundesverfassungsgerichts) 198 . . . 25, 192 BVerfG, 7 July 1971, 31 BVerfGE 255 (Tonbandvervielfältigung) . 169 BGH, 14 February 1958, 26 BGHZ 349 = (1958) NJW 827 (Herrenreiter) . . . . . . . . . . . . . . . . . . 58, 97, 204 BGH, 16 September 1961, 53 BGHZ 363 = (1961) NJW 2059 (Ginsengwurzel) . . . . . . . . . . . . . . . . . . . . . 97 BVerfG, 14 February 1973, 34 BVerfGE 269 (damages for personality rights violations) . . . . . . . . . . . 25, 192, 201 BVerfG, 7 February 1990, 81 BVerfGE, 242 . . . . . . . . . . 59 Bundesarbeitsgericht (BAG), 19 December 1991, (1992) Neue Zeitschrift für Arbeitsrecht (NZA) 307 . . . . . . . . . . 136 BVerfG, 28 January 1992, 85 BVerfGE 191 . . . . . . . . . . . 60 BGH, 11 March 1993, (1994) Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 206 (Alcolix) . . . . . . . . . . . . 184 BVerfG, 28 May 1993, 88 BVerfGE 203 (Abortion legislation) . . 26 BVerfG, 24 June 1993, (1993) NJW 2365 . . . . . . . . . . . 136 BVerfG, 12 October 1993, 89 BVerfGE 155, (Maastricht Treaty/Brunner case) . . . . . . . . . . . . . . . . . . 203 BVerfGE, 19 October 1993, 89 BVerfGE 214 = (1994) NJW 36 (suretyships) . . . . . . . . . . . . . . 25, 33, 56, 59, 192, 201 Arbeitsgericht Siegburg, 4 November 1993, (1994) NZA 698 . . 138 BVerfG, 9 February 1994, 90 BVerfGE 27 = (1994) NJW 1147 . . 59 BGH, 15 November 1994, 128 BGHZ 1 (Caroline von Monaco I) . . . . . . . . . . . . . . . . . . . . . . . 99 BGH, 5 December 1995, (1996), NJW 984 (Caroline von Monaco II) . . . . . . . . . . . . . . . . . . . . . . . 99

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xvi Table of Cases Bundesarbeitsgericht (BAG), 14 February 1996, (1996) Neue Zeitschrift für Arbeitsrecht (NZA) 873 . . . . . . . . . . . . . . . 138 Landesarbeitsgericht Berlin, 22 October 1997, (1998) NZA-RR 442 . 138

BGH, 29 June 1999, (1999) Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 1034 (Prince von Hannover) . . . . . 58 BVerfG, 15 December 1999, 101 BVerfGE 361 (Caroline of Monaco III) . . . . . . . . . . . . . . . . . . 58, 190, 197 BVerfG, 7 June 2000, 102 BVerfGE 147, 161-66 (Bananas) . . . 203 BVerfG, 12 December 2000, 102 BVerfGE 347 . . . . . . . . . 192 BVerfG, 9 October 2002, Arbeitsrechtliche Praxis (AP) BGB §611, Persönlichkeitsrecht, no. 34 . . . . . . . . . . . . . . . 136 Bundesarbeitsgericht (BAG), 6 February 2003, (2003) Neue Zeitschrift für Arbeitsrecht (NZA) 717 . . . . . . . . . . . . . . . 135 BVerfG, 11 March 2003, 107 BVerfGE 275 . . . . . . . . . . 192 Landesarbeitsgericht Nürnberg, 24 June 2003, 6 Sa 424/02 . . . . 60 BVerfG, 30 July 2003, (2003) NJW 2815 . . . . . . . . . . . 60 BVerfG, 3 March 2004, 109 BVerfGE 279 . . . . . . . . . 1, 192 BGH, 9 March 2004, 158 BGHZ 218 . . . . . . . . . . . . 191 Bundesarbeitsgericht, 29 June 2004, (2004) Neue Zeitschrift für Arbeitsrecht 1278 . . . . . . . . . . . . . . . . . . . 136 BGH, 28 September 2004, (2005) NJW 56 . . . . . . . . . . 202 BVerfG, 14 October 2004, 111 BVerfGE 307 = (2004) NJW 3407 . . . . . . . . . . . . . . . . . . . . . . . . . . 27 BVerfG, 18 July 2005, (2005) NJW 2289 (European Arrest Warrant) . . . . . . . . . . . . . . . . . . . . . . . 203 ITALY

Trib. Firenze, 23 March 1948, (1949) Monitore dei Tribunali no 18 . . . . . . . . . . . . . . . . . . . . . . . . . 55 Cass, 20 April 1963 no 990, (1963) Foro it I 877 . . . . . . . . 58 Cass, 27 May 1975, (1975) Foro it I 2895 (Soraya) . . . . . . . 58 Cass civ sez un, 9 March 1979, no 5172 (1979) Foro it I 2302 . . 59 Cass, 16 September 1983 no 7418 (1984) Foro it I 415 . . . . . 59 Cass, 22 June 1985, no 3769 (1985) Foro it I 2212 . . . . . . . 58 Corte Costituzionale (Corte Cost) 14 July 1986 no 184 (1986) Foro it I 2053 . . . . . . . . . . . . . . . . . . . . . . 56 Corte Cost, 24 March 1988, no 404 (1988) Giur it I 1627 . . . . 59 Cass, 16 June 1994, no 5832 (1995) Foro it I 875 . . . . . . . . 60 Cass, 20 April 1994, no 3775 (1994) Giust civ I 2169 . . . . . . 59 Tribunale di Milano (1996) Foro Italiano 1426 (Va dove ti porta il cuore) . . . . . . . . . . . . . . . . . . . . . . . . . 185 Cass, 28 January 1998, no 831 (1998) Foro it I 770 . . . . . . . 59 Cass, 25 September 2002, no 13942 (2002) Dir e giustizia 37 . . 60 NETHERLANDS

The Netherlands Court of Appeal Arnhem, 25 October 1948, (1949) NJ 331 . . . . . . . . . . . . . . . . . . . . . . . . . 59

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Court of Appeal Arnhem, 24 June 1958, (1959) NJ 473 . . . . . 59 The Netherlands Ktr Assen, 25 March 1986, (1987) NJ 15 . . . . 59 Hoge Rad (HR), 8 January 1987 (1987) NJ 928 (G v Edam) . . 105 HR, 30 October 1987, (1987) Nederlandse Jurisprudentie 277 (Naturistengids) . . . . . . . . . . . . . . . . . . . . . 96 HR, 4 March 1988 (1988) Signaal Rechtspraak van de Week 53 (Princess Irene) . . . . . . . . . . . . . . . . . . . . . 58 HR, 1 July 1988 (1988) NJ 1000 . . . . . . . . . . . . . . 58 HR, 1 November 1991, (1992) Nederlandse Jurisprudentie 58 (K v Staat der Nederlanden) . . . . . . . . . . . . . . . 96 HR, 6 January 1995 (1995) NJ 422 . . . . . . . . . . . . . . 58 HR, 27 April 2001, (2002) Nederlandse Jurisprudentie 91 . . . . 97 HR, 28 March 2003 (2004) NJ no 71 (Mink K v The Netherlands) . . . . . . . . . . . . . . . . . . . . . . 109 Rechtbank Amsterdam, 7 mei 2003, LJN: AF8332 . . . . . . . 16 HR, 9 July 2004, (2004) Rechtspraak van de Week 98 . . . . . . 96 HR, (2005) Rechtspraak van de Week 42 . . . . . . . . . . . 18 POLAND

. Wyrok Sadu Najwyzszego, 16 July 1993, 1 PZP 28/93 . . . . . . 56 . Postanowienie Sadu rok Sadu Najwyzszego, 2002.12.19 V CZ 162/02, OSNC 2004/2/31 . . . . . . . . . . . . . . . . 59

PORTUGAL

STJ, 25 July 1896, no 001412 . . . . . . . . . . . . . . . . 60 Ac TC, 15 February 1986, no 198/85, DR II série 38 . . . . . . 55 STC, 24 July 1992 (1992) Acórdaos do TC 21, 495 . . . . . . . 59 STJ, 12 January 1994, no 084387 . . . . . . . . . . . . . . . 59 STJ, 9 January 1996 . . . . . . . . . . . . . . . . . . . . . 59 STJ 18 April 2002, no 02B3553 . . . . . . . . . . . . . . 58, 59 STJ 19 November 2002, no 02A2028 . . . . . . . . . . . . . 58 SPAIN

STS, 28 October 1986 (1986) RJ 6015 (Paquirri) . . STC, 8 November 1999, no 202 (1999) RTC 202 . . STS, 10 April 1999 (1999) RJ 1877 . . . . . . . . STS, 23 April 1999 (1999) RJ 4248 . . . . . . . . STS, 2 February 2001 (2001) RJ 1003 . . . . . . .

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58 59 60 58 59

SWEDEN

Bulgarian Foreign Trade Bank v Al Trade Finance, Swedish Supreme Court 27 October 2000, [2001] XXVI International Yearbook Commercial Arbitration . . . . . . . . . . . . . . . . . 115 UNITED KINGDOM

A v B [2002] EWCA Civ 337; [2003] QB 195 . . . 69, 72, 73, 81, 87 A-G v Observer Ltd [1990] 1 AC 109 . . . . . . . . . . . . . 89 A v National Bloood Authority [2001] 3 All ER 289 . . . . . . 81

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Table of Cases

Argyll v Argyll [1967] 1 Ch 302 . . . . . . . . . . . . . . 72, 73 Ashdown v Telegrph Group Ltd [2002] Ch 149 . . . . . . . . 181 Aston Cantlow PCC v Wallbank [2003] UKHL 37 . . . . . . . 37 Campbell v MGN Ltd [2004] UKHL 22, [2004] EMLR 15, [2004] 2 All ER 995, [2004] AC 457, [2003] 1 All ER 224 . . 15, 17, 18, 42, 44, 45, 58, 61, 69, 74, 75, 81, 82, 178, 205, 206 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 . . . . . . . 204 Cream Holdings Ltd v Bannerjee [2003] 2 All ER 318 . . . . . 206

Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011 . . . . . . . . . . . . . . . . . . . . . . . 180 Douglas v Hello! Ltd [2003] 3 All ER 996; [2003] EWHC 786 (Ch); [2001] QB 967 . . 40, 41, 44, 58, 61, 68, 69, 75, 178, 203, 204 Douglas v Hello! (No 3) [2005] EWCA Civ 595, [2006] QB 125 . . . . . . . . . . . . . . . . . . . . 81, 178, 204 Ghaidan v Godin-Mendoza [2004] UKHL 30 . . . . . . . . 36, 48 Glyn v Weston Feature Film Company [1916] 1 Ch 261 . . . . 184 Hanfstaengl v Empire Palace [1894] 3 Ch 109 . . . . . . . . . 184 Hunter v Mann [1974] 1 QB 767 . . . . . . . . . . . . . . . 74 Joseph v National Magazine Co Ltd [1959] Ch 14 . . . . . . . 180 Joy Music Limited v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60 . . . . . . . . . . . . . . . . . . . . 184 Kaye v Robertson [1991] FSR 62 . . . . . . . . . . . . . 69, 203 Khorasandjian v Bush [1993] QB 727 . . . . . . . . . . . . . 69 Lennon v News Group Newspapers Ltd [1978] FSR 573 . . . . . 72 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 . . . . . 93 Maccaba v Lichtenstein [2004] EWHC 1579, QB . . . . . . . . 88 Malik v BCCI [1997] ICR 606 . . . . . . . . . . . . . . . . 147 Malone v Metropolitan Police Commissioner [1979] Ch 344 . . . 80 Observer and Guardian v United Kingdom, no 13585/88, Series A no 216 (1991) . . . . . . . . . . . . . . . . . . . . . 194 Panesar v Nestle Co Ltd [1980] IRLR 60, CA . . . . . . . . . 56 Parry-Jones v Law Society [1969] 1 Ch 1 . . . . . . . . . . . 74 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] QB 48 . . . . . . . . . . . . . . . . . 37 R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936 . . . . . . . . . . . . . . . . . . . . . . . . 37 R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 538 . . . . . . . . . . . . . . . 5 R v Chief Constable of the North Wales Police, ex p Thorpe [1999] QB 396 . . . . . . . . . . . . . . . . . . . . . . . . 76 Rees v Darlington Memorial Hospital [2004] 1 AC 309 . . . . . 19 S, Re [2004] UKHL 47 . . . . . . . . . . . . . 36, 42, 43, 44, 50 Schweppes Ltd v Wellingtons Ltd [1984] FSR 210 . . . . . . . 184 Shaws (EAL) Ltd v Walbert Pennycook [2004] EWCA Civ 100, [2004] Ch 296; [2004] 2 All ER 665 . . . . . . . . . . . . 59 Spring v Guardian Assurance plc [1995] 2 AC 296, [1994] 3 All ER 129 . . . . . . . . . . . . . . . . . . . . . . . . 56

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Stephens v Avery [1988] Ch 449 . . . . . . . . . . . . . . . . 72 Theakston v MGN [2002] EWHC 137 (QB) . . . . . . 69, 73–74, 88 Venables and Thompson v Newsgroup Newspapers and Associated Newspapers Ltd [2001] WLR 1038 . . . . . . . . . . . . 58 Wainright v Home Office [2002] QB 1334 (CA); [2003] UKHL 53, [2004] 2 AC 406, [2002] 3 WLR 405 . . . . . . . . . . . 41, 43, 44, 68, 69, 80, 203, 204 Williamson Music Ltd v The Pearson Partnership Ltd [1987] FSR 97 . . . . . . . . . . . . . . . . . . . . . . . . 184 X v Y [2004] ICR 1634 . . . . . . . . . . . . . . . . . 150, 151 UNITED STATES

Anonsen v Donohue (1993) 857 S.W.2d 700 (Tex App) . . . . . 73 Downs v Los Angeles Unified School District, 228 F.3d 1003 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 181 Griswold v CT 381 US 479 (1965) . . . . . . . . . . . . 179, 180 Hazelwood School District v Kuhlmeier, 484 US 260 (1988) . . . 181 Hurley and S Boston Allied War Veterans Council v Irish American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995) . . . . . . . . . . . . . . . . . 182, 183 Lawrence v Texas 539 US 558 (2003) . . . . . . . . . . . . . 16 Mattel Inc v Walking Mountain Productions, 353 F.3d 792 (9th Cir 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 186 Miami Herald v Tornillo, 418 US 241 (1974) . . . . . . . . . 181 Pacific Gas & Electric Company v Public Utilities Commission of California 475 US 1, 15 (1986) . . . . . . . . . . . . . . 182 PruneYard Shopping Center v Robins, 447 US 74 (1980) . . . . 182 Roe v Wade 410 US 113 (1973) . . . . . . . . . . . . . 15, 179 Rosenberger v Rector and Visitors of University of Virginia, 515 US 819 (1995) . . . . . . . . . . . . . . . . . . . 181 Walt Disney Productions v Air Pirates 581 F.2d 751 (9th Cir 1978) . . . . . . . . . . . . . . . . . . . . . . . . . 184 West Virginia State Board of Education v Barnette, 319 US 624 (1943) . . . . . . . . . . . . . . . . . . . . . . 181

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Table of International and European Instruments International Instruments Berne Convention for the Protection of Literary and Artistic Works . . . . . . . . . . . . . . . . . . . . . . 160, 164 Arts 1-21 . . . . . . . . . . . . . . . . . . . . . . . . 160 Art 6bis . . . . . . . . . . . . . . . . . . . . . 160, 165, 177 Art 6bis(1) . . . . . . . . . . . . . . . . . . . . . . . 159 Art 6bis(2) . . . . . . . . . . . . . . . . . . . . . . . 166 Council of Europe, Parliamentary Assembly Declaration on Mass Communications and Human Rights, Resolution 428 (1970) . . . . . . . . . . . . . . . . . . . . . 105 Declaration on the Right to Privacy, Resolution 1165 (1998) . 105, 196

European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) . . . . . . . 23–24, 27, 32, 63, 161, 162 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . 26, 47 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 26, 58 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 111, 114 Art 8 . 1, 2, 6, 29, 31, 36, 39, 41, 42, 43, 44, 45, 58, 59–60, 62, 68, 77, Art 8(1) Art 8(2) Art 10

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Art 10(2) Art 13 . Art 14 . Art 41 . Protocol 1 Art 1 . . . . . . . . . . . . . . . . . . . . 59, 108, 173, 174 Protocol 12 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . 121 TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) 1994 Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . 160–161 Universal Declaration of Human Rights 1948 . . . . . 168, 171, 175 Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . 167

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xxii

Table of International and European Instruments

Instruments of the European Communities/Union Treaties Treaty establishing a Constitution for Europe (Draft Constitutional Treaty, 2004) . . . 53, 161, 162, 168, 170, 173, 175 Art 77(1) . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 154 . . . . . . . . . . . . . . . . . . . . . . . . . 174 Art II-67 . . . . . . . . . . . . . . . . . . . . . . . . 105 Art II-77 . . . . . . . . . . . . . . . . . . . . . . . . 169 Art II-77(1) . . . . . . . . . . . . . . . . . . . . . . . 169 Art II-77(2) . . . . . . . . . . . . . . . . . 167, 169, 174–175 Art II-111 . . . . . . . . . . . . . . . . . . . . . . . . 174 Art II-112(5) . . . . . . . . . . . . . . . . . . . . . . . 28 EC Treaty Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 30 . . . . . . . . . . . . . . . . . . . . . . . 173, 174 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . 127 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . 127 Art 141 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Treaty on European Union 1992 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . 173 Charter of Fundamental Rights of the European Union . 9, 28, 53, 161, Art Art Art Art Art Art

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Directives Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/99 (Term of Protection Directive) . . . 166, 171 Directive 97/66/EC of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector [1998] OJ L24/1 (Telecommunications Data Protection Directive) . . . . . . 149

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Preamble, Recitals (3)-(5) . . . . . . . . . . . . . . . . . 149 Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 (Race Discrimination Directive) . . . . . . . . . . . . . 7, 117, 118 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . 119 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16 (Employment Equality Directive) . . . . . . . . . . . . . . . . . . . . . . . 118 Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L 201/37 (Privacy Directive) . . . . . . . . . . . . . . . . . . . . 3 Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2002] OJ L 269/15 (Equal Treatment Amendment Directive) . . . . . . . . . . . . . 118 Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37 (Equal Treatment Directive) . . . . . . . . 7, 117, 118 Art 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 2b(c) . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . 126 Art 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . 123 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . 119 Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54 (Data Retention Directive) . . . . . . . . . . . . . . . . . . . .3

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xxiv

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International Principles Lando Principles (Principles of European Contract Law) Art 1:102 . . . . . . . . . . . . . . . . . . . . . . 108, 112 UNIDROIT Principles of International Commercial Contracts Art 1:1 . . . . . . . . . . . . . . . . . . . . . . . 108, 112

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Table of National Instruments France Civil Code (Code civil) Art 9 . . . . . . . . . . . Art 16 . . . . . . . . . . Code de la propriété intellectuelle Art L 111-1 . . . . . . . . Art L 121-1 . . . . . . . . Art L 121-2 . . . . . . . . Art L 121-4 . . . . . . . . Art L 121-7 . . . . . . . . Constitution Art 1 . . . . . . . . . . . Art 75 . . . . . . . . . . Preamble . . . . . . . . .

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Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 31, 58 Art 2(1) . . . . . . . . . . . . 5, 25, 31, 33, 58, 60, 124, 168, 190 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . 60, 122 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . 60, 137 Art 5(1) . . . . . . . . . . . . . . . . . . . 58, 59, 137, 193 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 55, 137 Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . .7 Art 12(1) . . . . . . . . . . . . . . . . . . . . . 59, 60, 137 Copyright Act (Urhebergesetz) . . . . . . . . . . . . . . . . 165 §69b(1) . . . . . . . . . . . . . . . . . . . . . . . . . 164 §89(1) . . . . . . . . . . . . . . . . . . . . . . . . . 163 Copyright-in-the-Domain of-Arts Act (Kunsturhebergesetz) §22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 §23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Data Protection Act, Federal (Bundesdatenschutzgesetz) . . . . . 137 Works Constitution Act (Betriebsverfassungsgesetz) 1972 . . . . 134 §75 . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Italy Constitution Art 2 . . Art 21 . Art 32 . Art 36 . Art 37 .

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Netherlands Algemen Wet Gelijke Behandeling 1994 . . . . . . . . . . . . 119 Civil Code . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 6:95 . . . . . . . . . . . . . . . . . . . . . . . . . 94 Art 6:106 . . . . . . . . . . . . . . . . . . . . . . . 94, 96 Art 1408 . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 1412 . . . . . . . . . . . . . . . . . . . . . . . . . 96 Constitution Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Portugal Constitution Art 13 . Art 25 . Art 26 . Art 37 . Art 47(1) Art 65 .

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Spain Constitution Art 4 . . Art 10 . Art 14 . Art 18(1) Art 20(1)(d) Art 45 .

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United Kingdom Code of Practice on Data Protection in Employment . . . . . . 155 Code of Practice of the Press Complaints Commission . . . 196, 197 Copyright, Designs and Patents Act 1988 (CDPA) s 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 164 s 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 164 s 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . 164 s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . 186 s 80 . . . . . . . . . . . . . . . . . . . . . . 159, 177, 180 s 81(2) . . . . . . . . . . . . . . . . . . . . . . . . . 162 s 84 . . . . . . . . . . . . . . . . . . . . . . . . 160, 165 s 87(2) . . . . . . . . . . . . . . . . . . . . . . . . . 160 s 87(3) . . . . . . . . . . . . . . . . . . . . . . . . . 160 s 88(1) . . . . . . . . . . . . . . . . . . . . . . . . . 166 s 88(2) . . . . . . . . . . . . . . . . . . . . . . . . . 166 s 88(3) . . . . . . . . . . . . . . . . . . . . . . . . . 166 s 103(2) . . . . . . . . . . . . . . . . . . . . . . . . . 184 Data Protection Act 1998 . . . . . . . . . . . . 148, 149, 150, 154 Sch 2 para 1 . . . . . . . . . . . . . . . . . . . . . . . . 154 para 6(1) . . . . . . . . . . . . . . . . . . . . . . . 154 Defamation Act 1996 ss 2-4 . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Disability Discrimination Act 1995 . . . . . . . . . . . . . . 119 Freedom of Information Act 2000 (FOIA) . . . . . . . . . 149, 150 s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Human Rights Act 1998 . . . . . 4, 8, 26–27, 35, 36, 40, 42, 45, 46, 47, 56, 68, 142, 147, 148, 149, 153, 154, 203, 204

s2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 s 3(1) . . . . . . . . . . . . . . . . . . . . . . 36, 46, 47, 48 s6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 s 6(1) . . . . . . . . . . . . . . . . . . . . . . . 36, 37, 39 s 6(3)(a) . . . . . . . . . . . . . . . . . . . 37, 38, 39, 47, 48 s 6(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . 36 s 6(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 37 s 12(3) . . . . . . . . . . . . . . . . . . . . . . . . 38, 46 s 12(4) . . . . . . . . . . . . . . . . . . . . . . . . . 203 Lawful Business Regulations 2000 (LBPR) . . . . . . . . . 149, 154

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reg 3(1)(a)(iv) . . . . . . . . . . . . . . . . . . . . . . 153 Race Relations Act 1976 . . . . . . . . . . . . . . . . . . 119 Regulation of Investigatory Powers Act 2000 (RIPA) . . . . 149, 154 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Rent Act 1977 . . . . . . . . . . . . . . . . . . . . . . . 36 Sch 1 para 2.2 . . . . . . . . . . . . . . . . . . . . . . . . 36 Sex Discrimination Act 1975 . . . . . . . . . . . . . . . . 119 Sexual Offences Bill 2003 s 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 SI 2000/2699 . . . . 149 Trade Marks Act 1994 s 46(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . 186 United States Berne Convention Implementation Act s 3(a)(2) . . . . . . . . . . . Constitution Art I s8 cl 8 . . . . . . . . . . . . Copyright Act s 201(2) . . . . . . . . . . .

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1 Introduction: Human Rights and Private Law − Privacy as Autonomy KATJA S ZIEGLER

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HAT IS THE meaning of ‘privacy’? Authors struggle to find a single definition. Privacy is not only a single human right but also a collective term for a multiplicity of rights that have both general and specialist fields of application. This is exemplified by Article 8 of the European Convention on Human Rights: it protects a number of rights that can be brought under the heading of privacy: private life, family life, protection of the home and various freedoms of communication. Here the two somewhat contradictory rationales of privacy appear, giving rise to different strands of interpretation. First, privacy as seclusion or intimacy which is often, as a point of departure, spatially defined; other definitional approaches in this strand might be by the types of action or information that might be considered as private by ‘substance’. Second, privacy as freedom of action, self-determination and autonomy. Privacy, however, is only split in this sense at first sight: the two strands can be united again in perceiving privacy as protecting the free development of one’s personality, that is, self-realisation and autonomy in a wider sense. Both freedom of action and communication in social or public contexts and the ‘right to be let alone’1 and to be able to withdraw to a space of retreat2 are necessary for the development of one’s personality. Indeed, as David Feldman has pointed out, this gets as close as one can to the essence of liberty itself.3 Hans Nieuwenhuis thus sets the scene by inquiring into the meaning of privacy and what different expressions of privacy have in common. Pointing to a transatlantic divide between ‘libertarian’ and ‘dignitarian’ 1

SD Warren and LD Brandeis, ’The Right to Privacy’ (1890) IV (5) Harvard Law Review

193. 2 German Federal Constitutional Court, 109 BVerfGE 279, 314, (2004) Neue Juristische Wochenschrift 999. See case note in English by N Nohlen, ’Germany: The Electronic Eavesdropping Case’ (2005) 3 International Journal of Constitutional Law 680. 3 D Feldman, ’Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty’ (1994) 47 (2) Current Legal Problems 40, 42.

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approaches to privacy, as diagnosed by James Q Whitman,4 which reflects underlying (neo)liberal and social democratic theories of human rights, he shows that their alleged antagonism is exaggerated. Stressing different facets of liberty and dignity, he concludes that both include the notion of autonomy. Therefore, at a higher level, he identifies autonomy as the overarching principle and common denominator of various privacy rights. This can be said to reflect the interpretation of Article 8 of the European Convention on Human Rights by the European Court of Human Rights. Acknowledging the difficulties involved in defining what privacy is, this book neither attempts nor purports to offer one ‘ultimate’ definition. It looks instead at the diversity of the right to privacy. Nor does it limit itself to ‘prototypical’ privacy situations like privacy from public gaze, and the debates over what are private acts and what can justify intrusions on privacy. It covers questions as diverse as the following, from the classical to the less obvious: can we, and how do we, strike an appropriate balance between ‘private’ and ‘public’ where freedom of expression and privacy interests conflict (Nieuwenhuis, Fastrich, Ziegler, Treiger-Bar-Am & Spence)? What claims and actions against private parties can a celebrity derive from privacy when objecting to photographs being taken and published (Barber, Bagshaw, Lindenbergh)? What is the role of privacy in balancing employees’ and employers’ interests in employment relationships (Coester, Freedland)? How do we deal with the intersection of freedom of contract and privacy, both when privacy refers to autonomy and selfdetermination, and in its very literal meaning of confidentiality of the contents of a contract (Snijders, Coester-Waltjen, Colombi Ciacchi)? How do privacy rights, as distinct from property rights, impact on the protection of moral rights in the context of intellectual property law (Drexl, TreigerBar-Am & Spence)? With regard to the more theoretical aspects of the relationship between human rights and private law, conflicts which superficially appear to be between human rights on the one hand and private law principles on the other hand can be conceived as conflicts between different human rights or even between two claims derived from the same human right, such as privacy. An example of this is, on the one hand, the right to privacy and non-interference with one’s personality and freedom to act and, on the other hand, the freedom to act, including to engage in economic activity, to use one’s property as one likes or to express oneself. Such conflicts can be resolved only by balancing rival interests and rights. Thus concretions of such balancing in the law may have to be context-specific, as will the forms and methods of balancing, whether by the legislature, judiciary or every individual. From a wider angle, all contributions to this book are concerned with this question of balancing. They raise at least three issues: 4 JQ Whitman, ’The Two Western Cultures of Privacy: Dignity v Liberty’ (2004) 113 (6) Yale Law Journal 1151.

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Introduction 1.

2.

3.

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How is balancing achieved on the level of definition (scope of protection) and on the level of justification of restrictions of conflicting human rights? This concerns both domestic and international law. With regard to domestic law: how is balancing achieved in private law, and what are the requirements for balancing via private law? Balancing in this context implies choosing from a spectrum of solutions that may all be compatible with the human rights involved, but with different degrees of ‘optimisation’. Hence the question of ‘who decides’ is raised, which may result in a call for the legislature to act, for example by passing laws on the right to nondiscrimination or providing a general private law remedy for interferences with privacy, such as a specific action in tort. The availability of a remedy in itself may be seen as a decision about the balance of conflicting rights. Balancing can also be a more general, nonchannelled duty to consider human rights when applying private law rules by way of direct or indirect horizontal application of human rights, which may be incumbent on public authorities, especially courts, but also possibly on private individuals. A third question concerns the adequacy of balancing decisions at the domestic level. This takes in the actual and appropriate role and impact of the European Court of Human Rights on domestic law.

The broad approach towards privacy taken by this book is reflected in the diversity of themes running through it as common threads. First, the obvious diversity is that of specific issue areas which reflect particular balancing of different privacy interests and interests that conflict with privacy. The relevance of privacy in selected areas of law – contract, employment, intellectual property and media law – are the subject of Part Two of this collection of essays, to which we shall return. The second diversity is that of the ‘addressee’ of a right to privacy. Privacy in vertical relationships, that is against the state, is topical in general public debate. The debates about introducing identity cards in the United Kingdom or surveillance measures in Germany are symptomatic of this. Privacy is far from being ‘old hat’ even in its state-oriented dimension, as is shown by cases like the electronic eavesdropping case in the German Bundesverfassungsgericht and increased obligations from the European level on telecommunication companies regarding the retention of data in the fight against terrorism.5 But the book does not deal with this aspect of privacy. Instead, it focuses on restraints on privacy by private actors: not

5 Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54. Cf ‘Privacy under Pressure in Europe’, Financial Times (London, 9 February 2006) 10.

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4 Katja S Ziegler on the Orwellian ‘Big Brother is watching you’, but more on ‘playing (with) Big Brother’. It looks at human rights concerns typically arising in private law – horizontal – relationships. This aspect of privacy seems to be of less general concern, at least on an empirical or phenomenological level, as shown by the widespread use of store cards and data held by private companies. Maybe – rightly or wrongly – it is because of the feeling of being in control that these more hidden or dispersed privacy invasions are not perceived with equal sensitivity. Some exceptions may have to be made regarding privacy intrusions by the media and employment situations. This is in spite of the practical reality that power is not only concentrated in the state but increasingly often in non-state actors, and also in spite of the additional conceptual difficulties that arise from the need to balance conflicting claims in private relationships. Naturally, all contributions raise the underlying issue of the horizontal application of human rights from a practical or critical perspective. Part One of the book focuses on the horizontal application of human rights generally and of the human right to privacy in particular. Fastrich, Young and Colombi Ciacchi look at the interaction of the body of human rights law and private law in horizontal, or – if including the state’s duty to protect – triangular relationships from a broader and theoretical perspective (section B). Lorenz Fastrich discusses the functions of fundamental rights under the German Constitution (negative, protective and positive) and raises the dilemma that maximising human rights on one side of the scale may lead to restrictions on human rights on the other side. He demonstrates, discussing its Suretyship decision, how at least in situations of unequal bargaining power (when the market fails to provide a corrective), special inferiority and unusual risk, the German Constitutional Court applies human rights horizontally in private law and thereby corrects the private law outcome. Thus it shifts from a formal to a substantive concept of freedom. Alison Young establishes a direct link between the emergence of a tort of privacy and the horizontal effect of human rights generally in English law, following the adoption of the Human Rights Act 1998. Noting the reluctance of the courts to address the question of horizontality directly, she reveals a plethora of different approaches that can be grouped into models of direct or indirect horizontality of varying degrees of strength. She concludes by affirming the need to protect Convention rights via indirect horizontal effect. The Convention’s relationship with the Common Law is depicted as supportive. Although the Convention tends merely to support the results reached by the Common Law, they both underpin its values and principles and provide an easier and more structured way of

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5

achieving these results. In this context one might point to the Europeaninfluenced change in the use of the principle of proportionality in English courts.6 Aurelia Colombi Ciacchi reflects on the wider picture and the importance of the horizontal application of human rights via courts in the context of constitutionalisation of the European Communities and from a macro-comparative perspective. From an outcome-based perspective, she concludes that the horizontal effect of privacy is closely related to social justice because ‘the right to be let alone’ can be used to balance against influences resulting from agglomerations of power of any kind. International legal sources, most notably the European Convention on Human Rights, provide a basis for harmonisation of the laws at least to a European minimum standard of human rights. Section C is dedicated to one example of horizontal application: the insertion of a right to privacy into tort law, discussed by Barber, Bagshaw and Lindenbergh. One aspect of the horizontal application of human rights – in this case to privacy – concerns the availability of a remedy or action. This theme reflects the debate in the United Kingdom after the Douglas v Hello! Ltd saga and Campbell v MGN, which was reinforced by the Caroline von Hannover v Germany decision of the European Court of Human Rights. A less recent but parallel development can be made out in the evolution of a claim for compensation based on tort for interferences with privacy derived directly from the constitutional rights, that is, human dignity and personality rights in Articles 1(1) and 2(1) of the German Constitution since the 1950s.7 This amounted to law-making by judges even contra legem, who set aside the Civil Code’s restriction on damages for non-pecuniary loss.8 Against this backdrop, NW Barber starts out by providing an overview of recent cases in the United Kingdom developing a general right (and tort) of privacy. Looking at the ethical, moral and social aspects of privacy, he criticises the trend towards juridification of the concept and questions the need for such legal protection. Where specific aspects of privacy need protection, it should be a matter for the legislature to regulate these specific issue areas and not for the judges to make these decisions. Roderick Bagshaw considers the practical application of a privacy tort and stresses the difficulties in framing it, which in turn leads to a lack of foreseeability and legal certainty for individuals. These concerns are closely linked to the definitional problems with privacy and those of horizontal application of rights generally. The complicated balancing of conflicting 6 See R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 538, 545 (per Lord Bingham); M Elliott, ’The Human Rights Act 1998 and the Standard of Substantive Review’ (2002) Judicial Review 97. 7 Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ): 13 BGHZ 334, (1954) Neue Juristische Wochenschrift 1404 (Schacht-Brief). 8 See § 253 of the German Civil Code.

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liberty and security interests of the parties to a litigation would be too open-textured and hence should not be undertaken by judges. Also, the horizontal application of privacy is problematic because it will always burden a private individual ‘to comply with’ a human right, whereas in its original application as a negative right against the state, the burden (also of evidence) of justifying restrictions of privacy rests on the state. Privacy rights, therefore, cannot be transplanted lightly into private party relationships by a tort action where it is unclear where the boundaries lie between rights and duties. Finally, Siewert Lindenbergh focuses on damages for privacy infringements in the system of tort law, particularly in Dutch and German law, and the special problems arising from compensation for non-pecuniary loss with its inherent problem of quantifying damages. As a certain loss will always remain in relation to a wrong, and compensation, therefore, is always the second-best option, he shifts the focus towards the preventive function of tort law: the threat of significant damages may be the only way to protect privacy effectively, especially where a profit can be gained by violations of privacy. The third element of diversity in this book is the comparative approach, which is attempted within each paper. The aim is to provide national perspectives on common problems and on other jurisdictions rather than merely to describe national law (eg Colombi Ciacchi, Lindenbergh, Coester-Waltjen, Drexl, Freedland, Ziegler). This is facilitated through the unifying bracket of Article 8 of the European Convention on Human Rights and to some degree also EU human rights and secondary legislation, which provide ‘natural’ comparators and focal points for debate – as the von Hannover decision demonstrated. Fourth, the wider approach is reflected in what may be carefully described as ‘not-only-legal’ debates, be they theoretical or moral. This is demonstrated in a critical approach to the horizontal application of human rights generally which stresses how problematic balancing processes are between individuals with regard to legal certainty and which questions in particular whether a general tort of privacy is a suitable remedy (Barber, Bagshaw). It is also reflected in the focus on the outcome of the horizontal application of human rights as a tool to achieve social justice (Colombi Ciacchi, Coester-Waltjen, Nieuwenhuis). To return to the first diversity, that of issue areas: Part Two addresses specific problems of privacy arising in selected subject areas of the law: contract law (Snijders, Coester-Waltjen) employment law (Coester, Freedland), intellectual property law (Drexl, Spence, Treiger-Bar-Am) and media law (Ziegler). Section A deals with contract law and human rights and a specific attempt at balancing the principle of non-discrimination with the freedom of contract. Against the backdrop of the two dimensions of privacy (intimacy and autonomy) Henricus Snijders identifies two correlating

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Introduction 7 aspects of privacy in contract law. Intimacy refers to confidentiality of contract, for example, keeping the terms of a contract secret. Autonomy (rather than the alternative right to property) relates to the freedom to contract, both in the sense of the ‘if’ (conclusion) and the ‘how’ (content) of a contract. He also puts the conclusion of a contract which is a form of communication into the context of freedom of expression. He concludes that both the freedom of contract and its limitations derive from human rights. Dagmar Coester-Waltjen then looks at a specific example of a restriction of the freedom of contract: the prohibition of discrimination on grounds of sex and race, a theme brought to the fore by the EC Directives concerning equal treatment of men and women (2004)9 and equal treatment irrespective of racial or ethnic origin (2000),10 which triggered a comprehensive debate in Germany. The application of a human right here derives from an act of concretion by the legislature as a generalised balancing decision, partly redefining the generalised balancing decisions that are already inherent in legislation of private law. Hence the approach has to be distinguished from the general horizontal application of human rights between private individuals, in effect by courts and through general clauses in German private law, as discussed in Part One.11 Her criticism is directed against the specific provisions laid down by the Directives and the more far-reaching implementation debated in Germany, which was one reason for the delay and the resultant failure to implement the directives in time. While limits on the freedom to contract may be justified where disadvantages of status endanger social peace, which is likely where goods and services are delivered as mass-transactions, personal decisions in contracts in more personal contexts should not be interfered with. Hence she calls for a narrow construction of the Directives when applied to types of contracts between individuals. Section B on privacy in labour law (Coester, Freedland) concerns an area that is illustrative in at least two respects. First, it tended to be both the forerunner for the debate on the horizontal application of human rights, acknowledging the typically unequal bargaining powers between parties, both on the level of an employment contract/relationship and between the social partners. The German Constitution explicitly allocates direct horizontal effect to the human right to form trade unions.12 Second, employment relationships are – by their very nature and interests involved –

9 Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37. 10 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 11 Cf JC Dammann, Die Grenzen zulässiger Diskriminierung im allgemeinen Zivilrecht (Berlin, Duncker & Humblot 2005). 12 Art 9 (3) of the German Constitution.

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particularly sensitive to privacy invasions: an employee spends significant portions of his or her lifetime in this special relationship, which is prone to privacy-relevant acts such as harassment, surveillance, or the questions that may be asked at a job interview or to which information must be given truthfully. The employee’s privacy rights (both in the seclusion and the autonomy dimensions) may conflict with the employer’s privacy-asautonomy rights to pursue his economic activities. These special features of employment situations are emphasised by the fact that German labour law speaks less of an employment contract and more of an employer-employee relationship, as Michael Coester, who discusses these issues, points out. Mark Freedland then provides a comparative perspective from the angle of English employment law. In English employment law, privacy interests of the employee are sharply opposed by various interests of the employer (termed ‘non-privacy’ interests), such as managerial effectiveness or transparency of the conduct of an undertaking and its workers. In addition, the entry into force of the Human Rights Act required a re-balancing of a stronger right to privacy that entered English law. On a meta-level, he describes and develops models of balancing privacy rights with nonprivacy rights and possible regulatory regimes. In doing so, he also points to the two aspects of privacy: rights or claims to privacy strictly so-called (seclusion), and rights or claims to respect for private life in a broader sense (personal autonomy). Four models can be identified: strong privacy protection, strong non-privacy protection and two equilibria between privacy and non-privacy interests, one ‘dynamic’ with strong human rights, one ‘static’ with weak rights on either side. English labour law after the Human Rights Act is analysed as having shifted from weak privacy protection towards the equilibrium models. He concludes with a discussion of derogability of worker privacy by contract, which is in effect a balancing of the two aspects of privacy, and the question of how regulation may be improved procedurally and institutionally. Another facet showing a practical concretion of privacy in intellectual property law (Section C) concerns the protection of authors’ moral rights with regard to their works: they may be brought into a privacy context by looking at the rationale of such protection, namely the protection of personality rights of the author – at least in the German tradition of copyright protection (Drexl) – or indeed by looking at the question of subsequent control of a form of speech after it has been first made. The principle of autonomy resounds in this approach (Treiger-Bar-Am & Spence). From a comparative and European perspective, Josef Drexl shows how the constitutional ‘framing’ in the context of personality rights in Germany and property rights in France affects moral rights and the balance of interests between authors’ rights and employers/exploiters of copyrights. Both European rights-based approaches can be contrasted with a utilitarian one in US law. Variations in the protection of moral rights in France,

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Germany and the United Kingdom, with regard to the scope of protection of authors’ interests to integrity when his or her work is modified, are discussed. Further, the relationship between moral rights and economic rights, which affects the transfer and exploitation of moral rights and the question of a possible waiver of a right (inalienable rights) and the terms of copyright protection are compared. He concludes by finding similarities and convergence among the regimes. He then analyses the influence of EU fundamental rights on copyright protection when balancing copyrights against market freedoms such as the free movement of goods in the EU. The EU Charter of Fundamental Rights subsumes intellectual property protection under property protection, an approach favoured by economic analysis of law approaches, which tend to see protection of moral rights as restraints on efficiency. Drexl points to the bias of such an approach in favour of exploiters to the disadvantage of authors, at least if it does not distinguish between original (author) and acquired (exploiter) property. He pleads for special constitutional protection of the author/creator as the structurally weaker party in a licensing agreement. This might be through a privacy approach, but could also be achieved by a specially shaped property rights approach. Leslie-Kim Treiger-Bar-Am and Michael Spence then provide a different context for privacy in intellectual property law: by classifying works as speech (expression), the granting and limiting of an author’s rights (a creator’s control) over his or her expression need to be justified by balancing the expressive autonomy of both sides. Freedom of expression is relevant both to authors’ integrity interests, even where copyright is transferred, and modifiers’ interests in exploitation. Echoing the distinction between privacy-seclusion and privacy-autonomy, reflected in English, Dutch and German law, the European Constitutional Treaty and US law alike, it is the privacy-autonomy facet that coincides with the autonomy of expression. Authors’ freedom of expression covers both form and content of speech and limits others’ use of it. But such control of authors is also limited by the conflicting freedom of expression of the reproducer. The chapter discusses the extent to which the author’s freedom of expression is limited by ‘transformative’ secondary use. Where the original is still identifiable, such use may interfere with an author’s freedom of expression/ autonomy (privacy). Where there is a re-coding, in that a work becomes a cipher for a meaning separate from the original, as illustrated by Barbie as toy versus Barbie as ‘beautiful but empty headed’, guidance may be sought from an analogy with trademark law. If there is no alternative for the same range of meaning, it may be said to have become a public forum and author’s rights may therefore be restricted in the balancing process. In the final chapter Katja Ziegler critically analyses the von Hannover judgment of the European Court of Human Rights and its effect on German and English privacy law. The decision runs through the chapters as a common thread and provides a focal point for comparison between

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10 Katja S Ziegler the jurisdictions at issue. It illustrates different results of balancing by the European Court of Human Rights and the German Federal Constitutional Court. The Strasbourg Court’s balancing of privacy (intimacy and autonomy) against freedom of the press in the debate about tabloid press pictures can be criticised in several respects: the Court’s approach to privacy seems to be intuitive; it requires an assessment of the value (by form and content) of an expression in a democratic society at the level of scope of protection which runs counter to the very concept of freedom of speech; and it amounts to a far-reaching inroad into the margin of appreciation doctrine that is normally followed by the European Court of Human Rights where societal values come into play. The effect is already obvious in the comparative analysis of ‘paparazzi picture’ cases: it indirectly pushes for substantive harmonisation of private law in the horizontal relationships discussed in this volume. In addition to the unifying bracket of the von Hannover case, there are several common threads running through the chapters which reflect the rich diversity of the topic of privacy. These include the general debate about the horizontal application of human rights in principle (Fastrich, Young, Colombi Ciacchi, Barber, Bagshaw) and questions of balancing, both by judges (Barber, Bagshaw, Ziegler) and by the legislature (CoesterWaltjen, Coester, Freedland). Most prominent, however, and embracing horizontality and balancing issues, is the common thread across all manifestations of privacy, that of the autonomy of the individual, whether in regard to secret surveillance by the state, the press or the freedom to contract and even the limits of the freedom to contract (Nieuwenhuis, Snijders, Coester-Waltjen, Colombi Ciacchi). Whereas the concept of autonomy is more associated with the liberal state in the classic sense, this collection of papers shows that this is no longer the case. While retaining this meaning, it has acquired a further content more linked to ideas of social justice and substantive freedom which today one can include in the meaning of autonomy.

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2 The Core Business of Privacy Law: Protecting Autonomy HANS NIEUWENHUIS

W

HAT IS PRIVACY?’ ‘A good question, Socrates. Let me give you an example. If The Sun were to publish the story that my wife Cherie and I no longer share the same bedroom, I would call this a violation of my privacy.’ ‘Very well, Tony’, Socrates answers, ‘but that is not what I meant. I did not ask for one example of the very many instances of privacy. I want to know what all these cases have in common. What exactly makes all these cases of privacy, cases of privacy?’ This discussion closely parallels a debate which took place twenty-four centuries ago in Athens. Socrates asked Euthyphro: ‘What is piety?’ Euthyphro: ‘What I am going to do now, prosecuting my own father because he is guilty of the death of one of his servants.’ Socrates: ‘That is an example, give me a definition of piety.’ All attempts fail and the discussion goes on and on. At last Euthyphro remembers that he has other things to do and leaves. We still do not know what piety is, but nevertheless are much wiser. What is privacy? We are confronted with cases which at first sight seem to have nothing in common. Take for instance the privacy violated by an article in The Mirror showing photographs of the fashion model Naomi Campbell leaving the place where she had been receiving treatment for her drug addiction.1 What does it have in common with a woman’s right to abortion granted by the US Supreme Court in Roe v Wade? In this decision Mr Justice Blackmun delivered the opinion of the Court: ‘

This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.2

Which value links all cases of privacy: dignity or liberty? In a very interesting article published in the Yale Law Journal, James Q Whitman 1

Campbell v MGN Ltd [2004] UKHL 22. Roe v Wade 410 US 113 (1973).

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distinguishes ‘two western cultures of privacy: dignity versus liberty’.3 He notices a transatlantic clash. In (continental) Europe: privacy protections are, at their core, a form of protection of a right to respect and personal dignity…. By contrast, America, in this as in so many things, is much more oriented toward values of liberty, and especially liberty against the state. At its conceptual core, the American right to privacy still takes much the form that it took in the eighteenth century: It is the right to freedom from intrusions by the state, especially in one’s own home.

A recent decision of the US Supreme Court concerning the right of adult persons to engage in sexual practices common to a homosexual lifestyle illustrates this point. Justice Kennedy delivering the opinion of the Court starts with the following statement: Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.4

There are thus two perspectives on privacy: a dignitarian and a libertarian view. Why does the story of Tony and Cherie no longer sharing a common bedroom violate their privacy? One can answer this question either way. It breaches a duty of confidentiality because it causes loss of respect (dignity) or because knowledge of the reported facts could only have been obtained by violating the sanctity of the English home (liberty). The transatlantic clash between these two views might be less severe than Whitman suggests. It is by no means true that Europeans do not care about the sanctity of their homes. The European Convention on Human Rights explicitly recognises a fundamental right to respect for one’s home. The wide ranging provision on the right to privacy, Article 8 (1), reads: Everyone has the right to respect for his private and family life, his home and his correspondence.

The Dutch magazine Story published photographs taken with a telephoto lens of the comedian Paul de Leeuw, sitting behind the windows of his home with his newly adopted son on his lap. The Amsterdam District Court ruled that although the photographs were of a very innocent nature, even a public figure like Paul de Leeuw had a right to feel free and not spied upon in his own home.5 His dignity was not at stake, at least not his dignity as understood in the traditional sense as honour, respectability and status.

3 JQ Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 Yale Law Journal 1151. 4 Lawrence v Texas 539 US 558 (2003). 5 Rechtbank Amsterdam, 7 mei 2003, Landelijke Jurisprudentie Nummers (LJN) AF8332.

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Following the dignitarian approach to privacy, it is important to make a clear distinction between two concepts of dignity. On the one hand, there is the traditional concept of dignity, its core being honour, respectability and status. Naomi Campbell’s respectability was harmed by the article in The Mirror because the photographs showed that she had lied about her drug addiction. On the other hand we have the enlightenment idea of (human) dignity conceived of as personal autonomy. Autonomy is the foundation of the dignity of human nature, according to Kant (‘Autonomie ist also der Grund der Würde der menschlichen Natur’).6 The core business of privacy law is, on this view, about protecting personal autonomy. This view is explicitly mentioned by the Law Lords deciding the Naomi Campbell case: What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity … the new approach … focuses upon the right to control the dissemination of information about one’s private life.7

Baroness Hale referred to what has been termed ‘the protection of the individual’s informational autonomy’.8 Is the right to control the dissemination of information about one’s private life, informational autonomy for short, the key to solving cases concerning the right to privacy? Politicians know that it is very unwise to disseminate the fact that they frequently smoked cannabis during their time at university. But do they have a right to prevent others from unveiling this fact? On the eve of the recent general election, Tony Blair made use of his informational autonomy by admitting to The Sun that he is ‘a five-timesa-night man’. ‘I can do it more, depending how I feel.’ This was corroborated by Cherie Blair. Of course, this way of disseminating information about one’s private life invites comment by the press. ‘Perhaps he is not to blame; he may be a sex addict. He may need help’, according to Minette Marrin in the Sunday Times (8 May 2005). In Campbell v MGN Ltd the House of Lords held that the threshold test as to whether information was private was to ask whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than its recipient, would find the disclosure offensive. I may not find it offensive to read about the nocturnal habits of Tony Blair, but I certainly would be very much offended if my nightlife were to be exposed in such a way. The offensiveness test is connected with dignity in its traditional sense of honour, respectability and status. Most people of ordinary sensibilities

6 Kant, Grundlegung zur Metaphysik der Sitten (Riga 1785; Hamburg, Felix Meiner Verlag 1965) 60. 7 Campbell v MGN Ltd (n 1) per Lord Hoffmann, paras 50, 51. 8 Campbell v MGN Ltd (n 1) para 134.

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would feel offended if they were shown to be liars because they had not told the truth about their drug addiction. The offensiveness test is not the only test to determine whether information is private or not. In Campbell Baroness Hale admits that you can do without this test ‘in respect of information which is obviously private, including information about health, personal relationships or finance’. These categories are far too wide to be labelled ‘private’ en bloc. A spectacular rise in the salary of the CEO of ABN-AMRO is certainly news that is appropriate to print. So is the news that the German Foreign Affairs Minister Joschka Fischer is trying to lose a few pounds by jogging along the Spree (old news in fact). How can we identify information which in itself is not offensive but should nevertheless be signposted ‘keep off’? On this point dignity conceived of as personal autonomy might prove useful. What do a woman’s right to an abortion and her right that the press shall not report the fact that she has breast cancer have in common? With regard to abortion the Hoge Raad, the Supreme Court of The Netherlands, recently stressed the fact that the right to an abortion hinges on the personal autonomy of the woman.9 The Hoge Raad had to decide a case concerning a wrongful life claim. Kelly, a girl, was born severely handicapped. If the obstetrician had performed the prenatal diagnosis more diligently, a hereditary genetic defect would have come to light and the child would not have been born, because the mother would have decided to have it aborted. The Hoge Raad awarded a whole range of damages, the most controversial being the compensation awarded to Kelly herself on the ground that the obstetrician had breached a duty of care towards the unborn child. Apart from the costs of bringing up Kelly, the Hoge Raad also awarded non-economic damages to the mother: The law recognizes within certain limits the right of the mother to terminate her pregnancy. This recognition rests on the fundamental right of the mother to self-determination. If, by the negligence of the obstetrician, the mother is deprived of her choice to prevent the birth of a severely handicapped child, this constitutes a serious violation of her right to self-determination.10

Personal autonomy also played a central role in a case decided by the House of Lords. The case concerned medical malpractice: an operation aimed at sterilising a woman was carried out negligently. Miss Rees is severely visually handicapped and thought that, because of this, she could

9 Hoge Raad, (2005) Rechtspraak van de Week (RvdW) 42. The decision can also be found at www.rechtspraak.nl/ljn.asp?ljn=AR5213. 10 Hoge Raad (n 9).

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not give a child an adequate education. She was sterilised, but not properly. In 1997 she gave birth to a son, Anthony, a healthy and normal child. Lord Millet said: I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz. the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law.11

What we get from these judicial statements is respect for a woman’s choice whether to prevent pregnancy or not and whether to give birth to a severely handicapped child or not. In both cases the courts pay tribute to personal autonomy as the core of human dignity. What can be learned from this with regard to information which others are not entitled to disclose even though the content of the information is in no way offensive? Are magazines entitled to report the fact that a famous singer has developed breast cancer even before she herself has made this disturbing, but by no means offensive, news known to the public? Does the concept of informational autonomy offer any help? The case of Kylie Minogue may clarify this question. She took the dissemination of the news concerning her breast cancer energetically into her own hands. On her website her fans can read A Message from Kylie in which she thanks them for their donations towards breast cancer support and research. On the basis of her informational autonomy, Kylie Minogue might have chosen a very different course of action such as a temporary withdrawal from the public eye in order to fight her affliction in solitude. The question is not whether in such a case the press is likely to respect her quest for privacy, but whether it ought to. The latter is true. Thus, at a basic level there is a real clash of cultures between countries that have liberty as the basis of privacy and countries that see dignity as the organising principle. If we think of liberty as the right to be left alone at home, not spied upon by public authorities, and if we take dignity to mean honour, respectability and status, then there is a real difference between the libertarian and the dignitarian view on privacy. A camera hidden in the bedroom can in that case either be viewed as a breach of the sanctity of the home or as a violation of the honour of the persons living there. But as we have seen, dignity also includes the idea of autonomy. The same is true with regard to liberty. At face value liberty means the absence of interference. However, on top of this ‘negative’ sense of liberty has emerged a more ‘positive’ notion of liberty, thoroughly analysed by Isaiah Berlin in his Two Concepts of Liberty:

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Rees v Darlington Memorial Hospital [2004] 1 AC 309.

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The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend upon myself, not on external forces of whatever kind.12

In its positive sense liberty is conceived of as autonomy. The wish for one’s life to depend on oneself can never be fulfilled completely. Our lives are, at least in part, shaped by the way in which we are seen by others. In order to succeed in whatever calling we might choose to follow, we inevitably must be image-builders, shaping our public image in a favourable way. Presenting the whole truth and nothing but the truth is seldom good advice. You can try to be chosen to appear on the TV-show Big Brother and stay in a house with cameras in every room, or you can lock yourself up in a soundproof flat at the Parisian Boulevard Haussmann and write a novel some 3,200 pages long, opening with a look into your bedroom: ‘Longtemps, je me suis couché de bonne heure.’ In both cases you are entitled, and well advised, to keep a large part of the truth about yourself hidden from the public. At this higher level liberty and dignity meet. Autonomy is the overarching value linking such diverse cases as a woman’s right to an abortion and her right to prohibit the publication of a photograph showing her attendance at meetings of Narcotics Anonymous.

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I Berlin, Four Essays on Liberty (London, Oxford University Press 1969) 131.

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3 Human Rights and Private Law LORENZ FASTRICH

I.

INTRODUCTION

T

HE RELATIONSHIP BETWEEN private law and human rights law is complex. In this chapter I will only deal with two problems. On the one hand the relationship raises a technical problem: how do human rights influence private law? This problem has to be solved in different ways depending on the specific legal system. In this respect I cannot say anything about the English legal system, and thus I do not see too much sense in explaining broadly the specific details of the human rights problem in the German constitutional system. In this respect I would like to make only some general remarks in the first part of the chapter. On the other hand the relationship between human rights law and private law poses a more fundamental question: is it possible that the observance of human rights conflicts with the function of private law as a part of freedom and autonomy? This may sound strange, but a maximisation of human rights on one side can suffocate freedom on the other side. Therefore, I see a general problem in respect of the influence of human rights on private law, which might exist in all legal systems and which is still unresolved. Discussion of this will form the second part of this chapter.

II.

A.

AN OVERVIEW OF THE METHODICAL PROBLEMS OF THE INFLUENCE OF HUMAN RIGHTS ON PRIVATE LAW

Two Sources of Human Rights in Germany

In the German legal system there are two sources of human rights: the basic or fundamental rights in our Constitution, the ‘Grundgesetz’ (Basic Law) are the main source. The other source is the European Convention on Human Rights (ECHR). The basic rights, so-called Grundrechte, cover the whole range of human rights of the ECHR. Therefore, the human rights written in the ECHR did not play the same role in Germany as in other

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countries. This explains why, for a long time, there weren’t many judgments of the ECHR against Germany. This has changed now. I will come to this question later.

B. i

Influence of Human Rights on Private Law in Germany Constitutional Basic Rights

The starting point in this discussion is that the fundamental rights of the German Constitution are binding for (normal) statutes, public authorities and courts (Article 1(3) of the Basic Law). Therefore, statutes which are relevant for a decision, have to be examined to see if they are in harmony with the fundamental rights. If not, the court which has to decide the case, has to refer the question of compatibility or incompatibility to the Federal Constitutional Court. The latter decides whether the parliamentary law is valid or not. Another, possibly more difficult, question in German law is that of the influence of fundamental rights on tort and contract law. There, the question is not whether statutes are in harmony with fundamental rights, but whether the contracts or actions of private subjects have to be in harmony with the system of values which is established by the fundamental rights. Is it tolerable that one party to a contract uses his stronger bargaining power with the result that the other party has to accept conditions which are in conflict with their fundamental rights? Or can it be allowed that a photographer takes photos of Caroline von Hannover without her consent? Therefore, the question arises whether fundamental rights are only negative rights and whether or not the judge has to protect private parties against other individuals in a private conflict from having their fundamental rights encroached upon by others exercising their freedoms. In a legal system which is based largely on statutes the court has to find its decision by applying statutes. How can the court in this system protect one party against the other party in order to prevent encroachment upon basic rights? There are two main academic theories on this question.1 One academic theory concludes that with respect to the binding effect on the courts, mentioned in Article 1(3) of the German Constitution, the fundamental rights are directly applicable to private law (unmittelbare Drittwirkung, horizontal effect).2 1 See also B Markesinis and S Enchelmaier, ‘The Applicability of Human Rights as between Individuals under German Constitutional Law’ in B Markesinis (ed) Protecting Privacy, The Clifford Chance Lectures Vol 4 (Oxford, Oxford University Press 1999) 191ff. 2 HC Nipperdey, Grundrechte und Privatrecht (Krefeld, Scherpe Verlag 1961); W Leisner, Grundrechte und Privatrecht (München, Beck Verlag 1960) 356ff; F Gamillscheg, ‘Die

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The opposite theory,3 which is shared by the German Federal Constitutional Court,4 says that fundamental rights have not only a negative function but also establish a system of values. And this system of values has to be considered when interpreting private law (mittelbare Drittwirkung, indirect horizontal effect). The system of values influences the relations between individuals through the so-called ‘general clauses’ which refer for instance to moral standards. The moral standard – according to this theory – has to be interpreted in harmony with the system of values which derives from the fundamental rights. In this way the system of fundamental rights influences private law. Well known in this sense is the surety decision of the German Federal Constitutional Court. The decision concerned a dispute between a bank and a guarantor. The bank claimed 100,000 Deutsche Mark. The guarantor, aged 21, was the daughter of the borrower. When the borrower wished to increase his loan from 50,000 Deutsche Mark to 100,000 Deutsche Mark, the bank demanded a surety from the daughter. The employee of the bank emphasised that he needed the surety only for the files. The surety was formally signed by the daughter who had at this time no relevant personal property. Therefore, it was foreseeable that if the guarantee was claimed, the daughter would never be able to pay the guarantee and its interest. The German Constitutional Court stated that the wide freedom of contract is only acceptable if there is typically or structurally a balance of bargaining power. The Court held that in this case there was a special inferiority combined with an unusual risk. These specific circumstances of the contracting party had to be taken into consideration. The way to do this is to interpret the general clauses. According to the Constitutional Court, the civil courts are obliged to pay due attention to the guarantee of the autonomy of private individuals as enshrined in Article 2(1) of the Basic Law. Therefore the guarantee was held to be void.5 It is broadly accepted that the different academic theories come to an identical result.6 The Federal Constitutional Court even went a step further. The basic rights contain not only a system of values but also oblige the State and the courts in certain cases to intervene in private law to

Grundrechte im Arbeitsrecht’ (1964) 164 Archiv für die civilistische Praxis 386 at 419ff; J Hager, ‘Grundrechte im Privatrecht’ (1994) Juristen-Zeitung 373. 3 C-W Canaris, ‘Grundrecht und Privatrecht’ (1984) 184 Archiv für die civilistische Praxis 201ff; K Larenz and M Wolff, Allgemeiner Teil des BGB (9th edn) (München, Beck Verlag 2004) para 8ff; B Pieroth and B Schlinck, Grundrechte (20th edn) (Heidelberg, CF Müller Verlag 2005) 46 (paras 181ff). 4 Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 7 BVerfGE 198; 34 BVerfGE 269, 280; 89 BVerfGE 214, 219; (1994) NJW 36, 38. 5 89 BVerfGE 214, 219 = (1994) NJW 36, 39. 6 FJ Säcker in R Rebmann, FJ Säcker and R Rixecker (eds), Münchener Kommentar zum BGB (4th edn) (München, Beck 2001) preface, para 56.

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secure a certain level of respect for these values, if possible without violating higher-ranking statute law (höherrangiges Gesetzesrecht).7 But we will see that the obligation to intervene in private law with the aim of protecting human rights is restricted and that there are good reasons for this restriction. Therefore, only a minimum level of values can be secured which private parties may also not neglect. ii The Influence of the European Convention on Human Rights on German Private Law The European Convention rights are similar to German basic rights in that they are primarily addressed to the State and not to individuals. States are obliged to comply with human rights, and not necessarily individuals in relationship to one another. The Convention contains obligations of the states parties to guarantee human rights in the sense that a State must not violate the human rights. For instance Article 2 of the Convention begins with the words ‘Everyone’s right to life shall be protected by law’. Individuals are not, therefore, automatically obligated to respect the human rights of the Convention in relationships with other individuals. More difficult seems to be the question of the influence of the ECHR on private law. In contrast to the constitutional law mentioned before, the Convention does not rank higher than statutes. It operates on the same level as statutes. With regard to the influence of the convention we must therefore answer two questions: First, is the function of the Convention solely negative in the sense that the human rights of the Convention are merely addressed to the State to prevent it from encroaching upon human rights? If we take the wording of the Constitution we see that it contains duties to protect life (Article 1) and to secure the enjoyment of rights without discrimination (Article 14). The duty to secure the enjoyment of rights and freedoms in Article 14 is nothing less than a positive duty to intervene if necessary. Therefore, I cannot see how we could limit the Convention to a mere negative function. Like the fundamental rights in the German Constitution, it encompasses, a positive duty to intervene in order to protect human rights.8 And this duty to protect is valid also in relation to protecting individuals from incursions into their liberties by fellow citizens. The Human Rights Act expresses this in the following words: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights. 7

88 BVerfGE 203 at 254; Canaris (n 3) 228ff. C Grabenwarter, Europäische Menschenrechtskonvention (München, Beck Verlag 2003) 146; A Peters, Einführung in die Europäische Menschenrechtskonvention (München, Beck Verlag 2003) 15. 8

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This is also the position of the European Court of Human Rights. In Caroline von Hannover the Court stated: In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life.9

Second, if the Convention includes a duty to protect, what is the consequence in relation to private law? In order to answer this question it is necessary to decide which status the Convention has in German law. This question has been answered in a very recent decision of the German Constitutional Court. The Court held: The European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and its protocols are international treaties, each of which has been incorporated into German law by the federal legislature in a formal statute. The Convention and its protocols thus have the status of federal German statutes (Gesetzesrang).10

Hence, the Convention is converted into German law in the form of statute law. As a consequence ‘German courts must observe and apply the Convention in interpreting national law’.11 But this is not the whole truth: if the Convention was only an ordinary statute at the level of national laws, there might well be a conflict between statutes and a national lex posterior which could restrict the Convention as a national statute. To avoid this the Constitutional Court in effect gives the Convention priority. In the words of the Constitutional Court: The guarantees of the Convention and its protocols, however, are not a direct constitutional basis for a court’s review, if only because of the status given them by the fundamental law. But on the level of constitutional law, the text of the Convention and the case-law of the ECHR serve as interpreting aids in determining the contents and scope of fundamental rights and fundamental constitutional principles of the fundamental law.12

That is not easy to understand: the Convention has merely the rank of a national statute but it also influences the interpretation of the higherranking German Constitution. It is evident that this may lead to a conflict between the European Court of Human Rights and the German Constitutional Court if the courts do not harmonise their interpretation, respectively, of the human rights of the ECHR and the basic rights of the German Constitution. This potential conflict came to light in the above mentioned Caroline von Hannover case. As a result, the German position is that the courts have to observe and apply the Convention while interpreting national law. The problem 9 Von Hannover v Germany, no 59320/00, 24 June 2004, ECHR 2004-VI, 1, (2005) 40 EHRR 1, (2004) NJW 2647, 2649. 10 111 BVerGE 307 = (2004) NJW 3407, 3408. 11 German Constitutional Court (n 10). 12 German Constitutional Court (n 10).

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remains that it is not clear what ‘to apply the Convention in interpreting national law to the background of private law’ means in practice. If the applicability of the Convention does not alter the fact that the Convention binds the state and not the citizen, we can return to the experience Germany has had with its constitutional basic rights. As mentioned before, there is the theory that basic rights have effect in private law via the interpretation of the so-called ‘general clauses’ which refer, for instance, to moral standards. The moral standards – according to this theory – have to be interpreted in harmony with the system of values, which derives from the fundamental rights. And one step further: the human rights contain not only a system of values but oblige the state and the courts in certain cases to intervene in private law – and that includes contract law – to secure respect for these values as far as possible without violating statutes and higher-ranking law.

C.

Some Remarks on the Charter of Fundamental Rights

The Charter of Fundamental Rights adopted in the year 2000 in Nice as yet has no legal force.13 Its binding legal force is dependent on final ratification by the European Constitution. After ratification of the European Constitution in all 25 Member States the Charter would be binding for EU institutions as an integrated part of the Constitution. Article II-112(5) of the European Constitution would have to be observed. The provisions of the Charter ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. Therefore, at first glance it seems impossible that the fundamental rights of the Charter and private law might come into conflict. The fundamental rights of the Charter as part of the European Constitution can oblige neither the European Court of Justice nor national courts to intervene in private law where the European Union has no specific competence.

III.

A.

CONFLICT BETWEEN INDIRECTLY APPLIED HUMAN RIGHTS AND LIBERTIES

The Essence of Individual Freedom

As far as human rights are applicable in private law we must note that it may come to a fundamental conflict between the autonomy of individuals and the protection of human rights. The reason for this is that the application of human rights into private law has two sides: one is the 13

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R Streinz, Europarecht (6th edn) (Heidelberg, CF Müller Verlag 2003) para 358a.

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strengthening of rights and freedoms of one party which can refer to a specific human right. But this is unavoidably at the expense of the freedom and autonomy of the other party. If one has to respect the private and family life of one person (Article 8 ECHR), another person cannot take photos as he likes. If one has to respect the private life of Caroline von Hannover, this is unavoidably at the expense of other people’s freedom. This result may be accepted, but nevertheless the point is that there is a limitation of the freedom of the photographer. The right to privacy on the one hand conflicts with the freedom of the press, the freedom of expression, etc on the other hand. I see the possible objection that the above-mentioned conflict does not exist. One could argue that there is no freedom to act where human rights are affected because freedom itself gives no right to act in contravention of basic or human rights. Therefore, the strengthening of human rights is not at the expense of anyone because no freedom can exist where human rights are encroached upon. But this would be an oversimplification of the problem which should also be examined from another angle. What are the principles of private law? These are freedom of contract, freedom of will and autonomy.14 What does ‘freedom’ and ‘autonomy’ mean in private law? I think that freedom should be understood as being more than an ability to act according to the values of basic rights. What would autonomy be, if it were only the right to act according to decrees of the state? Autonomy is a competence given to private subjects to regulate their own affairs according to their own will and as they please.15 Let me give an example: the testator has one son and one daughter. In his will, he leaves his property to his son and not to his daughter. If we were to accept the will only if it is in accordance with human rights, the testator would have to give acceptable reasons for his will. Otherwise, the will could not be accepted because it is discriminatory and therefore directly or indirectly an infringement of Article 14 ECHR. This would be nothing else than a denial of the testator’s freedom. We would lose a basic freedom in private law. The example shows that freedom in private law must be more than acting in accordance with the official values of the human rights catalogue. We must accept that freedom and autonomy, which the law must regulate, are both based on liberty. The substance of freedom and autonomy means to be able to act according to your own will.16 The will may be strange, wrong, emotional,

14 W Flume, Allgemeiner Teil des Bürgerlichen Rechts: Band 2: Das Rechtsgeschäft (4th edn) (Berlin, Springer Verlag 1992) 12. 15 W Zöllner, ‘Privatautonomie im Arbeitsverhältnis’ (1976) 176 Archiv für die civilistische Praxis 221 at 246. 16 W Flume (n 14) 6.

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subjective or imprudent. It might not be in accordance with the values of the ECHR. If we accept freedom, to a certain degree we have to accept subjective values and in consequence discrepancy between contracts or the testator’s will and the system of values established by human rights. However, freedom in this sense, which we need in private law, is not unlimited. But it is a question of limits, whether they are narrow or wide, and not a question of the scope of protection itself. In substance, private law must accept that individuals may act according to their own will. If this is accepted, there is a conflict in private law between individual freedom on the one hand and application of human rights on the other hand. This conflict has to be resolved, and it cannot be resolved by equating the scope of a freedom with its limits, drawn by human rights. The application of human rights tends to restrict private law in pursuing objective values. Private law, in contrast, must accept that individuals pursue subjective values and pursue their own happiness. If we do not accept private values in private law we deny freedom and autonomy.

B.

The Balance between Human Rights and Individual Freedom

Therefore, we come to the conclusion that in private law freedom and autonomy have to be balanced against human rights. This corresponds with the opinion of the European Court of Human Rights in Caroline von Hannover, where the Court stated that the ‘protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention’.17 At first glance, this seems to be the solution of the problem: balancing the different human rights. But I think it is only a first step in solving the problem. There is a serious problem still unresolved. The Convention does not give a complete catalogue of freedoms; only an incomplete one. So if we try to find the limits of freedom in balancing the freedom of one side against the freedom of the other side, in many cases there would be no accepted value on one side because the Convention contains only an incomplete catalogue of values. This fact is accepted in theory.18 However, the potential effect on private law and the way to solve the problem is not realised. I will try to demonstrate the problem in three examples concerning tort law, inheritance law and contract law. I start with the law of tort: Caroline von Hannover concerns tort law. I cannot discuss the problems of privacy in general. I would like only to pose the question: what would be the result of balancing if the conflict – taking private photos – was not between two different human rights as in 17 18

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Caroline von Hannover (on the one hand Article 8, the right to respect for private and family life, on the other hand Article 10, the right of freedom of expression), but if the conflict was between a human right and a general freedom of action as provided for by Article 2(1) of the German Constitution? What, for example, if I were to take a photo on Broad Street in Oxford? Unavoidably, there would be some private people on the photo. Maybe they do not wish to have their photo taken. What now? On one side of the balance, there is Article 8 of the Convention, but on the other side? There is no specific human right because the Convention does not particularly secure a general freedom of action. Article 5 only concerns freedom of movement in the sense of aller et venir.19 This is different from the fundamental rights in the German Constitution. Article 2 of the German Constitution secures also the ‘right to the free development of someone’s personality’ and this includes the right to take photos. The Convention itself does not secure such a general freedom, so one pan of the scales would remain empty. The balance lacks the counterweight. Thus, in private law we need to accept a general freedom similar to the right to free development of one’s personality if another party refers to specific human rights. We may find it in our German Constitution in the afore-mentioned right to free development of personality or we may try to find it in Articles 6 or 8 of the Charter of Fundamental Rights of the European Union. Otherwise there could not be any balancing but only the preponderance of certain human rights of the Convention, which would make it impossible to take photos on Broad Street in Oxford. This cannot be the result. Therefore, the European Court of Human Rights was urged to develop such a counterweight. The Court found – or rather established – it in Article 8 of the Convention. The wording of that article speaks merely of respect for private and family life, home and correspondence. For the first time the European Court of Human Rights has stated in Pretty v UK that: Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world…. Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.20

The same conclusion – ie that the principle of freedom and autonomy must be accepted – is necessary if we accept the right and freedom of inheritance. As mentioned before, there could be, for instance, a conflict between the testator’s will and Article 14 of the Convention if the testator leaves his

19

Peters (n 8) 92. Pretty v United Kingdom, no 2346/02, 29 April 2002, ECHR 2002-III 155, (2002) 35 EHRR 1, (2002) NJW 2851. 20

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entire estate to his son and nothing to his daughter. The German Constitution includes the basic freedom of inheritance. This includes the acceptance of the testator’s will. So, in Germany we can see the conflict as one between two basic rights: on the one hand the interdiction of discrimination and on the other hand the basic freedom of inheritance. In the European Convention, I see neither the guarantee of inheritance nor of freedom of the testator’s will. Therefore, at the level of the Convention, what can be balanced against the prohibition of discrimination? If we do not want to abolish freedom of inheritance, we must accept again that in applying human rights in private law, we need the acceptance of liberty in the form of a general right to free development of one’s personality. We have to accept liberty as a counterweight to other human rights. Finally, I turn to the law of contract. A specific problem of applying human rights in the context of contract law is the fact that a requirement of a contract is the consent of both parties. Therefore, a party that consented to a contract cannot claim that it encroaches upon his human rights. The consent normally contains a renunciation of the specific human right in question. This is a consequence of self-determination. This means that we have to accept contracts as valid even if they contravene human rights. We cannot have freedom if we restrict it in accordance with official values. However, freedom of contract is not unlimited. The question is where to draw the boundary. As a consequence of our understanding of freedom, the freedom has to be construed widely and its permissible restrictions narrowly. Otherwise, we would not accept freedom of contract.

C. i

The Preponderance of Individual Freedom Principle

The question may arise whether it is still a balancing of different rights if in private law liberty prevails. The answer is that the preponderance of liberty in private law is the result of balancing. But it does not always prevail, either in tort or in contract law. I would like to explain this with an image of concentric circles. In an inner circle of private relations the acceptance of freedom plays a special role. It is essential for private law. Therefore, it generally prevails. This explains the example of inheritance mentioned before. In an outer circle, freedom and autonomy must be balanced with other human rights. Freedom prevails in balancing with a more or less weak encroachment upon a specific human right. It depends on the human right in question.

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Exceptions

The preponderance of freedom is valid only as a principle. There are exceptions, especially in contract law if one of the parties was under specific pressure while contracting. We all know that in labour law freedom of contract is limited to protect employees. The reason is controversial, but it has to do with market failure and unequal bargaining power. Therefore, human rights play a specific role in labour law.21 Similarly this leads us the above-mentioned surety-judgment of the German Constitutional Court.22 Here the Court stated that limits of the freedom of contract are acceptable to compensate for a typical or structural imbalance of bargaining power. This was the case where there was a situation of special inferiority combined with an unusual risk. Such specific circumstances of the contracting party had to be taken into consideration, leading to the result that the guarantee was void.23 The latter case was not a human rights case, but basic rights were involved, especially the right to free development of one’s personality (Article 2(1) of the Basic Law). My conclusion for the application of human rights is that the range of freedom of contract in relation to the limits coming from human rights of the other party is wider if there is a certain equality of the parties’ bargaining power and narrower if the bargaining power is typically unbalanced. That decision is not undisputed.24 It changes the perspective of private law from formal freedom to ‘substantial’ freedom. I do not think that many English courts would agree.

21 See eg S Honeyball and J Bowers, Textbook on Labour Law (7th edn) (Oxford, Oxford University Press 2002) 463 ff 22 89 BVerfGE 214 = (1994) NJW 36. 23 89 BVerfGE 214, 219 = (1994) NJW 36, 39. 24 See K Adomeit, ‘Die gestörte Vertragsparität – ein Trugbild’ (1994) NJW 2467ff; C Hillgruber, ‘Abschied von der Privatautonomie?’ (1995) Zeitschrift für Rechtspolitik 6ff; W Zöllner, ‘Regelungsspielräume im Schuldvertragsrecht’ (1996) 196 Archiv für die civilistische Praxis 1ff; against W Löwe, ‘Bürgen in Sippenhaft dürfen aufatmen’ (1993) ZIP – Zeitschrift für Wirtschaftsrecht 1759; J Gernhuber, ‘Ruinöse Bürgschaften als Folge familiärer Verbundenheit’ (1995) Juristen-Zeitung 1086ff; H Honsell, ‘Bürgschaft und Mithaftung einkommens- und vermögensloser Angehöriger’ (1994) NJW 565 ff; K Kiethe and P Groeschke, ‘Vertragsdisparität und strukturelle Unterlegenheit als Wirksamkeits- und Haftungsfalle’ (1994) Betriebsberater 2291ff; W Kothe, ‘Vertragsfreiheit und gestörte Vertragsparität’ (1994) Zeitschrift für Bankrecht und Bankwirtschaft 172ff; E Schmidt, ‘Verfassungsgerichtliche Einwirkungen auf zivilistische Grundprinzipien und Institutionen’ (1995) Kritsche Vierjahresschrift für Gesetzgebung und Rechtswissenschaft 424ff; J Schapp, ‘Privatautonomie und Verfassungsrecht’ (1999) Zeitschrift für Bankrecht und Bankwirtschaft 30ff.

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CONCLUSIONS

1. Human rights may have different sources: the European Convention on Human Rights, basic rights of a national constitution and the Charter of Fundamental Rights of the European Union. If so, it is foreseeable that in applying fundamental rights there could be a conflict between the jurisdiction of the European Court of Human Rights and the German Constitutional Court or the European Court of Justice. This problem is unresolved. 2. The European Convention as an international treaty is addressed to the State and not to individuals. It is incorporated into German law in the form of a formal statute. But the effect is not simply negative as it also includes a positive duty of the State, public authorities and the courts to intervene within the framework of statutes and law. 3. In this way, the human rights of the Convention influence private law not directly but indirectly as a system of values via the interpretation of national law. Thus, the human rights of the Convention are applicable ‘horizontally’ between individuals similar to the indirect application of German basic rights in private law. 4. The indirect application of human rights in private law may lead to a conflict with human rights on the one hand and freedom and autonomy on the other hand. The method of balancing the different human rights of the Convention does not work if there is no human right on one side. Therefore, as a counterpart, a general freedom of action has to be accepted. Otherwise private law would lose its function as a domain of individual freedom and autonomy. 5. The balancing effect between human rights and the freedom of action may lead in a very inner circle to the preponderance of individual liberty. Outside this very narrow circle balancing may have to take into consideration general market failure and (structural) unbalanced bargaining power (labour law). Further discussion is needed about whether not only the existence of formal freedom but also of ‘substantial’ freedom is relevant.

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4 Horizontality and the Human Rights Act 1998 ALISON L YOUNG

O

NE OF THE many controversial areas surrounding the application of the Human Rights Act 1998 is the extent to which its provisions can impose obligations upon private individuals through the common law. The most prominent case law on this issue has involved the right to privacy. This is no surprise. As there was, and still remains, no common law right to privacy before the enactment of the Human Rights Act 1998, those in favour of developing such a right have turned to the provisions of the Act to further their aim. It also provides excellent conditions for assessing the impact of the Act itself: the extent to which privacy is protected depends upon the extent to which the Human Rights Act has horizontal effect. The scope of the court’s responsibility to protect Convention rights through the common law remains unclear, despite discussion before both the Court of Appeal and the House of Lords. This lack of clarity stems in particular from an apparent reluctance of the judiciary to engage with the issue directly, preferring implicit hints and suggestions. In addition, the frequency with which the horizontal effect of rights arises within the context of the protection of privacy means that the two issues become intertwined. Arguments surrounding the scope of privacy and the extent to which it should be protected as a tort in its own right are used to justify determinations as to the extent to which courts should develop the common law to protect Convention rights. A final, often neglected, difficulty derives from the plethora of models of horizontality. It is often difficult to interpret the precise nature of any model accepted or rejected by the judiciary and commentators alike. This chapter will argue that a failure to comprehend the subtle differences between different models of horizontal effect has had a negative effect both on the law and on academic commentary. In particular, it will argue that the confusion of substantive and remedial horizontality in the

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recent House of Lords decision of Re S1 challenges the clear line of legal authority against direct horizontal effect. Moreover, a failure to consider the subtle differences between different models of indirect horizontal effect has forced academic commentary to debate whether courts should adopt a strong or weak model of indirect horizontal effect. In particular, those supporting weak indirect horizontal effect argue that this is necessary to preserve the common law and to ensure the legitimacy of the judiciary. However, these aims are also preserved by other models of indirect horizontal effect, suggesting that there may be more convergence in the academic commentary than at first appears. An understanding of the different models of horizontality can be used to further our understanding of the law and academic debate and provides a means by which to resolve outstanding issues of debate.

I.

MODELS OF HORIZONTALITY

There are three ways in which the Human Rights Act can affect the development of private law or require the imposition of obligations upon private individuals. Section 3(1) requires the judiciary to read and give effect to primary and secondary legislation in a manner compatible with Convention rights, so far as it is possible to do so. This obligation applies regardless of whether the statute requires the imposition of an obligation upon a private or a public body. Consequently, section 3(1) may require the horizontal application of Convention rights. For example, in Ghaidan v Godin-Mendoza2 the Rent Act 1977 required a statutory tenancy to be granted to the surviving spouse of the tenant if that spouse was residing in the dwelling immediately before the death of the tenant. A ‘spouse’ was defined as ‘a person living with the original tenant as his or her wife or husband’.3 Mr Godin-Mendoza was the surviving partner of Mr WallwynJames, the tenant of a flat owned by Mr Ghaidan. The court concluded that the Rent Act 1977 could be read so as to include same-sex partners within the definition of ‘spouse’ in order to comply with Articles 8 and 14 ECHR. This Convention-compatible interpretation of the statute imposed obligations upon a private individual, Mr Ghaidan, to treat GodinMendoza as a statutory tenant, thus protecting Mr Godin-Mendoza’s Convention rights. Section 6(1) states that it is unlawful for a public authority to act in a manner incompatible with Convention rights. Section 6(3)(b) includes ‘any person certain of whose functions are functions of a public nature’ within the definition of a public authority. Bodies falling within this definition of a 1 2 3

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public authority are classed as hybrid public authorities, in that it is only their actions of a public as opposed to a private nature that are subject to the requirements of section 6(1).4 It follows, therefore, that private individuals performing a public function may find themselves subject to obligations imposed by Convention rights.5 Section 6(3)(a) includes courts and tribunals within the definition of a public authority. This suggests a third way in which Convention rights may have a horizontal effect – where courts are required to interpret the common law in a manner compatible with Convention rights, imposing obligations deriving from these Convention rights upon private individuals. Controversy has arisen surrounding the effect of section 6(3)(a). How far does it require courts to act in a manner compatible with Convention rights when applying the provisions of the common law? II.

HORIZONTALITY AND THE COMMON LAW

To understand the extent of the duty imposed upon the courts by section 6(3)(a) we need to understand the different types of horizontality. To start with, a distinction has been drawn between horizontal application and horizontal effect.6 A right has horizontal application when the concept of the right entails that the right should be held not only against the State, but also against individuals. A right has horizontal effect when an individual is able to enforce the right against other individuals. A right that has horizontal application need not have horizontal effect. There may be justifications other than the conceptual nature of the right dictating when individuals should be able to enforce rights against others; for example it may be difficult to grant horizontal effect to Convention rights before the European Court of Human Rights, even if conceptually the rights require horizontal application, given that it is an international as opposed to a domestic court.7 Just as there are different models of horizontal effect, so there are different models of horizontal applicability. First, a distinction is drawn between mediated and unmediated horizontal applicability. According to unmediated horizontal applicability, the concept of the right entails that other individuals are themselves obliged to act in a manner that respects the right. This entails, at least, a duty to refrain from interfering with the rights of others. So, for example, if the right of privacy enjoyed unmediated 4

Human Rights Act 1998, s 6(5). See, eg Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] QB 48; R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936; Aston Cantlow PCC v Wallbank [2003] UKHL 37 for a discussion of the interpretation of s 6(3)(a) HRA. 6 D Beyleveld and SD Pattinson, ‘Horizontal Applicability and Horizontal Effect’ (2002) 118 Law Quarterly Review 623. 7 Beyleveld and Pattinson (n 6) 626. 5

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horizontal applicability, the concept of the right of privacy would entail that I should have a legal duty not to act in a manner that would harm the right of privacy of others by, for example, listening to the private telephone conversations of my daughter. Mediated horizontal applicability occurs where the concept of the right limits the powers of others to act via the positive duties imposed upon the State to protect the right in question. So, while the concept of the right entails that the State has a duty to enact laws to prevent me from listening in to the telephone conversations of my daughter, it does not entail any legal duty upon myself not to tap my daughter’s telephone if the State has not acted to create this duty. The duty rests between my daughter and the State, not between my daughter and me. Mediated horizontality further subdivides into strong and weak models. Weak mediated horizontal applicability would require that the State places limits upon my powers to act; for example by legislating to limit my power to pick up the telephone extension in the kitchen in order to hear the telephone conversation of my daughter conducted on the telephone in her bedroom. Strong mediated horizontal applicability would require the State to intervene to place me under a positive duty to protect my daughter’s right to privacy; for example passing legislation requiring me to provide a private telephone line for my daughter.8 Second, a distinction can be drawn between remedial and substantive horizontality. Substantive horizontality requires the court to have regard to Convention rights when determining the nature of the rights and obligations of the applicant and the defendant. Remedial horizontality requires the court to have regard to Convention rights when determining the appropriate remedy for a breach of rights or a failure to comply with legally binding obligations. Section 6(3)(a) is capable of providing for both substantive and remedial horizontality, requiring the courts both to develop substantive provisions of the common law to ensure Convention compatibility and also to apply remedies in a manner compatible with Convention rights. Section 12(3), on the other hand, only creates remedial horizontality. It requires the court to ensure that the Convention right of freedom of expression receives adequate protection when granting an injunction. It does not provide a substantive right that can be used to found the granting of an injunction.9 Third, a distinction is drawn between direct and indirect horizontality. Direct horizontality occurs when individuals can plead the Convention

8

Beyleveld and Pattinson (n 6) 627-8. A Young, ‘Remedial and Substantive Horizontality: the Common Law and Douglas v Hello! Ltd’ [2002] Public Law 232, 234-5. For a further discussion of the forms of remedial horizontality, see I Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?’ (1999) 48 International and Comparative Law Quarterly 57, 80-82. 9

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right itself before the courts.10 If Convention rights have direct horizontal effect, an applicant can rely specifically upon Article 8 ECHR before an English court and the scope of the applicant’s right to privacy would stem directly from the scope of the Convention right. Indirect horizontality occurs when the Convention right attaches to a different right or obligation found in the common law. If the right to privacy has indirect horizontal effect, an applicant would not be able to rely upon Article 8 itself, but may, for example, rely upon the tort of breach of confidence. The tort of breach of confidence would then be interpreted in the light of Article 8.11 A distinction has been drawn between two types of indirect horizontality, strong and weak. Strong indirect horizontality places the court under a duty to interpret the common law in a manner compatible with Convention rights.12 Weak indirect horizontality grants the courts a power, as opposed to placing them under a duty, to interpret the common law in line with the values underpinning Convention rights.13 However, the distinction between strong and weak horizontality glosses over some of the subtle differences between the different models of horizontality found in the academic literature. These subtle distinctions derive not only from the precise nature of the obligation placed before the courts, but also from differing opinions as to whether section 6(3)(a) and section 6(1) require courts to develop new causes of action in tort and how this duty relates to the court’s responsibility to ensure that there is sufficient clarity and coherence within the common law.

III.

A.

THE SEVEN MODELS OF INDIRECT HORIZONTALITY

Negative Obligation Model

The negative obligation model of indirect horizontality neither requires nor empowers the courts to develop the common law in a manner compatible with Convention rights. Instead, it is argued that the courts should continue to develop the common law in the same manner as before the 10 Direct horizontality is advocated by HWR Wade, ‘The United Kingdom’s Bill of Rights’ in I Hare and C Forsyth (eds), Constitutional Reform in the United Kingdom: Practice and Principles (Oxford, Hart Publishing 1998) 61, 63-4 and ‘Horizons of Horizontality’ (2000) 116 Law Quarterly Review 217. J Morgan also advocates the need for direct horizontality of Convention rights in order to provide a sufficient protection of the right to privacy in English law: see ‘Privacy, Confidence and Horizontal Effect: ‘Hello’ Trouble’ (2003) 62 Cambridge Law Journal 444, 467-8 and ‘Privacy in the House of Lords, Again’ (2004) 120 Law Quarterly Review 653, 566. 11 G Phillipson, ‘The Human Rights Act, Horizontal Effect and the Common law: A Bang or a Whimper’ (1999) 26 Modern Law Review 824, 826. 12 M Hunt, ‘The ‘Horizontal Effect of the Human Rights Act’ [1998] Public Law 423. 13 Phillipson (n 11) 824.

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enactment of the Human Rights Act. However, when developing the common law, the courts are required to ensure that their developments do not contravene Convention rights.14

B.

Weak Indirect Horizontality

Weak indirect horizontality provides the courts with a power to develop the common law in line with the values underpinning Convention rights.15

C.

Strong/Weak Indirect Horizontality

This model combines aspects of the traditional strong and weak models of indirect horizontality. It places the courts under an obligation to develop the common law in a manner compatible with the values underpinning Convention rights.16

D.

Limited Strong Indirect Horizontality

This model places the courts under a duty to develop the common law in a manner compatible with Convention rights. However, it places a limit upon this obligation. Courts cannot be required to develop the common law in more than a merely incremental manner in order to protect Convention rights.17

E.

Strong Indirect Horizontality + No New Cause of Action

Once more, courts are placed under a duty to develop the common law in a manner compatible with Convention rights. However, courts cannot be required to create new causes of action in the common law.18 14 R Clayton and H Tomlinson, The Law of Human Rights (Oxford, Clarendon Press 2000) 234-5, paras 5.91-5.94. 15 This is the model preferred by Phillipson (n 11). He argues that courts should develop the law in a manner compatible with the values underpinning Convention rights. 16 This may be advocated by Phillipson, who also refers to the duty of the courts to interpret the common law in line with the values underpinning Convention rights (n 11) 830. It is the model adopted in Canada and Germany. 17 This is a possible interpretation of the judgment of Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, 993. 18 Hunt (n 12) 442-3.

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Strong Indirect Horizontality + Incremental New Cause of Action

This model requires courts to develop the common law in a manner compatible with Convention rights, even if this requires the creation of new causes of action. However, courts are only required to create new causes of action to protect Convention rights when this development is merely an incremental development of the common law.19

G.

Unlimited Strong Indirect Horizontality

This version of strong indirect horizontality places no limits upon the court’s obligation to develop the common law in a manner compatible with Convention rights. If required to do so, courts should develop new causes of action in common law, even if this requires more than a merely incremental development of the common law. This version of strong indirect horizontality is, in effect, direct horizontality in all but name. Although an individual cannot plead a Convention right directly, where the common law does not protect that right a new cause of action which mirrors the Convention right is required to be developed by the courts; essentially ensuring that Convention rights are completely incorporated in to the common law.

IV.

A.

WHICH MODEL OF HORIZONTALITY HAVE THE COURTS ADOPTED?

Direct Horizontality

The decision of the House of Lords in Wainwright v Home Office,20 where their Lordships rejected the existence of a general right to privacy in English law,21 as well as the necessity of its creation,22 provides a strong argument against direct horizontality. If the effect of section 6(3)(a) had been to create direct horizontality, then the House of Lords would have been required to incorporate Article 8 ECHR in to English law, providing the Wainwrights with an automatic plea that their privacy had been invaded as Article 8 itself had been breached.23 This conclusion is also supported by the Campbell v MGN Ltd decision, where their Lordships 19 This is a second possible interpretation of the judgment of Sedley LJ in Douglas v Hello! Ltd (n 17). 20 Wainwright v Home Office [2003] UKHL 53. 21 Wainwright v Home Office (n 20) para 19 per Lord Hoffmann; para 62 per Lord Scott. 22 Wainwright v Home Office (n 20) paras 15 and 26-34 per Lord Hoffmann. 23 Lord Hoffmann doubted whether Art 8 ECHR had been breached in this case: Wainwright v Home Office (n 20) para 51.

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again stressed that there was no general right to privacy in English law.24 The rejection of the model of direct horizontality is most clearly found in the judgment of Baroness Hale, who argues: Neither party to this appeal has challenged the basic principles which have emerged from the Court of Appeal in the wake of the 1998 Act. The 1998 Act does not create any new cause of action between private persons.25

These two recent decisions of the House of Lords confirm the conclusions reached both by lower courts prior to the decisions and by academic commentary.26 This rejection of direct effect has been indirectly challenged by the more recent House of Lords decision of Re S.27 S’s mother had been accused of murdering her son, S’s brother. A court order had been granted to prevent disclosure of the identity of S’s mother, the defendant in the ensuing murder trial, out of consideration for the privacy of S. The newspapers subject to this order had appealed the decision, being successful in both the Court of Appeal and ultimately the House of Lords. What is of interest here is the manner in which the court established jurisdiction to grant the injunction. The High Court and the Court of Appeal had relied upon case law establishing an inherent jurisdiction of the High Court to restrain publicity; albeit that this was regarded by the Court of Appeal as merely the vehicle by which the court could be called upon to perform the appropriate balancing exercise between Article 8 and Article 10 ECHR. However, Lord Steyn, with whom the rest of their Lordships agreed, held that this was no longer necessary, as: The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the convention. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt.28

The difficulty that arises here is to establish the manner in which the Convention rights were able to found the jurisdiction of the court. It would appear that Convention rights are being relied upon directly to establish jurisdiction: suggesting at least a possibility of direct horizontal effect. The implications of this direct reliance could lend support for the development of direct horizontality in other areas. First, Lord Steyn argued that jurisdiction derived from Convention rights themselves because to accept such an argument was the most ‘simple and direct way’ in which to decide 24 Campbell v MGN Ltd (n24) [2004] UKHL 22, para 11 per Lord Nicholls; para 43 per Lord Hoffmann; para 132 per Baroness Hale. 25 Campbell v MGN Ltd (n 24) para 132. 26 See, eg G Phillipson, ‘Transforming Breach of Confidence: Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726 and J Morgan, ‘Privacy in the House of Lords, Again’ (2004) 120 Law Quarterly Review 653. 27 Re S (n 1). 28 Re S (n 1) para 23.

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the issues. The court is faced with two choices: to derive jurisdiction to restrain publicity from the inherent jurisdiction of the High Court as established by the common law or to derive jurisdiction to restrain publicity directly from Convention rights. Both options would grant jurisdiction to the court. Moreover, both options ultimately require the court to apply Article 8 and Article 10 ECHR to determine whether the injunction should be granted. It is always more simple and direct to rely upon Convention rights themselves than it is to use the common law as a vehicle for bringing the Convention rights into court: thus calling into question whether this more simple and direct route will be used in other areas, and thereby establishing direct horizontal effect. However, although both cases concern Article 8 ECHR the two cases are clearly distinguishable, suggesting that Re S may not found an argument in favour of direct horizontal effect of Convention rights. Wainwright concerns the extent to which strip searches carried out by prison officers are illegal. Re S concerns the ability of the court to restrain publication to protect the interests of a minor. This may explain why Wainwright was not referred to in Re S, but given that one can be interpreted to reject and the other to support direct horizontality with regard to Article 8 ECHR it does little to lessen the potential conflict between the two cases. A more promising distinction is to argue that the two cases concern different types of direct horizontality. Wainwright is concerned with substantive horizontality, determining whether Article 8 can be used to found a right to privacy. Re S is concerned with remedial horizontality, with Articles 8 and 10 being used when assessing the appropriateness of granting an injunction. However, this possible distinction misunderstands the difference between procedural and remedial horizontality. Remedial horizontality occurs when Convention rights are being used to determine the scope of a remedy, where the right to that remedy has already been established. In Re S, Convention rights are being used to found the basis of the jurisdiction of the court, going beyond an assessment of the scope of the remedy once jurisdiction has been established. This has more in common with substantive than remedial horizontality. Finally, Wainwright only involves Article 8 whereas Re S requires Article 8 to be balanced against Article 10. This distinction, although apparently innocuous, may provide a better reason why Re S could not and should not be used to found direct horizontal effect. When balancing Article 8 and Article 10 the court has a greater opportunity to take account of the traditions particular to the United Kingdom – evidenced, at least in part, by the development of the common law. Consequently, there is a greater ability for the court to ensure that the common law does not shift its foundations or develop in a more than merely incremental manner. If the court were to grant direct horizontal effect to Article 8, not only is there less of an ability to protect the values underpinning the common law, but it requires the development of a general tort. Such a development does not sit

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well with the traditions of the common law, which favours pragmatic incremental developments, establishing specific causes of action as opposed to the adoption of generic causes of action.29 It is unclear, therefore, how far the courts will endorse direct horizontal effect in the future. The rejection of direct horizontal effect may be heavily influenced by the court’s desire to preserve the traditions of the common law. If so, then it is unlikely that the courts will adopt the model of direct horizontal effect. However, it may equally be influenced by dissatisfaction with the general tort of privacy itself, especially given the way in which this tort has proved difficult to categorise in other legal systems.30 Consequently, direct horizontal effect may be advocated for other Convention rights.

B.

Indirect Horizontality

Douglas v Hello! Ltd and Campbell v MGN clearly establish that section 6(3)(a) places a stronger responsibility upon the court than the negative obligation model. It is also hard to argue that the courts advocate unlimited strong indirect horizontality. The strong indirect horizontality model has the same effect in practice as direct horizontality. A model of strong indirect horizontality, therefore, would have required the court in Wainwright to create a new cause of action to protect Article 8 rights, which the House of Lords expressly refused to do. This conclusion is not challenged by Re S, as this case neither advocated nor required the creation of a new cause of action. Rather, it advocated a shift in the foundation for an established jurisdiction of the High Court to grant an injunction to restrain publicity. It is also hard to find clear support or rejection of the strong model of indirect horizontality which may require the creation of new causes of action, but only when this is an incremental development. The court’s reluctance to create a new tort of privacy in Wainwright may be explained in terms of the incremental cause of action model of strong indirect horizontal effect: creating a tort of privacy could be regarded as more than a merely incremental development of the common law.31 However, this is not the most plausible explanation of this judgment, which is best understood as a rejection of direct horizontality. Judicial support can be found, however, for the weak, mixed weak/ strong and the ‘no new cause of action’ model of strong indirect horizontal 29 Although English law does recognise common principles underlying the common law. See, for example, the comments of Lord Hoffmann in Wainwright v Home Office (n 20) para 31. 30 See, eg the argument of R Bagshaw, ‘Privacy and Tort Design’, in this volume. 31 Compare Sedley LJ in Douglas v Hello! Ltd (n 17).

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effect. The ‘no new cause of action’ model of strong indirect horizontal effect is expressly endorsed by Baroness Hale in Campbell v MGN who stated that: The 1998 Act does not create any new cause of action between private parties. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.32

Support for the weak and the mixed weak/strong models of indirect horizontal effect derives from the manner in which the court has developed the tort of breach of confidence in order to incorporate Article 8. Campbell v MGN marks an evolution in the tort of breach of confidence: it now protects private information as opposed to protecting confidential relations. Lord Nicholls expressly referred to this transformation as one based upon the recognition of the values underpinning Articles 8 and 10.33 Lord Hoffmann also argued that the tort of breach of confidence protected the fundamental values of autonomy and dignity, regarding these as the values underpinning Articles 8 and 10.34 It would appear, therefore, that the courts are conscious of developing the common law in line with the values underpinning Convention rights – regarding this as a less stringent requirement that enables the courts to protect Convention rights and the values underpinning the common law. However, it is unclear whether courts are obliged or merely empowered to incorporate Convention rights in this manner.

V.

WHAT MODEL SHOULD BE ADOPTED BY THE COURTS?

Arguments discussing the model of horizontal effect that should be adopted by the courts are influenced by the nature of Convention rights and the particular Convention right in question, the wording of the Human Rights Act and the need for clarity. The concern for clarity adds little to the debate: it does not dictate a specific model that the court should adopt but merely requires a selection to be made. Too great a focus on the right of privacy can also cloud the debate. The suitability or otherwise of a particular model of horizontal effect for one particular Convention right does not settle the debate regarding direct horizontality of the Convention as a whole. The discussion will focus, therefore, on the requirements of the Human Rights Act and the nature of Convention rights.

32 33 34

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A.

Direct Horizontal Effect

Five arguments are used to argue that the Human Rights Act cannot support a model of direct horizontal effect. The strongest argument claims that direct horizontal effect is contrary to the scheme of the Act. The Act does not directly incorporate Convention rights into English law. Instead, courts are required: to read and give effect to statutory provisions in a manner compatible with Convention rights, so far as it is possible to do so;35 to grant appropriate remedies against actions of public bodies that are contrary to Convention rights and hence unlawful;36 and to pay special regard to the right to freedom of expression when granting injunctions.37 There is no provision in the Act specifically incorporating Convention rights as substantive provisions of English law.38 Further arguments against direct horizontal effect derive from the manner in which the Human Rights Act protects Convention rights. First, it is argued that direct horizontality is problematic as there are no specific remedies available against a judicial decision that fails to protect a Convention right and which, therefore, is arguably an unlawful action of a public body. It is not possible to challenge the decision of the court directly via judicial review. The only available remedy would be to bring an appeal against the decision of the court. Yet, to bring an appeal, an applicant would require a legal cause of action upon which to base the appeal.39 However, the Human Rights Act only provides specific procedures whereby Convention rights are protected as opposed to incorporating Convention rights into English law per se. Consequently, it would not be possible to found an appeal against the decision of the court. It is also argued that damages would not be available. Bamforth challenges this suggestion, by arguing that the common law could develop a broad cause of action against the State for failing to fulfil its Convention obligations, similar to the principle of state liability developed in European Community law in Brasserie du Pêcheur40 and Köbler.41 However, he concedes that,

35

Human Rights Act 1998, s 3(1). Human Rights Act 1998, s 6. 37 Human Rights Act 1998, s 12(3). 38 R Buxton, ‘The Human Rights Act and Private Law’(2000) 116 Law Quarterly Review 48, 57-8; Hunt (n 12) 438-9; Leigh (n 9) 84-5; Phillipson (n 11) 826-7. 39 N Bamforth, ‘The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies’ (1999) 58 Cambridge Law Journal 159, 163-4. Even if such an appeal were brought, s 9(3) Human Rights Act 1998 would preclude the award of damages. 40 Joint Cases C-46/93 & C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. 41 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239. 36

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even if this remedy were developed by the common law courts, there would still be the problem of finding a cause of action to bring before the court in order to obtain damages.42 In addition, it is argued that the horizontal effect of the Convention is based upon the principle of Drittwirkung, itself founded upon Article 1 ECHR. However, the Human Rights Act does not incorporate Article 1. Therefore, if horizontality is founded upon Article 1, there would appear to be a clear parliamentary intention against the principle of direct horizontal effect.43 The same conclusion is drawn from the lack of incorporation of Article 13 ECHR. Article 13 provides a right to an adequate remedy for the breach of Convention rights. Phillipson argues that Article 13 is needed if we are to grant direct horizontal effect to Convention rights, in order to ensure that adequate remedies are provided. Therefore, the lack of incorporation of Article 13 is further evidence of a parliamentary unwillingness to grant direct horizontal effect.44 This is reinforced by the lack of evidence in Hansard of any parliamentary intention to create direct horizontal effect of Convention rights.45 Beyleveld and Pattinson argue against this conclusion. Their argument is based upon the nature of Convention rights, which they argue have direct horizontal application. This direct horizontal application founds a duty upon the State to ensure that Convention rights are adequately protected: both from intrusion by the State and also by intrusion from other private individuals. As it is the nature of the rights and not Article 1 that requires direct horizontal effect, the lack of incorporation of Article 1 poses no obstacle to direct horizontal effect.46 Beyleveld and Pattinson overcome the further textual arguments against direct horizontal effect by claiming that section 3(1) of the Human Rights Act is self-referential. Consequently, the provisions of the Act itself, including section 6(3)(a), must be read and given effect to in a manner compatible with Convention rights, so far as it is possible to do so. Although the context of the Human Rights Act suggests that Convention rights do not have direct horizontal effect, there is no express provision in the Act precluding direct horizontal effect.

42 Bamforth (n 39) 164-6. See also N Bamforth ‘The True “Horizontal Effect” of the Human Rights Act 1998’ (2001) 117 Law Quarterly Review 34, 39, R Buxton (n 38) 57-8. 43 Bamforth (n 42) 167-8. Phillipson (n 11) 835-6 uses this point to argue against strong indirect horizontal effect as well as challenging direct horizontal effect. 44 Phillipson (n 11) 837-8. He also concludes that the lack of incorporation of Article 13 dictates against strong indirect horizontal effect. 45 Phillipson (n 11) 827. 46 Compare I Leigh, ‘Horizontal Rights, The Human Rights Act and Privacy: Lessons from the Commonwealth?’ (1999) 48 International and Comparative Law Quarterly 57, who argues that Convention rights should not have horizontal direct effect as they are not claim rights, creating instead immunities and privileges. It is only rights in the form of claim rights that requires the creation of a correlative duty to protect the right. Also Buxton (n 38) 50-52, who concludes that Convention rights are not devised to apply directly to individuals, but to States.

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Consequently, Beyleveld and Pattinson argue that section 3(1) can be used to overcome the other textual objections to direct horizontal effect. Beyleveld and Pattinson’s argument has been overtaken by legal developments surrounding the scope of section 3(1). The House of Lords in Ghaidan v Godin-Mendoza held that it was not possible to read and give effect to a statute in a manner compatible with Convention rights where to do so would breach a fundamental feature of the statute in question, or give rise to serious practical repercussions.47 It is at least arguable that a fundamental feature of the Human Rights Act is that Convention rights are not directly incorporated, but that, instead, specific procedures are provided whereby Convention rights can be protected. Even if a Conventioncompatible reading of section 6(3)(a) required the courts to grant direct horizontal effect to Convention rights, to do so would be contrary to a fundamental feature of the Act and, therefore, beyond the realms of possible interpretations. In addition, reading section 6(3)(a) to require direct horizontal effect could have serious practical repercussions; requiring the courts to create specific remedies and procedures, potentially requiring actions for damages against decisions of the court that failed to protect Convention rights. It is clear, therefore, that even if Convention rights have horizontal application, the wording of the Human Rights Act dictates against the adoption of direct horizontal effect.

B.

Indirect Horizontal Effect

Although the Human Rights Act clearly supports a model of indirect horizontal effect, the Act provides no guidance as to the choice between the seven different models of indirect horizontal effect. Advocates of weak indirect horizontal effect are motivated by a desire to protect the common law and ensure judicial legitimacy. Convention rights and the common law have not developed in tandem. Consequently, there is the fear that the protection of a Convention right may require a solution that is radically different from that which is currently achieved at common law. An analysis from the perspective of Convention rights focuses particularly upon the nature of the right and the extent to which it can be justifiably restricted. The common law has a much broader ambit, which requires attention to be paid to values and interests not listed in the Convention. In addition, if the common law is required to develop a right to privacy, further pragmatic issues arise – such as the way in which the right to privacy is to be incorporated into existing common law causes of action, and whether new causes of action need to be created. The fear is that strong indirect horizontality will require developments of the common law that challenge 47

A Young ‘Ghaidan v Godin-Mendoza: Avoiding the Deference Trap’ [2005] Public Law

23.

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the common law’s values or traditions, or that have large practical ramifications. Consequently, a preference is given for weak indirect horizontality. If courts are merely empowered to develop the common law in line with values underpinning Convention rights, there is greater opportunity for the courts to ensure that Convention rights are developed alongside the common law.48 However, these concerns only provide an argument to reject unlimited strong indirect horizontal effect. Other models of strong indirect horizontality also provide the courts with the ability to protect Convention rights without overriding the fundamental values of the common law. For example, courts may be required to develop the common law in a manner compatible with Convention rights unless to do so requires more than a mere incremental development of the common law, or requires the creation of a new cause of action, or requires the creation of a new cause of action that is more than a mere incremental development of the common law. As Phillipson recognises, decisions of the European Court of Human Rights do not provide precise guidance as to the extent to which Convention rights should create obligations for private parties, leaving a wide margin of appreciation in this area. Although he uses this to argue against strong indirect horizontality, as it is hard to find precisely what it is that the courts have a duty to implement, this also illustrates the flexibility available to the court to preserve both Convention rights, to the extent required, and the values underpinning the common law.49 There are also further problems with the weak and the mixed strong/ weak models of indirect horizontality. These models aim to preserve the common law by restricting the power/duty of the court. Courts need not develop the common law in line with the precise requirements of Convention rights, allowing them the ability to respect the values underpinning both the common law and the Convention.50 However, it also runs the risk that the judiciary transgress the bounds of their power. Rights are justified by the values and interests that underpin them. X has a right to privacy if X has a sufficient interest to place Y under a duty to provide that right. X has an immunity with regard to privacy if X has sufficient interest to justify placing Y under a disability to interfere with X’s right to privacy. Interests and values are balanced in order to determine whether a right exists and, in turn, to help determine the confines of that right. A right is an intermediary conclusion. It saves time as courts can rely upon this intermediate conclusion, determining how it applies to a particular situation, without needing to assess the value of the right in question. Values underpinning 48

Phillipson (n 11) 838-40. Phillipson (n 11) 840-43. 50 Phillipson explains this by arguing that Convention rights would be considered as mandatory principles. Although important, they could be outweighed by other rights and considerations, including those deriving from the common law that are not listed within the Articles of the Convention itself. See Phillipson (n 11) 832-3. 49

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rights are also more contestable than the intermediate conclusions supporting rights. It is less contestable, for example, to agree that there is a right to freedom of expression than it is to agree whether this right should be protected as it furthers truth, promotes autonomy or is a necessary requisite of democracy. Consequently, it is argued that the assessment of values to determine intermediate conclusions is best left to the political as opposed to the legal sphere.51 If courts are required to reassess these political values, as opposed to applying rights, they may stray from the legitimate confines of their power. Ensuring that the common law is developed in a manner compatible with Convention rights still enables the court to protect the values underpinning the common law: both with regard to how Convention rights apply to a particular situation and also where their duty to develop the common law or create new rights is restricted.

VI.

CONCLUSION

The extent to which courts should and could develop the common law to protect Convention rights remains unclear, with recent decisions appearing only to add to as opposed to remove this uncertainty. The lack of clarity can be explained by a general judicial reluctance to engage with the issue directly and the merging of the right to privacy with examinations of the extent to which human rights should have horizontal application. Further difficulties arise from the plethora of models available to those advocating horizontal indirect effect. However, the identification of different models of indirect horizontality also serves to illustrate a consensus emerging from the case law and academic commentary: the need to protect Convention rights indirectly through the common law, ensuring that such protection respects the values and principles underpinning the common law. This consensus may explain the decision in Re S: using Convention rights to establish directly a jurisdiction that the court had already granted to itself through the common law posed no challenge to the values underpinning the common law. It merely provided an easier way to reach the same substantive conclusion, requiring courts to balance Convention rights when granting injunctions to restrain publication. The consensus also serves to illustrate that the confusion that does exist does not derive from conflicting fundamental principles. It is a question of finding the precise balance between the protection of Convention rights and the preservation of the common law. Debates surrounding the precise distinction between public and private and the extent to which Convention rights should create 51 See, eg J Raz, Morality of Freedom (Oxford, Clarendon Press 1986) 180-83 and C Sunstein, Legal Reasoning and Political Conflict (Oxford, Oxford University Press 1996) 35-61.

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obligations for private parties are best resolved within the particular framework of each Convention right. It is only when we clearly distinguish between the scope of the right to privacy and the reach of indirect horizontal effect that we will resolve the horizontality issue.

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5 Horizontal Effect of Fundamental Rights, Privacy and Social Justice AURELIA COLOMBI CIACCHI

I.

CONSTITUTIONAL TREATIES CAN DIE, EUROPEAN FUNDAMENTAL RIGHTS ALWAYS LIVE

W

HEN SPEAKING ABOUT European Union fundamental rights, the first thing which comes to one’s mind is the Nice Charter.1 This Charter was not born under a lucky star. As not all Member States were willing to make it become mandatory EC law, it was enacted in 2000 as a solemn proclamation without any binding force. The Community institutions and the Member States in favour of the Charter hoped it would soon come into full legal effect as a part of the Constitutional Treaty of 2004.2 Today, however, after the French and Dutch ‘No’, the Treaty – if not definitively dead – has fallen into a coma-like state. It could be reawakened in the future, but this does not seem very likely at the moment. So has the European Constitution died? Not at all. The Constitutional Treaty is of course a constitution, but not the only one. The Treaty is just a formal, written constitution. As English constitutional theorists well know, constitutions can do without any so-called written document.3 European lawyers have been speaking of the ‘European Economic Constitution’ for many years.4 We can indeed recognise the existence of a 1 Charter of Fundamental Rights of the European Union [2000] OJ C364/1, proclaimed at Nice on 7 December 2000. 2 The Treaty establishing a Constitution for Europe was signed by the representatives of the governments of the Member States on 29 October 2004 in Rome. The draft ([2003] OJ C169/1) was adopted by consensus by the European Convention on 13 June and 10 July 2003 and submitted to the President of the European Council in Rome on 18 July 2003. The full text is available at http://europa.eu.int/constitution/index_en.htm. 3 See W Bagehot, The English Constitution (2nd edn) (Oxford, Oxford University Press 1928). 4 ME Streit and W Mussler, ‘The Economic Constitution of the European Community. From “Rome” to “Maastricht”’ (1995) 1 European Law Journal 5; C Joerges, ‘The Market without the State? The “Economic Constitution” of the European Community and the

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European Constitution in a substantive sense,5 formed by the EC Treaties and the unwritten general principles of EC law acknowledged by the case law of the European Court of Justice (ECJ). This constitution is as old as the European Community itself. In recent years it has become clear that this constitution is no longer a merely economic one.6 The basic principles of the current Treaties unambiguously refer also to political and human values such as democracy, rule of law and respect for human rights.7 And, 26 years before the enactment of the Nice Charter, the ECJ stated that: fundamental rights form an integral part of the general principles of law, the observance of which [the Court] ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional tradition common to the Member States…. Similarly, international Treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of community law.8

This principle became consolidated case law and was subsequently codified in Article F(2) of the EU Treaty of Maastricht and, now, in Article 6(2) of the EU Treaty of Nice. Therefore, a set of core fundamental rights – the ones enshrined in the Human Rights Convention, and the ones recognised by the common constitutional traditions of the Member States – are already in force as supreme principles of EC law. The whole body of Community law must be in conformity with them. These European fundamental rights had legal effect a long time before the Nice Charter, and will continue to do so even if the Constitutional Treaty definitively dies.

Rebirth of Regulatory Politics’, European Integration online Papers (EIoP) vol 1 (1997) no 19, http://eiop.or.at/eiop/texte/1997-019a.htm; A Somek, ‘Equality and Constitutional Indeterminacy. An Interpretative Perspective on the European Economic Constitution’ (2001) 7 European Law Journal 171. 5 On European constitutionalism see P Craig, ‘Constitutions, Constitutionalism and the European Union’ (2001) 7 European Law Journal 125; C Joerges, ‘The Law in the Process of Constitutionalizing Europe’, EUI Working Paper Law 4/2002; J Shaw, ‘The Emergence of Postnational Constitutionalism in the European Union’ (1999) 6 Journal of European Public Policy 579; I Pernice, ‘Multi-level Constitutionalism and the Treaty of Amsterdam: Constitution-Making Revisited?’ (1999) 36 Common Market Law Review 703; JHH Weiler, The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and other Essays on European Integration (Cambridge, Cambridge University Press 1999). 6 Cf C Joerges, ‘What is Left of the European Economic Constitution? A Melancholic Eulogy’, EUI Working Paper Law 13/2004. 7 See EU Treaty Art 6. 8 ECJ Case C-4/73 Nold v European Commission [1974] ECR 372.

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Horizontal Effect II.

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HORIZONTAL EFFECT OF FUNDAMENTAL RIGHTS: LEGAL FAMILIES

The principle according to which laws have to be in conformity with fundamental rights is generally acknowledged in Europe, and not only in the field of Community law. This principle was born in the common constitutional traditions of the Member States, from which it spilled over into EC law. In the Member States’ legal systems, conformity with fundamental rights is required in all areas of law, both public and private law. It can be achieved by legislators and courts replacing old legal instruments with new ones and also re-interpreting existing legal instruments. Insofar as private law is concerned, and insofar as conformity with fundamental rights is to be realised in other ways than changes in legislation, scholars often speak of the ‘horizontal effect’ of fundamental rights.9 This means that a fundamental right is not applied in the ‘vertical’ relationship between a private person and a public body but in the ‘horizontal’ relationship between two (or more) private persons. In practice, this almost always happens through a court judgment where the reference to a fundamental right is of crucial importance in order to solve a private law case. Some kind of fundamental rights horizontality is acknowledged in the private laws of most (if not all) Member States. From a viewpoint of macro-comparative law, a distinction can be made between four groups of countries. The first and largest group includes the Member States with both a written constitution and a constitutional court, where the latter is also competent to judge the constitutional conformity of civil court judgments in private law matters. This is true for example in Germany, Italy, Poland, Portugal and Spain. In those countries, both the civil courts and the constitutional courts have been applying constitutionally protected fundamental rights in private law cases for many years.10 Often the most

9 See eg M Hunt, ‘The Horizontal Effect of the Human Rights Act’ [1998] Public Law 429; B Markesinis, ‘Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany’ (1999) 115 Law Quarterly Review (LQR) 47; N Bamforth, ‘The True “Horizontal Effect” of the Human Rights Act 1998’ (2001) 117 LQR 34. 10 The story of horizontal effect in Italy and Germany covers more than 50 years. The first known Italian case on this point goes back to 1948: Trib. Firenze 23 March 1948, (1949) Monitore dei Tribunali no 18 (right to a salary sufficient to live in dignity under Art 36 Costituzione). In Germany, the first Constitution-based reasoning in private law by the Federal Court of Justice is BGH, 10 June 1952, 6 BGHZ 360 (protection of marriage and family under Art 6 Grundgesetz). On the horizontal effect of human rights in Germany see inter alia CW Canaris, Grundrechte und Privatrecht – eine Zwischenbilanz (Berlin, de Gruyter 1999) and cf L Fastrich, ‘Human Rights in Private Law’, in this volume, ch 3. In Spain, Portugal and Poland the phenomenon of horizontal effect is more recent. In Portugal see Ac TC no 198/85, DR II série 38, 15 February 1986 (secrecy of correspondence); in Spain

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innovative developments were initiated by the constitutional courts, forcing the civil courts to change their consolidated case law in order to give adequate protection to fundamental rights.11 A written constitution and a constitutional court exist also in France, but the latter is not competent to review civil judgments.12 Nevertheless, French civil courts are used to making reference to the national Constitution and (perhaps even more often) to the European Convention on Human Rights.13 Sweden and The Netherlands have a written constitution but no constitutional court. In both countries (although in The Netherlands more often than in Sweden) civil courts give horizontal effect to national constitutional norms and international Conventions such as the ECHR.14 In England and Scotland there is neither a written constitution nor a constitutional court. Here, a large and intense debate on human rights horizontality was sparked by the Human Rights Act 1998.15 However, even before 1998 the UK courts sometimes referred to the ECHR in private law cases.16 To summarise: fundamental rights, either enshrined in national constitutions or international Conventions or both, have horizontal effect in private law throughout Europe.

III.

THE HORIZONTAL EFFECT MACHINE: MODELS AND OUTPUTS

In the academic literature dealing with the horizontal effect of fundamental rights, the question of its direct or indirect nature plays a major role. Can a

STS 28 October 1986, (1986) RJ 6015 (honour, image and privacy); in Poland Wyrok Sadu Najwyz·szego 16 July 1993, I PZP 28/93 (private life v free speech). 11 See for instance in Italy Corte Costituzionale (Corte Cost) 14 July 1986 no 184 (1986) Foro it I 2053 (personal injury damage); in Germany 89 BVerfGE 214 = (1994) Neue Juristische Wochenschrift (NJW) 36 (unfair suretyships). 12 The right to bring an action to the Conseil constitutionnel is limited to the President of the Republic, the Prime Minister, the Presidents of the Parliamentary Chambers, 60 deputies or senators: cf L Philip, ‘L’enlargissement de la saisine du Conseil constitutionnel’ (1975) L’Actualité Juridique – Droit Administratif (AJDA) 15. 13 Cf JP Marguénaud, CEDH et droit privé (La documentation française 2001); L Favoreu (ed), Droit des libertés fondamentales (3rd edn) (Paris, Dalloz 2005). 14 On the horizontal effect of fundamental rights in The Netherlands see JH Nieuwenhuis, ‘De constitutie van het burgerlijk recht’ (2000) Rechtsgeleerd Magazijn (RM) Themis 203; in Sweden J Nergelius, Konstitutionellt rättighetsskydd: svensk rätt i ett komparativ perspektiv (Stockholm, Fritze 1996). 15 See inter alia Hunt (n 9); R Buxton, ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48; HRW Wade, ’Horizon of Horizontality’ (2000) 116 LQR 217; Bamforth (n 9). For an overview and a valuable analysis of all models of horizontality proposed in the UK see A Young, ‘Horizontality and the Human Rights Act 1998’, in this volume, ch 4. 16 Panesar v Nestle Co Ltd [1980] IRLR 60, CA; Spring v Guardian Assurance Plc [1995] 2 AC 296, [1994] 3 All ER 129.

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‘new’ private law remedy directly arise from a fundamental right? Or can ‘old’ private law remedies only be indirectly shaped by fundamental rights, ie through interpretation? Is a party to a private law relationship directly bound by the fundamental rights of the other party? Or do the fundamental rights of a party have only an indirect effect on the rights and obligations of the other party, insofar as a court. as a public authority, is obliged to protect those rights? This chapter does not go into these theoretical questions. It will instead take a pragmatic approach. One may consider the horizontal effect machine either from the viewpoint of the inner mechanism or from the outcomes produced thereby. In the first, theoretical perspective, if someone tries to systematise the different doctrines of horizontal effect of fundamental rights and constitutional norms proposed by courts and scholars of different Member States since the early 1950s, he or she would probably assess more than 20 models, showing a large spectrum of nuances between the two extremes of ‘strong direct horizontality’ and ‘weak indirect horizontality’.17 In the second empirical perspective, however, each of these machines seems to produce the same kind of output. A comparative overview of the Member States’ case law shows that the horizontal effect of fundamental rights and constitutional principles – whether direct or indirect, stronger, weaker or whatever – is a matter of fact in Europe. In many countries it has been a powerful and effective means of developing the law. Courts often use a fundamental rights based legal reasoning to re-interpret the existing private law, in order to grant or deny private parties in certain situations a particular remedy (eg damages, relief from contractual liability, etc).18 Significant convergences across the Member States can also be observed with regard to the specific private law topics subject to horizontal application of fundamental rights. This enables us to detect recurrent ‘fact patterns’. Converging, fundamental rights-based lines of reasoning in similar factual situations have concerned inter alia:

17

Cf Young (n 15). A comparative analysis of the horizontal effect of fundamental and constitutional rights in the law of eight Member States is in preparation by the EC funded Research Training Network ‘Fundamental Rights and Private Law in the European Union’ (http:// www.fundamentalrights.uni-bremen.de), co-ordinated by G Brüggemeier, A Colombi Ciacchi and G Comandé. 18

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(a)

the conflict between freedom of speech, freedom of information and privacy rights (or other personal rights) in cases of unauthorised use of information concerning public19 and non-public persons;20 in particular, the unauthorised publication of photographs of celebrities21 and ordinary people;22

(b)

19 For converging cases in England, France, Germany, Italy, and Portugal see Campbell v MGN Ltd [2004] UKHL 22 (publication of the story of Naomi Campbell’s attendance at Narcotics Anonymous meetings: balancing of conflicting rights under Art 8 and 10 ECHR); Cass 14 December 1999, (2000) D372 note B Beigner (publication of a book revealing details about former French President Mitterand’s illness: balancing of conflicting rights of freedom of expression under Art 10 ECHR and privacy under Art 8 ECHR and Art 9 French Civil Code); BGH, 29 June 1999 (1999) GRUR 1034 (publication of the story of Prince von Hannover’s love affairs and divorce: weighing of freedom of press under Art 5(1) of the German Constitution against the general personality right under Art 1(1) and 2(1) of the German Constitution); Cass 20 April 1963 no 990, (1963) Foro it I 877 (publication of embarrassing details about Mussolini’s lover Clara Petacci and her family: award of damages for violation of the fundamental right to freely develop one’s personality under Art 2 of the Italian Constitution); STJ 19 November 2002 no 02A2028, http://www.stj.pt (publication of true but defamatory facts about a famous lawyer: weighing freedom of expression and information under Art 37 Portuguese Constitution against the right of honour, reputation and own image under Art 25 and 26 of the Portuguese Constitution). 20 Cf English, French, German, Italian, Dutch, Portuguese and Spanish cases: eg Venables and Thompson v Newsgroup Newspapers and Associated Newspapers Ltd [2001] WLR 1038 (injunction restricting a publication which could endanger the life or physical integrity of two young men and former criminals: balancing of conflicting rights under Arts 2, 3 and 10 ECHR); Cass, 9 July 2003 (2004) D 1634 (publication of a novel about the true story of a disappeared man, hurting the feelings of his relatives: balancing of conflicting rights under Arts 8, 10 ECHR and Art 9 French Civil Code); BGH, 25 May 1954, 13 BGHZ 334 (Schacht-Leserbrief case: acknowledgment of a general personality right based on Arts 1(1) and 2(1) of the German Constitution); Cass, 22 June 1985 no 3769 (1985) Foro it I 2212 (acknowledgment of a right to personal identity directly based on Art 2 Italian Constitution); HR, 6 January 1995 (1995) NJ 422 (weighing free speech under Art 10 ECHR against honour and reputation and the right to be left alone); STJ, 18 April 2002, no 02B3553, http://www.stj.pt (weighing freedom of expression and information under Art 37 of the Portuguese Constitution against personal integrity, honour and reputation under Arts 25 and 26 of the Portuguese Constitution); STS, 23 April 1999 no 330\1999 (1999) RJ 4248 (weighing freedom of expression and information against the right to honour, privacy and own image under Art 18(1) of the Spanish Constitution). 21 See the case law in England, France, Germany, Italy, The Netherlands and Spain: eg Douglas v Hello [2003] 3 All ER 996; Campbell v MGN Ltd [2004] UKHL 22 (see fn 19 above); Cass, 30 June 2004 (2004) JCP II 10160 (Elf affaire case: balancing of conflicting rights under Arts 8, 10 ECHR and Art 9 French Code Civil); BVerfG, 15 December 1999, 101 BVerfGE 361 (Caroline of Monaco III case: balancing of conflicting rights under Arts 1(1), 2(1) and 5(1) of the German Constitution); Cass, 27 May 1975, (1975) Foro it I 2895 (Soraya case: acknowledgment of the right to privacy as protected by Art 2 and other provisions of the Italian Constitution); HR, 4 March 1988 (1988) Signaal Rechtspraak van de Week 53 (Princess Irene case: balancing of conflicting rights under Arts 7, 10 of the Dutch Constitution and Arts 8, 10 ECHR); STS, 28 October 1986 (1986) RJ 6015 (Paquirri case: balancing of conflicting rights under Arts 18(1) and 20(1)(d) of the Spanish Constitution) 22 Cf French, German, Italian, Dutch, Portuguese and Spanish cases: eg Cass, 20 February 2001, no 98-23471 (2001) D 1199, note JP Gridel (balancing of conflicting rights under Art 10 ECHR and Arts 9, 16 French Civil Code); BGH, 14 February 1958, 26 BGHZ 349 (Herrenreiter case: protection of the general personality right enshrined in Arts 1, 2 German Constitution); Cass, 20 April 1963 no 990 (1963) Foro it I 877 (acknowledgment of the right to personality development as an absolute right based on Art 2 of the Italian Constitution);

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(e) (f)

(g)

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the landlord’s obligation to cease emissions constituting intolerable nuisance, in consideration of the neighbours’ fundamental rights to property, private life, health and/or healthy environment;23 the landlord’s obligation to tolerate the installation of a satellite dish by a tenant, in consideration of the tenant’s fundamental right to information;24 the protection of tenants from termination of tenancy contracts;25 adjustments of the content of imbalanced contracts through general principles of contract law, such as good faith or immorality, which are to be interpreted in the light of constitutional principles;26 more specifically, the invalidity of clauses of employment or agency contracts excessively restricting the employee’s or agent’s freedom of profession27 or the freedom to choose his or her own domicile;28

HR, 1 July 1988 (1988) NJ 1000 (interpretation of Dutch private law in the light of Art 8 ECHR), STJ, 18 April 2002, no 02B3553, http://www.stj.pt (balancing of conflicting fundamental rights under Arts 25, 26 and 37 of the Portuguese Constitution); STC, 8 November 1999 no 202 (1999) RTC 202 (reference to Arts 18(1), 4 and 10 of the Spanish Constitution as legal bases of privacy protection). 23 Cf the case law in Italy, Poland, Portugal, and Spain: eg Cass civ sez un, 9 March 1979 no 5172 (1979) Foro it I 2302 (acknowledgment of a fundamental right to a healthy environment enshrined in Art 32 of the Italian Constitution); Postanowienie STdu Najwyz·szego, 2002.12.19 V CZ 162/02, OSNC 2004/2/31 (reference to Art 8 ECHR to support a claim against harmful emissions by a quarry); STJ, 9 January 1996 (recourse to Constitutional norms to protect the plaintiff against emissions from a butchery); STS, 2 February 2001 (2001) RJ 1003 (application of the duty to defend and conserve natural resources and to enjoy them under Art 45 of the Spanish Constitution to protect neighbours from pollutant emissions). 24 On which there are major convergences in German, Italian and Dutch cases. See 90 BVerfGE 27 = (1994) NJW 1147 = http://www.oefre.unibe.ch/law/dfr/ bv090027.html (application of Art 5(1) of the German Constitution); Cass, 16 September 1983 no 7418 (1984) Foro it I 415 (application of Art 21 of the Italian Constitution); for The Netherlands Ktr Assen, 25 March 1986 (1987) NJ 15 (application of Art 10 ECHR). 25 This can be observed in England, Italy, The Netherlands and Portugal: Shaws (EAL) Ltd v Walbert Pennycook [2004] EWCA Civ 100, [2004] Ch 296; [2004] 2 All ER 665 (engagement of Protocol 1 Art 1 ECHR in a case of deprivation of the right to renew a tenancy); Corte Cost, 24 March 1988, no 404 (1988) Giur it I 1627 note A Trabucchi (interpretation of the Italian tenancy law in light of the constitutional principle of solidarity); in The Netherlands Court of Appeal Arnhem, 25 October 1948 (1949) NJ 331; Court of Appeal Arnhem, 24 June 1958 (1959) NJ 473 (termination of farming leases on ground of the lessee’s new religion); STC, 24 July 1992 (1992) Acórdãos do TC 21, 495 (indirect application of the right of housing under Art 65 Portuguese Constitution). 26 Cf in Germany and Italy 81 BVerfGE 242 = (1990) NJW 1469; 89 BVerfGE 214 = (1994) NJW 36; Cass, 20 April 1994, no 3775 (1994) Giust civ I 2169; Cass, 28 January 1998, no 831 (1998) Foro it I 770 (both the latter Italian judgment and the German judgment 89 BVerfGE 214 concern suretyships). 27 For convergences in France, Germany and Portugal see Cass Soc, 11 July 2000 (2000) JCP IV, 2556 (employment contract, reference to the Preamble of the French Constitution); 81 BVerfGE 242 = (1990) NJW 1469 (agency contract, application of Art 12(1) of the German Constitution); STJ, 12 January 1994, no 084387, http://www.stj.pt (employment contract, direct application of Art 47(1) of the Portuguese Constitution). 28 Cf in France and Germany Cass Soc, 12 January 1999 (1999) D 645 notes JP Marguenaud and J Mouly (application of Art 8 ECHR to an employment contract);

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(h)

the protection of freedom of religion in employment relationships;29 and and the equal treatment of women and men in employment relationships.30

(i)

IV.

PRIVACY OF CELEBRITIES V SOCIAL JUSTICE? POLICIES OF HORIZONTAL EFFECT ACROSS EUROPE

At first sight, the broad spectrum of products of the Member States’ horizontal effect machines seems to reflect two major policies. On the one hand, the lion’s share is taken by judgments motivated by concerns of social justice. In contract and labour law, a fundamental rights-based reasoning was mostly introduced to protect weaker parties from unfair agreements imposed upon them by considerably stronger economic actors. A pretty similar policy permeates the nuisance cases in property law, where the reference to fundamental rights serves the interests of poor people living close to industrial plants endangering their health and the environment. On the other hand, however, there is a torrent of horizontal effect cases protecting the privacy interests of rich celebrities against the tabloid press, which serves the curiosity of ‘a particular readership’ usually not belonging to the upper class. Does this really mean that two opposite social policies of horizontal effect of fundamental rights exist? I do not think so. I would rather, paradoxically, argue that the rich and famous people whose privacy is intruded are indeed weaker parties as well. In the crude and often rude play of the tabloid press hunting for sensational pictures and stories from the private life of celebrities, the most powerful actors are the mass media. They can psychologically destroy their victims, who hardly have any Landesarbeitsgericht Nürnberg, 24 June 2003, http://www.arbg.bayern.de/lagn/ 6sa676.2htm (application of Art 2(1) in connection with 1(2) of the German Constitution to an employment contract). 29 For similar lines of reasoning in France, Germany and Italy see Cass Soc, 24 March 1998 (1998) Bull civ V no 171, 125 (application of Arts 1 and 75 of the French Constitution to the case of a Muslim employee in a grocery refusing to come into contact with pork meat); for Germany BVerfG, 30 July 2003 (2003) NJW 2815 (application of Arts 4 and 12(1) of the German Constitution to declare unlawful the dismissal of a Muslim vendor because she insisted on wearing a veil at work); for Italy Cass, 16 June 1994, no 5832 (1995) Foro it I 875 (balancing between freedom of opinion and religion and freedom of education, all protected by the Italian Constitution, in a case where a gymnastics teacher was dismissed from a Catholic school because she was not married in a church). 30 See the case law in Germany, Italy, Portugal and Spain: eg BVerfG, 28 January 1992, 85 BVerfGE 191 (application of Art 3 of the German Constitution); in Italy Cass, 25 September 2002, no 13942 (2002) Dir e giustizia 37, 32 (application of Art 37 of the Italian Constitution); in Portugal STJ, 25 July 1896, no 001412, http://www.stj.pt (application of Art 13 of the Portuguese Constitution); in Spain STS, 10 April 1999 (1999) RJ 1877 (application of Art 14 of the Spanish Constitution).

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possibility of legally defending themselves. Indeed, forms of defence like punching the paparazzo’s nose, often practised by male members of high society such as Prince von Hannover,31 inevitably lead the victims of tabloid press harassment into major trouble with the law, which in turn allows the press to pillory even more harshly the celebrity in question. In some cases, however, public figures and mass media fight with equal arms. Tabloids wanted to make a lot of money out of Michael Douglas and Catherine Zeta-Jones’s wedding, but the two Hollywood stars played them at their own game. They commercialised their wedding themselves by selling the exclusive right to take photographs to a certain magazine. It is pretty clear that in cases like Douglas the horizontal application of the human right to private and family life to bar the publication of unauthorised photographs does not have anything to do with the protection of weaker parties. However, arguably in the Douglas case two different rights are at stake: privacy is one of them, while the other is what American lawyers call ‘publicity’.32 The difference between a property-like right to commercially exploit one’s own image and a human right to private and family life is arguably so profound that the two interests in question can hardly be coherently reconciled in one and the same right, or in one and the same tort. Therefore I think the Court of Appeal was perfectly right in denying the magazine Hello! the same protection which the doctrine of breach of confidence is considered to grant the Douglases themselves.33 Arguably, human rights and their horizontal effect only play a role with regard to genuine privacy rights, not with regard to publicity rights. They protect people who want to restrict public access to their private activities, not the persons who want to exploit these activities economically. And certainly, human rights play a role in cases where people do not want their private stories and photographs to be made public at all. This was for example the case in Naomi Campbell’s drugs addiction story,34 or in Caroline von Hannover’s long crusade against the tabloid press.35 In

31 In December 1999 Prince Ernst August von Hannover was ordered to pay a DM 90,000 fine and DM 15,000 in damages because he broke the nose of a cameraman in 1998, who had filmed him without permission (see http://www.areion.de/c1206.html). 32 Cf MB Nimmer, ‘The Right of Publicity’ (1954) 19 Law & Contemp Probs 203; J Kahn, ‘Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity’ (1999) 17 Cardozo Arts & Ent LJ 213. For a recent overview of the American doctrines of privacy and publicity compared with European conceptions of privacy see JQ Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 Yale LJ 1151. 33 Douglas v Hello [2003] 3 All ER 996. 34 Campbell v MGN Ltd [2004] UKHL 22. 35 The last battle was conducted before the European Court of Human Rights and ended with the princess’ victory: Von Hannover v Germany, no 59320/00, 24 June 2004, ECHR 2004-VI, 1, (2005) 40 EHRR 1, (2004), full text available under http://cmiskp.echr.coe.int. For a valuable analysis of this judgment and its impact in Germany and in the UK see K Ziegler, ‘The Princess and the Press: Privacy after Caroline von Hannover v. Germany ’ in this volume, chapter 15.

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such cases, the entitlements which the harassed celebrities seek to enforce are not primarily commercial. At one side of the battlefield there is the non-economic interest to keep one’s own private life away from the public eye. On the other side there are extremely powerful economic interests of mass media. If the solution of this conflict was only governed by the laws of a free market, this would allow the global economy to systematically trample over the non-economic interests of privacy. In this field, the horizontal effect of the fundamental human right to privacy does have much to do with social justice. First, it offers a legal shield against an otherwise unavoidable non-physical violence against the person, ie the harassment by paparazzi. Second, it establishes a fair balance of powers between a strong economic lobby, the tabloid press, and a human interest without any lobby in the market: the right to be left alone.

V. HORIZONTAL EFFECT OF EUROPEAN FUNDAMENTAL RIGHTS AND APPROXIMATION OF PROTECTION STANDARDS: PRIVACY

Another aspect of social justice is equality.36 In a contemporary, united Europe the question arises as to at which point common fundamental rights of European citizens deserve equal treatment in the Member States’ private laws. The right to respect for private and family life is undoubtedly a common European fundamental right, being enshrined in Article 8 ECHR and acknowledged by the constitutional traditions of the Member States. Article 8 ECHR does not only protect from intrusion into privacy in the strict sense. According to a consolidated jurisprudence of the European Court of Human Rights,37 the concept of private life extends to: (a) (b) (c)

aspects relating to personal identity, such as a person’s name or picture, a person’s physical and psychological integrity, and in general, to the development, without outside interference, of the personality of each individual in their relations with other human beings.

Consequently, the scope of Article 8 ECHR extends to most situations dealt with in the Member States’ case law concerning personality or privacy rights. 36 On human rights and equal treatment see D Coester-Waltjen, ‘Discrimination in Private Law – New European Principles and the Freedom of Contract’, in this volume; C McCrudden, ‘Equality and Non-Discrimination’ in D Feldman (ed), English Public Law (Oxford, Oxford University Press 2004) 581. 37 Cf ECtHR von Hannover v Germany (n 35) paras 50 ff, with references to previous cases.

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According to Article 14 ECHR, the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground, including nationality. So why should the general right to personality development (privacy in a broad sense) not enjoy the same standard of private law protection in all Member States? Why should the same photo of the same celebrity taken by the same paparazzi be considered lawful in some countries, unlawful in others?38 Why should the amount of damages awarded in similar cases (calculated in proportion to the cost of living) diverge so much from Member State to Member State?39 On the one hand, ideally the citizens of the European Union are equal. On the other hand, however, Europe’s motto reads ‘unity in diversity’. Therefore, this chapter does not plead for a complete harmonisation, but only for an approximation of the standards of protection of common European fundamental rights, triggered by the supranational judiciary. This approximation would give sufficient space to the plurality of legal solutions in the Member States. It could make sense that the publication of a certain photo is deemed unlawful in one country and allowed in another, if the shared concerns of the demos in the two countries diverge profoundly in this regard. And different amounts of damages could make sense, too. However, supranational standards of protection of common European fundamental rights make sense as well. The co-ordination between national and supranational standards is a typical task of the European multi-level system of governance.40 If the fundamental right in question, like the right to privacy, is enshrined in the Human Rights Convention, the common standard will be defined by the European Court of Human Rights. The technicalities of this form of judicial approximation of private law are a still unexplored field. For instance, it is unclear to what extent the concurrent competence of national constitutional courts and the ECtHR substantially impairs the development and enforcement of common standards. In line with the pragmatic approach of this chapter, a first rough conclusion may be drawn in the following terms. The setting of authoritative standards by the European judiciary is a matter of fact. The Member States are contractually obliged to comply with ECtHR judgments. Private parties ought to be granted the substantive protection of their privacy interests required by the Court of Human Rights. For instance, in the von 38 For an overview of the substantive disparity of privacy protection between the Member States see the draft country reports for Austria, Belgium, England, Finland, France, Germany, Greece, Italy, The Netherlands, Portugal, Scotland, Spain and Sweden, in G Brüggemeier and A Colombi Ciacchi (eds), Personality Rights in European Tort Law (Cambridge University Press, forthcoming), case no 8. 39 Cf S Lindenbergh, ‘Damages as a Remedy for Infringements upon Privacy’, in this volume. 40 See C Joerges, ‘On the Legitimacy of Europeanising Private Law: Considerations on a Justice-making Law for the EU Multi-level System’ (2003) 7.3 Electronic Journal of Comparative Law, http://www.ejcl.org/ejcl/73/art73-3.html.

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Hannover case the ECtHR has authoritatively struck a balance between free speech and privacy of celebrities. This point of balance must be reached in all Member States. The latter, however, are completely free to choose the path: statutory provisions, case law doctrines, etc. Ultimately, as long as the law grants a proper compensation for the unauthorised use of information from a person’s private life, it is immaterial whether or not a general tort of privacy is acknowledged. From a viewpoint of substantive protection standards, what counts is the law in action, not the law in books.41

41

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Cf R Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12.

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6 A Right to Privacy? NW BARBER*

M

EDIA INTEREST IN celebrity weddings is nothing new. A little over a hundred years ago an eminent Bostonian family suffered the indignity of having their wedding arrangements discretely reported in the tabloid press.1 The product of this outrage was an article in the Harvard Law Review by Samuel Warren, the unhappy father of the bride, and Louis Brandeis. Their exertion of scholarship has been described as amongst the most influential in legal history, and is credited with the creation of a tort of privacy in American law.2 The marriage of Catherine Zeta-Jones to Michael Douglas led to equally unwanted media attention, and, for a while, it seemed that the first product of their nuptials might be a privacy tort for English law. Unlike their 19th century precursors the couple did not object to the public knowing and seeing details of their wedding: rather, they sought to control the way this information was packaged and disseminated. The Douglases had signed an exclusive deal with OK! magazine, and were shocked to discover surreptitious pictures in Hello!, a rival publication. The Douglases, and the publishers of OK!, sued Hello! for both emotional and financial harm, claiming that a wide variety * This article was originally published in (2003) Public Law 602. The author is grateful to the editor for permission to reproduce it here. Thanks are due to Alison Young, Jake Rowbottom and, especially, to John Davies. The article was originally written in response to the litigation surrounding the wedding of Catherine Zeta-Jones and Michael Douglas. The law has moved on since then, and the House of Lords in Campbell recognised privacy as part of the common law. The argument against a common law right to privacy made in this chapter has, for the present at least, been lost. However, two questions addressed by the chapter remain of significance – indeed, given the creation of a tort of privacy have grown in importance. First, the chapter seeks to explain the nature of privacy, and to provide an account of its attractions. Second, the chapter reflects on some difficulties faced by a general tort of privacy, and provides an argument for judicial restraint in the application of the tort. 1 Pugnaciously described as a medium in which, ‘to occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion on the domestic circle.’; S Warren and L Brandeis, ‘The Right to Privacy’ (1890) 4 Harv L Rev 193, 196. See JH Barron, ‘Warren and Brandeis, The Right To Privacy, 4 Harv L Rev 193 (1890): Demystifying a Landmark Citation’ (1979) 13 Suffolk U L Rev 875. 2 W Prosser, ‘Privacy’ (1960) 48 Cal Law Rev 383, 383-4.

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of legal wrongs had been committed. Most importantly it was argued that the publication amounted to a breach of confidence and violated the Douglases’ right to privacy. In the Court of Appeal, Brooke, Sedley and Keene LJJ refused to grant an injunction preventing the publication of the pictures, but indicated that the claimants were likely to succeed in their action for breach of confidence.3 All three judges commented on the similarities between breach of confidence and privacy. Lord Justice Sedley was the boldest, claiming that privacy had emerged from confidence as a distinct legal right. The other two judges more cautiously noted that some aspects of confidence were, or might be, shaped by privacy. However, when the case returned to the High Court Mr Justice Lindsay was unswayed by the attractions of a privacy tort.4 Lindsay J found against Hello! but only on the narrower ground of breach of a commercial confidence. He held that the wedding pictures were akin to a trade secret between the Douglases and OK!, a secret which had plainly been disclosed though breach of confidence. By acquiring and publishing these pictures Hello! magazine had been party to this wrong; at best the magazine had shut its eyes to the surreptitious manner in which the information was obtained.5 The claims advanced under a supposed tort of privacy, in contrast, had not been made out.6 This was primarily because the finding of a breach of commercial confidence made examination of the privacy claim unnecessary,7 but Lindsay J went on to question whether privacy should be regarded as part of English law. He expressed concern at the potential breadth of the tort, and suggested that its wide ramifications meant that its creation should be left to Parliament. Judges should only intervene if Parliament failed to act in conformity with its obligations under the European Convention on Human Rights, and, even then, should attempt to resolve cases within the pre-existing law of confidence so far as possible. Justice Lindsay’s lack of enthusiasm is in line with other recent cases discussing privacy. In Wainwright v Home Office8 Mummery and Buxton LJJ opposed the judicial creation of a privacy tort. Mummery LJ robustly asserted that no tort of privacy existed in English law,9 and warned against

3 Douglas v Hello! Ltd [2001] QB 967. See AL Young, ‘Remedial and Substantive Horizontality: the Common Law and Douglas v Hello! Ltd’ [2002] PL 232; M Elliott, ‘Douglas v Hello! Ltd’ [2001] CLJ 231; NA Moreham, ‘Douglas v Hello! Ltd – The Protection of Privacy in English Private Law’ (2001) 64 MLR. 767, and R Bagshaw’s helpful note on his website: http://cwx.prenhall.com/bookbind/pubbooks/ema_uk_he_mcbride_ tortlaw_1/. 4 Douglas v Hello! Ltd [2003] EWHC 786 (Ch). 5 Douglas v Hello! Ltd (n 4) paras 198, 227. 6 Douglas v Hello! Ltd (n 4) para 229. 7 Thus allowing Lindsay J to avoid the difficult questions raised by the demands of Art 8 of the European Convention on Human Rights, embodied in the Human Rights Act 1998. See Young (n 3). 8 [2002] 3 WLR 405. 9 Wainwright (n 8) paras 57-60.

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the creation of such a vague ‘blockbuster’ tort.10 Buxton LJ saw serious difficulties in creating such a tort, both because of the significant weight of authority denying its existence in English law,11 and also because of the broad and difficult policy issues raised.12 Lord Justice Buxton, like Justice Lindsay, thought the drafting of a privacy law was a matter best left in the hands of Parliament.13 Even those cases which are willing to countenance a privacy tort appear to do so with reluctance. In a number of recent decisions courts have seemed more attracted by the theory of privacy than by its application in the case before them: leaving claimants winning the battle but losing the war. In Campbell v MGN14 the Court of Appeal suggested that a right to privacy was part of English law,15 but refused to allow Naomi Campbell to benefit from it. Disclosure of information relating to the model’s treatment for drug addiction did not invoke the tort.16 Similarly, while Lord Woolf CJ in A v B17 was willing to accept the possibility of a privacy right in English law, he emphasised that judges should regard the right as a last resort: most cases could satisfactorily be resolved within the law of confidence.18 This paper seeks to identify what it is that makes a legal right of privacy so unattractive. It argues that the concerns of the judges are well-founded, and that no general right of privacy should be introduced into English law. In order to undertake this examination I will begin by outlining the moral case for privacy: why privacy is valuable, and what it is that the right to privacy seeks to protect. I will then discuss the transposition of the concept of privacy from the ethical to the legal, arguing that even if the depiction of privacy in the moral context is attractive, it does not follow from this that the ethical concept provides a sound basis for a legal right. Finally, I will conclude with a caveat: an admission that in some contexts privacy ought to receive specific legal protection, coupled with an assertion that this is better served by particular statutory provisions rather than by a general common law right.

10

Wainwright (n 8) para 60. Wainwright (n 8) paras 96-107. Citing Kaye v Robertson [1991] FSR 62 and Khorasandjian v Bush [1993] QB 727. 12 Wainwright (n 8) paras 108-114. R Buxton, ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48, esp 64. A point also made by Justice Ouseley in Theakston v MGN [2002] EWHC 137 (QB) at para 27. 13 Wainwright (n 8) para 112. 14 [2003] 1 All ER 224. 15 Campbell v MGN Ltd (n 14) para 70. 16 Both because the information was not of sufficient significance to warrant protection (para 58), and because the disclosure was in the public interest (para 64). 17 [2003] QB 195. 18 A v B, para 11, (vi). Douglas (n 4) and Theakston (n 12) could also be added to this list of failed privacy claims. 11

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NW Barber I.

WHAT DOES PRIVACY SEEK TO ACHIEVE?

Privacy is a concept of quite remarkable, and rather uncomfortable, flexibility. It is hard to isolate what values or interests an ethical right of privacy would seek to protect and, consequently, what form the right should take. There are, broadly, three interconnected groups of arguments about the worth and nature of privacy. These justifications are compatible, and many writers subscribe to versions of all three arguments. First, James Rachels has argued that privacy is valuable in that it allows us to limit the information that others know about us; we are empowered to edit our character and to maintain various types of relationship with different people.19 Different sorts of social relationship bring different levels of intimacy, and these differing levels of intimacy require that varying amounts of information about us be known by others. Rachels is not arguing for a right to deceive others, but, rather, he claims that we manifest our characters in different ways in different social relationships. All of these presentations of ourselves are aspects of who we are, none need be fakes.20 Privacy is a state of affairs in which this editing can be undertaken. A privacy right, or rights, serves to protect this state of affairs, preventing information that the individual has not chosen to convey within a relationship from being disclosed. Privacy protects the edited character that the individual has chosen to present, and allows the individual to alter the nature of the relationship over time. Second, and similarly, Charles Fried has argued that privacy serves to protect ‘moral capital’: private information that we then divulge to those we trust in order to foster relationships.21 The disclosure of information demonstrates that we have confidence in the person to whom the information is released. The gesture of trust runs the risk that our trust will be betrayed; we give the other person information that we do not wish the world to know, giving them a weapon that, potentially, they could use against us.22 The disclosure is both an expression of confidence in the other, and also a test of their feelings for us. If all information about ourselves was public this capital would be devalued; there would be no secrets left for us to share. Fried makes the strong claim that the existence of privacy is a necessary precondition for the existence of fundamental relationships.23 Finally, and most broadly, privacy may serve to allow us to undertake activities we would not feel comfortable pursuing in public: perhaps because they risk ending in humiliating failure, or because they are 19 J Rachels, ‘Why Privacy is Important’ (1975) 4 Philosophy and Public Affairs 323. See also R Gavison, ‘Privacy and the Limits of the Law’ (1980) 89 Yale LJ 421, 450. 20 Rachels (n 19) 327. 21 C Fried, ‘Privacy’ (1968) 77 Yale LJ 475. 22 Fried (n 21) 485-6. 23 Fried (n 21) 477.

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unpopular.24 Privacy prevents others from learning of the activities we are undertaking. While this would appear a weak argument if the conduct deterred was immoral, public criticism might also be wrongly directed against virtuous, or morally neutral, conduct. In such situations privacy provides protection from the judgment of the mob. Some authors have explicitly linked this justification with John Stuart Mill’s writings on liberty: privacy allows people to engage in ‘experiments in living’.25 All of these explanations of privacy share some common qualities. All present privacy as concerned with the revelation of truthful information about a person: in Frederick Schauer’s telling phrase, privacy is concerned with ‘injurious truth-telling’.26 None of them treat disclosure of information touched by privacy as necessarily a bad thing: there may be good reasons why a person might wish to reduce the level of privacy surrounding himself or herself. The first two arguments depend on the potential worth of volunteering private information about oneself to others; indeed, for Fried, the value of existing in a state of privacy turns on the possibility of abandoning that privacy in respect of some other people. Further, all treat privacy as a bilateral quality: a state that exists between a person and other people. Merely because some individuals know of a fact, it does not follow that the information ceases to be touched by privacy. A secret known by a few trusted friends is still a secret. Despite these similarities, an important ambiguity arises out of the writings of the privacy theorists. A distinction can be drawn between the state of privacy and the further right of, or to, privacy that can be levelled against other people.27 Most writers move freely between these two formulations: privacy is both a state of affairs, and rights that protect that state of affairs are labelled privacy rights. However, it may be tricky to extract this supposed right from the state identified: is it a right that others not know of a particular fact, or, more generally, a broader right to experience the state of privacy to some degree? This is a vagueness that becomes more worrisome when the ethical concept of privacy is transposed to the legal world, and presents a problem that will be explored in some detail in the remainder of this chapter.

24 R Gavison, ‘Too Early for a Requiem: Warren and Brandeis Were Right on Privacy versus Free Speech’ (1992) 43 Southern California LR 437, 457-8. 25 JW DeCew, ‘The Scope of Privacy in Law and Ethics’ (1986) 5 Law and Philosophy 145, 166-170; DJ Seipp, ‘English Judicial Recognition of a Right to Privacy’ (1983) 3 OJLS 325, 331-3. 26 F Schauer, ‘Reflections on the Value of Truth’ (1991) 41 Case Western Reserve LR 699, 700. 27 Gavison (n 19) 425-427.

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II.

WHY IS THE TRANSPOSITION OF ETHICAL MODELS OF PRIVACY INTO LAW PROBLEMATIC?

There are at least three challenges faced by those who wish to move privacy claims from the ethical world into the legal. The first challenge focuses on Charles Fried’s case for privacy, and contends that Fried’s explanation of the value of privacy actually amounts to an argument against creating a legal right of privacy arising from relationships. The second challenge emphasises the difficulty of balancing privacy with the right to freedom of expression. In the area of shared information, where both parties have experienced the events disclosed, it will be argued that the right to freedom of expression should almost always trump any claim to privacy. Finally, and most generally, the third challenge disputes the view that there is a demand for the introduction of a general legal right to privacy: it suggests that other, pre-existing, rights already meet the needs identified by the advocates of privacy in the ethical sphere. These three doubts combine together to show that a general right to privacy is not needed to protect the values identified by those who have written on privacy in the ethical context. This paper does not consider other, contingent, objections to a privacy tort, such as the fear it will be abused by the powerful, or that its creation would stunt the development of other legal wrongs. First, it is doubtful that a legal right to privacy should be imposed to protect confidences exchanged within a relationship. Such an obligation would frustrate rather than facilitate Charles Fried’s explanation of the worth of privacy, set out in the previous section. The ‘moral capital’ argument rests on the possibility of betrayal. By preventing the recipient of the information from disclosing it, or by limiting their ability to profit from the disclosure, the law would reduce the significance of the original confidence. This concern bites especially hard in cases like A v B28 and Argyll v Argyll,29 where information at stake in the case was exchanged in the course of a relationship.30 In A v B a professional footballer applied for an injunction to prevent the press from publishing stories about his adulterous relationships. The press stories were based on information supplied by two former girlfriends. The Court of Appeal overturned the decision of the High Court granting an injunction, and, in effect, allowed publication. In contrast, Argyll v Argyll saw the Duchess of Argyll succeed in securing an injunction preventing her husband from disclosing confidences exchanged during the marriage. In both of these cases one party to the relationship had decided to trust the other. Information was exchanged, 28

[2003] QB 195. [1967] 1 Ch 302. The argument in this paragraph could equally well be applied to other relationship cases such as Stephens v Avery [1988] Ch 449 and Lennon v News Group Newspapers Ltd [1978] FSR 573. 29 30

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or acts were done, that the claimants knew could be used against them if the relationship broke down. Applying Fried’s model of privacy to Argyll, the decision appears to have the effect of reducing the efficacy of confidences exchanged. By lessening the harm that the confidee can do to the confider, the significance of the disclosure within the relationship is reduced, and the ‘moral capital’ devalued. Ironically, this argument is at its strongest in cases like Argyll, where there is, or appears to be, a desire to create a long-term, meaningful, relationship, and becomes weaker in more transitory relationships like A v B. In transitory relationships the exchange of potentially damaging information is less likely to be a deliberate gesture of trust and more likely to flow from the mere necessities of the encounter. The present case law shows a preference for protecting confidences exchanged in long-term relationships over those exchanged in fleeting encounters,31 but consideration of Fried’s reasoning suggests that, if anything, this should be the other way around. Second, privacy has a peculiarly uncomfortable relationship with the right to freedom of expression. The tension between the two claims becomes especially acute where, as is frequently the case, two people share a claim to the information, with one wishing to disclose it, and the other insisting on their ‘right’ to privacy. Most writers on privacy in the ethical context would support the view that disclosing information potentially touched by privacy can be a valuable exercise, for some, like Fried and Rachels, disclosure is a possibility that must be present to make the state of privacy worth having. The problem of shared information is well illustrated by the American case of Anonsen v Donohue32 in which a wife revealed on national television that her husband had raped her daughter and that she had then raised the offspring as her own son. Her former husband, daughter and grandson jointly sued for invasion of privacy. Here, the claims to privacy are very strong. The information disclosed was of the most sensitive nature imaginable – and yet this consideration cuts both ways. The right to be able to tell the story of your life is a fundamental part of the right to freedom of expression. Just as the daughter and grandson could claim that the sensitivity of the information to them meant that it ought not to have been disclosed, so too the wife could argue that its sensitivity to her meant that she had a right to reveal it. The court agreed with this reasoning, and supported the wife’s right to freedom of expression. The dilemma of shared information is a common one. It is most obvious in relationship cases, like A v B and Argyll, where one party desires secrecy and the other wants disclosure, but is not limited to such situations. It may also arise outside of a relationship, where, for example, the life of a public figure overlaps briefly with that of an ‘ordinary’ person. In Theakston a 31 32

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Theakston (n 12), para 74; A v B (n 17) para 11 (xi). (1993) 857 S.W.2d 700 (Tex App).

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celebrity visited a prostitute, and then sought to prevent the prostitute from telling her story to the papers. It would be stretching credulity to claim that this encounter should be considered a relationship, but the two parties did, briefly, have a set of shared experiences. While Theakston wanted these experiences to remain secret, the prostitute did not. Why should she be stopped from publishing an accurate account of what happened to her that evening? In most cases of shared information it will be inappropriate to impose a legal obligation binding one of the parties to silence: the parties have a joint claim to the information. There may be exceptions to this where the information was exchanged in a professional relationship,33 or where one of the parties was deceived or vulnerable and lacked control over the encounter.34 So far the objections to a legal right to privacy have largely focused on disclosures originating in relationships or encounters. But privacy is broader than this, and also encompasses information that has been discovered without the consent of the party concerned. This may be because the individual was spotted in a public place – as with Naomi Campbell’s exit from the drug rehabilitation clinic – or where the information was obtained through underhand means – as with the surreptitious pictures of the Douglases’ wedding. Plainly, the issue of freedom of expression is still relevant in these cases. Privacy is concerned with the revelation of truthful facts about an individual.35 Richard Posner has argued that claims of privacy constitute, in part, an attempt to secure legal assistance in the misrepresentation of character, enabling the individual to profit from others’ misconceptions.36 This is an argument that resonates with the English judiciary; in Campbell the Court of Appeal found it significant that the model had repeatedly claimed to the media that she did not use drugs.37 The revelations served to correct the erroneous image these statements had created. However, Posner’s characteristically robust view goes too far. The information conveyed to the public may be accurate, but their reaction to it may be unfair and disproportionate: a public figure’s reputation might be destroyed by some comparatively minor act of immorality. The general argument for freedom of expression, outside the context of relationships and shared information, is probably not strong enough by itself to show that privacy ought never to be protected by the law.

33 As with doctors and lawyers, for example. See Hunter v Mann [1974] 1 QB 767, 772, and Parry-Jones v Law Society [1969] 1 Ch 1, 7. 34 As with children: See I Cram, ‘Minor’s Privacy, Free Speech and the Courts’ [1997] PL 410. 35 DL Zimmerman, ‘Requiem For A Heavyweight: A Farewell To Warren And Brandeis’ Privacy Tort’ (1983) 68 Cornell LR 291, 330-337. 36 R Posner, ‘The Right of Privacy’ (1978) 12 Georgia LR 393, 399-400. 37 [2003] 1 All ER 224, paras 3, 62; also A v B (n 17) para 11 (xii).

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The third concern is wider, and questions the necessity for the creation of a general privacy right. Coupled with the concerns raised by freedom of expression, it provides a strong argument against the creation of a broad right of privacy in the law. While those advancing arguments for privacy based on the need to edit character, or on the ability to carry out unpopular or risky schemes, present a solid case for the value of a state of privacy, they mount a weaker case, even in the ethical sphere, for a distinctive privacy right. As Judith Jarvis Thomson has argued, this valuable state of affairs is already protected by lots of other moral rights.38 Property rights ensure that, to a considerable extent, we are left unobserved in our homes: people ought not to burgle houses or steal diaries. Our right to bodily autonomy entails that others are not permitted to force us to tell them our secrets: we should not be tortured or drugged into making revelations. Privacy is already protected to a considerable extent by these wider rights. So, returning to the Campbell case, the model could still enjoy solitude on her own property: the disclosures, though embarrassing, were not profound enough to strip her of the state of privacy identified by the privacy theorists.39 In consequence, it could be argued that the disclosures were not profound to give rise to a right of privacy, and that therefore there was nothing to weigh against the media’s assertion of a right to freedom of expression. For the reasons discussed below, Thomson’s claims as a matter of ethical reasoning can be questioned – there may be some situations where a case for a distinctive ethical privacy right can be made out – but in the context of the debate over the justifiability of a general legal right to privacy they are very persuasive. As the Douglas case shows, other torts of trespass and conversion, and the law on breach of confidence, do much to ensure that the valuable state of privacy, identified by the privacy theorists, is already protected.40 This may be enough to satisfy the need identified by many of those writing on privacy: after all, none of the three arguments advanced in the previous section required the individual to have complete control over all information about him or her. The state of privacy identified by these theorists would not be destroyed if occasional pieces of private information entered the public realm: there would need to be a substantial amount of disclosure before privacy was lost. The law may already do enough to ensure that this state of affairs ordinarily exists.

38 JJ Thomson, ‘The Right to Privacy’ (1975) 4 Philosophy and Public Affairs 295. McCloskey makes a similar claim: HJ McCloskey, ‘Privacy and the Right to Privacy’ (1980) 55 Philosophy 37. 39 A point emphasised by the Court of Appeal in Campbell (n 14), para 58. 40 On existing areas of law that might be developed to do similar tasks to a supposed privacy right, see RP Handley, ‘Trespass to Land as a Remedy for Unlawful Intrusion on Privacy’ (1988) 62 Australian Law Journal 216; E Litwin, ‘The Investigative Reporter’s Freedom and Responsibility’ (1998) 86 Georgetown Law Journal 1093; G Wei, ‘Surreptitious Taking of Confidential Information’ (1992) 12 Legal Studies 302.

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CONCLUSION

So far, three objections have been advanced against the creation of a privacy tort. These have combined to show that the courts’ reluctance to allow actions resting on privacy has been justified. But does it follow from this that privacy has no role to play in English law? Here, the limitations of Thomson’s arguments need to be considered. For Thomson to convince us that distinctive privacy rights are an unnecessary addition to ethical discourse she must demonstrate one of two things. First, that in every case of a violation of the state of privacy other ethical rights adequately protect the individual. Second, Thomson could accept that sometimes the state of privacy will be violated, and that non-privacy rights will not help, but argue that in such cases the harm to the individual’s interests would not be sufficient to give rise to a privacy right against the invader.41 This is a hard test to meet. If we could dream up any situation in which a revelation about an individual would strip him or her of this state of privacy, in some fundamental and lasting way, this might be enough to give rise to a right of privacy that, at a minimum, could then be balanced against the countervailing right of freedom of expression. There are a number of instances where the law already recognises limited privacy claims that do not merely duplicate other rights. So, for instance, the Sexual Offences Bill criminalises some forms of voyeurism, even if no property or personal rights are affected.42 Children are accorded special protection, perhaps, in part, because they are unable to access the property rights that adults can use to protect the state of privacy.43 We may also demand higher standards of public bodies than we do of individuals: so, in the context of judicial review, public bodies are under a particular duty not to publish matters touched by privacy without special justification.44 These brief remarks are not intended to provide a complete list of the situations where a right to privacy is properly recognised by the law, but rather to emphasise that the rejection of a general right to privacy need not prevent its invocation in particular areas. This chapter has had a narrow focus. It has not attempted to address all the issues raised by the proposed privacy tort. In particular, it has not discussed the rich conflation of ideas that often lies behind rhetoric about privacy in the legal context.45 Nor has it discussed the implications of the Human Rights Act 1998, though the thoughts about the value of privacy 41 For instance, if my towel slips at the beach, it may be good manners to look away, but it is hard to argue that I have a right that others stare at the sand. 42 Sexual Offences Bill 2003, s 69. 43 See I Cram (n 34). 44 See, for example, Peck v United Kingdom, no 44647/97, ECHR 2003-I, 123, (2003) 36 EHRR 41; R v Chief Constable of the North Wales Police, ex p Thorpe [1999] QB 396. 45 See Lord Justice Sedley in Douglas (n 3), who combines the right against injurious truth telling, the right against intrusion into private affairs (paras 113, 126, 139) and the right to control images of oneself (paras 141-3) in his conception of the privacy tort. Some of the

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should shape the way Article 8 ECHR is interpreted.46 It has rather sought to cast doubt on the assumption that ethical conceptions of privacy demonstrate a need for a general privacy tort, and to provide a defence of the spree of decisions denying claimants the benefit of a privacy tort. Whilst privacy does have a role to play in the law these limited interventions should normally be left to Parliament.

confusion has its origins in Dean Prosser’s work, W Prosser, (n 2), though Prosser acknowledged that these rights were different causes of action. See further, DL Zimmerman (n 35) 296-300. 46 On which, see Young (n 3), and R Singh, ‘Privacy and the Media After the Human Rights Act’ [1998] EHRLR 712.

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7 Privacy and Tort Design RODERICK BAGSHAW

I.

TORT DUTIES AS COMPROMISES

T

ORT DUTIES REPRESENT compromises between the security interests of potential claimants and the liberty interests of potential defendants.1 Such compromises are composed of different (linked) elements: for instance, how the claimant’s protected interest is defined; how the restricted behaviour of the defendant is described (including a description as to his state of mind); and how the necessary link between the defendant’s restricted behaviour and the claimant’s damage is defined. Obviously such definitions and descriptions can be complex amalgams of positive and negative elements. The relative merits of potential compromises must be assessed not merely from the perspective of abstract justice; it is also important to assess potential compromises against the benchmarks which measure whether a legal duty is good at being a legal duty. Thus one must assess how far each particular compromise is likely to achieve the goal of guiding behaviour, and how costly it will be to enforce each compromise in practice.2 A tort duty which is difficult for potential defendants to understand, and thus comply with, may be deficient on that ground. Likewise, a tort duty may be deficient if its design prompts defendants to respond to it in some way other than simple compliance, particularly where that response is deleterious to other important interests.3 As a final example, a tort duty which is formulated so that its application turns on factors which it will be 1 For the same point made using different terminology, see, P Cane, The Anatomy of Tort Law (Oxford, Hart Publishing 1997) 15. 2 This sentence assumes that one purpose of tort duties is to guide behaviour, that circumstances may arise where such duties have to be enforced, and that it is better for the mechanisms designed to secure compliance to be effective and efficient. I hope that a defence of these assumptions would be superfluous. 3 An example may help here: if a duty is defined as obliging a person in a particular relationship with another to behave in a particular way if he knows a particular fact, then the intended response may be that such people prepare to behave in that way when the fact becomes known. The design of the duty may be deficient, however, if the actual response is to

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impossible for a potential claimant to monitor, or which turns on factors which it will be costly to prove to a court, must be regarded as less attractive as a result. Tort duties do not design themselves, any more than motor cars or washing machines do. Choices must be made. Moreover, in this context ‘choice’ is not a synonym for some mechanical process or calculation.4 The relevant choices often involve a distributive element: The potential defendants whose liberty interests will benefit from a narrowly defined duty will not necessarily be the same people as the potential claimants whose security interests will benefit from a broader duty.5 Such choices will also often turn on relative preferences between different legal goals and different legal institutions: for instance, a detailed code of duties and exceptions may reduce the power of trial judges but may equally be difficult for citizens to understand without legal advice, while a broader and less specified duty may be easier for citizens to grasp but require more from trial judges when disputes arises. There is no right answer to the question of how abstract or specific tort duties ought to be.6 English tort law has traditionally taken the view that the task of designing an appropriate range of compromises for an area as wide and complex as privacy is a task which should not be undertaken by judges.7 The common law method is best suited to incremental refinement of rules, using arguments based on analogy and coherence. The objection to judicial legislation across a wide area is partly constitutional and partly institutional. The constitutional concern reflects the fact that the choices involve a distributive element. The institutional concern reflects the fact that procedures designed for the resolution of a bipolar dispute deeply anchored to a specific set of facts are not equally suitable for the formulation of rules to apply across a wide range of future cases. Detailed evidence relating to policy concerns is rarely presented, and even less rarely

alter behaviour so as to reduce the chance of ever coming to know the particular fact. This point is often captured in the more catchy proposition that ‘duties triggered by knowledge put a premium on ignorance’. 4 This is not intended to alienate those who believe that tort duties are based on ethical duties and that ethical duties are natural. Those who believe this are nonetheless likely to accept that the process of deriving practical legal duties from competing versions of natural ethical duties is not mechanical. 5 Few will doubt that the class of people who regard privacy as valuable (and worth securing) is not identical to the class which most values free expression (and would thus prefer to preserve liberty to publish). 6 Similarly, there is no right answer to the question how broad or specific the provisions of an international human rights convention should be. But brief consideration of the different functions of national tort law and an international human rights convention prompts the question whether duties expressed at the same level of detail are likely to be equally well-suited to both purposes. 7 Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406, para 33, per Lord Hoffmann; Malone v Metropolitan Police Commissioner [1979] Ch 344, 380.

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generated for the purposes of bipolar litigation.8 Certainly most barristers charged with presenting ground-breaking privacy cases before English appellate courts do not seem to have considered themselves obliged to organise the sort of consultation process that a law reform body or policy maker would consider desirable. It has sometimes been suggested that reference to experience from other legal systems is a substitute for evidence as to the likely consequences of different patterns of rules. But reference to foreign law in English advocacy seems to involve presenting a court with a summary of some French case law or a summary of the law presented in a German textbook rather than a survey of how that law impinges on the practices of the French or German media.9 Despite the traditional reluctance of the English judiciary to design a new range of compromises to be applied across a range of situations there has been significant and not obviously incremental development of the law in the area of invasion of privacy by publication of private information, the focus of the Campbell case.10 It seems that one of the reasons why English judges have been bold in this area is that they think that difficult questions of tort design do not have to be made: they can instead base the new tort duty on the balance between Article 8 and Article 10 of the ECHR.11 The main purpose of this chapter is to assess how far Article 8 and Article 10 provide an adequate design for a tort duty.12

8 For instance, in A v B plc [2002] EWCA Civ 337; [2003] QB 195, paras 7-9, the Court of Appeal reported receiving three lever arch ring binders of case law and a further file of Press Complaints Commission material, again dominated by previous decisions. It seems unthinkable that a policy maker considering drafting legislation on privacy would regard such a bundle as the primary source of insight. 9 The topic of the use of foreign law in preparing and presenting the English case of A v National Blood Authority [2001] 3 All ER 289 is discussed in detail in ch 5 of G Canviet, M Andenas and D Fairgrieve (eds), Comparative Law Before the Courts (London, BIICL 2004) 57ff. 10 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457. 11 A further reason why the English courts are bold in this area is that they have treated s 6 of the Human Rights Act 1998 as obliging them to develop the common law in this area to make it compatible with convention rights so far as it is legitimate for a judge to do so: Douglas v Hello! (No 3) [2005] EWCA Civ 595, [2006] QB 125. There is an obvious disjunction between the ethos of the UK’s unwritten pragmatic constitution and an obligation on judges to act to the very limit of their legitimate powers. 12 No doubt there is still some life in the objection that the relevant privacy-protecting duty in English law is not part of tort law but part of the law of equitable obligations. But any strategic advantage that the Courts may have gained from developing protection for privacy within the existing cause of action for breach of confidence has now dissipated: development of privacy protection has required the creation within that cause of action of a separate strain of wrong based around distinct conditions of liability and defences. The strategy of cuckoos does not make their offspring into blackbirds. In any case, the precise classification of the duty does not affect the basic argument about its design.

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THE BASIC BALANCE

The basic balance which underpins the tort duty is set by approaching the question from either end: the tort should only restrict free expression to the extent necessary in a democratic society in order to protect privacy, and the tort should only fail to protect privacy to the extent necessary in a democratic society to preserve a sufficient degree of free expression.13 This approach to the basic balance respects the fundamental proposition that neither right is entitled to priority, and reflects the structure of each Article. But it is also an approach that tends to obscure the fact that the balance is not self-executing, and that free expression is not the only factor that ought to be considered in determining how far tort law ought to protect privacy interests. A.

Finding the Basic Balance

Where a claim relating to Article 8 or Article 10 of the ECHR takes the classic form of a claim against the State then the State takes the burden of justifying any response to the effect that the limitation on the right is necessary in a democratic society, that is, proportionate to a pressing social need. Thus the State will seek to demonstrate that the social need exists and that the limitation is proportionate: in particular, that no measure which limits the right to a lesser extent can be expected to satisfy the need. There is clearly no universal template which a sufficient justification must match. Courts determine what sorts of evidence the State is required to muster or generate in the course of the legislative or decision-making process in order to establish a justification.14 Much of the discussion of proportionality as a standard of review in English administrative law has missed the important point that by determining what sort of evidence the State must produce in order to justify a decision the courts will be indirectly determining how legislative and decision-making processes are structured and the sorts of measures and decisions that can be contemplated. Clearly this approach to justification cannot be straightforwardly translated to the context of claims between private parties: surely individuals who value their privacy should not have an identical obligation to generate evidence demonstrating that nothing less than extensive limitation on free 13 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, para 140 per Baroness Hale. See also para 113 per Lord Hope and para 167 per Lord Carswell. 14 It is surely obvious that the sort of material which must be produced to justify a restriction ‘in the interests of national security’ will be very different from the sort of material which must be produced to justify a restriction in the interest of ‘the economic well-being of the country’. Equally, it might be thought obvious that the sort of material likely to be required to justify general legislation will be very different from the sort of material likely to be required to justify an individual decision.

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expression will sufficiently meet this need? Similarly, it seems implausible that defendants eager to avoid liability for publishing information about others must generate evidence demonstrating that any further curtailment of free expression will restrict that value to a greater extent than can be justified. Even if it is thought that individuals involved in litigation over the scope of the law protecting privacy (as opposed to disputes about its application to particular facts) should have to produce some evidence about the effects of alternative versions of the law, surely they cannot be expected to generate the same sort of evidence that the State would be expected to generate in order to justify legislation protecting privacy. Moreover, it has become commonplace to describe the staged processes operating between judiciary and State whereby it is determined whether a justification has been sufficiently established as a ‘dialogue’: courts are aware that if they castigate a legislative or decision-making process as inadequate in public law proceedings, then the consequence will often be that the policy is reconsidered or the decision retaken using an improved process, and, if necessary, the matter can be considered by the courts again. But there is no equivalent of ‘dialogue’ in a private law claim: a decision in the context of a tort claim that a decision-making process was inadequate to establish a justification for limiting a privacy interest will either establish liability, or, at the very least, give rise to an awkward question of causation.15 The difference between the sort of evidence that can be reasonably demanded to justify a restriction on a Convention right in a case involving the State and in a case involving two private individuals is not the only way in which the basic balance is likely to lead to problems as a design for a tort. A related difficulty flows from the fact that one of the traditional fundamentals of English tort law has been that torts apply in the same way to public and private actors. For instance, the definition of the torts of assault, trespass to land and conversion are the same for public and private defendants.16 But it is not clear that a privacy tort based on the balance between Article 8 and Article 10 will work in the same way for public and private defendants. For a start, it seems that the requirement that an invasion of Article 8 rights must be ‘in accordance with the law’ will apply differently to public and private defendants. Newspaper photographers, gossiping friends, and the like, do not rely on any special statutory or common law power to authorise their actions, but merely on general liberty. One of the essential conclusions of the European Court of Human

15 An awkward question of causation can arise where, for instance, the court finds that the defendant has not mustered the evidence necessary to establish that the restriction on the claimant’s privacy was justified, but is unable to determine whether the evidence could have been mustered had the defendant been aware of what was likely to be required at an early enough stage in proceedings. 16 C Harlow, State Liability, (Oxford, Oxford University Press 2004) ch 1, offers a forceful recent defence of this ‘parity principle’.

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Rights in the cases of Malone and Khan, however, was that public authorities cannot rely on general liberty.17 A further difference between defendants may arise from the courts’ approach to relative constitutional authority, institutional capacity and practical expertise.18 Can it be correct that in deciding questions of liability in tort expert defendants, such as newspapers, are given more leeway than inexperienced defendants, such as the creators of gossipy websites, and that public defendants may be entitled to special account being taken of their public status? It seems that the English courts have silently accepted the point that the approach to finding the basic balance in a tort claim cannot be equivalent to the approach used in a review of State action. Certainly the cases where English courts have been purporting to build a civil wrong around the basic balance between Article 8 and Article 10 have contained little discussion of the elements within a traditional proportionality inquiry. For instance, it has been assumed without significant discussion that it is proportionate to adopt an approach based on a civil wrong model with remedies similar to those available for a traditional breach of confidence. No English judge has compelled a claimant to demonstrate that no imaginable measure which limits freedom of expression to a lesser extent can be expected to protect privacy sufficiently. The English courts seem to have slid from the proposition that: the European Court of Human Rights has held that Article 8 requires a State to ensure that its citizens can obtain remedies for violation of privacy by private individuals

to the conclusion that: it is therefore necessary in a democratic society to protect privacy using an approach based on a civil wrong model with remedies similar to those available for a traditional breach of confidence.

But the conclusion clearly cannot be deduced from the proposition alone. This is not, of course, to claim that sufficient evidence could not be marshalled to demonstrate that no alternative measure can be expected to protect privacy sufficiently without restricting free expression to the same

17 Malone v United Kingdom, no 8691/79, 2 August 1984, Series A no 82 (1984), (1985) 7 EHRR 14, para 67: ‘the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.’ Para 68: ‘the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.’ Khan (Sultan) v United Kingdom, no 35294/97, 12 May 2000, ECHR 2000-V, (2001) 31 EHRR 1016, paras 27 and 28. 18 Public lawyers often refer to this as the question of ‘appropriate deference.’

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extent. But the cost of erroneously treating the proposition as a sufficient justification for the conclusion is that the design choice is overlooked.19 The problem that the basic balance may impose different obligations on public and expert defendants has been mentioned above. A similar problem which may be worth noting at this point is that of non-human claimants. The English law of torts usually treats artificial legal persons as potential beneficiaries of tort duties, whilst acknowledging that lack of a physical body prevents them from being potential victims of all torts.20 It is not clear, however, that Article 8, if it confers rights on non-human entities at all, confers rights of the same scope and weight as those conferred on human beings. Many, but not all, of the justifications for protecting privacy, for instance, the role of privacy in facilitating the development of values such as love and friendship, and in increasing opportunities to participate in fora such as religious communities, campaign groups and workplaces, do not apply to non-humans or only apply to a limited extent.21 Thus a tort founded on Article 8 may apply differently to human and non-human claimants. By extension a similar point can be made about Article 10: many of the reasons for wanting to protect the free expression of human beings apply to non-human persons, but not all, and not all to the same extent. For instance, a human defendant is likely to find it easier than a company to argue that the justification for restricting the claimant’s privacy is the right to express personality through artistic creativity. Clearly it will be necessary to consider whether the basic balance should be applied to cases involving non-human actors, or whether some set of rules derived from the balance in cases involving human beings should be extended to them.

B. Translating the Basic Balance into Instructions for Potential Defendants A further problem with attempting to use the basic balance as the blueprint for the tort involves the difficulties with trying to derive clear instructions for potential defendants from it. This is a problem partly because some 19 Because there is a risk that some English lawyers regard the existing structures of tort law as natural and inevitable rather than the outcome of choices it may be helpful to deploy an illustration: if a legal system decided that it was necessary for citizens to be able to obtain remedies against private individuals for damage done to their reputations then it could introduce provisions resembling the traditional common law of defamation, or provisions resembling ss 2-4 of the Defamation Act 1996 (offer of amends), or some further variant. The fact that the particular legal system has no equivalent of ss 2-4 anywhere within it does not mean that it has no choice but to use the common law model. 20 It is impossible, for instance, to commit the torts of battery or false imprisonment against a company. 21 For instance, companies are widely thought to be incapable of forming loving relationships or friendships, but can clearly develop relationships which are exclusive and based on trust.

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elements of the balance, particularly the scope of the interest protected by Article 8, are so difficult to define, and partly because the basic balance omits to mention the importance of factors beyond the right to free expression which ought to limit the extent to which privacy interests are protected. A preliminary obstacle in the way of converting the basic balance into clear instructions for potential defendants is that English tort law has traditionally presented such instructions as duties to refrain from particular behaviour while Article 8 is not expressed in terms of forms of behaviour, but in terms of a mental attitude: ‘respect for’ a series of abstract interests – ‘his private and family life, his home and his correspondence’. This said, there can be little doubt that the primary target of Article 8 is behaviour which manifests a lack of respect for another’s privacy rather than a mere attitude. Article 8 does not itself, however, provide any catalogue of the relevant forms of behaviour which sufficiently manifest a lack of respect. Thus in order to use Article 8 as the foundation for an English tort of the traditional pattern it will be necessary for someone to undertake the task of specifying the forms of behaviour which defendants must avoid.22 One approach to such specification would be to define the relevant behaviour in terms of a generalised consequence for potential claimants. Thus the duty could take the general form: ‘you must not behave in such a way as to damage another’s privacy interest’. But such an instruction is not straightforward since the claimant’s interest is intangible, and consequently it is far harder for citizens to know how to avoid damaging it than more familiar and detectable interests like bodily integrity or those relating to tangible property.23 Compliance with such a generalised duty through obedience would be difficult to achieve because it would not reliably communicate to people what it was their legal duty to avoid doing. Of course, behind the concern that ordinary citizens would not understand a duty not to behave in such a way as to damage another’s privacy interest lies the deeper problem that even scholars are divided as to the best way of describing the privacy interest which ought to be protected. One popular strategy is to define the interest24 in terms of the claimant’s control over access to information relating to himself or herself. Thus invasions of

22 If this task is not undertaken by the judiciary then defendants are likely to be faced with uncertainties relating to the need to choose between differing unauthoritative formulations. 23 It may be worth illustrating the different difficulties caused by unfamiliarity and undetectability. Unfamiliarity causes problems where potential defendants are unsure if, for instance, information about a particular aspect of the lives of others, say their use of a wig or of hair dye, is protected or not. Undetectability causes problems when potential defendants are aware that information about a particular aspect of the lives of others is protected, but are unaware that the information they are about to publish pertains to that aspect of another’s life: for instance, I tell my friends that I saw a rock star leaving a particular pub one morning, unaware that it is widely known that the upstairs room in this pub is used for meetings of Narcotics Anonymous. 24 Or at least a significant part of it.

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privacy involve behaviour by defendants which reduces a claimant’s degree of control over access to information. One attraction of building a definition around control over access to information, rather than merely around disclosure of particular types of information is that otherwise it is difficult to make sense of my neighbour’s claim that I have invaded his privacy by building an extension with a window overlooking his garden. To put the same point more technically, one advantage of building a definition around control over access to information is that it allows us to see the same interest as involved in both invasions of privacy by intrusion and by publication, or misuse, of private information. There are two basic problems, however, with a definition built around control over access to information. First, a definition built around factual control suffers from the problem that the level of control that people in fact enjoy varies from place to place and from time to time. Thus if I have pointed my camera’s telephoto lens at the bedroom window long before the claimant purchases and moves into the house then it is arguable that I have not reduced his capacity to control access to the information captured by the film as a matter of fact; he never had any such capacity in that particular place.25 These problems suggest that if control over access is to be used as the core of a definition it must be a normative legal concept (the extent to which the claimant ought to have control over access in a particular place at a particular time) rather than a factual one. Once it is acknowledged, however, that the claimant’s protected interest must be defined in terms of a legal concept rather than a factual one the concern that potential defendants may not be able to identify the risk of their behaviour damaging the interest becomes even more acute: potential defendants may be unaware of the normative concept that lawyers have constructed. English law has tried to define the claimant’s protected interest in terms of the amalgam ‘a reasonable expectation of privacy’. This formulation clearly has a normative dimension: MGN would not have won their case merely by establishing that the vast majority of footballers would not in fact have expected a newspaper informed of their extra-marital affairs to have refrained from publishing.26 But it also seeks to invoke a pre-existing social consensus as to the extent to which citizens expect privacy to be protected in the absence of countervailing justifications for publication.

25 Objections that I only reduce his capacity by taking the photographs or looking at them can almost certainly be defused by altering the technology used in the example. Such objections cannot undermine the general point that factual control is contingent on other facts which vary with time and place. 26 A v B plc [2002] EWCA Civ 337, [2003] QB 195.

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There must be significant doubts, however, as to whether such a consensus exists across the full range of difficult situations that a privacy tort may have to cover.27 A further example may help to establish the degree to which ‘reasonable expectation’ is not self-evident. Is it an invasion of privacy (a violation of your ‘reasonable expectation’) to take or to publish a photograph of you sitting on a park bench in the sun as part of an article on the joys of Oxford in the summertime? Ought you to be able to control such access to information about your image? The European Court of Human Rights, and it is not alone, seems to think that taking such a photograph can harm a protected interest. But such behaviour seems to be generally tolerated in England and Wales, and many people conduct themselves on the assumption that it will continue to be tolerated: the Oxford University prospectus, for instance, regularly contains photographs of identifiable students in libraries, on sports fields and attending social gatherings. The second basic problem with a definition built around control over access to information is that the range of behaviour that can reduce even the reasonably expected level of control that people enjoy is so broad that a duty to refrain from all such behaviour would restrict liberty to an impossible extent. For instance, by seeing my colleague entering the premises of a marriage guidance counsellor I reduced the level of factual control that he previously enjoyed over particular information about himself.28 But I could only comply with a duty to avoid doing such damage to his privacy interest by closing my eyes as I walk to work past these premises or taking a longer route each day. This suggests that a duty not to behave in such a way as to damage another’s privacy interest must be limited in order to protect liberty, and not just limited in order to protect freedom of expression. If an unqualified duty to avoid damaging the claimant’s privacy interest (except when justified by exercise of a right to free expression) is likely to be an unsatisfactory compromise because it will impinge to too great an extent on the liberty of potential defendants, then one available design option is to provide a more detailed description of the damaging behaviour that the defendant must avoid.29 A typical pattern that English tort law follows in other areas is to design a tort around a description of the types of behaviour that defendants must avoid, perhaps including a description of the mental element which must accompany such behaviour, and a description of the general consequence of the behaviour.

27 English judges have already had to determine the ‘reasonable expectations’ of a visitor to a brothel (Theakston v MGN Ltd [2002] EWHC 137 (QB)) and of a man sending love poetry to a younger married woman (Maccaba v Lichtenstein [2004] EWHC 1579 (QB)). 28 Despite my best efforts at self-control I may disclose the information while in a fever, under the influence of a truth drug or when under duress. 29 In other words, rather than a general duty to avoid behaving in such a way as to damage another’s privacy interest one could specify particular forms of behaviour for a potential defendant to avoid.

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Obvious and common moves in designing a more detailed description of the types of behaviour would include limiting the duty to avoiding acts (as opposed to omissions) and adding a description of a mental element so as to exclude liability for acts which were not known to pose a significant risk to another’s privacy interest (such as taking a photograph of a street scene, or, perhaps, Lord Hoffmann’s example of the hotel guest who in innocent confusion enters the wrong bedroom).30 At the risk of repeating the point once too often, it should be noted that limits on the tort duty so that it does not cover omissions which allow privacy to be damaged or accidental violations are not limits necessary to protect freedom of expression: they are additional limits justified by an appeal to general liberty. The need for such additional limits supports the general contention advanced in this chapter because the language of the basic balance tends to overlook the necessity for such limits. Attention to the appropriate definition of the behaviour which the defendant must avoid will also be important in addressing the question of the relationship between the liability of the husband who tells the inside story of his marriage to the journalist, the journalist who communicates it to the newspaper, and the newspaper which publishes it to the world. One approach sees the newspaper as in a sense secondarily liable, implicated in the husband’s breach of duty, so that the newspaper’s wrong is to take advantage of the husband’s wrong. A second approach suggests that husband and newspaper indulge in different forms of behaviour which should both be included in the catalogue of prohibited actions. The second approach has the obvious advantage that it allows a newspaper to be held liable even when its source is not a wrongdoer. For instance, the newspaper can be held to have wronged S, the child of the murderous mother, by publishing the name of the school he attends, regardless of whether the journalist gets the information from a mole, by duping the headmaster, or from a comment innocently allowed to slip by another child in the same class.31 One exceedingly difficult problem faced by those seeking to define the behaviour which a potential defendant must avoid is how to deal with the

30 Of course, in both situations, the further acts of publishing the photograph or a description of what was seen in the hotel bedroom might not fall within the exclusion. Lord Goff’s summary of the law of confidence in A-G v Observer Ltd [1990] 1 AC 109, 281 excluded at least some acts not known to pose a significant risk to another’s protected interest since it required the confidential information to have come to the knowledge of the confidant ‘in circumstances where he has notice, or is held to have agreed, that the information is confidential’. 31 Lord Goff in A-G v Observer Ltd [1990] 1 AC 109, 281 was eager to establish that a breach of confidence could be committed by a person who acquired a confidential document without wrongdoing, for instance when an ‘obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by’.

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problem of uncoordinated combinations. Clearly where several individuals have agreed to combine in order to do acts damaging the claimant’s privacy, the matter is relatively straightforward. But the matter is more complicated where the damage is caused by the combined effect of the uncoordinated behaviour of several individuals, for instance where the claimant celebrity perceives constant surveillance while on holiday from the combined behaviour of several opportunistic photographers. If the basic balance is applied to each potential defendant separately it may be that nobody performs an act which individually causes sufficient damage to the claimant’s privacy to justify the restriction on liberty necessary to forbid all such acts: by contrast, the cumulative effect of the combination of acts may be impossible to justify. A possible solution would be to include in the definition of the behaviour which potential defendants must avoid certain forms of behaviour likely to be harmful in the light of their combination with the foreseeable similar behaviour of others.

C.

Taking Account of the Claimant’s Behaviour: Selective Disclosure

It may be useful at this stage to briefly refer to a further problem with deriving clear instructions for potential defendants from the basic balance. This problem flows from the fact that one of the main reasons given for protecting privacy rights is to facilitate the advantages that may be gained from selective disclosure: selective disclosure can form an important part in forging relationships of trust and affection and participating in groups which may be deflected or distorted by transparency to public attention. The importance of selective disclosure in justifying legal protection for privacy makes it unthinkable that a tort duty would make no allowance for the fact that people regularly willingly reduce their capacity to control access to information about themselves. It might be thought that this could be dealt with by the simple expedient of a consent exception. But people often grant others access to information on the understanding that it may be used in some ways (and not others) but without a full or express specification of their expectations. The conventions which underpin these understandings are rich and complex: thus distinctions can be drawn with regard to the person who has told the other members of his support group that he is a recovering alcoholic, the person who has told his work colleagues the same thing, and the person who wears a t-shirt on the London Underground proclaiming the same message: can one member of the support group tell another who missed the meeting, can a work colleague tell the new manager, can a journalist who saw the t-shirt mention it in his diary column? It is possible to treat each case as raising a similar issue concerning the scope of a limited waiver of privacy. Problems of interpreting the scope of consent can arise in cases involving physical integrity and property, but the conventions as to when one person can

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damage another’s person or property are, on the whole, clearer and more generally understood. Many of the conventions as to privacy, particularly where the subject of attention is famous, and particularly within special groups such as families, friend networks and churches, are distinctly unclear. No one doubts that a celebrity must accept that he can be physically jostled on a crowded train, but does he also accept that he can be photographed on the same train by an adoring fan, or that his destination can be published in a newspaper? Members of a church may be allowed greater latitude than strangers to take interest in the religious beliefs of another congregant, but does this stretch to cover all the life choices of the congregant which might be thought to have a moral dimension? Regardless of how far the conventions are clear it does not seem appropriate that a defendant who can plausibly argue that ‘I honestly believed that the claimant had allowed me to disclose this information’ should be compelled, in addition, to demonstrate a free expression justification for doing so. If this is correct, then apparent consent (and any limits on it32), must be treated as relevant to the scope of the protective reach of Article 8, or acknowledged as a factor beyond free expression which must be incorporated in some other way into a satisfactory design for a privacy tort.

D.

Taking Account of Co-ownership

The problem of waiver overlaps with one aspect of the problem of co-ownership: co-owners often create shared experiences on the basis of express or implied understandings as to whether and when information about those experiences can be disclosed to others. Again, where a defendant can plausibly argue that ‘the understanding at the time this information was created allows me to disclose it’ it seems inappropriate that he should be compelled, in addition, to demonstrate a free expression justification for doing so, at least vis-à-vis the other party to the understanding. There is another aspect of the problem of co-ownership, however, which flows from the fact that private information about one person will often also be information about another, or integrally linked to information about another. For example, if the defendant publishes details of the politician’s extra-marital sexual escapades it will also be publishing information about the life of the politician’s wife and, more obviously, about his sexual partners. It seems likely that courts consciously or unconsciously involved in designing a privacy tort will have to determine which elements 32 It is likely, for instance, that the consent of a young child or of a person suffering from a mental impairment will not furnish a defence.

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relevant to the balance between the rights of one claimant-defendant pair can be carried over to the balance between a linked claimant-defendant pair. If, for instance, a politician expressly invites scrutiny of his sexual behaviour how far is that invitation relevant to the duty between a potential publisher and the politician’s spouse?

III.

CONCLUSION

In summary, Article 8 may be adequate as a provision in a code of human rights, but the balance between it and Article 10 does not provide a ready-made design for a tort duty. Designers of tort duties must take account of what makes a legal duty good at being a legal duty. Two important factors in this respect are whether potential defendants can understand what the duty obliges them to do and whether the structure of the duty makes it likely that they will respond to it by direct compliance (as opposed to indulging in some avoidance or presentational strategy). I have argued that uncertainties about, amongst other things, the scope of Article 8 and what evidence must be marshalled by different classes of potential defendant to demonstrate a proportionate limitation, make the basic balance between Article 8 and Article 10 a deficient model for a duty. I have also indicated the ways in which such a model may conflict with the patterns that are usually found in the English law of torts, for instance by leading to public defendants being treated differently from private defendants, expert defendants treated differently from inexpert defendants, and non-human claimants and defendants treated differently from human claimants and defendants. Of course, this argument is negative; I have not sought to establish what would be an adequate design. Part of the reason for not proceeding to the positive task, however, is scepticism as to whether a general design can ever adequately provide the appropriate range of compromises for an area as wide and complex as privacy.

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8 Damages as a Remedy for Infringements upon Privacy SIEWERT LINDENBERGH

I.

PRIVACY AND DAMAGES

I

N THE LAW of tort it seems an undisputed principle that the person who committed a wrong is obliged to put the victim as far as possible in the position in which he would have been, had no wrong occurred.1 This principle seems to be the natural conclusion of the reasoning that when a primary duty of care is breached, any resulting harm should be compensated. This reasoning can, in fact, even be seen as an elaboration of the concept of ‘the rule of law’.2 In cases of violation of privacy, however, the nature of the facts disseminated usually means that such a position – the situation without the ‘wrong’ – cannot in fact be restored or achieved at all. The entering into a private area cannot be reversed; the publication of personal information cannot be undone. Injunctions can be of little help either: potential privacy violations are not usually announced and can thus not easily be prevented. And the dissemination of the truth – albeit about private matters – can, according to its very nature, not be rectified. At first sight tort law thus seems to be rather powerless against privacy violations. Considering this more thoroughly, however, we must conclude that this is not so much specific to privacy infringements, but in fact no wrong can truly be undone. Even though the position without the ‘wrong’ can thus – as a matter of fact – never be brought about in reality, it may in many cases be approached. Doctors can heal the wounds of a victim, mechanics can 1 For Germany explicitly §253 German Civil Code (GCC, Bürgerliches Gesetzbuch), for The Netherlands AR Bloembergen and SD Lindenbergh, Schadevergoeding: Algemeen, deel 1 (Deventer, Kluwer 2001), Monografieën Nieuw BW B-34, p 8ff, for England, for example, Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 and H McGregor, McGregor on Damages (London, Sweet & Maxwell 2003) 9. 2 See on the rule of law European Court of Human Rights in Golder v UK Series A no 18 (1975), (1979-80) 1 EHRR 524.

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repair the dents in a car, both at the cost of the wrongdoer. But even then, a certain loss may remain: pain and suffering, the inability to work as a result of remaining disabilities, the remaining loss of value of a damaged but repaired car. In these cases the law of tort offers – as a ‘second best’ – compensation for the loss.3 Pecuniary loss is usually compensated in full. Other loss, such as pain and suffering, is compensated to a certain extent as well.4 And although English, German and Dutch law have accepted different ways of founding, designing and limiting the right to compensation of non-pecuniary loss, the results in practice, I believe, do not differ as substantially as one might perhaps expect. We must, thus, accept that the true aim of tort law – restoring the situation without the wrong – can hardly be achieved in fact, and that we usually have to live with a ‘second best’, which is compensation of loss. It is also good to realise that compensation, according to its nature, differs fundamentally from true recovery: it is a matter of creating a new balance. After these rather discouraging remarks about the abilities and inabilities of the law of tort, let us explore how damages can serve as a remedy to infringements upon privacy, and whether this is satisfactory.

II.

DIFFERENT VIOLATIONS, DIFFERENT LOSSES

First, it should be noted that violations of privacy may, as a matter of fact, have rather diverse consequences, since the concept of privacy encompasses a wide variety of interests. For instance, a substantial difference in factual consequences can be observed in the case of disclosure of company secrets to a competing enterprise, an attack on a house by hooligans, the prohibited furnishing of information to a third party about someone’s criminal behaviour, the publication without consent of a photograph of an undressed person in a magazine or the presentation of information in the tabloids about illegitimate children of a member of a royal family. These examples have in common that they all concern aspects of privacy in some way or another. They also, however, show a variety in factual consequences and – thus – a variety in possible results as far as damages are concerned. Although the concept of privacy is often associated with intangible non-pecuniary interests, it should be borne in mind that when an infringement upon privacy causes a financial loss, the wrongdoer may be confronted with a claim of considerable size. This may for instance be the case in the example of the disclosure of company secrets. Companies, as well as 3 The right to compensation is of course not limited to the area of tort and exists in contract as well. 4 According to Dutch law and German law, non-pecuniary loss is to be compensated only where there is a specific ground in the code (Art 6:95 Dutch Civil Code (DCC) and §253 GCC). The most important grounds are found in Art 6:106 DCC and §847 GCC.

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natural persons, deserve protection of their interests of privacy and violations of these interests may cause serious loss that is to be compensated.5 Privacy-violations may cause financial loss in other cases as well. Apart from the costs of legal procedures, one can think of cases in which the disclosure of private information causes damage to someone’s professional reputation. As in cases of defamation, it is not always recognised that in fact a financial loss is at stake here. In cases of privacy-infringements, the same may be the case. Furthermore, the infringement upon privacy may be accompanied by other harmful behaviour. It may then not only be the privacy aspect that generates the damages, but the total damages to be awarded can be substantial in such cases, so that the infringing act does in fact not remain ‘unanswered’. A first observation may thus be that infringements upon privacy may cause financial loss that is to be compensated. In these cases it can be said that, depending on the financial consequences of the violation, the law of tort may have ‘sharp teeth’.

III.

PRIVACY INFRINGEMENTS RESULTING IN NON-PECUNIARY LOSS

As mentioned earlier, the concept of privacy is usually not primarily associated with financial interests, but far more with intangible interests such as personality, honour, et cetera. It is, therefore, not surprising that, in addition to compensation of financial loss, the injured party may be able to achieve compensation for non-pecuniary loss. Although all Western jurisdictions recognise a right to compensation of this loss to some extent, it can also be noted that most jurisdictions have more specific requirements or higher thresholds for the right to compensation for non-pecuniary loss in order to avoid numerous possibly vague and exaggerated claims.6 When it comes to compensating non-pecuniary loss, in most countries priority is given to the compensation of injuries to health – be it physical or mental health – over the compensation of ‘mere’ damage to the personal honour or other personal values such as privacy. However, in addition to a right to compensation for non-pecuniary loss in cases of physical or mental injury, most European jurisdictions have also accepted a right to compensation of such loss where personality rights, such as reputation and privacy, are severely infringed. In The Netherlands, 5 According to the European Court on Human Rights, a company may be awarded compensation for non pecuniary loss as well: Comingersoll SA v Portugal, no 35382/97, ECHR 2000-IV, 160, (2001) 31 EHRR 31. 6 See for a comparative overview on this subject M Bona and P Mead, Personal Injury Compensation in Europe (Deventer, Kluwer 2003) 574.

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for instance, the right to compensation of non-pecuniary loss was accepted even earlier in cases of defamation than in personal injury cases. It can be noted, however, that the attention of claimants seems to have shifted from defamation to privacy as a basis for damages. Perhaps this is due to a general change of mind of the public: what used to be considered as defaming is often judged differently now, whereas privacy seems to have gained legal weight over the past decades. In The Netherlands, the right to compensation of non-pecuniary loss for privacy violations was accepted by the Hoge Raad under the old Dutch Civil Code in the the so-called Nudist Guide case in 1987.7 This case concerned a photograph taken at a camping site for nudists, showing half of the undressed body of a 17-year old female. Several years after the picture was taken, by which time the woman had become a teacher, it was printed in the size of a passport photo on the back of the cover of a vacation brochure for nudist camping. At the time, the Dutch Civil Code only explicitly recognised a right to compensation for non-pecuniary loss in cases of intentional insult.8 In the Nudist Guide case the Hoge Raad held that, since the intent to insult could not be substantiated but nevertheless a serious violation of the woman’s privacy was at stake, a compensation for non-pecuniary loss was to be awarded on this basis. The decision that serious violations of privacy found a right to compensation for non-pecuniary loss was, again under the regime of the old Civil Code, affirmed by the Hoge Raad in 1990.9 In this case the police told the daughter of a family whose house had been broken into, that her sister’s boyfriend, ‘K’, had a criminal record. Consequently, this sister ended her relationship with ‘K’, who, in turn, claimed compensation from the State. In this decision the Hoge Raad upheld that severe infringements upon privacy give rise to a claim for non-pecuniary loss. The new Dutch Civil Code of 1992 provides a right to compensation for non-pecuniary loss in cases of physical injury, injury to reputation or other injuries to a person.10 According to the interpretation of the Hoge Raad the latter category also includes mental injuries in the form of a recognised psychiatric illness. Until recently it was unclear whether infringements not resulting in any illness would qualify in this category. The Dutch Hoge Raad decided on this question in July 2004.11 The case concerned an attack on a house by hooligans on New Year’s Eve in 1997. The owner of the house and his wife were at home at the time and called the police for help. The attack started at around 10 o’clock at night, but the police first showed up at about 2.30 the next morning, after at least 7

Hoge Raad, 30 October 1987, (1987) Nederlandse Jurisprudentie 277 (Naturistengids). Art 1408 and Art 1412 of the former Dutch Civil Code. 9 Hoge Raad, 1 November 1991, (1992) Nederlandse Jurisprudentie 58 (K v Staat der Nederlanden). 10 Art 6:106, 1 sub b DCC. 11 Hoge Raad, 9 July 2004, (2004) Rechtspraak van de Week 98. 8

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four more calls for help. The event has attracted considerable attention in The Netherlands, because it resulted in the resignation of the commander of police and of the mayor of the city. The case is especially interesting, because the county rather than the attackers was held liable because of its failure to protect its citizens. The county agreed to pay for the financial damage done to the family in an out-of-court settlement. The family claimed compensation for their non-pecuniary loss as well. The district court decided that the county was liable, not only for the non-pecuniary loss suffered by the parents who were at home at the time, but also by their son, who was absent but not able to return home during the attack. The Hoge Raad upheld the decision on the liability of the county for the non-pecuniary loss of the parents, but it refused the son’s claim, because the single fact that his home was being attacked was not sufficient to be considered as an injury to his person. The Hoge Raad speaks in this case of a ‘very severe infringement upon the persons and upon the safety of their home’, suggesting that a violation of privacy needs to be of a certain seriousness in order to qualify as the basis for compensation for non-pecuniary loss. It is not exactly clear what gravity is required, however. Since I do not know of any cases of unlawful privacy infringements in which compensation for non-pecuniary loss was denied on the ground that the nature of the infringement was not sufficiently serious, this wording seems to indicate that only quite minor infringements will not qualify.12 The position of Dutch law regarding damages for non-pecuniary loss in cases of privacy violations is not substantially different from that in other continental jurisdictions such as Germany. In fact there are reasons to assume that the Dutch legislature and the Dutch Hoge Raad have been inspired by the decisions of the German Bundesgerichtshof.13

IV.

COMPENSATION OF NON-PECUNIARY LOSS: QUANTUM

Whether the law concerning the compensation of non-pecuniary loss can be said to have ‘sharp teeth’ depends of course for a large part on the quantum of damages to be awarded. From the perspective of compensating loss, it is a common principle that the quantum of damages should primarily be based on an estimation of the 12 See also Hoge Raad, 27 April 2001, (2002) Nederlandse Jurisprudentie 91, a case of defamation in which the Hoge Raad decided that the judge has a margin of appreciation whether or not to award compensation for non-pecuniary loss, even when the criteria furnished by the Civil Code are met. 13 Bundesgerichtshof (BGH), 25 Mai 1954, 13 BGHZ 334 = (1954) Neue Juristische Wochenschrift (NJW) 1404 (Schachtbrief); Bundesgerichtshof, 14 February 1958, 26 BGHZ 349 = (1958) NJW 827 (Herrenreiter); Bundesgerichtshof; 16 September 1961, 53 BGHZ 363 = (1961) NJW 2059 (Ginsengwurzel). See also SD Lindenbergh, Smartengeld (doctoral dissertation Leiden, Deventer, Kluwer 1998) 153.

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financial loss suffered. Non-pecuniary loss, however, according to its very nature, cannot be expressed as a figure. This obstacle of logic has not restrained the law from accepting the possibility of compensation of this type of loss with an equivalent in money. The commonly accepted thought is that although money cannot undo the loss in fact, it may compensate the injured by creating some kind of new balance. In cases of personal injury it is widely accepted that the quantum of damages meant to compensate non-pecuniary loss should primarily be based on the gravity of the injury and its consequences for the victim. In fact this has led to a workable practice in which the quantum of damages is in some way or another related to the extent of the medical impairment of the victim. This means, in effect, that some sort of physical or medical starting point – suggesting at least some degree of objectivity – forms the basis for the estimation of the loss.14 In this respect the loss resulting from infringements upon privacy can be considered even more intangible, since in most cases the consequences of such an infringement do not exceed mere hurt feelings. Although it can be said that in these cases some amount of damage may be derived from the nature of the act, the loss can usually hardly be considered to be substantial, especially when compared to cases of personal injury. Consequently, the damages awarded from the perspective of compensation tend to be moderate. Sometimes, however, many small awards may still impose a large burden on the liable party. An example of this is the award of €75 each to 10,000 employees of a company which sold private information about its employees to insurance companies.

V.

COMPENSATION AND PREVENTION

It is not certain that it is truly problematic that the law apparently does not show ‘sharp teeth’ in this respect. In many cases the person that had his privacy violated may be satisfied with a court decision that this was unlawful, strengthened by a moderate amount of damages, since it will not so much be the amount of money that appeases him. However, in some cases moderate awards of damages are clearly not adequate to vindicate privacy. This is especially so, where the tabloid press deliberately disregards privacy interests in order to entertain the public, in particular when this is done with the objective of increasing the number of copies of magazines sold and – thus – of increasing the profits of the 14 See for English law The Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (London, Blackstone Press 2004); for Germany S Hacks, A Ring and P Böhm, Schmerzensgeldbeträge (München, ADAC Verlag 2005); and for The Netherlands M Jansen, Smartengeld, Uitspraken van de Nederlandse Rechter over de Vergoeding van Immateriële Schade (Den Haag, ANWB 2006).

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publishing company. Here the concepts of ‘damage’, ‘loss’ and ‘compensation’ obviously fail as the basis for an adequate reaction by the law. Thus, in some jurisdictions in these cases the perspective of compensation is left for, or supplemented with, the perspective of prevention. Clear examples are presented in the German cases of 1994 and 1995 in which damages were awarded to Princess Caroline of Monaco.15 In these cases the German Bundesgerichtshof explicitly stated that, in order to protect personality interests such as privacy, the award has the objective of vindicating these interests and preventing violations. According to the Bundesgerichtshof, the award is only adequate when the amount also forms a counterweight against the fact that privacy has been disregarded in order to gain profit. The objective of the tortfeasor to gain profit thus becomes a factor to be taken into account in assessing the amount of damages, in order to discourage the commercialising of the personality of others. According to Dutch law the objective to make profit may also be taken into account in the assessment of the damages.16 The Dutch tabloid press, however, seems – at least so far – quite modest in comparison to its German and English colleagues. When the aim of compensation of loss is left for the aim of prevention, the awarding of large sums to claimants may create the risk that the interests of the wrongdoer are neglected. Therefore, the European Court of Human Rights has required, in the Tolstoy Miloslavsky case,17 a reasonable relationship of proportionality to the legitimate aim that was pursued with the remedy. Although this warning may prohibit extreme awards, the ‘legitimate aim’ of preventing the disregarding of privacy interests by the tabloid press may still justify the award of substantial damages. In this respect the law can again be said to have ‘sharp teeth’.

VI.

CONCLUSION

It may be concluded that, although privacy interests seem intangible and defenceless, the law appears – at least in theory – to offer vigorous remedies against violations in the form of more or less substantial awards of damages. The nature of the loss and the situations in which the loss is suffered may shift the perspective from compensation towards prevention. Even this new perspective, however, does not mean that damages offer a panacea in cases of infringement of privacy. On the contrary, the road to damages is expensive because of the costs of procedures; it is strenuous 15 Bundesgerichtshof, 15 November 1994, 128 BGHZ 1 (Caroline von Monaco I) and Bundesgerichtshof, 5 December 1995, (1996) NJW 984 (Caroline von Monaco II). 16 Memorie van Antwoord, Tweede Kamer, Invoeringswet, Parlementaire Geschiedenis Boek 6 Invoeringswet (Deventer, Kluwer 1990) 1267. 17 Tolstoy Miloslavsky v United Kingdom, Series A no 323 (1995), (1995) 20 EHRR 442.

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because of the inevitable extra exposure to the public; it is paved with obstacles of uncertainty and the awards tend to be moderate. Damages can only ever offer a ‘second best’.

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9 Privacy of Contract HENRICUS J SNIJDERS

I.

INTRODUCTION

T

HIS CHAPTER FOCUSES on the fundamental right to privacy of Article 8 ECHR and its significance for contracts. In fact, Article 8(1) ECHR constitutes an umbrella for four rights, which are all dealt with in this provision: the right to respect for one’s private life, family life, home and correspondence. The same applies more or less to Article II-67 of the Treaty establishing a Constitution for Europe, which recognises ‘the right to respect for his or her private and family life, home and communications’. This article will not be dealt with here separately. A substantial – at least indirect – horizontal effect of the provisions of Article 8 ECHR between private (natural or legal) persons will be assumed in this contribution, an assumption which is in conformity with the views in ECHR countries.1

II.

SCOPE OF THE RIGHT TO PRIVACY OF ARTICLE 8 ECHR

The European Court of Human Rights never gave a definition of the fundamental right to privacy. Usually it refers to one or more of the aforementioned four specific rights of Article 8. The Consultative (Parliamentary) Assembly of the Council of Europe, in its Declaration on mass communication media and human rights in 1970,2 gave the following definition, which was repeated by this Assembly in its Declaration on the right to privacy in 19983 (on the occasion of the fatal accident of Diana, Princess of Wales): 1 See eg A Colombi Ciacchi in her contribution to this book. The Netherlands Supreme Court seems even to accept an almost direct horizontal effect following its judgment in G v Edam, HR, 8 January 1987 (1987) Nederlandse Jurisprudentie (NJ) no 928. 2 Resolution 428 (1970), Twenty-first Session (third part), under C sub 2, about which P Lemmens, (1979/1980) Rechtspraak van de Week (RW) 838ff. 3 Resolution 1165 (1998), 1998 Session (third part).

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The right to privacy consists essentially in the right to live one’s own life with a minimum of interference.

This definition gives an indication that the fundamental right to privacy may be distinguished in still another way: it does not only include the right to intimacy (‘the right to be left alone’)4 but also the right to personal autonomy (the right to self-determination). These rights will be referred to as ‘components’ contrary to the four ‘rights’ explicitly mentioned in Article 8. Another component, the right to enter into relations with other human beings, which has been mentioned by authors,5 may be considered, as far as relevant, as being included in the scope of personal autonomy, so this contribution will not deal with that component separately. The observation could be made that the fundamental right to privacy in the Resolution of the Consultative Assembly does not refer to the whole content of Article 8(1), but only to one of the four rights, the right to a private life. Support for this interpretation can be found in the French version of the citation, which describes the right to privacy as ‘le droit au respect de la vie privée’. However, looking at the examples of violations of the right to privacy given in the declarations and taking into account the context of the declarations as objections against media violations of the right to privacy, another point may be made. It is not improbable that the Assembly implicitly refers to the component of intimacy. The European Court of Human Rights is still clear vis-à-vis the significance of personal autonomy as one of the components of the fundamental right to privacy. Reference may be made to the famous 2002 judgment in the case of Pretty v United Kingdom.6 Dianne Pretty complained that her husband was not allowed by the English courts to assist her to die in the sense that he would be prosecuted for that assistance. The Court emphasised that Article 8: also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world,

referring to the judgments in inter alia the case of Burghartz v Switzerland7 and the case of Friedl v Austria.8 Furthermore, the Court held: Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the

4 See eg P de Hert, ‘Artikel 8. Recht op privacy’ in J Van de Lanotte and Z Haeck (eds), Handboek EVRM, Deel 2, Artikelsgewijs Commentaar, Volume I (Antwerpen-Oxford, Intersentia 2004) 722, fn no 52 about this description of Warren and Brandies in the (1890) Harvard Law Review 193ff. 5 See eg de Hert (n 4) 722-3. 6 Pretty v United Kingdom, no 2346/02, ECHR 2002-III 155, (2002) 35 EHRR 1, para 61. 7 Burghartz v Switzerland, Series A no 280 B (1994), (1994) 18 EHRR 101. 8 Friedl v Austria, Series A no 305 B (1995), (1996) 21 EHRR 83.

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notion of personal autonomy is an important principle underlying the interpretation of its guarantees (emphasis added).

The component of personal autonomy is firmly recognised in this consideration but there is more. The last reference to Article 8’s ‘guarantees’ in general shows that personal autonomy or self-determination is not only a component of the right to private life – the first right under the umbrella of Article 8(1) – but also a component of the three other rights mentioned in that article: the right to family life, the right to one’s home and the right to correspondence.9 An example of the meaning of the right to personal autonomy as a component of the right to correspondence can be found in the 2002 judgment of the European Court of Human Rights in the case of AB v The Netherlands. It considers whether the detainees’ right to correspondence in a certain prison had been affected, holding: According to the rules in force at the material time, detainees were entitled to send a two or three letters per week and to receive letters at all times. The costs of writing materials and postage were borne by the prison authorities. In these circumstances, the Court cannot find that the applicant was arbitrarily or unreasonably restricted in his possibilities to maintain contacts by letter with persons outside prison.10

It may be added that, as far as can be observed, the European Court of Human Rights does not use the concept of ‘privacy’ as a synonym for ‘private life’ or vie privée in its case law. The concept of ‘privacy’ is used in the sense of something ‘personal’ – see for instance the 1997 judgment in the case of Halford v United Kingdom11 – but that is not what is at stake in this case, because it does not refer to the right to privacy. Furthermore, the European Court of Human Rights uses the concept of ‘private life’ in the authentic English texts of the judgments in the same sense as the concept of vie privée in the authentic French versions. For these reasons there is no objection against continuing to use the concept of ‘right to privacy’ as an umbrella for the four rights mentioned in Article 8(1), and that is what will be done here. In summary, the fundamental right to privacy in Article 8 ECHR in fact covers many rights and even more than one category of rights. On the one hand it covers the four rights which are explicitly mentioned in Article 8(1) itself: the rights to respect for one’s private life, family life, home and correspondence. On the other hand it can be divided – looking at it from

9 De Hert (n 4) 723ff and 731 explicitly deals with the component only in the context of the right to private life, but in his description and in the illustrations of the other three rights eg at 742, 757ff and 770ff respectively, he shows the significance of the component for these rights as well. 10 AB v The Netherlands, no 37328/97, 29 January 2002, ECHR 2002, 9, (2003) 37 EHRR 48, para 91. 11 Halford v UK, no 20605/92, Reports 1997-III (1997) 24 EHRR 523.

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another point of view – into two rights: the right to intimacy (‘the right to be left alone’) and the right to personal autonomy (‘the right to selfdetermination’). Therefore, we are actually dealing with four times two, which gives eight rights. We will discuss these respective rights in this contribution only as far as this is appropriate. The right to intimacy and the right to personal autonomy will be referred to as ‘components’ in this contribution, in order to distinguish them from the four rights explicitly mentioned in the provision itself. III.

PRIVACY OF CONTRACT

Analysing the subject of privacy of contract we may consider two applications of the right to privacy in connection with the aforementioned components of intimacy and personal autonomy. Intimacy, as a component of privacy, can be concretised as the right to confidentiality of certain contracts. Many contracts, like other documents, can be considered, in conformity with their nature, as confidential and Article 8 offers some protection against breaches of confidentiality. This component of the right to privacy of contract, being the right to confidentiality of contract, may be evident. Another question is, to which contracts does this right apply? I will address that question later on. Personal autonomy, as a component of privacy, can be concretised as the right to freely enter into certain contracts. This right to freedom of contract can also be derived from the domestic legal systems of the Member States of the Council of Europe. It includes a lot of questions on contracting such as whether or not to contract, the content, effect and conditions of the contract, the choice of contractual partner, the time of contracting, the form of the contract and the choice of which legal jurisdiction will govern the contract.12 All these elements are explicitly or implicitly included in Article 1:102 of the Lando Principles and Article 1:1 of the UNIDROIT Principles. They may also be considered concretisations of the right to personal autonomy in Article 8 ECHR. Indeed, starting from the observation that Article 8(1) serves personal autonomy too, there is no jumping to another conclusion when we state that this provision includes the right to freedom of contract itself. It is remarkable that authors on this matter until now have either stated that the ECHR does not imply the right to freedom of contract at all or have not mentioned Article 8 as one of the ECHR pillars of freedom of contract, but other provisions such as Article 1 of the First Protocol on the protection of property.13 However, in the modern interpretation of Article 8, implying that it not only allows people to be left 12 See eg AS Hartkamp in C Asser and AS Hartkamp (eds), Verbintenissenrecht, Part II, Algemene leer der overeenkomsten (Deventer, WEJ Tjeenk Willink 2001) no 34ff. 13 See for The Netherlands eg EA Alkema, ‘Contractvrijheid als grondrecht. De vrijheid om over grond- en menschenrechten te contracteren of er afstand van te doen’ in T Hartlief

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alone but also gives them personal autonomy, Article 8 is undoubtedly a very comfortable basis for the right to freedom of contract.

IV.

CERTAIN CONTRACTS OR – IN PRINCIPLE – ALL CONTRACTS?

Knowing that Article 8 does not cover all areas of the right to privacy, but only the right to private and family life, home and correspondence, the question arises to what extent are contracts covered by Article 8(1). First of all, I will give some examples of contracts which are certainly covered by Article 8. The contract between a prosecutor and an anonymous undercover agent or other anonymous informant, for instance, is confidential; this is true for the sole reason that the informant’s right to respect for private life is necessary, because his physical integrity could be threatened if his name became public.14 The contract which provides for a gift between a mother and her illegitimate child for instance, is not allowed to be more restrained by tax regulations or inheritance rules than the same contract between a mother and her legitimate child; this is true for the reason that freedom of contract can be based here on the right to respect for family life, as follows from the famous Marckx judgment.15 The tenancy contract and the freedom of contract in that connection may be subject to public law limitations but only on the basis of the exceptions of Article 8(2); this is true for the reason that the right to respect of the tenant’s home requires it. We should compare these examples with the purchase of a motor car. Charles buys a nice Mini One for €20,000. Suppose that a newspaper is interested in the contract and publishes it, Charles sues the newspaper for this but the court holds that the publication is not unlawful. Is Article 8 then violated? And if Charles is the owner of 20 luxury motor cars and the newspaper publishes all contracts or at least all relevant data of the contracts, Charles sues the newspaper again and the court still holds that the publication is not unlawful, is Article 8 then violated? Would the answer be different if Charles is not just any Charles but the Prince of Wales? At this point it may be argued that the composition and value of someone’s property belong, indeed, to his private life, even irrespective of his VIP status, so that by publishing such data the newspapers are in principle violating Article 8(1) ECHR (barring exceptions in conformity with Article 8(2) such as respect for the freedom of the press, but that is not at stake at this stage of the contribution; and for that matter the right and CJJM Stolker (eds), Contractvrijheid (Deventer, Kluwer 1999) 33ff and JM Smits, Constitutionalisering van het vermogensrecht, preadvies Nederlandse Vereniging voor Rechtsvergelijking (Deventer, Kluwer 2003) 68, respectively; Hartkamp (n 12) no 45a. 14 Cf Mink K v The Netherlands, HR, 28 March 2003 (2004) NJ no 71, though Art 8 ECHR was not directly at stake. 15 Marckx v Belgium, Series A no 31 (1979), (1979) 2 EHRR 330, paras 40-41 and 54ff.

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to freedom of the press often has less weight than the right to privacy, as the Court confirmed in 2004 in the case of Princess Caroline von Hannover v Germany16). Maybe another point can also be made, which is certainly further-reaching. Let us look at the fourth right to be respected, the right to respect for correspondence, as Article 8 (1) calls it. Contracting is communicating and communication is protected by Article 8 in a very, very broad interpretation. First of all, not only correspondence in the sense of an exchange of letters but also other kinds of communication is protected. Reference may be made, for instance, to the 1978 judgment in the case of Klass v Germany,17 holding that telephone calls are protected as well. Second, not only communication which belongs to the private life of people is protected by Article 8 but also other communication. There is no limitation to the three other areas of protection of Article 8: private life, family life and home. Regardless of the subject of the correspondence, it is protected by Article 8. Reference may be made to the 1992 judgment in the case of Niemietz v Germany.18 This judgment stresses the significance of Article 8 for a search of business premises and the seizure of a lawyer’s professional correspondence (being ‘Rechtsanwalt’ Niemietz). The Court argues that: it is sufficient to note that that provision does not use, as it does for the word ‘life’, any adjective to qualify the word ‘correspondence’.

Referring to earlier judgments relating to correspondence with a lawyer, the Court emphasises that it did not even refer to the possibility that Article 8 might be inapplicable on the ground that the correspondence was of a professional nature.

V.

CONTRACTS OF LEGAL PERSONS

It can be added to all this that legal persons increasingly enjoy the right to privacy under Article 8 as well. Clayton and Tomlinson19 still write ‘that under the Convention Jurisprudence it is arguable that a company is not entitled to privacy rights’, yet they also refer to 2000 case law tending to the opposite. 16 Von Hannover v Germany, no 59320/00, 24 June 2004, ECHR 2004-VI, 1, (2005) 40 EHRR 1. 17 Klass et al v Germany, Series A no 28 (1978), (1979/80) 2 EHRR 214, para 41. See also eg Malone v UK, Series A no 82 (1984) 7 EHRR 14 and – for calls in a company’s office – Halford v UK, no 20605/92, Reports 1997-III, (1997) 24 EHRR 523. 18 Niemietz v Germany, Series A no 251 B (1992), (1993) 16 EHRR 97, para 32. 19 R Clayton and H Tomlinson, The Law of Human Rights (Oxford, Oxford University Press 2000), no 12.175 (first annual supplement 2001, second annual supplement 2003).

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Epoch-making is the 2002 judgment of the European Court in the case of Colas Est et al v France.20 The Court reiterates that ‘the Convention is a living instrument which must be interpreted in the light of present-day conditions’ and refers for this, mutatis mutandis, to its 1990 judgment in the case of Cossey v United Kingdom.21 Then it holds with reference to the 2000 judgment in the case of Comingersoll SA v Portugal:22 As regards the rights secured to companies by the Convention, it should be pointed out that the Court has already recognised a company’s right under Article 41 to compensation for non-pecuniary damage sustained as a result of a violation of Article 6(1) of the Convention’.

With reference to the Niemietz judgment, the Court adds: Building on its dynamic interpretation of the Convention, the Court considers that the time has come to hold that in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises.

Analysing the Court’s considerations after this fundamental case, it appears that the Court does not limit the right to privacy of companies on the basis of Article 8(1), but that, more than in connection with natural persons, it allows interference by public authorities. This only indicates a larger field of exceptions on the basis of Article 8(2). In this case the Court concludes that there is a violation of Article 8. It may be emphasised that the applicant in this case is a legal person and that the violation of the right to respect for his home in this case concerns the applicant’s company premises in which a seizure of several thousands of documents has occurred. The conclusion must be that correspondence by legal persons merits equal protection under Article 8(1) as the correspondence of natural persons, although, under Article 8(2), there can be good reasons for more interference by public authorities in the ‘life’ of a legal person than in that of a natural person.23

VI.

INTERIM CONCLUSIONS

What does all of this mean for contracts? A makes an offer by letter, by telephone, by email or otherwise; B accepts this offer by letter, by telephone or otherwise, and the contract is born. It is a communication, so it is protected by Article 8. The mere fact that many contracts are laid down in 20 Société Colas Est et al v France, no 37971/97, ECHR 2002-III, (2004) 39 EHRR 17, para 41. 21 Cossey v UK, Series A no 184 (1990), (1991) 13 EHRR 622, para 35 in fine. 22 Comingersoll SA v Portugal, no 35382/97, ECHR 2000-IV, 160, (2001) 31 EHRR 31, paras 33-5. 23 For a more cautious view de Hert (n 4) 726ff, but see also at 762ff.

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one document and signed by both parties does not stand in the way of protection. The document may be considered the confirmation of the communication. Altogether by virtue of Article 8 ECHR all contracts are, in principle, confidential and all contracts are, in principle, subject to freedom of contract. The latter point can also be established on the basis of insights purely from domestic law and transnational principles of contract law which have been based on these insights and have been laid down in Article 1:102 of the Principles of European Contract Law and Article 1:1 of the UNIDROIT Principles of International Commercial Contracts, as mentioned before. The former point seems to have less support in domestic law and in transnational law principles. The confidentiality of contracts, as a general principle, is not dealt with in domestic law systems and transnational law principles, as far as my observations go. However, there are strongly connected rights such as the right of confidentiality of letters and telephone calls. Therefore, it can also be argued from domestic points of view that people are entitled to be left alone in connection with, in principle, all contracts they want to enter into. It is true that people do not object to publicity of the major part of the contracts they conclude. However, if someone were to act as a ‘stalker’ in relation to their respective contract practices, they would certainly make objections. What is more, people can be assumed and obliged to keep some types of contracts confidential. The buyer of a Stradivari or a Turner worth six million euros may rely on the discretion of his counterparty. Energy company A is not allowed to know exactly the prices agreed on in a contract by its competitor, company B, with manufacturer X, if B agreed on confidentiality with X, implicitly or explicitly. Many contracts will be confidential to protect the interests of at least one of the parties which wants to be left alone and that desire has to be respected on pain of breach of contract or tort. As Article 8 suffices as a basis for the protection of confidentiality, we will not deal with the domestic basis in more detail. It is sufficient to know that Article 8 includes a right to privacy of contract and that this right requires both protection of confidentiality of contracts and protection of freedom of contract. We can focus instead on exceptions to Article 8’s right to privacy of contracts and the remaining significance of this right both in the sense of the right to confidentiality and the right to freedom of contract. Only some observations will be made on these questions.

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EXCEPTIONS TO THE RIGHT TO CONFIDENTIALITY OF CONTRACTS

First and most important are, undoubtedly, the exceptions that are created by the entitled person himself. This is often an implicit act. Buying a pint of beer in a pub is, almost by its very nature, excepted from the right to confidentiality by the buyer himself. The same applies to the contract between a hairdresser and his client, but if the client wants confidentiality, he is in principle allowed to have it. These observations look very self-evident, the more so because it is hard to imagine that the European Court of Human Rights would refuse any waivers of the right to confidentiality by the entitled person. Waivers would be granted only if the right to confidentiality is not the prerogative of just one party but of both, a unilateral waiver cannot be successful because of the right of that other person. Second, exceptions can be stipulated by the counterparty of the entitled person and this often happens implicitly as well. In essence, this exception is a species of the first one: the entitled person agrees to the stipulated condition of his counterparty. The pub owner will not want to keep his contract secret in general, so, again in general, they will not contract at all, if the academic situation should arise that the client wants to stipulate confidentiality of his contract. Besides these exceptions ex contractu there are exceptions ex lege, notably the exceptions provided for in Article 8(2): public authorities are allowed to interfere with the exercise of the right of Article 8(1), if it is: (a) (b) (c)

in accordance with the law and necessary in a democratic society and in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Despite these aims of legality, necessity and justification24 we all know that the exceptions are extensive. It could be added that, in general, we feel comfortable with that. We are able to open the door firmly for all kinds, types and modifications of the right to confidentiality in the knowledge that there are sufficient exceptions to prevent this right from becoming a monster. The extent of the concept of confidentiality on the one hand and the extent of the exceptions to this right on the other hand function like two communicating vessels.25 The recognition of a right to confidentiality

24

See also de Hert (n 4) 716ff. Reference can be made to European case law which shows a margin of appreciation for Member States in setting the limits of the exceptions. See eg Connors v UK, no 66746/01, 27 May 2004, (2005) 40 EHRRG, paras 82-4 and 94 and Buckley v UK, no 20348/92, Reports 25

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of inter-company agreements for instance, can go hand in hand with an exception to contracts threatening free competition. This is an exception in accordance with both European and domestic law, necessary in a democratic society for the economic well-being of – fair competition in – the European Community and the respective the country concerned. A frequently occurring restriction of the right to confidentiality of contract can be found in the right to freedom of expression of another person. However, we often see that people explicitly or implicitly relinquish their right to freedom of expression. The health insurer has to respect the right to confidentiality of the health insurance contract including for instance exclusions for certain diseases in connection with the personal health risk of the insured party. The sex club owner is not allowed to publish the names of his clients.

VIII.

REMAINING SIGNIFICANCE OF THE RIGHT TO CONFIDENTIALITY OF CONTRACTS

Keeping in mind all those different exceptions, the underlying principle of protection of the right to privacy in the sense of confidentiality of contracts cannot be underestimated. Let us focus solely on the relation of confidentiality of contracts with Article 6 ECHR. Article 6 guarantees the right to a public hearing and a public judgment. However, the court accepts a waiver of this right by the entitled person, or at least a waiver of the right to a public hearing. Reference may be made to the Court’s 1983 judgment in the case of Albert and Le Compte v Belgium.26 This case deals with disciplinary proceedings against Le Compte in his capacity as a medical practitioner. The European Court of Human Rights holds that: neither the letter nor the spirit of Article 6 para. 1 would prevent a medical practitioner from waiving, of his own free will and in an unequivocal manner (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 16, para. 36), the entitlement to have his case heard in public [and that] conducting disciplinary proceedings of this kind in private does not contravene Article 6 para. 1 if the domestic law so permits and this is in accordance with the will of the person concerned.

The European Court adds: Far from giving any agreement to this effect, Dr. Le Compte had sought to have a public hearing, so his right to a public hearing had, indeed, been violated.

1996-IV (1996) 23 EHRR 101, paras 74-7 and 84, though this doctrine is not generally accepted, as the three dissenting opinions of the last-mentioned judgment show. 26 Albert and Le Compte v Belgium, Series A no 58 (1983), (1983) 5 EHRR 533.

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A point which could be made in the context of our subject is this, that as far as the right to confidentiality of a contract is concerned, the waiver could certainly be assumed and that the question of whether the domestic law permits proceedings in private is not relevant. Another point is that although the European Court does not seem to accept any exception to the right to a public pronouncement of the judge’s decision,27 this could be accepted in favour of the right to confidentiality of communication including contracts, which are mentioned in the judgment being pronounced. A further point is that there is now more and more discussion on the acceptability of confidentiality of arbitrations. This question cannot be discussed in detail here.28 We still may make the point that the right to confidentiality of contracts and other communications of Article 8 pleads for the confidentiality of arbitrations including the arbitral awards on these documents and pleads for upholding this right (unless the parties waive their right to confidentiality, of course). The same applies mutatis mutandis to mediations.29 IX.

EXCEPTIONS TO THE RIGHT TO FREEDOM OF CONTRACT

Turning to the exceptions of freedom of contract it can be observed in the first place that the parties to a contract are allowed to make exceptions to their own freedom. However, this is rather an application of personal autonomy than an exception to it. Real exceptions can be derived from Article 8(2), so again we are speaking of the conditions of legality, necessity and justification as mentioned before. Again, human rights may require such exceptions. Reference may be made to rights other than Article 8 but also to Article 8 itself, for the right to privacy of other persons or even of the same person may require exceptions. The landlord’s contractual right to end or suspend an agreement with his tenant, for instance, may be limited by the right to respect of the tenant’s home and that of his near relatives. A person’s right to freedom of contract may even be limited by another fundamental right of the same person, as the next quite bizarre example 27

Campbell and Fell v UK, Series A no 80 (1985) 7 EHRR 165, paras 90ff. See eg Bulgarian Foreign Trade Bank v AI Trade Finance, Swedish Supreme Court 27 October 2000, (2001) XXVI International Yearbook Commercial Arbitration 291ff; LE Trakman, ‘Confidentiality in International Commercial Arbitration’ (2002) 18 Arbitration International 1 ff; ME Rosenberg, ‘Chronicles of the Bullbank Case. The Rest of the Story’ (2002) 19 Journal of International Arbitration, p 1ff; F de Ly, ‘Internationale Arbitrage’ (2002) 1 Tijdschrift voor Arbitrage 37-40; and CG Buys, ‘The Tensions between Confidentiality and Transparency in International Arbitration’ (2003) 14 American Review of International Arbitration 121. 29 See for the confidentiality of mediations and other non-adjudicatory forms of dispute resolution eg H Brown and A Marriott, ADR Principles and Practice (2nd edn) (London, Sweet & Maxwell 1999) ch 22. 28

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shows. The right to freedom of contract does not allow a person to agree to sado-masochistic treatment by another person as far as this treatment causes serious physical injury to the former, as the European Court held in the 1997 judgment in the case of Laskey v United Kingdom.30

X.

REMAINING SIGNIFICANCE OF THE RIGHT TO FREEDOM OF CONTRACT

The significance of freedom of contract as a substantial element of the right to privacy of Article is enormous, both in its content and – in particular – in its consequences for domestic law exceptions to this right. Let us consider one example showing the possible significance of Article 8. In the light of the component of self-determination in Article 8, the freedom of contract includes the right not to enter into a contract. This means that the judge who would sustain a claim on the basis of a contract entered into under extreme pressure, instead of rejecting it because of invalidity of the contract, could consider it to violate Article 8. This situation could occur in the event that a person is more or less forced to enter into a suretyship agreement as a surety, which may occur when a beloved family member of the intended surety and a bank employee exert pressure on the intended surety to sign a far-reaching standard form of guarantee.31 Even more important is the point that freedom of contract may only be limited by domestic law as far as domestic law meets the three conditions for exceptions in Article 8(2): legality, necessity and justification in the sense of that provision. This is an interesting perspective for further research.

30 31

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Laskey v UK, no 21627/93, Reports 1997-I, (1997) 24 EHRR 39. See A Colombi Ciacchi in her contribution to this book.

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10 Discrimination in Private Law – New European Principles and the Freedom of Contract DAGMAR COESTER-WALTJEN

I.

A.

NEWS FROM BRUSSELS, OLD HAT FOR LONDON AND THE HAGUE, AND A HIT LIKE A HAMMER FOR BERLIN

Two New Directives

O

N 21 DECEMBER 2004, a new directive came into force concerning equal treatment of men and women outside the labour market (Directive 2004/113/EC of 13 December 2004 – OJ L373/37). This directive prohibits discrimination between women and men with regard to the access to and supply of goods and services that are available to the public irrespective of the person concerned. This piece of legislation is a follow-up to the Race Discrimination Directive (Directive 2000/43/EC of 29 June 2000 – OJ L180/22), which also concerns legal relations (within and) outside the labour market. I would just like to recall the key issues of these two directives: they both establish the prohibition of discrimination based on sex or race not only in the public sector and in the labour market, but also between private persons, as soon as access to or supply of goods and services are made available to the public. Whereas the Race Discrimination Directive expressly names housing and does not otherwise limit offers to the public, the Directive on Equal Treatment of Men and Women in access to Goods and Services does not mention housing specifically, though the legislative history shows that housing was meant to be included.1 Only at the final stage of legislation were these words dropped, and the directive instead applies to all persons where goods and services are available to the public 1 Several versions were tried to render the express mention of housing unnecessary, such as ‘all goods and supplies’ or ‘goods and supplies altogether.’

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‘irrespective of the person concerned’. Because the interpretation of this restriction might result in differing treatment, at least of certain kinds of housing contracts,2 there may be some differences between the two directives on this matter. Besides these differences, which may cause some problems of interpretation in the near future, it may generally be stated that both directives apply to all businesses offering and selling goods or services. This includes shopkeepers, finance institutions, insurance companies (there was a loud outcry by the insurance industry with regard to the requirement for unisex tariffs), hotelkeepers and so on. Both directives also cover contracts between private persons, if the invitation for offers was made publicly by, for example, advertisement in newspapers, on the Internet or in any other public form. This wide range of application is especially problematic. The exemption for transactions in private and family contexts may also give rise to problems of interpretation.3 In addition, the Equal Treatment in access to Goods and Services Directive also excludes education, media and advertisement from its application – exceptions that have already been criticised. Both directives define discrimination as including direct as well as indirect unfavourable treatment and harassment4 and, in case of sex discrimination, also sexual harassment.5 Outside the field of employment, which I will not address here and which is the subject of further directives on non-discrimination,6 the Race Discrimination Directive does not allow for any exception or justification of unequal treatment except for positive actions (Article 5). The Equal Treatment in Access to Goods and Services Directive in addition to allowing positive actions (Article 4(2), Article 6) does not prohibit different treatment, if it is justified by a legitimate objective to provide goods or services exclusively or primarily for the members of one sex only and if the means of achieving that aim are appropriate and necessary. Private membership clubs and single-sex sessions in swimming pools are given as examples.7 The application of this latter exception may again cause difficulties, especially with regard to contracts between non-business people, the so-called C-to-C-contracts.

2 The characteristics of the client may be of no relevance for the sale of a house, whereas it might be when apartments, rooms or even houses are let for a certain time. 3 The European Economic and Social Committee restricts this exception to ‘renting of a family home to a family member or letting a room in a private house’, but includes all types of housing contracts, including rented and hotel accommodation: [2004] OJ C241/41. This means that I might have to observe the principle of equal treatment if I want to let my holiday home to a friend, at least, if I had advertised it. 4 Art 2(1), (2), (3) Directive 2000/43/EC; Art 4, Art 2b(c) Directive 2004/113/EC. 5 Art 2(a) Directive 2004/113/EC. 6 See, eg, the Equal Treatment Directive (2000/78/EC) as well as the Equal Treatment Amendment Directive (2002/73/EC). Some of the rules on employment in the new directives are only specifications of the principles already in force, see H Wiedemann and G Thüsing, ‘Fragen zum Entwurf eines zivilrechtlichen Anti-Diskriminierungsgesetzes’ (2002) Der Betrieb 463 at 465. 7 See European Economic and Social Committee (n 3).

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The Member States are obliged to lay down rules on sanctions applicable to infringements of the national laws implementing these directives. These sanctions have to be effective, proportionate and dissuasive. The Member States must take all measures necessary to ensure that the sanctions are applied.8 Both directives provide victims with the possibility of resorting to legal and/or administrative proceedings.9 Once the plaintiff has established facts from which it may be presumed that discrimination has taken place, the burden of proof to the contrary rests with the respondent.10

B.

The Problem

The two directives are not really exciting from an English or Dutch point of view, as both legal systems introduced comparable legislation some time ago.11 In Germany problems of race and sex discrimination have been dealt with by traditional techniques, especially by tort law. In contrast, therefore, attempts to implement these directives into German contract law have given rise to a very lively controversy, especially with regard to possible infringements of the principle of freedom of contract.12 This uproar is partly due to the fact that the first German draft bill had a very wide scope of application – much wider than the directives require – with regard to both the contracts concerned and the prohibited selection criteria and sanctions. Similarly, the Act which eventually entered into force on 14 August 2006 (Allgemeines Gleichbehandlungsgesetz – AGG) covers not only discrimination based on sex and race, but also discrimination based on other criteria such as age, religion, disability and sexual orientation. The German government – knowing that there are more legal acts on 8

Art 14 Directive 2004/113/EC; Art 15 Directive 2000/43/EC. Art 8 Directive 2004/113/EC; Art 7 Directive 2000/43/EC. Art 9 Directive 2004/113/EC; Art 8 Directive 2000/43/EC. 11 For English law, see Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995; for The Netherlands, see Algemen Wet Gelijke Behandeling 1994. Whether this legislation has been effective is another question, see D Schiek, Differenzierte Gerechtigkeit. Diskriminierungsschutz und Vertragsrecht (Baden-Baden, Nomos 1999) 99, 109. 12 F-J Säcker, ‘“Vernunft statt Freiheit!“ – Die Tugendrepublik der neuen Jakobiner* – Referentenentwurf eines privatrechtlichen Diskriminierungsgesetzes’ (2002) Zeitschrift für Rechtspolitik 286 at 289; K Adomeit, ‘Diskriminierung – Inflation eines Begriffs’ (2002) Neue Juristische Wochenschrift 1622; E Picker, ‘Antidiskriminierungsgesetz – Der Anfang vom Ende der Privatautonomie?’ (2002) Juristenzeitung 880; idem, ‘Antidiskriminierung als Zivilrechtsprogramm’ (2003) Juristenzeitung 540; S Baer, ‘Ende der Privatautonomie oder grundrechtlich fundierte Rechtsetzung? – Die deutsche Debatte um das Antidiskriminierungsrecht’ (2002) Zeitschrift für Rechtspolitik 290; J Neuner, ‘Diskriminierungsschutz durch Privatrecht’ (2003) Juristenzeitung 57; U Wendeling-Schröder, ‘Grund und Grenzen gemeinschaftsrechtlicher Diskriminierungsverbote im Zivil- und Arbeitsrecht’ (2004) Neue Zeitschrift für Arbeitsrecht 1320; Wiedemann and Thüsing (n 6) 463; G Thüsing, ‘Der Fortschritt des Diskriminierungsschutzes im Europäischen Arbeitsrecht’ (2001) Zeitschrift für Arbeitsrecht 397. 9

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discrimination in the Brussels pipeline13 – wanted to resolve these issues not only with regard to the two directives mentioned above but also for directives in the near future. Overall, there is a strong tendency to include additional criteria (like family status, political beliefs and so on) to strengthen the prohibition against any discriminatory act, following especially the example set by England.14 Therefore, the following thoughts are not restricted to race and sex discrimination alone, but will also consider the broader prohibition against discrimination in contract law. To avoid any misunderstanding, it is important to note that the critics do not doubt the desirability of equal treatment and do condemn discriminating acts, but they doubt that the proposed regulatory system will, in fact, serve these goals. The control of private decisions is perceived as constituting an unacceptable inroad into fundamental rights. Nightmares of Jacobinic terrorism and Robespierrian virtue edicts were called to mind.15 In contrast to this negative picture, others stress the fundamental need for protection against the exclusion of certain groups of persons as well as the correlation between private autonomy and the general welfare, ie the move from formal to substantive justice16 – a subject of debate for some time now.17 Thus, the debate focuses on a possible clash of fundamental rights and their role especially for legal relations between private persons. In order to deal with these problems in the limited space available, I would like first to look at non-discrimination as a human right, then to turn to the notion of freedom of contract, and finally to pose the question concerning new concepts of justice.

13 Green Paper: Equality and Non-discrimination in the Enlarged European Union, COM (2004) 379 (28 May 2004). 14 Wiedemann and Thüsing (n 6) 463 at 464 citing B Hepple, M Coussey and T Choudhury, Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford, Hart Publishing 2000); see also Green Paper (n 13) 15 (concerning disabled people and Roma). 15 Säcker (n 12) 286; Picker (n 12) (2003) Juristenzeitung 540 at 541. 16 Baer (n 12) 290; Neuner (n 12) 60. 17 See Schiek (n 11); J Neuner, Privatrecht und Sozialstaat (München, Beck 1999); R Nickel, Gleichheit und Differenz in der vielfältigen Republik (Baden-Baden, Nomos 1999); J Busche, Privatautonomie und Kontrahierungszwang (Tübingen, JCB Mohr 1999); C-W Canaris, ‘Drittwirkung der gemeinschaftsrechtlichen Grundfreiheiten’ in H Bauer, D Czybulka, W Kahl and A Voßkuhle (eds), Umwelt, Wirtschaft und Recht. Wissenschaftliches Symposium aus Anlaß des 65. Geburtstages von Reiner Schmidt (Tübingen, JCB Mohr 2002) 29; TM Coester, Diskriminierungsverbote im Privatrecht, Festschrift Canaris (München, Beck 2007).

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Discrimination in Private Law II.

A.

121

NON-DISCRIMINATION AS A HUMAN RIGHT

European Sources

A right to equal treatment and non-discrimination – not only with regard to race and sex, but also for other personal criteria – is a fundamental part of European law. Article 14 ECHR together with Protocol no 12, which came into force just recently, create a general prohibition of discrimination.18 The European Charter of Fundamental Rights provides for equal treatment by law in Article 20 and forbids discrimination on the basis of many criteria (sex, race, colour, ethnic or social origin, genetic traits, language, religion or ideology, political or other opinions, national minorities, wealth, birth, disabilities, age or sexual identity; and within the EU also with regard to nationality) in Article 21. The new Article 13 of the Treaty establishing the European Community – based on the Treaty of Amsterdam – empowers the Community with legislative authority to combat different kinds of discrimination, and this provision is the basis for the two directives already mentioned. The Treaty also contains various other provisions providing for equal treatment in certain situations,19 and the European Court of Justice in Luxembourg has emphasised the principle of equal treatment as a fundamental principle of community law on several occasions.20

B.

Effects

All these legal rules oblige the Member States to refrain from discriminating by legal or administrative acts or through actions of public bodies. Whether at least some of these rules also bind private persons directly has also been discussed,21 but, for our topic, this is of minor importance 18 Protocol no 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS no 177. 19 Art 12 (nationality), Art 18 (freedom to move), Art 43 (freedom of establishment), Art 49 (freedom to provide services) and Art 2, Art 3(2), Art 141 (equal treatment of men and women). 20 See Case C-442/00 Caballero v Fondo de Garantia Salarial (Fogasa) [2002] ECR I-11915; C-75&117/82 Razzouk and Beydoun v Commission [1984] ECR 1509; C-13/94 P v S and Cornwall County Council [1996] ECR I-2143; C-55/00 Gottardo [2002] ECR I-413; Green Paper (n 13) 10. 21 See, eg Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I 4139; see M Schweitzer, ‘Angonese und die Privatautonomie’ in C Heinrich (ed), Festschrift für Hans-Joachim Musielak zum 70. Geburtstag (München, CH Beck 2004) 523 ff (principle of market freedoms); C-43/75 Gabriele Defrenne v Societè Anonyme Belge et Navigation Sabena [1976] ECR 455 (Art 141 equal pay for men and women). Art 12 EC Treaty binds private bodies, according to the European Court of Justice, if these private bodies are involved in collective actions; whether Art 12 binds private persons directly, even outside these collective actions, is disputed. In favour of being binding see U Forsthoff,

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insofar as the directives mentioned oblige the Member States to enforce the prohibition against discrimination between private persons anyway.22

C.

German Law

German domestic law takes a similar approach. Article 3 of the German Constitution prohibits discrimination based on various criteria such as sex, race, disability, age, religion and so on. As Lorenz Fastrich noted above, this is primarily an obligation on the state and on public bodies, but it also affects private law insofar as, first, the German legislature is obliged to ensure non-discrimination, and second, this principle operates as an important factor within the general clauses like public policy and boni mores. Thus, even without statutes implementing the directives, German law limits the discriminatory behaviour of private bodies and persons.23 The new implementing Act on Equal Treatment 2006 (AGG) develops these principles further and formulates explicit rules. However, the principle of non-discrimination has to be balanced with other fundamental rights. An equilibrium between the protection of privacy and other fundamental rights has to be sought very carefully. Lorenz Fastrich has drawn our attention to the balance between fundamental freedoms on the one side and privacy on the other.

D.

Conflicting Human Rights

This leads us to the perception that, despite the fundamental character of the right to equal treatment, there might be conflicting human rights and that therefore, a balance has to be sought, and legitimate reasons have to be found if other human rights are restricted in favour of equal treatment. I should stress here that I use the terms ‘non-discrimination’, ‘equal ‘Drittwirkung der Grundfreiheiten – Das EuGH-Urteil Angonese’ (2000) Recht der internationalen Wirtschaft 389 at 393. Against, see R Streinz and S Leible, ‘Die unmittelbare Drittwirkung von Grundfreiheiten’ (2000) Europäische Zeitschrift für Wirtschaftsrecht 459; B Remmert, ‘Grundfreiheiten und Privatrechtsordnung’ (2003) Juristische Ausbildung 13; Canaris (n 17) 42ff. It has been emphasised that the reasons for justifying different treatment according to the Treaty – namely public order, security and health – can hardly be applied to private actors (Canaris (n 17) 42, Schweitzer (n 21) 532; LO Michaelis, ‘Unmittelbare Drittwirkung der Grundfreiheiten – Zum Fall Angonese’ (2001) Neue Juristische Wochenschrift 1841 at 1842); the same might apply with regard to the justification of different treatment of men and women under Directive 2004/113/EC, Art 4 (5) – ‘legitimate aim and the means of achieving that aim are appropriate and necessary’. 22 Wiedemann and Thüsing (n 6) 463 at 464. 23 T Bezzenberger, ‘Ethnische Diskriminierung, Gleichheit und Sittenordnung im bürgerlichen Recht’ (1996) 196 Archiv für die civilistische Praxis 395ff; Nickel (n 17) 154 (arguing for a more efficient protection against discrimination); Schiek (n 11) 265.

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treatment’, ‘equal protection’, ‘equal rights’, and ‘equal positions’ synonymously, even though there are slight differences between them.24 I think this is acceptable as we are discussing issues that are inherently hard to define – as already mentioned earlier by Hans Nieuwenhuis. The right to non-discrimination may conflict with the freedom of speech and of the press. This is especially true if we look at criteria like religion, ideology or political opinions: I must be able to combat political opinions or questions of persuasiveness of a religion, and I may even be allowed to say that women are better/more intelligent/nicer/friendlier than men – or the other way round. Of course, there are always limitations to the freedom of speech, especially when it comes to race. Statements which could be classified as inciting hatred against national, ethnic or religious groups (Volksverhetzung) are not covered by the fundamental right of freedom of speech and can constitute a criminal offence, because they infringe the fundamental right to human dignity which enjoys an overriding protection. But such increased protection cannot be accorded to all criteria, not even to sex. Therefore, the exclusion of media and advertising from the application of the Equal Treatment in Access to Goods and Services Directive25 may have some legitimate aspects, though, in fact, the main reason might be the pressure and lobbying from the media and business interests.26 Another conflicting human right might be the freedom of religion. Religious beliefs or customs may require unequal treatment of persons with regard to certain criteria and situations. This problem is taken care of by accepting different treatment as legitimated by reasons of religion – at least to a certain extent. Consequently, the freedom of religion, in fact, prevails in most conflicts, although there are many problems of interpretation and delineation. The right not to be discriminated against may – depending on the circumstances – be viewed as one aspect of the right to personality or personhood, though not every act of discrimination is a violation of this right.27 Even if this were the case, however, there could be a clash with a personality or privacy right of the discriminator, eg his right to act within the legal system as he pleases or to act in a way which does not satisfy (high) moral standards or which appears to be foolish. As Lorenz Fastrich has already pointed out, this freedom is regarded as a very essential and fundamental right, and it includes the right not to explain or legitimise one’s own acts. The freedom of contract is one aspect of this right, and therefore, we shall deal with it in greater detail.

24 25 26 27

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A.

FREEDOM OF CONTRACT

Its Sources and Its Various Aspects

Whereas in English law, it is said that the decline of the freedom of contract had already begun during the last third of the 19th century,28 the German Civil Code of 1900 was influenced by the laissez faire approach, and freedom of contract was the overriding principle. Of course, there were some restrictions and other values in contract theory.29 I shall deal with these in a moment. But still, freedom of contract is the basic principle of German contract law. This freedom is emphasised for our topic not so much under the idea that contracts are based on mutual agreement, but the idea stressed here is that a contract is a result of free choice, unhampered by external control.30 German doctrine thereby distinguishes between the freedom to enter into a contract (Abschlussfreiheit) and the freedom to choose and to shape the conditions and the content of the contract (Inhaltsfreiheit). The freedom to enter into a contract implies the right to decide whether or not to contract as well as the right to choose the contracting partner (Kontrahentenwahlfreiheit).31 It also comprises the right not to give any reason for the choices and for the contractual decisions made. The freedom to shape the conditions of the contract includes the right to conclude an unfavourable or silly agreement. Private autonomy is the principle that allows arbitrary, random decisions of the individual.32 Private autonomy enjoys constitutional protection as it is part of the general freedom of action and the general protection of personhood (Article 2(1) of the German Constitution), which are also protected by European law.33 The latter, however, is mainly limited to the private and family sphere.34 Therefore, the legislature and courts may restrict these freedoms only for legitimate reasons.35

28 PS Atiyah, An Introduction to the Law of Contract (5th edn) (Oxford, Clarendon Press 1995) 15 ff. Today it is said to be accepted as a social ideal only to the extent that equal bargaining powers between contracting parties can be assumed, J Beatson, Anson’s Law of Contract (28th edn) (Oxford, Oxford University Press 2002) 4. 29 F Bydlinski, ‘Zu den dogmatischen Grundfragen des Kontrahierungszwanges’ (1980) 180 Archiv für die civilistische Praxis 1 at 9. 30 Atiyah (n 28) 9. 31 Busche (n 17) 69; see also RA Epstein, ‘Contracts Small and Contract Large: Contract Law’ in FH Buckley (ed), The Fall and Rise of Freedom of Contract (Durham, Duke University Press 1999) 25 at 60 (making exceptions for monopolies). 32 Bydlinski (n 29) 32. 33 Art 7 European Charter of Fundamental Rights and Art 8 ECHR. 34 B Schöbener and F Stork, ‘Anti-Diskriminierungsregelungen der Europäischen Union im Zivilrecht – zur Bedeutung der Vertragsfreiheit und des Rechts auf Privatleben’ (2004) Zeitschrift für europarechtliche Studien 45 at 58. 35 For details, see Busche (n 17) 22 ff, 46 ff; Neuner (n 17) 223; C-W Canaris, ‘Verstöße gegen das verfassungsrechtliche Übermaßverbot im Recht der Geschäftsfähigkeit und im

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Its Limitations and Their Justification

The German Civil Code of 1900 already provided for some limitations on the freedom of contract. These were mainly rules on legal capacity and a few mandatory rules concerning the conditions of certain contracts; there were few formal requirements.36 A few of these restrictions had a slightly paternalistic flavour, as they aimed at protecting the individual; some restrictions stand for other values of contract law, like protection of reliance interests, of contract fidelity and of trade and commerce.37 In addition, contracts are void if they contravene statutory prohibitions (§134 of the German Civil Code) or if they violate public policy (§138 of the German Civil Code). The courts at a very early stage also recognised a duty to contract (Kontrahierungszwang) in certain situations. This duty to contract was and still is regarded as an especially sharp inroad into the freedom of contract and is therefore limited to extreme circumstances. It is still the subject of theoretical studies that try to explain and justify why and how a duty to contract can be reconciled with the principle of the freedom of contract.38 Though there have been discussions on further restrictions of the freedom of contract from the beginning,39 it has only been since the middle of the 20th century that the trend has swung further away from economic liberalism – mainly because of the fear that without restrictions the freedom might erode through the choice of a weaker contractual partner and that the principle might thus work in a self-destructive way. This idea above all gave way to a number of rules restricting the freedom to shape the contract at will.40 There have been many theories of the legitimation of these restrictions.41 The dominant view is that the freedom to shape the contract may be, or even must be, restricted if the course of dealing does not guarantee that each party has a fair chance to pursue his or her own interests, ie where the so-called Richtigkeitsgewähr (guarantee of fairness) of the mechanism is missing,42 where unequal bargaining positions invite the dictation of the conditions of the contract by one side. These ideas have

Schadensersatzrecht’ (1987) Juristenzeitung 993 at 994; against: W Höfling, Vertragsfreiheit. Eine grundrechtsdogmatische Studie (Heidelberg, C F Müller 1999) 20. 36 The necessity of judicial assent only exists with regard to certain contractual transactions in family law; administrative permits are only necessary if the contract concerns public rights. 37 Bydlinski (n 29) 7; see also D Coester-Waltjen, ‘Die Inhaltskontrolle von Verträgen außerhalb des AGBG’ (1990) 190 Archiv für die civilistische Praxis 1, 3. 38 Bydlinski (n 29) 1; Busche (n 17); Neuner (n 17) 239ff. 39 See W Schmidt-Rimpler, ‘Grundfragen einer Erneuerung des Vertragsrechts’ (1947) 147 Archiv für die civilistische Praxis 130 at 157; L Raiser, Das Recht der Allgemeinen Geschäftsbedingungen (1935, unchanged new edition Bad Homburg, Gentner 1961). 40 J Busche (n 17) 105. 41 For details, see: J Busche (n 17) 74 ff; L Fastrich, Richterliche Inhaltskontrolle im Privatrecht (München, Beck 1992) 29ff. 42 Schmidt-Rimpler (n 39) at 157; Fastrich (n 41) 215ff; Coester-Waltjen (n 37) 14.

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paved the way for consumer protection, for the decision mentioned by Lorenz Fastrich on contracts of surety, and most recently on judicial review of prenuptial and postnuptial contracts.

C.

Freedom of Contract and Equal Treatment

Against this background, a restriction on freedom of contract by the principle of equal treatment causes some problems, because rules on the choice of the contracting partner and – in case of any complaint – the duty to justify a decision for choosing another partner go to the very heart of this freedom.43 It is not convincing that the Equal Treatment in Access to Goods and Services states in Article 3(2): This Directive does not prejudice the individual’s freedom to choose a contractual partner as long as an individual’s choice of contractual partner is not based on that person’s sex.

If freedom means that a person may act at will and may make decisions based on his or her personal preferences, any restriction on the choice of a partner is an inroad to that freedom. Thus, the directive requires an intrusion into the freedom of the individual. This intrusion might also have effects on the freedom of speech, because any statement of an individual concerning the role of the sexes may be held against this individual in the case of a complaint.44 The duty of equal treatment is the logical negation of private autonomy. Therefore, it cannot explain under which circumstances private autonomy is to be restricted and under which it is not.45 How then can an intrusion and its limitations to freedom of contract be justified? Other principles of contract – like reliance interests, contractual fidelity and even the so-called Richtigkeitsgewähr – do not help in this respect. We might take a look again at the significance of equal treatment. Chris McCrudden has laid down different conceptions for the understanding and functioning of equal treatment.46 Inter alia, he mentioned the protection from disadvantages because of status. This aspect seems to be worthy of consideration: equal treatment of all members of society and the nonexclusion of certain groups of people is a legitimate and necessary goal of

43

Säcker (n 12) 288. This aspect is almost ignored by Baer (n 12) 293 even though she mentions the role of motivation; particularly, she fails to consider the implications of indirect discrimination. 45 Bydlinski (n 29) 33. For a critical analysis, see Schiek (n 11) 303; Neuner (n 17) 239 (who argues for a duty to contract but has intentional discrimination in mind); B Schöbener and Stork (n 34) 60, 64 (reluctant with regard to the Directive 2004/1113/EC). 46 C McCrudden, ‘Das neue Konzept der Gleichstellung’, at http://www.era.int/www/ gen/f_ 14225_file_de.pdf. 44

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modern legal systems and a prerequisite for social peace.47 These goals may also affect the position of individuals. First, as far as unequal treatment infringes the system of ethical values to such an extent that this behaviour has to be classified not only as below normal moral standards but as against public policy, a restriction of the personal freedom of the individual is justified. In German law prior to the new Act of 2006 (AGG), §138 of the German Civil Code enables the parties to take these aspects into consideration: according to the prevailing opinion, discrimination is unbearable where unequal treatment based on sex or ethnical origin is at stake. Discrimination based on other criteria, however, does not – at least not in general – contravene public policy.48 Second, outside the restriction for public policy reasons, we have to look for other justifications for whether a duty to contract should prevail over personal preferences. The law of contract is not – at least not primarily – concerned with matters of distributive justice.49 However, if the function of the system of contract law is disturbed, corrections will be necessary and justified, because otherwise – as pointed out earlier – the private autonomy of the weaker contractual party might be eroded. Thus, if mutual dependency of interests of potential parties to a contract is missing, the contractual system might not function. Therefore, for example, competition law provides for a duty of equal treatment for market-dominating enterprises. They are subject to a duty not to discriminate and not to boycott and, therefore, to a duty to contract (§§20, 21 of the Gesetz gegen Wettbewerbsbeschränkungen (Competition Act); Articles 81, 82 of the EC Treaty).50 The same idea can be applied to duties of equal treatment in other areas. As competition law ensures the functioning of the market and free competition by prohibiting unequal treatment of market-dominating companies,51 equal treatment in other areas should combat the exclusion of certain groups of persons and ensure the functioning of society and social peace.52 But this cannot apply without qualification. As in competition law where only market-dominating businesses are subject to the duty of equal

47

Schiek (n 11) 23. Bezzenberger (n 23) 395; Canaris (n 17) 25. 49 Atiyah (n 28) 15; Canaris (n 17) 30, 47; C-W Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht (München, Verlag der Bayerischen Akademie der Wissenschaften 1997) 46; contract law is mostly concerned with corrective justice (iustitia commutativa – ausgleichende Gerechtigkeit) and dominated by the principles volenti non fit iniuria and stat pro ratione voluntas; but see also Coester (supra n 17); Schiek (n 11) 311-315 infers from a swing (from formal) towards substantive justice that contract law also aims at distributive justice and therefore requires equal treatment of potential contracting partners; Schiek justifies this approach by pre-contractual duties derived from this notion of justices (357). 50 For details, see Busche (n 17) 402 ff; see also Schiek (n 11) 303. 51 Busche (n 17) 402. 52 See also Nickel (n 17) 183. 48

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treatment, a line also has to be drawn in other areas. This line depends on the needs of society and social peace. Social peace is endangered if persons with certain characteristics are excluded from buying in certain shops, seeking accommodation in certain hotels, being served in certain restaurants, and so on – all typical situations where the goods and services are available to the public at large. But social peace is not endangered if a person sells his puppy, his car or even his home to a party of his preference – possibly because of his sex, religion, age or other characteristics. This might still be the case even though the sale was advertised in a newspaper. On the contrary, social peace might be endangered if such contracts were subjected to strict scrutiny with regard to the choice of contracting partner, especially if we take into account possible misuses, false accusations and lawyers hunting for fees. Thus, equal treatment of potential customers should be required only if goods and services are made available to the public commercially and professionally on the basis of mass transactions. The principle might also have to be respected in employment matters and possibly in certain situations concerning housing, because these areas require special scrutiny by the public as they affect essential and vital areas.53 But this principle should not apply to someone who – according to the European definition – acts as a consumer. The different treatment of commercially and professionally acting persons on the one hand, and those acting neither commercially nor professionally (a consumer according to the European definition) on the other hand, can be justified because someone who professionally offers services or goods to the public avails himself of the market and of the interests of society far more than a layperson who offers a good or a service, even if the layperson advertises his offers. Therefore, the professional can be held responsible for societal values to a far greater extent. It must be conceded, however, that the new German Act of 2006 (AGG) has drawn the line differently (§19 sec 1 AGG): not the professional status of a contracting party is relevant, but the impersonal mass character of the transaction.

IV.

NEW CONCEPTS OF JUSTICE: SOCIAL JUSTICE, SUBSTANTIVE JUSTICE, JUSTICE WITH A REGULATORY FACE

These thoughts might give rise to the question whether we are moving or should move further to a new concept of justice. Social justice is a key word in the debate. Another key issue is the movement from formal to substantive justice (materiale Gerechtigkeit).54 53

Nickel (n 17) 182; Fastrich (n 41) 110ff, 159ff. C-W Canaris, ‘Wandlungen des Schuldvertragsrechts – Tendenzen zu seiner “Materialisierung”’ (2000) 200 Archiv für die civilistische Praxis 275 at 277, 300 (stressing, inter alia, 54

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I do not doubt that these theories relate to a number of interesting and convincing aspects. Neither do I doubt that the European society should engage actively in fighting discrimination effectively and in including more criteria. But this should be done by obliging public bodies as well as – to a certain extent – the business world to act accordingly. There should be information and education on these matters, but these activities should not intrude into personal decisions. I think the directive and the implementing German AGG go one step too far and therefore should be interpreted – as far as possible – very narrowly. This could be done, for example, by presuming that private persons – even if they invite offers publicly via the internet or advertisement in a newspaper – do not want to enter into a contract ‘irrespective of the person concerned’. The exception for transactions in private and family life, in contrast, should be interpreted as widely as possible. This advice does not conform to the principles that the European Court of Justice has laid down in the area of discrimination so far, but it might allow a reasonable application and implementation of the directive in the future. This approach should also be followed if further directives on other criteria are drafted. Otherwise, equal treatment for all might result in justice not with a human, but with a regulatory, face, or in summum ius, summa iniuria.

the differences between legal and factual freedom and the fact that an intrusion into the formal autonomy of one party might at the same time be the protection of the substantive autonomy of the other; thus a balance between Übermaßverbot and Untermaßverbot has to be sought); Schiek (n 11) 305; see also L Fastrich, ‘Gleichbehandlung und Gleichstellung’ (2000) Recht der Arbeit 65 at 67.

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11 Protection of Employees’ Individual Rights in the Employer-Employee Relationship MICHAEL COESTER

I.

INTRODUCTION

S

ETTING ASIDE THAT every citizen’s individual rights are restricted in many ways in a modern society, these restrictions are particularly apparent to an employee in an employer-employee relationship. An important difference exists between an employment contract and other contracts creating obligations, such as a sales contract: the employment contract is not fulfilled in a single and not even in a repeated exchange of goods and/or services, but rather the employee with his or her individual rights submits him- or herself to the organisational and jurisdictional control of the employer, spending significant portions of his or her active life ‘on the job’. As a result, the employee is not only subject to the employer’s influence with respect to his or her work, but also with respect to his or her physical and mental well-being, giving rise to a need to be protected. Accordingly, in Germany, one speaks less of an employment contract and more of an employer-employee relationship that is composed of a complex bundle of mutual rights and duties, especially those directed towards welfare and loyalty. These characteristics of the employer-employee relationship were known before the creation of the German Civil Code (Bürgerliches Gesetzbuch, BGB),1 but were not originally included in the Code. Only a few worker safety provisions (§§618, 619 German Civil Code) were included. Significant steps towards the general protection of individual rights in the employer-employee relationship were first realised against the backdrop of the Second World War through the Constitution of 1949 (Grundgesetz or 1 See J Kohler, ‘Das Recht an Briefen’ (1893) 7 Archiv für Bürgerliches Recht 94 at 101; OF von Gierke, Deutsches Privatrecht (Leipzig, Duncker & Humblot Verlag 1895) vol 1 p 707, vol 3 p 887.

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Basic Law), which created a value system through its comprehensive catalogue of fundamental rights and liberties that are applicable to the entire German social welfare system. Changes in statutory employment law were not immediate, and it was primarily the decisions of the Federal Labour Court (Bundesarbeitsgericht), beginning in the 1950s that drew casuistic conclusions from the constitutional value system for the protection of individual rights in the employer-employee relationship.2 The protection of employees’ individual rights in the employer-employee relationship has been defined and improved over the decades.

II.

LEGAL FUNDAMENTALS

Let me briefly summarise the legal fundamentals underlying employees’ rights. 1. It is characteristic of German law that it pursues the protection of workers’ rights with a dual approach: a)

b)

It hands over to collective autonomy most decisions which concern what is going on at the workplace – co-determination by the works council (Betriebsverfassungsgesetz or Works Constitution Act 1972). Fundamental personality rights are protected by the courts against infringement by the employer and by parties to a collective agreement, that is agreements between the employer and the works council have to respect the personal rights and dignity of the employees (§75 Works Constitution Act 1972).

2. Constitutional personality rights are primarily designed to protect the individual against state action. They do not have direct effect between private parties, but they influence the interpretation of civil law and – thereby – exert indirect influence. According to German doctrine, the Constitution implies a duty on all state agencies (including the courts) to enforce the effectiveness of fundamental values contained in the Constitution even in the case of disputes between private individuals.

2 In coordination with and parallel to the development of general individual rights through the Federal Court of Justice 13 Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ) 334 at 338; 24 BGHZ 72 at 76; 27 BGHZ 284 at 286 and the Federal Constitutional Court; influential also H Hubmann, Das Persönlichkeitsrecht (2nd edn) (Köln, Böhlau Verlag 1967); cf W Blomeyer, in R Richardi and O Wlotzke (eds), Münchener Handbuch zum Arbeitsrecht vol 1 (2nd edn) (München, Beck Verlag 2000) §97 para 1ff; T Dieterich, in T Dieterich, R Müller-Glöge, U Preis and HCG Schaub (eds), Erfurter Kommentar zum Arbeitsrecht (5th edn) (München, Beck Verlag 2005) Art 2 Grundgesetz, para 76.

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3. This influence forms the basis of an implied duty of the employer arising from the employment contract to respect and protect the personality rights of his employees. This duty is justified by the superior bargaining power of the employer and the fact that he controls the organisation of work and the whole labour process. 4. The personality rights of an individual employee have limits. These are marked by the necessities of the job, for example wearing a uniform or not smoking, or by conflicting individual rights of other employees – as an example, the conflict between smokers and non-smokers at the workplace. In general, it is assumed that the employee consented to such restrictions by signing the employment contract. 5. This could lead to the conclusion that the protection of individual rights can be waived by contract. There are, however, limits to such contractual freedom: first, the employee cannot validly waive the protection of his fundamental rights like honour or dignity. For example, an agreement about comprehensive and uninterrupted supervision of the employee through closed-circuit television would be contrary to public policy and therefore be void. Second, if the employment contract was pre-formulated by the employer – which is the case in more than 95 per cent of all employment contracts – such standard contract terms are now, since the law reform of 2002, subject to judicial review with regard to their fairness (§310(4) German Civil Code). The standard of fairness allows much more intensive control than the standard of public policy.

II.

EXAMPLES OF THE PROTECTION OF INDIVIDUAL RIGHTS IN THE EMPLOYER-EMPLOYEE RELATIONSHIP

A. Employer’s Right to Question and Employee’s Duty to Inform Prior to Employment The employer may not use the opportunity of an interview to investigate the applicant’s personal relationships. An employer may only ask questions that are directly related to the position offered, for example education, skills, experience and existing medical conditions. As a result, questions that bear no relationship to the position, such as questions about political convictions, leisure activities and family planning, are not permissible. Questions about willingness to move to another domestic location or to a foreign country are permissible. Prior criminal convictions may be inquired into as long as they are related to the job (for example, offences against property for payroll clerks and cashiers). If the employer poses an impermissible question, the applicant need not limit him- or herself to refusing to answer the question as this would be disadvantageous for him or her. Rather he or she has the ‘right to lie’, that

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is, he or she may tell an untruth, and the employer may not challenge the employment contract later based on such misrepresentation.3

B.

Expert Opinions and Examinations

An employer may inquire into an applicant’s personal relationships not only within the framework of an interview, but also during an ongoing employer-employee relationship and through methods other than direct questioning. Examples of this are medical examinations before the commencement of employment, psychological tests, handwriting expert opinions or – and most recently – genome analysis.4 Information acquired through such examinations may be relevant to the position, but they intrude deeply into the private sphere of the applicant. Because of the potential injury to the applicant’s private sphere, all such examinations must always be balanced and justified against the employee’s general individual rights.5

C.

Monitoring at the Workplace

The employer’s legitimate interest in monitoring the performance of his or her employees is indisputable. In addition, monitoring can also be justified by reasons of security and order in the business. Such monitoring can be conducted through closed-circuit television, through listening to conversations in the office, through intercepting or recording employees’ telephone conversations, through monitoring emails or through entrance and exit controls at the gate to the company grounds. Such monitoring measures may also intrude upon the individual rights of employees, such as the constitutionally protected ‘right to one’s image’6 or the ‘right to one’s own speech’, that is, the authority to control whether the only recipient of the spoken word is the partner of the conversation or also a third party, or whether the spoken word is even made accessible to the public or recorded on tape.7 In addition, intrusion into the private sphere 3 Federal Labour Court (2003) Neue Zeitschrift für Arbeitsrecht (NZA) 717; W Blomeyer, in R Richardi and O Wlotzke (eds), Münchener Handbuch zum Arbeitsrecht vol 1 (2nd edn) (München, Beck Verlag 2000) §97 para 23. 4 B Buchner, ‘Die Genomanalyse im Arbeits- und Versicherungsrecht’ (2004) Jahrbuch junger Zivilrechtswissenschaftler 313. 5 Federal Constitutional Court (1993) Neue Juristische Wochenschrift (NJW) 2365. 6 Federal Constitutional Court Arbeitsrechtliche Praxis (AP) §611 BGB (Persönlichkeitsrecht) no 34; Federal Court of Justice (1995) NJW 1955. 7 Federal Constitutional Court (1992) NZA 307; Federal Labour Court (1988) NZA 307.

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Protection of Employees’ Individual Rights 137 can be implicated through body searches at gate controls. Employer monitoring measures may, however, be limited by the individual rights of the employee.8

D.

Data Protection

In the course of the employer-employee relationship, the employer necessarily learns a great deal of information about the employee. The employer is, however, not free to use that information. Individual rights include an employee’s ‘right to informational self-determination’, the codification of which can be found in the Federal Data Protection Act (Bundesdatenschutzgesetz). Pursuant to that law, an employer may only systematically collect and use employee information and/or transmit it to third parties if the employee consents. Hence, for example, at the conclusion of the application process the application materials are to be returned, saved applicant data is to be deleted and the personal questionnaire of an applicant not hired is to be destroyed.9 An employer may neither show the employment contract nor the application for personal credit to another employer to whom the employee has applied.10

E. i

Protection of Employee’s’ Personal Integrity and Individual Liberties Protection of Employees’ Honour

The employee’s honour, as part of his or her individual rights, must be respected by the employer. This is also true in case of conflict between the employer and the employee. An employee’s honour, for example, can be injured through derogatory comments made in front of other personnel, by monitoring of only that employee or through sexual harassment.11 It was also found to violate an employee’s honour where the employer publicly referred to an employee as the ‘laziest worker in Germany’ in a newspaper advertisement.12

8

Very instructive is the recent decision of the Federal Labour Court (2004) NZA 1278. P Gola, ‘Die Entwicklung des Datenschutzrechts im Jahre 1995/96’ (1996) NJW 3312 at 3316. 10 Federal Labour Court (1986) NJW 341. 11 See section E.iii below; see generally T Dieterich, in T Dieterich, R Müller-Glöge, U Preis and HCG Schaub (eds), Erfurter Kommentar zum Arbeitsrecht (5th edn) (München, Beck Verlag 2005) Art 2 Grundgesetz para 85. 12 Labour Court of Appeals Berlin (1998) Neue Zeitschrift für Arbeitsrecht – Rechtsprechungsreport (NZA-RR) 488. 9

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Protection of Individual Rights

Personal liberties against the state guaranteed by the Constitution, such as freedom of religion and conscience (Article 4 of the Basic Law), speech (Article 5 of the Basic Law), choice of an occupation (Article 12 of the Basic Law) and to marry and to found a family (Article 6 of the Basic Law), may also not be infringed upon by the employer without a compelling reason. As a general rule, for example, an employer cannot force an employee to perform a task or follow a rule, such as a dress code, that violates his or her convictions or religious beliefs. iii

Protection against Harassment

Pursuant to the Act for the Protection of the Employed (Beschäftigtenschutzgesetz) of 1994, an employer is not only prohibited from sexually harassing an employee but must also take action against sexual harassment by colleagues. Should the employer not fulfil this duty, the harassed employee has a right to refuse performance, that is, he or she can stop working but retains a claim to full wages (§4(2) Act for the Protection of the Employed).13 Although not regulated by statute, courts have applied this standard to cases of ‘mobbing’ as well.14

IV.

CONCLUSION

The protection of individual rights in Germany is structured both to give effect to and to protect the basic human rights of every person in the employer-employee relationship. In its application, the protection of individual rights is the reflection of a highly developed social state, the standards of which have proven to be partially unsustainable in the face of the modern global economy and the struggle to remain competitive as a place of employment, industry and commerce. At the same time, it must be considered that actual working conditions are not always as sensitive and considerate as the theoretical legal discussion or model court cases. A further point to note is that the protection of individual rights is, nevertheless, indispensable in a social order that places human dignity at the apex of its value system. The basic value of human dignity cannot simply disappear by virtue of an individual entering into an employeremployee relationship. One does not cease to be a person with a right to 13 For a discussion of this Act, see M Schlachter, in T Dieterich, R Müller-Glöge, U Preis and HCG Schaub (eds), Erfurter Kommentar zum Arbeitsrecht (5th edn) (München, Beck Verlag 2005) and W Blomeyer, in R Richardi and O Wlotzke (eds), Münchener Handbuch zum Arbeitsrecht (2nd edn) (München, Beck Verlag 2000) §53 paras 20ff. 14 See Federal Labour Court (1996) NZA 873; Labour Court of Appeal Berlin (1998) NZA-RR 442; Labour Court Siegburg (1994) NZA 698.

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human dignity merely because of working for another. Concessions as to the necessities of the working life must surely be made and are accepted by all, but a disproportionate sacrifice of the protection of individual rights is neither justified nor does the business benefit from it. The protection of individual rights in conformity with the Constitution in the employeremployee relationship also has advantages for the individual business and the German labour market in general. Low wages are not the only criterion in international competition and are only decisive with low-level work. Content, self-confident employees, who are well-educated and assume independent responsibility, are a valuable commodity for a business. In addition to labour costs, the quality of the work and loyalty of the employees are also important criteria in an employment relationship. In addition, the personal contentment of the employee can lead to social satisfaction in the working environment and to a willingness to cooperate with other employees that can be an important factor in solving problems in times of crisis.

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12 Privacy, Employment and the Human Rights Act 1998 MARK FREEDLAND

I.

INTRODUCTION – PRIVACY AND NON-PRIVACY IN THE EMPLOYMENT SPHERE

T

HE OBJECT OF this chapter is to provide a brief English1 comparative counterpart to Professor Coester’s study2 of the protection of employee individual rights in the employer-employee relationship in German law. As that study shows, the employment relationship is one of the most significant locations in which issues of privacy or respect for private life arise. There is a real sense in which one of the defining dimensions of private life is that in which it is distinguished from the world of work – ‘my private life outside my working life’. Moreover, if employment is a specially interesting location for discussion of the right to privacy, so also is English law a specially interesting jurisdiction on which to focus a comparative inquiry. This introduction will explain the analysis or methodology by or on the basis of which we shall conduct that inquiry. First let me offer a word of explanation about why employment law is a specially interesting location, and English law a specially interesting jurisdiction, upon which to focus a discussion of the development of the right to privacy. The interest of the location results from the way in which employment law embodies a particularly sharp and direct confrontation between on the one hand claims to privacy and respect for private life and on the other hand countervailing claims of various sorts, such as those of managerial effectiveness and transparency in the provision of services to or affecting the public. The interest of the jurisdiction consists particularly in the dramatic transition to a system of legislatively enacted fundamental 1 This chapter concerns itself with English law in the sense of the law applying in England and Wales. Generally speaking the same or very similar legal doctrines and rules will be applicable elsewhere in the United Kingdom, but there may be particular variations which are not reflected in this chapter. 2 See above, ch 11.

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rights which was effected by the Human Rights 1998, incorporating into English law a set of the main articles of the European Convention on Human Rights. The question has been whether that would produce a significant re-balancing of employment law in the shape of a new or enhanced recognition of a right of privacy in the employment sphere, with a corresponding downgrading of the countervailing claims to managerial effectiveness and transparency in the provision of services. This chapter will argue that there is no clear answer to that question, for the important reason that the question is itself posed in too simple a form to generate an illuminating answer. This is true in two respects; first, because it does not do justice to the complexity of the two sets of claims which are opposed to each other or at least in tension with each other; and second, because there are various different states of relative development of the two rival sets of claims or interests, so that there is no simple see-saw movement between them. In order to explain these complexities more fully, it will be useful to designate the two rival sets of claims or interests as those of ‘privacy’ and of ‘non-privacy’. A straightforward and relatively uncomplicated analysis of the development of the law of privacy in employment in any given legal system might proceed in the following way. It would identify the worker’s claim to privacy and accord a single definition to it; it would equally identify and define the employer’s countervailing claim to limit the worker’s privacy. It would then proceed to assess the extent to which, in a given legal system, the worker’s claim to privacy is either accorded primacy over or subordinated to the employer’s countervailing claim to non-privacy in work relations. My argument consists of proposing a method of assessment which is more complex, first by breaking up the two rival sets of claims for and against the privacy of workers, and second by depicting more elaborate states of play between the two sets of claims than that of simple ascendancy of the one over the other. This chapter then seeks to apply that method of assessment to the recent and current development of privacy in employment in English law and regulatory practice. I should emphasise at the outset that I am not thinking of this path as one which nobody has previously thought to tread. On the contrary, there is a body of writing which already provides a detailed and sophisticated treatment of this topic. I have in mind especially the relevant writings of John Craig,3 Michael Ford4 and Hazel Oliver.5 This paper

3 JDR Craig, Privacy in Employment Law (Oxford and Portland Oregon, Hart Publishing 1999). 4 M Ford, ‘Two Conceptions of Worker Privacy’ (2002) 31 Industrial Law Journal (ILJ) 135. This article is a development of the author’s earlier study, Surveillance and Privacy at Work (London, Institute of Employment Rights 1998). That author has very graciously allowed me also to refer to his paper on ‘Privacy at Work’ given at the Annual Conference of the Industrial Law Society in September 2005.

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offers no more than a minor re-drawing in certain respects of the map which their contributions have between them established.

II.

THE RIVAL CLAIMS ANALYSED

In this section I refer to the analysis of the rival claims, that is to say the claims to privacy and to non-privacy in employment relations, which John Craig has conducted, and I suggest a particular way of building upon it. Craig, in common with the other writers whom I have mentioned, is at pains, quite rightly in my view, to stress the difficulty of a single definition of the claim to privacy or respect for private life in employment relations.6 Instead, and more usefully than if he had attempted such a definition, he identifies a set of private interests at stake in the workplace context.7 Beginning with the interests in privacy, he goes on to identify the countervailing interests which I have styled as the non-privacy interests.8 Craig’s catalogue of interests in privacy is compiled first by adopting the notion of three ‘zones of privacy’ – territorial, personal/corporeal and informational – which has been proposed and has found favour with the Supreme Court in Canada,9 and by identifying specific worker interests in privacy within those zones. Upon that he superimposes a set of ‘values’ or goods which are promoted by the protection of privacy in the workplace, namely those of (1) autonomy, (2) dignity and well-being, (3) healthy relationships, and (4) pluralism.10 Against those he counterpoises a set of ‘interests of employers and the public which may justify limiting worker privacy, namely (1) improving economic conditions, (2) deterring and controlling employee abuse of the employment relationship, (3) complying with state-imposed regulatory requirements, and (4) promoting the public interest’.11 This is an analysis which serves well, but I think that for the most effective understanding and shaping of the way in which English law at least is developing with regard to privacy in employment relations, some further grouping or sub-dividing of each of the two rival sets of interests might be useful. In different ways, the two sets of interests, in privacy and in non-privacy respectively, could each be divided into two groups or aspects. These groups or aspects would not be mutually exclusive, but

5 H Oliver, ‘E-mail and Internet Monitoring in the Workplace: Information Privacy and Contracting –Out’ (2002) 31 ILJ 321. 6 See Craig (n 3) at 9-12; Ford (n 4) at 138-9; Oliver (n 5) at 322-4. 7 Craig (n 3) at 15-26. 8 Craig (n 3) at 26-33. 9 See Craig (n 3) at 15 n 67. 10 Craig (n 3) at 20-5. 11 Craig (n 3) at 26-33.

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distinguishing between them would clarify some important features in the development of the confrontation between privacy and non-privacy in the workplace. It may be useful to think of rights or claims to privacy in employment relations as being of two types: (a) (b)

rights or claims to privacy strictly so called; and rights or claims to respect for private life in a broader sense.

In the first group would fall those claims which are concerned with seclusion, and the importance to the individual worker of being non-visible in various respects. In the second group would come those claims which are more in the nature of assertions of personal autonomy and freedom to live out one’s own choice of lifestyle and behaviour in a more general sense. The drawing of that distinction, even accepting that it is a permeable or porous one, helps to sharpen our sense that there are at least two rather different discourses about the claims to privacy and private life. The discourse of privacy strictly so-called is one which is about seclusion, and is closely related to notions of the claim to free enjoyment of rights of property, and of rights to bodily integrity; it is bound up with my claim to exclude others from my physical space. The discourse of respect for private life, on the other hand, has much more to do with autonomy and individuality in an abstract sense. It depends much less on a notion of private space; indeed, it frequently involves a claim to manifest choices or preferences integral to one’s private life, but publicly or in a public space. Thus I might claim that respect for my private life involves allowing me to smoke, or on the contrary forbidding others to smoke, in a space which I share with others. Although in one sense expressions of individuality, such claims are more likely to be perceived or advanced as ones shared among groups of people, and hence akin to some claims against discrimination. Thus I might claim that respect for my private life involved upholding my right to wear a turban at work as a member of the Sikh community. This study of the two discourses may help us to understand better the way in which the law and practice develops with regard to these claims. It might do so even better when combined with a certain, perhaps slightly parallel, distinction between two broad types of claims or interests in non-privacy in employment relations: (a) (b)

claims to restrict privacy in the interest of managerial prerogative or effectiveness; and claims to restrict privacy in the interest of transparency to the public of the conduct of the enterprise and its workers.

It should be noted that, as with the privacy claims, the first type is much more akin to claims to free enjoyment of property and to freedom of contract. The second type of claim against worker privacy is not strongly

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linked to the notion of managerial ownership and rights; these may be claims which do not belong to the management of the employing enterprise at all, but rather to third parties, citizens, or the public at large. Indeed, managers may share with workers an interest in resisting such claims. How may we make use of these groupings? Perhaps by tentatively suggesting that there is some general tendency for employment law systems to evolve from the first type of discourse towards the second type of discourse both in the case of privacy claims and countervailing non-privacy claims. However, any such conclusion would have to be placed in the context of a more general understanding of the paths of development of particular employment law systems with regard to rights to privacy and respect for private life; it is towards establishing a framework for that more general understanding that we turn our attention in the next section.

III.

THE MODELS OF DEVELOPMENT IDENTIFIED

I have indicated an intention to suggest slight modifications to the existing account, given in the relevant literature, of the state and evolution of the law of privacy in the employment relation. Having in the previous section suggested some means of analysing the claims to and against privacy in that relation, in this section I put forward a possible scheme for identifying the variety of paths of development which different employment law systems may take or follow in the way that they handle or give effect to those competing claims. I take as my point of departure the notion of two contrasting conceptions of worker privacy very valuably put forward by Michael Ford, and, at some risk of over-elaboration, I propose, on the basis of it, the idea of four alternative paths or models of development in this particular and dynamic area of employment and human rights law. Ford’s two diverse conceptions of worker privacy are derived from the case law of the European Court of Human Rights which applies Article 8 of the European Convention on Human Rights to the employment relationship. One is associated with the decision in Niemietz v Germany,12 the other with the decision in Halford v United Kingdom,13 Both these claims succeeded, the former concerning a police search of a lawyer’s office, and the latter the interception by her employing police authority of telephone calls from the office telephone of an Assistant Chief Constable. But it is widely agreed that the Court took contrasting approaches in the two cases, in the former case quite boldly extending the notion of respect for private life to include the right to establish and develop relationships with other human beings, while in the latter case very cautiously basing its decision on the view that the claimant had on the particular facts a 12 13

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Niemietz v Germany, no 13710/88, Series A 251-B (1992), (1992) 16 EHRR 97. Halford v UK, no 20605/92, Reports 1997-III, (1997) 24 EHRR 523.

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‘reasonable expectation of privacy’ derived from designation of a particular telephone as being for her private use, and a specific assurance that she could use that and another office telephone for the purpose of her sex discrimination case against the police authority. It is generally thought14 that establishing such a ‘reasonable expectation of privacy’ may be difficult in practice, and that the tendency of the decision is to make privacy of communications at work highly dependent upon a specific concession to the worker of an expectation of privacy by the employing enterprise. Ford differentiates15 between the two respective approaches of the ECHR in the two cases on the basis that the latter decision reflects and evinces a tension between the worker’s claim to privacy and the employer’s contractual and proprietary claims to regulate and control what happens at the workplace, whereas in the former case there was no such tension. He presents this contrast as producing two divergent ‘conceptions’ of worker privacy. The argument is a powerful one, but I think I would rather characterise this divergence as being not so much concerned with the conceptualisation of the claims to privacy or respect for private life as with the way in which those claims were played off against competing claims to non-privacy. Faced with that suggestion, Ford would be perfectly entitled to maintain that his argument does fully address the interplay between claims to privacy and rival claims to non-privacy; his idea of different ‘conceptions’ of worker privacy is precisely about different forms or outcomes of that interplay. However, I still think it may be useful to maintain a separation between the ways in which we articulate conceptions of worker privacy and the ways in which we see those conceptions as being played off against claims to non-privacy. That is especially because I think we can usefully identify several different models of interplay or different paths of legal development as between these two competing sets of claims. In fact I suggest we might envisage four such patterns. There would be two patterns in which one set of claims was in an ascendancy over the other. But there would also be two patterns in which the two sets of claims were in equilibrium with each other, one of those equilibrium states being relatively static and the other relatively dynamic. This produces four models or patterns of the following different kinds: (a) (b)

Claims to privacy developing strongly; claims to non-privacy weakly defended (‘the strong privacy model’); Claims to non-privacy developing strongly; claims to privacy weakly defended (‘the weak privacy model’)

14 Compare the annotation by Craig and Oliver at (1998) 27 ILJ 49, and the analysis of the decision offered by G Morris in her article, ‘Fundamental Rights: Exclusion by Agreement?’ (2001) 30 ILJ 49 at 61-2. 15 See especially Ford (n 4) at 143.

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Claims to privacy and non-privacy in an equilibrium in which both are developing strongly (‘the dynamic equilibrium model’); Claims to privacy and non-privacy in an equilibrium in which neither is developing strongly (‘the static equilibrium model’).

(d)

It would be possible further to refine that scheme by building in the distinctions between type (a) and type (b) claims to privacy and to non-privacy which were articulated in the previous section. But it might be better to re-introduce those distinctions on an ad hoc basis when appropriate in the course of applying the four-model scheme to a particular legal system. In the next section we carry out that exercise in relation to the recent and current situation of English law with regard to privacy in the employment relation.

IV.

WHICH MODEL BEST FITS ENGLISH EMPLOYMENT LAW?

As we observed at the outset, English law is a particularly interesting case to assess with regard to the status currently accorded to the rights to privacy and respect for private law in employment relations. The application of our four-model scheme to it, elaborated with reference to privacy claims and non-privacy claims, turns out to produce rewarding results. In this section it is argued that, unexpectedly in one sense though predictably in another, English employment law turns out to fit the equilibrium models better than the strong or weak privacy protection models. If we begin by assessing the state of play in English employment law before the enactment and implementation of the Human Rights Act 1998, I think there would be general agreement that it was the weak privacy model which fitted best. Thus for example, the influence of the European Convention on Human Rights upon English employment law was so slight and indirect that Ms Halford’s claim against telephone call interception at work stood no chance of success in the domestic courts; indeed, there was scarcely any peg upon which to hang her argument at that domestic level. Moreover, the English common law courts seemed strongly committed to the defence of freedom of contract and managerial prerogative, and the emergent doctrine of the implied obligation of mutual trust and confidence in the employment relation16 would not yet sustain anything like a full-blown right of privacy in the workplace.17 In contrast even with their generally laissez-faire counterparts in the USA,18 the English courts and legislature had been notoriously reluctant to articulate a tort of invasion of 16

As recognised by the House of Lords in Malik v BCCI [1997] ICR 606. For a very influential contemporary overview, see D Brodie, ‘The Heart of the Matter: Mutual Trust and Confidence’ (1996) 25 ILJ 121. 18 See Craig (n 3), ch 4, and, more generally, MW Finkin, Privacy in Employment Law (Washington DC, Bureau of National Affairs Inc 1995). 17

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privacy, not least in the employment context, despite the fact that the common law tool-kit offered the means to do so and that by the mid-1990s there was no shortage of statutory exemplars to draw upon from other jurisdictions.19 By the end of the 1990s, there was some optimism that all this was about to change, mainly by reason of the incorporation into English law of Article 8 of the ECHR by the Human Rights Act 1998 with effect from the year 2000. Nor was that the only positive impetus from European law towards a more positive approach to privacy in the employment sphere. John Craig wrote in 1999 that: the incorporation of the European Convention on Human Rights and the implementation of the European Directive on Data Protection [by the Data Protection Act 1998] will result in the right of privacy emerging in UK domestic law by the year 2000.20

Craig was, however, cautious and perspicacious enough to observe, almost in the same breath, that: it may be that … the features of UK legal and political culture which have precluded the emergence to date [of a body of privacy law in relation to employment] … will continue to make the UK a ‘divergent’, as opposed to ‘convergent’ jurisdiction [with other countries evolving such a body of law].21

If the predominant model of legal evolution in continental European jurisdictions was directly towards strong privacy protection in the employment sphere – as seems to have been the case in France,22 and is arguably the major trend in Germany too – it was right to suspect that English law would not straightforwardly tread that path. Despite that hint of disillusionment, I do not, however, believe or argue that English law has simply relapsed, since 1998, into its earlier condition of weak privacy protection in the employment sphere. Instead, I think one or other of our two equilibrium models has come to apply. The interesting question is whether and in what respects we have on the one hand a dynamic equilibrium or on the other hand a static one. In order to answer that question, it may be helpful to deploy our detailed study of different types of privacy claims and non-privacy claims in the employment sphere; and it will also be important to distinguish between legislative development and the evolution of case law jurisprudence. The state of play with regard to legislative development is especially interesting, and I think amounts to the putting in place of a dynamic

19 Indeed, many of these possibilities had been laid out as long before as 1972 in the Report of the Committee on Privacy (Cm 5012, 1972), known as the Younger Committee Report after its Chairman Sir Kenneth Younger MP. 20 Craig (n 3) at 238. 21 Craig (n 3) at 238. 22 Compare Craig (n 3) ch 5 ‘Privacy in the Workplace in France’.

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equilibrium with regard to workplace privacy. The legislative sources of the privacy-protecting dynamic have already been mentioned; they are the Human Rights Act 1998 and the Data Protection Act 1998. Much less obvious and more oblique, though in my view no less significant, are the legislative sources of the countervailing privacy-limiting dynamic. They are to be found in the Lawful Business Practice Regulations 2000 (LBPR)23 and the Freedom of Information Act 2000 (FOIA). But some more detailed explanation is required to place these pieces in the complex jigsaw of regulation bearing upon workplace privacy. We proceed to consider each of those enactments slightly more fully, beginning with the LBPR. The impact of legislative and judicial norm-making upon workplace privacy is often tangential and indirect rather than frontal. Rarely if ever can that have been more true than of the EC Directive of 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector,24 which had the purpose of facilitating the cross-border development of new digital technologies or services, such as digital mobile telecommunications networks, by ensuring the security of the data of users.25 Legislation was needed in order to implement that Directive in the UK, and was duly enacted as the rather mysteriously named Regulation of Investigatory Powers Act 2000 (RIPA), which placed privacy restrictions upon the interception of telecommunications. The Government was of course concerned to protect existing powers of surveillance in the interests of national security and crime prevention, and much of this legislation is devoted to doing precisely that. There was also a demand from the business community for the protection of the powers of monitoring and surveillance on the part of private employers, not least in relation to their own workers. The Government’s concession to those demands, which was a notably accommodating one, was embodied in the LBPR, of which Hazel Oliver has written that: In response to employer concerns, these Regulations have watered down the restrictions placed on employers by RIPA to such a large extent that it could now be said that RIPA hardly limits employer monitoring practices at all.26

So these Regulations represent an extremely significant legislative intervention in the interest of non-privacy, designed to ensure that workers’ interests in the privacy of their e-mails and of their use of the internet when at work did not receive an unexpected windfall from the RIPA. The non-privacy interest which was vindicated by the LBPR was very decidedly of the first of the two types which we identified in an earlier section, that is to say it was the interest in managerial freedom of 23 The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 SI 2000/2699. 24 Directive 97/66/EC [1998] OJ L24/1. 25 See Recitals (3)–(5) of the Preamble to the Directive. 26 Oliver (n 5) 339.

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manoeuvre and effectiveness. Much more clearly of the second type was the FOIA; this legislation has the purpose of ensuring the transparency of the workings and doings of public authorities. As a non-privacy intervention, it is not in any sense directed to protecting the claims or interests of employing enterprises as against their workers; indeed, there may be many situations where public authorities as employers have an interest which they share with their workers in limiting the transparency which the FOIA exacts of them. Nevertheless, despite that particular alignment of interests, and despite the fact that the information disclosure requirements of the FOIA are subordinated to the privacy protections of the Data Protection Act with regard to information concerning particular workers,27 it is nevertheless the case that the FOIA has the potential to operate as a significant non-privacy intervention with regard to public sector employees. Underlying this, requirements of transparency to the public will tend to effect a re-balancing of interests in privacy as between public sector workers and their employers. These various legislative impacts are complex and multifarious; they testify to a certain equilibrium between privacy interests and non-privacy interests in the workplace which is a difficult one but has at least the quality of being a dynamic one. When one turns to consider the case law on this topic, it is hard to escape the sense of a more static equilibrium, a rather negative stand-off between claims of privacy and of non-privacy. This I think is demonstrated by the decision and reasoning of the Court of Appeal in the recent cause célèbre of X v Y.28 Here the central holding on appeal was that the Article 8 right to respect for private life was not engaged in the dismissal of a worker for a young offenders’ charity on the grounds of ‘gross misconduct’ consisting, first, in the worker’s having been cautioned by the police for having consensual sex with another man in a toilet in a lay-by deserted at the time except by these two men and a police officer concealed behind a hedge and watching out for such offences, and, second, in having failed to disclose this matter to his employers. One may feel concerned about this decision for various reasons, such as that it rather lightly consigned the worker’s offending conduct to the non-private sphere on the basis of police surveillance of an otherwise factually private location. But the feature to which I wish to draw particular attention is the rather narrow or compartmentalised approach to the sets of claims to privacy and respect for private life which underlies it. The key passage in the leading judgment of Mummery LJ is the following one: The applicant’s conduct did not take place in his private life nor was it within the scope of application of the right to respect for it. It happened in a place to

27 28

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which the public had, and were permitted to have, access; it was a criminal offence, which is normally a matter of legitimate concern to the public; a criminal offence is not a purely private matter; and it led to a caution for the offence, which was relevant to his employment and should have been disclosed by him to his employer as a matter of legitimate concern to it. The applicant wished to keep the matter private. That does not make it part of his private life or deprive it of its public aspect.29

I suggest that this demonstrates how the discourse within which this appeal was decided was that of privacy in a narrow sense rather than of respect for private life. The employee was viewed essentially as having forfeited his claim to the seclusion of his sexual behaviour from the ambit of his employment relation, by virtue of having conducted himself as he did in a technically public situation. But his broader, more deep-seated claim to a degree of respect for his autonomy, sufficient to deem his sexual behaviour irrelevant to his satisfactoriness as an employee even if it was technically public and therefore technically criminal, did not fully qualify for the consideration of the court. This feature of the decision is vividly illustrated by a passage from the judgment of Brooke LJ, who was uneasy with the reasoning of Mummery LJ, as cited above, and opined that ‘really live human rights issues may well be lurking in the background of this particular case’.30 But despite that unease he concurred in the decision, taking the view that: The employers were entitled to treat the caution as an admission by the applicant that he had committed a sexual offence in a public place and that there were no surrounding circumstances that clothed his acts with the mantle of privacy.31

This is the real point; the facts were viewed through the optic of privacy as a claim to secrecy, and the more fundamental aspects of respect for private life were marginalised as secondary and subordinate considerations. We should not draw too many conclusions from this one hard case. But it does point to the risk that the judicial handling of workers’ privacy in English employment law may settle down into a static equilibrium between privacy and non-privacy considerations. The Court of Appeal which decided this case was not one which was committed to the vindication of untrammelled managerial prerogative; there was no active promotion of the non-privacy claims of employers. But there was a sufficiently limited and fragmented approach to the claims to privacy and respect for private life to enable the non-privacy claim to succeed by default. This raises a general concern about the future direction and methodology of regulation of workers’ privacy in English employment law. In the next and concluding

29

[2004] ICR 1634 at 1648-9, para 52. [2004] ICR 1634 at 1659, para 84. [2004] ICR 1634 at 1659, para 86.

30 31

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section, I speculate further about that future direction, and advance some suggestions about the methodology of regulation in this area.

V.

CONCLUSION – DEROGATION, DIVERSITY OF PRIVACY REGIMES AND REGULATORY RESPONSES

By way of brief conclusion, I shall first identify what I see as likely to be the principal focus of debate in the development of the law of privacy in the employment sphere in the near future, and secondly consider what might be the best kind of regulatory response to the problems as so identified. This will involve suggesting that the debate about the substantive development of worker privacy in English employment law is likely to concentrate upon the issue of derogability by contract, to which I accord a particular meaning which I shall explain. I will then argue that in order for the legal and administrative system of governance of employment relations adequately to address these issues of derogability, there is a need for an integration of the legal and administrative regulation of worker privacy, bringing together areas or kinds of regulation which are currently in a disparate state. My point about the focal issue of derogability is the following one. It is rapidly becoming apparent that the hinge upon which turns much of the debate about the development of workers’ rights to privacy and respect for private life is the question of how far and in what sense or senses those rights are derogable by contract, and in particular by contracts of employment. It is an issue which suffuses the theoretical discourse about worker privacy. It is for example at the heart of Michael Ford’s thesis about two competing conceptions of worker privacy;32 his contrast is basically between a conception in which the right to worker privacy is predominant over non-privacy claims, and a conception in which that right is essentially vulnerable to notions of managerial prerogative and property. In employment law, the main vehicle and expression of managerial prerogative and property is, of course, the contract of employment. It should not for a moment be thought, however, that by focusing the debate about the development of worker privacy upon the issue of derogability, we thereby necessarily simplify that debate. The question whether workers’ rights to privacy and respect for private life are derogable by contract has no straightforward yes or no answer. On the contrary, that question is in itself a portmanteau one, a way of bringing together a number of issues about different senses in which claims to privacy may be restricted, qualified or modified by arrangements made or deemed to be made between the worker and the employing enterprise. Understood as 32

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As developed in his article, Ford (n 4); cf above text to n 12.

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such, the issue of derogability becomes a truly multifarious one, and I do not intend or claim to explore it fully within the compass of this chapter. It will suffice for the present purpose to pick out some of the ways in which the recent literature has identified and illuminated particular instances or aspects of derogability of privacy rights. I shall refer to the insights provided by the relevant writings of Gillian Morris33 and of Hazel Oliver.34 Gillian Morris’s article took the case of workers’ privacy rights, including in that category, as we always should, those of applicants for work, as a central illustration of her thesis about the exclusion of fundamental rights by agreement, her thesis being that the silence of the Human Rights Act 1998 as to the relationship between Convention rights and contract in English law would leave the courts and employment tribunals grappling with an intractable set of issues about derogability. Thus she draws attention to the way in which the notion articulated in the Halford case35 of the ‘reasonable expectation of privacy’ makes it arguable that: the scope of the right itself may be capable of being shaped by contract, in that a worker’s expectation of privacy may be removed by agreement between the parties, or possibly even by a warning on the part of the employer, so allowing the employer unilaterally to define the ‘private’ zone.36

Then she proceeds to remark upon two instances in which the RIPA and the LBPR between them authorise employers to intercept workers’ telephonic communications on the basis of arrangements which are wholly or partly contractual. The first such situation is that where there has been consent to the interception on the part of sender and intended recipient,37 of which Morris comments that: A contractual term permitting interception, provided that it had been drawn to the attention of a worker and explained, would probably suffice for this purpose, although it is questionable whether consent would have been freely given if the alternative were dismissal or denial of employment38

The second such situation is that of interception for the purpose of investigating or detailing the unauthorised use of a telecoms system, such interception being rendered permissible by the LBPR.39 Morris comments on the way in which the employer may distinguish between authorised and unauthorised use, purporting to do so on a contractual basis, ie by or

33

Morris (n 14). Oliver (n 5). See above (n 13). Morris (n 14) at 61. See RIPA, s 3(1). Morris (n 14) at 62. LBPR reg 3(1)(a)(iv).

34 35 36 37 38 39

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under a contract of employment but actually on a unilateral basis. This leads Morris to question the compatibility of the LBPR with the Human Rights Act and to conclude that: Whether the Regs are compatible depends, in the first instance, on whether a worker’s expectation of privacy can, indeed, be determined unilaterally by an employer.40

Morris’ discussion starts to give a real sense of the complexity of derogability issues in relation to workers’ privacy. That sense is heightened by Oliver’s discussion of derogability issues in relation to e-mail and internet monitoring in the work place.41 Not only does she share and develop further the concerns expressed by Morris about the RIPA and LBPR, but she goes on to raise somewhat similar, though perhaps more muted, anxieties about some of the ways in which the data protection rights conferred upon workers by the Data Protection Act 1998 may also be manipulable by employing enterprises by means of contract-based exceptions or modifications. In this respect she raises concerns about the application, in the employment context, of the notion of data subject consent,42 commenting that: If employee consent can be taken from simple agreement to a contract of employment or workplace policy which provides the employer with a general power to carry out monitoring, then in practice this is no different from a warning that monitoring might take place.43

She has similar concerns about the statutory licence accorded to data processing which is ‘necessary for the purposes of legitimate interests pursued by the data controller except where unwarranted in any particular case.’44 Her worry is that in so far as this imposes a proportionality test, ‘the balancing itself appears to be weighted markedly in the employer’s favour’.45 This may reflect the possibility that the employing enterprise can in effect determine its own ‘legitimate interests’ by provisions made in or under contracts of employment. So in that sense it is yet another instance of indirect contractual derogability. All this points the way to what, I think, will be the problematical discourse about derogability in which the real shape and extent of workers’ privacy rights will be determined. Oliver’s discussion46 of the proportionality test by which such indirect or concealed derogation falls to be tested under the Data Protection legislation serves to raise the final set of issues which I wish to touch upon in this chapter, namely those concerning the 40 41 42 43 44 45 46

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methodology of regulation of derogability issues, and indeed of workers’ privacy rights issues more generally. Here I hope that a resumé of ideas suggested by existing literature, plus a brief suggestion of my own, may suffice. The issues about the methodology of legal and administrative regulation of workers’ privacy rights which present themselves are of two kinds, the one substantive and the other procedural or institutional; it is on the latter set of issues that I shall briefly concentrate. As to the former set of issues, there is I think widespread agreement that the substantive methodology of regulation in this area has to be constructed upon the basis of a notion of proportionality as Oliver has argued, as we saw above.47 Further elaboration of such a notion could usefully take as its point of departure the set of seven legal principles for the protection of the right of privacy in the workplace which Craig articulated in his treatise on Privacy and Employment Law,48 and I can do no better than to refer the reader to them. In the matter of the procedural or institutional design of the regulation of workers’ privacy rights, however, I have a modest suggestion to add to the existing literature. Some of the writers upon whose work I have drawn advance suggestions about how we might effect procedural or institutional improvements in the methodology of regulation of workers’ privacy rights. Michael Ford draws attention to what he regards as ‘the missing collective dimension’;49 he canvasses the notion of a procedural model of regulation based on both collective and individual information and consultation of workers, and of collective bargaining about workers’ privacy rights encouraged or incentivised by legal default rules. But one may have some doubts about the political feasibility of such mechanisms in the current decidedly individualistic policy environment and one might also share Morris’ misgivings about the beneficiality for workers of ‘concession bargaining’ around legal norms.50 My own point of departure for the procedural or institutional improvement of regulation in this area would therefore be a rather different one. Like Hazel Oliver,51 I attach much value and importance to the Code of Practice on Data Protection in Employment which has been drawn up over several years originally by the Data Protection Commissioner and latterly by the Information Commissioner.52 I think the process of articulation and application of codes of this kind promises to be the best way of involving legislators, administrators and adjudicators in the active development of

47

At text above n 46. Craig (n 3) ch 7. 49 Ford (n 4) 153-5. 50 See Morris (n 14) 68. 51 Oliver (n 5) 346-50, commenting on what were then drafts of the Code. 52 The composite Employment Practices Code bringing together the successively promulgated Parts of the Code is accessible on-line at http://www. informationcommissioner.gov.uk/ cms/DocumentUploads/ICO_EmpPracCode.pdf. 48

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workplace privacy rights and their reconciliation with the claims to non-privacy which have also been identified and discussed in this chapter. However, my parting shot consists of raising a concern about the lack of comprehensiveness and integration which currently attends this kind of regulatory activity. My worry is that while an activity of articulation and application of codes of practice may be occurring in the several distinct regulatory domains in which workers’ privacy rights are located – those, for instance, of data protection, freedom of information, employment discrimination, and control of employee discipline and dismissal – these pockets of activity are apt to be isolated from each other, and fail to coalesce in such a way as to provide an effective regulatory overview of workers’ privacy rights. I fear that only by moving towards a process and institutional set-up which integrates, more fully than at present, the whole panoply of regulatory issues with regard to privacy and respect for the private life of workers, can we hope to ensure a dynamic equilibrium between claims of privacy and non-privacy rather than the somewhat static one which threatens to impose itself upon English employment law and practice in this area. I hope that suggestion may resonate with discussion of regulatory issues with regard to privacy both in other jurisdictions and in other aspects of privacy law.

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13 Constitutional Protection of Authors’ Moral Rights in the European Union – Between Privacy, Property and the Regulation of the Economy JOSEF DREXL

I.

INTRODUCTION

M

ORAL RIGHTS OF the author belong to the continental copyright tradition of author’s rights (droit d’auteur). According to this tradition, the copyrighted work is considered an emanation of the creator’s personality, resulting in the bifurcated protection of the non-economic interests of the author by moral rights on the one hand and of economic interests by exploitation rights on the other. German legal language highlights this philosophical background by describing moral rights as ‘authors’ personality rights’ (Urheberpersönlichkeitsrechte). Beyond domestic copyright laws, moral rights are protected by international law and at least some national constitutions. Due to the influence of international law, moral rights are nowadays also recognised in the Anglo-Saxon copyright world. Article 6bis(1) of the Berne Convention1 mentions two moral rights as a minimum requirement of international protection, namely the right to claim authorship and the right to integrity, enabling the author to oppose any distortion, mutilation or other modification which would be prejudicial to his or her honour or reputation.2 Some domestic laws add other moral rights, like the right of first 1 Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, latest Stockholm/Paris version of 14 July 1967, 24 July 1971, http://www.wipo.int/treaties/en/ ip/berne/trtdocs_wo001.html. 2 See s 80 Copyright, Designs and Patent Act 1988, which uses the term of a ‘right to object to derogatory treatment of work.’

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publication (droit de divulgation)3 or the right of revocation.4 British law also protects against false attribution of works (droit de non paternité),5 which can be considered the other side of the coin of the right to claim authorship. Since moral rights are closely linked to the author’s personality, most national laws declare moral rights inalienable. However, such a concept is not required by the Berne Convention. British law, too, takes a hesitant approach, according to which the author may even generally waive all moral rights in advance.6 To some extent, the hesitant attitude towards moral rights in jurisdictions adhering to the Anglo-Saxon copyright approach is mirrored by international law. According to Article 9(1) of the WTO/TRIPS Agreement of 1994,7 WTO Members are obliged to respect Articles 1 to 21 of the Berne Convention (the so-called Berne-plus effect), making a violation of the Berne Convention also a violation of WTO law. However, the second sentence of Article 9(1) of the TRIPS Agreement makes clear that Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of the Berne Convention. This provision is most important with regard to the application of the WTO dispute settlement system. Since the United States joined the Berne Convention in 1988, there have been serious doubts as to whether the United States grants protection of moral rights in conformity with the Berne Convention.8 As the US Berne Convention Implementation Act of 19889 excludes enforceability of the provisions of the Berne Convention before courts in the United States,10 there is no institution that could decide on the issue. The exemption of moral rights protection from the scope of WTO obligations in Article 9(1) of the TRIPS Agreement protects the United

3

See, eg Art L 121-2 of the French Code de la propriété intellectuelle. See, eg Art L 121-4 of the French Code de la propriété intellectuelle, providing for a droit de répentir ou de retrait of the author vis-à-vis a licensee. 5 See s 84 Copyright, Designs and Patent Act 1988. French law also provides for such a right, based on a broad formula of protection of the reputation of the author; see Art L-121-1 Code de la propriété intellectuelle. 6 See s 87(2) and (3) Copyright, Designs and Patents Act 1988. 7 Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organisation of 1994. 8 See the critical remarks by A Dietz, ‘Die USA und das “droit moral”: Idiosynkrasie oder Annäherung? – Anmerkungen zu einem Problemverhältnis anlässlich des Beitritts der Vereinigten Staaten zur Berner Konvention’ (1989) Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil 627. See also the analysis of the conformity of US law, especially general tort law with Art 6bis of the Convention, by JC Ginsburg and JM Kernochan, ‘One Hundred and Two Years Later: The US Joins the Berne Convention’ (1988) 13 Columbia-VLA Journal of Law & the Arts 1, at 31 ff. 9 See http://www.copyright.gov/title17/92appii.html. 10 Section 3(a)(2) of the US Berne Convention Implementation Act. In other countries, especially in continental Europe, the Berne Convention has traditionally been directly applied by the courts. 4

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States against being cited before the WTO dispute settlement bodies for not adhering to the international standards of moral rights protection. In addition, intellectual property rights, including copyright, have a constitutional dimension. Right holders predominantly allude to constitutional guarantees of private property with the objective of defending their interests against other – conflicting – concerns and even pressuring the legislature to expand protection. Since legislative initiative in the field has largely passed over to the European legislature, the constitutional dimension of copyright protection has become a European one. This raises the issue of how to place copyright in general, and moral rights in particular, in the context of European fundamental rights protection, be it according to the possibly unsuccessful Draft Constitutional Treaty, the Charter of Fundamental Rights or the European Convention on Human Rights. Although disparities between domestic laws are considerable, the European legislature so far has refrained from harmonising moral rights. This is all the more astonishing since moral rights strongly reflect fundamentally different concepts of copyright law in the Member States. In addition, it would be wrong to take moral rights as a rather esoteric aspect of copyright law. Moral rights may be relevant for the functioning of the European internal market for intangible goods, especially in the entertainment industry. From an economic perspective, moral rights tend to hamper economic exploitation of a work and, thereby, affect the interests of exploiters as copyright licensees. A good example of such conflicts is the application of the right of integrity in favour of the director of a cinematographic work against the exploitation of colourised movies.11 These brief remarks on the role of moral rights in the context of the commercialisation of copyrighted works also highlight a particular level of complexity of the interests involved. Whereas most political discussion on copyright today reduces the conflict to one between right holders and users, moral rights underline a ‘tripolar’ field of interests with an additional conflict between the interests of creators as the holders of moral rights on the one hand and licensees of the economic rights (exploiters) on the other.12 As its central issue, this chapter will discuss how different constitutional options affect moral rights and which option should be preferred for the

11 The conflict became most apparent in the John Huston decision of the French Cour de Cassation of 28 May 1991, (1992) 23 International Review of Industrial Property and Copyright Law (IIC) 702. The heirs of US director John Huston relied on the French droit moral with the objective to stop commercialisation of a colourised film. The Cour de Cassation affirmed application of French moral rights although US copyright law vests the copyright of a film in the producer. 12 This tripolar conflict of interests is currently gaining more recognition; see, eg, R Hilty, ‘Verbotsrecht vs Vergütungsanspruch: Suche nach den Konsequenzen der tripolaren Interessenlage im Urheberrecht’, in A Ohly (ed), Perspektiven des geistigen Eigentums und Wettbewerbsrecht. Festschrift für Gerhard Schricker zum 70. Geburtstag (München, CH Beck 2005) 325 (not referring to moral rights specifically).

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European level. In doing so, we will first look at some current challenges to the recognition of moral rights (below II.). A short analysis of moral rights regulation in the Member States, focusing on the situation in France, Germany and the United Kingdom (below III.) will be followed by an analysis of different constitutional approaches (below IV.). After that, we will assess European law from different angles, ranging from the role moral rights play in internal market legislation and in the context of the fundamental freedoms, to the constitutional protection of such rights under the European Convention on Human Rights (ECHR) and the Draft Constitutional Treaty (DCT) (below V.).

II.

CHALLENGES TO THE PROTECTION OF MORAL RIGHTS

Several developments challenge the concept of moral rights. First, the distinction between the moral and the economic interests of the author is called into question by the economic interest that authors have come to attach to their moral rights. In copyright industries nowadays authors regularly rely upon moral rights with the clear intent to participate in the revenues of regular exploitation of copyrighted works. Consequently, moral rights more than ever entail enormous economic value. Recent examples are the marketing of truncated mobile phone tunes potentially affecting the author’s right of integrity,13 or interruptions of TV broadcasts by commercials.14 These examples add to existing scenarios like ghostwriting and the colourisation of films. Second, in the case of new categories of copyrighted works, like software and electronic databases, a moral interest of the creator in the work is clearly nonexistent. In principle, moral rights protection for such works is possible in theory but cannot play a role in practice. For good reason, British law excludes applications of the right to object to derogatory treatment of work in the case of computer programs, and so protects regular exploitation of the program from unjustified interference by employed programmers invoking moral rights.15 French Law, too, restricts the exercise of the right of integrity and excludes the right of revocation with regard to computer programs.16 A third challenge comes from the economic analysis of law movement. In general, economics provides a modern justification for the utilitarian 13 On the current dispute in Germany on how to administer moral rights with regard to mobile phone tunes see O Castendyk, ‘Gibt es ein “Klingelton-Herstellungsrecht”?’ (2005) Zeitschrift für Urheber- und Medienrecht 9, 16-19; G Poll, ‘Urheberrechtliche Beurteilung der Lizenzierungspraxis von Klingeltönen’ (2005) Multi-Media-Recht 67. 14 On the Swedish perspective, in particular, see J Rosén, ‘Werbeunterbrechungen von Spielfilmen nach schwedischem Recht – (immer noch) ein Testfall für das droit moral’ (2004) Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil 1002. 15 See s 81(2) Copyright, Designs and Patents Act 1988. 16 Art L 121-7 of the French Code de la propriété intellectuelle.

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copyright approach and simultaneously questions the continental authors’ rights approach. Whereas property rights theory, in particular, advocates recognition and attribution of rights with the exclusive objective of reducing transaction costs and, thereby, enhancing overall economic efficiency, moral rights in practice seem to hamper efficient exploitation of copyrighted works and create additional transaction costs.

III.

MORAL RIGHTS IN EU MEMBER STATES

Any European constitutional concept of moral rights has to take into account the law within the Member States of the EU. Therefore, the analysis will now concentrate on the fundamental differences between the continental droit d’auteur and the Anglo-Saxon copyright approach at large (below A.) before we turn to domestic moral rights legislation in the Member States (below B.).

A. ‘Droit d’auteur’ and ‘Copyright’ as Different Legal Traditions in Europe The authors’ rights (droit d’auteur) and the copyright approach not only have a different philosophical background; they also lead to different features of domestic copyright law. Only in very rough terms may it be said that the ‘authors’ rights’ approach relies strongly on a natural law understanding, by acknowledging the individual author’s creativity in the legal world, whereas the copyright approach, from a practical perspective, developed as protection against unauthorised copying. More importantly, this philosophical divergence results in a different concept of authorship and, consequently, in a reserved attitude of the copyright approach towards moral rights. Relying on the natural rights of the individual, droit d’auteur systems follow the ‘creator principle’ according to which the initial copyright is necessarily vested in the creator of a work. Apart from original related rights, investors in the copyright industry can only acquire rights from this creator and, therefore, can never be initial owners of the copyright. German law, for instance, follows this rule very strictly. There is only a rebuttable presumption that, in the framework of their contractual relationship, authors of a cinematographic work assign all economic rights to the producer to the extent that the latter is in need of such rights for regular exploitation of the work.17 According to general rules of the German Copyright Act (Urhebergesetz), the copyright in computer programs is vested in the software programmer, not the employer. However, 17

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under German law, only the producer who has employed the programmer can exercise the economic rights unless otherwise agreed upon by the parties.18 In contrast, copyright systems based on a utilitarian concept of copyright protection, as an incentive to creativity, may grant authorship directly to the investor. Therefore, in the United States and Commonwealth countries, copyright laws recognise the ‘work made for hire’ doctrine, according to which the investor who employed the creator or – as in the United States – commissioned the work is considered the author of the work or, at least, the initial owner of the copyright. UK law even distinguishes the concepts of authorship and first ownership. The creator is generally considered the author.19 However, in some cases the UK Act contains exceptions from this rule that is typical of droit d’auteur systems. For instance, the producer is considered the author of a sound recording; the producer and the principal director are defined as co-authors of a film.20 In the case of a literary, dramatic, musical or artistic work or a film created in the framework of an employment contract, only the employer will be considered by UK law the first owner of the copyright.21 In contrast, US law does not distinguish between authorship and first ownership. Consequently, the broader work-made-for-hire provision in the United States statute vests ‘authorship’ in the employer or any other person for whom the work was made.22 With the work-made-for-hire doctrine, copyright jurisdictions have problems in recognising inalienable moral rights of the author. The UK legislature, complying with the requirements of the Berne Conventions,23 accepted moral rights protection for creators of a work when the Copyright, Designs and Patent Act was adopted in 1988.24 This development was still a long way away in 1956, when the Gregory Committee, whose task was to propose a copyright law reform in the UK, stated that ‘les droits moraux are suspiciously foreign’.25 B.

Moral Rights in Individual Member States

Today all Member States, including the United Kingdom and Ireland, recognise moral rights in the framework of their domestic copyright 18

See §69b(1) German Copyright Act. See s 9(1) Copyright, Designs and Patents Act 1988. 20 See s 9(2) Copyright, Designs and Patents Act 1988. 21 See s 11(2) Copyright, Designs and Patents Act 1988. 22 See s 201(2) US Copyright Act. 23 The United Kingdom is a founding Member of the Berne Union, but only joined the latest version of the Berne Convention in 1987. 24 See R Durie, ‘UK Copyright, Designs and Patent Act 1988’ (1989) 20 IIC 637, 648-650. 25 See Board of Trade (Copyright Committee), Report of the Copyright Committee (Cm 8662, 1952) para 222; also cited by W Cornish and D Llewelyn, Intellectual Property (5th edn) (London, Sweet & Maxwell 2003) no 11-67. 19

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regimes. However, considerable divergence exists in the detail. In the following, the analysis will compare moral rights protection in the United Kingdom, France and Germany only. a) Beyond the two rights to claim authorship and to integrity, covered by Art 6bis of the Berne Convention, the set of moral rights is not identical in these three countries. However, it would be wrong to suspect that UK law is most restrictive. With protection against false attribution of a work,26 for instance, it recognises a moral right that is unknown under the German Copyright Act. In Germany, however, such protection can be derived from the general personality right (allgemeines Persönlichkeitsrecht) as protected by the general tort clause of §823(1) of the German Civil Code.27 b) Domestic laws also differ as to the scope of protection. French law tends to apply a subjective approach as to whether a modification to the work is considered prejudicial to the author in the sense of her right to integrity, leaving it to the discretion of the author concerned to allow a modification or not.28 Other national laws prefer an objective approach guaranteeing equal standards of protection to all authors and the public. This is also true of the law in Germany, where moral rights provisions of the Copyright Act require a balancing of conflicting interests.29 c) Among droit d’auteur countries there are different approaches to the concept of the relationship between moral and economic rights. Whereas France applies the so-called dualist theory, Germany opted for a monist approach. While in the dualist system a clear distinction is made between moral rights and economic rights, enabling authors to transfer the whole of their economic rights to others, the monist theory conceives of the author’s right (Urheberrecht) as a uniform right. In Germany, copyright lawyers describe the monist concept using a tree metaphor, with the uniform author’s right as the trunk, the economic and moral interests of the author as the roots, and the specific economic and moral rights as the branches of the same tree.30 The distinction between roots and branches illustrates the concept that specific rights of the author are sometimes better nurtured by the economic interest roots, and at other times by the moral interest roots.31 Since, in the monist system, the moral rights may not be severed

26

See s 84 Copyright, Designs and Patent Act 1988. See H Schack, Urheber- und Urhebervertragsrecht (3rd edn) (Tübingen, Mohr-Siebeck 2004) para 42. 28 See A Lucas and H-J Lucas, Propriété littéraire et artistique (2nd edn) (Paris, Litec 2001) no 412. Whereas legal writing in France strongly supports this view, case law seems somewhat inconsistent. For the case usually cited as the authority for the subjective approach see Tribunal de grande instance (TGI) de Paris of 15 October 1992 (1993) 155 Revue internationale de droit d’auteur 225 – En attendant Godot. 29 See, eg Schack (n 27) at no 350 (on the German right to integrity). 30 This metaphor was introduced by E Ulmer, Urheber- und Verlagsrecht (3rd edn) (Tübingen, Mohr-Siebeck 1980) 116. 31 This metaphor can explain why economic exploitation of individual moral rights is not excluded per se; see the discussion of the problem above at II. 27

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from the economic rights, the copyright as such may not be transferred. The author may only assign specific rights of exploitation (Nutzungsrechte). d) The major difference between traditional copyright jurisdictions and continental droit d’auteur systems seems to lie in the concept of inalienable moral rights on the continent. The law in the UK allows any restriction if the person entitled to the moral right consented to the respective act32 and even allows a general waiver of moral rights. Such a waiver requires an ‘instrument in writing signed by the person giving up the right’,33 and may relate to specific works or to works in general and to existing or future works.34 Still, the difference between the two systems seems more marked at first glance than it actually is. German law also accepts the binding effect of a contractual commitment of the author not to rely on a given moral right. Although German and French law conceive of moral rights as inalienable, they acknowledge that the author can authorise others to administer these rights in the author’s interest.35 e) Finally, domestic laws differ as to the term of protection. In 1993, the European legislature only harmonised the copyright term of protection as regards the economic rights of the author and explicitly excluded harmonisation of the term for the protection of moral rights.36 In Germany and the UK, the law does not make any distinction between the two groups of rights. In Germany, the uniform term of protection results from the monist approach. Copyright as such expires 70 years after the death of the author. In contrast, French law provides for ‘perpetual’ protection of moral rights.37 Article 6bis(2) of the Berne Convention allows such protection, since the provision only requires that moral rights should be protected at least as long as the economic rights of the author. With such ‘perpetual’ protection, French law departs from a subjective concept of copyright protection. Moral rights thereby mutate to a public policy instrument aimed at the preservation of the integrity of cultural achievements against misappropriation and mutilation.38 The comparison of the law in the United Kingdom, France and Germany demonstrates that perceived differences between the two major traditions in Europe are largely exaggerated even with regard to moral rights. With the reform of its copyright law in 1988, UK law has caught up with the systems on the continent. Moral rights protection in the UK does not

32

See s 88(1) Copyright, Designs and Patents Act 1988. See s 88(2) Copyright, Designs and Patents Act 1988. See s 88(3) Copyright, Designs and Patents Act 1988. 35 See Schack (n 27) at no 564 (on German law). 36 Art 9 of the Council Directive 93/98/EEC of 29 October 2003 harmonising the term of protection of copyright and certain related rights, [2003] OJ L290/9. 37 See Art L-121-1 Code de la propriété intellectuelle. 38 After the death of the author, both the heirs and the Ministry of Culture have power to enforce moral rights. 33 34

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deviate that much, for instance, from the law in Germany. The major difference still consists in the unlimited waivers authors may grant when licensing their rights to publishers and other exploiters. However, even the law in France and Germany, for practical reasons, has to allow contractual obligations on moral rights. Differences exist even between countries that traditionally follow the droit d’auteur approach. Moral rights protection in France is much stronger than, for example, in Germany. Although, at first glance, Germany appears to be theoretically much stricter in implementing the droit d’auteur approach by applying the monist theory, the dualist theory allows the French legislature to grant perpetual protection of moral rights.

IV.

CONSTITUTIONAL APPROACHES TO MORAL RIGHTS

Placed at the intersection of property protection and the protection of privacy, moral rights of the author are most difficult to locate in the constitutional system of fundamental rights. In the following, we will look at different constitutional approaches known so far. The analysis aims at evaluating the approach taken by the Draft Constitutional Treaty of the European Union.39

A. Specific Protection of Moral Rights or Property Approach as Possible Options Right at the outset, two distinct approaches may be identified. The first one consists in formulating a specific fundamental right of authors that takes into account the moral rights dimension of copyright. This approach is adopted by Article 27(2) of the Universal Declaration of Human Rights of 1948.40 The provision reads as follows: Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The alternative approach consists in including intellectual property as such in the framework of constitutional protection of private property. This approach has actually been adopted by Art 17(2) of the European Charter of Fundamental Rights and has been proposed in identical wording for Article II-77(2) of the EU Draft Constitutional Treaty. This provision needs to be read in conjunction with Article 77(1) DCT: 39

Treaty establishing a Constitution for Europe of 29 October 2004 [2004] OJ C310/1. Universal Declaration of Human Rights, adopted and proclaimed by General Assembly of the UN, Resolution 217 A (III) of 10 December 1948, http://www.un.org/Overview/ rights.html. 40

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(1) Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest. (2) Intellectual property shall be protected.

B.

Approaches of National Constitutions

The two above-mentioned provisions of the Universal Declaration of Human Rights and the Draft Constitutional Treaty have not necessarily been adopted by national constitutions. As to the situation in the UK, we would have to look at the European Convention on Human Rights, which will be discussed in the following part on European law (below V.). Within the European Union, it is probably German constitutional law that has most practical experience in dealing with copyright law in terms of fundamental rights protection. In addition, we will look at the very different situation in France and the constitutional situation in the United States, where the Constitution is most important for paving the ground for a utilitarian approach to intellectual property. i

Privacy Approach of German Constitutional Law

The German Fundamental Law (Grundgesetz) mentions neither copyright law nor intellectual property as such. However, the Federal Court of Justice (Bundesgerichtshof) confirmed that the moral rights of the author (Urheberpersönlichkeitsrechte) are protected by Articles 1(1) and 2(1) of the Grundgesetz.41 The two provisions read as follows:42 Art. 1(1):

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Art. 2(1): Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

These two provisions taken together are considered by the Federal Constitutional Court (Bundesverfassungsgericht) as the constitutional basis of privacy protection in Germany, known as the general personality right (allgemeines Persönlichkeitsrecht). From a constitutional perspective, the moral rights of the author appear as a specific aspect of that general personality right. 41 Bundesgerichtshof, (1971) Gewerblicher Rechtsschutz und Urheberrecht 525, at 526 – Petite Jaqueline. 42 A translation of the Federal Law can be found at http://www.iuscomp.org/gla/.

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As was indicated above, it was only the Federal Court of Justice, as the highest German court deciding in private law cases, that expressed its view on the constitutional background of moral rights. So far, there has not been any constitutional recourse to the Federal Constitutional Court concerning moral rights. In contrast, the Federal Constitutional Court has recognised that the economic rights of the author are constitutionally guaranteed by the general constitutional guarantee of private property.43 We may conclude that the two aspects of the uniform copyright are protected in Germany by different fundamental rights of the Constitution. According to German constitutional law, fundamental rights also play a major role in the context of private law. Courts have to take into account the constitutional values derived from the fundamental rights provisions in applying and interpreting provisions of private law.

ii

Private Law Property Approach in France

In France, it is not proper constitutional law but copyright law itself that decides on whether moral rights are a specific form of property or a form of privacy rights. The relevant provision of Article L 111-1 of the French Code de la propriété intellectuelle reads as follows: L’auteur d’une œuvre de l’esprit jouit sur cette œuvre, du seul fait de sa création, d’un droit de propriété incorporelle exclusif et opposable à tous. Ce droit comporte des attributs d’ordre intellectuel et moral, ainsi que des attributs d’ordre patrimonial…

As can be seen from this provision, French law grants the author, as the result of his creative work, a right of ‘intangible property’ (propriété incorporelle). The second part of Article L 111-1 clarifies that moral rights and economic rights are only seen as two aspects of the same property right. In contrast to German law, French law follows a property rights approach even for moral rights. However, the above-cited provision defines copyright as a property right of the creative author. In this regard, French law makes clear that its property approach to copyright is not opposed to a personality approach. On the contrary, recognising such property legally mirrors the philosophical concept of the work as the emanation of the author’s personality. This is why French law is more specific than Article II-77 DCT,44 which does not mention the person entitled to the property right. Article II-77(1) DCT, to which Article II-77(2) DCT obviously refers, explicitly protects ‘acquired’ property. 43 31 Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 255 (Tonbandvervielfältigung). 44 See above I.

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We may conclude that, from a comparative perspective, there is no conclusive argument in favour of a privacy approach to moral rights. A property rights approach à la française also seems fully consistent with the protection of moral rights. Whereas, however, the Draft Constitutional Treaty does not differentiate between original and acquired property, the concept of intellectual property in France has to be linked in the case of copyright to the concept of creativity. It has to be the creator in whom the initial property is vested (propriété littéraire et artistique). iii

The Utilitarian US Approach

The situation in the United States is very different from that in Germany and France. Although French law does not rely so much on a constitutional basis, it is very clear that the French droit d’auteur concept relies on a natural law understanding of intellectual property. In contrast, US copyright is based on a utilitarian concept that is laid down in the constitutional provision defining the legislative powers of the US Congress. Article I, s 8, cl 8 of the United States Constitution reads as follows: The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The United States Constitution recognises the need for legislation on intellectual property as an incentive for creativity that will best serve society at large. In conformity with this approach, in some instances it may be best to vest the original property right in the investor who promotes creativity on her own initiative and not in the creator. Under this utilitarian approach, moral rights do not play any role. Consequently, copyright may be conceived of as a property right, but it lacks a necessary link to the author as the creator of the work as in France or Germany. Although, in the 18th and 19th century, natural law arguments were essential both in England and France to overcome the former system of privileges of copyright law, in England, natural law arguments later took a different road with John Locke justifying the idea of intellectual property with the labour and effort invested by the author. In addition, Locke argued that this labour of individuals would contribute most to the ‘common stock of mankind’.45 Following this philosophical idea, US constitutional law implements a ‘utilitarian property rights approach’ to copyright, resulting in practice in the protection of investment in creative work. Consequently, the constitutional concept of property rights protection in the context of copyright is neither specific to the authors’ rights approach nor to the copyright approach. However, the property rights approach as 45 For the Lockean view of intellectual property, see J Hughes, ‘The Philosophy of Intellectual Property’ (1988) 77 Georgetown Law Journal 281, at 296-330.

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such does not give an answer to the question of who is to be considered the author or the initial right holder of the property right. The privacy – or ‘personality rights’ – approach of German law and the Universal Declaration of Human Rights seems to have two advantages: first, it rules out any ambiguity as to who deserves protection as the initial right owner from a constitutional perspective. Second, the privacy approach provides a more modern and convincing human rights explanation for the protection of moral rights than was possible at the time of the emergence of the droit d’auteur as propriété littéraire et artistique in France.

V.

MORAL RIGHTS AND EUROPEAN LAW

Nowadays, copyright law cannot be discussed without taking into account European law. Of course, this is also true for any future European constitutional approach to copyright law. European law influences copyright law in three different ways, namely through harmonising internal market legislation (below A.), through the fundamental freedoms of the EC Treaty (below B.) and through the European Convention on Human Rights (below C.).

A.

Moral Rights and European Harmonisation

As has been pointed out above, the European legislature made it very explicit in the Term of Protection Directive of 1993 that there should be no harmonisation of the term of protection of moral rights.46 This attitude seems symptomatic of the current situation. Divergences of national laws, as they exist in the field of moral rights, do not necessarily require harmonisation in order to establish the internal market for copyright works. However, the adverse effect of moral rights allegations on regular domestic and cross-border exploitation should be reason enough for the European internal market legislature to consider the issue. In July 2004, the Commission published a ‘Working Paper on the review of the EC legal framework in the field of copyright and related rights’47 with the objective of improving the operation of the acquis communautaire and safeguarding the good functioning of the internal market. In the Paper, the Commission admitted that disparities exist. As to moral rights, new problems might arise in the framework of electronic cross-border exploitation of works, but so far, the international legal framework would seem to 46

Above III. B. e) (n 36). Commission Staff Working Paper on the review of the EC legal framework in the field of copyright and related rights, 19 July 2004, SEC(2004) 995, at http://www. europa.eu.int/ comm/internal_market/copyright/docs/review/sec-2004-995_en.pdf. 47

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guarantee the functioning of such exploitation. Therefore, the Commission sees ‘no apparent need to harmonise moral rights protection in the Community at this stage’.48 This hesitation has to attract criticism. The overall positive evaluation of the acquis communautaire in the Working Paper does not sufficiently take into account the fundamental technological, economic and structural changes on the one hand and the general unhappiness about recent legal development and extended protection of intellectual property rights in the digital environment on the other hand. Moral rights run the risk of missing further development simply because the European legislature is afraid of dealing with a sensitive issue. The Working Paper attracted 139 comments,49 mostly from copyright industries and interest groups. This reaction clearly demonstrates that the Commission’s self-satisfaction is not necessarily mirrored by the impression of concerned parties. As to moral rights, a scenario different from that of the Working Paper is provided, for instance, by the comments of EICTA, the European Industry Association for Information Systems, Communication Technologies and Consumer Electronics.50 There, the industry informs the Commission that national disparities as to moral rights legislation regularly raise ‘a great deal of complex and controversial drafting of agreements’. In addition, the comments hint at the increasing trend in Member States that in some scenarios more money is extracted from moral rights administration than from the reproduction right.51 This may be especially true with regard to truncated mobile phone tunes, which may easily be marketed across borders between Member States.52

B.

Moral Rights and the Fundamental Freedoms

Moral rights may hamper cross-border exploitation of copyrighted works and therefore collide with the fundamental freedoms of free movement of goods and services. However, so long as the European legislature does not create harmonised standards of moral rights protection, it is for the Member States ‘to establish the conditions and detailed rules for the protection of literary and artistic property’.53 In the Phil Collins case,54 the 48

Ibid, para 3.6 (p 16). 131 of them are accessible on the Commission’s website http://forum. europa.eu.int/ Public/irc/markt/markt_consultations/library?l=/copyright_neighbouring/ legislation_copyright&vm=detailed&sb=Title. 50 EICTA, Review of the EC Legal Framework in the Field of Copyright and Related Rights, December 2004, http://www.eicta.org/files/Simplification%20paper-144757A.pdf. 51 EICTA Review, p 3. 52 See on this issue n 13 above. 53 Case C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, para 19. 54 Collins, (n 53) para 20. 49

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European Court of Justice went on to point out that the ‘specific subject matter’ of copyright and related rights protection covers both the economic and the moral rights of the right holder. Although Phil Collins raised only the question of whether the nondiscrimination principle of Article 12(1) EC (ex-Article 7(1) EEC Treaty) applies to copyright and related rights, the decision clarifies that domestic legislation on moral rights may justify restrictions to trade in goods within the meaning of Article 30 EC. Moral rights are recognised as a part of legitimate domestic copyright law as a matter of primary Community law. Therefore, in situations in which moral rights in domestic legislation collide with the free movement principles, the exploiter of works cannot successfully rely on the fundamental freedoms against moral rights protection of the author. Therefore, there is an obvious case for the European legislature to optimise free movement of goods and services by harmonising the standards of moral rights protection. More important for the purpose of this article, however, are the consequences of the recognition of moral rights as part of the specific object of copyright for the constitutional recognition of such rights on the Community level. The provisions of Articles 28 and 30 EC would be incorporated in the Draft Constitutional Treaty on the same level as the Charter on Fundamental Rights. Consequently, moral rights have already been well established as a constitutional principle of European law.

C.

Moral Rights and the European Convention on Human Rights

Under current Community law, the ECHR, though not constituting original Community law, defines the current status of fundamental rights protection as general principles of Community law according to Article 6(2) EU. The ECHR, similar to the German Constitution, does not contain a clear provision on intellectual property in general or on copyright protection in particular. However, with Article 8(1) ECHR on the right to respect for one’s private and family life, one’s home and correspondence, the Convention contains a provision that is interpreted by the European Court of Human Rights (ECtHR) as the legal basis for the protection of privacy. This provision adds to Article 1(1) of Protocol No 1 on the peaceful enjoyment of one’s possessions. The ECHR seems to confirm protection of patents under Article 1 of Protocol No 1.55 There is no such case law on other forms of intellectual property. According to general opinion in legal writing, however, such 55 The case law is not totally unambiguous; see the analysis by C Grabenwarter, Europäische Menschenrechtskonvention (2nd edn) (München, CH Beck 2005) at §25 no 4.

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protection should be accepted.56 Whether Article 8(1) ECHR could be used as the legal basis for moral rights – and not the property provision of Article 1 of Protocol No 1 – would still need to be seen. The same is true as to whether the ECHR would follow the German privacy concept or the French property concept of moral rights.

VI. EVALUATION OF PROPERTY RIGHTS APPROACH TO THE PROTECTION OF INTELLECTUAL PROPERTY IN ART II-77(2) OF THE DRAFT CONSTITUTIONAL TREATY

In the light of the foregoing analysis, it is now possible to evaluate Article II-77(2) of the Draft Constitutional Treaty (DCT).57 The DCT does not contain any specific provision on moral rights. Moral rights are protected as part of the intellectual property provision of Article 77(2) DCT. At best, this amounts to a ‘cautious’ approach to moral rights protection. Under Article 77(2) DCT, the European legislature as the addressee of the fundamental rights of the DCT58 remains free to decide on a Community model of moral rights. So long as there is no harmonisation, the moral rights systems of the Member States are respected because of Article 30 EC (Article 154 DCT). Two reasons argue in favour of this cautious approach: first, this approach corresponds to existing disparities between domestic laws. New constitutional safeguards should not unnecessarily endanger existing legal approaches in the Member States. Second, by leaving more flexibility to the legislature, the property approach better meets the arguments of economic theory according to which protection of moral rights does not necessarily lead to efficient outcomes. There are, however, better reasons to argue against the property rights approach proposed by Article 77(2) DCT: first, by advocating a property rights approach, the DCT accords more flexibility to the EU legislature in favour of the interests of exploiters of copyrighted works and to the disadvantage of both creators and users by not distinguishing between the protection of original and acquired property. However, exploiters are better placed when it comes to successful rent-seeking than are the other two groups. The proposal favours the strongest economic group, which is least in need of constitutional protection. Second, special constitutional protection of moral rights would strengthen the position of creators vis-à-vis exploiters. The creator is 56 57 58

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usually the weaker party of a licensing agreement. Creators risk a buy-out by the other party to the contract. Inalienable moral rights guarantee at least a minimum level of protection. Third, economic theory and, in particular property rights theory, do not argue against such protection. Economic theory can only offer a welfare (efficiency) approach as an economic tool to allocative justice. At the same time, economic theory does not sufficiently take into account the argument of distributive justice and the non-economic interests of the creator. Economic theory, therefore, cannot conclusively balance the interests involved. Finally, special constitutional protection of moral rights in the sense of the Universal Declaration of Human Rights would not question existing domestic laws, since all domestic laws in the EU recognise moral rights.

VII.

CONCLUDING REMARKS

From the perspective of the practice of copyright, the foregoing analysis has dealt with a rather esoteric issue. After votes rejecting the Draft Constitutional Treaty in France and The Netherlands in the spring of 2005, this seems even more the case. However, constitutional considerations matter. They are crucial for building a legal system in a situation in which there is growing feeling that something is wrong with existing copyright. Technological changes in the digital world call into question traditional forms of exploitation. Exploiters fight for markets and claim even stronger copyright protection. Stronger copyright protection, however, does not only affect the interest of users and their possibilities to copy freely for private uses. Such protection also affects the interests of creators. A rethinking of copyright in a changed technological and economic environment should start with the relationship of the creators and exploiters, whereas current discussion is very much focused on an alleged author/user conflict, which actually is an exploiter/user conflict. The constitutional property approach of the Draft Constitutional Treaty repeats this fundamental fallacy of mixing up – even equating – creator and exploiter interests. The provision does not distinguish between original and acquired property ownership. In most cases, it would be exploiters, holding economic rights acquired from the author, who would invoke the intellectual property provision of the DCT. In contrast, the German Constitution, the French concept of moral rights as part of the property right of the creator and the Universal Declaration of Human Rights avoid this fallacy. The latter, in particular, would have been a better model for the European Constitution. The analysis also demonstrates that the gap between author’s rights countries and copyright countries within the EU is less wide than one might think. The European legislature should deal with moral rights and

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respond to the constitutional obligation of protecting the rights of creators within the body of secondary Community law.

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14 Private Control/Public Speech LESLIE KIM TREIGER-BAR-AM AND MICHAEL SPENCE1

I.

A.

CONTROLLING THE FORM AND CONTENT OF ONE’S SPEECH

Introduction

W

HEN DOES AN individual author have private control over her expression; and when must that control be limited? The subject of this chapter is authors’ expressive autonomy and its limitations. We shall focus our discussion on the moral right of integrity as it operates in the UK. The moral right of integrity allows authors to prevent certain modifications to their works. Section 80 of the UK Copyright, Designs and Patents Act 1988 (‘the CDPA’) upholds an author’s integrity right, implementing into UK law Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works. The UK Act provides that the author of a literary, dramatic, musical or artistic work, and the director of a film, has the right to prevent treatment that ‘amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director’. The right is retained by the author even where ownership of the copyright in her work has passed out of her hands. It is submitted that the integrity right is a human right, protecting authorial autonomy of expression. The right will be situated directly within the doctrine of freedom of expression. We will look at case law under the freedom of expression doctrine upholding the same principle as that of the integrity right: the protection against distortion of expression. Freedom of expression often will arise on the opposing side of an integrity right claim, as well. The human rights of the modifier also may be engaged. The second part of the chapter will explore the circumstances under which a modification must be protected as within the modifier’s autonomy of expression. 1

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Section I. by Leslie Kim Treiger-Bar-Am, Section II. by Michael Spence.

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178 B.

Leslie Kim Treiger-Bar-Am and Michael Spence The Right of Privacy Distinguished

Is the integrity right a right of privacy? The concept of ‘privacy’ has taken on divergent legal conceptions. It has been used widely in the UK, and in US state law, to mean keeping certain information private, that is, out of the public eye. The recent case of Campbell v MGN Ltd2 is such a use. In that case the House of Lords upheld Naomi Campbell’s right to the privacy of certain information about her narcotics addiction. The Younger Committee also understood privacy to mean in some sense ‘seclusion’ or ‘intimacy’.3 Understanding the integrity right’s protection of expression using this sense of privacy is inapposite. The term expression refers to an outward unfolding: the Oxford English Dictionary defines ‘express’ as to press out, emit, exude. The integrity right protects not the privacy of expression, but the nature of others’ modification of the expression. So too the freedom of expression doctrine protects not private expression in isolation, but expression in communication.4 Yet privacy takes on another meaning as well: privacy can mean autonomy, in the sense of choice and control. The English Court of Appeal used privacy in this sense in Douglas v Hello!:5 even in the absence of a right of publicity, the law of breach of confidence or privacy gives one the right to control over one’s image in public. In Douglas v Hello! Michael Douglas and Catherine Zeta-Jones sold exclusive photographic rights to OK! magazine to publish photos of their wedding. An intruder took unauthorised photos that were published in the rival magazine Hello!. The plaintiff celebrities felt the ‘choice was ours as to what was and was not published about our wedding’ (para 48), and sought ‘control’ (para 49). The Court wrote that ‘control is not an improper objective of the law of confidence’ (para 216). The Court upheld the celebrities’ expressive autonomy. The European Court of Human Rights (ECtHR) also has used privacy in the sense of autonomy. Pretty v UK can be seen as a claim for the privacy of decision-making, or for the protection of the freedom of the decisionmaking itself. The ECtHR found that underlying the Article 8 protection of respect for private life was the principle of autonomy, ‘in the sense of the right to make choices about one’s body’.6

2 Campbell v MGN Ltd [2004] EMLR 15, [2004] 2 All ER 995. In this same case, at para 51, the position adopted by Sedley LJ in Douglas v Hello! Ltd (below n 5) is noted. That position regards the protection of autonomy as the basis of privacy law. 3 Younger Committee, Report of the Committee on Privacy (Cm 5012, 1972) para 109. 4 F Schauer, Free Speech: A Philosophical Enquiry (Cambridge, Cambridge University Press 1982) 98. 5 Douglas v Hello! Ltd [2005] EWCA Civ 595. 6 Pretty v UK, no 2346/02, 29 April 2002, (2002) ECHR 423, (2002) 35 EHRR 1, para 66 (justifying prohibitions on assisted suicide, however, as necessary in a democratic society).

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These two senses of the term privacy are also found in US law. In US state law, privacy can mean keeping information private. In their seminal article in 1890 calling for a right to privacy, Warren and Brandeis’ concern was for keeping information out of the journalistic public eye.7 The US Restatement (Second) Torts, adopting Prosser and Keeton’s four-part analysis, also places privacy in this light.8 Yet Warren and Brandeis’ use of Cooley’s phrase ‘the right to be let alone’ has taken on the second meaning as well. In US constitutional law, the right to privacy has come to mean a right to private choice, namely autonomy. It is in this sense that privacy has been given protection in Roe v Wade,9 the US constitutional protection of a woman’s right to terminate a pregnancy. Also in Griswold v CT,10 the US Supreme Court upheld privacy in the sense of autonomy, with the rejection of a state ban on the sale of contraceptives. These two views of privacy are also echoed in scholarly comment. Gavison understands privacy as secrecy, anonymity and solitude.11 Feldman characterises privacy as freedom of choice.12 Where privacy is understood as seclusion and autonomy is understood as freedom of choice, commentators show the non-equivalence of the two terms,13 and counsel their disjunction.14 Feinberg explores the overlap and confusion of concepts with regard to the privacy right as developed in US jurisprudence,

7 SD Warren, LD Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193 at 205, citing T Cooley, A Treatise on the Law of Torts (2nd edn) (Chicago, Callaghan & Co 1888) at 24, 29. 8 Restatement (Second) Torts sec 652A, adopting WL Prosser, ‘Privacy’ (1960) 48 California L Rev 338 (seclusion, appropriation of name or likeness, publicity, and false light). 9 410 US 113 (1973). The other aspect of privacy is also present in abortion cases: Justice O’Connor in Planned Parenthood of Southeastern Pennsylvania v Casey, 112 S.Ct. 2791 (1992), calls the abortion decision among the ‘most intimate and personal choices a person may make in a lifetime’. For a critical view of the legal use of the concept of privacy in Roe v Wade, see CA MacKinnon, Feminism UnModified (Cambridge, Mass, Harvard University Press 1987) 99-102 (women do not have privacy but are seen to constitute men’s privacy). 10 381 US 479 (1965). Justice Goldberg’s concurring opinion in Griswold v CT uses ‘privacy’ in the sense of solitude. 11 R Gavison, ‘Privacy and the Limits of the Law’ (1980) 89 Yale LJ 421 at 428. Diane Zimmerman describes both the tort and the constitutional right as addressing ‘expectations of seclusion’: DL Zimmerman, ‘Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort’ (1983) 68 Cornell Law Review 291 at 296, 297. 12 D Feldman, ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty’ (1994) Current Legal Problems 41. See also HH Cohn, ‘On the Meaning of Human Dignity’ (1983) 13 Israel Yearbook on Human Rights 226 at 247; JW Harris, Property and Justice (Oxford, Clarendon Press 1996) at 229 (privacy as a range of autonomous choice); J Michael, ‘Privacy’ in Christopher McCrudden and Gerald Chambers (eds), Individual Rights and the Law in Britain (Oxford, Clarendon Press 1994) 265 at 267-8 (privacy as choice and control over the circulation of information). 13 G Dworkin, Theory and Practice of Autonomy (Cambridge, Cambridge University Press 1988) at 104; H Gross, ‘Privacy and Autonomy’ in JR Pennock and JW Chapman (eds), Privacy: NOMOS XIII (New York, Atherton Press 1971) 169-181 at 181; R Wacks, ‘The Poverty of “Privacy”’ (1980) 96 Law Quarterly Review 73, 79. 14 E Beardsley, ‘Privacy, Autonomy, and Selective Disclosure’ in JR Pennock and JW Chapman (eds), Privacy: NOMOS XIII (New York, Atherton Press 1971).

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and argues that had Justice Douglas in Griswold v CT used ‘autonomy’ in place of ‘privacy’, the confusion in the various meanings of privacy would have been avoided.15 It is in the latter sense that the integrity right can be called a right to privacy, as autonomy. The integrity right protects an author’s choice and control over the form and content of her expression even in a public forum. This principle was upheld in Joseph v National Magazine Co Ltd,16 considering a complaint against editorial modification to a literary work well before the enactment of section 80 of the CDPA. In that case the court wrote that the ‘plaintiff was entitled to write his own article in his own style, expressing his own opinions’. We will call the integrity right directly a right of autonomy, to avoid reference to the dual nature of the term ‘privacy’. Our discussion also will avoid the frequent characterisations of the integrity right as a right of reputation or a personality right.17 We characterise the integrity right as a right of expressive autonomy. C.

Freedom of Expression Doctrine

Recognition of the integrity right reflects the rise in individual rights of expression. It also reflects aesthetic-philosophical currents supporting the notion of creative, expressive individualism. The focus of this discussion will be situating the integrity right within the freedom of expression doctrine. The integrity right principle can be found in cases concerning the freedom of expression. Courts already have held that a speaker must be protected against the distortion of his or her speech for his or her speech to be free. It is the autonomy rationale that is used by the courts in these cases, supporting the speaker’s choice and control over expression.18 In addition to UK case law, we will look to precedents of the ECtHR. US cases are also relevant to the ‘Anglo-American tradition’ of freedom of expression: in Derbyshire County Council v Times Newspapers Ltd,19 the UK court wrote that arguments of American constitutional cases are already a recognised part of English law, in its free expression principle. 15 J Feinberg, The Moral Limits of the Criminal Law: Harm to Self (vol 3, New York and, Oxford, Oxford University Press 1986) 84-91. The various uses of ‘autonomy’ might then have become problematic for defining the contours of the legal right. It would have been necessary to make explicit that autonomy was used in the sense of discretionary control. 16 Joseph v National Magazine Co Ltd [1959] Ch 14, 20. 17 See LK Treiger-Bar-Am, ‘The Moral Right of Integrity: A Freedom of Expression’, in F Macmillan (ed), New Directions in Copyright (vol 2 Cheltenham, Edward Elgar 2006). 18 Board of Education, Island Trees Union Free School Dist No 26 v Pico, 457 US 853, 866 (1982) (fostering self-expression). See also CE Baker, Human Liberty and Freedom of Speech (New York and Oxford, Oxford University Press 1989) 49-59; R Dworkin, Taking Rights Seriously (London, Duckworth 1978) 198; Schauer (n 4) 67-72. 19 Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011.

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With respect to the freedom of expression (as with the meaning of autonomy and privacy, as seen above), UK courts can look to both sides of the Atlantic. i

Choice over Expression

The English Court of Appeal in Ashdown v Telegraph Group Ltd wrote: The prime importance of freedom of expression is that it enables the citizen freely to express his ideas and convey information … in a form of words of his or her choice.20

In Ashdown the Court also cited Jersild v Denmark, where the ECtHR wrote that Article 10 of the European Convention on Human Rights (ECHR) protects ‘not only the substance of the ideas and information expressed, but also the form in which they are conveyed’.21 The integrity right embodies the same principle. The First Amendment of the US Constitution protects a speaker’s choice and control over expression. In West Virginia State Board of Education v Barnette,22 the US Supreme Court found unconstitutional a state regulation requiring children in public schools to salute the American flag. The individuals’ right to autonomy was safeguarded against the state’s compulsion to declare a belief, or to utter what is not in one’s mind. In Miami Herald v Tornillo,23 the US Supreme Court held that a newspaper could not be compelled by state law to print a political figure’s reply to a press critique. ii

Distortion of Speech

Similarly, a speaker’s choice is not free if it is distorted by the speech of another. School cases have shown that a speaker, namely the school or the government, may ‘take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted’.24 A series of cases concerning shopping centres also upholds this principle. In these cases shopping centre owners disallowed the collection of signatures or the distribution of leaflets on their property. The courts have been careful not to burden the owners’ expression rights. The owners’ speech 20 Ashdown v Telegraph Group Ltd [2002] Ch.149, para 31. The Court considered the claimants’ copyright claim as pitting property rights against expression rights, see para 39. The analysis herein looks to situations where rights of expression are in conflict. 21 Jersild v Denmark, Series A No 298 (1994), (1995) 19 EHRR 1, para 31. 22 West Virginia State Board of Education v Barnette, 319 US 624, 631 (1943)(‘selfdetermination’). 23 Miami Herald v Tornillo, 418 US 241 (1974). 24 Rosenberger v Rector and Visitors of University of Virginia, 515 US 819, 833 (1995) (citation omitted); see also Hazelwood School District v Kuhlmeier, 484 US 260 (1988), and Downs v Los Angeles Unified School District, 228 F.3d 1003 (2000).

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cannot be compelled by requiring them to allow leafletting. In PruneYard Shopping Center v Robins,25 where the US Supreme Court sustained a California law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions, the owners’ rights of expression were found not to be burdened. The shopping centre cases also present a precedent for the integrity right insofar as they acknowledge that the freedom of expression may require regulation of property rights.26 A further precedent is to be found where courts uphold the principle that a speaker cannot be forced to subsidise activities that would compel his or her expression. In Pacific Gas & Electric Co, the US Supreme Court struck down a state law requiring a private utility to place a newsletter in its billing envelopes, because the utility ‘may be forced either to appear to agree with [the intruding leaflet] or to respond’.27 These cases are considered more fully below. A case we would like to look at more closely is Hurley and S Boston Allied War Veterans Council v Irish American Gay, Lesbian and Bisexual Group of Boston.28 In Hurley, the Supreme Court ruled that the First Amendment would not allow a state law to compel a private body to undertake an expressive activity. In that case GLIB, an organisation of gay, lesbian and bisexuals of Irish descent, petitioned for the right to march in Boston’s St Patrick’s Day parade, organised by the Veterans Council. GLIB had obtained a state court order requiring their inclusion in the parade, pursuant to the state public accommodation statute. A unanimous Supreme Court reversed. The Court’s ruling upheld the principle of autonomy, supporting the Veterans Council’s speech: ‘under the First Amendment … a speaker has the autonomy to choose the content of his own message’.29 One who chooses to speak may also decide what not to say. The Court upheld the same principle that the integrity right supports: the speaker – or the speaker’s work – cannot be forced by another’s speech to say something against the will of the author. The Court rejected the forced alteration of one’s message.30 The Court found that the state law required speakers to ‘modify the content of their expression’, which the ‘general rule of speaker’s autonomy forbids’.31

25

PruneYard Shopping Center v Robins, 447 US 74 (1980). Appleby v UK, no 44306/98, ECHR 2003-VI, (2003) 37 EHRR 38. Pacific Gas & Electric Company v Public Utilities Commission of California 475 US 1, 15 (1986) (plurality opinion; citation omitted). 28 Hurley and S Boston Allied War Veterans Council v Irish American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995). 29 Above (n 28) 573. 30 Above (n 28) 577, 581. 31 Above (n 28) 578. 26 27

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Yet in Hurley, only the Council stated a claim pursuant to the freedom of expression. GLIB did not raise the First Amendment argument before the Supreme Court, but rather relied on the public accommodation/ discrimination argument. Had a First Amendment claim been raised by GLIB, the case would have presented autonomy of expression arguments on both sides. It is to situations of conflicting claims of freedom of expression that the discussion will now turn.

II.

LIMITATIONS ON THE RIGHT TO CONTROL THE CONTENT OF SPEECH

The first part of this chapter has addressed reasons grounded in expressive autonomy for allowing restrictions on the use of another’s speech: specifically the restrictions entailed in moral rights law. A similar analysis could be made of copyright and even trade mark law.32 We are not, of course, claiming that this is the only way of approaching the justification of those regimes. However, it is an approach to these rights that has a certain explanatory power, the implications of which we want to explore. In this second part of the chapter we will address the question of the limits to control over a work inherent in the expressive autonomy justification. In particular, we will focus on limits set by the expressive autonomy of those who would adopt an existing work for use as part of their own speech. When, on the basis of the expressive autonomy justification for moral rights, ought speech over which there has been private control become available to public use? When ought it to be available to other speakers as a vehicle for the development of their own autonomy, a vehicle for expressing views perhaps quite at odds with those of the original speaker? Within the confines of this paper we shall have to gloss over a number of difficulties. For example, an important analogy will be drawn from the law of trade mark. In doing so, it will be assumed that the expressive autonomy justification for control over a copyright work and a trade mark are of similar strength. Many commentators, however, would want to be more generous to those who would adopt trade marks for use in their own speech than to those who would adopt copyright works. This may be because of the traditional reluctance to protect commercial speech. It may also be because trade marks are characteristically owned by corporations and the autonomy claim seems less apposite when it is made by groups rather than individuals. But there is a minefield of difficulty in those questions around which this chapter will have to skirt. 32 See M Spence, ‘The Mark as Expression/The Mark as Property’ (2005) 58 Current Legal Problems 491.

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Two approaches seem possible to the question of when a concern for expressive autonomy entails a limitation to the control that it gives a speaker over the use of her work or mark. The first approach is advocated by Bezanson.33 He claims that whenever the use of someone else’s expression is transformative, then the original speaker no longer has a claim based in expressive autonomy to control his or her speech. Transformative use he categorises as either substantive transformation (where the original speech is incorporated into new speech and transformed in the process: as it is sometimes put ‘re-coded’) or transformation by avowal (where the original speech is simply adopted and affirmed by the second speaker). The idea here is that the work, once transformed, becomes the speech of the person responsible for its re-coding or avowal and not the speech of the original speaker. To take an example from the facts of a well-known US copyright case, once a drawing of Mickey Mouse finds its way into an obscene comic book,34 it is no longer the speech of Walt Disney or the Disney Corporation over which they might be given some control, it is transformed and becomes the speech of the comic book artist. This concept of transformative use, though not in as broad a form as we find it in Bezanson, has been powerful in the law of many jurisdictions relating to the parodic re-coding of works and marks. Thus the UK law of copyright used to adopt the position, though no longer does, that a parody was not a reproduction of a work if the parody itself constituted a work attracting protection.35 A commitment to permitting transformative uses might also be found in the UK provision of a notice explaining that a work has been modified as a potential remedy for its derogatory treatment.36 The effect of such a notice is to declare that the relevant speech is no longer that of the original creator, but of the modifier. In the Alcolix decision, the German Federal Court of Justice (Bundesgerichtshof) claimed that a parody would constitute a freie Benutzung (‘free use’) of a copyright work as long as there was sufficient innerer Abstand (‘inherent distance’) between it and the original.37 In Italian copyright law, a parody will not

33 RP Bezanson, ‘Speaking Through Others’ Voices: Authorship, Originality and Free Speech’ (2003) 38 Wake Forest Law Review 983. 34 Walt Disney Productions v Air Pirates 581 F.2d 751 (9th Cir 1978). 35 For the older position see: Hanfstaengl v Empire Palace [1894] 3 Ch 109 at p 128 per Lindley LJ; Glyn v Weston Feature Film Company [1916] 1 Ch 261 at p 268 per Younger J; Joy Music Limited v Sunday Pictorial Newspapers (1920) Limited [1960] 2 QB 60 at 70 per McNair J. For the current position see: Schweppes Ltd v Wellingtons Ltd [1984] FSR 210 at 212 per Falconer J; Williamson Music Ltd v The Pearson Partnership Ltd [1987] FSR 97 at 106 per Judge Paul Baker QC. Some commentators argue that the concept of transformative use nevertheless has a role to play in parody cases as a guide to whether the part taken is substantial, see WR Cornish, Intellectual Property (5th edn) (London, Sweet and Maxwell 2003) 11-10; H Laddie, P Prescott and M Vitoria, The Modern Law of Copyright and Designs (3rd edn) (London, Butterworths 2000) at 4.54-5, 3.139; ibid at 3.142. 36 Section 103(2) CDPA. 37 BGH; (1994) Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 206 (Alcolix).

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constitute an infringement of the work upon which it is built if the parody is an ‘opera dell’ingegno di carattere creativo’, which will itself depend upon whether it has an autonoma identità.38 The concept of the transformative use is as attractive to courts as to commentators. Bezanson’s claim seems to us, however, to go too far. It is certainly the case that if a work or mark is so transformed that it is no longer recognisable as part of a new text, then any speech claim that there might be over the work or mark in its original form must be extinguished. But this is not the only situation that Bezanson has in mind, as is made clear by his concept of transformation by avowal. He seems to mean that any expressive adoption of the work or mark by a subsequent speaker breaks the connection between the work or mark and the original speaker. He seems to mean that any expressive adoption of the work means that the only possible speech claim is that of the party undertaking the recoding or avowal. No jurisdiction has used the concept of transformative use in quite this way, and they have been right not to do so. It is at least arguable that using a work or mark in contexts in which the work or mark is identifiable still constitutes a kind of compelled speech. An analogy might be found in the US cases providing that forced financial contributions to the expressive activity of others can constitute compelled speech. Wasserman argues that the heart of the difficulty with forced financial contributions is not that some hearer will mistakenly identify a particular contributor with a particular view, but that it threatens the expressive autonomy of the speaker simply by forcing him or her to participate in expressive acts with which he or she might disagree.39 Madison puts the same point, less helpfully, as forcing the speaker to ‘subsidise’ the speech of the second user.40 Talk of ‘subsidy’ seems unfortunate because, of course, it assumes the right to control, but his point is essentially the same as that of Wasserman. In this way, permitting the transformation of a work is different from permitting the criticism of it in the way that any regime of free speech must do. This is because criticism does not involve the participation of the original speaker. If that is right, then it cannot be that no transformative use threatens the expressive autonomy of the creator of a work or mark, but only transformative use in which the work or mark is no longer identifiable. A second approach to the limitation of the expressive autonomy claim of the creator of a work starts with the assumption that the use of the work may affect the expressive autonomy of its creator wherever that work is identifiable, but then asks whether there are situations in which respect for

38

Tribunale di Milano (1996) Foro Italiano 1426 (Va dove ti porta il cuore). HM Wasserman, ‘Compelled Expression and the Public Forum Doctrine’ (2002-2003) 77 Tulane Law Review 163 at 191-193. 40 MJ Madison, ‘Complexity and Copyright in Contradiction’ (2000) 18 Cardozo Arts & Entertainment Law Journal 125 at 166. 39

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the expressive autonomy of the person who would transform a work requires that they be entitled to do so. Two situations have emerged in which this seems to be the case. The first is the situation in which it is necessary to adopt and transform the work adequately to comment upon the work or its creator. This is arguably reflected in the copyright defences relating to criticism or review.41 It seems reasonable to allow transformation of a work for this purpose because there may be no other effective way in which to comment upon a speaker or their words than to use, and sometimes to recast, them. Moreover, using a work for this purpose does not undermine, but recognises the nexus between a work and its creator that it is the overall purpose of moral rights law to protect. If I am to engage in dialogue in the market of ideas, then I must expect that others will take my words and scrutinise, analyse, quote and mis-quote them. As the French legislators said in enacting their parody provision, that is ‘la gloire et la servitude de l’artiste’.42 Criticism by transformation of a work, while it is different to mere criticism in that to some extent it forces the original speaker to participate in speech with which he or she would not agree, at least involves the type of serious engagement with speech that might be expected as a part of public discourse. A speaker cannot object to being compelled to participate in an argument about the meaning and value of his or her own work. The second situation is more problematic. This is the situation in which a work has become a cipher for a range of meanings different from those that the creator of the work would ascribe to them. An example upon which there has been frequent comment is drawn from trade mark law. The trade mark ‘Barbie’, at least in English, is used generically to mean something such as a woman who is regarded as, in the words of one commentator, ‘a beautiful but empty headed accessory’.43 A whole world of Barbie Art – a world that has recently seen US litigation vindicating the rights of the Barbie artists44 – has been built upon this range of meanings. If there genuinely exists no alternative vehicle for expressing a particular range of meanings – as there may not be in the Barbie case – then the mark may have become itself a kind of public forum. It may have become a space for debate rather than a contribution to debate. This type of thinking seems to underpin the trade mark law of genericide,45 although that law is 41

Section 30 CDPA. ‘Il va de soi que l’auteur se doit de consentir, à partir de la divulgation de l’ouvrage, à ce que l’ouvrage, lui échappe en partie. Les analyses de l’oeuvre, les citations, les revues de presse, les pastiches, les caricatures, la diffusion partielle par les mille moyens de la publicité moderne, constituent la gloire et la servitude de l’artiste.’ Journal Officiel de la République Française Vol XXIV (Paris, Imprimerie des journaux officiels 1955). 43 RC Dreyfuss, ‘Expressive Genericity: Trademarks as Language in the Pepsi Generation’ (1990) 65 Notre Dame Law Review 397 at 400. 44 Mattel Inc v Walking Mountain Productions, 353 F.3d 792 (9th Cir 2003). 45 Section 46(1)(c) Trade Marks Act 1994. 42

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arguably inadequate to protect the relevant free speech interest. In particular, genericide happens when, in the terminology of Peirce’s semiotics, a trade mark shifts from being a symbol with one particular referential function (that of identifying the supplier of goods or services) to being a symbol with a different referential function (that of signifying a whole type of goods or services).46 The situation with which we are concerned is the much more semiotically significant situation of a symbol coming to operate as an index (that is, as a sign used to point to something else because of a conventional association). There is arguably no good reason why this second situation ought not to be regarded as worthy of an exception to infringement and also why copyright works ought not to be regarded as just as capable of becoming generic in this way as trade marks are. Of course, prioritising the interests of the second speaker in this context is a much stronger thing to do than prioritising the interests of the second speaker in the first range of contexts. But, in the case of a limited range of works which have become important cultural symbols, such a response seems justified as a way of upholding expressive autonomy. This is largely because the link between that work and its original creator will have inevitably weakened as the work acquired its new range of meanings. If the argument of this chapter can be accepted then there are good expressive autonomy justifications both for granting, and for limiting, a creator’s control over his or her work. Of course, other social policies also do, and should, shape the intellectual property regimes, but the notion that works are speech, the protection of which is required by a commitment to respecting expressive autonomy, is one that deserves greater investigation than it has often had in the common law jurisdictions.

46 See CS Peirce, ‘The Icon, Index and Symbol’ in C Hartshorne and P Wiess (eds), Collected Papers of Charles Sanders Peirce: Elements of Logic (Vol 2, Cambridge, Mass, Harvard University Press 1960) 156-173.

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15 The Princess and the Press: Privacy after Caroline von Hannover v Germany KATJA S ZIEGLER

I.

INTRODUCTION

I

N JUNE 2004, the European Court of Human Rights (ECtHR) handed down a landmark judgment against Germany in the perennial battle between Princess Caroline and the tabloid press.1 The case has wide implications for several European states parties, especially as from a comparative perspective Germany traditionally takes a middle position on the protection of privacy in the attempt to deal adequately with situations that spatially are in public but do not concern an intended public appearance.2 These most crucial situations, which may be termed publicprivate if one distinguishes a spatial and a functional element, are in the middle or grey area of a spectrum. This spectrum’s extreme ends would be spatially private premises (private-private, entailing a presumption of privacy unless otherwise permitted) and explicitly or intended or functionally public appearances (public-public). At these extreme ends, the balance between privacy and other human rights is hardly controversial. It is the middle category that gives rise to contentious debates. The European Court of Human Rights applies a more restrictive balancing test in this middle category than the German legal system, which follows a leading decision of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) of 1999 which (among other decisions) gave rise to the proceedings in the European Court of Human Rights in Strasbourg. The facts are well-known: Princess Caroline complained about photographs taken of her in various everyday life situations, such as at the 1 Von Hannover v Germany, no 59320/00, 24 June 2004, ECHR 2004-VI, 1, (2005) 40 EHRR 1, (2004) Neue Juristische Wochenschrift 2647. 2 Cf C Grabenwarter, ‘Schutz der Privatsphäre versus Pressefreiheit: Europäische Korrektur eines deutschen Sonderweges?’ (2004) Archiv für Presserecht 309, 314.

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market, on horseback, cycling, in a restaurant, tripping over an object, etc. Two situations were not subject to the ECtHR decision because prior to this the German Constitutional Court had already confirmed a breach of personality rights: one of these involved her children, the other concerned pictures taken after she had retreated with her boyfriend to a secluded area in a restaurant.

II.

THE TEST APPLIED BY THE GERMAN COURTS

The German model of protection of privacy is rights-based, most notably involving on the one hand the rights of freedom of expression and freedom of the press, and, on the other, the personality rights deriving from human dignity and freedom of action (Articles 1(1) and 2(1) of the German Constitution (Grundgesetz, GG)).3 There is no a priori preference for one or the other. Conflicts are resolved by balancing on a case-by-case basis. Courts and academic literature assess protection of privacy on the basis of a proportionality model. In order of decreasing degrees of protection, the following spheres of privacy are drawn up: the absolutely protected sphere of intimacy, the sphere of privacy, and the public (or social) sphere.4 Hence privacy is closely linked to personality rights and characterised by two elements – intimacy as the right to be left alone (and thereby to develop one’s personality) and autonomy as the freedom to act (and thereby to develop one’s personality). Balancing freedom of the press against privacy rights in the case of photographic images has been defined by a statute, the Copyright-in-theDomain of-Arts Act (Kunsturhebergesetz).5 The existence of this statute is a direct result and requirement of the rights-based model. As no a priori preference is given to privacy or freedom of the press, these human rights are equally protected on the level of scope of protection. The balance is only struck on the secondary level of whether a restriction of a human right is justified. In order to be justified under German constitutional law, more specifically as the derivative of the rule of law, any restriction of a human right must fulfil the formal condition of being provided for by

3 Recent survey of case law of the Constitutional Court by R Scholz and K Konrad, ‘Meinungsfreiheit und allgemeines Persönlichkeitsrecht’ (1998) 123 Archiv des öffentlichen Rechts 60 ff. 4 See for example, Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court), 1 BvR 653/96, 15 December 1999, 101 Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 361 also at www.bundesverfassungsgericht.de (all quotes given in the following are translations by the author); Scholz and Konrad (n 3) at 64; C Gusy, ‘Grundrechtsschutz des Privatlebens’, in F Zehetner (ed), Festschrift für Hans-Ernst Folz (Wien, Neuer Wissenschaftlicher Verlag 2003), 103ff. 5 §22 Kunsturhebergesetz (KUrhG, Copyright-in the Domain of Arts Act).

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statute. This requirement is similar to the European Convention on Human Rights’ (ECHR) conditions for limiting several rights, for example, Articles 8(2) or 10(2) ECHR.6 The Copyright-in-the-Domain of-Arts Act generally prohibits publication of photographs of private individuals without consent. An exception is made for images relating to persons ‘of contemporary history’ which may be taken and disseminated unless opposed by legitimate interests of the persons involved.7 Case law and academics have developed a scheme of graded protection from this by classifying individuals into three categories: (a)

(b)

(c)

persons of contemporary history par excellence (‘absolute Person der Zeitgeschichte’) – pictures of whom are considered as important by virtue of the person, not his or her function; situational persons of contemporary history (‘relative Person der Zeitgeschichte’), eg persons accompanying a person of contemporary history par excellence;8 and merely private individuals.

The Bundesverfassungsgericht and the lower courts generally classified Princess Caroline as a person of contemporary history par excellence by virtue of being the eldest daughter of the Prince of Monaco. It has to be noted – and indeed the Constitutional Court stresses this – that these categories are mere analytical tools and do not dispense with the need to balance the interests involved in each situation.9 All the Court says is that there may be a case for allowing pictures to be published without consent, not that this is automatically the case with regard to a persons of contemporary history par excellence. Legitimate interests deriving from privacy rights may prohibit the taking and publication of photographs. Three determinants of the scope of privacy protection can be made out in the case law of the Federal Constitutional Court: (a)

a substantial one, which would lead to a substantive privacy test comprising information about matters that have to be considered as typically private because of their content. The Constitutional Court names activities, discussion or demonstration of which are normally considered as embarrassing or result in negative public reactions, like

6 See, for example, C Ovey and R White, Jacobs & White, European Convention on Human Rights (4th edn) (Oxford, Oxford University Press 2006) 218 ff, esp 223ff; C Engel, ‘Die Schranken der Schranken in der Europäischen Menschenrechtskonvention’ (1986) 37 Österreichische Zeitschrift für öffentliches Recht 261; W Berka, ‘Die Gesetzesvorbehalte der Europäischen Menschenrechtskonvention’ (1986) 37 Österreichische Zeitschrift für öffentliches Recht 71. 7 §23 KUrhG. 8 Cf Bundesgerichtshof (BGH, Federal Court of Justice), VI ZR 217/03, 9 March 2004, 158 Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ) 218, also at www.bundesgerichtshof.de. 9 BVerfG (n 4) para 28, 106; also BGHZ (n 8) at 220.

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(b)

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Katja S Ziegler disclosure of diaries, confidential communication between spouses, matters of sexuality, socially divergent behaviour or diseases,10 sometimes regarded as falling within the sphere of intimacy. Following the Caroline of Monaco/Hannover jurisprudence of the Constitutional Court, probably a further example has to be added, namely the relationship between parents and their minor children; a spatial one which characterises the area of retreat from public view or knowledge necessary for the development of a personality without which ‘the individual could be psychologically overcharged’; this spatial element can virtually be equated with the protection of the home;11 an intermediate category that is neither one of spatial seclusion in the sphere of one’s home nor qualifying by substance, as it mostly concerns anodyne acts of ordinary life, as in the present case. Acknowledging that the development of the personality does not stop at the front door, the Constitutional Court introduces a further category – situational seclusion – like retreating to a quiet corner of a publicly accessible restaurant.12 Such personal behaviour may be an indicator militating in favour of tipping the balance towards privacy, but also relevant is the way the information was gained (secretly, by surprise, by long-range lens photography, etc).

The scope of protection of freedom of expression and of the press is independent of the form the expression takes (word, writing or picture) and independent of a quality assessment.13 In balancing freedom of the press and privacy rights the Constitutional Court refuses to make freedom of the press dependent on a qualitative evaluation of the press or the reportage. This would imply statism considered contrary to the core of this human right (whose very nature is to be directed against the state) and which would ultimately undermine it.14 Hence even commercial speech, such as shocking advertisement, is encompassed by the freedom of the press, like the advertisement of the clothing company Benetton depicting a naked bottom with the inscription ‘HIV positive’.15 This is reinforced by the fact that the German Constitution, for reasons stemming from the historic experience of dictatorship, includes an explicit prohibition of censorship (Article 5(1) 3rd sentence of the Grundgesetz).

10

BVerfG (n 4) para 75. BVerfG, 1 BvR 2378/98, 1 BvR 1084/99, 3 March 2004, para 119, 109 BVerfGE 279, 313ff. 12 BVerfG (n 4) paras 78ff. 13 34 BVerfGE 269, 283; BVerfG (n 4) at 389ff (paras 96ff, 99); B Pieroth and B Schlink, Grundrechte (18th edn) (Heidelberg, CF Müller 2002) paras 556, 572. 14 BVerfG (n 4) para 96. 15 BVerfG, 1 BvR 426/02, 11 March 2003, 107 BVerfGE 275, 280-83; also BVerfG, 1 BvR 1762 1787/95, 12 December 2000, 102 BVerfGE 347. 11

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This is generally seen as an absolute limitation on restricting the communicative freedoms of Article 5 of the Grundgesetz,16 ie such restrictions of the freedom of the press that amount to censorship are absolutely prohibited.17 Although freedom of the press is not unlimited, measures restricting freedom per se and a priori are caught by the prohibition of censorship.18 Hence the Constitutional Court largely refrains from laying down qualitative or substantive criteria for press products. The Court stresses that information valuable for the formation of opinion cannot be separated from entertainment. Both become more and more entangled (‘infotainment’). The formation of opinion and entertainment are not opposed concepts.19 The Constitutional Court uses extensive arguments to support its proposition that even reports about celebrities are protected by freedom of the press because celebrities per se represent certain values and life-styles and are positive or negative role models (Leitbild- or Kontrastfunktion). This principle had always been accepted for politicians in the interests of democratic transparency and control, but – according to the Court – it also applies to other persons participating in public life.20 Issues of the legitimacy of the interest of the public will not limit the scope of protection of the freedom of the press but will be relevant when the lawfulness of a restriction on grounds of conflicting privacy rights (the justification of an interference with the freedom of the press) has to be assessed: Only when at the stage of balancing [the freedom of the press] with conflicting personality rights, will it be relevant whether questions that are of significant concern to the public are discussed in a serious and factual manner or whether only private matters that serve only to satisfy curiosity are covered.21

In the process of balancing privacy and the public interest the Court discusses and then explicitly rejects the proposition that with respect to persons of contemporary history par excellence there could be an a priori bias towards allowing reportage only in situations where such persons are depicted in the pursuit of a public function.22 It denies that this applies to

16 H Bethge, in M Sachs (ed), Grundgesetz Kommentar (3rd edn) (München, CH Beck 2003) Art 5 paras 129ff. 17 C Gucht, Das Zensurverbot im Gefüge grundrechtlicher Eingriffskautelen (Frankfurt/ Main, Peter Lang 2000). 18 Bethge (n 16) para 131. 19 BVerfG (n 4) para 98ff. 20 BVerfG (n 4) para 101. 21 ‘Erst bei der Abwägung mit kollidierenden Persönlichkeitsrechten kann es darauf ankommen, ob Fragen, die die Öffentlichkeit wesentlich angehen, ernsthaft und sachbezogen erörtert oder lediglich private Angelegenheiten, die nur die Neugier befriedigen, ausgebreitet werden (vgl BVerfGE 34, 269 ).’ BVerfG (n 4) para 101. 22 BVerfG (n 4) para 106ff.

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Princess Caroline as the public could have a legitimate interest in information about how the person behaved generally and whether the public image (as an idol or role model) was congruent with the private behaviour.23 This left the Constitutional Court to seek an entirely case-by-case balance argument, which may be criticised as rather brief and loosely related to the facts. The criteria used were the location (secludedness), the way the photographs were taken or the information gained (secretly, taken by surprise), giving indicative weight to the way the persons behaved, and whether family rights (children) were concerned.24

III.

THE TEST APPLIED BY THE EUROPEAN COURT OF HUMAN RIGHTS IN VON HANNOVER

The ECtHR used a test of ‘reasonable or legitimate expectation of privacy’ as its point of departure25 which it had used in earlier case law and which seems to originate in the English legal system.26 In contrast to the German Constitutional Court, it struck a balance in favour of privacy rights. It was guided by the following arguments: 1. 2.

The activities engaged in were of a ‘purely private nature’.27 Adopting a functional approach to free speech, the ECtHR stated that: a fundamental distinction needs to be made between reporting facts … capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual, who, moreover, as in this case does not exercise official functions. While in the former case the press exercises its vital role of ‘watchdog’ in a democracy by contributing to ‘impart(ing) information and ideas on matters of public interest (Observer and Guardian, cited above, ibid.28) it does not do so in the latter case’.29

The Court continues that: the publication of the photos … of which the ‘sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life’, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.30 23

BVerfG (n 4) para 107. BVerfG (n 4) paras 109ff. 25 Von Hannover v Germany (n 1) para 51. 26 Von Hannover v Germany (n 1) para 69; Halford v UK, no 20605/92, Reports 1997-III, (1997) 24 EHRR 523, para 6. 27 Von Hannover v Germany (n 1) para 61. 28 The Court refers to Observer and Guardian v United Kingdom, no 13585/88, Series A no 216 (1991). 29 Von Hannover v Germany (n 1) para 63, also 72 (emphasis added). 30 Von Hannover v Germany (n 1) para 65 (emphasis added). 24

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It adopts a narrow interpretation of such a functional approach, namely, that of an official function in a state. The Princess did not occupy any such public function in the State of Monaco.31 The functional approach thus understood then does not seem congruent with the concept of a figure of contemporary society – as depicted by the ECtHR. According to the ECtHR it: affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions.32

IV.

A.

EVALUATION AND CRITICISM OF THE DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

Caroline not a Public Figure? -– What is Private?

Irrespective of the level of protection accorded to privacy and with the concurring opinion of Judge Cabral Barreto, intuitively it seems hard to deny that Princess Caroline is a public figure, even if not performing a public function in the State of Monaco. However, reference to intuition – either way – is highly subjective and, therefore, not a satisfactory solution where legal reasoning needs to be rationalised in the middle category of ‘public space and private function’. A purely functional approach, moreover, if narrowly interpreted as referring to governmental office, appears to lead to a rather uneven balance between freedom of expression and the right to a private life. While the advantage of the public-office criterion is to draw a relatively clear line for the protection of privacy, ideally a clear but more flexible and balanced test is preferable.33 The ‘official function’ test employed by the ECtHR raises the question whether in the future politicians and other office holders may be subject to reporting only while in pursuit of an official function as – following the ECtHR – only that would seem to give rise to a valuable debate in the democratic process.34 Although politicians and political debate are quoted in a merely exemplary

31

Von Hannover v Germany (n 1) paras 62ff. Von Hannover v Germany (n 1) para 72 (emphasis added). 33 See also below, IV.F. for considerations of subsidiarity under the margin of appreciation doctrine. 34 Cf R Calleja, ‘Privacy “Par Excellence”’ (2004) Entertainment Law Review 253, 255; M Bartnik, ‘Caroline à la francaise – ein Vorbild für Deutschland?’ (2004) Archiv für Presserecht 489, 492. In contrast P Tettinger, ‘Steine aus dem Glashaus’ (2004) Juristenzeitung 1144, 1146 favouring more privacy protection for prominents. 32

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manner,35 it seems hard to envisage other situations meeting the narrow personal/functional criteria of the ECtHR.36 By denying the existence at least of an intermediate category between entirely private persons and public persons fulfilling a state function, the approach of the Court remains crude and undifferentiated.37 At risk of being reproached for merely destructive criticism, to devise such a test is beyond the scope of this chapter. However, even against the backdrop of ECtHR jurisprudence, a few critical remarks may be added. The first is one of consistency: by adopting this approach, the ECtHR seems to deviate from its own case law as well as the definition used by the Parliamentary Assembly of the Council of Europe. In Lingens v Austria, it characterised a public figure as follows: More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.38

The Parliamentary Assembly defined public figures in a resolution as follows, most notably going beyond mere political function but including social or sports celebrities: Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.39

The second criticism is of lack of persuasiveness or at least convincing reasons. The concept of a figure of contemporary history seemed to be in line with both definitions.40 The ECtHR did not give reasons for this shift or explain why outside the exercise of official functions a ‘public’ figure

35 R Mann, ‘Auswirkungen der Caroline-Entscheidung des EGMR auf die forensische Praxis’ (2004) Neue Juristische Wochenschrift 3220, 3221. 36 Grabenwarter (n 2) at 310; Mann (n 35) at 3221; welcoming this A Heldrich, ‘Persönlichkeitsschutz und Pressefreiheit nach der Europäischen Menschenrechtskonvention’ (2004) Neue Juristische Wochenschrift 2634, 2636; annotation by R Vetter and N Warneke (2004) Deutsches Verwaltungsblatt 1226, 1228. 37 Cf M A Sanderson, ‘Is Von Hannover v Germany a Step Backward for the Substantive Analysis of Speech and Privacy Interest?’ (2004) 6 European Human Rights Law Review 631, 637. 38 Lingens v Austria no 9815/82, 24 June 1986, Series A no 103, (1986) 8 EHRR 407, para 42. 39 Resolution 1165 (1998) para 7. 40 See also the similar criteria in the United Kingdom Code of Practice of the Press Complaints Commission at www.pcc.org.uk/cop/cop.asp (‘s 3 ii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.’); R Calleja (n 34) at 253; see also Sanderson (n 37) at 635ff.

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loses this quality and how the boundaries of a public function are to be drawn. The merely intuitive reference to private life begs the question of definition and criteria.41 In effect the ECtHR reduces two competing (intuitive) meanings of ‘public figure’ to those who at the same time exercise public functions, neglecting – one is tempted to say counterintuitively – the second meaning that persons are public because they are – often of their own volition and with the help of the press – well-known to the general public.42

B. Reduced Interpretation of the Concept of ‘Person of Contemporary History’ A further criticism must be made about the lack of diligence and thoroughness in the judgment. By insinuating an automatism attached to the finding of a figure of contemporary history, the Court seems to have misrepresented the German courts’ use of this construction as a mere guideline or analytic tool.43 Indeed the Bundesverfassungsgericht has emphasised that these categories may not be applied formalistically or as a substitute for a proper balancing of interests.44 It may well be that this aspect has been somewhat neglected by the courts beyond paying lip-service, but in the light of the explicit dictum in the Constitutional Court’s decision before the ECtHR, this seems surprising.45 A welcome effect of the ECtHR judgment will be to increase awareness of this issue and remind courts to include reasons of this type in future decisions. Significant substantial changes in this respect are, however, unlikely.46

C.

The Spatial Delimitation of Privacy

The scope of the private sphere while in publicly accessible places is difficult to determine. The Constitutional Court’s criterion of obviously being in a secluded space in public is a subjective one and may be criticised. The United Kingdom Code of Practice of the Press Complaints Commission attempts to define what is a private-public space by the criterion of ‘a reasonable expectation of privacy’.47 The spatial aspects of this definition could be quite similar to the German test of secluded space. However, it is 41

Sanderson (n 37) at 638. Sanderson (n 37) at 637. 43 Similarly, M Scheyli, ‘Konstitutioneller Anspruch des EGMR und Umgang mit nationalen Argumenten’ (2004) Europäische Grundrechte-Zeitung 628. 44 Cf 101 BVerfGE 361, 392, para 106. Also BGH (n 8) at 220; Bartnik (n 34) at 490. 45 Also Grabenwarter (n 2) at 313; Mann (n 35) at 3222; Heldrich (n 36) at 2635. 46 Cf Mann (n 35) at 3222. 47 Above (n 40). 42

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more flexible and easily adaptable to the ECtHR’s point of departure, and the von Hannover decision may be absorbed easily. Although following the same rationale, namely the need to develop one’s personality outside the confines of the private home, the ECtHR does not enter into a substantive argument in this regard. It simply dismisses this criterion as too vague without looking at the detailed chiselling out that had taken place in this regard.48 D. Quality Assessment as a Precondition to Invoke the Freedom of the Press? Only Politically Valuable Debate in the General Interest? The potentially most significant and worrying divergence between Karlsruhe and Strasbourg is with regard to the importance of content to benefit from rights of free speech. As mentioned above, the approach of German constitutional law is to refrain from a substantive assessment of the value of the content and form of speech whereas the ECtHR in its Caroline decision appears to assess whether facts are ‘capable of contributing to a debate in a democratic society’. This is a departure from the broad scope of protection that Article 10 ECHR was found to encompass in past Strasbourg jurisprudence. One only needs to recapitulate the following quote: [T]he Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see Handyside v United Kingdom, judgment of 7 December 1976, Series A no 24, p 23, §49).49

The impact of the Strasbourg judgment will largely depend on the interpretation of an unclear point in this context: namely, whether the ECtHR means to assert that certain forms of expression which cannot be seen as valuable to the democratic process are a priori not protected by the freedom of speech, ie are already outside the scope of protection of Article 10 ECHR,50 or whether the value of free speech for a democracy comes in only at the balancing level, ie at the level of justifying an interference or restriction. In the former case, the right and, following the ECtHR, now also the obligation of the state to define by its content what qualifies as valuable 48

Grabenwarter (n 2) at 312. Von Hannover v Germany (n 1) para 58; Lopes Gomes da Silva v Portugal, no 37698/97, 28 September 2000, ECHR 2000-X, 85, (2002) 34 EHRR 56, para 30. 50 Such is the interpretation by Mann (n 35) at 3221; Heldrich (n 36) at 2635; A Halfmeier, ‘Privatleben und Pressefreiheit – Rechtsvereinheitlichung par ordre de Strasbourg’ (2004) Archiv für Presserecht 417, 418; Vetter and Warneke (n 36) at 1227. 49

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speech seems to defeat the purpose of this right in a free society. It also would run counter to the structure of the Convention that accords equal weight to Articles 8 and 10.51 If assuming that the latter (balancing aspect) is the meaning intended by the ECtHR, this would come closer to the technique employed by the German Constitutional Court that includes this kind of assessment when balancing privacy against the interests of the public to information. Even on this level, strong arguments speak against such an a priori and automatic downplaying of lesser forms of speech. In the light of the interdependencies between politics, society and economy and the fact that society exercises influence over politics, the watchdog function of the press is not only legitimately applied to politicians but serves a broader purpose of exposing societal power and control in a democracy.52 Also, as Judge Cabral Barreto points out in his concurring opinion, there may be a less political but yet legitimate interest in exposing hypocrisy and comparing how personal behaviour tallies with behaviour in an official capacity or just in public.

E.

Pictures Less Protected than Verbal Expression?

In assessing the value of freedom of the press against the privacy rights of Princess Caroline, the ECtHR seems to differentiate between textual information and photographic information in a way that makes pictures automatically less protected because they are more sensitive with regard to personality rights.53 Whereas this consideration may play a legitimate role in the balancing process,54 the danger of eroding the protection of freedom of the press is inherent, and it has to be borne in mind that images may contain information and ideas, just like the written word.

F.

Margin of Appreciation

In the context of freedom of the press and privacy of public figures, it is well established in the case law of the ECtHR – in spite of its effet utile or effectiveness approach to construing the Convention55 – that it is not its role to substitute the states’ control over the press by its own control: 51 Sanderson (n 37) at 642; see also G Phillipson, ‘Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726, 751ff for this fallacy in British courts. 52 Grabenwarter (n 2) at 310. 53 Grabenwarter (n 2) at 312. 54 Cf text to n 106 in relation to the Campbell case. 55 Soering v United Kingdom, no 14038/88, 7 July 1989, Series A no 161, (1989) 11 EHRR 439, para 87; Loizidou v Turkey (preliminary objections), no 15318/89, 23 March 1995, Series A 310 (1995), (1995) 20 EHRR 99, paras 62ff.

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Determining whether the interference in question was ‘necessary in a democratic society’ requires the Court to establish whether it corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v United Kingdom (No 1) judgment of 26 April 1979, Series A no 30, p 38, § 62). In determining whether such a ‘need’ exists and which measures should be adopted to meet it, the national authorities have a certain margin of appreciation. It is not, however, unlimited but goes hand in hand with a European supervision exercised by the Court, which must give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Nilsen and Johnsen cited above, §43). It is not the Court’s task in carrying out its scrutiny to substitute its own view for that of the relevant national authorities, but rather to monitor, under Article 10 and in the light of the whole case, the decisions delivered by the national courts by virtue of their power of appreciation (ibid).56

The margin of appreciation of the Member States in the protection of privacy has been reiterated by the ECtHR in the present case,57 but this seems to amount to nothing more than paying lip-service to the principle. Especially where there is no common approach among Member States, the Court habitually grants a margin of appreciation,58 but in this case, the Court is not very persuasive in arguing why the limits of this margin are transgressed. Without giving reasons, it merely concludes that this is the case.59 Obviously and admittedly, the margin of appreciation is somewhat difficult to determine where the ultimate question is the compatibility of a state’s action or omission with the ECHR. However, it deserves mentioning that the German Constitutional Court uses exactly the same value-oriented categories but arrives at the contrary conclusion.60 This required a more thorough explanation by the Strasbourg Court. The ECtHR concludes in evaluating the facts, ie where one should expect a certain margin of appreciation of the Member State’s authorities, that Article 8 ECHR has been breached: Only when at the stage of balancing [the freedom of the press] with conflicting personality rights, will it be relevant whether questions that are of significant

56 Lopes Gomes da Silva v Portugal, no 37698/97, 28 September 2000, ECHR 2000-X, 85, (2002) 34 EHRR 56, para 30 (emphasis added); cf also Tammer v Estonia, no 41205/98, 6 February 2001, ECHR 2001-I, 263, (2003) 37 EHRR 43 para 69; Klass v Germany, no 5029/71, 6 September 1978, Series A no 28 (1978), (1979-80) 2 EHRR 214, para 49; Grabenwarter (n 2) at 310, fn 11; Ovey and White (n 6) 52ff, 232ff. 57 Von Hannover v Germany (n 1) para 57. 58 Von Hannover v Germany (n 1) para 57. Cf Goodwin v UK, no 28957/95, 11 July 2002, ECHR 2002-VI, 1, (2002) 35 EHRR 18, paras 72ff, 74 f; Pretty v UK, no 2346/02, 29 April 2002, ECHR 2002-III, 155, (2002) 35 EHRR 1 = (2002) Neue Juristische Wochenschrift 2851, para 37, 70ff. 59 Von Hannover v Germany (n 1) para 79. 60 Likewise, Grabenwarter (n 2) at 311ff.

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concern to the public are discussed in a serious and factual manner or whether only private matters that serve only to satisfy the curiosity are covered.61

This may be explained as an attempt at judicial activism on the part of the ECtHR to harmonise the privacy laws in the Member States of the Council of Europe,62 a policy that is, to say the least, even if a bona fide attempt to lead to a better human rights protection, debatable because of its knock-on effects on private law relationships.63 One would assume that if anything there is more of a margin of appreciation of the Member States where it comes to shaping the impact of human rights in horizontal relationships which often are more prone to be decided by value judgments that may vary between societies. Here we are at the heart of the debate raised in several chapters already. To correct a national legal system’s assessment with so little substantive argument when this is not in profound contradiction to the ECHR but differs mainly on the facts, seems to go beyond the mandate of the ECtHR.64 One may add that even the European Court of Justice, which is known to be more daring when it comes to harmonising the laws of Europe, has refrained from doing so in the Omega case, acknowledging the divergent meanings given in Member States to the concept of human dignity.65 A related concern may be the exercise of a rather dense and detailed control by the ECtHR on evaluations that belong to the domain of the trial judge.66 For example, the factual basis for assessing who is a public figure or figure of contemporary history may well depend on the social climate in a Member State. G.

Consequences for the German Courts and Their Reaction

Critical commentators of the ECtHR decision in Germany have noted – not without satisfaction – that the decision may well go unheeded in the 61 ‘Erst bei der Abwägung mit kollidierenden Persönlichkeitsrechten kann es darauf ankommen, ob Fragen, die die Öffentlichkeit wesentlich angehen, ernsthaft und sachbezogen erörtert oder lediglich private Angelegenheiten, die nur die Neugier befriedigen, ausgebreitet werden (vgl BVerfGE 34, 269 ).’ BVerfG (n 4) para 101. 62 In this respect Grabenwarter (n 2) at 316, pointing to the dictum of Judge Zupancic who suspiciously stated ‘It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded.’ See also Vetter and Warneke (n 36) at 1228ff. 63 See especially the contribution of A Colombi Ciacchi, and also A Young and L Fastrich (chs 5, 4 and 3, respectively) in this volume. 64 For the issues raised in such a case of conflict between ECtHR judgments and the application of domestic law in Germany see BVerfG, 2 BvR 1481/04, 14 October 2004, 111 BVerfGE 307; see also below IV.G. 65 ECJ Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609, paras 31ff. 66 See also in the same vein comments by the Judge at the Constitutional Court H-J Papier, ‘Straßburg ist kein oberstes Rechtsmittelgericht’, Frankfurter Allgemeine Zeitung (Frankfurt, 9 December 2004) 5.

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German courts until the Constitutional Court adopts the more restrictive approach of the ECtHR.67 Technically speaking, this may be correct. The incorporated ECHR does not rank above other statutes in Germany, and, as has been recently affirmed by the Constitutional Court, while courts are under an obligation to give effect to the ECHR by interpretation, this obligation stops at least where it leads to a conflict with principles of the Constitution. There is no automatic priority of the ECHR at the level of domestic law.68 Even though German law generally does not know a doctrine of stare decisis, the decisions of the Constitutional Court are binding on all branches of public authority, most notably the lower courts, as an authoritative interpretation of constitutional rights.69 Hence one would assume that the lower courts would follow the Constitutional Court rather than the ECtHR. However, Federal Court of Justice (Bundesgerichtshof, BGH) decisions handed down after the ECtHR’s judgment show that the latter did not cause the friction that was feared.70 By avoiding a principled discussion, these decisions allow for a very pragmatic practical cooperation in a multi-level system of human rights protection. In a decision of 28 September 2004 the Federal Court of Justice upheld a judgment of the court of appeal71 in which it had given priority to the privacy of the daughter of Caroline von Hannover whose pictures were taken while participating at an international riding tournament. The story reported by the tabloid BILD-Zeitung, however, was exclusively concerned with her looks. The Federal Court of Justice stated, quoting the Constitutional Court, that the publication of an image required a balancing of the interest of the public and the legitimate interest of the person concerned. When doing the actual balancing, it turned on the personality rights of a person who is: neither in public office or otherwise occupying a position in public life [so privacy] prevails over the interest of the public to be informed.72

It then continues to flesh this out by referring to the ECtHR’s judgment: The interest of the public and of the press of making use of photographic reportage is less worthy of protection where it is, as in this case, exclusively based on membership of a reigning family, whereas the person herself does not exercise a public function, even if she belongs to the ‘international society (jet-set)’.73

67

Mann (n 35) at 3320. BVerfG (n 64). 69 According to §31(1) BVerfGG. 70 For compatibility of the ECtHR von Hannover decision (n 1) with the provisions of the German Constitution, see C Starck, ’Das Caroline-Urteil des Europäischen Gerichtshofs für Menschenrechte und seine rechtlichen Konsequenzen’ (2006) Juristen-Zeitung 76, 80. 71 Kammergericht (Court of Appeal of Berlin), judgment of 2 September 2003. 72 BGH, VI ZR 302/03, (2005) Neue Juristische Wochenschrift 56 f (translations of quotes by the author). 73 BGH (n 72) 7. 68

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Without raising the point of conflict between the Constitutional Court and the ECtHR, indeed by quoting the conflicting judgments in parallel, the Federal Court of Justice pragmatically incorporates the ECtHR’s approach in an individual case, reflecting a relationship of practical if not dogmatic cooperation with Strasbourg, the cases in front of them permitting. This practical cooperation is known in the context of EU law and the supremacy debate.74 It reflects a tendency in recent years in the civil branch of the courts, most notably the Federal Court of Justice, to narrow down the notion of a person of contemporary history par excellence.75

V.

COMPARISON WITH THE ENGLISH COURTS

Space does not permit a detailed comparison with the approach of the English courts to balancing privacy and the freedom of the press.76 The case law prior to the Human Rights Act 1998 can be crudely described as lacking a general right to privacy and to one’s own picture.77 As opposed to the rights-based German approach, English law reflected a liberty-based approach to human rights, which historically leans more towards freedom of expression and the press78 – as in the United States.79 Lord Justice Sedley’s speech in the Court of Appeal was famously in favour of the existence of a general privacy tort in the interim injunction phase of Douglas v Hello!.80 It triggered a debate on whether there is already81 – or should be82 – a general tort of privacy.83 The decision of the 74 BVerfG, 2 BvR 2134, 2159/92, 12 October 1993, 89 BVerfGE 155 (Maastricht Treaty); BVerfG, 2 BvL 1/97, 7 June 2000, 102 BVerfGE 147, 161-66 (Bananas); BVerfG, 2 BvR 2236/04, 18 July 2005 (European Arrest Warrant). 75 Scholz and Konrad (n 3) at 119. 76 See however, contributions of R Bagshaw and N Barber in this volume (chs 7 and 6). 77 See, for example, Kaye v Robertson [1991] FSR 62 (CA) (speeches of Glidewell , Bingham and Leggatt LJJ); Wainwright v Home Office [2002] QB 1334 (CA). Lord Justice Brooke held prominently in Douglas v Hello! Ltd [2001] QB 967 (CA) para 72: ‘English law, on the whole, compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon hole of an existing tort, and this process may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy’. 78 This is still reflected in s 12(4) of the Human Rights Act dealing with the freedom of expression: ‘(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which— (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.’ 79 DA Anderson, ‘Fundamental Issues in Privacy Law’ in B Markesinis (ed), Bridging the Channel (Oxford, Oxford University Press 1996) 123ff. 80 Douglas v Hello! [2001] QB 967 para 109ff, 126ff, 137. 81 U Amelung and S Vogenauer, ‘Schutz der Privatheit vor Presseveröffentlichungen’ (2002) Zeitschrift für Europäisches Privatrecht 341, 344, 355ff. 82 See contribution of N Barber in ch 6 of this volume.

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Court of Appeal of 18 May 2005 in Douglas v Hello! (No 6)84 seems to settle the issue. The Court applies the method prescribed by the Human Rights Act 1998, which requires that English courts ‘must take into account’85 Strasbourg decisions. The judgment can be summarised as expanding the existing tort of breach of confidence – the wrongful disclosure of information86 – or, as stated by Lord Nicholls, ‘better encapsulated now as misuse of private information’:87 He goes on: The time has come to recognise that the values enshrined in Articles 8 and 10 [ECHR] are now part of the cause of action.88

It has been said that the UK has a privacy tort in all but name,89 even if it does not have a ‘blockbuster’ tort.90 Protection of privacy by the breach of confidence doctrine seems to be based at least initially – looking at the Douglas-Zeta Jones wedding pictures case – on the implied rationale of actual or potential commercialisation/commodification of the right to one’s own picture which corresponds with the ‘freedom to act’ element of privacy/personality rights. This is not surprising as the original doctrine largely applied to commercial information. From a comparative perspective, this commodification was one strand of how German civil courts originally developed an action for damages for breaches of personality rights.91 In contrast, the Constitutional Court gave the right to one’s own picture a broader footing, and held that its rationale is to grant control over the public image of a person. Its protective thrust results from the possibility to ‘change the type of publicity (Öffentlichkeit)’ because of the possibility to reproduce pictures and thereby: detach the appearance of a person in a specific situation from that person … and reproduce it for an indeterminable audience.92

Whereas the control element in German case law may come close to issues of commercialisation/commodification of one’s own picture, the right to privacy is not primarily protected in the interest of commercialisation.93 83 Survey of case-law by B Markesinis, C O’Cinneide, J Fedtke and M Hunter-Henin, ‘Concerns and Ideas About the Developing English Law of Privacy (And How Knowledge of Foreign Law Might be of Help)’ (2004) 52 American Journal of Comparative Law 133. 84 Douglas v Hello! [2005] EWCA Civ 595 (CA (Civ Div)). 85 Section 2 of the Human Rights Act. 86 The requirements of the tort of breach of confidence are that confidential information is imparted in circumstances presuming confidence and is put to unauthorised use Douglas v Hello! Ltd [2003] All ER 996 (High Court) para 182, quoting Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47. 87 Douglas v Hello! Ltd [2003] All ER 996 (High Court) para 14. 88 Douglas v Hello! Ltd (n 87) para 17. 89 See Phillipson (n 51) at 758. 90 Wainwright v Home Office (n 77) para 42 (per Lord Justice Mummery). 91 26 BGHZ 349 (Herrenreiter). 92 BVerfG (n 4) para 72. 93 BVerfG (n 4) para 82.

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The Constitutional Court stated that where by exclusive agreement someone consents to invasions of the private sphere, he or she gives up the latter’s protection as such.94 It can be concluded that the protection of privacy – by adaptation and ‘recharging’ of the tort of breach of confidence – in the UK legal system would not have happened without external pressure from Strasbourg in cases like Halford95 or Peck,96 which changed the legal landscape for the press. The decision of the House of Lords in Campbell v MGN97 of 2004 is a crass example of this development and appears to have pre-empted the von Hannover decision. The House of Lords held that adorning the information about super-model Naomi Campbell’s drug addiction with a photograph, showing her in a public street leaving a therapy centre, amounted to an infringement of her privacy. While there is no single overarching reason in the speeches of the Lords who took this majority view,98 several elements in the balancing process already appear to anticipate the ECtHR’s approach. For instance, in trying to delimit the publicprivate situations in the Campbell case,99 Lord Hope and Baroness Hale held that treatment for drugs is private information relating to physical and mental health (one could add that it is ‘substantial privacy’100), and then asked whether there was a reasonable expectation of privacy. Ms Campbell’s celebrity status did not deprive her of her right to privacy.101 Baroness Hale classified different types of speech qualitatively according to the degree to which they are ‘deserving of protection in a democratic society’ (political, intellectual/educational, artistic), finding that The Mirror falls into none of these categories.102 This reminds us of the ECtHR’s graded system of protection of freedom of the press according to its democratic value.103 Further, the House of Lords differentiates between receiving general information that was in the public interest (as Ms Campbell had lied about her addiction before) and details about her treatment which were of lesser public interest.104 A distinction is made between the information as such

94

BVerfG (n 4) para 82. Halford v UK (n 26) – telephone tapping. 96 Peck v UK, no 44647/98, 28 January 2003, ECHR 2003-I, 123, (2003) 36 EHRR 41 (broadcasting of CCTV footage of an attempted suicide). 97 Campbell v MGN Ltd [2004] All ER 995 (HL). 98 Lord Nicholls and Lord Hoffmann dissented. 99 See above (n 40) for this test in the United Kingdom Code of Practice of the Press Complaints Commission. 100 Above, text around n 10. 101 Campbell v MGN Ltd (n 97) para 120 (Lord Hope); similarly, Baroness Hale paras 134 ff, 147. 102 Campbell v MGN Ltd (n 97) para 148 f. 103 Above, IV. D; see also Cream Holdings Ltd v Bannerjee [2003] 2 All ER 318; H Tomlinson and H Rogers ‘Privacy Injunctions: Reviewing the Approach’ (2003) New Law Journal 818 and 826. 104 Campbell v MGN Ltd (n 97) paras 116ff, 155. 95

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and the photograph,105 also a point reminiscent of the von Hannover decision. This translated into allowing the publication of the facts (because of previous lies about this potentially criminal activity) but not of the pictures.106 The balance regarding the latter was tilted in favour of privacy because the picture was taken secretly and using long-lens photography107 and because of the extent of distress and potential adverse effects on her drug therapy.108 Also it was held that the photographs were not necessary for the story and that the photographs were not relevant information about a public figure’s capacity ‘to do the job’.109 The similarities are evident. The more recent change in the approach to privacy has been a rather more far-reaching step for the English courts, but it does not prevent them following the von Hannover decision. If anything, it might demand less effort than in the German legal order with its precise terminology and definitions. However, the more general criticism of the ECtHR’s decision relating to the value of freedom of the press may provoke thoughts in the UK as well,110 especially to the backdrop of a liberty-oriented approach to the freedom of expression.

VI.

CONCLUDING REMARKS

Finding and developing substantive criteria when balancing privacy and speech rights in public-private situations is sensitive, admittedly difficult, but essential. To that extent the von Hannover judgment is a missed opportunity. The ECtHR seems in some ways better suited than national courts for this task because it is not part of the same juridical entity (the state) and hence not in danger of over-intervention to further other purposes. But it is also less suited, because there is no need to unify the approach in the different Member States, especially as the use of newer technologies means that some controls imposed on media may not be effective or fall outside the jurisdiction of the ECHR.111 Recognising these difficulties, it must be concluded that, technically speaking, the ECtHR’s judgment is flawed and superficial in many respects. The substantive points mentioned reveal that it does not reflect a very detailed or accurate confrontation with the state of the German law or even the national court decisions before it. Whether this is due to a biased pre-conception that the German courts ‘have to some extent and under 105

Campbell v MGN Ltd (n 97) paras 96, 98, 120 (Lord Hope). See especially, Campbell v MGN Ltd (n 97) paras 151ff. Critical comment by R M M McInnes, ‘Celebrities Anonymous: Whatever Next? Part II’ (2004) 5.4 Human Rights & UK Practice 3, 10. 107 Campbell v MGN Ltd (n 97) para 123. 108 Campbell v MGN Ltd (n 97), per Lord Carswell, para 168. 109 Campbell v MGN Ltd (n 97), per Baroness Hale, paras 156, 157. 110 See, for example, Sanderson (n 37) 631ff. 111 See above section IV.F. 106

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American influence made a fetish of the freedom of the press’, as Judge Zupancic said,112 or whether it results from over-emphasising the French side in a clash of two legal orders (French and German),113 can only be guessed. The ECtHR’s approach of attaching decisive weight to the freedom of the press, even the entertainment press, and to the public interest in knowing how the applicant behaved outside her representative functions114

may point in this direction.115 In spite of debates around specific decisions, the German legal system is often said to have managed to strike a good balance between free speech and the protection of privacy, especially in comparison with the perceived over-emphasis on free speech by United States’ courts.116 If read in a restrictive way (in the sense of a balancing approach), the European Court of Human Rights’ von Hannover judgment comes down to a divergent assessment of the degree to which Princess Caroline is a person of contemporary history, which still is subject to the concerns related to the margin of appreciation.117 This means the difference is less principled than at first sight. As the Federal Court of Justice has shown, it should be possible to incorporate this difference in the legal order without too much friction, at least from a practical perspective. Even if one adheres to the Constitutional Court’s position of balancing privacy and freedom of the press which the ECtHR has overruled, the Strasbourg ruling may be an incentive to improve the quality of reasoning in individual cases. If read in an extensive way (as a ‘scope of protection’ approach which may lead to a priori censorship), the decision gives rise to serious concerns about state control of the press, threatening a cornerstone118 of democratic society. For this reason there may have been some pragmatic wisdom – contrary to lobbying attempts by the publishing industry – in not appealing the case to the Grand Chamber of the ECtHR and to leave the fleshing out and interpretation to the Member States at this point.119 The judgment may even be counter-productive for the protection of personality rights and privacy. One effect may be the increased commodification of celebrities’ private lives: completely image-controlling ‘beauties’

112

Critical also McInnes (n 106) at 12. Bartnik (n 34) at 490ff. 114 Von Hannover v Germany (n 1) para 54. 115 Grabenwarter (n 2) at 314. 116 B Markesinis and S Enchelmaier, ‘The Applicability of Human Rights as between Individuals under German Constitutional Law’ in B Markesinis (ed), Protecting Privacy (Oxford, Oxford University Press 1999) 190, 242. See also Anderson (n 79) 123ff. 117 See above at IV.F. 118 D Grimm quoted in ‘Es trifft die Pressefunktion in ihrem Kern’, Frankfurter Allgemeine Zeitung (Frankfurt, 14 July 2004) 34. 119 See also Papier (n 66). 113

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entering into symbiotic Faustian pacts with the press.120 A further cynical effect may be that the tabloid press will publish less benevolent stories using more damaging material since it is barred from the more anodyne ordinary life matters, fully bringing out the beast.121

120 121

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Cf McInnes (n 106) at 6ff. Sanderson (n 37) at 643ff.

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Index adultery, 72 arbitration, 115 assault, 83 autonomy see also freedom of contract bodily autonomy, 75 Campbell v MGN, 17, 20 contract and, 107–8 core of privacy, 1–2, 15–20 ECtHR jurisprudence, 107, 178 freedom of expression and, 9 integrity and, 178–80 moral rights, 8 UK case law, 178 US case law, 179–80 Bagshaw, Roderick, 2, 5, 5–6, 10, 79–92 Barber, NW, 2, 5, 6, 10, 67–77 Barbie Art, 186 Benetton cases, 192 Berlin, Isaiah, 19 Berne Convention, 159, 160, 164, 166, 177 Beyleveld, Deryck, 47–8 Bezanson, RP, 184–5 Blair, Cherie, 17 Blair, Tony, 17 Brandeis, Louis, 67, 179 breach of confidence: Campbell v MGN, 45 Douglas v Hello!, 61, 67–8 privacy and, 67–8 Campbell v MGN: assessment, 205 autonomy, 17, 20 breach of confidence, 45 dignity, 17 horizontal rights and, 41–2, 44, 45 human rights, 61 misrepresentation of character, 73, 74 offensiveness test, 17 privacy, right to 5, 15, 17, 69, 81, 178 privacy threshold, 17 property rights, 75 Canada, employment privacy, 143 Caroline von Hannover case see von Hannover case celebrities: German protection of privacy, 193 privacy of contracts, 109 privacy v social justice, 60–2 cipher, 186 Clayton, R, 110 co-ownership of information, 91–2

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Coester, Michael, 2, 6, 7, 8, 10, 133–9 Coester-Waltjen, Dagmar, 2, 6, 7, 10, 117–29 Colombi Ciacchi, Aurelia, 2, 4, 5, 6, 10, 53–64 companies, privacy, 94–5, 111 comparative law: approach, 6 English judicial approaches, 81 horizontal effect of basic rights, 55–60 moral rights, 8–9, 163–74 privacy of celebrities, 60–2 compensation see damages computer programs: German copyright, 163–4 moral rights, 162 confidential agents, 108 constitutionalisation, 5, 62-4 contract see also freedom of contract confidential agents, 108 good faith, 59 immorality, 59 privacy of contract, 6–7 application of Article 8, 109–10 domestic laws, 112 exceptions, 113–14 legal persons, 110–11 principle, 108–16 conversion, 83 Cooley, T, 179 copyright see also moral rights droits d’auteur v copyright, 163–4 European Union, 9, 171-3, 174-5 parodies, 184–5 utilitarian approach, 170-1 correspondence, 107, 110 Craig, John, 142, 143, 148, 155 criminal convictions, 135 damages: adequacy of remedy, 91–2 diversity of losses, 94–5 non-pecuniary losses, 6, 95–8 quantum, 6, 97–8 pain and suffering, 94 prevention and, 98–9 data protection: German law, 136–7 UK employment, 149, 150, 154–5 defamation, Netherlands, 94 Diana, Princess of Wales, 105

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210

Index

dignity, 1–2, 15–16, 17 discrimination: ECHR prohibition, 121 employment, 60 EU law, 117–20 definition, 118 freedom of contract and, 119–20, 126–8 sanctions, 119 scope, 118 German prohibition, 122, 127–8 harmonisation of laws, 63 human right of non-discrimination, 121–3 conflicting rights, 122–3 freedom of speech and, 123 religious beliefs and, 123 statutory interpretation, 129 social justice, 128–9 testamentary freedom, 29–30, 32 distributive justice, 80 Douglas v Hello!: breach of confidence, 61, 68 commercialisation of wedding, 61, 67–8 debate, 204 indirect horizontal right, 44 meaning of privacy, 178 privacy and tort, 5, 75 privacy v publicity rights, 61 torts, 5, 75 underhand methods, 74 Drexl, Josef, 2, 6, 8–9, 159–76

Human Rights Act 1998, 147–52 legislation, 149 Enlightenment, 17 equal treatment see discrimination European Charter of Fundamental Rights: history, 53 moral rights, 9, 167 non-discrimination, 121 personality rights, 31 private law and, 28 European Convention on Human Rights: Germany and, 23–4, 26–8 moral rights, 173–4 privacy, 16, 31, 62, 105–8, 190–1 European Court of Human Rights see also von Hannover case corporate privacy, 111 damages, 99 effect of jurisprudence on UK, 204–5 employment privacy, 145–6 freedom of contract, 115–16 freedom of expression, 181 horizontal rights, 49 judicial activism, 201 photographs in public places, 87 scope of privacy, 31, 62, 107–8 European Union: Constitutional Treaty, 53–4 moral rights, 170, 173, 174–5 non-discrimination, 117−29 privacy rights, 105 constitutionalisation, 5 Directives Data Retention, 3 Equal Treatment, 118 Equal Treatment in Access to Goods and Services, 7, 117–29 Processing of Personal Data and Protection of Privacy in the Telecommunications Sector, 149 Race Discrimination, 7, 117–29 Term of Protection, 166, 171 diversity, 63 harmonisation of laws, 62–4 moral rights, 161, 171–4 principles, 54 telecommunications, 149 expert evidence, German recruitment, 136

employment: equal treatment, 60, 118 freedom of religion, 60 German law, 133–9 collective agreements, 134 data protection, 136–7 employees’ honour, 137 employees’ liberties, 137 expert opinions, 136 harassment, 138 medical examinations, 136 personality rights, 134 pre-recuitment information, 135–6 workplace monitoring, 136 mutual trust, 147 privacy and, 7–8 arguments, 143–5 German law, 133–9 issues, 141–3 models, 145–7 UK model, 147–52 recruitment practices, 59 surveillance, 136, 149 UK privacy contractual derogation, 152–4 future, 152–6

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fair trial, public hearings, 114 Fastrich, Lorenz, 2, 4, 10, 23–34, 123, 126 Feinberg, J, 179–80 Feldman, David, 1, 179 Fischer, Joschka, 18 Ford, Michael, 142, 145, 146, 152, 155 foreign law, use in English courts, 81 France: Constitutional Court, 56

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Index copyright, parodies, 186 employment privacy, 148 legal order, 207 moral rights, 8, 162, 165–7, 169–70, 175 Freedland, Mark, 2, 6, 7, 8, 10 freedom see also specific rights balancing of rights, 2–3, 30–2 essence of individual freedom, 28–9 exceptions, 33 human rights v, 23, 30–2 liberty v dignity, 1–2, 15–16 meaning, 19 primacy, 32–3 privacy and, 1 testamentary freedom, 29–30, 31–2 freedom of contract: English law, 123 EU equal treatment law and, 119–20, 126–8 exceptions, 33, 115–16 German law bargaining power, 25, 33 equal treatment and, 127–8 limits, 124–5 sources, 124 human rights v, 33 scope, 116 tenancy contract, 109, 115 UK employment, 147, 152–4 freedom of expression: control of one’s speech, 177–83 restrictions, 183–87 doctrine, 180–3 ECtHR case law, 181 non-discrimination v, 123 privacy v, 57, 72–5 see also von Hannover case balancing of rights, 9–10, 82–92 German courts, 190–4 guidelines, 83–90, 85–90 proportionality, 82 quality of expression, 198–9 selective disclosure, 90–1 UK approach, 203–6 shopping centres, 181–2 UK case law, 180–1 US case law, 181–3, 185 freedom of information, 149, 150 Fried, Charles, 70, 72, 73 Gavison, R, 179 gender equality, EU law, 117–20 Germany: Constitutional Court, status of decisions, 202 constitutional rights, 4, 23, 24–6, 55, 190

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211

copyright computer programs, 163–4 parodies, 184 persons of contemporary history, 191, 193, 197, 207 damages breach of privacy, 94 non-pecuniary losses, 97 data protection, 136–7 discrimination prohibition, 122, 127–8 ECHR and, 23–4, 26–8 employment law works councils, 134 freedom of contract, 7, 25, 33, 119 equal treatment and, 127–8 limits, 124–5 freedom of expression prohibition of censorship, 192–3 scope, 192 human rights private law and, 24–8 sources, 23–4 moral rights, 8, 159, 165–7, 175 non-discrimination freedom of contract debate, 7, 119, 127–8 law, 119–20, 122 statutory interpretation, 129 personality rights, 5, 8, 33, 134, 159, 168–9, 177, 190 privacy, 189, 190–4 see also von Hannover case correspondence, 110 damages, 94, 97 employment, 8, 133–9, 148 scope, 9, 191–2 Suretyship case, 4, 25, 33 surveillance methods, 3 testamentary freedom, 29–30, 31–2 trade union rights, 7, 134 Gregory Committee, 164 Hannover, Caroline von see von Hannover case Hannover, Ernst August von, 61 harassment, 138 harmonisation of laws: judicial activism, 201 privacy, 62, 63–4, 201 homosexuality, US approach, 16 horizontal effect of human rights: application v effects, 37–8 debate, 4, 10 direct horizontality arguments, 46–8 English case law, 41–4 indirect v, 38–9 European Charter of Fundamental Rights, 28

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212

Index

German law, 24–8 harmonisation of laws, 62–4 human rights, 23–34 Human Rights Act 1998, 35–51, 36 English case law, 41–5 models, 36–7 normative debate, 45–50 Re S, 42–3, 50 Wainwright, 41, 43, 44, 68–9 indirect models, 39–41 arguments, 48–50 English case law, 44–5 negative obligations, 39–40 strong v weak, 39, 40–1 models, 36-37, 39-51 legal families, 55–6 outputs, 56–60 UK HRA, 35–51 remedial v substantive, 38 social justice, 53–64 housing, non-discrimination, 117 human dignity, 1–2, 15–16, 17 human rights see also specific rights freedom v, 23, 30–2 German sources, 23–8 harmonisation of laws, 62–4 private law and, 23–34 Human Rights Act 1998: debate, 56 ECtHR jurisprudence and, 204 employment and privacy, 147–52 horizontal rights, 35–51 case law, 41–5 models, 36–41 normative debate, 45–50 Re S, 36, 42–3, 50 legislative compatibility, 26 public authority obligations, 36–7 statutory interpretation and, 37, 48 unincorporated Articles, 47

correspondence, 110 police search of offices, 145 Leeuw, Paul de, 16 liberty see freedom Lindenbergh, Siewert, 2, 5, 6, 93–100 Locke, John, 170 McCrudden, Chris, 126 Madison, MJ, 185 Martin, Minette, 17 medical examinations, 136 Mickey Mouse, 184 Mill, John Stuart, 71 Minogue, Kylie, 19 mobile phone tunes, 162 moral capital, 70, 72 moral rights: Berne Convention, 159, 160, 164, 166, 177 challenges, 162–3 constitutional protection, 160–1, 167–71 droits d’auteur v copyright, 8–9, 163–4 ECHR, 173–4 EU Constitutional Treaty, 167, 170, 174–5 EU Member States, 8–9, 163–7 European Charter of Fundamental Rights, 167 European Union, 171–4 generally, 159–76 meaning, 159 tripolar interests, 161 TRIPS, 160 Universal Declaration of Human Rights, 167, 168, 171 Morris, Gillian, 153–4 natural law, 170 Netherlands: constitutional rights, 56 damages defamation, 96 non-pecuniary losses, 95–6 privacy violations, 94, 96 quantum, 99 meaning of privacy, 9 Nudist Guide case, 96 publication of photographs, 16 wrongful life claim, 18 Nieuwenhuis, Hans, 1–2, 6, 10, 15–19, 123 non-state actors, 4

identity cards, 3 injunctions, 93 integrity, privacy-autonomy and, 178–80 intellectual property rights: constitutional protection, 160–1 ECHR, 173–4 EU Constitutional Treaty 167−168 European Charter of Fundamental Rights, 9, 161, 167−8 moral rights see moral rights Ireland, moral rights, 164 Italy, copyright, parodies, 184–5

OK! magazine, 68, 178 Oliver, Hazel, 142–3, 149, 154–5

Kant, Immanuel, 17

parodies, 184–5, 186 Pattinson, SD, 47–8 Peirce, CS, 187

Lando Principles, 108 lawyers:

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213

personality rights: European Charter of Fundamental Rights, 31 Germany, 5, 8, 33, 134, 159, 168–9, 171, 184 Phillipson, Gavin, 49 photographs see also Campbell v MGN; von Hannover case; Douglas v Hello! control over, 88 Dutch case law, 16 public places, 88 text and, 199 unauthorised publication, 58 Poland, 55 Portugal, 55 Posner, Richard, 74 prevention, compensation and, 98–9 prisoners, correspondence, 107 privacy: Article 8 ECHR, 16, 31, 105, 190–1 scope, 62, 105–8 breach of confidence and, 68 corporate privacy, 94–5, 110–11 dignity v liberty, 1–2, 15–20 ECJ definition, 62 EU Constitutional Treaty, 105 freedom of expression and see freedom of expression harmonisation of laws, 62, 63–4 judicial activism, 201 integrity and, 178–83 meanings, 1–2, 15–20 misrepresentation of character, 74 moral capital, 70, 72 objectives, 70–1 reasonable expectations, 87–8, 146, 194, 197, 205 relationships, 72–3, 73–4 state of privacy, 75 tort see torts UK right to, 67–77 private law see horizontal rights prostitutes, 74 Proust, Marcel, 20 psychological tests, 136 public authorities, UK obligations, 36–7 public hearings, 114 public spaces, 1, 74, 88, 89, 144, 151, 190, 192, 195, 197, 205

secrets, 94–5 sexual offences: employment and, 150–1 voyeurism, 76 shopping centres, freedom of speech in, 181–2 Snijders, Henricus, 2, 6–7, 10, 105–116 social justice: equality, 62, 128–9 horizontal rights and, 5, 53–64 sound recordings, copyright, 164 Spain, 55 Spence, Michael, 2, 6, 9, 177–87 state of privacy, 75 surveillance: methods, 3 private places, 150 UK employment, 149 Sweden, 56

race discrimination, EU Directive, 117–20 Rachels, James, 70, 73 relationships, privacy, 72–3, 72–4 religious freedom, 60, 123 right to life, 26

Underhand methods, 16, 74, 87, 192, 206 UNIDROIT, 108 United Kingdom see also Campbell v MGN; Douglas v Hello! constitutional systems, 56 copyright, parodies, 184 data protection, 149, 150, 154–5

same-sex couples, 36 Schauer, Frederick, 71

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telecommunications: EU privacy law, 149 interceptions, 145, 147, 149, 153–4 tenancy contracts: freedom of contract, 109, 115 landlords’ human rights obligations, 59 same sex couples, 36 testamentary freedom, 29–30, 31–2 Thomson, Judith Jarvis, 75 Tomlinson, H, 110 torts: compromises, 79–92 damages see damages design of privacy tort, 4–6, 79–92 balancing of rights, 82–92 claimants’ conduct, 90–1 co-ownership, 91–2 damages see damages difficulties, 72–5 guidelines, 85–90 privacy v freedom of expression, 82–92 reasonable expectations, 87–8 uncoordinated combinations, 90 von Hannover case, 30–1 UK right to privacy, 67–77 Treiger-Bar-Am, Leslie-Kim, 2, 6, 8, 9, 177–87 trespass, 83 TRIPS, 160

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