(Gert Brüggemeier, Aurelia Colombi Ciacchi, Patri

Personality Rights in European Tort Law
This volume provides a comprehensive analysis of civil liability

for invasion of personality interests in Europe. It is the final
product of the collaboration of twenty-seven scholars and
includes case studies of fourteen European jurisdictions, as
well as an introductory chapter written from a US perspective.
The case studies focus in particular on the legal protection
of honour and reputation, privacy, self-determination and
image. This volume aims to detect hidden similarities (the
‘common core’) in the actual legal treatment accorded by
different European countries to personal interests which in
some of these countries qualify as ‘personality rights’, and also
to detect hidden disparities in the ‘law in action’ of countries
whose ‘law in the books’ seem to protect one and the same
personality interest in same way.
G E R T B R Ü G G E M E I E R is Professor (Emeritus) of Civil Law,

European Economic Law and Comparative Law at the
University of Bremen.
is Senior Researcher in Private Law

AU R EL I A COL OM BI CI ACCH I
at the University of Bremen and Lecturer at the Hanse Law
School, Bremen.
PA T R I C K O ’C A L L A G H A N is Lecturer in Law at Newcastle

University.
THE COMMON CORE OF EUROPEAN PRIVATE LAW
General Editors
Mauro Bussani, University of Trieste

Ugo Mattei, University of Turin and University of California, Hastings College of
Law
Honorary Editor
Rodolfo Sacco, University of Turin
Editorial Board
James Gordley, W. R. Irby Chair in Law, Tulane University Law School
Antonio Gambaro, Professor of Law, University of Milano; President of the Italian
Society of Comparative Law
Franz Werro, University of Freiburg and Georgetown University Law Center
Rodolfo Sacco, President of the International Association of Legal Science
(UNESCO)
For the transnational lawyer the present European situation is equivalent to that
of a traveller compelled to cross legal Europe using a number of different local
maps. To assist lawyers in the journey beyond their own locality The Common Core of
European Private Law Project was launched in 1993 at the University of Trento under
the auspices of the late Professor Rudolf B. Schlesinger.
The aim of this collective scholarly enterprise is to unearth what is already com-
mon to the legal systems of European Union Member States. Case studies widely
circulated and discussed between lawyers of different traditions are employed to
draw at least the main lines of a reliable map of the law of Europe.
Books in the series

Personality Rights in European Tort Law
edited by Gert Brüggemeier, Aurelia Colombi Ciacchi and Patrick O’Callaghan
978 0 521 19491 4
Precontractual Liability
edited by John Cartwright and Martijn Hesselink
978 0 521 51601 3
Environmental Liability and Ecological Damage in European Law
edited by Monika Hinteregger
978 0 521 88997 1 Hardback
The Enforcement of Competition Law in Europe
edited by Thomas M. J. Möllers and Andreas Heinemann
978 0 521 88110 4 Hardback
Commercial Trusts in European Private Law
edited by Michele Graziadei, Ugo Mattei and Lionel Smith
978 0 521 84919 7
Mistake, Fraud and Duties to Inform in European Contract Law
edited by Ruth Sefton-Green
0 521 84423 1 Hardback
Security Rights in Movable Property in European Private Law
edited by Eva-Maria Kieninger
0 521 83967 X Hardback
Pure Economic Loss in Europe
edited by Mauro Bussani and Vernon Valentine Palmer
0 521 82464 8 Hardback
The Enforceability of Promises in European Contract Law
edited by James Gordley
0 521 79021 2 Hardback
Good Faith in European Contract Law
edited by Reinhard Zimmermann and Simon Whittaker
0 521 77190 0 Hardback
Personality Rights in European
Tort Law
Edited by
Gert Brüggemeier, Aurelia Colombi Ciacchi and

Patrick O’Callaghan
C A MBR IDGE U NI V ERSI T Y PR ESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521194914
© Cambridge University Press 2010
This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2010
Printed in the United Kingdom at the University Press, Cambridge
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data

Personality rights in European tort law / [edited by] Gert Brüggemeier, Aurelia
Colombi Ciacchi and Patrick O’Callaghan.
p. cm.
Includes index.
ISBN 978-0-521-19491-4 (hardback)
1. Personality (Law)–Europe. 2. Privacy, Right of–Europe. 3. Torts–
Europe. 4. Personality (Law)–United States. 5. Privacy, Right of–United
States. 6. Torts–United States. I. Brüggemeier, Gert, 1944– II. Ciacchi, Aurelia
Colombi III. O’Callaghan, Patrick.
KJC1646.P47 2010
346.2403⬘3–dc22 2009052177
ISBN 978-0-521-19491-4 Hardback
Cambridge University Press has no responsibility for the persistence or

accuracy of URLs for external or third-party internet websites referred to
in this publication, and does not guarantee that any content on such
websites is, or will remain, accurate or appropriate.
Contents
List of contributors xi
National reporters xiii
General editors’ preface xiv
Preface xvi
Editorial note xviii
List of abbreviations xxi
Part I Mapping the legal landscape 1

1 General introduction 3
2 Protection of personality rights in the law of delict/torts in

Europe: mapping out paradigms 5
GERT BRÜGGEMEIER
1 Introduction 5
2 Two distinct paths of civil law of delict 10
A France 10
B Germany 18
3 Two different paths of liability law 25
A Common law of torts and statutory law: England 25
B Scandinavian law: Sweden 28
4 A European perspective – Art. 8(1) ECHR 30
3 American tort law and the right to privacy 38

JOSEPH A. PAGE
1 Introduction 38
2 The birth of a tort 41
3 The first steps 45
vii
viii contents
4 Evolution of a tort 48
5 Additional protection for peace of mind 56
6 The academic backlash 57
7 The United States Supreme Court intervenes 59
8 The present status of the unwarranted-disclosure
privacy tort 61
9 The present status of the intrusion privacy tort 66
10 The present status of the false-light privacy tort 68
11 The present status of the misappropriation
privacy tort 69
12 Conclusion 70
Part II Case studies 73

4 Case 1: The corrupt politician 75
Case 75
Discussions 75
Comparative remarks 140
5 Case 2: Convicted law professor 149

Case 149
Discussions 149
6 Case 3: The paedophile case 178

Case 178
Discussions 178
7 Case 4: An invented life story? 206

Case 206
Discussions 206
8 Case 5: A former statesman’s family life 228

Case 228
Discussions 228
contents ix
9 Case 6: A satirical magazine 257

Case 257
Discussions 257
10 Case 7: A snapshot of a person 275

Case 275
Discussions 275
11 Case 8: A paparazzo’s telephoto lens 317

Case 317
Discussions 317
12 Case 9: Naked.Little.Girl.Com 348

Case 348
Discussions 348
13 Case 10: The late famous tennis player 375

Case 375
Discussions 375
14 Case 11: The popular TV presenter 413

Case 413
Discussions 413
15 Case 12: Copied emails 433

Case 433
Discussions 433
16 Case 13: Brigitte’s diaries 457

Case 457
Discussions 457
x contents
17 Case 14: Tape recordings of a committee meeting 476

Case 476
Discussions 476
18 Case 15: ‘Light cigarettes reduce the risk of cancer’ 492

Case 492
Discussions 492
19 Case 16: Doctor’s non-disclosure of a foetal disease 511

Case 511
Discussions 511
20 Case 17: WAF – A gang of incompetents? 543

Case 543
Discussions 543
Part III A common core of personality

protection 565
21 A common core of personality protection 567
G E R T B R Ü G G E M E I E R, A U R E L I A C O L O M B I C I A C C H I
AND PATRICK O’CALLAGHAN
1 Dignity and honour 568

2 Privacy 569
3 Right to one’s image and likeness 570
4 Commercial appropriation of personality 572
5 Right to personal identity 573
6 Self-determination 574
7 Protection of personality of legal persons? 575
8 Personality violations through the internet 575
9 Conclusion 576
Index 578
Contributors
JOH A N BÄ R LU N D , LLD , MSC ,

Professor of Civil and Commercial Law,
University of Helsinki, Finland
GERT BRÜGGEMEIER , DR I U R .,
Professor (Emeritus) of Civil Law, European
Economic Law and Comparative Law, University of Bremen, Germany
VA L COR BET T, BCL , LLM , Head of Law School, Independent College Dublin,
Ireland
AU R ELI A COLOMBI CI ACCHI , DR I U R ., Dottore di ricerca, LLM, Senior
Researcher in Private Law, University of Bremen, Germany, and
Lecturer, Hanse Law School, Bremen, Germany
N U NO F ER R EIR A , DR I U R ., Lecturer in Law, University of Manchester,
United Kingdom
C A R LOS GÓMEZ - LIGÜ ER R E , DR I U R ., Professor of Private Law, Universitat
Pompeu Fabra, Barcelona, Spain
A X EL H A LF MEIER , DR I U R ., Professor of Private and Economic Law,
Frankfurt School of Finance & Management, Frankfurt am Main,
Germany
U T E H A MMERSCH A LL , Magistrate, Barrister, (formerly) Researcher in Law,
University of Graz, Austria
GER A IN T HOW ELLS , LLB , Barrister, Professor of Commercial Law, University
of Manchester, United Kingdom
AGN ÈS LUC AS - SCHLÖT T ER , DR I U R .,
Lecturer in French Legal Terminology,
Ludwig-Maximilians University of Munich, Germany
PAT R ICK O’C A LL AGH A N , DR I U R ., Lecturer in Law, Newcastle University,
United Kingdom
xi
xii list of contributors
JOSEPH A . PAGE , PHD , BA , LLB , LLM , Professor of Law, Director of the Center
for the Advancement of the Rule of Law in the Americas, Georgetown
Law School, Washington DC USA
PEDRO PA IS DE VASCONCELOS , DR I U R ., Professor of Private Law, University
of Lisbon, Portugal
K A R L - N IKOL AUS
PEIF ER , DR I U R ., Professor of Civil Law, Intellectual
Property Law and Economic Law, University of Cologne, Germany
GIORGIO R ESTA , D O T T O R E D I R I C E R C A ,
Associate Professor of Private
Comparative Law, University of Bari, Italy
PA NAGIOT IS R IGOPOU LOS , DR I U R ., lawyer at the European Patent Office,
Munich, Germany
PET ER ROT T, DR I U R ., Junior Professor of Private Law with a focus on
European Private Law, University of Bremen, Germany
A N TON IO RU IZ GA RCI A , DR I U R ., Barrister, Researcher in Law,
J UA N
Universitat Pompeu Fabra, Barcelona, Spain
BER N D SCHILCHER , DR I U R .,
Professor (Emeritus) of Private Law, Foreign
and International Private Law, University of Graz, Austria
PET ER SCH WA R ZEN EGGER , DR I U R .,
Assistant Professor of Private Law,
Foreign and International Private Law, University of Graz, Austria
C A R L A H . SIEBU RGH , DR I U R ., Professor of Private Law, University of
Nijmegen, The Netherlands
LESLEY JA N E SMI T H , DR I U R .,
Professor of International and European
Economic Law, University of Lüneburg, Germany
SY LV I A STAV R IDOU , DR I U R ., Lecturer in Private Law, Democritus
University of Thrace, Greece
F R EDER IK SW EN N EN , DR I U R .,
Professor of Persons and Family Law,
University of Antwerp, Belgium
A LEX A N DER WA R ZILEK ,
Magistrate, Lawyer, (formerly) Researcher in Law,
University of Graz, Austria
F R A NZ W ER RO , DR I U R ., LLM , Professor of Law of Obligations and European
Private Law, University of Fribourg, Switzerland, and Professor of Law,
Georgetown Law School, Washington DC, USA
BR I T T W EY TS , DR I U R ., Professor of Civil Law, University of Antwerp,
Belgium
National reporters
AUSTRIA: Ute Hammerschall, Bernd Schilcher, Peter

Schwarzenegger and Alexander Warzilek
BELGIUM: Frederik Swennen and Britt Weyts
ENGLAND: Geraint Howells and Peter Rott
FRANCE: Agnès Lucas-Schlötter
FINLAND: Johan Bärlund
GERMANY: Axel Halfmeier and Karl-Nikolaus Peifer
GREECE: Panagiotis Rigopoulos and Sylvia Stavridou
IRELAND: Val Corbett
ITALY: Aurelia Colombi Ciacchi (Cases 1, 2, 3, 4, 6, 15,
16, 17) and Giorgio Resta (Cases 5, 7, 8, 9, 10, 11,
12, 13, 14)
NETHERLANDS: Carla Sieburgh
PORTUGAL: Nuno Ferreira and Pedro Pais de Vasconcelos
SCOTLAND: Lesley Jane Smith
SPAIN: Juan Antonio Ruiz Garcia and Carlos Ignacio
Gomez Liguerre
SWITZERLAND: Franz Werro
xiii
General editors’ preface
This is the twelfth book in the series The Common Core of European
Private Law published within the Cambridge Studies in International and
Comparative Law. The project was launched in 1993 under the auspices
of the late Professor Rudolf B. Schlesinger.
The methodology used in the project is still unparalleled. By making
use of case studies it goes beyond mere description to detailed inquiry
into how most European Union legal systems resolve specific legal ques-
tions in practice, and to thorough comparison between those systems.
It is our hope that these volumes will provide scholars with a valuable
tool for research in comparative law and in their own national legal
systems. The collection of materials that the Common Core Project is
offering to the scholarly community is already quite extensive and will
become even more so when more volumes are published. The availabil-
ity of materials attempting a genuine analysis of how things are is, in
our opinion, a prerequisite for a fully-fledged and critical discussion on
how they should be. Perhaps in the future European private law will
be authoritatively restated or even codified. The analytical work car-
ried on today by the almost 200 scholars involved in the Common Core
Project is a precious asset of knowledge and legitimisation for any such
normative enterprise.
We must thank the editors and contributors to the already published
volumes, and those who are working hard to achieve future results.
With a sense of deep gratitude we also wish to recall our late Honorary
Editor, Professor Rudolf B. Schlesinger. We are sad that we have not
been able to present him with the scholarly outputs of a project in
which he believed so firmly.
No scholarly project can survive without committed sponsors. The
Italian Ministry of Scientific Research is funding the project, having
xiv
general editors’ preface xv
recognised it as a ‘research of national interest’. The International

University College of Turin with the Compagnia di San Paolo and the
Consiglio Nazionale del Notariato allow us to organise the General
Meetings. The European Commission has partially sponsored some of
our past general meetings, having included them in their High Level
Conferences Programme. The University of Torino, the University of
Trieste, the Fromm Chair in International and Comparative Law at the
University of California and the Hastings College of Law, the Centro
Studi di Diritto Comparato of Trieste, have all contributed to the fund-
ing, and/or the success of this project.
Our home webpage is at www.iuctorino.it. There you can follow our
progress in mapping the common core of European private law.
General Editors
(University of Trieste)
M AU RO BUSSA N I
UGO M AT T EI(University of Turin and University of California, Hastings
College of Law)
Honorary Editor
RU DOL FO SACCO (University of Turin)
Late Honorary Editor

RU DOL F B. SCHL ESINGER (Cornell University – University of California,
Hastings)
Preface
Comparative legal studies performed by a large network of academ-

ics from many different countries usually require many years of work
and indeed a great deal of patience from all persons involved. This
book, like most volumes of the Common Core series, is no exception to
this rule. A first draft questionnaire on civil liability for the violation
of personality rights was presented by Gert Brüggemeier and Aurelia
Colombi Ciacchi and discussed in Trento in 2001. After settling on the
final version of the questionnaire, first draft country reports were com-
pleted between 2002 and 2004. In August 2004, Patrick O’Callaghan
joined the editors’ team. Draft comparative remarks and an introduc-
tory chapter were written in 2005–06. Then the last missing country
reports were drafted and the review of the other reports and the draw-
ing of our conclusions for this project continued until early 2007, fol-
lowed by final editing and proofreading until 2008.
We would like to express our deepest thanks to all national reporters
and contributors for their enthusiasm and long-term commitment to
this project, which did not provide any other remuneration but for the
publication itself and the enjoyment of wonderful meetings in both
Trento and Turin.
We are grateful to the general editors of the Common Core project,
Mauro Bussani and Ugo Mattei, for their constant support. An enor-
mous thank you to the chairs of the Tort session of the Common Core
project, Mathias Reimann (until 2002) and Franz Werro (since 2003),
and all participants to the annual meetings of the Tort sessions for
their valuable comments and suggestions.
Our thanks to Carol Forrest for her help in editing this book. We
would also like to thank Eric Engle for his collaboration in this project
between 2002 and 2004. Last but not least, we are indebted to Carla
Boninsegna for her precious help in organising our meetings, and
xvi
preface xvii
to Jodie Barnes, Sinéad Moloney and Finola O’Sullivan at Cambridge

University Press who so kindly helped to bring this project to a good
end.
GERT BRÜGGEMEIER University of Bremen
AU R EL I A COL OM BI CI ACCH I University of Bremen
PA T R I C K O ’C A L L A G H A N Newcastle University
Editorial note
Most of the following country reports were completed in 2007 but for
reasons of the work schedule we were unable to make major updates
to the reports before publication. Naturally, there have been devel-
opments since 2007, some of a relatively minor nature and some
which are clearly quite significant. In England, while Campbell v. MGN
remains the leading authority for the fledgling informational priv-
acy tort, there have been some decisions of the lower courts, which
should be mentioned here, namely McKennitt v. Ash,1 Murray v. Express
Newspapers plc2 and Mosley v. News Group Newspapers Ltd.3 In Germany,
as set out in Case 7, courts and scholars traditionally regarded pic-
tures of public figures as pictures of contemporary history.4 But the
German reporters inform us that the legal landscape has changed
following the decision of the European Court of Human Rights in
von Hannover.5 Courts in Germany now allow publication of pictures
of public figures only when they are deemed newsworthy. The news-
worthiness may be due to the fact that the person is depicted in an
official function or if there is a story to the photo which is of public
interest.6 The public interest may also follow from a text added to the
photo.7
1
[2008] QB 73.
2
[2008] 3 WLR 1360.
3
[2008] EMLR 20.
4
Personen der Zeitgeschichte, see H. Neumann-Duesberg, ‘Bildberichterstattung über
absolute und relative Personen der Zeitgeschichte’ (1960) JZ 114–18. Cf. KG Berlin
ZUM-RD 2006, 552; LG Berlin ZUM-RD 2006, 571.
5
ECHR decision of 24 June 2004 – 59320/00, GRUR 2004, 1051; (2005) 40 EHRR 1.
6
BGHZ 171, 275; 158, 218, 222; NJW 2008, 3134; BVerfGE 101, 361, 389.
7
BGH NJW 2008, 3141.
xviii
editorial note xix
But perhaps the most extensive changes have occurred in Ireland.

Val Corbett, the Irish reporter, has kindly provided the following over-
view of these changes:
Since the time of writing, there have been significant developments in Irish
defamation and privacy law which will alter the advice provided in many of
the cases contained within the text.
First, the Defamation Bill was enacted in the form of the Defamation Act
2009 and took effect from 1 January 2010. The Act applies to all causes of
action accruing before its commencement.8 Much of the reform introduced
by the Act is procedural in effect. Many of its provisions have simply put the
common rules relating to defamation on a statutory footing. For example,
the common law of justification has been abolished and replaced with the
similar defence of truth.9 Furthermore, the common law defences of abso-
lute privilege,10 qualified privilege,11 consent12 and offer to make amends13 are
put on a statutory footing. The legislation alters the common law defence of
‘fair comment’ to a statutory one of ‘honest opinion’.14 A new defence of ‘inno-
cent publication’ has also been introduced.15 This defence will be welcomed by
publishing houses (and possibly internet service providers) who – under the
old regime – could be potentially liable for defamation even though they may
have only innocently facilitated the publication of the defamatory material.
Equally welcome is the provision which allows the defendant to give evidence
in mitigation of damage where [s]he published (or offered to publish) an apol-
ogy and crucially provides that any such apology is not admissible in any civil
proceedings as evidence of liability in defamation proceedings.16
Much of the criticism of Irish defamation law derived from the fact that
the tort was essentially one of strict liability, i.e. there was no defence if the
defamatory statement was mistakenly – although not negligently or reck-
lessly – published. The Act has introduced a new defence of ‘fair and reason-
able publication on a matter of public interest’ to fill this lacuna.17 The stated
purpose of this defence is to allow reasonable and fair publication of material
which is considered to be in the ‘public interest’ even where it is capable of
being defamatory. While it remains to be seen how this defence will be inter-
preted by the courts, there is concern that, as drafted, the defence is unduly
8
Section 3 of the Defamation Act 2009.
9
10
11
12
13
14
15
16
17
xx editorial note
narrow and could be practically unworkable. Furthermore, the introduction

of this defence could be seen as a retrograde step for proponents of freedom
of expression as it expressly replaces18 innovative defences which have been
developed by the Irish courts in recent years.19
The second development in Irish law is that breach of privacy claims as
between private parties are now recognised under Irish law. While claims
for breach of privacy by the State have long been recognised by the Irish
courts,20 it was not until the recent High Court decision of Herrity v. Associated
Newspapers (Ireland) Limited,21 that it was explicitly recognised that a cause of
action for breach of privacy could exist between private parties.
Once again we would like to express our gratitude to the individual

authors for all of their hard work and effort.
Gert Brüggemeier
Aurelia Colombi Ciacchi
January 2010
18
19
In particular, the defence of public interest developed in Leech v. Independent
Newspapers (Ireland) Ltd [2007] IEHC 223.
20
See McGhee v. Attorney General [1974] IR 384; Norris v. Attorney General [1984] IR 36;
Kennedy v. Ireland [1987] 1 IR 587.
21
[2008] IEHC 249.
Abbreviations
General abbreviations
§ paragraph
§§ paragraphs
Art. Article
CC Civil Code
cf. confer
ch. chapter
COM Document of the European Commission
EC European Community
ECHR European Convention on Human Rights
and Fundamental Freedoms
ECJ European Court of Justice
ECR Reports of the Decisions of the European
Court
ECtHR European Court of Human Rights
ed. editor
edn. edition
eds. editors
e.g. exempli gratia
EHRR European Human Rights Reports
ERPL European Review of Private Law
et al. et alia
et seq. et sequitur
EU European Union
EU Charter Charter of Fundamental Rights of the
European Union
ibid. ibidem
xxi
xxii list of abbreviations
ICCPR International Convenant on Civil and

Political Rights
ICESCR International Convenant on Economic,
Social and Cultural Rights
i.e. id est
p. page
PC Penal Code
pp. pages
TEU Treaty establishing European Union
UN United Nations
v. versus
Vol. volume
Vols. volumes
Abbreviations by Country
Austria
ABGB Allgemeines Bürgerliches Gesetzbuch
ASVG Allgemeines Sozialversicherungsgesetz
BlgNR Beilage(n) zu den stenographischen
Protokollen des Nationalrates
ECG E-Commerce Gesetz
EO Exekutionsordnung
EvBL Evidenzblatt der
Rechtsmittelentscheidungen des Obersten
Gerichtshofs
MedienG Mediengesetz
MR Medien und Recht
OGH Oberster Gerichtshof
ÖJZ Österreichische Juristen-Zeitung
RV Regierungsvorlage
StGB Strafgesetzbuch
UrhG Urheberrechtsgesetz
UWG Gesetz gegen den unlauteren Wettbewerb
Belgium
AJT Algemeen Juridisch Tijdschrift
AM Auteurs et Média
Cass. Cour de cassation (belgique)
list of abbreviations xxiii
C.civ. Code civil

JLMB Jurisprudence de Liège, Mons et Bruxelles
JT Journal des tribunaux
Rec.Cass. Recente Arresten van het Hof van Cassatie
TBBR Tijdschrift voor Belgisch Burgerlijk Recht
England
AC Law Reports, Appeal Cases
All ER All England Law Reports
CA Court of Appeal
Ch Law Reports, Chancery Division
EMLR Entertainment & Media Law Reports
EWHC England and Wales High Court
FSR Fleet Street Reports
HL House of Lords
HRA Human Rights Act
KB Law Reports, King’s Bench
LR Law Reports
QB Law Reports, Queen’s Bench
TLR Times Law Reports
WLR Weekly Law Reports
Finland
FIM Finnish Markka
France
Ann.prop.ind. Annales de la propriété industrielle, artis-
tique et littéraire
Ass. plén. Assemblée plénaire
Bull. civ. Bulletin des arrêts de la Cour de cassation
(chambres civiles)
Bull. crim. Bulletin des arrêts de la Cour de cassation
(chambre criminelle)
Cass Cour de cassation
Cass. I civ. Cour de cassation (1ère chambre civile)
Cass. II civ. Cour de cassation (2ème chambre civile)
Cass. III civ. Cour de cassation (3ème chambre civil)
Cass. comm. Cour de cassation, chambre commerciale
Cass. crim Cour de cassation, chambre criminelle
CC Conseil constitutionnel
xxiv list of abbreviations
C. civ. Code civil

CE Conseil d’Etat
chr. chronique
D Dalloz
DC Décision du Conseil constitutionnel
Décl./DDHC Déclaration des droits de l’homme et du
citoyen
DP Dalloz Périodique
Gaz. Pal. Gazette du Palais
IR Informations rapides
JCP JurisClasseur Périodique (Semaine
juridique)
RDP Revue du droit public et de la science poli-
tique en France et à l’étranger
rec. Recueil
Rev. Trim. Droit Civ. Revue trimestrielle du droit civil
somm. Sommaire(s)
TGI Tribunal de grande instance
Trib. civ. Tribunal civil
Germany
AG Amtsgericht
ArbG Arbeitsgericht
BAG Bundesarbeitsgericht
BGB Bürgerliches Gesetzbuch
BGH Bundesgerichtshof
BGHZ Entscheidungen des Bundesgerichtshofs in
Zivilsachen
BVerfG Bundesverfassungsgericht
BVerfGE Entscheidungen des
Bundesverfassungsgerichts
EuGRZ Europäische Grundrechte-Zeitschrift
GG Grundgesetz
GRUR Gewerblicher Rechtsschutz und
Urheberrecht
JZ Juristen-Zeitung
KUG Kunsturhebergesetz
LG Landgericht
NJW Neue Juristische Wochenschrift
list of abbreviations xxv
NJW-RR Neue Juristische

Wochenschrift – Rechtsprechungsreport
OLG Oberlandesgericht
RG Reichsgericht
RGBl. Reichsgesetzblatt
RGZ Entscheidungen des Reichsgerichts in
Zivilsachen
StGB Strafgesetzbuch
Greece
–
Ireland
IEHC The High Court of Ireland Decisions
IR Irish Reports
Italy
App. Corte d’appello
Arch. civ. Archivio civile
Cass. Corte di Cassazione
Cass. pen. Cassazione penale
CC Codice civile
Corriere giur. Corriere giuridico
Corte cost. Corte costituzionale
Cost. Costituzione della Repubblica Italiana
CP Codice penale
Danno e resp. Danno e responsabilità
Dir. Aut. Diritto d’autore
Foro it. Foro italiano
Giur. cost. Giurisprudenza costituzionale
Giur. it. Giurisprudenza italiana
Giust. civ. Giustizia civile
Nuova giur. civ. comm. Nuova giurisprudenza civile commentata
Rass. dir. civ. Rassegna di diritto civile
Resp. civ. Responsabilità civile e previdenza
Riv. crit. dir. priv. Rivista critica del diritto privato
Riv. dir. civ. Rivista di diritto civile
Riv. trim. dir. proc. civ. Rivista trimestrale di diritto e procedura
civile
xxvi list of abbreviations
The Netherlands
BW Burgerlijk Wetboek
HR Hoge Raad
NJ Nederlandse Jurisprudentie
NJB Nederlands Juristenblad
NJV Nederlandse Juristenvereniging
Portugal
Ac. STJ Acórdão do Supremo Tribunal de Justiça
Ac. TC. Acórdão do Tribunal Constitucional
BMJ Boletim do Ministério da Justiça
CC Código Civil
CP Código Penal
CPC Código de Processo Civil
CPP Código de Processo Penal
Cpub Código da Publicidade
CRP Constituição da República Portuguesa
EJ Estatuto do Journalista
LI Lei de Imprensa
STJ Supremo Tribunal de Justiça
Scotland
SC Session Cases
SLT Scottish Law Times
Spain
ADC Anuario de Derecho Civil
CC Código civil
CE Constitución Española
LO Ley Orgánica
RTC Repertorio del Tribunal Constitucional
STC Sentencia del Tribunal Constitucional
STS Sentencia del Tribunal Supremo
STSJ Sentencia del Tribunal Superior de Justiça
TC Tribunal Constitucional
Switzerland
ATF/BGE Arrêts du tribunal fédéral/Entscheidungen
des Bundesgerichts
list of abbreviations xxvii
CC/ZGB Code Civil/Zivilgesetzbuch

CO/OR Code des Obligations/Obligationenrecht
JAAC Jurisprudence des autorités administra-
tives de la conféderation
JdT Journal des tribunaux
JTPI Journal des tribunaux de première
instance
RS/SR Recueil systématique du droit fédéral/
Systematische Sammlung des
Bundesrechts
RVJ Revue valaisanne de jurisprudence
SJ Semaine judiciaire
SJZ Schweizerische Juristen-Zeitung
TF/BG Tribunal fédéral/Bundesgericht
USA
A./Atl. (2d) Atlantic Reporter (Second Series)
Ala. Alabama Reports
Amends. Amendments
App. Appellate Reports
Cal. California Reports
cert. den. certiorari denied
Cir. Circuit (Federal Courts of Appeal)
Const. Constitution
D. District (Federal Courts)
D.C. District of Columbia
F. Federal Reporter
Ga. Georgia Reports
Kan. Kansas Reports
Ky. Kentucky Reports
La. Louisiana Reports
Md. Maryland Reports
Mich. Michigan Reports
Minn. Minnesota Reports
Mo. Missouri Reports
N.C. North Carolina Reports
N.E. North Eastern Reporter
N.H. New Hampshire Reports
N.W. North Western Reporter
N.Y. New York Reports
xxviii list of abbreviations
N.Y.S. New York Supplement

N.Y. Sess. New York Session Laws
N.Y. Sup. Ct. New York Supreme Court of Judicature
(State Court of First Instance (1848–date)
P./Pac. Pacific Reporter
R.I. Rhode Island Reports
S.Ct. U.S. Supreme Court Reports
S.E. South Eastern Reporter
So. Southern Reporter
S.W. South Western Reporter
Tex. Texas Reports
U.S. U.S. Supreme Court Reports
Wis. Wisconsin Reports
PA R T I M A P P I N G T H E L E G A L
L A NDSC A PE
1 General introduction
‘Personality rights’ is not an obvious topic of comparative legal research.

One may argue that the title of this volume reveals a typically continen-
tal European approach to the legal protection of personality interests.
Is this terminological choice really compatible with the commitment
of the Common Core project to a factual, bottom-up approach1 and
with the requirement of equal treatment of different legal cultures,
which should inspire every high-quality comparative law exercise? We
maintain that it is for at least three reasons.
First of all, the rights-based approach in legal matters such as pri-
vacy and self-determination has become a truly common European
feature through the European Convention on Human Rights (ECHR),
the jurisprudence of the European Court of Human Rights (ECtHR)
and the established case law of the European Court of Justice (ECJ) on
Community fundamental rights, which are already in force as general
principles of EC law.2
Secondly, legal history shows that the recognition of a ‘new’ human
interest as a ‘right’ always requires a lengthy period of time and intense
debates in every legal system. This is a recurring pattern in the history
of personality protection in continental Europe, like in other parts of
Europe and in the United States.3
Thirdly, it is of great interest for comparative lawyers committed to
the Common Core methodology to see how the same human interests
1
M. Bussani and U. Mattei, ‘The Common Core Approach to European Private Law’
(1997) 3 Columbia Journal of European Law 339.
2
Cf. G. Brüggemeier, A. Colombi Ciacchi and G. Comandé (eds.), Fundamental Rights and
Private Law in the European Union, Vols. I and II (Cambridge: 2010).
3
See G. Brüggemeier, ‘Protection of Personality Rights in the Law of Delict/Torts in
Europe: Mapping out Paradigms’, and J. Page, ‘American Tort Law and the Right to
Privacy’, both in this volume.
3
4 per sona li t y r igh ts in europe a n tort l aw
which qualify as ‘rights’ in some legal systems are protected in the

legal systems which do not recognise this qualification. Following
Sacco’s approach,4 this volume aims, on the one hand, to detect hidden
similarities and ‘cryptotypes’ in the actual legal treatment accorded
by different European countries to personal interests, which qualify
as ‘personality rights’ in some of these countries. On the other hand,
this volume aims to detect hidden disparities in the ‘law in action’ of
countries whose ‘law in books’5 seems to protect one and the same
personality interest in a similar fashion.
The working method of this project and the structure of the country
reports follows the tripartition ‘Operative Rules’, ‘Descriptive Formants’
and ‘Metalegal Formants’ typical of the Common Core methodology:6
(1) The Operative Rules summarise the final result, i.e. the claims given
(or not given) in each of the situations described in the individual
case of the questionnaire. They also specify the kinds of losses
recoverable (economic, non-economic or both).
(2) The Descriptive Formants comprehensively explain the (legislative
or case law) legal bases and the requirement for their applicability in
the individual case.
(3) The Metalegal Formants deal with arguments other than formal
legal ones, e.g. policy, economic, sociological, historical arguments,
which are determinant for the final result. Often a legal provision is
open to different interpretations and each of these is supported by
policy arguments; these are discussed, if possible, in the Metalegal
Formants. This is also where the authors make any general
comments not belonging to the Descriptive Formants.
4
R. Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law’ (1991) 39
American Journal of Comparative Law, 1 and 343.
5
R. Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12.
6
See Bussani and Mattei, ‘The Common Core Approach’; Sacco, ‘Legal Formants’.
2 Protection of personality rights in
the law of delict/torts in Europe:
mapping out paradigms1
Gert Brüggemeier
1. Introduction
‘Personality Rights in European Tort Law’: What exactly are we talking
about here? Both the term personality right and the term European tort
law are misleading and need clarification right from the outset.
There is actually no such thing as ‘European tort law’. The ‘pigeon-
hole’ approach of individual torts is a particularity of the common law
tradition, which finds no counterpart in the civil law. The term ‘law of
delict’ is well-established with regard to the civil law systems, which
claim ‘non-contractual liability for damage caused to another’, based
on the general principle of neminem laedere.
As for the notion of ‘personality right’, in modern civil law there
are two clear-cut notions of ‘rights’: public law recognises fundamental
rights, be they classic human rights declaring the freedom of citizens
from state intervention2 or be they social or economic rights request-
ing assistance and performances for citizens from public authorities.
These are ‘innate’ and inalienable rights of human beings as such or of
the citizens of the respective political entity, and are mostly enshrined
in written constitutions. Private law provides for subjective rights:3
1
An earlier and partly different version of this chapter was published in N. R. Whitty
and R. Zimmermann (eds.), Rights of Personality in Scots Law: A Comparative Perspective
(Dundee: 2009).
2
These national or European fundamental rights are also capable of developing states’
duties of protection. On the European level see ECJ, 15.12.1995, case C-415/93 Bosman
[1995] ECR I-4921; for a leading German monograph, see J. Dietlein, Die Lehre von den
grundrechtlichen Schutzpflichten (2nd edn., Berlin: 2005).
3
Droits subjectifs/diritti soggettivi. On this civilian category, alien to common
lawyers, see H. Coing, ‘Zur Geschichte des Begriffs “subjektives Recht”’, in
Gesammelte Aufsätze, Vol. 1 (Frankfurt/M.: 1982), p. 241; F. H. Lawson, ‘ “Das
subjektive Recht” in the English Law of Torts’, in Selected Essays, Vol. 1: Many Laws
5
(absolute) property rights in corporeal things or intellectual achieve-

ments and (relational) obligations (Forderungen), e.g. a creditor’s right to
claim money from a debtor. These subjective rights are, by definition,
alienable, heritable and of monetary value. They constitute the assets
of a person. Civil personality rights do not fit into this dichotomy. They
are hybrids, sort of private human rights. They function as a metaphor for
non-physical aspects of the persona and this nomenclature has helped
them to be recognised by private law. The law of delict protects both
the ‘have’ and the ‘being’ of individuals. The protection of the ‘being’
was traditionally restricted to both the guarantee of bodily (psycho-
physical) integrity and the guarantee of honour and reputation against
defamation.4 The law of defamation is a well-established field of – crim-
inal and private – law in almost every legal system. However, new non-
bodily aspects of the persona appeared within the scope of the law of
delict/tort under the guise of personality rights. These include dignity,
autonomy, privacy etc. These are what personality rights or an overarch-
ing general personality right are. Under this terminological umbrella,
legitimate personality interests are developed and protected by the law
of delict. One has to lift this metaphorical veil to get to the substance –
the diversity of personality interests and the specificity of their scope
of protection.5 A special and controversial case in this respect is the
‘right’ to one’s likeness. It supposedly has a double nature. It can be an
inalienable personality ‘right’ or an alienable and descendible prop-
erty right (‘right to publicity’).6
(Amsterdam: 1977), p. 176; G. Samuel, ‘ “Le Droit Subjectif” and English Law’ (1987)
46 Cambridge Law Journal 264.
4
This has already been the scope of protection of the Roman actio iniuriarum. On
its impact on the modern law, see R. Zimmermann, The Law of Obligations. Roman
Foundations of the Civilian Tradition (Cape Town: 1990), Ch. 31 and below in the text.
5
The attempts in Anglo-American tort law to focus exclusively on ‘a’ privacy tort
and to define privacy comprehensively are misleading. See, as a recent example,
D. J. Solove, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law Review
477. These attempts seem to be strongly indebted to the traditional pigeon-holing
approach of the common law of torts. Instead, the protection of personality interests
is an open textured concept. See already R. Pound, ‘Interests of Personality’ (1915)
28 Harvard Law Review 343/445 (sociological jurisprudence) and recently J. Gordley,
Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford: 2006),
Ch. 11 (philosophical jurisprudence); see also C. van Dam, European Tort Law
(Oxford: 2006), p. 149.
6
On the US, see J. T. McCarthy, The Rights of Publicity and Privacy, 2 Vols., (2nd
edn., Eagan: 2002); for Europe see H. Beverly-Smith, A. Ohly and A. Lucas-
Schloetter, Privacy, Property and Personality. Civil Law Perspectives on Commercial
Appropriation (Cambridge: 2005). The leading German monograph is H. P. Götting,
Persönlichkeitsrechte als Vermögensrechte (Tübingen: 1995).
prot ect ion of per sona li t y r igh ts in europe 7
The notion ‘persona’, personnalité or persönlichkeit appeared in the legal

world at two different periods in history and in two different forms –
firstly through the Institutes of Gaius in the second century AD,7 which
later inspired the Institutiones of Justinian’s Corpus Iuris Civilis in the
sixth century AD (a legal transfer from Rome to Byzantium). Book I of
Justinian’s Institutiones developed the formalistic understanding of the
natural person as a subject of the law (Rechtssubjekt; soggetto di diritto), of
his or her legal capacity and of his or her social status in inter-personal
relationships (marriage, parenthood, adoption, guardianship). Most
nineteenth-century Civil Code drafters took this conventional notion
as a model and a starting point for their own structuring of private law.
French and German civil law also share this as a common heritage.
Secondly, another concept of persona was then fully worked out by
the Enlightenment philosophy and natural law theories at the time of
the transition from traditional to modern society in the seventeenth
and eighteenth centuries. Building on Christian ethic and Canon law,
it was through the works of Grotius, Thomasius, Pufendorf and others that
the idea of human dignity as a characteristic feature of the persona
that must be recognised in every individual came to the fore, as well
as the concept of innate human rights and duties belonging to the per-
sona as such (iura connata).8 The ways and the extent to which the con-
tinental European law of delict tackled the problem of protection of
personality interests from the nineteenth century onwards seemingly
depended on their adherence to the latter of these two traditions.
The civil law of delict has two distinct but paradigmatic paths con-
cerning the protection of personality interests in nineteenth- and
twentieth-century continental Europe – the French law and the German
law.9 Austria and Italy are examples of civil law systems which shifted
between these two regimes before developing their own shape. A path
7
See Book I (8) of Gaius’ Institutiones: ‘All the law which we make use of has reference
either to persons, to things, or to actions. Let us fi rst consider persons.’ (English
translation available at http://faculty.cua.edu/pennington/Law508/Roman%20Law/
GaiusInstitutesEnglish.htm).
8
For this scholastic and natural law legacy in greater detail and from a comparative
perspective, see J. Gordley, Foundations of Private Law, Ch. 11, and as locus classicus:
F. Wieacker, Privatrechtsgeschichte der Neuzeit (2nd edn., Göttingen: 1967), Ch. 4 (in
English: F. Wieacker, A History of Private Law in Europe (Oxford: 1995)) with further
references.
9
A different view is presented by the legal historian and comparativist J. Whitman,
equalising French and German law in their preferred protection of honour in
contrast to the US law focusing on protection of liberty. J. Q. Whitman, ‘The Two
Western Cultures of Privacy: Dignity versus Liberty’ (2004) 113 Yale Law Journal 1151.
of their own, in form and content, was pursued by both the common law
of torts in England, Ireland and the mixed jurisdiction of Scotland, and
by the law of the Nordic States.
(1) One line of thought is characterised by the reception of natural
law’s general clause of the law of delict (neminem laedere). Together
with the heritage of the actio iniuriarum of the Ius Commune, this
reception by the French drafters of the Code Civil made the equal
treatment of economic and non-economic loss in the law of damages
possible, which was alien to Roman law. Under the general law of
delict in the Code Civil, compensation of non-economic loss in cases
concerning the infringement of the personality was awarded from
1804 onwards. The French model was followed in the nineteenth
century by Belgium, the Netherlands, Spain, Switzerland,10 and ini-
tially by Austria11 and Italy.
(2) In nineteenth-century Germany, the Historical School instead
wanted to revert to the original sources of Roman law not alienated
by Canon and natural law. Scholars worked on a system of private law
focusing on freedom of contract, economic rights and compensation
of pecuniary loss. The protection of honour and reputation was sub-
mitted to criminal law; a civil law remedy of damages was no longer
available in this field of law. The actio iniuriarum was formally repealed.
This German law path was followed in the twentieth century by other
states such as Austria, Greece and Italy.
The BGB law of delict was then later forced to recognise these sup-
pressed personality interests and to integrate them into a system which
was not suitable for them: monetary compensation was only awarded
in cases of severe infringement and where there was no other remedy
at hand to resolve the infringement.
(3) In the English common law of torts the protection of a person’s
honour and reputation by the law of defamation has had a long but
intricate history. Beyond defamation law, other personality interests
such as dignity, autonomy and privacy are protected by a legal patch-
work of common law, equity law and statutory law, if at all. Unlike
10
Cf. Art. 55 Swiss Law of Obligations (OR) of 1881 and now Art. 28 Swiss Civil Code
(ZGB) of 1907 and Art. 49 OR of 1911. Art. 28(1) ZGB affords legal protection to anyone
who suffers an unlawful infringement of his/her personality.
11
Cf. § 16 Austrian General Civil Code ( ABGB) of 1811: ‘Each human being has inborn
rights, apparent from reason, and is accordingly to be regarded as a persona.’
the common law in the United States,12 English common law has not
yet formally recognised a tort of violation of privacy. However, with
the influence of the Human Rights Act (1998) things have begun to
change.13 Scots law, being the unique example of a mixed jurisdiction
in Europe, intertwining both the Roman law-rooted civil law of delict
(actio iniuriarum) and the common law of torts (defamation), tries to
pursue an independent path.
(4) The Nordic countries encompass legal systems which still adhere
to the old tradition of the protection of personality interests (honour
and reputation) through criminal law. No civil personality rights are
acknowledged. Tort law remedies (damages) are only available in con-
nection with some types of criminal acts regulated by the general
Penal Code and by special legislation in respect of the media. Recently,
under the influence of the European Convention on Human Rights
(ECHR), the legal protection of the personality seems to have developed
further.14
(5) In the second half of the twentieth century, another dominant,
‘neo-natural law’ factor entered onto the continental legal stage sup-
porting the development of private personality rights – constitutional-
ism. After the breakdown of the national socialist and fascist political
regimes following the Second World War, new democratic constitu-
tions were inaugurated in most continental European states. These
contained binding and judicially enforceable constitutional rights for
the first time.15 In addition, an overarching European Bill of Rights,
embracing both capitalist and (then) communist countries, was set
in motion – the ECHR of 1950, which has been monitored by the
12
On the development of US law, see the contribution of J. Page, ‘American Tort Law
and the Right to Privacy’ (in this volume) and the collection of articles in R. Wacks
(ed.), Privacy, 2 Vols. (Aldershot: 1993) and E. Barendt (ed.), Privacy (Aldershot: 2001).
13
See, e.g., J. Wright, Tort Law and Human Rights (Oxford: 2001); W. V. H. Rogers, ‘Tort
Law and Human Rights: A New Experience’, in H. Koziol and B. C. Steininger (eds.),
European Tort Law 2002 (Vienna/New York: 2003), pp. 35–64.
14
See A. Lauer and A. Colombi Ciacchi, ‘Sweden’, in G. Brüggemeier, A. Colombi
Ciacchi and G. Comandé (eds.), Fundamental Rights and Private Law in the European
Union, Vol. I: A Comparative Overview (Cambridge: 2010 forthcoming), Part 2 § 4 and
Part 3 § 3 A.
15
In France, it was due to the jurisprudence of the Constitutional Council (Conseil
constitutionnel) and in Italy due to the jurisprudence of the Constitutional Court
(Corte costituzionale) that non-binding constitutional rights were turned into
judicially enforceable constitutional principles from the 1970s onwards. For France,
see below Part B I; for Italy, see F. Jorge Ramos, C. Kraus, C. Mak, M. D. Sanchez
European Court of Human Rights (ECtHR) since 1998.16 The human

rights contained therein finally became an integral part of the Law
of the European Union. It is due to this process of Europeanisation or
constitutionalisation of private law17 that at the end of the last cen-
tury the diverse private law traditions of Europe and the adherent
national legal systems approximated to a certain extent, at least as far
as the protection of personality rights is concerned. Still, in the Nordic
countries this approximation process is less visible than in the other
Western European countries.
These different paths of private law in Europe – civil law of delict,
common law of torts and Nordic law – are sketched below in a four-
part analysis covering France, Germany, England and Sweden, supple-
mented by a section on EU law.18
2. Two distinct paths of civil law of delict

A. France19
France was the demiurge of civil society in Europe. It delivered the
political philosophy, the fundamental rights and the revolutionary
practice. However, during its revolutionary process all the atrocities
which modern civilised societies would later face in the nineteenth and
twentieth centuries were anticipated. The starting point for the protec-
tion of privacy and other personality interests can already be found
in the Déclaration des droits de l’homme et du citoyen of 26 August 1789.
Art. 2 of the Declaration states that the first and greatest command-
ment of any body politic is to protect the ‘natural rights’ of human
Galera and S. Wünsch, ‘Italy’, in G. Brüggemeier et al. (eds.) Fundamental Rights and
Private Law in the European Union, Vol. I.
16
F. G. Jacobs and R. C. A. White, The European Convention on Human Rights (4th edn.,
Oxford: 2002); C. Grabenwarter, Europäische Menschenrechtskonvention (4th edn.,
Munich/Vienna: 2009).
17
For comparative accounts, see K. S. Ziegler (ed.), Human Rights and Private Law.
Privacy as Autonomy (Oxford: 2007); T. Barkhuysen and S. Lindenbergh (eds.),
Constitutionalisation of Private Law (Leiden/Boston: 2006) and D. Friedmann and D.
Barak-Erez (eds.), Human Rights in Private Law (Oxford: 2001).
18
For comparative accounts, see G. Dworkin et al., Die Haftung der Massenmedien,
insbesondere der Presse, bei Eingriffen in persönliche oder gewerbliche Rechtspositionen
(Frankfurt/M.: 1972); H. Koziol and A. Warzilek (eds.), Persönlichkeitsschutz gegenüber
Massenmedien/The Protection of Personality Rights against Invasions by Mass Media (Vienna/
New York: 2005); cf. also K. Zweigert and H. Kötz, Introduction to Comparative Law (3rd
edn., Oxford: 1998), pp. 685–708.
19
This section benefits from both the introduction to the French questionnaire
report by A. Lucas-Schloetter (on file with the editors) and the French Report to
beings, especially liberty.20 Art. 11 guarantees freedom of expression.21

Nevertheless, it was for the legislator to implement and protect these
natural rights and to define their limits through statutory acts. The
Code Napoléon of 1804 was a civil law masterpiece of this legislative
implementation. With its liberal principles on freedom of contract
and property, as well as its broad scope of protection through the law
of delict, the Code became the civil constitution of French bourgeois
society.
As early as the middle of the nineteenth century, the reproduction of a
person’s likeness began to attract the attention of jurists and was soon con-
sidered to be the subject of a sort of exclusive right of the individual. The
judgment of 16 June 1858 in the Rachel case is seen as the ‘birth certificate’
of the right to one’s image in France.22 It concerned a famous actress who
had been photographed on her deathbed. Unauthorised sketches were
then made of the photograph and these were commercially marketed.
The outcome of the proceedings was the seizure and destruction of the
wrongfully produced sketches and the payment of monetary compensa-
tion for non-economic loss (dommage moral) to her relatives.
The language applied by the court focused much more on property
rights discourse than on personality interests. Nevertheless, from the
middle of the nineteenth century onwards it was admitted in France
that a person’s image, name23 and likeness were subjects of an exclusive
the EU Research Training Network: C. Herrmann and C. Perfumi, ‘France’, in G.

Brüggemeier et al. (eds.), Fundamental Rights and Private Law in the European Union, Vol. I.
20
‘Le but de toute association politique est la conservation des droits naturels et imprescriptibles
de l’homme. Ces droits sont la liberté, la proprieté, la sureté et la résistance à l’oppression.’
[‘The aim of all political association is the preservation of the natural and
imprescriptible rights of man. These rights are liberty, property, security and
resistance to oppression.’]
21
‘La libre communication des pensées et des opinions est un des droits les plus précieux de
l’homme; tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l’abus
de cette liberté dans les cas déterminés par la loi.’ [‘The free communication of ideas and
opinions is one of the rights which is most precious to man. Every citizen may,
accordingly, speak, write, and print with freedom, but shall be responsible for such
abuses of this freedom as shall be determined by law.’]
22
Trib. civ. Seine, 16 Jun. 1858, D. 1858, 3, 62. In this judgment, the civil court stated
that ‘no one may, without the express consent of the family, reproduce and make
the features of a person on his deathbed available to the public, however famous
this person has been and however public his acts during his life. The right to oppose
this reproduction is absolute; it flows from respect for the family’s pain and it should
not be disregarded; otherwise the most intimate and respectable feelings would be
offended.’
23
Trib. civ. Seine, 15 Feb. 1882, D. 1884, 2, 22 note Labbé; cf. Maillard, ‘Du droit au nom
patronymique’ (1894) Ann. prop. ind. 345.
right, the violation of which would lead to seizure and interdict as well
as general damages for emotional suffering under the general clause of
Arts. 1382, 1383 Code Civil (‘wrongfully inflicted damage’). Many cases of
the ‘belle époque era’ deal with the conflict between the artist’s right to
his/her work and the person’s right to his/her image and private life.24
The only subject of contention was the question of the legal nature of
this ‘personality right’.25
In relation to private life (vie privée), on the other hand, the situation
was quite different. The right of every person to have his or her privacy
respected was neither discussed by the civil law courts nor in academic
scholarship (la doctrine). Interestingly though, in 1819, Royer-Collard, a
supporter of freedom of press legislation under the Restoration (Second
Empire), had already advocated a ‘wall of private life’ (mur de la vie
privée) as a borderline to press freedom and thereby concisely expressed
the long dominant view of a spatial sphere of privacy linked to the
domestic arena. The first Press Act was passed in 1868. S. 11 provided
that ‘every publication about privacy in a periodical is treated as a
summary offence punishable with a fine of 500 francs’.26 Only thir-
teen years later, under the Third Republic, was the Press Act repealed
by a Freedom of the Press Act dated 29 July 1881.27 On the contrary,
the new Act (Art. 35) provided that only a deliberate infringement of
the honour or esteem of another person would be a wrongful act: the
crime of defamation (publication of offensive statements) and insult
(injure). The Act introduced very restrictive procedural requirements,
particularly the three-month term of prescription. The remedies for
violation were monetary fines. A right of reply (droit de réponse) was
introduced. The general law of delict is excluded from the scope of
application of the Press Act 1881. In this respect, the protection of the
persona against any form of defamatory and revelatory publication
remained limited. However, this had no implication for the protection
of other personality interests founded on the general rules of the law
24
Cf. thereto J. Q. Whitman, ‘The Two Western Cultures of Privacy’, at 1175 et seq. with
references.
25
Trib. civ. Seine, 16 Jun. 1858, Rachel, D. 1858, 3, 62.
26
This criminal law focus is also to be found in the Constitution du 3 septembre 1791,
Title III, Ch. V, Art. 17: ‘Les calomnies et injures contre quelques personnes, que ce soit
relatives aux actions de leur vie privée, seront punies sur leur poursuite.’ [‘Calumnies and
insults against any persons whomsoever relative to their private life shall be
punished in legal proceedings.’]
27
Loi du 29 juillet 1881 sur la liberté de la presse, Bull. Lois no. 637 p. 125.
of delict (Art. 1382 c. civ.). With regard to written correspondence, the

rule of inviolability was well-established through the right to the con-
fidentiality of letters.28
By the end of the nineteenth century, diverse non-bodily aspects of
the persona seemed to be protected in a satisfactory manner in French
law. The protection of name, likeness and confidentiality of corre-
spondence was founded on the general principles of the law of delict.
The very extensive formulation of Art. 1382 Code Civil and the equal
treatment of economic and non-economic loss allowed most of the con-
flicts arising from the unauthorised use of one’s name or likeness to
be solved. For this it was not necessary to precisely determine the true
nature of the power of self-determination each person has over his or
her personal attributes. Private life and honour were protected against
invasions by the media – in a restrictive way – through the Press Act
1881.
In the nineteenth century, the development of ‘personality rights’
remained – internationally – interwoven with the emergence of intel-
lectual property rights – patents, copyright and trademarks. The French
discussion was more intense in this respect, as the French copyright
doctrine acknowledged the moral right (droit moral) of the author or
artist from the beginning. In 1900, the Paris Court of Appeal held that
an author’s right to modify or withdraw his work regardless of any con-
tractual obligations was ‘inherent in his personality itself’.29 Thus, in
the French tradition, personality rights are within a continuum lead-
ing from the alienable commercial copyright through to the inalien-
able moral right of the creator to the privacy right of the personality.
After the turn of the twentieth century a first clarification was
assumed by Perreau. In his famous article on ‘Des droits de la personnalité’,
published in 1909,30 he delivered a taxonomy of these new rights. He
made the distinction between the rights concerning the physical indi-
vidual (life, limbs and health, including consent to medical treatment)
and those concerning the moral personality. The latter category encom-
passed honour, liberty and intellectual works (moral right). These rights
concerning the moral personality were characterised by two aspects.
They had effect erga omnes and could not be evaluated in monetary
terms.31 As a consequence, they were inalienable, imprescriptible and
28
E.g. Trib. civ. Seine, 11 Mar. 1897, D. 1898, 2, 359, regarding the exchange of letters
between George Sand and Alfred de Musset.
29
CA Paris, 1 Feb. 1900, S. Jur. 1900, II, 121. 30 Rev. Trim. Droit Civ. 1909, 501.
31
Ibid. at 514 et seq.
inheritable. They could only be exercised and enforced by the ‘owner’

him- or herself.32 Although this was a remarkable step forward, the
connotations with intellectual property rights were still present.
The second phase in the history of French privacy law began in
the 1950s. In the famous Marlene Dietrich affair, a weekly magazine
published parts of Ms Dietrich’s alleged memoirs in the form of an
invented interview supposedly granted to a German journalist. On Ms
Dietrich’s suit the court found for her and awarded damages in the
amount of 5,000 French francs (FF). On appeal, the Cour d’appel de Paris
affirmed the decision. It held that facts and stories ‘concerning the
private life are part of the person’s moral property; … no one may pub-
lish them … without the express and unequivocal authorization of the
person whose life is recounted’.33 The court then raised the damages
to 1.2 million FF, considering not only her mental distress, but also
her patrimonial interests insofar as she was in fact preparing her own
memoirs for publication. This amount remains one of the largest dam-
ages awards in French privacy cases to date. With the Philipe affair, the
remedies available in privacy cases were extended. For the first time,
the Cour de cassation granted pre-trial interdictal (injunctive) relief to
stop publication in order to prevent privacy violations.34 This relief
requires an impending ‘intolerable intrusion into private life’.
Due to this flourishing case law development, the legislature decided
to reform the Civil Code. The Act of 17 July 1970 ‘intending to reinforce
the guarantee of individual rights of the citizen’ marked a milestone in
the history of the protection of personality interests in France.35 This
holds true even though the French legislature merely codified the case
law relating to the protection of the private sphere into the Civil and
Criminal Codes. The newly introduced Art. 9(1) Civil Code, the word-
ing of which is similar to that of Art. 8(1) ECHR, reads: ‘Chacun a droit au
respect de sa vie privée.’ – ‘Each person has the right to respect for his or
her private life.’ Thus, privacy, the sanctity of the home and the confi-
dentiality of correspondence are officially recognised as protected per-
sonality interests (‘rights’) by the French legislature. Art. 9 provides for
32
Ibid. at 514.
33
Paris, 16 Mar. 1955, M. Dietrich, D. S. Jur. 1955, 295.
34
Cass., 2e civ., 12 Jul. 1966, G. Philipe, D. S. Jur. 1967, 181.
35
Loi No. 70–643, 17 Jul. 1970, JO 19 Jul. 1970, p. 6751; cf. R. Badinter, ‘Le droit au
respect de la vie privée’ (1968) Jurisclasseur Periodique, I, 2136; H. Trouille, ‘Private
Life and Public Image: Privacy Legislation in France’ (2000) 49 International and
Comparative Law Quarterly 199.
a two-tiered system of privacy protection: (1) Infringements of private

life in general are subject to an independent strict liability regime and
to special and general damages after trial. (2) Revelations concerning
the intimate core of private life justify pre-trial interdictal/injunctive
relief.
A third phase in the legal protection of personality rights in France
started in the 1970s. A new branch of law was born: constitutional juris-
prudence (droit constitutionnel jurisprudentiel). Under the Constitution
of the Fifth Republic of 1958, a Constitutional Council (Conseil consti-
tutionnel) was established (Arts. 61–64). Through its landmark judg-
ment of 197136 a body of binding constitutional rules (so-called bloc
de constitutionalité ) was recognised. Core elements of this ‘bloc de con-
stitutionalité’ are the text of the Constitution of the Fifth Republic,
the 1789 Declaration of Human Rights and the Preamble to the 1946
Constitution with its economic and social rights. Today this body of
law is defined as ‘all principles and rules of constitutional rank which
are binding on the legislature as well as the executive and, in a general
way, on any public authorities, courts, and indeed private parties’.37 By
the same judgment, the Constitutional Council assumed its own com-
petence to review the conformity of legislative Acts with these consti-
tutional principles.38
In breaking from a long-established legal tradition, the ordinary
courts in France can now directly refer to constitutional principles
when adjudicating cases. From 1971 onwards, the avenue for the pro-
tection of personality rights was significantly broadened; the method
of legislative protection (e.g. amendments to the Civil Code39) is now
36
16 Jul. 1971, DC 71-44 (‘Liberté d’association’).
37
L. Favoreu et al., Droit des libertés fondamentales (Paris: 2002), p. 157.
38
This review procedure can only be initiated by the government, the French
President, the Presidents of the two chambers of Parliament, and a group of (at
least 60) Members of Parliament (Art. 61). Before 1971, the Constitutional Council’s
competence was restricted to checking the balance of powers between the
executive and the legislature in order to assure respect for the constitutionality of
the rule-making process.
39
In 1994, another fundamental constitutional value – human dignity – was
concretised by legislation. A new Article (Art. 16) was introduced into the Civil
Code: ‘La loi assure la primauté de la personne, interdit toute atteinte à la dignité de celle-ci
et garantit le respect de l’être humain dès le commencement de sa vie.’ [‘The law ensures
the primacy of the person, prohibits any infringement of the person’s dignity
and safeguards the respect of the human being from the commencement of life.’]
Art. 16–17C reads: ‘Chacun a droit au respect de son corps. Le corps humain est inviolable.’
[‘Everyone has the right to respect for his body. The human body is inviolable.’]
directly influenced by the national constitutional principles, especially

fundamental rights and the rights of the ECHR. The ECHR was signed
by France on 3 May 1974. According to Art. 55 of the Constitution,
European Convention law has supremacy over national legislation.
The right to sue the French Republic before the Strasbourg Court was
finally recognised in 1981. Public life and private life are traditionally
quite separate in France. Since the Rachel affair, the right to one’s image
(droit à l’image), for example, has been firmly established in the French
general law of delict (Arts. 1382/1383 C. civ.). French courts ruled that it
is unlawful to photograph an individual without his/her consent, even
if the photograph was not meant for subsequent publication. The vic-
tim could claim non-pecuniary damages. This also holds true for celeb-
rities and public figures ( personnalités publiques), as long as they are not
engaged in any public function or professional activity. In addition, a
right to one’s honour has been firmly established in French law. As far
as the media are concerned, however, their protection is still governed
by the exclusive and restrictive regime of the Press Act 1881.40
After the ‘constitutional turn’ in French law in 1971, and after the
coming into force of the ECHR in 1974, the legal situation changed
slowly but dramatically. Today the influence of human rights on private
law is evident.41 Next to family law and labour law, the most import-
ant area of private law where fundamental rights exercise an acknowl-
edged effect is in the field of personality rights, and especially the right
to privacy. Here, the Press Act 1881 lost, de facto, any influence. This
is the result of discourse between legislative, jurisprudential and doc-
trinal formants, which in the meantime had become well-established.
Therefore, the Act of 17 July 1970 introducing Art. 9 into the Civil Code,
has been reviewed and affirmed constitutionally, first implicitly,42 then
explicitly in 1999 by the Conseil constitutionnel.43 In accordance with the
40
Cass., ass. plén., 12 Jul. 2000, D. 2000 somm. 463. Cf. also J. Q. Whitman, ‘The Two
Western Cultures of Privacy’ at 1171 et seq., overstressing the anti-liberal dominance
of the protection of honour.
41
Cf. A. Debet, L’influence de la Convention européenne des droits de l’homme sur le droit civil
(Paris: 2002) (containing an account of judicial references to the ECHR);
J. P. Marguénaud et al., CEDH et droit privé (Paris: 2001) and ‘Le droit civil francais
sous influence de la Convention européenne des droits de l’homme’ (1996) Rev Trim
Droit Civ 505; O. Lucas, ‘La convention européenne des droits de l’homme et les
fondements de la responsabilité civile’ (2002) JCP I, 111.
42
DC 76-75, 12.1.1977; DC, 18.01.1995, JCP 1995, 22525.
43
DC 99-422, 21.12.1999. Cf. also DC 2003-467, 13.03.2003: ‘Considérant qu’aux termes
de l’article 2 de la Déclaration des droits de l’homme et du citoyen le but de toute association
politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont
la liberté, la propriété, la sureté, et la résistance à l’oppression; que la liberté proclamé par
Council’s jurisprudence, the Cour de cassation held that ‘respect de la vie

privée’ and freedom of expression have the same normative value, as
per Arts. 8 and 10 ECHR and Art. 9 Civil Code and Art. 11 of the 1789
Declaration. In cases of conflict between the two principles, the judge
shall strike a balance in order to find a solution that may grant protec-
tion to the most legitimate interest under the given circumstances in
the concrete case.44 If the reported issue concerned is of public inter-
est, ‘on the bases of Article 10 ECHR and Arts. 9 and 16 Civil Code,
freedom of press includes the right to report on a subject of general
interest; the limits of this freedom are marked by the respect of human
dignity’.45 Leaving this situation aside, privacy, especially the right to
one’s image, is strongly protected by constitutional law (Art. 2 of the
1789 Declaration, Art. 8 ECHR) and by civil law (Art. 9 C. civ.).
It is not certain to what extent a ‘right to publicity’ is acknowledged
in French law. It appeared to be introduced by a statute relating to
copyright and performing artists’ rights in 1985, but was restricted to
‘performing artists’ (l’artiste-interprète).46 However a judgment from a
court of first instance in 1988 plainly acknowledges a copyright-like
‘right to publicity’: ‘The right to one’s image is of a moral and pecu-
niary nature: the economic right which allows pecuniary gain from
commercially exploiting the image is not purely personal and can be
passed on to the heirs.’47 This has also been acknowledged in a case
concerning a non-public figure.48
cette article implique le respect de la vie privée.’ [‘It is to be considered that the terms of
Art. 2 of the Déclaration des droits de l’homme et du citoyen set out that the goal of all
political associations is the preservation of the natural and imprescriptible rights
of man. These rights are liberty, property, security and resistance to oppression
whereby the liberty proclaimed in this article implies respect for private life.’]
44
Cass., 1 civ., 09.07.2003, D. 2004, 1633; Gaz. Pal. 2004, 3112. This judicial approach is
reminiscent of the German constitutional law principle of ‘practical concordance’,
developed by K. Hesse. Cf. K. Hesse, Grundzüge des Verfassungsrechts (20th edn.,
Heidelberg: 1995/reprinted 1999), pp. 142/143; F. Müller and R. Christensen,
Juristische Methodik, Vol. I (9th edn., Berlin: 2005), no. 392.
45
Cass., 1re civ., 04.11.2004, JCP 2004, II, 10186. In balancing these confl icting rights,
e.g., dignity has been found to be violated through the publishing of a photograph
of the body of a victim to a terrorist attack: Cass., 1re civ., 20.12.2000, D. 2001, 885;
Gridel, D. 2001 chron. 872.
46
Cf. A. R. Bertrand, ‘A New Neighbouring Right to Copyright’ (1991) 13 European
Intellectual Property Review 184.
47
Aix-en-Provence, 24.11.1988, JCP 1989, II, 21329, note by J. Henderycksen (quoted
from Bertrands, ‘A New Neighbouring Right to Copyright’ at 186); cf. E. Gaillard,
‘La double nature du droit à l’image et ses conséquences en droit francais’ (1984)
D. chron. 26.
48
Riom, 26.02.2004, Gaz. Pal. 2004 no. 328, p. 14.
B. Germany49
‘A general personality right is alien to the [German] civil law’ – this
was stated by the Imperial Court (Reichsgericht – RG) in 1908,50 almost
at the same time as Perreau assumed the categorisation of the French
law on personality rights. In fact, the learned drafters of the German
Civil Code (Bürgerliches Gesetzbuch – BGB) deliberately broke from the
tradition of the Roman law of injuries (actio iniuriarum). Classical
Roman law recognised no personality rights; however, alongside the
bodily integrity of the free Roman citizen, it also protected his/her
‘personality’ – dignitas and fama – against the most varied forms of
intentional impairments.51 In eighteenth and nineteenth century Ius
Commune the actio iniuriarum was restricted to the protection of hon-
our and reputation.
There were various reasons for this decision by the drafters of the
BGB. One was the lack of a declaration of civil rights which gave legis-
lative effect to the anti-absolutist doctrines of natural law. Nineteenth-
century Germany did not know a revolutionary declaration of human
rights such as the 1789 French Declaration or the United States Bill
of Rights of 1791.52 Attempts to establish a democratic constitution
with fundamental rights were undertaken by the 1848 Frankfurt
‘Paulskirche Constitution’.53 With the failure of the Revolution in
1848 these attempts remained unfulfilled. The second limitation on
the enactment of a constitution was the absence of a nation state.
49
Cf. in greater detail H. P. Götting, C. Schertz and W. Seitz (eds.), Handbuch des
Persönlichkeitsrechts (München: 2008); pp. 264–333; S. Balthasar, Der Schutz der
Privatsphäre im Zivilrecht (Tübingen: 2006); U. Amelung, Der Schutz der Privatheit
im Zivilrecht (Tübingen: 2002) (all three with comparative accounts); M. Baston-
Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrechts
(Tübingen: 1997).
50
RG, 07.11.1908, RGZ 69, 401, 403 – Nietzsche letters.
51
There was a general edict of the praetors against iniuria and three special delicts,
namely convicium, adtemptata pudicitia and infamatio. The civil suit of actio iniuriarum
aimed at the satisfaction of persons unlawfully brought into public disrespect
through an equitable monetary compensation (i.e. solatium for non-material
injury) – quantum judici aequum et bonum videbitur. In greater detail see M. Hagemann,
Iniuria. Von den XII-Tafeln bis zur Justinianischen Kodifikation (Köln: 1998). For an
overview in English tracing the history of iniuria from its Roman foundations to the
modern law of among others Germany, see Zimmermann, The Law of Obligations
Ch. 31.
52
See the first 10 Amendments to the 1787 US Constitution.
53
It provided for political rights and for classical rights aimed at the protection of the
privacy of citizens. See H. Scholler (ed.), Die Grundrechtsdiskussion in der Paulskirche
In the nineteenth century, Germany was a quilt of diverse kingdoms

and principalities which were linked in the German Confederation
(Deutscher Bund: 1815–1866) as established at the Congress of Vienna
as successor to the Holy Roman Empire (800–1806). The German
Confederation was incapable of international action to a great extent
because it was obstructed by its two largest Member States, Prussia
and Austria-Hungary. The unification of Germany, with the exclusion
of Austria, occurred much later under the leadership of Prussia follow-
ing two wars with Austria (1866) and France (1871). The Constitution
enacted in Versailles in 1871 was simply an organisational statute for
a federation of principalities, named the (Second) ‘German Empire’.54
This imperial Constitution did not contain any fundamental rights.
Therefore, it was up to private law development and codification to
secure the contemporary ideals of liberty and equality. This occurred,
but with a break from both the natural law concept of the persona and
the tradition of the Roman law of injuries by the Historical School.55
Rights and duties based on human dignity and mutual recognition
of the persona, as well as the punitive and equitable elements in the
actio iniuriarum did not fit into a system of civil law which focused
on freedom of contract, economic rights (ownership and obligations)
and the compensation of pecuniary loss. The development of such a
system was a central concern of market-oriented legal science at this
point in history.
Imbued with the ideals of nineteenth-century liberalism, Savigny
misconceived the personality right as a proprietary right in one’s own
body. The German jurists of the nineteenth century literally adopted
John Locke’s metaphor when he spoke of a man’s ‘property in his own
person’.56 A personality right understood as a property right in one’s
body does not make sense. There are no pieces of property to be trans-
ferred. Moreover, the equivalent to the proprietor’s right to destroy
the thing was the individual’s right to commit suicide. This too was
rejected by Savigny who made reference to Hegel’s Philosophy of Law
(2nd edn., Darmstadt: 1982); K. Kröger, Grundrechtsentwicklung in Deutschland

(Tübingen: 1998), pp. 19–27.
54
Verfassung des Deutschen Reiches of 16.4.1871, Reichsgesetzblatt 1871, p. 64.
55
Cf. F. C. von Savigny, System des heutigen Römischen Rechts, Vol. II (Berlin: 1840), § 60,
p. 2.
56
J. Locke, Two Treatises of Government, Second Treatise (critical edn. by P. Laslett,
Cambridge: 1960), Ch. 4, para. 27. Compare the civil law tradition under which the
to support his refusal of a personality right.57 However, Hegel merely

succinctly noted that there is no property in the persona.58
Accordingly, the notion of persona was reduced to the aspect of legal
capacity and personhood: persons, objects (things and rights), and legal
relationships – personae, res, actiones/obligationes – became the building
blocks of this system. At an ideological level, the guiding concepts
Europe-wide were liberalism and possessive individualism:59 the prop-
erty (‘have’) and the bodily integrity (‘being’) of the individual were the
primary, if not the exclusive objects of legal protection. Thus, the BGB
law of delict served freedom of contract (private autonomy) and the
development of commerce at the same time.60 Injuries to the honour
and dignity of the persona were avenged through penal law (defama-
tion law: §§ 185 et seq. Penal Code (StGB) of 1871) insofar as was neces-
sary. The actio iniuriarum was formally repealed in 1879. The civil law
of damages was restricted to cases of restitution in kind and compensa-
tion of economic loss (§§ 249–253 BGB).61 Therefore, the German Civil
Code of 1896/1900 did not – in contrast to nearly every other private law
system – acknowledge the monetary compensation of non-pecuniary
loss in defamation cases. Equitable indemnification for ‘intangible’ loss
(aequum et bonum) was only exceptionally provided for in cases of bodily
injury (ex § 847(1) BGB of 1896/1900: damages for pain and suffering).
Finally, the indeterminacy of the contents of a general personality
right was seen in Germany as a grave obstacle to the codification of
such a right. Thus, in contrast to the system of subjective economic
rights, the field of personality rights and rights of the persona remained
underdeveloped.62 Only parts of the all-encompassing legal complex of
body of a free person is not susceptible to ownership: D.9,2,13pr (Ulpian) ‘dominus

membrorum suorum nemo videtur’.
57
However, unlike the drafters of the Civil Code, Savigny adhered to the actio
iniuriarum as a civil cause of action in cases of infringements of honour and
reputation; see C. F. von Savigny, Das Obligationenrecht als Teil des heutigen Römischen
Rechts, Vol. II (Berlin: 1853), § 84.
58
G. W. F. Hegel, Grundlinien der Philosophie des Rechts, § 70 Supp. (reprint of 1821).
59
C. B. Macpherson, The Political Theory of Possessive Individualism. Hobbes to Locke
(Oxford: 1962).
60
On this point see M. Gruber, Freiheitsschutz als ein Zweck des Deliktsrechts (Berlin: 1998).
61
Motive zu dem Entwurfe eines BGB, Vol. II (Berlin: 1888), p. 22; Protokolle der Kommission
für die Lesung des Entwurfs des BGB, Vol. II (Berlin: 1898), pp. 637 and 638. The
Reichsgericht even denied taking up the French doctrine of dommage moral in the
Prussian Rhine provinces where the French Civil Code was in force until 1900: RG,
27.06.1882, RGZ 7, 295.
62
Among the minority opinions were K. Gareis, O. von Gierke, J. Kohler and others.
‘personality’ were regulated in the BGB: in particular the right to one’s

name (Namensrecht) under § 12 BGB.63
The discourse on personality rights in the nineteenth century was
governed internationally through the development of subjective
rights which were similar to property rights – the rights to immate-
rial goods. Intellectual labour should lead to exclusive alienable patri-
monial rights similar to property rights. Thus, the personality rights
of authors, artists, etc. came into being. In contrast to France, the
German doctrine did not recognise the independent moral right of
the creator of an intellectual work. Hence, at the turn of the century,
intellectual property rights were quite neatly separated from diffuse
personality rights – the first acknowledged, the others suppressed.
However, there is one exception: In the aftermath of the Bismarck-
photograph case of 1899,64 the protection of the person portrayed, i.e.
the right to one’s own image, was also introduced into the Artists’
Copyright Act (Kunsturhebergesetz – KUG) of 1907. § 22 KUG enshrined
the principle that pictures depicting individuals may only be dissemi-
nated with the consent of the person pictured. Nevertheless, pictures
relating to events from contemporary society or history are exempt
from this rule (§ 23(1) 1 KUG). This statute led to the firmly established
jurisprudence that photographs of ‘public figures’65 could be taken
and published without consent and at any occasion, unless there was
an intrusion into these persons’ intimate domestic sphere such as
houses, flats, private gardens, etc.66
The long list of substantive constitutional (civil and economic) rights
that adorned the 1919 Weimar Constitution67 were not judicially enforce-
able. These were seen as programmatic political goals to be imple-
mented by the legislator. They did not effect the denial of protection of
personality interests through the law of delict.
63
Remedies in case of violation are abatement and forbearance.
64
RG, 28.12.1899, RGZ 45, 170. Unlike the trial court, the RG denied the personality
rights of the children and conventionally referred to the Ius Commune actio ob
iniustam causam. The story of this case is told and the Bismarck-photograph
reproduced in G. Brüggemeier, Haftungsrecht (Heidelberg: 2006), pp. 297 et seq.
65
So-called Personen der Zeitgeschichte (persons of contemporary society).
66
The Kunsturhebergesetz was repealed by an all-encompassing Copyrights Act
(Urheberrechtsgesetz) in 1965. However, the provisions concerning the right to one’s
image remained in force.
67
Verfassung des Deutschen Reiches of 11.08.1919, Reichsgesetzblatt 1919, pp. 1383 et seq.;
cf. C. Gusy, Die Weimarer Reichsverfassung (Tübingen: 1997); H. C. Nipperdey (ed.), Die
Grundrechte und Grundpflichten der Reichsverfassung, 3 Vols. (Berlin: 1929/1930).
In Germany, a fundamental change in the protection of personal-

ity interests came about after the Second World War.68 The Federal
Republic of (West) Germany was founded and the Bonn Constitution
(‘Grundgesetz’ – GG) came into force in 1949.69 The Bonn Constitution
contained a catalogue of mandatory fundamental rights for the first
time, explicitly binding all public powers (Art. 1(3) GG). The recognition
of the unassailability of the dignity of a human being is contained right
at the beginning. Guarantees relating to the free development of the
persona (Art. 2(1)), the confidentiality of letters, post, and telecommuni-
cation (Art. 10) and the inviolability of the home (Art. 13) followed. Now
the task for the courts, legislature and legal scholarship was to make
the pre-constitutional nineteenth-century civil law of the BGB compat-
ible with the values of the 1949 Constitution.70 This was brought about
by a couple of landmark judgments by the highest German courts – the
Federal Constitutional Court (Bundesverfassungsgericht – BVerfG), inaugu-
rated in 1951,71 and the Federal Court of Justice (Bundesgerichtshof – BGH )
as the successor of the Reichsgericht. The point of change concerning per-
sonality interests was marked by the Schacht-Leserbrief judgment of the
BGH in 1954.72 The case was based on facts which were thoroughly typ-
ical of the times: Dr Hjalmar Schacht was the president of the Reichsbank
(until 1938) during the national socialist era and also temporarily the
Minister of the Economy under Adolf Hitler. In 1952, a weekly journal
68
However, Whitman claims to have found evidence of the roots of civil personality
rights in the time and during the law of National Socialism. See J. Q. Whitman, ‘The
Two Western Cultures of Privacy’, at 1187 et seq.
69
Grundgesetz für die Bundesrepublik Deutschland of 23.05.1949, Bundesgesetzblatt 1949,
pp. 1 et seq.
70
For a majority of private law scholars, this apparently did not cause any problems.
From their point of view a ‘liberal civil law’, the BGB, finally found its adequate
liberal political and societal framework. Cf. inter alia and with further references,
J. Rückert, ‘Introduction’, in M. Schmoeckel, J. Rückert and R. Zimmermann (eds.),
Historisch-kritischer Kommentar zum BGB Vol. I: Allgemeiner Teil (Tübingen: 2003).
71
Most remarkable is the Lüth-case of the Federal Constitutional Court: BVerfG,
15.01.1958, BVerfGE 7, 198; NJW 1958, 257; JZ 1958, 119 (affi rming an all-embracing
‘radiating effect’ or ‘objectively normative effect’ of constitutional principles on
every part of German law); on this case see T. Henne and A. Riedlinger (eds.), Das
Lüth-Urteil aus (rechts-)historischer Sicht (Berlin: 2005). See also K. M. Lewan, ‘The
Significance of Constitutional Rights for Private Law’ (1968) 17 ICLQ 571; D. P.
Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court
(Beverly Hills: 1976).
72
BGH, 25.05.1954, BGHZ 13, 334; NJW 1954, 1404; JZ 1954, 698 annotated by Coing.
The court referred to Ennecerus-Nipperdey, Allgemeiner Teil des bürgerlichen Rechts
(14th edn., Tübingen: 1952) as the ‘book of authority’.
critically investigated the new economic activities of Dr Schacht. The

claimant, the legal counsel for Dr Schacht, filed a formal brief for his
client, demanding rectification of the article. The weekly magazine
printed this legal demand next to other opinions in the rubric ‘Letters
to the Editor’. Thus, the claimant was cast in a false light as being a
sympathiser of both Dr Schacht and national socialism. In this case,
the BGH developed a private law ‘right of personality’ for the first time,
as constitutionally guaranteed by Art. 1(1) (respect of human dignity)
and Art. 2(1) GG (right to free development of the persona). The person
has to be protected against the altered and unauthorised publication
of his/her written expressions. Due to the Constitution, the general right
of personality must be accepted as a constitutionally guaranteed funda-
mental right, which is not only directed against the State and its pub-
lic bodies, but also against private parties (individuals, businesses) in
their relations inter se. This led to the famous doctrine of ‘Drittwirkung’
(‘third party effect’/‘horizontal effect’).73
In 1957, the general personality right was explicitly recognised as an
‘other right’ in the sense of § 823(1) BGB.74 Notwithstanding this, there
is plain evidence that the ‘general personality right’ is not an abso-
lute property right which is regulated under § 823(1).75 The civil law
protections of the personality were consolidated in a short period of
time: through another landmark judgment in 1958, equitable monetary
compensation (solatium/damages for pain and suffering/Schmerzensgeld)
was made available in cases where the personality was gravely
infringed;76 and interdictal/injunctive relief was made possible under
§ 1004 BGB.77 Efforts to codify this new law on the protection of the
73
The term was coined by H. P. Ipsen, ‘Gleichheit’, in F. L. Neumann, H. C. Nipperdey
and U. Scheuner (eds.), Die Grundrechte, Vol. II: Die Freiheitsrechte in Deutschland
(Berlin:, 1954), pp. 111 et seq. (143); H. C. Nipperdey, Grundrechte und Privatrecht
(Krefeld: 1961): a prominent supporter of the doctrine of direct horizontal effect
in the 1950s; he later completely relinquished this term; C. W. Canaris, Grundrechte
und Privatrecht. Eine Zwischenbilanz (Berlin: 1999) (trying to dispose of the doctrine
of Drittwirkung by replacing it with the State’s duty to protect its citizens);
for a European account with further references see G. Brüggemeier et al. (eds.),
Fundamental Rights and Private Law in the European Union, Vol. I.
74
BGH, 02.04.1957, BGHZ 24, 72; NJW 1957, 1146 – Medical health certificate; refusing
to acknowledge a general personality right, see K. Larenz, ‘Das “allgemeine
Persönlichkeitsrecht” im Recht der unerlaubten Handlungen’ (1995) NJW 521.
75
Medicus still calls the personality right ‘eine juristische Mißgeburt’ (a juristic
monstrosity). D. Medicus, Bürgerliches Recht (21st edn., Cologne: 2007), p. 375.
76
BGH, 14.02.1958, BGHZ 26, 349; NJW 1958, 827; JZ 1958, 571 – Herrenreiter.
77
BGH, 18.03.1959, BGHZ 30, 7; NJW 1959, 1269 – C. Valente.
personality had been attempted since the end of the 1950s, however
these had not prospered.78
The second constituent79 of this ground breaking ‘legal revolution’ –
which was in opposition to the systematic schema of the BGB – was an
undeniable requirement in society to protect the individual in the post-
war era. This stemmed from the increased endangerment of a reserved
sphere of private life choices through the escalation of state, mixed, and
private sector collection and administration of the vital data of indi-
viduals; the growing intrusion into and publication of private life issues
driven by ever more aggressive advertising and marketing practices;
and, last but not least, from the oppressive experience of the total con-
trol of individuals and information by the national socialist state which
made the protection of a residual area of personal privacy indispensable
against access to and transfer of various kinds of private data.
The guarantee of personality rights by the national Constitution80
was the starting point. However, private law essentially goes further.
The law of delict seeks – in the shadow of constitutional law – to for-
mulate rules for the conduct of private parties in social spheres which
are marked by a particular endangerment of the personality. It aims to
protect the legitimate interests of the persona. In this respect it must
be stressed again that the concept of a general private law ‘personality
right’ is misleading. On the one hand, it is burdened with a debt to a
pre-constitutional legal expression based on subjective property rights
(§ 823(1) BGB: ‘other right’); on the other, it is borrowed from the con-
stitutional language of fundamental rights. Behind this metaphor a
collection of various areas of protection of the persona is concealed.
78
Cf. M. Baston-Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen
Persönlichkeitsrechts, p. 166.
79
As a further basis of legitimation, the re-discovered natural law, which enjoyed a
certain renaissance in post-war Germany, came into the picture. On this point, see
H. Coing, Die obersten Grundsätze des Rechts: Ein Versuch zur Neugründung des Naturrechts
(Heidelberg: 1947); H. Welzel, Naturrecht und materiale Gerechtigkeit (Göttingen: 1951);
G. Boehmer, Grundlagen der Bürgerlichen Rechtsordnung, Vol. II/1: Dogmengeschichtliche
Grundlagen des bürgerlichen Rechts (Tübingen: 1951); H. Hubmann, Das
Persönlichkeitsrecht (Münster/Köln: 1953); W. Maihofer (ed.), Naturrecht und Positivismus
(Darmstadt: 1962).
80
In the shadow of the national constitution, the ECHR, which was transformed into
German Law as ordinary statutory law, remained without relevance. This only
began to change recently. See Part 4 below (on ‘European Perspective’). Cf. also
R. Ellger, ‘Europäische Menschenrechtskonvention und deutsches Privatrecht’
(1999) 63 RabelsZ, 625 (in English: ‘The European Convention on Human Rights and
Fundamental Freedoms and German Private Law’ in D. Friedmann and D. Barak-
Erez (eds.), Human Rights in Private Law, pp. 161).
On the basis of current case law from both the BVerfG and BGH, five
broad-ranging protected personality interests developed under § 823(1)
BGB, with their own specific preconditions and sub-categories: (1) the
protection of privacy; (2) the right to one’s own image, name and like-
ness; (3) the sphere of publicity or the right to identity; (4) the right
of informational self-determination (‘right to one’s data’); and (5) the
protection of dignity, honour and reputation.81 However, it needs to be
stressed again that unlike in cases of ordinary infringements of bodily
integrity and damage to property, so far only severe infringements of
the personality which cannot be remedied otherwise allow equitable
monetary compensation.
3. Two different paths of liability law

A. Common law of torts and statutory law: England
The development in England presents another different case. This is
true in respect of both defamation law and privacy law. The law of
defamation has a long history. Rooted in different traditions there are
two distinct torts: written defamation (libel) and oral defamation (slan-
der). Up until now, these have been distinguished and treated differ-
ently from one another. In relation to the conflict of reputation versus
freedom of expression, in the past, English law has struck a balance in
quite the opposite manner than United States law.82 Under defamation
law, when a libellous statement is made the applicant can claim mon-
etary compensation in the absence of any proof of fault or damage. It is
only recently that things have started to change under the influence of
the Defamation Act 1996 and the Human Rights Act 1998. In addition,
England is unique in Europe as in criminal-like defamation cases civil
juries still decide whether compensatory damages and exemplary dam-
ages can also be awarded.83
To this day, English common law does not nominally recognise a
general tort of intrusion of privacy, which is all the more surprising
since it is probably in this legal system that we find the first ever case
81
See, in greater detail, G. Brüggemeier, Haftungsrecht, pp. 264–333; M. Baston-Vogt,
Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrechts.
82
That is why it is sometimes held unconstitutional in the US to enforce English
judgments on defamation matters. Cf. Telnikoff v. Matusevich, 702 A.2d 230 (Md. 1997).
On the development of the US law see J. Page, ‘American Tort Law’ (in this volume).
83
Cf. Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com. no
247, 16 December 1997.
of a court recognising something of a ‘right to one’s own picture’. In

1848, the English courts passed judgment on a case concerning the
publication of drawings which the husband of Queen Victoria, Prince
Albert, had made of members of the Royal Family.84 He had given
them to a printer for replication, and one of the printer’s employees
had unlawfully passed them on to a third party. An injunction against
their publication was granted on the basis of the equitable doctrine of
breach of confidence.
However, this remained an isolated case. Personality protection beyond
the law of defamation is still underdeveloped in England today. With
regard to the media, freedom of the press is the overriding considera-
tion. In some cases, this lacuna is impossible to overlook.85 At present,
personality interests are protected through a legal patchwork of com-
mon law and equitable remedies, supplemented by self-regulatory
mechanisms. In common law, there are basically two torts: malicious
falsehood and passing-off; occasionally, and with difficulty, trespass
and nuisance are also brought in.86 At the same time, self-regulation of
the press has been steadily extended. The first step was the founding
of a General Council of the Press in 1953. It was re-named the Press
Council after a reform in 1963 and dealt with complaints against press
releases. In 1991, a Press Complaints Commission (PCC) was set up to
alleviate remaining shortcomings in the implementation of press self-
regulation. Half of the Commission are public members, the other half
are press members.87 The PCC works on the basis of a Code of Practice,
which has, in the meantime, been appended by a privacy rule. Its defi-
nition of a protected private sphere is any ‘public or private property
where there is a reasonable expectation of privacy’.88
However, to this day, breach of confidence has remained the most
important legal basis for the protection of privacy. Breach of confi-
dence is rooted in equity, which still exists alongside common law as
84
Prince Albert v. Strange (1849) 1 Mac & G 25, 64 ER 293; cf. also Pollard v. Photographic
Company [1889] 40 Ch D 345.
85
See Kaye v. Robertson [1991] FSR 62 (CA).
86
Khorasandijian v. Bush [1993] QB 727 (harassment by telephone).
87
Cf. D. Calcutt, Review of Self-Regulation (London: 1993), Cm 2135, and for a comparison
of German and English law see H. Münch, Freiwillige Selbstkontrolle bei Indiskretionen
der Presse (Baden-Baden: 2002).
88
‘3. Privacy: (i) Everyone is entitled to respect for his or her private and family
life, home, health and correspondence. A publication will be expected to justify
intrusions into any individual’s private life without consent. (ii) The use of long
lens photography to take pictures in private places without their consent is
unacceptable. (Note: Private places are public or private property where there is a
the second strand of unwritten law. It is defined as the misuse of pri-

vate information which was confidentially given in writing or orally,
and since quite early on this has included photographs of persons.89 Its
criteria were summarised in Coco v. AN Clark (Engineers) Ltd: ‘First, the
information itself … must have the necessary quality of confidence
about it. Secondly, that information must have been imparted in cir-
cumstances importing an obligation of confidence. Thirdly, there must
be an unauthorised use of that information to the detriment of the party
communicating it.’90 Nevertheless, it took until 1948 for the remedy of
damages to be made available in cases of breach of confidence.91
In relation to privacy protection, the Human Rights Act (HRA) must
be considered a turning point in English law. The HRA, which was
passed in 1998 and came into effect in 2000, implemented the European
Convention on Human Rights (ECHR) into English law. English courts
are now committed to the protection of privacy according to Art. 8(1)
ECHR. It remains to be seen whether this will lead to the recognition
of a general tort of privacy in English common law. However, sceptics
suspect that ‘Godot will arrive sooner’.92
In fact there have recently been some spectacular cases which give
reason to doubt that such a general tort will be developed in the near
future. One of these was Douglas v. Hello! Ltd93 which concerned the
wedding of Michael Douglas and Catherine Zeta-Jones in the New York
Plaza Hotel in November 2000. The couple had sold the exclusive right
to photo coverage of the event to OK! magazine. A paparazzo gained
admittance to the party and, despite an explicit ban on photographs,
secretly took some pictures of the bride and groom. These were sold to
one of OK!’s competitors, the Spanish/English Hello! magazine, which is
published in England. An action to prevent the publication of the photo-
graphs in Hello! was rejected by the Court of Appeal. Now, not only OK!
magazine, the owners of the exclusive rights to the photographs, but
also the Douglases decided to sue for damages in England. However, the
High Court judge (Chancery Division) also held that with regard to HRA
reasonable expectation of privacy.)’ – This is followed by a proviso in favour of an

overriding public interest.
89
Pollard v. Photographic Co. [1889] 40 Ch D 345.
90
Coco v. AN Clark (Engineers) Ltd [1969] RPC 41, 47.
91
Saltman Engineering Co Ltd v. Campbell Engineering Ltd (1948) 65 RPC 203.
92
See e.g. R. Wacks, ‘Why there will never be an English common law privacy tort’,
in A. T. Kenyon and M. Richardson (eds.), New Dimensions in Privacy Law (Cambridge:
2007), pp. 154 et seq. (183).
93
[2003] EWHC 786 (Ch).
regulations their case did not constitute a violation of privacy rights. He

viewed the secretly taken photographs as confidential information and
affirmed the doctrine of breach of confidence. OK! was awarded spe-
cial damages of over £1 million for violation of their exclusive right by
Hello!; Douglas and Zeta-Jones were awarded a lesser amount in non-pe-
cuniary damages. In the Court of Appeal, the Douglas/Zeta-Jones verdict
was upheld, while OK!’s claim for damages was rejected.94 The House of
Lords reinstated the High Court’s judgment. It again saw the ground for
OK!’s claim in a breach of confidence.95
Two other recent decisions by the House of Lords – Wainwright v. Home
Office96 and Campbell v. MGN Ltd97 – also seem to indicate that the highest
British court is not prepared to take that last step towards recognis-
ing a new tort of privacy, referring instead to the competence of both
the legislature and the government. However, neither of these bodies
shows any sign of interest in dealing with this matter. In the House
of Lords’ judgment in favour of Naomi Campbell,98 the court’s narrow
decision to award damages was again based on breach of confidence,
although the requirement of a confidential relationship was missing. It
seems that in English law, breach of confidence has become a ‘de facto
tort of privacy’ (G. Howells).
B. Scandinavian law: Sweden

In most continental European countries today the protection of per-
sonality interests is conducted by the law of delict/tort, supplemented
to a separate extent by special legislation on the media. This is not true
for the Nordic states, taking Sweden as a representative example.99 The
Swedish Tort Liability Act of 1972, for example, regulates monetary
compensation for personal injury, including loss of life ( personskada)
94
[2005] EWCA Civ 595.
95
[2007] UKHL 21.
96
Wainwright v. Home Office [2003] 4 All ER 969 (body search).
97
Campbell v. MGN Ltd [2004] 2 WLR 1232.
98
This concerned a press report containing photographs of the supermodel’s visit to
Narcotics Anonymous. A 3:2 majority in the House of Lords acknowledged the need
for protection against indiscretions by the press. However, the Law Lords did not
come to terms with what constitutes a ‘private fact’.
99
In this section, I refer to S. Strömholm, ‘Schwedisches Recht’, in G. Dworkin
et al., Die Haftung der Massenmedien, pp. 73 et seq. The leading monograph is still
S. Strömholm, Right of Privacy and Rights of the Personality, (Stockholm: 1967). On
Scandinavian law – Finland and Sweden – in general see M. Bogdan (ed.), Swedish
Law in the New Millennium (Stockholm: 2000) and J. Uotila (ed.), The Finnish Legal System
(2nd edn., Helsinki: 1985).
and property damage (sakskada). An infringement of personality inter-

ests (‘civil injury’) only triggers liability if the infringement is punish-
able as a criminal act.100 This is the general approach in the Nordic
states: damages for civil injury presuppose a crime. Civil ‘personal-
ity rights’ such as a right to one’s image or a right to privacy are not
acknowledged. Private liability in personality interest cases is depend-
ent on criminal law (principle of accessority).
Relevant criminal provisions can be found in the general Penal Code,
especially in respect of classic defamation law. These crimes are concre-
tised by special statutes regulating the media. The venerable Swedish
Freedom of Press Act of 1766 lists two respective crimes: defamation
(‘förtal’) and insulting behaviour (‘förolämpning’). Modern subjects such
as transmissions, technical recording and databases are dealt with in
the Fundamental Law of Freedom of Expression of 1991.
When the general conditions of a serious offence and of criminal
behaviour (guilt) are met, the civil liability in media torts rests with the
responsible editor appointed by the owner of the media company. This
is the case with print media, broadcasting and television, as well as
film, video recordings, etc. As far as books are concerned, the liability
normally lies with the author. The remedy is damages, especially the
monetary compensation of non-economic loss (‘kränkningsersättning’).101
Rights to forbearance and injunctions are generally excluded.
Due to the non-applicability of general tort law, remarkable gaps
remain in the protection of personality interests in the law of the
Nordic countries. Scandinavian doctrines on horizontal effect (of
human rights) have only begun to be recently, and somewhat timidly,
developed.102 The constitutional documents encompass political goals
which, according to prevalent opinion, are not directly enforceable but
need to be implemented by the legislator. The ECHR has been incorpo-
rated into domestic law since 1 January 1995. One of the Swedish consti-
tutional documents, the Instrument of Government (‘Regeringsformen’,
RF ), prescribes that no legislative Act shall be passed that is in conflict
with the ECHR. In the second chapter of the RF the protection of pri-
vate life and family life is guaranteed. In the tradition of classic human
rights this protection is restricted to infringements by acts of state
power only. It is up to the legislator to introduce a further-reaching
100
Ch. 2, s. 3 Swedish Tort Liability Act.
101
See ibid.
102
See the Swedish report by A. Lauer and A. Colombi Ciacchi, in G. Brüggemeier et al.
(eds.), Fundamental Rights and Private Law in the European Union, Vol. I.
protection of the citizen. This occurred through the Fundamental Law

on Freedom of Expression and the Act on Personal Information (1998).
When implementing the goals of the Constitution, the Swedish legisla-
tor is bound to comply with three principles: the principle of aim, the
principle of need and the principle of proportionality. It was not until
very recently that the Swedish Supreme Court acknowledged a right to
compensation between private parties directly based on the violation
of an ECHR right.102a
To the extent that the above-mentioned gaps are not filled by the
legislator, in the past, the Swedish judiciary was very hesitant to step in
and to develop the law independently. Instead, another mechanism of
dispute regulation comes to the fore which is deeply rooted in the cul-
ture of the Nordic countries: private voluntary self-regulation. Since 1916,
an honorary court for the press (‘pressens opinionsnämnd’) has existed in
Sweden. Honorary and professional ‘codes of good practice’ have been
passed by journalist and publisher organisations. In 1970, the Honorary
Press Court underwent a reform. Its members are now appointed by press
organisations, the representative for the legal affairs of the Parliament
and the chairman of the Swedish attorneys’ association. It can award
monetary fines of up to 2,000 Swedish Krona and can publish its reject-
ing opinion. In addition, a private press ombudsman (‘pressombudsman’)
was appointed. He/she can initiate investigations, try to find solutions
to disputes or pass the case over to the Honorary Court. Similar self
regulatory institutions exist for both broadcasting and television.
4. A European Perspective – Art. 8(1) ECHR

The European perspective on the protection of personality interests
by the law of delict/torts has many faces. One is represented by pol-
itical (European Commission; European Parliament) and academic
attempts to unify Europe’s private laws through restatements and the
like.103 The Joint Network on European Private Law and the European Group
on Tort Law in Vienna have recently presented drafts of provisions on
102a
See B. Dufwa, ‘Horizontal effect of the European Convention: Swedish Case Law’
in A. Colombi Ciacchi, C. Godt, P. Rott and L. J. Smith (eds.), Haftungsrecht im dritten
Millenium (Baden-Baden: 2009), p. 85.
103
On the so-called Action Plan process and the ‘Common Frame of Reference (CFR)’,
elaborated upon by the Joint Network on European Private Law, see European
Commission, ‘A More Coherent European Contract Law: An Action Plan’,
COM(2003) 68 final, and its progress reports (e.g. COM(2007) 447 fi nal);
M. W. Hesselink (ed.), The Politics of a European Civil Code (The Hague: 2006).
non-contractual liability.104 Each of the two proposals contains sec-

tions in which personality interests are mentioned as a subject of
protection.105
Another face is the approximation of the national laws of delict and
tort of the EU Member States through constitutionalisation.106 In this
context, the most relevant constitutional document107 is the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR). It was passed in 1950 by the Committee of Ministers
of the Council of Europe.108 Signed in Rome in 1950, it came into force
in 1953. The ECHR is a veritable European Bill of Rights. Its legal status
today is twofold: (1) By its very origins the ECHR is international law. As
a multilateral international treaty, after ratification it becomes (with
or without an additional transposing act by the Contracting State) an
integral part of the legal orders of the (now) forty-seven Contracting
States of the Council of Europe. The rank acknowledged to the ECHR as
a source of law in the domestic hierarchies of norms varies from coun-
try to country, according to whether and to what extent the individual
legal system follows a monistic or a dualistic approach in the rela-
tionship between national and international law. Thus in some coun-
tries the ECHR is ranked on the level of domestic constitutional law
(e.g. Austria and Switzerland) or even above the domestic constitution
(the Netherlands); in some other countries, it is ranked between the
national constitution and statutory law (e.g. France, Spain, Portugal);
finally, in other countries it has the standing of regular statutory law
104
C. von Bar, E. Clive and H. Schulte-Nölke et al. (eds.), Principles, Definitions and Model
Rules of European Private Law. Draft Common Frame of Reference (DCFR) (Munich: 2009);
cf. J. Blackie, ‘The Torts Provisions of the Study Group on a European Civil Code’, in
M. Bussani (ed.), European Tort Law, Eastern and Western Perspectives (Bern: 2007),
pp. 55 et seq; and European Group on Tort Law (ed.), Principles of European Tort Law
(PETL). Text and Commentary (Vienna/New York: 2005).
105
DCFR, Book VI, Art. 2:203(1) (emphasis added): ‘Loss caused to a natural person
as a result of infringement of his or her rights to respect for his or her personal
dignity, such as the rights to liberty and privacy, and the injury as such are legally
relevant damage.’ This is extended in para. 2 to harm to reputation if national
law so provides. European Group, PETL Art. 2:102 Protected Interests (2) (emphasis
added): ‘Life, bodily or mental integrity, human dignity and liberty enjoy the most
extensive protection.’ Cf. also PETL Art. 10:301(1) Non-Pecuniary Damages.
106
See T. Barkhuysen and S. Lindenbergh (eds.), Constitutionalisation of Private Law;
D. Friedmann and D. Barak-Erez (eds.), Human Rights in Private Law.
107
Another instrument is the ‘International Covenant on Civil and Political Rights’
(ICCPR) of 1966, monitored by the Human Rights Committee.
108
As to its legal bases, organisation and duties see G. Winkler, The Council of Europe
(Vienna/New York: 2006).
(e.g. Germany, Finland, Italy, Sweden and the UK).109 The Contracting
States and their public bodies (including courts) are obliged to comply
with the European Court of Human Rights (ECtHR) judgments in which
they were involved (Art. 46(1) ECHR). The enforcement of the ECtHR’s
judgments by the Contracting States is monitored by the Committee of
Ministers (Art. 46(2) ECHR).
(2) In the meantime, the substance of the ECHR has been incorporated
by EU/EC law. This took place through the jurisprudence of the European
Court of Justice (ECJ) (Luxembourg). The EC Treaty did not contain any
fundamental rights; it only provided for the ‘four fundamental eco-
nomic freedoms’ (free movement of goods and services, capital, workers
and freedom of establishment). The orientation of these four freedoms is
the achievement of a single market. In any case, from 1969 onwards the
ECJ started to apply fundamental rights as limits to state action under
the head of ‘general principles of law’.110 These ‘general principles’ – and
thereby fundamental rights – have been understood as part of ‘law’ in
the sense of Art. 220 EC.111 This advanced state of ECJ case law has then
occasionally been assumed by the EC and EU legislator (Single European
Act; Treaty on the European Union). Art. 6(2) EU, for example, explicitly
obliges the EU (i.e. EU/EC institutions) to respect the fundamental rights
enshrined in the ECHR (and developed by the case law of the ECtHR) and
the common constitutional traditions of the Member States.
Three legal consequences are free from doubt:
(i) The fundamental rights of the ECHR have been transferred into
EU law through the jurisprudence of the ECJ. ‘Fundamental rights
form an integral part of the general principles of law, the obser-
vance of which the ECJ ensures. The ECHR has special significance
in that respect.’112 In this regard, as an integral part of EU/EC law the
109
Cf. Grabenwarter, Europäische Menschenrechtskonvention, p. 15.
110
Cf. ECJ, 12.11.1969, Case 29/69 Stauder [1969] ECR 419; [1970] CMLR 112; 14.05.1974,
Case 4/73 Nold [1974] ECR 491; [1974] 2 CMLR 338; 13.12.1979, Case 44/79 Hauer
[1979] ECR 3727; on this ECJ case law, see J. H. H. Weiler and K. Lockart, ‘ “Taking
rights seriously”: The European Court and its Fundamental Rights Jurisprudence’
(1995) 32 CML Rev 51/579; H. J. Blanke, ‘Protection of Fundamental Rights afforded
by the European Court of Justice’, in H. J. Blanke and S. Mangiameli (eds.), Governing
Europe under a Constitution (Heidelberg: 2006), pp. 265 et seq.
111
Since the judgment of 17.12.1970, Case 11/70 Internationale Handelsgesellschaft
[1970] ECR 1125, the jurisprudence of the ECJ has been constant. See, in general,
R. Winkler, Die Grundrechte der Europäischen Union (Vienna: 2006); A. Williams,
EU Human Rights Policies: A Study in Irony (Oxford: 2004); C. Tomuschat, Human
Rights: Between Individualism and Realism (Oxford: 2005).
112
ECJ, 27.6.2006, Case C-540/03 [2006] ECR I-5769.
fundamental rights of the ECHR are superior to all Member States’

law, including national Constitutions (provided that the issue at
stake is within the scope of EU law).113 The coming into force of the
EU Charter of Fundamental Rights will not in fact change the legal
situation much.
(ii) It may be questionable whether the EU fundamental rights are
binding on the EU Member States. However, as an ‘area of freedom,
security and justice’ a coherence of national and EU fundamental
rights has to be assured in the EU.114 Therefore, it makes no dif-
ference whether the fundamental rights have been infringed by
a Member State or an EU authority.115 This may even hold true for
private parties. Like the corresponding national human rights, the
EU fundamental rights can exercise horizontal effect.
(iii) In principle, the scope of protection of these rights must therefore
be the same throughout the EU. Every EU citizen enjoys these rights.
The concept of a corridor of differentiated national solutions is
incompatible with these legal conditions.
In cases of infringements by a public power, a private party can

proceed against either the Member State or the EU/EC. The road to
the ECtHR in Strasbourg is available as a last resort against infringe-
ments by the Member States. Thus, the ECtHR is de facto fulfilling a
double function: It is primarily operating as the Court of the Council
of Europe within the jurisdiction of the ECHR, and at the same time –
indirectly – working on behalf of the EU when judging on EU funda-
mental rights.116
113
This clash of constitutions raised difficult questions in Germany. Cf. the infamous
‘Maastricht’ judgment of the Federal Constitutional Court: BVerfG, 12.10.1993,
BVerfGE 89, 155; NJW 1993, 3047; commentary by M. Herdegen (1994) 31 CML Rev
235; J. H. H. Weiler, ‘The State “über alles”’, in O. Due, M. Lutter and J. Schwarze
(eds.), Festschrift Everling, Vol. II (Baden-Baden: 1995), pp. 1651 et seq. For a recent
account in German, see S. Oeter and F. Merli, ‘Rechtsprechungskonkurrenz
zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und
Europäischem Gerichtshof für Menschenrechte’, in S. Von Kadelbach, C. Tietje,
E. Pache, T. Gross, et al., 66 Bundesstaat und Europäische Union zwischen Konflikt
und Kooperation (Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer
(Berlin: 2007), pp. 361.
114
See W. Hoffman-Riem, ‘Kohärenz der Anwendung europäischer und
nationaler Grundrechte’, in G. Brüggemeier (ed.), Transnationalisierung des
Rechts (Baden-Baden: 2004), pp. 33 et seq; K. Gebauer, Parallele Grund- und
Menschenrechtsschutzsysteme in Europa? (Berlin: 2007).
115
On European State liability see ECJ, 05.03.1996, joined cases C-46/93 and C-48/93
Brasserie du Pêcheur/Factortame III [1996] ECR I-1131, no. 42.
116
Cf. G. Ress, ‘The Legal Relationship Between the ECtHR and the ECJ According to
the ECHR’, in H. J. Blanke and S. Mangiameli, Governing Europe under a Constitution,
pp. 279 et seq.
The basic provision in the ECHR which deals prominently with per-
sonality interests is Art. 8(1). It reads: ‘Everyone has the right to respect
for his private and family life, his home, and his correspondence.’117
This fundamental right notoriously conflicts with freedom of expres-
sion and freedom of the press, enshrined in Art. 10 ECHR. These two
fundamental guarantees are of equal value in principle. The balance
between them has been struck differently in the Member States of the
EU. In particular, the solutions in French and German law are in direct
conflict with one another.118 This Franco-German antagonism in the
privacy protection of celebrities has been brought onto the European
stage by the spectacular case of von Hannover v. Germany.119
Caroline Grimaldi, alias Caroline of Monaco, alias Caroline von
Hannover, is the eldest daughter of (the late) Prince Rainier III of
Monaco and his wife Grace Kelly. Princess Caroline filed a series of
civil law suits against publishers in Germany. German tabloids dis-
seminated paparazzi photographs of the Princess, which were taken
without her consent at different locations and at different times. The
first batch of photographs were taken during her vacation in south-
ern France. The photographs displayed her in various situations, shop-
ping in the market, on horseback, playing with her children, visiting
restaurants with her then lover, a French actor, etc. Applying §§ 22,
23, Kunsturhebergesetz (KUG) 1907, the German courts adhered to the
long-standing distinction between private and public figures. Private
individuals are protected. Pictures can only be published with their
express consent. Public figures are subjects of contemporary society
per se (§ 23(1)(i) KUG). Their privacy is restricted to their residential area.
Outside their home, photographs can be taken and published without
their consent. This pre-constitutional law did not change after the
enactment of the (West) German Constitution in 1949. In fact, the now
guaranteed ‘freedom of the press’ (Art. 5(1)(ii) GG) supported this legal
position. Caroline of Monaco was regarded as an absolute person of con-
temporary society. Therefore, it came as no surprise that the German
trial courts denied her claim. Before the Bundesgerichtshof (BGH ), the
judges made a move to expand the scope of protection of public figures
for the first time.120 They accepted that the freedom of celebrities to
117
The wording is identical to Art. II-7(1) of the Treaty on a European Constitution.
118
See above Parts 2A and 2B. For a broader European comparison, see H. Koziol and
A. Warzilek (eds.), Persönlichkeitsschutz gegenüber Massenmedien.
119
ECtHR, 26.04.2004, [2005] 40 EHRR 1.
120
BGH, 19.12.1995, BGHZ 131, 332; NJW 1996, 1128; JZ 1997, 39 with note by Forkel.
decide whether and when pictures of them could be taken does not end
when they leave their home. There could be ‘secluded areas’ outside
where public figures can also have a legitimate expectation of privacy.
This requires that the place be secluded from the general public and
this boundary from the public must be objectively recognisable to third
parties. Additionally, the taking of photographs must be secretive, as if
through the keyhole, or if the taking of the photographs occurs openly
the individual must have been taken by surprise.121 The BGH saw these
requirements as being fulfilled with respect to one photograph taken
from great distance with a long-range lens displaying the claimant
with her partner at night in a dimly lit garden restaurant, as her part-
ner kissed her hand.122 However, the BGH did not object to the taking
and publishing of the other photographs from her vacation in France,
with her subsequent husband Prince E. A. von Hannover, and from the
Monte Carlo Beach Club.
The princess filed a constitutional complaint before the Bundesver-
fassungsgericht (BVerfG) alleging that there was an infringement of
her personality right through the legalised publication of the other
photographs. On the one hand, the BVerfG confirmed the restrictive
exception made by the BGH.123 It even expanded the protection in one
aspect – as far as the photographs with her children were concerned.124
The familial contact between parents and children is specially pro-
tected under Art. 6 of the Constitution. Constant media presence
represents a substantial danger for the development of the children.
On the other hand, it restated the established line of reasoning in
Germany: the basic distinction between private and public figures (§
23(1)(i) KUG); the very narrow exceptions from the rule that public fig-
ures can be photographed without permission; freedom of press also
applies to tabloids, i.e. no reservation for serious political information;
difficulties in delineating private and public spheres in cases involving
celebrities.
The princess took an individual application to the ECtHR in
Strasbourg alleging that these judgments of the Federal German Courts
were in violation of Art. 8(1)ECHR (‘private life’). The Chamber of the
Strasbourg Court unanimously decided that the restricted protection
121
BGHZ 131, 332, at 339.
122
The photograph is published in G. Brüggemeier, Haftungsrecht, p. 304.
123
BVerfG, 15.12.1999, BVerfGE 101, 361; NJW 2000, 1021.
124
BVerfGE 101, 361, at 385/386.
of the privacy of public figures by German law is an infringement of

Art. 8(1) ECHR.125 The judges in Strasbourg chose the opposite starting
point to the German courts. It is not an exception to the rule of non-
protection that has to be proven, but an exception to the principle of
privacy protection. The ECtHR took the basic principle of § 22 KUG
seriously and did not follow the line of reasoning in Germany extend-
ing ‘situations’ of contemporary society to ‘persons’ of contemporary
society. In order to be legally published, every photograph and other
image depicting an individual person needs the consent of this person.
This principle also applies in relation to celebrities. Every human being
has his/her right to privacy.
With regard to public figures there are two important exceptions:
(i) when public figures act as persons of contemporary society, i.e.
when they perform an ‘official function’. This is one main point
which has been made by the ECtHR. By doing this it once more
stated that French law (Art. 9 c. civ.) is in compliance with its Art. 8(1)
ECHR jurisprudence. The Court also reasoned that the central legal
categories used by the German courts in this context were indeter-
minate (absolute Person der Zeitgeschichte; secluded area/ abgeschlossener
Raum);
(ii) the ECtHR stressed that the watchdog function of the press is indis-
pensable for the political process in democratic societies throughout
Europe. This function was not at stake in this case. The balance
here had to be struck between the freedom of a tabloid publisher
who exploits the persona of the princess to satisfy the voyeuristic
demands of its customers and the legitimate privacy interests of the
individual. In this confl ict, the balance between the two equal prin-
ciples of protection of private life and freedom of the press has to be
struck in favour of the privacy interest of the individual, however
famous this person may be.
This ECtHR judgment was needed to adapt the 100-year-old provi-

sions of the Kunsturhebergesetz and the abiding German jurisprudence
to the modern civil and constitutional law protection of personality
rights in Europe. The highly complicated interweaving of European
fundamental rights, domestic fundamental rights, special legislation
and general private law has been clarified by this ECtHR judgment
125
ECtHR, 24.6.2004, [2005] 40 EHRR 1. The German government did not request that
the case be referred to the Grand Chamber (Art. 43(1) ECHR). The parties finally
agreed that Germany should pay €115,000 in non-pecuniary damages to the
applicant.
but only for one typical scenario. This is the normative benchmark for
similar cases with similar facts. EU private law systems have to comply
with it. Some Member States will introduce new legislation like, for
example Ireland;126 others will change the jurisprudence of their judi-
ciary (be it that of Constitutional Courts). In Germany there are signs
that both the Bundesverfassungsgericht127 and the Bundesgerichtshof 128 in
their recent judgments have been moving very tentatively towards the
position of the ECtHR.
126
Privacy Bill 2006 (Draft); see P. O’Callaghan, ‘The Draft Privacy Bill
2006: Comparative Perspectives on a Super Tort’ (2006) 24 Irish Law Times 251.
127
BVerfG, 26.02.2008, 1 BvR 1602, 1606, 1626/07, available at Beck Online.
128
BGH, 06.03.2007, NJW 2007, 1977/1981; BGH, 03.07.2007, GRUR 2007,
902: abandoning the notion of ‘person of contemporary society’ and focusing on
the ‘informational value’ of the publication.
3 American tort law and
the right to privacy
Joseph A. Page
1. Introduction
The remarkable story of the common-law tort of invasion of privacy in
the United States begins with a piece of scholarship published in 1890,1
eventually hailed as ‘the outstanding example of the influence of legal
periodicals upon the American law’.2 It urged courts to validate an indi-
vidual’s interest in avoiding exposure to unwanted, unwarranted pub-
licity generated by an increasingly aggressive mass media, and argued
that the common law could protect this interest by recognising a new
cause of action that would provide compensatory damages for tortious
infringements of an individual’s right to remain out of the public eye.
As a direct consequence of this single publication, the privacy tort
wove its way into the tapestry of American jurisprudence.
However, in the almost dozen decades since the article appeared,
the concept of privacy as an interest to be protected by tort law has
proved to be both complex and elusive. Courts have had difficulty
determining whether to impose liability for a variety of specific viola-
tions plaintiffs have alleged; commentators have struggled to extract
from the evolving case law a workable definition of the new tort; and
the United States Supreme Court has interpreted the constitutional
barrier against restricting freedom of the press as seriously restricting
the reach of the tort. At the same time, the technological capacity for
invasions of privacy has expanded enormously, and societal attitudes
about privacy are no longer what they were in 1890.
Some of the decisions, responding to the concerns specifically
raised by the 1890 article, did impose liability for the unreasonable
1
S. D. Warren and L. D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.
2
W. L. Prosser, ‘Privacy’ (1960) 48 California Law Review 383.
38
a mer ic a n tort l aw a nd t he r igh t to pr i vac y 39
dissemination of information a plaintiff wished to keep secret.3 But

the types of disclosures that gave rise to privacy litigation were not
always identical, and the reasons why plaintiffs wished to keep the
information from public dissemination varied. Courts also had to
confront privacy-denominated claims that the defendant made an
unauthorised use of the plaintiff’s likeness for commercial purposes.4
Like the disclosure cases, these suits also involved invasions of an indi-
vidual’s anonymity, at least in the earliest instances. However, when
plaintiffs who enjoyed some degree of fame or notoriety began suing
for invasions of privacy, their interest in controlling information about
themselves might not always or necessarily amount to an interest in
promoting anonymity or defending individuality, since a likeness
might have profitable recognition value and hence assume some of the
attributes of a marketable commodity.
Other distinct lines of privacy decisions also evolved. One held defend-
ants liable for intrusions or intrusive behaviour held to be unjustifi-
able and therefore per se actionable.5 Another protected an interest that
went beyond seclusion and anonymity, and responded remedially to
allegations that the defendant had communicated to the public some-
thing factually untrue in a way that conveyed an erroneous impression
about the plaintiff, with a resulting distortion of the victim’s sense of
self.6
Eventually an influential scholar declared that the right to pri-
vacy provided the basis for not one but four separate torts, protect-
ing against four separate kinds of invasions of four separate interests.7
This approach found some favour in the courts but in turn provoked
vigorous debate within the academy from those who saw all invasions
of privacy as violating a unitary interest (the definition and scope of
which became the focus of further dispute), as well as from those who
want to revisit whether tort law was an appropriate mechanism for
protecting the interest or interests at stake.8
A judicial backlash against the right to privacy did subsequently
materialise, but for the most part the academic disputation played only
3
See, e.g., Melvin v. Reid, 112 Cal. App. 2d 285, 297 Pac. 91 (1931).
4
See, e.g., Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905).
5
See, e.g., Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46 (1931).
6
See W. Keeton, Prosser and Keeton on Torts (5th edn., St. Paul: 1984), pp. 863–66.
7
See Prosser, ‘Privacy’ at 389.
8
E. J. Bloustein, ‘Privacy as an Aspect of Human Dignity: An Answer to Dean
Prosser’ (1964) 39 New York University Law Review 962 (privacy tort protects single
fundamental interest); H. Kalven, Jr, ‘Privacy in Tort Law – Were Warren and
a supporting role. Finding that the privacy tort imposed an unwar-

ranted burden on freedom of the press, the United States Supreme
Court placed weighty constitutional restrictions on the liability of the
mass media for publishing truthful information.9 This lent further
encouragement to commentators who wanted to re-examine the mer-
its of the privacy tort.10
The evolution of the tort did not occur in a vacuum. The explosive
growth of modern technology has multiplied and intensified threats
to individual privacy, in ways that have motivated courts to interpret
various provisions of the federal and state constitutions as protecting
citizens from certain governmental invasions of privacy; in addition,
legislatures have imposed criminal sanctions and created a panoply
of new protections for privacy rights.11 At the same time, social atti-
tudes about privacy have changed dramatically from those prevalent
in 1890, with the growth of phenomena such as confessional television
programmes and websites feeding obsessions with the lives of celebri-
ties. These developments are beyond the scope of this Chapter, except
to the extent that they have inspired fresh scholarly efforts to define
the nature of the right being protected,12 a movement that may eventu-
ally impact on the privacy tort.
What follows is a critical account of the evolution of the right to
privacy under the American common law, with the goal of helping
readers not familiar with it to appreciate the distinctive path it has
taken. I shall explain the origins of the American privacy tort and then
examine how courts have dealt with different kinds of claims alleging
privacy violations, with special emphasis on the impact of the unique
characteristics of the common-law process. Finally, I shall offer some
comments on the current status and the likely fate of the common-law
privacy tort in the United States.
Brandeis Wrong?’ (1966) 31 Law & Contemparary Problems 326 (privacy interest
too trivial to merit legal protection); see also D. L. Zimmerman, ‘Requiem for a
Heavyweight: A Farewell to Warren and Brandeis’ Privacy Tort’ (1983) 68 Cornell Law
Review 291 (arguing that privacy tort deserves no more than a proper burial).
9
See D. B. Dobbs, The Law of Torts (St. Paul: 2000), §§ 417–20; J. T. McCarthy, The Rights of
Publicity and Privacy (2nd edn., St. Paul: 2004), pp. 565–92.
10
See, e.g., R. A. Posner, ‘The Right of Privacy’ (1978) 12 Georgia Law Review 393;
R.A. Epstein, ‘Privacy, Property Rights, and Misrepresentations’ (1978) 12 Georgia
Law Review 455; S. W. Halpern, ‘Rethinking the Right of Privacy: Dignity, Decency,
and the Law’s Limitations’ (1991) 43 Rutgers Law Review 539.
11
For a discussion of some of these developments, see K. Gormley, ‘One Hundred Years
of Privacy’ (1992) Wisconsin Law Review 1335, 1357–1441.
12
See, e.g., D. J. Solove, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law
Review 477.
2. The birth of a tort

Although every tort must have originated at some point in time, none
has had a beginning so easy to identify as the right to privacy. In 1890,
two Boston attorneys who had been classmates at the Harvard Law
School published an article that made the case for the judicial protec-
tion of an individual’s right not to have truthful information about
him disseminated in the press or by other means of communication
without his consent, unless such a publication would serve the general
or public interest.13 Samuel D. Warren, a prominent member of the so-
called ‘Yankee’ upper class in the city of Boston, and Louis D. Brandeis,
who would later become a distinguished justice of the United States
Supreme Court, thereby entered the legal pantheon as avatars of the
power of persuasive scholarship to affect the course and content of the
common law.
The argument constructed by Warren and Brandeis was simple and
straightforward. They first deduced from existing causes of action in
tort a judicial willingness to safeguard human feelings from undue
interference on the part of others. Then, seeking to establish a factual
basis to support the need for additional legal protection, they described
the new ways by which an aggressively intrusive mass media could
infringe upon these feelings by publishing accurate but personally sen-
sitive information against the wishes of their subjects. From this they
drew the conclusion that the common law could and should protect
feelings bruised by these novel invasions by fashioning a novel form of
tort liability that would provide compensation to victims and thereby
deter excessively intrusive conduct in the future. Concluding their tour
de force, they carefully delineated the parameters of the new cause of
action, mainly by listing defences that might be raised against it and
other limitations on liability.
After saluting the common law for what they termed its ‘eter-
nal youth’,14 a quality that enables it to expand and thus satisfy the
changing demands of society, Warren and Brandeis set out to con-
vince readers of the need for the change they were urging. They did
so by taking a very cautious, incremental approach. The recognition
of a right to privacy in tort, they insisted, would not amount to a radi-
cal departure from existing decisional precedents, but rather would
amount to an eminently logical extension of them. They examined
prior instances in which courts established protections for individuals
13 14
Warren & Brandeis, ‘The Right to Privacy’. Ibid. at 193.
against interference with their property, physical integrity and rela-

tional well-being, and pointed out that some of these safeguards also
secured personal feelings and other intangible interests.15
Warren and Brandeis drew from these precedents an effort on the
part of courts to safeguard what they called the ‘inviolate personality’,16
a judicial initiative quite distinct from the creation and application of
legal doctrines designed to preserve interests in property. The judici-
ary, they maintained, had already been embracing the general right
of individuals to be left alone, or at least to enjoy a certain degree of
immunity from intrusive behaviour that would infringe on the essence
of their distinctiveness as human beings.
A problem with this part of the argument was that most of the pro-
tections the courts were extending to human feelings in the instances
the authors cited were merely ancillary to other established interests.
An example was the tort of defamation, which was a distinctively
relational tort whose purpose was to protect an individual’s ties to his
community, and which did not require proof of emotional distress for
recovery (although a plaintiff might recover for such harm in addition
to the sort of general reputational damage that had to be proven as a
prerequisite to recovery).17
The article also instanced decisions in which courts had found a
breach of contract or confidential relationship as bases for providing
relief against unwarranted publications or disseminations. However,
it argued that these theories did not go far enough, since similar
harm might result even where there was no contract or relationship
15
Examples they listed included the ancient common-law tort of assault, which
imposed liability for the intentional creation of apprehension of immediate bodily
contact; defamation, which imposed liability for the communication of false factual
statements that might damage a person’s reputation; nuisance, which protected
a person’s right to the use and enjoyment of his land; and protections afforded
intellectual and artistic property by granting to the originator a right to control its
dissemination.
16
Warren & Brandeis, ‘The Right to Privacy’ at 205.
17
Other instances include the tort of assault, the major purpose of which was to
prevent breaches of the peace that might occur if aggrieved individuals could
not obtain satisfactory relief from the legal system and therefore resorted to
self-redress. Nuisance normally permitted damages for physical harm to land or
reductions in its market value, although courts had allowed occupants to recover
for personal discomfort caused by intrusions that caused neither actual damage
to the property nor a loss of the land’s value. Additionally, the individual’s right
to control intellectual or artistic endeavours through doctrines found within the
common law of copyright sought to provide incentives for socially useful activity –
a quasi-property interest.
of trust between the parties. Moreover, the authors insisted that the
essence of the interest being protected in such cases was not proprie-
tary but rather emotional, and could best be promoted by recognition
of a right to privacy. Finally, as supplementary support, the article
pointed out that French law recognised a limited right to privacy,
which protected even public figures from intrusions into their pri-
vate lives.18
Warren and Brandeis were premature in identifying what they
insisted was a trend in the developing case law. The courts had previ-
ously protected feelings, but only to a very limited degree, and most
often as an add-on to other safeguards. As the eminent Roscoe Pound
would observe twenty-five years later, the practical difficulties of deter-
mining the existence and extent of harm to feelings might have made
courts reluctant to compensate for this kind of harm.19 The one prior
tort decision that came closest to an explicit recognition of the right
the authors were espousing failed to make its way into their article.20
Mass-circulation publications featuring gossip-filled articles and sup-
portive photographs had created what came to be known as ‘yellow
journalism’ at the end of the nineteenth century.21 The abuses that
this phenomenon was spawning might have provided a powerful fac-
tual predicate for the article and might have demonstrated the force of
the maxim ex facto ius oritur (the law arises out of the fact), a defining
characteristic of the common law. But the data Warren and Brandeis
marshalled were remarkably weak.
The authors referred to the development of photography and other
unspecified ‘mechanical devices’ that facilitated the spread of infor-
mation once discussed only in private, and then launched into a para-
graph-long denunciation of the evils of gossip (the latter, however, not
a particularly novel phenomenon), especially when given wide dissem-
ination by newspapers.22 But they failed to cite specific intrusive inci-
dents that would have more forcefully established a need for judicial
18
See Warren & Brandeis, ‘The Right to Privacy’ at 214–16.
19
See R. Pound, ‘Interests of Personality’ (1915) 28 Harvard Law Review 343.
20
See DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881), imposing liability for an
unpermitted intrusion into the plaintiff’s home while she was giving birth.
The interest being protected here was quite different from the interest for
which Warren and Brandeis sought judicial protection. Perhaps they did not
want to worry the courts about the potential scope of the new tort they were trying
to create.
21
See Gormley, ‘One Hundred Years of Privacy’ at 1350–52.
22
Warren & Brandeis, ‘The Right to Privacy’ at 195.
recognition of a new tort.23 The weakness of the factual basis provided

by the article might reflect the style of legal scholarship in this era.
There has been speculation about the real reason for the authors’
advocacy of a new right of privacy. Although one commentator has
claimed that the press had offended Warren with sensationalist cover-
age of a family wedding,24 it is more likely that Warren’s sensibilities
took offence not at the way newspapers publicised the wedding, but
rather at the fact that they publicised the event in the first place. This
would be consistent with the position he took in the article, to the
effect that individuals have the right to control the dissemination of
information about them, including their names and likenesses, unless
the publication at issue served some public interest, which the authors
defined narrowly as embracing only what might touch on an individu-
al’s fitness for public or quasi-public office.
One interpretation of the Warren-Brandeis article is that it marked
an attempt by Warren to convince courts ‘to introduce a continental-
style right of privacy into American law’.25 Professor James Q. Whitman
has argued that the patrician Warren saw the European notion of hon-
our as a value worthy of judicial protection in the United States; being
able to control publicity about one’s self was an essential component
of human dignity, and recognition of the right to privacy at common
23
Instead, they mentioned a single, arguably inapposite example, drawn from a
complaint in a civil suit brought by an actress whose photograph was taken by
a spectator without her consent as she appeared in an abbreviated costume on a
New York stage. See ibid. at 195, n. 7. Since the plaintiff was performing in public,
it is difficult to imagine what private information she sought to protect. While
the dissemination of her likeness to an audience beyond the limited group before
which she was voluntarily appearing might have violated her sensibilities, the
likelihood seems greater that she was attempting to assert control over the use of
her likeness because of its commercial value to her.
24
William L. Prosser, the pre-eminent torts scholar whose subsequent impact on
privacy law nearly matched that of Warren and Brandeis (and whose imagination
often got the better of him), ascribed the article’s motivation to intrusive
newspaper coverage of the wedding of Warren’s daughter. Prosser, ‘Privacy’ at 383.
It was not until 1979 that a revisionist article appeared, quoting at length from
contemporary press reports to establish that the only Warren family wedding that
might have attracted the attention of the media during this period involved his
cousin, not his daughter (who was only seven years old when the article appeared in
print), and that the coverage of it was quite respectful and tame, at least to the eyes
of a modern reader. J. H. Barron, ‘Warren and Brandeis, The Right to Privacy 4 Harv.
L. Rev. 193 (1890): Demystifying a Landmark Citation’ (1979) 13 Suffolk University Law
Review 875.
25
J. Q. Whitman, ‘The Two Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 Yale
Law Journal 1151, 1204.
law would vest that power in the individual (although in an apparently

even-handed way, since anyone, regardless of social status, could in
theory exercise it). The fact that the authors cited French law as ancil-
lary support for their thesis lends some support for this hypothesis.
Considering the right of privacy in America as an exogenous cultural
implant provides one explanation for the difficulties it has had in tak-
ing root. However, as this Chapter will suggest, there are other, more
persuasive reasons for the bumps in the road that the privacy tort has
taken.
3. The first steps

Scholarship advocating the recognition of a new cause of action in tort
is quite different from common-law decision-making, since judges are
subject to constraints that do not bind scholars. Judicial opinions, at
least ideally, should identify the legal issues that must be resolved
in order to decide in favour of one party or the other, apply rules or
principles to resolve them, and use reasoned elaboration to explain
the results that they have reached. Appellate judges ordinarily do
not paint with the broad brushes that scholars and code drafters can
wield, but rather confine themselves to the facts of specific cases, and
are limited by the procedural posture of the case as it presents itself
to them. The binding precedent that they fashion derives from the
case holding, which must rest on the narrow rule of law that dictates
the final outcome of the dispute.26 Warren and Brandeis could posit
whatever facts suited them, and did not have to concern themselves
with the resolution of any specific controversy between actual liti-
gants. Courts, however, exercise their law-making function passively,
in response to facts and legal issues that opposing parties bring to
them.
In the immediate aftermath of the article, one high court and sev-
eral lower courts handed down decisions supportive of the right to pri-
vacy, but involving the unauthorised use of a picture,27 a likeness28 and
26
See Bloustein, ‘Privacy as an Aspect of Human Dignity’ at 615.
27
Marks v. Jaffa, 26 N.Y.S. 908 (Ct. 1893) (unauthorised use of actor’s name in
newspaper popularity contest; injunction granted; Warren-Brandeis article cited
with approval).
28
Schuyler v. Curtis, 147 N.Y. 434 (1895) (refusal to grant injunction sought by relatives
of deceased woman in whose honour defendants were attempting to erect statue; if
right existed, it was personal to victim).
a name,29 and the publication of a biography,30 invasions rather unlike

those described by Warren and Brandeis. More than a decade would
pass before the issue whether to accept the Warren and Brandeis thesis
and recognise a right to privacy came squarely before a court of last
resort. But it too fell without the type of fact pattern put forward in the
1890 article to justify the need for the creation of a new tort.
In Roberson v. Rochester Folding Box Company,31 the defendant obtained
a photograph of the plaintiff without her consent and placed it on
brochures that advertised its product. Although the depiction was by
no means unflattering, the plaintiff claimed that its dissemination
bruised her feelings. The Court of Appeals of New York, the state’s high-
est tribunal, rejected her plea in a four-to-three decision and refused to
recognise invasion of privacy as a tort.
Because it would have been difficult for the plaintiff to recover for
defamation, the one recognised tort she might have invoked,32 she
asked the court in effect to fashion a new cause of action, and used
the arguments crafted by Warren and Brandeis. The court was unper-
suaded, interpreting the cases cited in the 1890 article as not necessar-
ily reflecting a judicial willingness to protect personal feelings per se
from tortious behaviour.
The court treated Roberson as falling within the factual predicate
of the Warren and Brandeis article, and the unconsented-to dissemi-
nation of the plaintiff’s likeness as an unwarranted invasion of the
plaintiff’s anonymity. Hence, there was no way the plaintiff could
prevail unless the court created a new tort. An alternative approach
29
Mackenzie v. Soden Mineral Springs Co., 18 N.Y.S. 240 (S. Ct. 1891) (defendant enjoined
from including plaintiff’s name in medicine advertisement; unauthorised use
injured his reputation, and also infringed on his right to sole use of his name).
30
Corliss v. F.W. Walker Co., 64 F. 280, 282 (D. Mass. 1894) (‘A private individual should
be protected against the publication of any portraiture of himself, but when the
individual becomes a public character, the case is different’; injunction denied).
31
171 N.Y. 538, 64 N.E. 442 (1902).
32
Plaintiff might have sued for defamation, but she would have had to identify
some communication that held her up to hatred, ridicule or contempt in the eyes
of right-thinking members of the community; she would then be able to recover
money damages based on a presumption that the common law made to the effect
that such a damaging statement was false, unless the defendant could prove that
the statement was true. See, generally, R. A. Smolla, The Law of Defamation (2nd edn.,
St. Paul: 1999). She might have tried to do this by claiming that the dissemination
of her likeness created the impression among those who knew her that she had
consented to its commercialisation, but to establish that this knowledge demeaned
her reputation might have been problematic.
would have treated what the plaintiff did as a wrongful appropriation

of her likeness for a commercial use in a way that unjustly enriched
the flour company. This would have meant classifying the plaintiff’s
interest as proprietary in nature. On the plus side, to do so would have
been easier to justify as a logical extension of other types of judicial
protection extended to property or quasi-property interests. It would
have provided a sensible theory for granting relief in cases such as the
only example cited by Warren and Brandeis, involving photographs
taken of an actress without her consent as she performed.33 But this
would not have accomplished what the authors set out to achieve with
their article. Their goal was not only to establish privacy as an interest
meriting legal protection but also to disengage privacy from any link
to traditional property interests courts had previously safeguarded.
Moreover, a property-based theory could not justify awarding damages
for the intrusive publication of sensitive information about plaintiffs,
unless courts granted them a proprietary interest in such information,
which would in turn enable them to enjoy exclusive rights to transfer
or devise it, a step cautious judges would have been unlikely to take.
In addition, Mrs Roberson might have had difficulty establishing the
economic value of the interest, since she was not a professional model
in the business of marketing her likeness.34
Two developments followed immediately in the wake of the Roberson
decision. Public reaction against it fuelled the quick enactment of a
state statute that made it both a crime and a tort to use ‘for advertising
purposes, or for the purpose of trade, the name, portrait or picture of
any living person without first having obtained the written assent of
such person’.35 This clearly overruled the specific holding of Roberson.
The second fallout occurred three years after Roberson, when the
Supreme Court of Georgia reached a different result in a case involv-
ing similar facts. In Pavesich v. New England Life Insurance Company,36 the
defendant published a recognisable photograph of the plaintiff in a
newspaper advertisement touting life insurance offered by the defend-
ant. The plaintiff had not consented to this use of his likeness. The
33
See n. 23 above.
34
She might have had to resort to the argument that the value of the interest to her
was freedom from the emotional distress an unauthorised use might cause her. On
the other hand, if her interest had been deemed proprietary, a court might not have
been hesitant to grant an injunction against its misappropriation.
35
N.Y. Sess. Laws 1903, c. 132, §§ 1–2 (McKinney).
36
122 Ga. 190, 50 S.E. 68 (1905).
court held that he might recover in tort for an invasion of his privacy.
Thus Pavesich gained the distinction of being the first American case to
admit the existence of the cause of action.
Although the opinion tipped its cap to Warren and Brandeis, the
most powerful rationales it presented did not derive from the article.
The Georgia court conceded that except for nuisance actions holding
defendants liable for infringing on plaintiffs’ rights to the quiet enjoy-
ment of their property, the decisions relied on by Warren and Brandeis
protected human sensitivities only as an incident to the safeguarding
of other interests. However, the court found two other sources from
which they derived justification for the new tort. The first was natural
law, which gives to the individual not only the right to life but also
the right to enjoy life. The court pointed out that this embraced the
right to live in seclusion and apart from prying eyes. The second was
the United States Constitution, which guarantees against deprivation
of liberty without due process of law, and also prohibits unreasonable
searches and seizures by government agents.37 The court extracted
from these restrictions a policy on the part of the framers in favour of
protecting individual privacy against inappropriately intrusive behav-
iour, and drew from this policy strong indirect support for a state tort-
law rule that would permit the plaintiff to recover damages when a
defendant violated this interest. Thus, Pavesich clearly established that
privacy embraced the right of an individual to control the use of his or
her likeness, and that this right was personal rather than proprietary.
4. Evolution of a tort
The common law grows gradually and incrementally. It emerges from
resolutions of sporadic, unrelated disputes. The process is decentral-
ised and proceeds, often in an unruly way, from the particulars of indi-
vidual judicial decisions to generalisations drawn from them by courts
and commentators. The development of privacy law followed this pat-
tern. Over the next several decades, a few courts followed the holding
in Roberson,38 while some of the early decisions that imposed liability
rested on findings of breach of trust or implied contract.39 However,
37
US Const., Amends. IV, V, XIV.
38
See, e.g., Henry v. Cherry & Webb, 30 R.I. 13, 23 Atl. 97 (1909); Prest v. Stein, 220 Wis.
354, 265 N.W. 85 (1936).
39
See, e.g., Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912) (in breach of express
agreement with parents, defendant made private use of negative of photograph of
deceased Siamese twins).
there were unmistakable signs of a movement toward recognition of

the privacy cause of action in a number of factual contexts.
In the wake of Pavesich, several decisions allowed recovery for the
unauthorised use of a plaintiff’s likeness in advertising,40 although
there seemed to be some confusion about the exact nature of the inter-
est being protected. Thus, in one of the cases, the court held that a
child who was not a professional model had a property interest in his
image as part of his natural right to life, liberty and the pursuit of
happiness, language suggesting that the interest was intangible and
related to a person’s individuality; but at the same time the court also
indicated that what it was safeguarding was the right to market one’s
likeness.41 Several decades later another court recognised the right to
privacy in a suit brought by a professional entertainer whose photo-
graph the defendant used in an advertisement.42 The opinion noted
that a person’s name, face and features might have commercial value
and hence were entitled to protection.
These decisions seemed to implicate several discrete interests that
courts were conflating. Names and likenesses might have commercial
value, and privacy claims deriving from their unauthorised use for
promotional purposes required judicial determinations as to which
party controlled them and could profit from their associative value.
An anonymous face (for example, the plaintiff’s in Roberson) was gen-
eric, in the sense that one such likeness might be interchangeable with
many others. Of course, the representation might have some economic
value (extras receive nominal payment for appearing in motion pic-
tures), but at the same time an individual thusly exploited might feel
aggrieved by the appropriation of her persona and by the violation of a
wish to remain a private person. The law might wish to recognise and
protect her right to choose not to advertise products or services, and
not to attract public attention to herself. In addition, such an unauthor-
ised use might also convey both to the public and to the plaintiff’s
acquaintances the erroneous impression that she had consented to the
use. Under some circumstances this might harm her reputation, and
she might have a cause of action for defamation.43
40
See, e.g., Kunz v. Allen, 102 Kan. 883, 172 Pac. 532 (1918) (plaintiff filmed while in
defendant’s dry goods store, film used to advertise defendant’s business).
41
Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076 (1911).
42
Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938).
43
The classic case is Peck v. Tribune Co., 214 U.S. 185 (1909) (the plaintiff, a total
abstainer, recovered for having been depicted without her consent as endorsing the
defendant’s whiskey product in a newspaper advertisement).
Warren and Brandeis advocated recognition of a tort remedy against

the unwarranted publication of private facts – conduct that differed
from the activity that produced the decisions in Roberson and Pavesich.
Eventually, the courts began to impose liability for the kind of inva-
sion approximating the concerns expressed in the 1890 article. Thus,
the highest court of Kentucky held that a tort suit for invasion of pri-
vacy would lie in a case involving a defendant’s public posting of a
truthful notice identifying the plaintiff as a person who had not paid a
debt.44 However, the court did not explain why it was adopting the new
tort, or what general standard should be used to determine when the
dissemination of truthful information is unwarranted. In addition, it
did not consider how extensive a publication would have to be in order
to justify recovery, that is, whether the divulgation of the debtor’s iden-
tity to one person who had no right to know about it would have been
sufficient, and if not, what the scope of a publication would have to be
before the plaintiff could recover in tort. Finally, the court overlooked
the possible difference between the economic interest of a debtor in
keeping knowledge of his indebtedness from others with whom he
might want to do business, and the more personal or social interest of
an individual wanting to keep the glare of mass-media attention away
from certain aspects of his private life.
A California court had the opportunity to confront some of these
issues when it ruled in favour of an ex-prostitute who had once been
found not guilty of a charge of murder and, having escaped her past,
was living an exemplary family life when the defendant made a motion
picture depicting the unsavoury incidents of her life and identifying
her by name.45 Despite the fact that her acquittal was a matter of public
record, the court held that ‘outing’ her was actionable.
Defining privacy in very general terms as the interest in being left
alone, the court cited as support for recognising the cause of action
a somewhat vague provision in the state constitution guaranteeing
citizens a right to happiness. Declaring that individuals should be free
of ‘unnecessary’ attacks on their character, the court stated that the
defendant’s use of the plaintiff’s name ‘was unnecessary and indeli-
cate, and a willful and wanton disregard of that charity which should
actuate us in our societal intercourse, and which should keep us from
unnecessarily holding others up to the scorn and contempt of upright
44
Brents v. Morgan, 221 Ky. 765, 299 S.W 967 (1927).
45
Melvin v. Reid, above n. 3.
members of society’.46 This, of course, meant that courts would have to

determine, on a case-by-case basis, what sorts of publicity are ‘unnec-
essary’, and what amount of charity should govern social intercourse.
This would make it very difficult for potential tortfeasors to predict
whether or not a particular exposure might lead to tort liability, which
in turn would undercut the deterrent effects of the tort. Moreover, the
court did not specify whether these kinds of difficult determinations
should be made by judges or juries.
Another stated ground for the court’s decision was policy-oriented,
and implicated society’s interest in rehabilitation. The benefit of letting
the plaintiff hide her past, apparently, would outweigh the benefit her
friends and neighbours would gain from knowing about it, although
the opinion did not explicitly weigh the societal advantages and disad-
vantages that would flow from permitting these kinds of suits gener-
ally, or from permitting this plaintiff to recover in the case before it.
Melvin involved the disclosure of factual information that the plain-
tiff wished to keep secret and that might affect her relationships with
others, to whom knowledge of her past might be important. One early
case arose as a result of a disclosure that was highly personal and sen-
sitive in nature, allegedly violated social norms, and would not be
relevant to relationships between plaintiffs and others. In Bazemore v.
Savannah Hospital,47 the Supreme Court of Georgia upheld a complaint
by the parents of a deceased child against defendants responsible for
the publication of a photograph of the child, who had been born with
an external heart. The interest being protected here seemed quite
distinct from that protected in Melvin.
In the 1930s, as part of its ambitious project to bring clarity and
coherence to the common law, the American Law Institute published its
four-volume Restatement of Torts.48 The last of these volumes contained
a section recognising the existence of a new tort. But it seemed to con-
flate the protection against unwanted publicity sought by Warren and
Brandeis with that afforded by the holdings in Pavesich and Bazemore
by assuming that the dissemination of sensitive factual information,
embarrassing disclosures and the appropriation of likenesses all violated
46
297 Pac. at 291.
47
171 Ga. 257, 155 S.E. 194 (1930).
48
The American Law Institute is a private entity, whose members – judges, law
professors and attorneys – tend to be pillars of their respective establishments. The
volumes that it publishes carry no authority other than persuasive weight, although
over the years they have attained a substantial influence over the development
identical interests. The black-letter provision stated succinctly that: ‘A

person who unreasonably and seriously interferes with another’s inter-
est in not having his affairs known to others or his likeness exhibited
to the public is liable to the other.’ 49 Comments to the section recog-
nised that the interest to be protected here was similar to an individ-
ual’s interest in avoiding intentional physical contacts to which she did
not consent, and in having a reputation unsullied by false statements
of fact; that the purpose of the tort was to compensate plaintiffs when
their feelings were seriously hurt; and that the new tort was still in a
formative state, lacking clear guidelines that would define its scope.
Although the Restatement’s treatment of privacy was somewhat super-
ficial, it situated itself on the cutting edge of the law’s development,
since at the time the courts seemed to be divided and somewhat uncer-
tain about the privacy tort. The fact that the American Law Institute
granted its stamp of approval to the new tort gave it a strong aura of
legitimacy.
In the two decades that followed, the decisional law suggested a broad
trend in favour of recognising the privacy tort in principle,50 but there
were also signs that it might not always provide the type of protec-
tion Warren and Brandeis had advocated. Thus, in Sidis v. F.R. Publishing
Corp.,51 the most factually dramatic of the cases, a plaintiff who had
once been a child prodigy found himself the subject of a mercilessly
revealing magazine article (entitled ‘April Fool’) that exposed his idio-
syncrasies and self-propelled slide into obscurity. A federal court apply-
ing New York law52 denied him recovery against the publisher on the
ground that the public had a legitimate interest in the fate of a person
who at the age of 11 had lectured to mathematicians, five years later
graduated from Harvard College, soon afterward taught at a university
in Texas and then became a reclusive eccentric. This interest, the court
of state common law. They ‘restate’ widely and generally accepted principles
and doctrines, and have occasionally shaped the direction of the common law
by adopting positions held by only a minority of jurisdictions but deemed by the
Institute to be the better view, or the view toward which courts were tending.
49
4 American Law Institute, Restatement of Torts § 867 (1930).
50
See generally Prosser, ‘Privacy’.
51
113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711 (1940). The life of the plaintiff
has been the subject of a moving biography. See A. Wallace, The Prodigy (New
York: 1986); see also E. Karafiel, ‘The Right of Privacy and the Sidis Case’ (1978) 12
Georgia Law Review 513.
52
The court did not consider whether the New York privacy statute occupied the field
and hence impliedly pre-empted the common-law privacy tort.
felt, trumped the plaintiff’s interest in retreating into anonymity and

remaining there. The mores of the community, according to the court,
included indulging in a curiosity about the misfortunes and frailties
of its members. The opinion did note that: ‘Revelations may be so inti-
mate and so unwarranted in view of the victim’s position as to outrage
the community’s sense of decency.’53 Yet as a practical matter this res-
ervation seemed to be too vague for courts to apply with confidence,
and to permit little breathing space for the privacy tort.
Sidis was not the only decision to flash cautionary signals about the
future of the right to privacy in tort. With the burgeoning growth of
both mass marketing and the entertainment industry in the United
States, the demand for protection of intangible interests associated
with the names, likenesses and other attributes of public figures began
to go beyond the kinds of interests asserted by private citizens in
Roberson and Pavesich. Plaintiffs sought relief, with some success, not
only for the unauthorised commercial use of their names and like-
nesses, but also for related wrongs such as the misappropriation of
their performances,54 a development that broadened the scope of judi-
cial protection afforded to privacy. This inevitably raised the question
whether privacy was really the interest at stake, and whether the priv-
acy tort as it had evolved could provide an adequate remedy for these
kinds of wrongs. A notable decision applying New York law55 posited
that the relief plaintiffs were seeking in these cases was for a mis-
appropriation of a right of publicity, rather than a violation of a right
to privacy.56 This seemed to be an intangible property interest that its
owner could transfer or devise, quite distinct from every individual’s
right to the reasonable enjoyment of anonymity and seclusion, which
courts had consistently held to be personal and thus maintainable only
by the victim.57
53
113 F.2d at 809.
54
See Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir. 1956)
(heavyweight boxer allowed to recover for telecast of boxing match staged before
advent of television; televised excerpt showed only rounds in which plaintiff
suffered a bad beating); cf. Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485
(1952) (suggestion by court that plaintiff had property right in performance of
animal act televised without his permission).
55
Again, as in Sidis, above n. 51, the court assumed that the New York privacy statute
did not pre-empt the common-law privacy tort.
56
Haelan Labs. Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (packs of
chewing gum sold with photographs of baseball players).
57
For an encapsulation of this rule, see 3 American Law Institute, Restatement of Torts
2d § 652I (1977).
Remarkably, as these problems were surfacing, the privacy tort

received a major boost, once again as a result of a law review article. In
1960 William L. Prosser, the Dean of the University of California School
of Law at Berkeley, the author of the most authoritative treatise on the
law of torts and the Reporter for the Second Edition of the Restatement
of Torts (a work in progress at the time), hailed the judicial trend toward
recognition of a common-law right to privacy, and went on to argue
that in fact the courts had created not a single tort but rather a four-
some.58 Surveying the case law, he classified the reported decisions as
falling under four separate headings: the unreasonable publication of
particularly sensitive information; the misappropriation of names,
likenesses or other aspects of personality without the consent of the
person adversely affected; unreasonable physical intrusions; and the
publication of facts that held a person up to false light.
The third of the categories had not made its way into the fi rst edi-
tion of the Restatement of Torts, even though it related to one of the
concerns mentioned by Warren and Brandeis and had some support
in the case law. Invasions of privacy, as their article had noted, might
come about from the use of improperly intrusive conduct. 59 Some
such conduct might be actionable under existing tort principles,
inasmuch as the defendant might, for example, commit a trespass
on the plaintiff’s land to acquire personal information. If so, the
plaintiff might be able to recover for emotional upset as part of her
damages. However, modern devices facilitated intrusions for which
there would be no liability under existing causes of action such as
trespass, but which might still trample on the individual’s right to
be let alone.
Rhodes v. Graham60 illustrated this phenomenon. The defendants
tapped the telephone wire leading into the plaintiff’s home and had a
stenographer take notes on conversations being intercepted. In uphold-
ing the plaintiff’s right to recover for invasion of privacy, the court saw
no difference in the interests invaded by telephone tapping and unwar-
ranted newspaper publicity as decried by Warren and Brandeis. Yet the
58
Prosser, ‘Privacy’.
59
The example given by Warren and Brandeis was the bribing of servants to obtain
confidential information. See Warren & Brandeis, ‘The Right to Privacy’ at 209,
n. 1. The early case not cited by them involved an intrusion while the plaintiff was
giving birth. See DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881), discussed
above n. 20.
60
238 Ky. 225, 37 S.W.2d 46 (1931).
gist of the violation in the latter context was the dissemination of infor-
mation, whether by the written media or by pictorial reproduction,
which the plaintiff wished to keep out of public circulation; in the
intrusion cases, the per se penetration of the plaintiff’s private space
was the wrongful act, whether or not it resulted in any further publi-
cation. The victim’s realisation that an intrusion had occurred under
circumstances that violated community standards of anonymity suf-
ficed to justify recovery in tort.
The false-light category of privacy cases was of relatively recent ori-
gin and did not have strong support in the case law. Here, the essence
of the wrong was a diminution of a person’s control over his individual-
ity. The communication of misinformation violated not an individual’s
right to prevent the publication of factual information about herself,
but rather the right to make sure that such publications were not inac-
curate. The so-called false-light privacy tort substantially overlapped
the traditional tort of defamation, which also imposed liability for
false statements, but only when they harmed the plaintiff’s reputation.
Neither Prosser nor the Restatement explained why a plaintiff whose
reputation had been damaged by false statements should be allowed
to assert multiple causes of action in tort for the same wrong. A major
difference between them, as incorporated in the Restatement, was that
a defendant might be liable in defamation for communicating derog-
atory matter to one other person, while false-light privacy required
communication to a large audience.61
Courts cited Prosser’s article and his treatise, which incorporated
its substance, and the resulting decisions became judicial authority
for the proposition that privacy amounted to four torts (and only
those four). Not surprisingly, the section on privacy in the Second
Edition of the Restatement of Torts then adopted the classification
scheme devised by its Reporter.62 As the eminent legal historian
G. Edward White later observed, ‘Prosser’s capacity for synthesis had
become a capacity to create doctrine’.63 What this meant was that
claims falling outside Prosser’s categories would be deemed non-ac-
tionable, without consideration whether they involved privacy inter-
ests worth protecting.64
61
See 3 American Law Institute, Restatement of Torts 2d § 652E, comment a, § 653D,
comment a (1977).
62
3 ibid. § 652A.
63
G. E. White, Tort Law in America: An Intellectual History (New York: 1980), p. 176.
64
For an example, see French v. Safeway Stores, Inc., 430 P.2d 1021 (re. 1967).
5. Additional protection for peace of mind

The common law does not grow in a vacuum. Evolving causes of action
must fit into a grander scheme, and hence any account of the history
of the privacy tort must take into account related parallel develop-
ments. As the courts were creating and refining a new tort remedy
for invasion of privacy, they were also recognising a related tort that
seemed to protect at least in part the same interest that the privacy
tort safeguarded.
Mental distress had always been a parasitic element of damages for
which plaintiffs could recover when they made out valid claims for
intentionally or negligently infl icted personal injury. But when defend-
ants intended only to bring about distress, the courts were at first
hesitant to impose liability, a reluctance reflected in the Restatement
of Torts, which originally took the position that peace of mind in and
of itself was not an interest worth protecting.65 However, a few cases
did find in favour of mentally anguished plaintiffs.66 This gave Prosser
an opportunity to exercise his creative talents once again, and argue
that the case law was moving in favour of protecting peace of mind, a
trend to which he gave his stamp of approval.67 Despite the paucity of
decisional support for the proposition that plaintiffs could recover if
they suffered only emotional harm, without physical trauma,68 a 1948
supplement to the Restatement executed a volte face and provided that
the intentional infliction of emotional distress should result in liabil-
ity for such distress and any physical injury resulting from it.69 Some
years later the Second Edition of the Restatement of Torts adopted a new
section that recognised the new tort, with the limitations (the need
for the plaintiff to prove that the defendant’s conduct had been out-
rageous, and that the mental distress incurred was extreme) suggested
by Reporter Prosser in his prior article.
65
1 American Law Institute, Restatement of Torts § 46 (1934).
66
See, e.g., Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 153 Atl. 22 (1930)
(defendant’s employee wrapped dead rat instead of loaf of bread in package given
to plaintiff); Nickerson v. Hodges, 146 La. 735, 84 So. 37 (1920) (defendants tricked
decedent into thinking she had discovered pot of gold, humiliated her by staging
opening of the stone-filled pot in front of witnesses).
67
See W. L. Prosser, ‘Intentional Infl iction of Mental Suffering: A New Tort’ (1939)
37 Michigan Law Review 874; for a follow-up article, see W. L. Prosser, ‘Insult and
Outrage’ (1956) 44 Caifornia Law Review 40.
68
See C. O. Gregory and H. Kalven, Jr, Cases and Materials on Torts (2nd edn., Boston/
Toronto: 1969), p. 974.
69
See Restatements of the Law, 1948 Supp. 612.
Since the need to safeguard people’s feelings was one of the argu-
ments made by Warren and Brandeis, the recognition of this new cause
of action created an obvious potential for overlap between invasions of
privacy and the infliction of emotional distress. This opened the way
for the argument that the threat of liability for the latter, which subse-
quently came to be known as the tort of outrage, might so effectively
deter egregious and purposeful invasions of privacy as to eliminate the
need for a separate privacy tort. Moreover, a plausible argument could
be made that lesser invasions do not merit judicial protection.
6. The academic backlash

Although Prosser’s synthesis cast an influence on the courts, within
the academy dissent soon surfaced, as some of the heavyweights in the
torts professoriate took issue both with the Restatement’s Reporter and
one another. They not only debated the particulars that gave substance
to the common-law action for invasion of privacy, but also began to
reconsider its intrinsic worth.
On one side, Professor Edward J. Bloustein argued vigorously that the
right to privacy, as it had judicially evolved, was indeed a unitary tort
that sought in different ways to safeguard a single interest, the right to
human dignity as embodied in the individuality of the person.70 This
clearly distinguished the right to privacy from the right to emotional
tranquility, or from the right to profit from the economic value of one’s
name or likeness, or from the right to an unsullied reputation. Bloustein’s
thesis amounted to an effort to return privacy to its roots in the 1890 arti-
cle, as well as in some of the earlier decisions, like Pavesich, that invoked
natural law as a source of the new tort. In that respect, Bloustein became
a keeper of the flame first lit by Warren and Brandeis.
Professor Harry Kalven, Jr, on the other hand, took aim at the heart
of the privacy tort and suggested that ‘fascination with the great
Brandeis trade mark, excitement over the law at a point of growth,
and appreciation of privacy as a key value have combined to dull the
normal critical sense of judges and commentators and have caused
them not to see the pettiness of the tort they have sponsored’.71 He
70
Bloustein, ‘Privacy as an Aspect of Human Dignity’.
71
Kalven, ‘Privacy in Tort Law’ at 328. He cited cases such as Cohen v. Marx, 94 Cal.
App. 2d 704, 211 P.2d 320 (1949) (ex-boxer unsuccessfully sued comedian Groucho
Marx for quipping on his radio programme: ‘I once managed a fighter named
surmised that those who suffered genuine invasions of their pri-

vacy would seldom sue, since litigation would serve only to increase
unwanted publicity, while many of those who did sue would do so for
exploitative reasons. He also bemoaned the indefinite parameters of
the tort, the difficulty of measuring damages and the uncertainties
about whether liability should be strict, or based on negligence, or
based on intentional invasions. Kalven’s criticisms had some bite, but
they seemed more persuasive in making a practical, process-related
case for reform rather than convincingly establishing the need for
completely doing away with the tort.
Eventually, the privacy tort came under the unsparing lens of eco-
nomic analysis, as applied by the master of the genre, Professor (now
Judge) Richard Posner.72 His point of departure was the proposition
that privacy had to be viewed as not an end in itself, with an ascer-
tainable market value, but rather an instrument for the enhance-
ment (or reduction) of net societal worth, a fundamental point with
which those whose views rested on the acceptance of privacy as a
cherished, fundamental value could never agree.73 He confi ned him-
self to the unwarranted-disclosure and the unreasonable-intrusion
aspects of the tort and found them in large part not worth recog-
nising. In his judgment, allowing plaintiffs to recover damages for
truthful disclosures amounted to a suppression of information valu-
able to other members of society, since if it had no worth, there
would be no demand for it; hence, unless the information in question
came into being as a result of significant investment by the holder
(so that publication would create disincentives for its production),
or unless the disclosure conveys no information that would correct
misconceptions about the plaintiff among those who have dealings
with him (the example given is the publication of a photograph of
the plaintiff’s deformed nose in an article about human ugliness), its
dissemination should not be actionable. By the same token, impos-
ing liability for intrusions would be justified only if permitting them
would create incentives for wasteful expenditures by those deter-
mined to frustrate intruders.
Canvasback Cohen. I brought him out here [Los Angeles], he got knocked out, and I
made him walk back to Cleveland’), to illustrate his triviality point.
72
See Posner, ‘The Right of Privacy’; for the author’s further views on the subject, see
R. A. Posner, ‘Privacy, Secrecy, and Reputation’ (1979) 28 Buffalo Law Review 1.
73
See E. J. Bloustein, ‘Privacy is Dear at Any Price: A Response to Professor Posner’s
Economic Theory’ (1978) 12 Georgia Law Review 429.
7. The United States Supreme Court intervenes

The academic debate would continue,74 fuelled even further when
media defendants in privacy tort cases began to assert the constitu-
tional guarantee of freedom of expression as a defence, and the United
States Supreme Court responded favourably to their arguments by
imposing substantial, if not crippling restraints on plaintiffs seeking
to recover damages for allegedly unwarranted publicity.
The right to privacy, insofar as it impedes the mass media’s ability
to gather and publish truthful information, has always carried with
it the risk of collision with the rights of a free press, as recognised in
the First and Fourteenth Amendments to the Constitution.75 Indeed,
some scholars had already called explicit attention to this potential
conflict.76 But it was not until the Supreme Court began to place limits
on the liability of the media for publishing untruthful and reputation-
damaging information about public figures, that constitutional restric-
tions also began to make themselves felt in privacy tort cases involving
the publication of truthful information. This provided yet another
illustration of a cross-over effect between adjacent tort categories.
The constitutionalisation of the tort of defamation began in 1964,
when the Supreme Court reversed a substantial verdict against the
New York Times for printing an advertisement that made inaccurate
accusations against an Alabama state official who had participated in
the repression of civil-rights demonstrations in his state. The Court
interpreted the First Amendment as requiring that a public official,
in order to recover for defamation against a mass-media outlet, prove
that a mass-media defendant published defamatory statements either
with knowledge of their falsity or with reckless disregard of whether
they were true or false.77 In the years that followed, the Court applied
74
See, e.g., Halpern, ‘Rethinking the Right of Privacy’; R. C. Post, ‘The Social
Foundations of Privacy: Community and Self in the Common Law Tort’ (1989) 77
California Law Review 957.
75
The First Amendment forbids Congress from enacting any law abridging freedom
of speech or of the press. The Fourteenth Amendment, forbidding the states from
making or enforcing any law abridging the privileges or immunities of citizens,
has been interpreted as applying to the states the prohibitions of the first ten
amendments (commonly known as the Bill of Rights).
76
See, e.g., M. A. Franklin, ‘A Constitutional Problem in Privacy Protection’ (1963) 12
Stanford Law Review 107.
77
New York Times, Inc. v. Sullivan, 376 U.S. 254 (1964). For a detailed description
and analysis of Sullivan, see A. Lewis, Make No Law: The Sullivan Case and the First
Amendment (New York: 1992).
constitutional restrictions to public figures and private individuals

seeking to recover money damages for defamation.78
It was a natural next step for the Court to apply the Constitution
in a similar way to the aspect of the privacy tort that most resem-
bled defamation. In Time, Inc. v. Hill,79 a national magazine published
a photo story about a Broadway play that dramatised an actual inci-
dent in which escaped convicts held a family hostage in their home.
Although the play did not use the names of the actual victims, the
magazine did. The photo story placed the stage actors in the house
where the real-life events occurred, and followed the text of the play,
which fictionalised certain parts of the story and exaggerated the
indignities suffered by the family. The falsifications were not such as
might cause reputational damage, so the best hope for members of
the family was the false-light privacy tort. The case ultimately went
before the Supreme Court, which held that plaintiffs could recover
for false-light invasion of privacy only if they proved that a defendant
knowingly published the false statements or exhibited a conscious
disregard of whether they were true or false.80 In the Court’s view,
to allow plaintiffs to recover under invasion of privacy for harm for
which they could not recover under defamation would make little
sense, since such a recovery would infringe equally on the right of
freedom of the press.
The rationale for limiting recovery in these kinds of cases was that
the threat of liability might have a chilling effect on freedom of expres-
sion, not merely as it might promote the robust exchange of ideas and
opinions essential to self-governance in a functioning democracy, but
also as it might communicate to the citizenry information and ideas
relating to culture, the social and natural sciences, religion and, indeed,
any other matter of public interest. Hence, it was only a matter of time
before the sensitivity the Supreme Court was exhibiting in defamation
and false-light privacy cases would surface in a privacy case involving
the publication of truthful information.
78
For a discussion of the cases, see Dobbs, The Law of Torts, at 1169–72. The restriction
on private persons applies only when the subject of the publication was of public
concern.
79
385 U.S. 374 (1967).
80
Richard M. Nixon argued the Hill case for plaintiffs before the Supreme Court,
while he was working for a New York law firm and before his successful campaign
for the presidency in 1968. For an account of Nixon’s performance as an advocate,
see Lewis, The Sullivan Case, at 187–89.
The inevitable occurred in Cox Broadcasting Corp. v. Cohn,81 where a

father whose 17-year-old daughter died as a result of a rape incident
sued a television station for mentioning the girl’s name in a news
report on the trial of the perpetrators. Citing a state statute that made
it a misdemeanour to publish or broadcast the name or identity of a
rape victim, he argued that this law was an expression of public pol-
icy that supported his claim for money damages for the invasion of
his common-law right to privacy. The defendant’s reporter had taken
notes during the proceedings, and in open court, while the trial was
in recess, he had obtained from the clerk of the court a copy of the
indictments, which named the plaintiff’s daughter. The United States
Supreme Court reversed a judgment for the father and held that a state
may not constitutionally impose sanctions on a defendant for accu-
rately publishing a rape victim’s name when it was obtained from the
judicial records of a proceeding open to the public. The majority opin-
ion pointed out that: ‘By placing the information in the public domain
on official court records, the State must be presumed to have concluded
that the public interest was thereby being served.’82 Therefore, state
courts could not hold media defendants liable for giving wider dissemi-
nation to this information.
The Court specifically limited its holding to the actual press-privacy
conflict present in this case, and left open whether a state might ever
impose liability on the media for unwanted publicity. In a subsequent
decision holding that a state may not hold a newspaper liable for
publishing the name of a rape victim recorded in a police report,83
the Court once again left expressly unresolved the general question
whether the First Amendment should be construed as creating a blan-
ket defence against any imposition of liability for the publication of
truthful information.
8. The present status of the unwarranted-disclosure privacy tort

The debates about the right of privacy in the legal literature and the
limitations the United States Supreme Court had placed on it con-
vinced some state tribunals to take a harder look at the privacy tort
in cases where they were asked to adopt or apply it, especially in cases
81
420 U.S. 469, 95 S. Ct. 1029 (1975).
82
420 U.S. at 495.
83
The Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603 (1989).
involving unwarranted disclosures. A pair of decisions by the Supreme

Courts of North Carolina and Minnesota nicely illustrate contrasting
judicial approaches to the issue, and in the bargain demonstrate viv-
idly how the ad hoc, fact-driven approach of the common law can influ-
ence outcomes.
Hall v. Post84 involved a suit against a newspaper that had published
articles about a birth mother’s search for a child she had abandoned at
the age of four months; as a consequence of the first of the defendant’s
articles, the birth mother discovered her natural daughter, then seven-
teen years of age and happily living with her new mother; a second
article described the emotional encounter between them. The stories
referred by name to all the parties to the incident. The mother sued
the newspaper for the invasion of their privacy.
The North Carolina court had previously recognised the right to pri-
vacy in a case where the plaintiff sought to recover damages for the
unauthorised use of a photograph for commercial purposes,85 but more
recently had refused to recognise the false-light branch of the tort, on
the grounds that it often overlapped with defamation and unreason-
ably heightened the tension between the First Amendment and tort
law.86 Hall brought the unwarranted-disclosure tort before the North
Carolina Supreme Court for the first time. The court viewed the cause
of action as constitutionally suspect, in light of past United States
Supreme Court decisions. In addition, the court claimed that as a prac-
tical matter the privacy tort overlapped with the cause of action for
outrage, a tort previously recognised in the state. Therefore, the latter
tort in most instances would protect the same interest safeguarded by
the privacy cause of action. Hence, the court found for the defendant
and used broad language to declare that the unwarranted-publicity tort
would not be incorporated into the jurisprudence of North Carolina.
What the court failed to take into account, however, was that the
United States Supreme Court decisions dealing with the privacy tort
all involved media defendants and relied heavily on the constitutional
guarantee of freedom of the press. But not all disclosure privacy cases
have involved media defendants. The majority opinion in Hall did not
explain why the First Amendment should protect them. Therefore,
the only justification the North Carolina court might have applied for
84
323 N.C. 259, 372 S.E.2d 711 (1988).
85
Flake v. News Co., 212 N.C. 780, 195 S.E. 55 (1938).
86
Renwick v. News and Observer, 310 N.C. 312, 312 S.E.2d 405, cert. denied, 49 U.S. 858
(1984).
immunising them from liability would be the argument that the pri-
vacy tort overlaps with the tort of outrage to such an extent that it adds
nothing of practical value to it, and hence does not merit an independ-
ent existence.
The cause of action for outrage, however, does not exactly dupli-
cate the privacy tort. The interest in the former safeguards – free-
dom from serious and purposely provoked mental disturbance – is
not quite the same as the rights to solitude and anonymity, essential
attributes of individuality and at the essence of privacy protection.
The pivotal elements of the tort of outrage are the defendant’s con-
duct, which will trigger liability only if it constitutes a substantial
deviation from community standards of decency, and what that con-
duct infl icted – emotional harm that must exceed some unspecified
threshold level before the defendant will be held responsible. The
critical element of the privacy tort is the uniquely precious interest
that it seeks to shield.
The issue whether or not to adopt the unwarranted-publicity cause
of action in North Carolina as a matter of first impression arose in the
context of a suit against a member of the mass media, and this clearly
was a key factor in the North Carolina court’s decision not to recog-
nise the tort. On the other hand, as a vivid demonstration of how facts
affect the development of the common law, in Minnesota the issue
presented itself for the first time in a claim against a department store
whose employees had disseminated photographs that the store’s photo
lab had developed for the plaintiffs and that depicted them showering
together in the nude.
In Lake v. Wal-Mart Stores, Inc.,87 the supreme court of the state
reversed a dismissal of the plaintiffs’ claims alleging unwarranted
publicity, and in so doing pronounced that: ‘The right to privacy is
an integral part of our humanity; one has a public persona, exposed
and active, and a private persona, guarded and preserved. The heart
of our liberty is choosing which parts of our lives shall become public
and which parts we shall hold close.’88 The facts of the case did not
require consideration of the constitutional implications of granting
recovery against a media defendant, since none was implicated. One
is left to wonder how the North Carolina court would have decided a
claim based on the facts of Lake, and how the Minnesota court would
have decided Hall.
87 88
582 N.W.2d 231 (Minn. 1998). Ibid. at 235.
The cases also demonstrate the importance of a more careful delin-

eation of protected interests. Photographs depicting individuals in
humiliating ways, by revealing parts of the body, social interactions,
emotional displays or bodily functions not normally placed on pub-
lic display, are quite different from information that might affect
other peoples’ estimations of individuals’ character.89 By rejecting the
unwarranted-publicity tort in toto, the North Carolina Supreme Court
cast the former category of exposures outside the scope of tort law, a
most unfortunate result.90
Moreover, it is not at all self-evident why media publication of these
kinds of depictions should merit constitutional protection. Consider
the extreme hypothetical of individuals taken hostage during a bank
robbery, forced to strip totally naked and then released by their cap-
tors. What would explicit photographs and videotape footage of the
release add to verbal or written factual descriptions of the incident?
Community norms establishing that people have a right to keep the
intimate parts of their bodies from public view seems clear enough
to serve as a workable standard to which the media might fairly be
held.91
The North Carolina court might have issued a narrower holding
by refusing to countenance disclosure privacy claims against media
defendants. This was the approach taken by the highest tribunal of a
jurisdiction that had played an important role in developing the cause
of action for unwarranted publicity. In Gates v. Discovery Communications,
Inc.,92 the California Supreme Court took a dramatic step backward and
overruled a prior holding that had stood as perhaps the leading case
permitting recovery in tort against a media defendant for unreason-
able disclosures.
The facts in Gates brought before the court a recurring issue, the
conflict between the citizenry’s right to know and interests of persons
with shady or criminal pasts, but currently leading exemplary lives, to
89
The point is well made by Posner, ‘The Right of Privacy’ at 413–14; see also
D. J. Solove, ‘Conceptualizing Privacy’ (2002) 90 California Law Review 1087, 1147–51.
90
For a case extending privacy protection in these kinds of cases, see Daily Times
Democrat v. Graham, 162 So. 474 (Ala. 1964) (publication of photo of amusement-park
patron shown with dress blown above her waist by jet of air in ‘fun house’).
91
For an unconvincing effort to justify giving constitutional protection to the
media publication of a photograph of a student soccer player with his genitalia
inadvertently exposed, see McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex.
App. 1991), criticised in Solove, ‘Conceptualizing Privacy’ at 1147–49.
92
21 P.2d 552 (2004).
keep their prior misdeeds from contemporary public exposure. A lower

court in California had previously upheld an invasion-of-privacy claim
by an ex-prostitute mentioned by her real name in a motion picture
made long after she had rehabilitated herself.93 The Supreme Court of
the state had its opportunity to consider the question some 40 years
later in Briscoe v. Readers Digest Ass’n, Inc.,94 a case presenting similar
facts. There a magazine article ‘outed’ a reformed hijacker more than
a decade after he gave up criminal pursuits, paid his debt to society
and began to live a respectable life. The court held that the plaintiff’s
complaint stated a good cause of action against the magazine for inva-
sion of privacy. The rationale of the decision was that although public
interest in the subject of the article was no doubt legitimate, naming
the plaintiff served no purpose and undercut the social goal of reha-
bilitating law-breakers.95
In Gates the Supreme Court of California overruled Briscoe, at least in
cases where a media defendant lawfully obtains the name of the plain-
tiff from public and official records of judicial proceedings. It adopted
the reasoning of the United States Supreme Court in Cox Broadcasting
Corp. to the effect that by allowing the plaintiff’s identity as a con-
victed hijacker to appear on a record to which the public had access, the
state had already balanced the interest of the people in knowing about
the plaintiff’s past against society’s interest in rehabilitating offend-
ers, in favour of the former. Characterising the state’s action as the
result of a deliberative balancing process, however, seems like wish-
ful thinking. Moreover, if the media was subject to liability for public
disclosures under the prevailing standard in unwarranted-disclosure
cases – that is, when publication would offend the sensibilities of a
reasonable person – the press and broadcasters might err on the side of
caution in making decisions about what information to disseminate,
and this could have a negative effect on the people’s right to know. The
involvement of an individual as a defendant in a criminal proceeding
thereby becomes like a scarlet letter, forever branded on his or her
public persona.
93
Melvin v. Reid, above n. 45–46.
94
4 Cal.3d 529, 483 P. 2d 34 (1971).
95
For a criticism of the proposition that imposing tort liability in these kinds of cases
will promote rehabilitation, see Epstein, ‘Privacy, Property Rights’ at 472 (refusing
to impose liability will encourage ex-offenders to make their conduct as exemplary
as possible to counter disclosures that his past life makes him untrustworthy and
to disclose his past early in any relationship where it might be relevant).
The current status of the unwarranted-disclosure branch of the tort

of invasion of privacy appears somewhat blurry. In suits brought by
public figures against media defendants, no tribunal has up to now
had to decide whether a revelation was so extremely indelicate, wil-
fully outrageous, contrary to community mores and irrelevant to any
legitimate public interest as to forfeit constitutional protection, nor
has the United States Supreme Court had the occasion to review such
a decision. Conceivably the cause of action might survive as a rem-
edy private individuals might invoke against media defendants in the
event the latter published intimate facts solely for the purpose of caus-
ing distress or other harm to that individual (although this might also
amount to an actionable intentional infliction of emotional distress),
or against a non-media defendant who discloses private facts in a way
that violates a right to anonymity. This, however, would be a far cry
from what Warren and Brandeis had in mind when they wrote their
famous article.
9. The present status of the intrusion privacy tort

Of Prosser’s four privacy categories, the physical-intrusion branch has
fared most successfully over the years. The value of the interest pro-
tected has remained beyond serious dispute, and the possibility that it
might overlap with other torts, such as trespass to land, has not trig-
gered arguments that courts should not recognise it.
The Second Edition of the Restatement of Torts encapsulated the tort
in a black-letter rule that requires plaintiffs to prove that the intru-
sion was intentional and would have been deemed highly offensive
to a reasonable person.96 This provision both reflected existing case
law97 and influenced courts considering whether or not to recognise
the intrusion tort.98
Some opinions have elaborated on what kinds of invasions might
be considered highly offensive. In a leading decision by the United
States Court of Appeals for the District of Columbia, the court stated
96
3 American Law Institute, Restatement of Torts 2d § 652B (1977).
97
See, e.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964) (defendant-landlord
installed listening device adjacent to plaintiff-tenant’s bedroom).
98
See, e.g., Froelich v. Adair, 516 P.2d 993 (Kan. 1973) (defendant suspected her
ex-husband and plaintiff were lovers; she convinced a friend to obtain samples
of plaintiff’s hair from hairbrush and piece of adhesive tape during plaintiff’s stay
in hospital, so that specimens might be compared with hair found in ex-husband’s
bed; cause of action for invasion of privacy upheld; Restatement cited).
in dictum that plaintiffs may recover damages for intrusions ‘into

spheres from which an ordinary man in plaintiff’s position could rea-
sonably expect that the defendant should be excluded’.99 Thus, reason-
able expectations, derived from community standards establishing
the limits of an individual’s right to be left alone, become a critical
element of the tort.
The intrusions might take the form of patterns of conduct, such as
constant, unwanted public surveillance.100 In some such situations,
a strong possibility of overlap with the tort of outrage looms, since
the plaintiff might easily be able to establish the defendant’s intent to
inflict severe emotional distress. However, this might be difficult to
prove in celebrity-harassment cases, where the privacy tort might be
the only remedy against overzealous pursuers.
Indeed, while courts have been reluctant to let public figures recover
damages for unwarranted-disclosure invasions of privacy, especially
against media defendants, they have not hesitated to impose liabil-
ity for outrageous intrusions into the private spaces of celebrities.101
In these cases, the public’s right to know yields to the right of well-
known individuals to maintain intact some sphere of personal privacy
(although in the current culture, where some celebrities market even
the most intimate aspects of their lives, there is a risk that even this
value may one day be deemed just another commodity).
Where media defendants or their employees invaded the private
spaces of plaintiffs in search of newsworthy information, they have
occasionally asserted their right to freedom of the press as a defence
to a claim of invasion of privacy. However, when the intrusion would
99
Pearson v. Dodd, 410 F.2d 701, 704 (D.C. Cir. 1969) (applying District of Columbia
law; investigative reporters held not liable for publishing information obtained
from documents taken from US Senator’s files, although persons who took the
documents might be liable); see also Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th
Cir. 1971) (‘Plaintiff’s den was a sphere from which he could reasonably expect to
exclude eavesdropping newsmen’). For a recent California Supreme Court decision
elaborating upon what makes an intrusion on reasonable privacy expectations
‘highly offensive’, see Hernandez v. Hillsides, Inc., 211 P. 3d 1063, 1078–82 (Cal. 2009).
100
See, e.g., Kramer v. Downey, 680 S.W.2d 524 (Tex. App. 1984) (harassment by plain-
tiff’s former lover, who followed him about on bicycle or motorbike, sent him
cards and gifts and made vulgar remarks to him in public).
101
For the most noteworthy instance, see Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973)
(applying New York law; widow of President John F. Kennedy granted remedy
against extraordinarily intrusive conduct of paparazzo); see also Nader v. General
Motors Corp., 25 N.Y.2d 560, 255 N.E.2d 765 (1970) (applying District of Columbia
law; consumer advocate allowed to recover damages against corporation for intru-
sive efforts to discredit him).
amount to a tortious trespass or a crime, the courts have rejected the

argument and imposed liability.102
A difficult question arises when the intruder or a third party subse-
quently publishes to a mass audience information in the public interest
and obtained as a result of a tortious intrusion, and the victim seeks to
recover compensation for harm attributable to the publication. What
complicates matters are the possibilities that the original intruder
might not have links to the mass media and the victim might sue him
for consequential harm caused by the publicity; or that the original
intruder might have no link to the mass media, and the victim sues
the media outlet that published the information; or that the intruder
might be an employee of the media publisher.
The case law on these issues is sparse. One decision has denied liabil-
ity against a media defendant with no ties to the intruder,103 while
another has imposed liability on a media defendant that published
information tortiously obtained by its employees.104
Professor Richard Epstein has aptly posed the question as ‘whether
the ends justify the means: does the public release of true information
justify the [intrusion]?’105 If media defendants are not held liable for
harm caused when they publish the fruits of their invasions of privacy,
this would in effect exonerate tortious conduct. Indeed, it would call
into serious question why they should be liable for the original intru-
sion. If the Constitution protects them when they disseminate the
information, why should it not protect them from liability for invading
privacy in the course of obtaining it?
10. The present status of the false-light privacy tort

While the intrusion privacy tort remains alive and well, the survival
of the false-light invasion of privacy tort may be in doubt. As has been
102
See, e.g., Dietemann v. Time, Inc., above n. 99 (applying California law; First
Amendment does not immunise newsmen from torts or crimes committed while
newsgathering); Miller v. National Broadcasting Co., 232 Cal. Rptr. 668 (1986) (televi-
sion network held liable when its TV camera crew entered, without any consent,
the bedroom of a person who suffered a heart attack, and filmed efforts of para-
medics to save him).
103
See Pearson v. Dodd, above n. 99.
104
See Dietemann v. Time, Inc., above n. 99.
105
R. A. Epstein, ‘Deconstructing Privacy: And Putting It Back Together Again’, in
E. Paul, F. Miller and J. Paul (eds.), The Right to Privacy (Cambridge: 2000), p. 14
(helpful analysis of the conundrum).
pointed out, the United States Supreme Court’s decision in Time, Inc. has
made it difficult for plaintiffs to recover, by incorporating constitutional
defences and limitations applied to the tort of defamation because of
constitutional considerations,106 and some courts have refused even to
recognise the cause of action because of a concern that the pressure
it places on the First Amendment outweighs the benefits to be gained
by permitting plaintiffs to use it.107 This latter position assumes that
the value of protecting against statements that put people in a false
light exceeds the value of reputation, since defamed plaintiffs can still
recover damages if they meet the requirements that the Supreme Court
has imposed, but plaintiffs placed in a false light would never be allowed
to recover damages, even if they could meet those requirements.108
11. The present status of the misappropriation privacy tort

The last of the quartet of privacy torts dates back to Roberson and Pavesich,
where the courts considered the right of the individual to control the
use of her name or likeness, not as a commodity to be marketed or
withheld from the market, but as an element of individuality forming
an essential aspect of one’s persona. As considered in these cases, the
right to be left alone embodied not only control over dissemination of
private facts that an individual wished to keep secret, which was the
interest Warren and Brandeis wanted to protect, but also identifying
features such as names and photographs.
With the spread of mass marketing and the somewhat related
development of a culture of celebrity, what has come to be commonly
known as the right of publicity has now broken away from its privacy
roots and become a part of the growing field of intellectual property
law. The legal issues it has generated, such as descendibility,109 scope
of protection110 and whether or to what extent it can coexist with the
106
See above nn. 79–80 and accompanying text.
107
See Hall, discussed above nn. 84–86 and accompanying text.
108
For a spirited debate on the issue, compare D. L. Zimmerman, ‘False Light Invasion
of Privacy: The Light That Failed’ (1989) 64 New York University Law Review 364 and
J. Clark Kelso, ‘False Light Privacy: A Requiem’ (1992) 32 Santa Clara Law Review 783
(arguing for the abolition of the tort), with G. T. Schwartz, ‘Explaining and Limiting
a Limited Tort of False Light Invasion of Privacy’ (1991) 41 Case Western Reserve Law
Review 885.
109
See, e.g., A. B. Sims, ‘Right of Publicity: Survivability Reconsidered’ (1981) 49
Fordham Law Review 453.
110
See, e.g., A. W. Langvardt, ‘The Troublising Implications of a Right of Publicity
“Wheel” Spun Out of Control’ (1997) 46 University of Kansas Law Review 329.
statutorily created law of copyright,111 more accurately fall within the

concept of property or quasi-property rights.
This does not mean that there is no role left for the misappropria-
tion privacy tort. It is conceivable that the name or likeness of a non-
celebrity such as Mrs Roberson or Mr Pavesich might find its way into
a marketing campaign or might even be used for a non-commercial
purpose, without the consent of the individual referenced or por-
trayed.112 The interest violated in such a case would seem to be per-
sonal and dignitary, which would justify the use of the privacy tort
to safeguard it.
12. Conclusion
In response to a New York Times editorial criticising the result in
Roberson, a member of the majority voting not to recognise the new
cause of action took the unusual step of writing a lawreview article
that sought to justify the court’s holding. Judge Denis O’Brien insisted
that: ‘It is quite impossible to define with anything like precision what
the right of privacy is or what its limitations are, or how or when the
right is invaded or infringed, or what remedy can be applied if any.’113
The subsequent history of the tort has demonstrated that courts and
commentators should have paid more heed to these concerns.
The value of privacy in fact embraces a range of interests, and it may
well be that not every one of them merits the kind of protection that
tort law can effectively provide. In addition, the failure of the courts to
develop the kinds of rules that can signal to potential defendants what
sorts of behaviour might be tortious and standards that juries can sen-
sibly apply has been a major cause of the disarray in which the privacy
tort now finds itself. The difficulty in using the common-law litigation
process to delineate private and public spheres in a principled way has
proved to be a far greater challenge than Warren and Brandeis ever
imagined.
111
See, e.g., D. E. Shipley, ‘Three Strikes and They’re Out at the Old Ball
Game: Preemption of Performers’ Rights of Publicity Under the Copyright Act of
1976’ (1988) 20 Arizona State Law Journal 369.
112
One of the earliest privacy decisions raised but did not resolve this issue. In Schuyler
v. Curtis, 147 N.Y. 434, 43 N.E. 22 (1896), the relatives of a woman sued to prevent
the defendant from erecting a bust in honour of her. The court held that even if
a right to privacy existed, it was personal and hence could not furnish a basis for
legal relief after her death.
113
D. O’Brien, ‘The Right of Privacy’ (1902) 2 Columbia Law Review 437.
This Chapter has pointed out how claims alleging privacy invasions
that occurred because of the unwarranted disclosure of private facts
have collided with and been repulsed by the constitutional provision
against governmental infringement of freedom of the press. The fail-
ure of the courts to go beyond Prosser’s classifications and identify
the various discrete privacy interests that disclosures might invade has
undercut the continued viability of this aspect of the tort. A reconsid-
eration, informed by an analysis of current social norms and the poli-
cies embodied in the vast body of legislation enacted to protect against
various kinds of releases of private information and other disclosures,
would seem in order.
The unreasonable-intrusion privacy tort has become firmly rooted in
the common law, in part because of a more precise appreciation of the
interest being safeguarded, and in part because of a consensus about
the need for protection against modern technology, with its expanding
capability to violate an individual’s private space without implicating
any other recognised tort. However, if the courts opt to protect the
mass media from liability for harm resulting from the subsequent pub-
lication of information obtained from unreasonable intrusions, they
risk undercutting the incentives to refrain from the sort of intrusive
conduct that the tort was meant to prevent.
The false-light category has always been problematic. Where the
dissemination of inaccurate information damages a person’s reputa-
tion, the traditional cause of action for defamation would seem to pro-
vide an adequate remedy. When the errant publication does not harm
reputation, courts must grapple with the compelling (but not totally
overwhelming) argument that the interest violated may be too trivial
to merit judicial protection, especially since victims may have other
means to reach the public and rectify misimpressions that have been
created.
Finally, the misappropriation privacy tort has been almost com-
pletely subsumed by the right to publicity, which gives individuals a
quasi-property interest in their names, likenesses and other attributes
of identity. There is still a role to be played by the right to privacy,
where the defendant’s conduct violates the plaintiff’s right to prevent
the appropriation of aspects of his individuality that may have no com-
mercial value, but remain precious as a fundamental component of
personhood and hence worthy of legal protection.
The American Law Institute is currently preparing a Restatement
(Third) of Torts that will address invasions of privacy. This will present
an opportunity to re-examine what Warren and Brandeis created and

Prosser refined. Since the current confused state of the tort reflects at
least in part the failures of past Restatements, the Institute can play an
important role in bringing order and rationality to a field of tort law
sorely in need of a fresh look.
PA R T I I C A SE ST U DIES
4 Case 1: The corrupt politician
Case
A newspaper published an article accusing a well-known politician
(called by name) of being corrupt. Does the politician have any claim
against the journalist, the publisher or the editor-in-chief of the news-
paper? If the politician was informed beforehand about the forthcom-
ing article, is he entitled by law to stop the publication? Distinguish
the following situations:
(a) The journalist’s statement is not supported by any facts.

(b) The journalist alleged some facts related by a third person, which
then turned out to be false.
Discussions
Austria
I. Operative rules
The politician may apply for a preliminary injunction to stop the publi-
cation. In situation (a), the politician has a claim against the journalist for
the forbearance of defamatory statements, the revocation of the false
statement and its publication, and for compensation of pecuniary loss.
The politician may sue the publisher for compensation of non-pecuniary
loss. In addition, the politician can claim for a right of reply. In con-
trast, the politician probably has no claim under situation (b), but this
depends on several conditions.
II. Descriptive formants

If the politician was informed beforehand about the forthcoming
article, he may apply for a preliminary injunction pursuant to § 381
75
EO1 if ‘such an injunction seems to be necessary for the avoidance of …

an unrestitutable damage’. Under this provision, only objective endan-
germent (objektive Gefährdung) is required. After an ordinary hearing
the injunction may be removed.
With regard to the claimant’s action, the defendant parties are the
journalist and, under § 6 MedienG, a special provision to protect some-
one’s honour, the owner (publisher) of the newspaper, irrespective of
his/her fault.2
In situation (b), the journalist and the owner/publisher of the news-
paper are not liable in respect of the claims described above if the cred-
ibility of the third person alleging the facts was appropriate3 enough
so that the journalist could not be accused of having breached his/her
particular duty of care ( journalistische Sorgfaltspflicht), and if there was
a prevailing public interest in publishing the statement of corruption
which – in the case of a famous politician – can be taken for granted.
In the particular instance where the journalist quoted the third per-
son in a correct and complete manner and without personal identifica-
tion of the cited facts he/she is not liable under § 6, subs. 2(4) MedienG,
given that the public interest in publishing the statement prevails over
the politician’s private interest in concealing these facts.4
In situation (a), any claim against the journalist, even one for the for-
bearance of defamatory statements in the future,5 depends on wrong-
fulness. The journalist acted wrongfully if an overall balancing reaches
the conclusion that the politician’s right not to be defamed prevails
over the constitutional right of the press to inform the public.6
Although politicians and other ‘public figures’ (Personen der Zeitge-
schichte) are expected to have a higher level of tolerance and therefore
1
Cf. OGH MR 1992, 250; MR 2002, 295; MR 2003, 90; R. Reischauer in P. Rummel,
Kommentar zum ABGB II/2b (3rd edn., Vienna: 2004) § 1330 no. 55.
2
Liability according to § 6 et seq. MedienG is not based on fault. Cf. E. Karner and
H. Koziol, ‘Non-Pecuniary Loss under Austrian Law’, in W. V. Horton Rogers (ed.),
Damages for Non-Pecuniary Loss in a Comparative Perspective (Vienna: 2001) at 16; G. Korn,
‘Das Entschädigungssystem’, in A. Mayer (ed.), Persönlichkeitsschutz und Medienrecht
(Vienna: 1999), p. 101.
3
The journalist was likely to believe him with good reason – see OGH MR 1997, 299,
where the third person was not credible.
4
OGH MR 1998, 138; E. Swoboda, Das Recht der Presse (2nd edn., Vienna: 1999) at 50
et seq.
5
Cf. OGH EvBl 1983/91; MR 2001, 373; R. Reischauer in P. Rummel, Kommentar, § 1330
no. 23. This claim does not depend on fault.
6
OGH MR 1989, 15; G. Korn and H. Neumayer, Persönlichkeitsschutz im Zivil- und
Wettbewerbsrecht (Vienna: 1991) at 59 et seq.
c a se 1: t he cor rup t poli t ici a n 77
must endure more public criticism,7 they have a right to honour.

Therefore, for example, the OGH does not allow journalists to call
politicians ‘liars’ without enough facts to support this statement.8
Defamatory statements may violate both one’s right to honour (pro-
tected by § 1330, subs. 1 ABGB) and one’s right to ‘economic reputa-
tion’ (wirtschafticher Ruf, protected under § 1330, subs. 2 ABGB) which
is reflected in one’s creditworthiness (Kredit), earnings (Erwerb) and
professional advancement (Fortkommen). Although the latter provi-
sion denotes ‘factual statements’ (Tatsachenbehauptungen), whereas the
former also deals with value judgments (Wertungen), in this case the
accusation of corruption infringes both provisions. Therefore, the
plaintiff may choose between § 1330, subs. 1 or 2 ABGB, both of which
grant compensation for pecuniary loss9 only; non-pecuniary loss, how-
ever, remains without indemnification under this provision. Beyond
the law of damages, the latter provision offers more – namely the right
to revoke the statement and to publish this revocation.
Not only the claim for one’s right to the forbearance of defama-
tory statements may be pursued against the owner/publisher of the
newspaper in the future, but also the claim for compensation of non-
pecuniary loss pursuant to § 6 MedienG, without proof of fault. The
same is true in respect of the claim for publication of a counter state-
ment under § 9, subs. 1 MedienG.
III. Metalegal formants

Some Austrian scholars criticise the levels of awards for non-pecu-
niary loss provided by the Media Act, as well as the de facto levels
awarded by the courts. The maximum amount provided by § 6(1)
MedienG is €50,000 in exceptional circumstances where defamatory
statements are involved and €20,000 in all other cases. In contrast,
the real amounts of compensation awarded by the Higher Regional
Court of Vienna level out at €1,454 to €7,270. The three other Higher
Regional Courts (of Graz, Linz and Innsbruck) award sums noticeably
7
ECtHR EuGRZ 1986, 428; MR 2002, 84 (commentary by E. Swoboda); ÖJZ 2002, 464
(‘Dichand’). This is primarily based on Art. 10 ECHR (Freedom of Speech and Press);
OGH MR 2001, 89.
8
OGH MR 1997, 299.
9
Loss of earnings or, e.g., costs of the employment of a PR expert for the restoration of
the politician’s reputation: OGH 26.5.1997, 6 Ob 135/97 i.
lower than these amounts. Graz, for example, only awards a quarter
of the Viennese amounts.10
Belgium
I. Operative rules
In both hypotheses (a) and (b), the politician can claim damages from
the journalist. He can also exercise a right of reply. However, he will
not get an injunction before the article is published.

Besides the traditional trias politica, the Belgian press is considered
and considers itself the ‘Fourth Branch’. Its power is protected under
the Constitution, which guarantees freedom of expression (Art.
19). Notwithstanding this fact, criminal law and tort law remain
applicable.
Some general provisions of the Criminal Code can be applied to this
case. The most important are defamation (Art. 443 Criminal Code) and
insult (Art. 448 Criminal Code). The following conditions apply:
(1) a certain opinion has to have been made;

(2) the Criminal Code is not applicable in cases concerning a mere
descriptive article;
(3) this opinion must also be punishable and the offence must be
committed by the printing-press;
(4) finally, it is necessary that the article has become public, for exam-
ple, by publishing the article in a newspaper.
In applying Art. 1382 of the Civil Code, the journalist’s behaviour

will be tested against the conduct of a reasonable journalist of ordi-
nary prudence in similar circumstances. The judiciary demands great
prudence, moderation, caution and circumspection from journalists.
Their liability is judged in respect of the importance of the accusa-
tions, the harm that can be caused, the means of inquiry at their dis-
posal and that used, and, finally, the public interest.11
The applicant of an action based on Art. 1382, has to prove three ele-
ments. Firstly, he/she has to prove that the journalist did not behave
like a reasonable journalist. Furthermore, he/she has to show that
10
Cf. E. Karner & H. Koziol, ‘Non-Pecuniary Loss under Austrian Law’ at 24.
11
Civil court Charleroi, 9 Dec. 1998, AM 2000, 145; Civil court Brussels, 26 Oct. 2001,
AM 2002, 88. See, in general, P. Robert, ‘La responsabilité civile du journaliste’
(2000) AM 18.
harm was caused to him/her by this behaviour. Finally, the judge will
grant damages where the applicant also proves a causal connection
between the journalist’s fault and the harm suffered.12
In respect of situation (a), where the journalist’s opinion is not sup-
ported by any facts, his/her behaviour is imprudent. The journalist
commits a fault if he/she makes serious accusations without first
verifying the facts or simply bases his/her opinion on groundless
rumours.13
Regarding situation (b) where the journalist alleged some facts
which had been reported by a third person and which then turned
out to be false, the journalist has a reasonable duty to verify his/her
sources; the stronger the accusations, the stricter the duty to verify.14
In relation to who the politician can claim from, Art. 25(2) of the
Constitution states: ‘When the author is known and resides in Belgium,
neither the publisher, nor the printer, nor the distributor can be pros-
ecuted.’ This provision stipulates a multi-staged civil and criminal
liability: no claim based on personal liability can be lodged against
the printer or distributor if the writer is known, and no claim can be
brought against the distributor if the publisher is known.
Some judgments uphold the vicarious liability of the journalist’s
editor-in-chief if the latter is known and resides in Belgium,15 others
consider the editor-in-chief as the ‘publisher’ whose liability cannot be
sought if the journalist is known.16
If the journalist is an employee, the law protects him/her from
claims based on slight negligence. Third parties can only claim dam-
ages based on the grounds of serious or deliberate offences or recurrent
negligence, e.g. serious accusations without verification of the source.
It is disputed whether or not the vicarious liability of the employer can
be sought in such cases.
Journalists have set up a self-regulating Press Council (Raad van de
Journalistiek) with deontological competence for the written press. This
Council tries to settle conflicts amicably.
12
See H. Vandenberghe, ‘Over civielrechtelijke persaansprakelijkheid. Een stand van
zaken’, in M. Debaene and P. Soens (eds.), Aansprakelijkheidsrecht. Actuele tendenzen
(Brussels: 2005) at 109 et seq.
13
Civil court Brussels 14 Dec. 1993, AJT 1994–95, 70.
14
CA Brussels 16 Feb. 2001, AM 2002, 282; CA Brussels, 20 Sept. 2001, AM 2002, 254;
CA Brussels 9 Nov. 2001, AM 2002, 257.
15
Civil court Brussels 5 Dec. 2001, AM 2002, 282.
16
Civil court Brussels 9 Nov. 2001, AM 2002, 288.
When the defamatory article is published, not only monetary rem-

edies can be granted but also non-monetary remedies. Through Art.
1 of the Right of Reply Act,17 the injured person can exercise his/her
right of reply in order to rectify a factual element or to defend him- or
herself against defamation.
Judges will usually grant damages to remedy the non-pecuniary
harm. Opinions differ with regard to the amount of compensation
that should be awarded. Some judges are convinced that the nominal
amount of €1 in damages is sufficient, while other judges are more gen-
erous. While some judges, for example, allow compensation of €125 to
€1,250, others opt for compensation of €2,500 to €12,500.18
Whether or not one can obtain an injunction to prevent the publica-
tion of an article is highly uncertain in Belgian law. Most authors con-
sider it a form of censorship prohibited by Art. 25 of the Constitution.19
Most courts are also unwilling to grant an injunction.20 An injunction
is only accepted by some courts in exceptional circumstances. The
Belgian Cour de cassation has decided that an injunction is constitu-
tional when the article has already been published and is known by
the public.21 An injunction before publication is in principle unavail-
able, but in summary proceedings there is at least the possibility to
attain one. Some judges accept the possibility of an injunction to pre-
vent imminent damage to a highly threatened interest, on condition
that the injunction prevents irreparable loss or further damage. 22
The president of the Civil Court of Namur decided that an issue of
the magazine L’Investigateur could not be distributed because it con-
tained a list of alleged paedophiles. The distribution of this list on the
internet was also forbidden. The Court referred to the human rights
and the presumption of innocence of the alleged paedophiles, as well
as the fact that publication of the list could endanger them.23
17
Right of Reply Act, 8 Jul. 1961. For a general overview, see E. Brewaeys, Recht van
antwoord in APR (Ghent: 2005).
18
D. Voorhoof, Handboek mediarecht (Brussels: 2003) at 161 et seq.
19
Ibid. at 60–75. See also D. Voorhoof, ‘Vrijheid van meningsuiting’, in J. Vanden
Lanotte and Y. Haeck (eds.), Handboek EVRM (Antwerp: 2004) at 845 et seq.
20
See the examples given by D. Voorhoof, Handboek mediarecht at 60 et seq.
21
Cass. 29 Jun. 2000, AM 2000, 4443, note A. Brewaeys, Rec. Cass. 2001, 35, note D.
Voorhoof.
22
E.g., Antwerp (President) 4 Nov. 1999, AM 2000, 87 and 89; Brussels (President) 22 Mar.
2002, AM 2002, 443; Civil court Brussels (President) 24 Apr. 1996, TBBR 1997, 135.
23
Civil court Namur (President), 9 Aug. 2000, JLMB 2000, 1182, note F. Jongen. See D.
Voorhoof, ‘Publicatie pedofielenlijst in België stuit op rechterlijk verbod’ (2000)
Mediaforum 271.
England
I. Operative rules
In both situations, the politician can sue the journalist, publisher
and editor-in-chief for defamation. He is entitled to compensation in
the form of damages. He is also entitled to apply for an injunction.
However, whether or not he will be successful in obtaining an injunc-
tion depends on a number of factors outlined below. The politician is
not entitled to a right of reply.

This type of case could come under the tort of defamation or malicious
falsehood. The preconditions for the tort of malicious falsehood are
that one party has published false words about the other party, that
these words were published maliciously, and that special damage has
followed as the direct and natural result of their publication. Under s.
3(1) of the Defamation Act 1952, it is sufficient that the words published
in writing are calculated to cause pecuniary damage to the claimant.
Malice will be inferred if it is proven that the words were calculated to
create damage and that the party publishing the words knew that they
were false or was reckless as to whether they were false or not.24 In this
particular case, we cannot tell if malice was present or not. Therefore,
we will concentrate on the tort of defamation.
The tort of defamation protects a person from untrue imputations,
which reflect on a person’s reputation so as to lower him/her in the
estimation of right-thinking members of society generally.25 Libel is
defamatory material in permanent form, for example in print, whereas
slander takes a transient form. The tort has a number of aspects.
Firstly, the test is objective so that it does not matter whether or not
the defendant intended to defame the claimant. Accusing a politician
of being corrupt is clearly defamatory. Secondly, the defamation must
refer to the claimant, i.e. make him/her identifiable. This is clearly the
case in this situation since the politician has been named. Thirdly, the
defamation must have been communicated to some person other than
the claimant, which is obvious in the case of a newspaper article.26 It
24
Kaye v. Robertson [1991] FSR 62, per Glidewell LJ; DSG Retail Ltd v. Comet Group plc
[2002] FSR 58 at para. 13.
25
Sim v. Stretch (1936) 52 TLR 669.
26
Powell v. Gelston [1916] 2 KB 615.
is also important to note that libel does not require any damage to be
shown by the claimant, but is actionable per se.27
Where defamatory matter is contained in a newspaper, there will be
a series of publications, each of which is actionable in principle. The
author, editor and publisher are liable.28 Furthermore, distributors could
also be liable. However, some of these persons have defences available.
The defence of ‘justification’ applies where the defendant can prove the
truth of the defamatory statements even if he/she acted with malice.29 In
the case at hand, this defence is not available since the statement was not
based on any facts. Partial justification, in cases where there is some evi-
dence that the statements were true but where the claimant cannot prove
sufficient facts to establish the defence of justification, is not a defence
but will be taken into consideration when calculating damages.30
The defence of ‘comment on a matter of public interest’ (known as
the fair comment defence) is available to everyone but it is of particular
importance to the media. Everyone has a right to make comments on
matters of public interest. However, this defence is merely concerned
with the protection of comment, not imputations of fact.31 It allows for
vigorous comment as long as the facts on which the comment is based
are true. Thus, in the present case, this defence is not available.
The defence of ‘absolute privilege’ protects the defendant no mat-
ter how dishonest or malicious his/her motives.32 Occasions of absolute
privilege fall into the categories of parliamentary proceedings, judi-
cial proceedings and official communications. In this particular case,
the defence is not available as it does not appear that the defamatory
material has arisen from an occasion of absolute privilege. The defence
of ‘qualified privilege’ exists in common law and in statutory law.33
27
This is different in slander, with four exceptions. One of these is an allegation in
relation to the claimant’s competence or fitness in any office, profession, calling,
trade or business. In the case at stake, corruption would clearly disqualify the
politician from his office so that even slander would be actionable per se. For details,
see M. Jones, Textbook on Tort (7th edn., London: 2000) at 511.
28
For a summary of early case law, see Godfrey v. Demon Internet Ltd [2001] QB 201, at
207 et seq.
29
Reynolds v. Times Newspapers Ltd [2001] 2 AC 127, at 192, per Lord Nicholls of
Birkenhead.
30
Pamplin v. Express Newspapers Ltd [1988] 1 WLR 166; Campbell v. News Group Newspapers
Ltd [2002] EMLR 43, 966, at 977; Burstein v. Times Newspapers Ltd [2001] EMLR 14, 364.
31
Reynolds v. Times Newspapers Ltd at 193, per Lord Nicholls of Birkenhead.
32
See Defamation Act 1996, Ch. 31
33
For more details, see ss. 14 and 15 Defamation Act 1996; Reynolds v. Times Newspapers
Ltd at 167, per Lord Bingham of Cornhill; McCartan Turkington Breen (A Firm) v. Times
Newspapers Ltd [2001] 2 AC 277, at 290 et seq., per Lord Bingham of Cornhill.
It applies to the dissemination of information to the general public

that the public should know.34 In both common and statutory law the
defence merely applies to fair and accurate reports, which implies an
absence of malice.35 It arises where ‘the person who makes a commu-
nication has an interest or a duty, legal, social or moral, to make it to
the person to whom it is made, and the person to whom it is made has
a corresponding interest or duty to receive it’.36 Furthermore, common
law has always distinguished between those who produced the libel
and those who merely disseminate it, such as the booksellers, librar-
ians or newsagents, the latter having a defence available if they were
innocent.37 This defence of innocent dissemination was made avail-
able through s. 1 of the Defamation Act 1996 to printers, distributors,
sellers, broadcasters of live programmes and also the operators of a
communication system by means of which a defamatory statement is
communicated.38 The burden of proof lies with the distributor.39
The author can make an ‘offer of amends’.40 Such an offer of amends
bars defamation proceedings if it is accepted by the person defamed. It
can also be relied upon as a defence unless the person who made the
defamatory statement:
(a) referred to the aggrieved party or was likely to be understood as

referring to him/her; and
(b) was both false and defamatory of that party.41
The other problem is that by relying on the defence of ‘offer of

amends’ the defendant loses the right to rely on any other defence.42
34
35
McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd at 301, per Lord Cooke of
Thorndon.
36
Adam v. Ward [1917] AC 309, at 334.
37
Vizetelly v. Mudies’s Select Library Ltd [1900] 2 QB 170, at 180; Bottomley v. F.W. Woolworth
& Co. Ltd (1932) 48 TLR 521.
38
For details, see M. Jones, Textbook on Tort, at 508–9; L. J. Smith, ‘Neuere
Entwicklungen in der Haftung für Persönlichkeitsverletzungen nach deutschem
und englischem Recht – Publish and be damned’ (1999) Zeitschrift für Europäisches
Privatrecht 303, at 312. See also Godfrey v. Demon Internet Ltd [1999] 4 All ER 342,
concerning an internet service provider.
39
See Godfrey v. Demon Internet Ltd [2001] QB 201, at 204.
40
See ss. 2, 3 and 4 Defamation Act 1996. See also Veliu v. Mazrekaj & Anor [2006] EWHC
1710 and Campbell-James v. Guardian Media Group [2005] EWHC 893 (QB).
41
S. 4 (2) and (3) Defamation Act. A similar defence under the preceding Defamation
Act 1952 had turned out not to be very helpful in practice since it required the
publisher to prove that he/she had exercised all reasonable care in relation to the
publication. See M. Jones, Textbook on Tort, at 505–6.
42
S. 4(4) Defamation Act 1996.
Thus, the defendant may choose not to rely on it but rely on mitigating
damages instead.43 The newspaper also has the possibility of utilising
the defence of apology and payment into court although this is rarely
used in practice.44
The possible remedies available to the politician in the case of def-
amation will now be considered. Generally speaking, the remedy of
injunction is available in defamation cases. The question is, however,
to what extent this applies to interlocutory relief. Two major barriers
have to be overcome. The first is a problem of jurisdiction. Defamation
cases are among the rare cases still heard before a jury.45 Thus, the
court, in ordering an interim injunction, would replace the jury’s deci-
sion with its own decision. Therefore, an interim injunction ought
only to be granted in the clearest cases, where any jury would say that
the matter complained of was libellous and where the court would set
aside the verdict as unreasonable if the jury did make such a finding.46
The second problem is the conflict between interlocutory injunctions
and freedom of the press. In practice, courts have always been very
reluctant to order an injunction in libel cases, at least in interlocutory
proceedings, and they have never done so if the defendant said that he/
she intended to plead justification.47 Now, s. 12(3) of the Human Rights
Act 1998 states that no relief that might affect the Convention right to
freedom of expression is to be granted in order to prevent publication
43
44
Under s. 2 of the Libel Act 1843, the defence of apology and payment in court is
available to newspapers and periodicals that have published a libel without malice
or gross negligence. The newspaper may publish a full apology and pay money in
court as amends. This defence is, however, seldom used in practice. See M. Jones,
Textbook on Tort, at 511–12; V. Harpwood, Principles of Tort Law (4th edn., London: 2000)
at 378.
45
The jury’s jurisdiction was introduced with Fox’s Libel Act 1792. For the historical
background, see the speech by Nourse LJ in Sutcliffe v. Pressdram Ltd [1991] QB 153,
at 181. See also L. J. Smith, ‘Neuere Entwicklungen’, at 311–2. An exception can
be made under s. 69 of the Supreme Court Act 1981 if the court is of opinion that
the trial requires any prolonged examination of documents which cannot be
conveniently made with a jury. See, for example, Aitken v. Preston and Others [1997]
EMLR 415.
46
William Coulson & Sons v. James Coulson & Co. (1887) 3 TLR 46; Kaye v. Robertson & Anor at
67. Vice versa, under Part 24 of the Civil Procedure Rules 1999, the court may only
strike out a claim by summary judgment if there is no evidence fit to be left to a
jury on the essential issue; see Alexander v. Arts Council of Wales [2001] 1 WLR 1840;
Wallis v. Valentine [2003] EMLR 8, 175.
47
See Schering Chemicals Ltd v. Falkman Ltd and Others [1982] QB 1, at 17–18, per Lord
Denning MR; Kaye v. Robertson & Anor at 67.
before trial, unless the court is satisfied that the applicant is likely to
establish that publication should not be allowed.48
If the defendant is liable for libel, the claimant is entitled to dam-
ages. At fi rst instance, these are determined by a jury.49 Only in cases
of overly excessive awards, could an order for a new trial be made on
appeal.50 However, after some spectacularly excessive jury decisions
in defamation cases, s. 8 of the Courts and Legal Services Act 199051
was adopted in order to entitle the Court of Appeal to deal with
excessive awards by the jury. The Court does so by ordering a new
trial or by substituting the sum awarded by the jury with such a sum
as appears proper to the Court. The Court of Appeal has exercised
this right repeatedly,52 arguing that the notion of ‘excessive’ under
s. 8 of the Courts and Legal Services Act 1990 expresses a smaller
difference between the sum awarded and the proper sum than what
was necessary prior to the adoption of the Courts and Legal Services
Act 1990.53
In defamation actions, the principle of restitutio in integrum has
a highly subjective element. In fact, the sum awarded should be
such that the claimant can, in the future, point at it and convince
a bystander of the baselessness of the charge. Compensation thus
serves two goals: vindication of the claimant, and consolation to him/
her for a wrong.54
The factors that are to be considered in determining libel damages
are as follows:55
48
‘Likelihood’ has been understood by English courts to be a standard that is slightly
but insignificantly higher than the previously applied standard of ‘real prospect
of success’. See Imutran Ltd v. Uncaged Campaigns Ltd [2001] 2 All ER 385, at 391,
per Morritt V-C; A v. B plc and Anor [2003] QB 195, at 205. This interpretation was
reinforced by the House of Lords in Cream Holdings Limited v. Banerjee [2005] 1 AC 253.
49
See s. 69(1) Supreme Court Act 1981, Ch. 54.
50
See, for example, McCarey v. Associated Newspapers Ltd (No. 2) [1965] 2 QB 86, at 111,
per Wilmer LJ: ‘divorced from reality’; Sutcliffe v. Pressdram Ltd at 176: ‘so excessive
that no twelve men could reasonably have given them’.
51
Ch. 41.
52
For an excessive award, see, for example, John v. MGN Ltd [1996] 2 All ER 35
(£350,000). The jury award of £1.5 million in a libel case was held to be a violation
of Art. 10 ECHR, see ECHR, judgment of 13 Jul. 1995, Tolstoy Miloslavsky v. United
Kingdom, (1995) 1 Yearbook of the European Convention on Human Rights, 283, at 285–6.
For an overview, see Campbell v. News Group Newspapers Ltd at 996 et seq.
53
See Rantzen v. Mirror Group Newspapers (1986) Ltd and Ors [1994] QB 670, at 685.
54
Broome v. Cassell & Co. [1972] AC 1027, at 1071, per Lord Hailsham.
55
See Kiam v. MGN Ltd [2002] EMLR 25; Campbell v. News Group Newspapers Ltd at 975.
(1) the objective features of the libel itself, such as its gravity, its promi-
nence, the circulation of the medium in which it was published, and
any repetition;
(2) the subjective effect on the claimant’s emotions;
(3) matters tending to mitigate damages, such as the publication of an
apology;
(4) matters tending to reduce damages, for example, evidence of the
claimant’s bad reputation;
(5) special damages; and
(6) vindication of the claimant’s reputation past and present.
In cases of gross negligence, and, in particular, in cases of malice, so-

called ‘aggravated damages’ can be awarded.56 Aggravated damages may
also be awarded with the aim of compensating for the subsequent con-
duct of the defendant. Any refusal to apologise may be considered here.
Furthermore, the jury can award ‘exemplary or punitive damages’.
This applies, in particular, to cases where the defendant knew that
he/she was committing a tort when he/she published the statement,
or was reckless over whether his/her action was tortious or not, and
decided to publish in the end because the prospect of material advan-
tage outweighed the prospects of material loss. Exemplary damages
should teach the defendant, and the world, that tort does not pay.57
Notably, the mere fact that the libel was committed by a newspaper
in the course of its business does not mean that it is a libel for which
exemplary damages should be awarded.58
English law does not give the claimant a right of reply. This would
be regarded as an undue restriction of the freedom of the press.59 Some
elements of the English law of defamation, however, encourage the
press to consult the person who is to be reported on in advance. For
56
Broome v. Cassell & Co. at 1072, per Lord Hailsham.
57
For the general principles, see the landmark case of Rookes v. Barnard [1964] AC 1129,
at 1227, per Lord Devlin. For their application in defamation cases, see Broome v.
Cassell & Co.; Riches v. News Group Newspapers [1986] QB 256, with critical remarks on
the jury’s competence to award exemplary damages by Stephenson LJ, at 269. See
also G. Wagner, ‘Geldersatz für Persönlichkeitsverletzungen’ (2000) Zeitschrift für
Europäisches Privatrecht, 200 at 216–7.
58
Manson v. Associated Newspapers Ltd [1965] 1 WLR 1038, at 1043.
59
See the Calcutt Report, at para. 11.4. See also P. Schmitz, Persönlichkeitsrecht als
Bürgerliche Freiheit im englischen Recht unter besonderer Berücksichtigung der Kollision mit
der Pressefreiheit (Frankfurt: 1996), at 232 et seq.; B. Brömmekamp, Die Pressefreiheit
und ihre Grenzen in England und der Bundesrepublik Deutschland (Frankfurt: 1997), at 81;
G. Gounalakis and R. Glowalla, ‘Reformbestrebungen zum Persönlichkeitsschutz in
England (Teil 2)’ (1997) Archiv für Presserecht 775.
example, the defence of fair comment usually requires consultation in

advance. Furthermore, offers of amends have a similar function, with
the important distinction that the press is the author of the rectifica-
tion, while the claimant still does not have a right of reply.60 Finally,
the refusal to apologise may infer aggravated damages.
In addition, the Code of Conduct of the Press Complaints Commission
provides for a ‘fair opportunity for reply to inaccuracies … to individu-
als or organisations when reasonably called for’. This clause cannot,
of course, be enforced by individuals. It has even been misused by the
media sometimes to surface the defamatory story once again.61
(b) The journalist alleged some facts related by a third person, which then
turned out to be false.
Under the law of defamation, this would not change anything, in prin-
ciple, since the journalist would have to prove that the alleged facts
were true. Mere unfounded reliance on a third person is not, as such, a
defence in defamation cases.
In Reynolds v. Times Newspapers, the House of Lords set out a number of
criteria for assessing whether or not the press acted in a manner that
can broadly be described as ‘responsible journalism’,62 including the
seriousness of the allegation, the nature of the information and the
extent to which it is of public concern, the source of the information,
the steps taken to verify the information, the status of the informa-
tion, the urgency of the matter, whether comment was sought from
the person defamed, the tone of the article and the circumstances of
the publication, including the timing.63
A lesser form of defence is available in cases where the claimants
cannot establish the truth of the suspicion raised but can justify that
the claimant him- or herself triggered reasonable grounds for suspi-
cion. In such cases, the defendant must usually focus upon some con-
duct by the claimant that in itself gives rise to suspicion. In exceptional
situations strong circumstantial evidence may be sufficient, whereby
hearsay evidence is no longer excluded. Matters post-dating publica-
tion are irrelevant.64
60
See B. Brömmekamp, Die Pressefreiheit, at 81.
61
See G. Gounalakis & R. Glowalla, ‘Reformbestrebungen zum Persönlichkeitsschutz’
at 773.
62
63
Ibid. at 205.
64
For details, and for the development of this defence, see Dr Grigori Loutchansky v.
Times Newspapers Ltd and Ors [2002] EWHC 2726, at para. 48 et seq.

While not having formed part of formal constitutional law, the impor-
tance of a free press has always been emphasised by the English
courts,65 and English courts have always considered this element of
common law as being reflected by the ECHR.66 This opinion has been
reinforced by the introduction of the Human Rights Act 1998 explic-
itly incorporating Art. 10 ECHR on freedom of expression.67 Certainly,
freedom of the press is restricted if the press must always be able to
prove all defamatory statements, i.e. all statements that do harm to a
person’s reputation in the eyes of right-thinking members of society.
This effect has been called the ‘chilling effect’ of the law of defamation
on freedom of expression.68
Finland
I. Operative rules
There seems to be no possibility of an injunction in order to hinder the
publishing of false information about the politician. The politician is
entitled to damages based on the fault of the journalist, the publisher
or the editor-in-chief.

According to Ch. 24, s. 9 of the Finnish Penal Code, the crime of defa-
mation is committed if a false statement or innuendo is made which
is likely to cause damage or suffering to the offended person. The per-
son making the statement can only avoid penal consequences if he/she
has well-grounded reasons to believe that the statement is true. The
Government Bill provides that the mass media in particular have to
carefully scrutinise whether an alleged fact is true or not. One source
may not be enough.69 As was established in the Supreme Court case
65
See, for example, Schering Chemicals Ltd v. Falkman Ltd and Others [1982] QB 1, per
Lord Denning MR; R v. Central Independent Television plc [1994] Fam 192, at 202–3, per
Hoffmann LJ; R v. Secretary of State for the Home Department, ex parte Simms and Anor
[2000] 2 AC 115, at 125 et seq., per Lord Steyn; Mills v. News Group Newspapers Ltd [2001]
EMLR 41, 957, at 965.
66
See R v. Secretary of State for the Home Department, ex parte Simms and Anor at 131, per
Hoffmann LJ.
67
See Mills v. News Group Newspapers Ltd at 965; Reynolds v. Times Newspapers Ltd at 206,
208, per Lord Steyn.
68
See, for example, Reynolds v. Times Newspapers Ltd at 170. See also E. M. Barendt, Libel
and the Media: The Chilling Effect (Oxford: 1997).
69
Government Bill 184/1999, 36.
1997:185, there is a duty on the journalist and the editor-in-chief to

verify that the statement is true.70 If the false statement or innuendo
is made through the mass media, for example, and the defamation as
a whole is considered aggravated, then the crime is characterised as
aggravated defamation according to Ch. 24, s. 10 of the Penal Code.
Since the reform of the Finnish Constitution in 2000 and the previ-
ous reform of fundamental rights in 1995, freedom of speech (Ch. 2,
s. 12 of the Finnish Constitution) is considered to be so fundamental
that the possibility of injunction is practically non-existent.71 There
is no legislation which, in general, makes an injunction possible in
respect of defamatory acts. The use of injunctions has not been based
on an unwritten principle of law either.72 However, according to s. 10 of
the Act on Freedom of Speech in Mass Communication (460/2003), the
politician has a right to have the false statement corrected in the news-
paper. According to s. 25, the victim of the defamation can demand at
trial that the defamation judgment be published.
In addition to criminal remedies, which are not discussed here, the
remedies available to the victim also include a claim for damages. As
defamation is a punishable act in both its normal and aggravated form,
compensation for pure economic loss is possible according to Ch. 5, s.
1 of the Tort Liability Act. If the politician has suffered pure economic
loss, i.e. loss that has no connection with physical damage to prop-
erty, and can prove this – which can be a difficult task – he is entitled
to damages. In addition, the politician has a compensatory claim for
anguish according to Ch. 5, s. 6 (in its amended form 509/2004, which
came into force on 1 January 2006), as a person is entitled to compen-
sation for any anguish suffered if his/her liberty, peace, honour or pri-
vate life has been offended through a punishable offence. According to
the provision, the likely anguish suffered should be taken into account
by considering the form of the offence, the position of the offended,
the relationship between the offender and the offended and the public-
ity of the offence.73 The action of the newspaper in this case is clearly
70
According to P. Tiilikka, Sananvapaus ja yksilön suoja – Lehtiartikkelin aiheuttaman
kärsimyksen korvaaminen (Vantaa: 2007), at 534, there are no definite rules on when
the defendant has presented enough evidence to prove that he/she had well-
grounded reasons for the statement.
71
S. Manninen, ‘Hallitusmuodon uusi sananvapaussäännös’, in Nordenstreng (ed.),
Sananvapaus (Juva: 1996) at 25.
72
See T. Vuortama, Journalisti 15/1999, www.journalistiliitto.fi/journalisti/
arkisto/1599/ala/alakerta.htm (9 June 2003).
73
According to the Government Bill 167/2003, 59–60, the situation has to be judged
objectively and the compensation must not cover any economic loss.
one of the punishable acts which give the right to compensation for
anguish.74
As Finland is deemed to be one of the least corrupted countries in
the world,75 an allegation that a politician is corrupt is a highly offen-
sive and humiliating statement. Although the position of a politi-
cian can legitimate even strong criticism against him/her (see Ch. 24,
s. 9(2) of the Penal Code), in the case at hand the honour of the polit-
ician is clearly affronted by the statement and he would be entitled to
damages for anguish. Although some recent court cases show a ten-
dency to award higher amounts of damages, it is difficult to estimate
the adequate amount of damages in this case. In light of some court
cases debated in the press, €10,000– €20,000 would be a very rough
estimate. If the defamation is aggravated according to Ch. 24, s. 10 of
the Penal Code, the amount of damages will normally be higher than
that awarded for a ‘normal’ form of defamation.76
74
In the Supreme Court case 1980 II 86, two civil servants were indirectly accused
in a newspaper article of violating their official duty. The editor-in-chief, who
did not reveal the author of the article, was found guilty of defamation and was
obliged to pay damages to the civil servants in the sum of 10.000 FIM (€1,682)
each. For a thorough analysis of the new provision, see P. Tiilikka, ‘Lehtiartikkelin
aiheuttaman henkisen kärsimyksen korvaamisesta: vastuun perusteen arviointia’,
in Kuka valvoo vapautta? Viestintäoikeuden vuosikirja 2005 (Helsinki: 2006) at 172–87.
75
See www.verkkouutiset.fi/arkisto/Arkisto_2000/15.syyskuu/korr3700.htm
(28 February 2003).
76
In the Supreme Court case 2002:55, the name of the girlfriend of a former Finnish
civil servant was mentioned in a television programme where the crimes of
the former civil servant were reported. According to the Supreme Court, the
girlfriend was entitled to damages of €8,000 for the anguish. In a Finnish doping
case on 11 Nov. 2000, the Helsinki Appellate Court entitled a sportsman, who
had been accused of using banned hormones, to damages for the anguish to an
amount of over €21,000. In the Supreme Court case 1997:185, the amount of the
compensation for the anguish was 75.000 FIM (€12,614), see L. Sisula-Tulokas,
Contract and Tort Law: Twenty Cases from the Finnish Supreme Court (Jyväskylä: 2001), at
124–6. Recently the Helsinki district court granted €20,000 to a woman who had
been found defamed in an aggravated way by a gossip magazine in two different
articles. She was alleged to have been an alcoholic and to have had her children
only for money. See Helsingin Sanomat 31.12.2005. For an analysis of the amounts
granted during the period 1980–1990, see Sisula-Tulokas, Sveda, värk och annat
lidande (Saarijärvi: 1995), at 141–4. The author addresses criticism regarding the
low amounts of damages in the Supreme Court cases, but she sees some tendencies
for higher amounts in some lower court cases. In the recent Supreme Court case
2006:62, a civil servant had been alleged of having committed a crime when he
had given information in a report. However, the number of persons who had the
possibility to identify the civil servant was low. Therefore, the civil servant was
only entitled damages of €3,500.
The division of the liability for damages between the journalist,

the publisher and the editor-in-chief 77 of the newspaper is based
on the rules in Chs. 3 and 4 of the Tort Liability Act. The liability of
the employee is regulated in Ch. 4. If an employee is found slightly
negligent, he/she is not liable for damages.78 If he/she is found guilty
of an intentional act, he/she is normally liable to the full extent.
In other situations, for example when the negligence is ‘normal’ or
aggravated, he/she is liable for the damage to a reasonable extent.
According to Ch. 3 of the Tort Liability Act, an employer is liable to
the full extent for damage caused by his/her employees. As the jour-
nalist and the editor-in-chief are employed by the publisher,79 their
liability is secondary to that of the publisher according to the follow-
ing rules: under Ch. 6, s. 2 of the Tort Liability Act, the employer is
primarily liable whenever the act causing damage is unintentional;
the employee is only liable if the compensation is not recoverable
from the employer.80
The liability of two employees is divided between them depending
on their fault. The individual liability of the journalist depends on
whether he/she has been the only person negligent and to what extent.
If the defamation has been intentional, he/she has full liability. The
liability of the editor-in-chief is also based on the degree of negligence.
If the politician is granted compensation, the publisher will be liable
for it to the full extent.
In principle, the amount of damages is not affected by the greater
fault in case (a) compared to case (b), because the damage suffered is
not dependent on the offender’s fault.81
According to Ch. 10 of the Penal Code, as a further sanction, the
profit of the crime can be declared forfeited to the state to the extent
that it exceeds the damages.
77
If the chief editor is not directly liable for the actual crime, he can still be punished
for editorial misconduct according to s. 13 of the Act on Freedom of Speech in
Mass Communication. Then, the chief editor is not liable for the compensation of
anguish, see P. Tiilikka, Sananvapaus ja yksilön suoja at 364–5.
78
This was the situation in the Supreme Court case 1982 II 42. The chief editor of a
paper was found only slightly negligent.
79
According to s. 14 of the Act on Freedom of Speech in Mass Communication, the
publisher is liable although the author is not an employee of the publisher.
80
See Supreme Court case 1982 II 42, where the journalist was found only secondarily
liable compared to the publisher.
81
L. Sisula-Tulokas, Contract and Tort Law at 136.

The impossibility of awarding an interim injunction against a newspa-
per has been disputed. In some cases, the fundamental right to privacy
(Ch. 2, s. 10 of the Constitution) and the fundamental right to freedom
of speech could create a ground for an interim injunction against a
newspaper in order to avoid a clear case of defamation, for example.82
France
I. Operative rules
The politician can bring an action against the journalist, the editor-
in-chief, and the publisher of the newspaper based on the 1881 Act on
Freedom of the Press (Loi sur la liberté de la presse). The politician can thus
obtain damages (non-economic loss) in criminal proceedings. However,
this is subject to the very strict procedural requirements set out in the
1881 Act. He cannot sue in general private law (Code Civil). It is quite
improbable that the politician will obtain an injunction to prevent the
publication. He can, on the other hand, exercise his right of reply.

The Freedom of the Press Act (1881)83 punishes the crimes (délits) of
defamation (Art. 29(1): diffamation) and of insult (Art. 29(2): injure). The
first encompasses ‘any allegation or imputation of a fact which causes
injury to the honour or reputation of the person or body to which the
fact is imputed’. The second deals with ‘any offensive expression, term
of contempt, or invective not involving the imputation of any fact’. An
Act of Parliament passed on the 15 June 2000 has levelled the penalty
incurred for these two offences at a fine of €12,000. In addition, the
prior sanction of imprisonment was removed.
According to the 1881 Press Act, defamation has the following five
preconditions: that there is an allegation or imputation of a particular
fact; that the fact is likely to injure honour or reputation; that a spe-
cific person is targeted; that the allegation is made in bad faith (the
existence of which is, in reality, presumed); and that the allegation is
made publicly.
82
J. Niemi-Kiesiläinen, Sananvapaus ja silikonirinnat (Oikeus: 2002) at 432, with
reference to E. Havansi, Uusi turvaamistoimilainsäädäntö selityksineen (Jyväskylä: 1994)
at 63. J. Niemi-Kiesiläinen has, however, been heavily criticised by Vuortama,
Journalisti 18/2002, www.journalistiliitto.fi/journalisti/arkisto/182002/ala/18aluske.
htm (9 June 2003).
83
Loi sur la liberté de la presse du 29 juillet 1881.
As to the first precondition, it concerns the criteria which distinguish

between defamation and insult. To constitute defamation, the imputa-
tions should not be vague or general. Furthermore, they have to be in
the form of an articulation of facts which could, without difficulty, be
the object of evidence in the course of criminal proceedings.84 This is the
case in situation (b). However, on the contrary, the imputations concern-
ing a vice or habit, which do not target a precise fact delimited in time,
constitute insult and not defamation.85 This is the case in situation (a).
The intention to harm does not need to be proven because the volun-
tary nature of the defamatory statements essentially implies bad faith.
The author of the statements can rebut the presumption of bad faith
by proving four elements:
(1) the legitimacy of the objective pursued;

(2) the absence of personal animosity;
(3) prudence and moderation in the expression;
(4) the existence of a serious enquiry.
The belief that the statements are true is irrelevant. He/she who
imputes facts to another has the duty to verify whether those facts
are true. If he/she does not, then he/she is, at the very least, a defamer
because of his/her imprudence. In the instant case, in hypothesis (b)
it is insignificant whether the facts stated by the journalist have been
reported by a third person. Unless he/she can prove that he/she has
made very serious efforts to verify the facts, the journalist is guilty of
diffamation.
Art. 29 of the 1881 Act punishes defamation without distinguishing
whether the defamatory allegation is true or not. However, according
to Art. 35(3) of the same Act ‘the truth of the defamatory facts can be
proven at all times, except where the allegation concerns the private
life of the person, refers to facts which occurred over ten years ago,
or to facts constituting an offence which has been subject to either
amnesty or prescription’. In cases where the exception of truthfulness
is admitted, this exception is a ground for justification which rebuts
the presumption of bad faith.86 If the defamatory imputation turns out
84
Cass. crim. 2 Dec 1980, Gaz. Pal. 1981, 2, 483.
85
In practice the distinction is sometimes quite subtle. Thus to say ‘he is a liar, he is
a thief’ is an insult (injury). In contrast, defamation is the accusation that another
has committed a certain theft.
86
Cass. crim. 14 June 2000, Bull. no. 225: ‘to have an absolving effect, the evidence of
the defamatory facts must be perfect, complete and related to the whole scope of
the defamatory imputation.’
to be true, the publication does not amount to a criminal offence or a

tort. However, in this particular case, in hypothesis (b) the journalist
cannot prove the corruption because his/her article rests on the allega-
tions of a third person which have been shown to be false.
If the politician in question is a person exercising public authority
(a minister, representative, senator, etc.), Art. 31 of the Press Act pro-
vides for more severe penalties in cases where the defamation or insult
concerns his public function. The allegations must then have a direct
and close association with the functions and qualities of the victim. On
the other hand, if the politician is targeted in his private capacity, then
the special protection of Art. 31 does not apply.87
With regard to the defendants, the 1881 Press Act establishes a spe-
cial regime to determine the persons responsible. Thus, Art. 42 of the
Press Act contains an exhaustive list of persons considered as the prin-
cipal authors of press infractions; this list includes the directors of the
publication, its editors, writers, printers, vendors and distributors. It is
a matter of a system of responsibility ‘en cascade’, which means that the
designated persons are called one after the other, in function of their
rank, in the absence of a person of higher rank.
Once insult or defamation has been determined, the criminal
court can grant the claimant damages to remedy the non-economic
loss ( préjudice moral) which he/she has suffered because of that insult
or defamation. In practice, however, the politician’s action against
the newspaper on the basis of the 1881 Act runs the risk of not being
very effective, given that there are numerous procedural obstacles.
Firstly, the action is subject to the extremely brief prescription period
of three months. The action must also respect a very strict prerequi-
site: to stop the running of the period of prescription, the first pro-
cedural action must qualify the incriminated facts and indicate the
applicable laws in a very clear manner. The complaint definitively
frames the debate; the judges do not dispose of any power to requal-
ify the facts under a different criminal offence and thus condemn
the defendant on the basis of a cause of action different from the
one which had been invoked. Finally, the penalties are quite weak in
practice.88
Accordingly, one can ask whether the politician might bring an
action before the civil courts on the basis of the general rules of tort
87
TGI Paris 13 Oct. 1998, Légipresse 1999, No. 160, I, 42.
88
B. Beignier, L’honneur et le droit (Paris: 1995) at 183.
law (Art. 1382, 1383 CC), the fault being an abuse of the freedom of
opinion. The judiciary, however, is extremely reluctant to admit such
an action. Up until 2000, such an action was subject to very strict con-
ditions, either under malicious intent (intention malveillante) or reckless-
ness (négligence grave). Nevertheless, in principle, the possibility of such
an action was admitted.89 In two decisions of 12 July 2000, the Plenary
Assembly (Assemblée Plénière) of the Supreme Court (Cour de cassation)
established that ‘the abuse of the freedom of expression provided for
and punished by the Act of 29 July 1881 cannot be remedied on the
basis of Art. 1382 Code Civil’.90 This exclusion of the application of the
general regime of tort liability in cases of defamation is criticised by
some legal scholars.91 In any event, it is a solution which is extremely
favourable to the press.
It is quite improbable that the politician will obtain an injunction
to prevent publication. French law certainly recognises the possibil-
ity to bring a claim before the ‘juge des référés’ (summary proceedings
in cases of urgency), ‘either to prevent imminent harm or loss; or to
end a manifestly unlawful disturbance’ – see Art. 809 of the Code of
Civil Procedure (Code de procédure civile). Despite this legal consecra-
tion of an intervention by the summary judge a priori, legal scholars
remain as hesitant as the judiciary to grant measures intended to
89
CA Versailles 20 May 1999, D. 1999, IR, 172: ‘While it is admitted that an action
based on civil liability under Art. 1382 C.civ. can be allowed if the publication of
expressions of thoughts appeared as a fault which causes damage to another – an
action which is separate from the one regulated by the 1881 Act – the person who
invokes such a principle must provide evidence of both the fault and the damage
caused thereby’; CA Paris 28 May 1999, Légipresse 1999, No. 167, III, 170: no
statutory provision bars the concomitant pursuit of an infraction against press laws
and an injury sanctioned by the Civil Code. However, the plaintiff cannot bring an
action under general civil liability law to escape the brief prescription period which
applies to defamation.
90
Cass. Ass. plén. 12 Jul. 2000, D. 2000, somm., 463; JCP 2000, I, 280, no. 2. Thereafter
we can find consolidated case law: Cass. civ. 2nd ch. 8 Mar. 2001, Légipresse 2001,
No. 181, III, 72; Cass. civ. 29 Mar. 2001, Légipresse 2001, No. 182, I, 77; JCP 2002, I,
122; Cass. civ. 9 Oct. 2003, D. 2004, jur., 590; Cass. civ. 29 Nov. 2005, JCP 2005, IV,
3785; Cass. civ. 7 Feb. 2006, D. 2006, IR, 532; Cass. civ. 21 Feb. 2006, D. 2006, IR, 674;
Cass. civ. 30 May 2006, D. 2006, IR, 1636; Cass. civ. 12 Dec. 2006, Légipresse 2007, No.
240, III, 65; D. 2007, 541; Cass. civ. 31 May 2007, RDLI 2007/28, No. 923, p. 53.
91
G. Viney, ‘Chronique de responsabilité civile’ (2002) JCP, I, 122, No. 2; E. Derieux,
‘L’actualité du droit des médias en France’ (July 2000 – June 2002), Auteurs & Media
2002/6, at 508; S. Martin-Valente, ‘La place de l’Article 1382 du Code civil en matière
de presse depuis les arrêts de l’Assemblée Plénière du 12 juillet 2000. Approche
critique’ (2003) Légipresse No. 202, II, 71; E. Dreyer, ‘Disparition de la responsabilité
civile en matière de presse’ (2006) D. chr., 1337.
prevent an injury to personal honour when freedom of expression is

at stake.92
Although the politician probably cannot prevent the publication of
the article, he could use his right of reply to re-establish the truth.
The right of reply, enshrined in Art. 13 of the Press Act, is in fact often
granted and plays an important role. It commands the press to publish
the reply of any person who considers him- or herself to be implicated
in the matter. The right of reply thus has the re-establishment of a
certain balance between individuals and the press as its objective. The
right of reply does not depend on any fault committed by the journal-
ist; the most legitimate and most objective information can give rise to
a right of reply because it is not a sanction.93
Germany
I. Operative rules
In situation (a), the politician cannot bring any claim. In situation (b),
there is a basis for a preliminary injunction against the journalist, the
publisher and the editor-in-chief to stop the publication. The politician
also has a right of reply regarding factual statements.
Given the negligence of the journalist in situation (b), the politician
can claim general damages after the publication of the article.

The right to honour and reputation is codified in the German Penal
Code (§§ 185–187 StGB), but also protected as part of the uncodified
‘general personality right’94 which allows damages under the general
tort action in § 823(1) BGB.
In defamation cases, the acts of infringement are the allegation (by
the journalist) and the dissemination (by the editor-in-chief and the
publisher) of facts or opinions detrimental to a person’s reputation.
In cases where the claimant is informed beforehand about a forth-
coming defamatory article, an injunction preventing publication is
92
TGI Paris 18 Nov. 1998, D. 1999, IR, 36: ‘the constitutional principle of freedom of
expression bars a court, which is not empowered to control publications ex ante,
from prohibiting the selling of a work which has not yet been written and whose
actual content is still uncertain.’
93
A. Chavanne, ‘Droit de rectification et de réponse’, in Droit de la presse (Paris: 2000) at
186, No. 60.
94
BGHZ 13, 334 – Schacht-Leserbrief; BGHZ 26, 349 – Herrenreiter; BVerfGE 30,
173, 194.
granted against any person who is responsible for making a necessary

contribution to the offensive act. The allegation and the circulation
thereof constitute defamatory actions.95 An injunction may even be
granted against the distributor of a newspaper with regard to a defama-
tory article in one of the newspapers which he/she distributes, whether
the distributor knew of the existence of the article or not.96 A prelimi-
nary injunction may also be granted.
The principal question therefore is whether the defamatory act – fact
or opinion – falls under press privilege.97 In press cases, courts have
developed a special press privilege regarding matters of public concern,
relying on a partial codification under § 193 StGB.98 This privilege is not
restricted to media defendants.99 Courts have developed guidelines for
reasonable efforts to be made by journalists100 in order to protect per-
sonality interests in media cases. An important factor is whether the
publication contains a mere opinion or if facts have been stated.
In situation (a), the allegation is not based on any fact. Nevertheless,
calling a person ‘corrupt’ may indicate that this person is willing to accept
private benefits in exchange for his or her public service. Therefore, the
allegation may signify a hidden fact. However, German courts tend to
require a minimum amount of substance for an allegation to be seen
as a ‘factual statement’.101 Merely calling a person corrupt will there-
fore be qualified as a subjective opinion. Those opinions fall under the
privilege of freedom of expression/freedom of the press according to Art.
5(1) GG, as long as they are not being expressed with the mere inten-
tion of humiliating the person (so-called ‘Schmähkritik’).102 With respect
to comments on the behaviour of public figures, there is a presumption
that press articles do not intend to humiliate but simply wish to com-
ment on a topic of public concern.103 That is why an infringement of
95
BGH GRUR 1969, 147, 150; BGHZ 66, 182, 189.
96
BGH NJW 1976, 799, 800.
97
BVerfG AfP 2006, 354, 355 f.; BGH NJW 1994, 124, 126; OLG Hamburg AfP 2006,
257, 258.
98
Wahrnehmung berechtigter Interessen, BGHZ 3, 270, 280; with distinction BGHZ 13,
334, 338.
99
BGHSt 18, 182 = NJW 1963, 665, 667.
100
Pressemäßige Sorgfaltsanforderungen – standard of due care to be complied with by the
press and other media; see BGHZ 31, 308, 313; BGHZ 143, 199.
101
BVerfGE 61, 1 = NJW 1983, 1415, 1416: comparison between the Bavarian party
Christian Social Union (CSU) and an extreme right wing party (NPD); BGH NJW
2002, 1192, 1193.
102
BGHZ 45, 296, 310; BVerfGE 66, 116, 151; BVerfGE 82, 43, 51.
103
BVerfGE 7, 198, 212.
the politician’s honour will probably be denied. There will be neither a

ground for an injunction nor for general damages in situation (a).
In situation (b), the defamatory allegation is based on facts which are
reported in the article. The courts will not regard this as mere opin-
ion. There is no general privilege for allegations of false facts under
the German Constitution.104 Factual statements are only privileged if
they are true. However, the press does have a privilege to report on
facts which cannot be proven, provided that the facts involve a matter
of public concern105 and provided that the press has made an effort to
research the basis of the allegation.106 The duty of journalists to take
reasonable care varies according to the personality interest at issue.107
An allegation of corruption is a serious reproach. Merely consulting
one person as a source will not be considered sufficient.108 Therefore,
the press privilege in situation (b) does not apply. The politician has
grounds for an injunction even if the publication has taken place
before the facts were found to be false.
The easiest and fastest way for a claimant to correct a false state-
ment is the so-called right of reply (Gegendarstellungsrecht) codified in
the press Acts of the German Länder. The right of reply does not require
a court judgment regarding the facts of the case. If certain (strict) for-
mal requirements are followed, the press has to publish the statement.
In urgent cases, the claimant can ask for a preliminary injunction.
A claim for damages for violations of personality rights requires the
claimant to prove that the defendant – journalist, editor-in-chief, pub-
lisher – has acted negligently by not complying with standards of profes-
sional care. Usually, like the politician in this case, claimants will not
be able to prove economic loss. Non-economic loss can, in principle, be
compensated under German law if there is an injury to the body, health,
freedom or sexual autonomy of a person (§ 253(2) BGB). With regard to
personality rights, non-economic (general) damages can be claimed if
(1) no other remedy is effective; and
(2) a serious and grave violation of personality interests has taken
place.109
104
BVerfG NJW-RR 2006, 1130, 1131; BVerfGE 99, 185, 197.
105
BGHSt 18, 182 = NJW 1963, 665, 667.
106
BGHZ 132, 13, 23 ff. = NJW 1996, 1131, 1134; BGH NJW 1997, 1148, 1149.
107
BGHZ 31, 308, 313; BGHZ 68, 331 = NJW 1977, 1288, 1289.
108
BGHZ 68, 331 = NJW 1977, 1288, 1289.
109
BGHZ 26, 349, 356; BGHZ 35, 363, 369; BGHZ 39, 129, 133; BVerfGE 34, 269 = NJW
1973, 1221; BGHZ 128, 1, 15; BGHZ 132, 13, 27.
In cases where the suspicion of criminal behaviour is imputed, a

serious and grave violation will be assumed.110
The amounts awarded by the courts have been modest in the past.
In cases such as this one, politicians have been awarded sums between
€5,000 and €25,000.111 In recent years, courts have tended to grant even
higher amounts of money in cases where the press has acted knowingly,
wilfully and recklessly.112 In these cases, the BGH has argued that monet-
ary compensation has to prevent the press from committing violations.
Some scholars in Germany have considered that this opens the door to
punitive damages, which are, in principle, unavailable in German law.113

The dichotomy between the two notions of honour and reputation
marks a clear difference between the German law and the common
law concept of defamation. While the common law tort of defamation
tends to protect only the public reputation of a person,114 the more
idealistic concept of personality interests in German law has a clear
focus on the question of honour.115 It must be said, however, that the
importance of protecting the right to the inner feeling of dignity has
lost its prominence and nowadays the right to reputation is more and
more central to the interests of the courts. Where public figures are
concerned, the courts tend to discuss the right to reputation only. This
is due to the fact that public figures gain their ‘social capital’ from
their reputation. Politicians are especially eager to protect their public
image.116 More recent cases show that public employees in particular
110
OLG Karlsruhe NJW-RR 1995, 477.
111
Among the highest amounts awarded are BGH GRUR 1969, 147 (accusation of being
corrupt and various false allegations concerning the former minister of defence
Franz-Josef Strauss: 25,000 DM); BGHZ 68, 331 = NJW 1977, 1288: 50,000 DM
(accusation of corruptness concerning a member of the Federal Parliament).
112
BGHZ 128, 1, 15: 180,000 DM for a series of paparazzi shots and a false interview
concerning Princess Caroline of Monaco; OLG Hamburg, – 7 U 138/99 – 10.10.2000
(unpublished): 200,000 DM for about 40 paparazzi shots of Princess Caroline of
Monaco.
113
Cf., inter alia, J. Rosengarten, ‘Der Präventionsgedanke im deutschen Zivilrecht’
(1996) NJW, 1935–1938; W. Seitz, ‘Prinz und die Prinzessin – Wandlungen des
Deliktrechts durch Zwangskommerzialisierung der Persönlichkeit’ (1996) NJW
2848 (2848).
114
A. Caldecott and P. Moloney, ‘Libel and Slander’, in Halsbury’s Laws of England, Vol. 28
(4th edn., London: 1997) para. 46, No. 42.
115
BGHSt 29, 67, 70; H. Ehmann, ‘Zur Struktur des Allgemeinen Persönlichkeitsrechts’
(1997) Juristische Schulung 195, 198.
116
BGH GRUR 1969, 147.
have a strong interest in protecting their professional and personal

integrity against the allegation of corruption.117 This is due to the socio-
logical observation that the reputation of a public figure has assumed a
strong importance as a ‘social currency’.118
Greece
I. Operative rules
In both situations (a) and (b), the politician can claim damages for eco-
nomic and non-economic loss from the owner of the newspaper, the
journalist, the publisher or the editor-in-chief. Additionally, the polit-
ician can claim an injunction for cessation and non-recurrence in the
future and also has a right of reply.
It is unlikely that the politician would have any success in applying
for interim measures against the newspaper to prevent imminent pub-
lication. Rather, it is probable that the court shall order the deletion of
defamatory phrases or sections of the publication as an interim meas-
ure. This is a solution which arguably does not lead to a restriction of
the freedom of the press.

According to a recent decision of the Supreme Court of Greece (Areopag),
the notion of ‘personality’ is to be understood as ‘a net of values, pro-
tected by the Constitution (Art. 2(1)), which consist of the moral sub-
stance of the human’.119 Elements of this ‘net of values’ are the honour
and reputation of the person, mainly related to his/her private and fam-
ily life, as these are recognised and protected by the Greek Constitution
(Art. 5(2) and Art. 9(1)), the ECHR (Art. 8), and the ICCPR (Arts. 17 and
22). Each person’s honour and respect is reflected in the appreciation
and value given to this person by others.120
According to Art. 57 CC, if a person suffers an injury to his or her per-
sonality, he or she can claim an injunction for cessation and the non-
recurrence thereof in the future. The action is even possible against a
defendant who is not responsible in the particular case, or incapable of
being responsible at all.
117
BGH NJW 2000, 656 (press article accusing a public broadcaster of corrupt
practices); BGHZ 143, 199 = NJW 2000, 1036 (satirical article accusing public
servants of corruption).
118
Cf. L. Vogt, Zur Logik der Ehre in der Gegenwartsgesellschaft (Frankfurt: 1997).
119
Supreme Court Decision 854/2002. Court of Thessaloniki Decision 16923/2003.
Decisions cited are available in Greek via the legal database ‘NOMOS’.
120
Supreme Court Decision 788/2000.
Furthermore, according to s. 2 of Art. 57 CC, a claim for damages in

accordance with the provisions governing unlawful acts shall not be
excluded (see Art. 914 CC).
According to Art. 914 CC, a person who has unlawfully and deliber-
ately caused damage to another person shall be liable for compensa-
tion. An act or omission is unlawful in the sense of Art. 914 when it
conflicts with principles of law. Since personality rights are absolute
rights, any injury to personality is prima facie unlawful121 unless rea-
sons exist that justify the otherwise unlawful character or nature of
the act in question (e.g. defence, acts serving the public order, consent
of the person whose rights are being infringed).
In relation to injuries to one’s honour, the Greek Penal Code makes
the following distinctions:
(a) when a person’s honour is offended by words, or by acts, or by any
other means (Art. 361 PC);
(b) when a person’s honour or reputation is offended through the
claiming or communication of facts to a third person by any means
(Art. 362 PC);
(c) when the facts communicated under (b) are false and the offender is
aware that they are false (Art. 363 PC).
In the case of (b) above, if the facts communicated are true, the offen-
sive act is not punishable according to the Penal Code (Art. 366(1)).
However, this does not exclude claims for remedies in tort law. If the
facts communicated concern the unlawful acts of a person and are
brought before a court, Art. 366(2) PC states that the facts are consid-
ered to be true if the court makes a determination of guilt, and are con-
sidered to be false if the court makes a determination of innocence.
The following acts are not prima facie considered to be unlaw-
ful: negative judgments on scientific, artistic or professional activities;
negative expressions contained in the documents of a public authority
121
Georgiadis, General Principles of Civil Law (in Greek) (2nd edn., Athens/
Komotini: 1997) at 129; Papantoniou, General Principles of Civil Law (in Greek) (3rd
edn., Athens: 1983) at 134. Karakostas, Personality and Press (3rd edn., Athens/
Komotini: 2000) at 66. See also, Supreme Court Decision 6/2004. In this case,
a newspaper devoted some articles to the politicians (candidates for the Greek
Parliament) of an electoral region, by mentioning their names and publishing their
photos. These publications systematically and intentionally left out the name and
photo of one of the candidates. The Supreme Court accepted that this behaviour
(not mentioning the name, not publishing the photo) caused an injury to the
honour and reputation of the person, because it was indirectly implied that this
person was not worthy to become a member of the Greek Parliament.
and connected or related to its area of activity; acts pursuant to the

execution of legal duties, the exercise of legal authority, the protection
of a legal interest or any other justified interest (Art. 367(1) PC).
However, the acts remain unlawful when they are undertaken by
the offender in spite of the fact that he/she is aware that they are false,
or when the circumstances under which the offence is committed still
prove that the defamation was intentional (Art. 367(2) PC).
In the present case, the violation of the politician’s right to hon-
our is committed through the press. According to Art. 14(1) Greek
Constitution, every person may express and propagate his or her
thoughts orally, in writing and through the press in compliance with
the laws of the State. Furthermore, Art. 14(2) of the Constitution expli-
citly states that the press is free and preventive measures against the
press are prohibited. However, freedom of information and freedom
of the press may be restricted by law, but the restrictions should be
of a general nature and should only have an ex post (after publication)
character.
Scholars and courts have affirmed that the freedom of the press is
not absolute. It should not lead to the sacrifice of any other lawful inter-
est and is therefore subject to a general provision to respect the laws
of the State. Regulations providing for a restriction of the freedom of
the press may refer to national security, public order, the protection of
honour and other rights of third persons, the protection of confiden-
tial information or the validity, objectiveness and impartiality of the
courts. These restrictions are provided by Art. 10 of the International
Convention of Rome (para. 2), which has been implemented into Greek
national law by Law 2329/1953 and Decree 53/1974, and therefore has
direct effect.
Freedom of the press and the social role of the press constitute legiti-
mate rights and interests which could outweigh the unlawful charac-
ter of the defamatory act in question. Persons directly connected to
the function of the media, in particular journalists, are committed to
reporting facts relevant to the behaviour of persons that attract public
interest. Therefore, in order to facilitate and promote public informa-
tion, the publication of articles containing harsh criticism and even
negative comments regarding such persons is allowed.122
However, if the statement is not supported by any facts or if the jour-
nalist alleged some facts which turned out to be false, the unlawful
122
See Supreme Court Decision 1177/2002, Supreme Court Decision 825/2002.
character of the act still remains. The unlawful behaviour lies in the
journalist not having made a sufficient effort to verify the accuracy of
the facts published and proceeding to publish the statement without a
previous examination of the facts or after an insufficient examination
of them.123
Therefore, in both situations (a) and (b), accusing the politician of
being corrupt amounts to defamation under the Penal Code, as well as
an unlawful violation of his personality under Art. 57 CC. Moreover,
the politician is entitled to damages under Art. 914 CC.
An additional legal basis for the liability of the journalist and the edi-
tor-in-chief could be Art. 920 CC, which regulates the specific instance
of injury to personality rights. According to this provision, a person
who either knowingly or through non-exculpable ignorance supports
or spreads untrue information which endangers the credibility, profes-
sion or future activity of another person, shall be liable to compensate
the latter.
As far as liability is concerned, Art. 1 of Law 1178/1981 provides that
in the case of injury caused deliberately through a publication which
damages the honour and reputation of a person, the owner of the
printed medium is fully liable for reparation in respect of both com-
pensation for pure economic loss and compensation for non-economic
loss. The liability of the owner of the printed medium persists even
if the intention to offend (Art. 919 CC) or the actual or constructive
knowledge (Art. 920 CC) only concerns the author of the article (jour-
nalist), or in case the latter is unknown, the publisher or the editor-in-
chief of the printed media124 (strict liability).
In addition, the author (journalist), publisher and editor-in-chief of
the printed medium are also liable according to the general rules of
tort liability (Arts. 57, 59, 914, 919, 920, 932 CC, in combination with
Arts. 361–363 PC).125
With regard to the amount of damages to be awarded, Art. 2 of Law
1178/1981 provides for a minimum amount of €30,000 as compensation
123
See Supreme Court Decision 1177/2002. See also Supreme Court Decision
780/2005: ‘The unlawful character of the insulting or defamatory behaviour
remains when under the given circumstances the act takes place with the
intention to defame, in other words, the intention is oriented to dishonour another
person through the rejection of the moral or social value of the person or by
despising him.’
124
See Supreme Court Decision 6/2004. See also Karakostas, Personality and Press at
244–5.
125
See Supreme Court Decision 1462/2005.
for non-economic harm, particularly for violations made by a printed

medium which has a large circulation and a minimum amount of
€6,000 for violations made by a smaller medium.
Although the general rule of Art. 932 CC leaves the determination
of ‘a reasonable amount of money’ to the court,126 the specific rule of
Law 1178/1981 sets a minimum amount. This intervention by the leg-
islator in defining the minimum amount of compensation for injuries
to personality which occur through the press was necessary because
Greek courts have traditionally been very reserved in determining the
amount of compensation. Therefore, academics have spoken of a prac-
tical impoverishment of the right to compensation.127
Regardless of compensation for economic loss, when an unlawful
act is committed the court may allot a reasonable amount of money
as reparation for moral prejudice, according to Art. 932 CC. This provi-
sion especially applies in cases of injury to a person’s health, honour, or
dignity or when a person was deprived of his or her liberty.
Specific reparation for non-economic harm in the case of an infringe-
ment of personality rights is also provided for by Art. 59 CC. Such rep-
aration consists of: (a) the payment of a sum of money; (b) a publication
or public retraction; or (c) any other measure appropriate under the cir-
cumstances. In this instance, as well as in a situation where Art. 932 CC
applies, reparation through the payment of a sum of money requires
the offensive act to be the result of intentional, fraudulent behaviour.
The amount of the award for non-economic harm is left to be deter-
mined by the court. Courts take many factors into account, including
the type and the gravity of the injury, the circumstances in which the
injury was committed (place, time and medium), the liable person’s
degree of fault, the amount of publicity the injury has gained, com-
bined with a variety of elements such as the social, professional and
economic condition of all of the parties involved, the effect on the vic-
tim’s social and professional life, etc.128
126
See Supreme Court Decision 1143/2003.
127
Stathopoulos, in Georgiadis and Stathopoulos, Civil Code – Interpretation by Article
(Athens: 1996) at 299, No 3. Karakostas, Personality and Press at 260. See also Supreme
Court Decision 1462/2005: ‘the regulation of Art. 1 para. 2 Law 1178/1981 … has
as its scope to ensure a minimum protection of citizens from particularly strong
injuries to their honour and reputation due to publicity, therefore it conforms to
Art. 2 para. 1 of the Constitution according to which, the respect and protection of
human values is the main obligation of the State’.
128
See, for instance, Supreme Court Decision 1177/2002.
Ireland
I. Operative rules
The politician has a cause of action in defamation against all parties
concerned. If the politician was informed beforehand, it is likely that
he would succeed in obtaining an injunction preventing the publica-
tion, particularly where the claimant could not prove that the state-
ment was supported by any facts.

The publication is clearly defamatory of the politician (if untrue) and has
identified the politician by name. The publishers of the article will not
to be able to plead truth as a defence as the statement is unsupported
by any facts. It is also unlikely that a defence of qualified privilege could
succeed as in order to establish such a defence, it is necessary for the
defendant to prove that he/she did not act maliciously in publishing the
material. As the statement is not supported by any facts, it could be diffi-
cult for the defendant to prove that his/her actions were not malicious or
that the public had any interest in receiving information of this kind.
The politician’s case would alter only slightly if the facts upon which
the journalist relied were supplied by a third party and later turned out
to be false. The article would still be considered defamatory and the
journalist could not rely on the defence of truth. However, depending
on the source of the information, the journalist could possibly plead
qualified privilege, arguing that he/she had acted reasonably in light of
the information that had been made available to him/her.
The law on defamation in Ireland is very similar to that of England
and Wales. To succeed in an action for defamation it must be established
that the defamatory statement had been published, i.e. communicated
to a third party.129 Publication can take two forms: namely, libel and
slander. Libel is the publication of defamatory material in some per-
manent form, whereas slander assumes a more transient form. Thus,
the publication of a statement in a newspaper article is libellous. Any
person who makes a defamatory statement or who distributes a defama-
tory statement will be liable in defamation.130 Therefore, not only will
the journalist be liable but so too will his/her editor-in-chief for author-
ising the publication and the newspaper for disseminating the libel.
129 130
Berry v. Irish Times Ltd [1973] IR 368 Ibid.
The politician in this case must objectively establish that the mate-
rial was capable of lowering him in the eyes of right-thinking members
of society.131 Falsely accusing the politician of being corrupt is capable
of damaging his reputation. Furthermore, the politician must establish
that he had been identified as the subject of the defamatory article.132
In this case, as the politician is well known to the public and has been
named; he has been clearly identified for the purposes of the tort.133 It
is unlikely that the publishers have any defence. While truth is a com-
plete defence to an action in defamation, it is clear that the statement
in this case is not supported by any facts. In England, it is possible that
the publishers could plead a modified form of qualified privilege in their
defence.134 While the status of the ‘Reynolds privilege’ under Irish law
remains unclear, there is some evidence that such a defence could be
pleaded in this jurisdiction.135 Regardless, this defence is unlikely to suc-
ceed in the above scenario as such communications would only be privi-
leged if the publisher took care in publishing the story and, in doing so,
did not act maliciously. As the story is unsupported by any facts it does
not appear that care has been taken in the publication of the article.
As in England, the politician would be entitled to obtain an inter-
locutory injunction preventing the publication of the article should
he learn about it beforehand. The politician would also be entitled to
damages should the article be published.
Defamation is a strict liability tort. Essentially, whether the journalist
was mistaken as to his/her facts is irrelevant. The journalist would not
be able to plead the defence of truth. The journalist could plead the
defence of qualified privilege as outlined in Reynolds v. Times Newspapers
Ltd136 and argue that, while ultimately mistaken, he/she had acted rea-
sonably in the circumstances. The status of ‘the source’ could be signif-
icant in this regard as it would be evidence of whether the journalist’s
actions were appropriate. Such an argument is unlikely to succeed
however, as the source of the information is only one of ten factors
which the journalist should have regarded in deciding whether or not
to publish the information.137
131
Quigley v. Creation Ltd [1971] IR 269 132 Berry v. Irish Times Ltd.
133
Ibid. 134 Reynolds v. Times Newspapers Ltd [1999] 4 All ER 609.
135
Hunter v. Gerald Duckworth and Co. Ltd & Anor. [2003] IEHC 81.
136 137
[1999] 4 All ER 609. Ibid. at 626.

Irish defamation law has not been subjected to legislative reform since
the enactment of the Defamation Act 1961. In 2006, the Irish govern-
ment published the Defamation Bill. The Bill is being debated by the
Oireachtas (Parliament) and has not yet been enacted into Irish law.
The legislation is intended to reform much of current Irish law in this
area. One of the main proposals of the Bill is the creation of a defence
of ‘fair and reasonable publication on a matter of public importance’
(s. 24). This defence is intended to alleviate the current harshness of
Irish defamation law which is strict liability based. It proposes to do so
by giving greater scope to the media, in particular, to publish informa-
tion regarding matters of public interest. Under this new defence, a
defendant will not be liable in defamation where it can be proven that
he or she has acted reasonably and fairly in the publication of material
which is deemed to be in the public interest. The fact that the mate-
rial may be untrue does not necessarily affect this defence. Whether
the publisher has acted reasonably in the publication of the material
would appear to be measured in accordance with the principles of ‘best
practice’ listed under s. 24(2) of the Bill. This list includes issues such as
whether the defendant adhered to the Press Council code of standards,
the extent to which the statement drew a distinction between suspi-
cions, allegations and facts, etc.
The Bill also proposes to redefine the current definition of a defama-
tory statement. S. 2 provides that it is no longer necessary to establish
whether the statement was capable of damaging the plaintiff’s reputa-
tion in the eyes of right-thinking members of society. Under the Bill, it
will be acceptable if it can be established that the statement damaged
the claimant’s reputation in the eyes of reasonable members of society,
i.e. a class of people amongst whom the plaintiff’s reputation mattered.
S. 37 of the Bill proposes to reduce the limitation period on defamation
claims from six years to one year (two years in exceptional cases).
Italy
I. Operative rules
In both situations, the politician has a claim for an injunction against
the editor-in-chief and the publisher of the newspaper in order to
stop the forthcoming publication. If the article has already been pub-
lished, the politician can claim for damages (both for economic and
non-economic loss) against the journalist, the editor-in-chief and the
publisher. Furthermore, the politician can recover an additional sum

of money (‘reparation’) from the journalist. Finally, the politician has a
claim against the editor-in-chief and the publisher for the rectification
of the defamatory material.

Defamation in the press is a criminal offence according to Art. 595
Penal Code (CP) and Art. 13 Press Act.138 The requirements of this
offence are indubitably met if the author of a press article accuses an
identified person of corruption without any legal justification.
From a private law point of view, the offender’s conduct violates the
injured party’s right to honour and personal reputation. This is the
oldest Italian personality right. The former positivist conception of
personality rights (‘pluralistic’ doctrine) did not acknowledge a com-
prehensive right to personality, but only individual rights specifically
protected by Italian legislation. The existence of a right to honour and
reputation was not questioned because of the explicit protection of
honour and reputation in Art. 594 et seq. CP.
However, the old pluralistic doctrine is no longer valid. Now both
the majority of scholars and the Italian Supreme Court (Corte di cas-
sazione) follow the ‘monistic’ doctrine, according to which Art. 2 Italian
Constitution (Cost.) is a direct source of personal rights, enforceable
regardless of whether or not they are expressly acknowledged in spe-
cific Acts of Parliament.139 The various personality rights are no longer
considered as different rights, but as different aspects of the same
right. Consequently, the right to honour and personal reputation is
now seen as just one of the numerous manifestations of the constitu-
tional protection of personality.140
According to Art. 700 Code of Civil Procedure, the person whose hon-
our and reputation are endangered by a forthcoming publication may
seek an injunction.
If the damaging material has already been published, pecuniary and
non-pecuniary remedies can be granted. In relation to non-pecuniary
remedies, under Art. 8 Press Act the injured person has a claim for the
rectification of untruthful and/or defamatory material. The rectifica-
tion is a written declaration denying the truthfulness of the defamatory
138
Legge 8 Feb. 1948 n. 47.
139
Cf. Cass. 10 May 2001 no. 6507, Giust. civ. 2001, I, 2644; Cass. 7 Feb. 1996 no. 978, Foro
it. 1996, I, 1253.
140
See, e.g., Cass. 9 Jun. 1998 no. 5658, Foro it. 1998, I, 2387.
material or clarifying the facts in question by including further infor-

mation. The rectification has to be published in its entirety141 in the
same newspaper which had published the defamatory material, at the
very latest in the second issue after the date of the court judgment.
The claim for rectification is not subject to the same strict require-
ments as the claim for damages. Rectification is granted to all persons
who subjectively consider their personality rights infringed by a publi-
cation, regardless of the requirements of unjust harm and fault under
Art. 2043 Civil Code (CC). One important function of rectification is to
enable information pluralism. Thus, persons who are directly or indir-
ectly involved in items reported by the press have the right to express
their opinion about both the facts in question and their description or
interpretation in the press statements.
An additional remedy for non-economic loss caused by criminal
offences in general is the publication of the court’s sentence in one or
more newspapers (Art. 186 CP). This general remedy only applies if it
is claimed for by the plaintiff. On the contrary, if the criminal offence
is committed by a periodical, under Art. 9 Press Act the court has to
order the publication of the sentence in the same periodical.
In relation to monetary remedies, the offended person can recover
damages from the journalist, the editor-in-chief, the owner of the
newspaper and the publisher, who are made jointly and severally liable
according to Art. 11 Press Act. Art. 185 CP provides that damages for
economic and non-economic loss are recoverable.
Under Art. 12 Press Act, the victim of defamation in the press is
entitled to ‘reparation’ in addition to damages, which is a sort of pri-
vate penalty.142 Reparation can only be recovered from the persons who
committed the crime of defamation in the press, i.e. in principle only
the journalist.143 The amount of reparation depends on the gravity of
the offence and the circulation of the publication.
All remedies, except rectification, are only granted if the harm is
unlawful. In the present case, it is questionable whether or not this
requirement is met. The protection of honour and reputation – and
the constitutional protection of personality rights in general – is not
141
However, the newspaper is allowed to omit statements which constitute criminal
offences and to shorten rectifications which exceed 30 lines (cf. Art. 8 Press Act).
142
Cf. Cass. 7 Nov. 2000 no. 14485, Giur. it. 2001, 1360.
143
A complicity of the editor-in-chief and/or the publisher in the criminal
defamation requires their positive knowledge of the journalist’s defamatory
unlimited, because personality rights may conflict with other consti-

tutionally protected rights. In particular, defamatory material may
be legally justified by freedom of speech, freedom of the press and
freedom of information (Art. 21 Cost.). Therefore, the right to honour
and reputation must be balanced against the freedom of the press,
the journalist’s freedom of expression and the public interest in
information.144
If this balancing depended entirely on a free weighing-up of all of the
circumstances of the case, legal certainty and equality could be threat-
ened. Thus, Italian case law has regulated this balancing in abstracto, by
developing requirements for the lawfulness of press statements which
apply to all press cases. In this regard, the Supreme Court makes a
distinction between the right to report news (diritto di cronaca) and the
right to express criticism (diritto di critica).145
In respect of the right to report news, according to a well-established
Supreme Court opinion, press statements which are detrimental to
one’s honour and reputation can only be regarded as a lawful exercise
of the right to report news if three requirements are met: (a) truthful-
ness (verità); (b) sufficient public interest ( pertinenza); and (c) politeness,
i.e. inoffensive formulation (continenza).146
(a) News can be ‘true’ not only in the sense of absolute, objective
truth, but also in the sense of putative truth (verità putativa). News is
putatively true if it is a result of ‘serious and careful research’,147 i.e.
if the journalist has fulfilled his or her duty of professional care by
assessing the truthfulness of the news.
(b) True news which is detrimental to a person’s honour and reputation
can only be lawfully published to the extent that it is pertinent, i.e.
insofar as there is sufficient public interest in it. Journalists have a
statements: negligent ignorance is not sufficient. Cf. e.g. Cass. 3 Oct. 1997 no. 9672
Giur. it. 1998, 2276.
144
See e.g. Cass. 6 Aug. 2007 no. 17172, www.eius.it/giurisprudenza/2007/104.asp.
145
See, also for further references, A. Pace and F. Petrangeli, ‘Diritto di cronaca e di
critica’, in Enciclopedia del diritto (Milan: 2002) at 338; M. Chiarolla, La diffamazione a
mezzo stampa – analisi critica della normativa tra diritto di cronaca, diffamazione, privacy
(Forlì: 2004); D. Chindemi, Diffamazione a mezzo stampa (Radio-Televisione-Internet)
(Milan: 2006).
146
Cass. 24 Jan. 2000 no. 747, Resp. civ. 2001, 156. This is a firmly established
principle: for a recent confirmation see Cass. 19 Jan. 2007 no. 1205, Guida al diritto
2007, 1269.
147
See, e.g., Cass. 13 Feb. 2002 no. 2066, Foro it. I, 2322; Cass. 19 Jul. 2004 no. 13346,
Giust. civ. 2005, I, 3074; Cass. 16 May 2007 no. 11259, Giust. civ. 2007, I, 1851.
duty to limit their reports to information which is strictly necessary

for satisfying the public interest. Unnecessary defamatory details
should be omitted.
(c) True and pertinent news should be reported in a civilised manner,
by avoiding any offensive formulation.
With regard to the right to express criticism – other than the

right to report news – the expression of one’s own opinion about
facts or judgments of other persons is allowed. The Supreme Court
has recognised that the requirement of objective truthfulness can-
not apply to expressions of criticism, as every interpretation of
facts and human behaviour is a subjective one.148 However, like the
reporting of news, the expression of criticism must concern mat-
ters of public interest and must be politely formulated. If these
requirements are met, even harsh criticism is covered by freedom of
speech.149
Following the approach of the Supreme Court, if a publication reports
news and expresses criticism at the same time, the assessment of the
defamatory nature of the statement cannot be a formal one. It must
give room to the subjective interpretation of the facts and to the criti-
cism the author wishes to express.150
If a press statement (reporting of news and/or expression of criticism)
does not comply with one or more of the abovementioned require-
ments, it is to be regarded as an unlawful infringement of the right to
honour and reputation. However, the question of whether or not those
requirements are met is not just a matter of fact. For each require-
ment, a higher or lower threshold can be established according to the
views of the person interpreting them.

As to situation (a), one may question whether or not a journalist,
who states that a certain politician is corrupt, without alleging any
facts, makes a lawful use of his or her right to express criticism. On
this point, the Supreme Court seems to waver between two opposite
positions. On the one hand, in 2000, the Court held that an article
in a magazine (famous for its left-wing political criticism), which
148
See, e.g., Cass. 24 Jan. 2000 no. 747, Resp. civ. 2001, 156.
149
Cf. ibid.
150
Cass. 24 May 2000 no. 7628, Giust. civ. 2002, I, 2444; Cass. 6 Aug. 2007 no. 17172,
www.eius.it/giurisprudenza/2007/104.asp.
accused a well-known public person of having pursued ‘dishonest

and sometimes criminal undertakings’, without alleging any par-
ticular fact, was covered by the right to express criticism.151 On the
other hand, in 2002, the Supreme Court held that an expression of
criticism should not be axiomatic, but supported by suitable rea-
soning. According to the latter judgment, if an allegation is either
unmotivated or is motivated by non-existent facts, it cannot be seen
as a lawful exercise of the right to express criticism.152 Both judg-
ments seem to be supported by good reasoning. The solution to the
dilemma could be the following: the journalist is still allowed to
express criticism by accusing someone of criminal offences without
mentioning any particular fact, but only in cases where the accusa-
tion is objectively supported by well-known facts. For instance, the
facts which support the allegation that the former politician Bettino
Craxi or the former judge Renato Squillante are corrupt are well-
known; the authors of critical pamphlets are not obliged to mention
those facts when they write about ‘the corrupt politician Craxi’ or
‘the corrupt judge Squillante’.
However, in situation (a), the journalist’s defamatory statement is
neither accompanied by the mention of particular facts, nor supported
by any well-known facts. Therefore, even if the requirements of suffi-
cient public interest and polite formulation are met, the legal justifica-
tion of freedom of speech does not apply.
Regarding situation (b), accusing someone of corruption on the basis
of particular facts constitutes both reporting of news and expression of
criticism at the same time. For facts which support the allegation that
a well-known politician is corrupt there is always a sufficient public
interest. Supposing the defamatory statement is politely formulated,
the question is whether or not the journalist has fulfilled his or her
151
Cass. 24 Jan 2000 no. 747, Resp. civ. 2001, 156. The statement in question was
the following: ‘And here they are (… names of several Italian politicians), who
are going again, with their clean faces, along routes which Gelli and Ortolani
had paved and soiled, in order to adapt them to their dishonest and sometimes
criminal undertakings (see the intimate relationships between Gelli and the state
executioner in Argentina and Uruguay.)’ Ortolani sued the journalist, the chief
editor and the publisher for damages, but was unsuccessful.
152
Cass. 15 Jan. 2002 no. 370, Dir. aut. 2004, 362. In this particular case, the mayor of
a small town had said, during a town council meeting, that a certain businessman
had been entrusted with public works because he was the secretary of the
local Socialist Party and that then the work relationship ended because of the
duty of professional care in assessing the truthfulness of the alleged

facts.
According to well-established case law, no privileged sources of infor-
mation exist. Journalists are not justified merely because they report
another person’s true declarations. Journalists must not only verify
the reliability of the sources of information, they must also assess the
truthfulness of the facts themselves.153 The same principle is laid down
in the self-regulatory Charter of Duties of Journalists: ‘The journalist
must always verify the information obtained by their sources, assess
their reliability and check the origin of the news to be disseminated.
In doing so, they always have to guarantee the substantive truth of the
facts.’154
The question is how far this duty extends. Sometimes the Supreme
Court has been very strict. For instance, it held the accurate report-
ing of an actual complaint made by a nurse before a lower court to
be unlawful where the facts complained of were false. However, this
was only found out after publication. The Supreme Court held that the
journalist’s duty was to assess the truthfulness of the facts alleged in
the nurse’s complaint.155
Nevertheless, in some recent judgments, the Supreme Court follows
a more reasonable position. Accordingly, if the facts mentioned in the
news are alleged in official documents such as judicial acts or parlia-
mentary proceedings, the requirement of putative truth is met, pro-
vided that the source of the information is quoted in the journalist’s
report.156
However, in situation (b), the facts are not mentioned in any official
document. The journalist did not undertake any serious and careful
research. He/she just reported facts which had been related by a third
person. Therefore, the news is neither objectively nor putatively true
and no legal justification applies.
businessman’s lack of professional capacity. The businessman successfully sued the

mayor for damages.
153
See, e.g., Cass. 5 May 1995 no. 4871, Foro it. 1996, I, 657; Cass. 4 Jul. 1997 no. 6041;
Cass. 2 Jul. 1997 no. 5947; Cass. 9 Apr. 1998 no. 3679, Foro it. 1998, I, 1834.
154
Consiglio nazionale dell’ordine dei giornalisti, ‘Carta dei doveri del giornalista’
(1993), www.edizionets.com/etichecomunicazione/etica_com_pubblicitaria/carra_
doveri_giomalista.pdf.
155
Cass. 3 Mar. 2000 no. 2367, Danno e responsabilità, 2000, 490.
156
Cass. 2 Nov. 2000 no. 14334; Cass. 24 May 2002 no. 7628, Foro it. 2002, I, 2322.
The Netherlands
I. Operative rules
In situation (a), the politician has a claim against the journalist, the
publisher and the editor-in-chief for economic and non-economic dam-
ages. He can also claim for an injunction and for rectification. Whether
or not the journalist has a claim in situation (b) depends on whether
the newspaper relied upon the third party for good reasons.

Freedom of the press is of central importance in this case (Art. 7
Constitution; Art. 10 ECHR; Art. 19 ICCPR). However, Art. 6:162 of the
Dutch Civil Code (BW ) implies that every exercise of a right has its
limits.157 For example, in respect of the right to privacy, these limits
include the right to one’s honour and/or reputation. The circumstances
that can be taken into account in this case include:158
(a) the nature of the suspicion and the seriousness of the foreseeable
consequences of publication;
(b) the seriousness of the imputation for the interest of society;
(c) whether the publication was based on facts;
(d) the way in which the imputation has been published;
(e) whether there was a less harmful way to reach the objective;
(f) the capacity/authority of the person who provided the
information;159
(g) whether the person who invokes his/her right to privacy is a public
figure and/or participates in the broader public discussion in society;
and
(h) the nature of the publisher and its method of gathering the
information.
If defamatory or accusing facts are to be published or have been

published, two interests have to be balanced. The first is the interest
157
HR 5 Jun. 1987, NJ 1988, 702 (Goeree-case); HR 2 Feb. 1990, NJ 1991, 289 (Goeree-
case). It is likely that the provision of Art. 6:162 meets the requirements of ECtHR
25 Mar. 1985, NJ 1987, 900 (Barthold) and ECtHR 20 Nov. 1989, NJ 1991, 738 (Markt
Intern). With respect to the standard of Art. 21 Auteurswet which most likely
meets the requirements of ECtHR 11 Jan. 2000, see NJ 2001, 74 (News Verlag). See
G. A. I. Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 10.
158
HR 24 Jun. 1983, NJ 1984, 801 (Gemeenteraadslid). These circumstances do not bind
the judge in other cases and the list is not limited: HR 8 Mar. 1985, NJ 1986, 437
(Herrenberg); HR 6 Jan. 1995, NJ 1995, 422 (Parool-Van Gasteren).
159
HR 27 Jan. 1984, NJ 1984, 803 (Ombudsman).
of a democratic society in being properly informed about facts which

might detrimentally affect that society. The second is the interest of an
individual not to be too imprudently accused openly by the press.
In respect of an individual’s personal life, it is regarded as contrary
to proper social conduct to publish defamatory facts about persons
without having an objective basis for the statements that have been (or
are going to be) published (circumstance (c) above).160
In 1995, the Press Council in the Netherlands (Raad voor Journalistiek)
published several rules of thumb in its annual report. However, these
rules do not add substantially to the standards described above. In
answering the question of whether information may be used, the Press
Council suggests an accurate and conscientious balancing of the inter-
est in publication (with regard to the actuality and interest of the sub-
ject matter) and the confidentiality interests of the particular individual
implicated. Special weight is given to the protection of privacy.161 If the
publication may be incriminating for an individual, the Press Council
adopts a strict standard of the right to hear and be heard.162 This balanc-
ing of interests is in line with the decisions of the ECtHR.163
Due to the fact that the ECtHR has repeatedly referred to the profes-
sional rules of the press in assessing conduct, it has been argued that
it is appropriate to make these rules more substantial from a legal
perspective. The procedure before the Press Council and the applica-
tion of the code of conduct is presently too noncommittal. The argu-
ments of journalists tend to be torn between two opinions. The first,
in line with the freedom to express one’s opinion, is that everyone
has the freedom to be a journalist and therefore professional rules of
conduct should not exist. The second is that journalists can claim a
special position, for example, the right of nondisclosure. Therefore,
it has been argued that Dutch judges should focus in more detail on
standards for professional conduct. That would provide the journalists
with a possibility to check whether they comply with these standards
or not.164
160
HR 24 Jun. 1983, NJ 1984, 801; Schuijt, Losbladige Onrechtmatige Daad, nos. 26, 27, 36,
37.
161
Raad voor Journalistiek, Annual Report 1995, vuistregel 7.3, 7.4 (especially
7.4.19–7.4.11).
162
Raad voor Journalistiek, Annual Report 1995, vuistregel 7.4.6.
163
E. J. Dommering, case note on ECHR, 18 May 2004, NJ 2005, 401 (Le Grand Secret).
164
E. J. Dommering, case note on ECHR, 17 Dec. 2004, NJ 2005, 369 (Pedersen &
Baadsgaard v. Denmark).
The publication of defamatory statements about a public person

without any reference to supporting facts165 is unlawful. If the state-
ment has already been published, the person is entitled to claim for
damages. According to Art. 6:95 BW, economic and non-economic
damages have to be distinguished. Damages for economic loss can be
recovered. Damages for non-economic loss can only be recovered if
the requirements of Art. 6:106 BW have been met.166 Since it is clear
that the politician’s honour or reputation has been impugned, he has
a claim for non-economic damages. According to Art. 6:106 BW, the
judge assesses non-economic damages fairly. Besides circumstances
concerning the publication itself, the judge can take the profits that
are derived from publication by the newspaper into account (Art.
6:104 BW ).
Art. 6:104 BW only applies if the injured party actually suffered
loss.167 If he/she is infringed in his/her person, non-economic loss has
occurred and so there is the possibility of applying Art. 6:104 BW.
If, however, the patrimonial interest was the reason for the unlaw-
fulness of the publication, it has to be proved that this interest was
indeed harmed.
Art. 6:104 BW does not provide the injured party with a right to have
the wrongdoer turn over the entire profits. It maintains that the judge
can assess the damages on the basis of the net profits. The judge is not
entitled to assess the damages in this (abstract) way, unless he/she has
been asked to do so by the injured party and the injured party based
this request on facts. The injured party does not have to establish the
amount of profits. This implies that the judge needs to obtain informa-
tion from the wrongdoer about the net profits. Although the wrong-
doer does not have a clear duty to unveil information about profits,
without this information the judge will assess the profits according to
his/her insights based on the information which is available.
The injured party may choose to base his/her claim for compensa-
tion either on Art. 6:96 BW or on Art. 6:104 BW. He/she cannot obtain
both compensation for any missed profits and the profits obtained by
165
HR 27 Jan. 1984, NJ 1984, 802.
166
Van Harinxma thoe Slooten, Toegang tot het recht in perszaken (Den Haag: 2006)
explains that due to procedural difficulties (like uncertainties relating to
the outcome of a legal procedure and the costs of a procedure) it can be hard
in practice to get compensation when the press infringes someone’s right to
personality.
167
Parlementaire Geschiedenis, Invoering, Boek 6, at 1266–70; HR 24 Dec. 1993, NJ
1995, 421.
the wrongdoer. He/she can, however, base his/her claim for damages
both on Arts. 6:96 and 6:106 BW (in which case he/she has to introduce
facts that support the claim).
If the claim is based on Art. 6:96 BW and Art. 6:104 BW, it is the
judge who ultimately decides which provision the compensation is to
be based on. If he/she considers Art. 6:104 BW to be applicable, he/she
has to assess the damages according to Arts. 6:96 and 6:104 BW and has
to choose the provision which is most favourable to the politician.
According to Art. 6:95 BW, the injured party can request compensa-
tion for loss and/or for deprived profits. He/she has to prove that the
unlawful act of the author is the cause of the harm suffered by him/
her. It is important to be aware of the two-step method that follows
from Art. 6:98 BW, in combination with Art. 6:162 BW, and that method
has to be used to establish causation.168 According to this method, the
requirement of condicio sine qua non (Step 1) is to be distinguished from
the so-called ‘reasonable imputation’, which is based on all of the cir-
cumstances of the case (Step 2).169 The rule of ‘reasonable imputation’
is normative and as such is based on the different values that form the
very foundations of civil law as a whole.
The second step is part of the requirement of a causal relationship.
The condicio sine qua non requirement is also known as the ‘but for’ test.
According to this requirement, an act or omission is the cause of par-
ticular damage if, ex post, it is established that the damage would not
have occurred ‘but for’ the act or omission, judged on the basis of the
best knowledge and experience at the time. In other words, in order
to determine whether an act or omission was the cause of the loss,
one should hypothetically eliminate the act or omission and consider
whether or not the loss would still have occurred without it. If the loss
does not occur when the act or omission is eliminated, the act or omis-
sion is a condicio sine qua non for the loss.
One of the important goals of this knowledge-based approach of the
condicio sine qua non test is to protect the defendant from compensating
damage that has not been caused by his/her unlawful act or breach of
168
C. Asser and A. S. Hartkamp, Verbintenissenrecht, De verbintenis in het algemeen 4-I
(Deventer: 2004), nos. 426, 429; A. S. Hartkamp and M. M. Tillema, Contract Law in
the Netherlands (The Hague: 1995) at 144 and 145; J. H. Nieuwenhuis, ‘Eurocausaliteit’
(2002) Tijdschrift voor Privaatrecht at 4–11. This two-step method is applied in almost
all important jurisdictions. See J. Spier, Unification of Tort Law: Causation (The
Hague: 2000) at 127 et seq.
169
Asser-Hartkamp, 4-I (2004), nos. 424–41b.
contract.170 The defendant is not obliged to repair damage that would

have been suffered anyway without regarding his/her unlawful act or
breach of contract.171 If an act or omission is a factual cause of the dam-
age, the next step is to assess whether the act or omission is a legal
cause.
To decide whether an act or omission that is a condicio sine qua non is
also a relevant legal cause, Art. 6:98 BW requires a second, normative
assessment. This requirement expresses the idea that in the law, the
test of condicio sine qua non is not sufficient in order to establish the
reasonableness of the defendant’s liability for the damages claimed.
This rule employs a multi-factor approach and is also known as the
rule of ‘reasonable imputation’. As stated above, the rule of ‘reason-
able imputation’ is normative and as such is based on the different
values that form the very foundations of civil law as a whole. This
is the reason why several of the arguments used in relation to the
other requirements (foreseeability, nature of the damage, nature of
the liability, nature of the breach of duty) for liability, for instance
breach of duty and contributory negligence, are also used in relation
to the attributability (‘reasonable imputation’) of damages based on
Art. 6:98 BW.
With regard to the nature of the damages, damages are more readily
regarded as attributable in respect of physical damage as opposed to
economic loss. In relation to economic loss or deprived profits, the fore-
seeability has to be fairly considerable. If that is the case, for instance
because the victim is dependent on his/her reputation for getting job
or project offers, the pecuniary damage can be attributed to the liable
person.172
Injunction If the statement has not yet been published, the politician
is entitled to ask for an injunction (Art. 3:293 BW ) to prevent the news-
paper from publishing the article, since publication of the information
is unlawful (see above).
If the statement has been published, the politician can ask for rec-
tification. If the politician’s interests still continue to be an issue, he
can also ask the publisher of the newspaper to recall the issues of the
newspaper.
170
J. H. Nieuwenhuis, ‘Eurocausaliteit’, at 11–12.
171
Asser-Hartkamp, 4-I (2004), no. 425.
172
Ibid. no. 433.
If negative statements about a public person have been published with
reference to facts alleged by a third party, whether the publication of
these facts is unlawful or not depends on several conditions. An impor-
tant condition is whether the information provided by the third party
can be taken seriously (circumstances (c) and (f) above). This depends
on the substance of the information that has been provided and on the
capacity of the third party who gave the information.173 Merely refer-
ring to the fact that the information has been provided by a third party
is not enough to prevent the publication from being unlawful. The jour-
nalist has to check whether the information concerned can be taken
seriously, for example because it is based on facts. He/she can do so by
trying to source out other third parties who can confirm the informa-
tion, or he/she can check the facts with the politician him- or herself.
Another condition is whether publication of the information is in the
public interest (circumstance (b) above). If there is considerable public
interest then being less scrupulous with the information is more justi-
fied than when there is no public interest concerned but only a need
for sensation.174
Assuming that the newspaper was not allowed to rely upon the
information given by the third party, the answer is the same as under
situation (a).
If the newspaper relied upon the third party for good reasons and the
facts have already been published, the politician can ask for rectifica-
tion afterwards.175 If the facts have not yet been published and the polit-
ician informs the newspaper about the inaccuracy of the facts, it is then
unlawful to publish the facts afterwards. In that case, the politician has
a claim if the facts are published regardless and he can ask for an injunc-
tion to prevent the newspaper publishing these false facts in the future.
Portugal
I. Operative rules
In both hypotheses (a) and (b), the politician can claim damages against
the journalist and the publisher. If the politician was informed before-
173
Schuijt, Losbladige Onrechtmatige Daad, nos. 38, 70.
174
Ibid. no. 32.
175
HR 24 Jun. 1983, NJ 1984, 801 (Gemeenteraadslid).
hand about the forthcoming article, he is entitled to an injunction to

stop the publication.

Cases of this kind are very common in Portugal, both in civil law and
criminal law. The Portuguese Constitution (Constituição da República
Portuguesa, CRP) guarantees the right to inform and be informed and
freedom of the press as fundamental rights (Arts. 37 and 38); it also guar-
antees the right to personal honour and reputation (Art. 26). These rights,
like all fundamental constitutional rights, are directly enforceable. Thus,
there is often a conflict between these fundamental rights: on the one
hand, the right to honour and (good) reputation and, on the other hand,
the freedom of the press and the right to inform and to be informed.
There is a doctrinal division between two basic assumptions – one
assuming that there is, in this kind of case, a conflict of rights which
have the same level of dignity; another assuming that the right to hon-
our and reputation is superior to the freedom of the press and the right
to inform and to be informed. This second position finds support in the
fact that the right to honour and reputation is a personality right and,
therefore, an ‘ontological fundament of law’. The doctrine concerning
a conflict of rights which are on the same level is more frequently fol-
lowed, but the doctrine of the superiority of personality rights has been
gaining ground in more recent decisions. The superiority of the rights
to honour and reputation over the rights to inform and be informed
is also based on Art. 37(3) CRP, which states that offences committed
through the misuse (abuse) of the rights to inform and be informed are
subject to the general principles of criminal law and shall be judged by
the criminal courts.
In addition to the Constitution, the right to honour is also protected
by the Criminal Code (Código Penal, CP), which punishes defamation
and insult.176
Also relevant in this regard is the Press Act (Act no. 2/99 of 13 January,
Lei de Imprensa, LI ), Art. 3 of which stipulates that the right to one’s good
name, the confidentiality of the intimacy of private life, the right to
one’s image and the right to one’s own words are the limits to the
freedom of the press. Furthermore, journalists shall strictly respect
176
The Portuguese is ‘difamação’ and ‘injúria’: the former is indirect defamation (i.e.
it is not directly addressed to the victim but to others), while the latter is direct
defamation (i.e. directly addressed to the victim).
the accuracy and objectivity of information. Therefore, the issue is not

actually one of reporting and publicising the information, but the way
in which this is done. This was confirmed by the Portuguese Supreme
Court of Justice (Supremo Tribunal de Justiça, STJ ), in a decision dated 9
October 2003.177 With regards to journalism, there is a profound dif-
ference between fact and opinion. What remains factual and truthful
is, in principle, lawful; when it comes to the personal and subjective
opinion of the journalist, it all depends upon the necessity and the
proportionality of the comments vis-à-vis the lawful aim of informing.
Arts. 24 to 27 of the Press Act grant the right of reply to those who are
referred to in a text or image that could affect their reputation and
good name, even if it is indirect.
In relation to civil liability, Art. 29 of the Press Act refers back to
the general rules. However, in particular, it determines the joint liabil-
ity of newspaper companies when an article or image is inserted in a
periodic publication with the consent of the editor or his/her legal rep-
resentative. Civil liability is governed by the general rules (Art. 483 et
seq. of the Civil Code): there must be unlawfulness, fault, damage and
causation. The burden of proof of both the knowledge and the non-
opposition of the editor-in-chief falls on the claimant.
In addition, in connection with the exercise of journalism, Art.
14(a), (c) and (f) of the Journalists Statute (Act no. 1/99 of 13 January,
Estatuto do Jornalista, EJ ) determines that journalists should be rigor-
ous and impartial, refrain from formulating accusations without evi-
dence, respect the presumption of innocence, and not gather images
or declarations which may harm someone’s dignity. Furthermore, the
Journalists’ Union Code of Practice178 contains principles that also con-
tribute to determining the lawfulness of their conduct.
177
All decisions of the STJ quoted can be found at www.dgsi.pt/.
178
Portuguese journalists are governed by a Code of Practice that contains the
following principles:
1. Journalists shall report the facts accurately and exactly and shall interpret
them honestly. The facts must be proved, with a hearing of the parties
having a reasonable interest in the case. Distinction between news and
opinion must be made clear in the eyes of the public.
2. Journalists must combat censure and sensationalism, and shall consider
accusation without proof and plagiarism to be serious professional faults.
3. Journalists must fight against restrictions to access to sources of information
and attempts to limit freedom of expression and the right to inform. The
journalists’ obligation is to divulge offences against these rights.
Finally, Art. 70 of the Civil Code determines that:

1. the law protects individuals against any unlawful offence or threat
of offence against their physical or moral persona;
2. regardless of any civil liability, the person threatened or offended
may apply for measures adequate to the circumstances of the case to
prevent the threat from being realised or to attenuate the effects of
an offence already committed.
This regime does not require the existence of fault on the part of the
agent; objective unlawfulness is sufficient. In addition, in general, it
only applies to individuals, not to corporate persons. The measures to
defend personality may be preventive, decreed in light of the danger
of the injury, or may be attenuating when the injury has already been
committed.179 The right to honour has long been perceived as one of
4. Journalists must employ loyal means to obtain information, pictures or
documents and must abstain from abusing the good faith of others. Their
identification as journalists is the rule and other procedures are warranted
only for reasons of unquestionable public interest.
5. Journalists must assume responsibility for all their work and professional
activity and they shall also promptly rectify any information seen to be
inexact or false. Journalists shall also refuse those acts contrary to their
conscience.
6. Journalists shall identify their sources as the fundamental criterion.
Journalists must not reveal their confidential sources of information in
court, nor disregard commitments entered into, unless an endeavour has
been made to try to use them to channel false information. Opinions must
be attributed at all times.
7. Journalists must safeguard the presumption of innocence of the accused
until the sentence is declared res judicata. Journalists must not directly or
indirectly identify the victims of sexual crimes and delinquents who are
minors, and they must forbid the humiliation of people and exacerbation of
their pain.
8. Journalists must reject the discriminatory treatment of people on the basis
of colour, race, creed, nationality or gender.
9. Journalists must have regard for the privacy of citizens except when
the public interest is at stake or the person’s conduct is manifestly in
contradiction with the values and principles that he publicly defends.
Journalists undertake, before gathering statements and pictures, to take into
account the serenity, freedom and responsibility of the people involved.
10. Journalists must refuse duties, tasks and benefits that could compromise
their status of independence and their professional integrity. Journalists
must not take advantage of their professional position to broadcast news on
matters in which they have an interest.
179
A remarkable feature of the Portuguese personality rights legal framework is
that, in contrast to most of the other European legal systems, it relies a lot more
on injunctions than on compensation. Although Art. 70(2) CC outlines both
legal instruments for the protection of a person’s personality rights, it puts a
the specific personality rights which can be deduced from the general
clause of Art. 70 CC.180
Art. 70(2) CC entitles the person whose personality is threatened
to be offended to ask for measures adequate to the circumstances of
the case to prevent this threat from materialising. These measures to
defend personality are applied by quite an expedited, simplified pro-
cedure, governed by Arts. 1474 and 1475 of the Civil Procedure Code
(Código de Processo Civil, CPC). This procedure only applies to matters
of urgency, and grants the judge very wide discretionary powers. The
judge is free to examine the facts, collect evidence, order enquiries
and collect such information as may be deemed appropriate. He/she
may also refuse evidence which is considered unnecessary. A lawyer
does not have to be appointed, save in the appeal stage, and sentence
is passed within 15 days. In the decision, the court is not subject to
strict legality criteria. The decision may be altered in the event of later
circumstances. Appeal is only allowed in relation to what is decided on
the basis of criteria of convenience. The court is not limited by what
the claimant pleads and may decide in a different manner. The special
characteristics of the personality procedure do not allow the inclusion
of a request for damages, which must be subject to a separate action in
keeping with the common rules. In any case, the effectiveness of this
injunctive relief is very high and, therefore, Portuguese courts make a
very extensive use thereof.
Moreover, a specific cause of action for injuries to reputation and
honour is provided by Art. 484 CC: ‘Whoever affirms or spreads a fact
which is able to harm the good name or reputation of a natural per-
son or legal entity, is liable for the damage caused.’ According to con-
solidated Portuguese case law, this provision grants the victim a right
to damages.181 Furthermore, Art. 496 CC expressly states that ‘when
determining the amount of the damages, non-pecuniary damages
have to be taken into account, as far as their seriousness warrants legal
protection’.
The accusation of corruption is certainly harmful to a politician’s
honour and reputation. Therefore, if no legal justification applies,
greater emphasis on the importance of an injunction for the protection thereof.

In addition, Portuguese case law has also always placed more importance on
injunctions. The amount of compensation awarded by Portuguese courts is
usually low, which shifts the focus from claiming for compensation to the use of
injunctions.
180
STJ 13.03.1986. 181 STJ 10.10.2002.
the publication of the newspaper article in question would give rise

to both civil liability under Arts. 70 and 484 CC, and criminal liability
for defamation under Art. 180 CP. These two liabilities can be assessed
by a civil and a criminal court respectively in parallel procedures.
However, in case the politician decides to fi le a criminal complaint
for the violation of Art. 180 CP, the request for the payment of dam-
ages can be made within the criminal procedure (Art. 129 CP, on civil
liability for damage arising from a crime). Although made within a
criminal procedure, this request is still regulated by the civil liabil-
ity provisions contained in the Civil Code. Furthermore, even if the
accused is acquitted in the criminal procedure, the court may still
require him/her to pay damages (Art. 377 Criminal Procedure Code,
CPP). If the criminal court does not possess the necessary elements to
establish the amount of damages, it is for the civil court to determine
the amount of damages in a later court procedure (Art. 82(1) CPP).
The criminal court can also, of its own will or upon request, deter-
mine provisory damages or refer the parties to the civil courts if it
does not think it can provide a rigorous decision or doing so would
require intolerable delays to the criminal procedure (Art. 82(2) and
(3) CPP). Finally, although testimonies and expert opinions (but not
confessions, Art. 355(3) CC ) given in a judicial procedure can, under
certain circumstances, be used against the same party in another
judicial procedure (Art. 522 CPC ), judges retain their autonomy in
appreciating the value of evidence in each procedure (Arts. 655 CPC
and 127 CPP).
Both civil and criminal responsibility for press statements harming
one’s honour and reputation might be excluded by a lawful exercise
of the constitutionally guaranteed freedom of the press (Art. 37 CRP).
According to Art. 37(4) CRP, when the exercise of freedom of the press
infringes a legal provision, any natural or legal person harmed thereby
has the right of reply and rectification, and is entitled to compensation
for the damage. Several decisions of the STJ have stated that once the
journalist proves that the affirmation published was true or that he/
she had legitimate reasons to believe so, there is no place for the pay-
ment of damages (exceptio veritatis).182 The publication of a true fact only
gives rise to civil liability if it concerns the private life of the person
envisaged and is offensive or uses prohibited expressions,183 or if the
182
STJ 17.03.93, 5.03.1996, 26.09.2000, 14.05.2002, 5.12.2002.
183
STJ 27.05.1997.
specific context leads to a particular attack on the honour and reputa-

tion of that person.184
Although the above case law approach is the prevalent one in
Portugal, some decisions have acknowledged an obligation to compen-
sate the damage even if the fact that harms the honour is true, unless
the publication of this fact serves a public interest.185 However, these
decisions seem to be in the minority. In any case, the balance between
the fundamental, constitutionally protected rights to honour, reputa-
tion and freedom of the press is to be reached according to the princi-
ples of proportionality, necessity and adequacy.186
Therefore, when reporting facts, the journalist must compose the
text in the manner that is least harmful to the reputation of the per-
sons referred to in it. This means that, even though the journalist has
the right (or even the duty) to report a fact and to inform the public
about it, he/she must not do so in a way which exceeds what is strictly
necessary. The right and the duty to inform do not entitle the journal-
ist to unnecessarily offend and harm the honour and personal reputa-
tion of persons.187
In the case at hand, the politician may, at the outset, use the right of
reply and publish such a reply as he deems to be adequate in the same
newspaper, occupying the same space and with the same emphasis as
the original statement. He may also complain to the High Authority
for the Media if this right is not respected, as well as lodge a complaint
with the High Authority against the newspaper should he consider that
the publication of the text constitutes conduct that could infringe the
legal rules applicable to the media (Art. 4 of Act 43/98 of 6 August).
The politician targeted may also bring criminal proceedings against
the journalist who wrote the published text and against the editor,
the assistant editor, the sub-editor or whoever specifically substitutes
them, if they failed to prevent the publication despite having the power
184
STJ 10.10.2002.
185
STJ 26.04.94, 3.02.99.
186
STJ 5.03.1996, 29.10.1996, 26.09.2000, 14.05.2002.
187
Court decisions in this sense are common. See, e.g., STJ 26.09.2000 (in the event of
a collision of the rights to freedom of the press and of information and expression
of thought, both having the same constitutional hierarchy, one must seek to
harmonise them, applying the provisions of Art. 335 CC. This means that freedom
of expression cannot, in principle, threaten the right to good name and reputation,
unless the public interest is at stake, which goes beyond the former, provided that
the disclosure is made so as not to exceed what is required for the said disclosure);
STJ 27.05.1997; STJ 05.03.1996, BMJ – Boletim do Ministério da Justiça – 455, 420.
to do so. If the article can be qualified as an opinion (and not as news)

only the author may be held criminally liable. The qualification of the
article as news or as opinion is therefore very important, a distinction
that will have to be determined exclusively by the court.
The journalist may defend him or herself, alleging that the imput-
ation was made in the pursuance of legitimate interests, for example,
the defence of the general interest and of the good functioning of the
political system and he/she may endeavour to prove the veracity of what
he/she wrote (exceptio veritatis). If he/she is unable to prove the veracity of
the imputation, he/she will have to convince the court that he/she had
serious grounds to believe it to be true in good faith. With regard to
proving good faith, the court will consider whether or not the journal-
ist fulfilled the duty of information as imposed by the circumstances of
the case, which is reflected in the final instance with due regard to legis
artis and the rules of good practice. The duty of not making accusations
without proof and respect for the presumption of innocence as imposed
by the Journalists’ Statute (Art. 14(c) EJ) and for the guidelines of their
Code of Practice are of particular importance in this regard.
Specifically with regard to situation (a)

The journalist’s action is clearly unlawful. It corresponds to committing
the crime of defamation (Art. 180 CP), aggravated by the fact that it was
committed by means or in circumstances which facilitated the dissem-
ination of the defamatory statements (Art. 183(1) (b) CP and Art. 30(2) LI).
It constitutes abuse of freedom of the press because of the violation of
the right to one’s good name, enshrined in Art. 3 LI. It grants the injured
party the right of reply in the same newspaper (Arts. 24–27 LI). The jour-
nalist’s action also infringes the duty imposed by the Journalists’ Statute
not to make accusations without proof and to respect the presumption
of innocence (Art. 14(c) EJ and the respective Code of Practice).
The politician targeted is also entitled to be indemnified for eco-
nomic loss and for pain and suffering (Art. 29 LI and Art. 483 CC). The
amount of damages depends on, inter alia, the journalist’s degree of
fault.188 The text written by the journalist must be held to be an opin-
ion article since it is not supported by facts; to have the nature of a
news article it would have to be factual. Therefore, if the journalist
is clearly identified as the author of the text which was published,
he/she alone will be liable. However, if the article was published with
188
STJ 27.05.1997.
the consent of the editor then the newspaper company will also be
jointly liable along with the journalist.
Compensation may be requested in criminal defamation proceed-
ings if the claimant lodges a complaint with the Public Prosecutor, or
in the civil proceedings if the injured party decides not to raise the
criminal issue. The injured party often restricts him/herself to secur-
ing civil compensation. As a result of the defendant’s better procedural
position in criminal proceedings, it is easier to condemn him/her in
civil proceedings.
In accordance with Art. 70 CC, the politician may bring special pro-
ceedings before the civil courts for the protection of personality and
claim against the journalist for whatever he deems adequate and appro-
priate to remedy the injury suffered. If the politician was informed
beforehand about the forthcoming article, he is entitled to obtain an
injunction from the civil court to prevent the publication. This has
already occurred in a case where a well-known architect applied for
an injunction knowing that a magazine was about to publish erotic
photos of him.189 Disobeying this kind of injunction is criminally pun-
ishable.190 Injunctions for the protection of personality may also be
obtained after the offence; in this situation they shall be deemed to
diminish the harm already caused and to avoid future harm if pos-
sible. The court may direct the seizure of the newspaper and order the
journalist to publish a rebuttal of what he/she had published or even to
publicly apologise. However, the court must be careful in weighing the
proportionality, the adequacy and the reasonableness of the measure
that it decrees. It must not allow the attenuating measure to become a
retort or a vengeance.
Specifically with regard to situation (b)

If the journalist merely reproduces facts publicly affirmed by another
and does so correctly, only that other person will be criminally liable.
Nevertheless, if the facts are relayed to him/her in confidence by another
person who is the source of this information, and if these facts are false,
the journalist’s liability will be neither excluded nor diminished. The
risk of the accuracy and reliability of sources of information lies with
the journalist. The STJ decided on 5 March 1996191 that ‘conduct which
189
STJ 5.02.1991.
190
Disobeying a court injunction is criminally punishable according to Art. 348 CP.
191
STJ 5.10.1996, BMJ 455, 420.
affects the honour of another person is unlawful when it attributes dis-

honourable facts to the latter without the support of reliable sources’.
Scotland
I. Operative rules
The politician has a claim in defamation against the journalist, pub-
lisher and editor-in-chief. He will be entitled to an injunction and
damages.

The law of defamation regulates the actionability of the injurious pub-
lication of statements or utterances about others. Defamation is a civil
wrong that gives rise to an action for damages. It covers all communi-
cations which are injurious or which tend to lower the person in the
eyes of society.192 The law distinguishes between written and spoken
imputations. Whereas written defamation is normally referred to as
libel and oral defamation as slander, the demarcation is of less impor-
tance in Scots law as it is in English law.193 Defamation as a civil wrong
is governed by the legal principles expounded by the institutional
writers,194 as supported by the judicial authorities and supplemented
by statutory regulation relating to damages195 and particular defences
such as privilege.
A separate claim of verbal injury can be sustained in cases where
non-defamatory statements may nevertheless be actionable because of
malice and falsity.196 This category refers to all actionable statements
that are not in themselves defamatory. It has been referred to with
192
This classic English reasonable man test was pronounced by Lord Atkin in Sim v.
Stretch [1936] 2 All ER 1237. The Scots authorities such as Brownlie v. Thomson (1859)
21 D 480, 485 and Duncan v. Scottish Newspapers Ltd. 1929 SC 14 apply a broader
view: ‘What meaning would the ordinary reader of the newspaper put upon the
paragraph “complained of ?”’, per Lord Anderson in Duncan at 20.
193
The action is simply referred to as defamation, see W. M. Gloag and R. C.
Henderson, The Law of Scotland (11th edn., Edinburgh: 2001) at para. 31.1.
194
See Stair Memorial Encyclopaedia (Edinburgh: 1996) Vol. 15, para. 525 et seq.
195
Defamation Act 1952, Ch. 66; Defamation Act 1996, Ch. 31. Parts of the 1952 Act
are still in force. The 1996 Act did not fully repeal the previous statute.
196
Verbal injury includes slander of property, title or business, holding up pursuer
to public hatred, contempt and ridicule, third party slander and other malicious
falsehoods, see Stair Memorial, Vol. 15, para. 557; K. Norrie, Defamation and Related
Actions in Scots law (1st edn., Edinburgh: 1995) Ch. 1, p. 5. It has since been given
statutory sanction in relation to damages for defamation and verbal injury under
authority as a Scottish equivalent of the tort of malicious falsehood and

is less commonly encountered than defamation.197
Although Scottish authorities have, on occasion, made reference to
the Roman law action of convicium as constituting an action in itself,
this has recently been refuted with authority.198 It seems that convi-
cium was originally used by the institutional writers in its strict Roman
sense of defamation, but has recently been used, possibly erroneously,
in the context of malicious falsehood and is only to be equated with
that English action.
Defamation constitutes a form of strict liability where malice and
intent are irrelevant. In contrast, an action for verbal injury can only
be raised where it can be shown that the injurious statements were
inspired by malice or dolus malus. In the latter case of verbal injury, the
pursuer must prove that the statements were untrue and were made
with intent to injure.199
Whether or not the article is defamatory is a question of law for the
court, which will be decided after a preliminary summary hearing200
on whether the ‘statement is arguably capable … of bearing a particu-
lar meaning or meanings attributed to it’.201
In general, not only the statement complained of but also the head-
ing and context of the publication may negate any possible defamatory
effect. Under the notion of innuendo, a statement that is harmless in
itself may, however, have connotations or a secondary meaning which, if
read or understood in a certain way, could be defamatory. A distinction
is drawn between a particular turpitude and verba jacantia or vague abuse,
so that the latter will not constitute defamation.202 The final question as
the Defamation Act 1952, s. 3 and subsequently the Damages (Scotland) Act 1976,
Ch. 13, s. 2(4) and the Damages (Scotland) Act 1993, Ch. 5, s. 3.
197
See Stair Memorial, at para. 557.
198
Ibid. at para. 558.
199
The facts given in question one would support a claim in defamation but not one
for verbal injury, as there is no malice.
200
The Defamation Act 1996 now allows claims to be dealt with in summary
proceedings, so that a decision as to whether or not the case should proceed to
trial is made before a single judge under s. 8(3) 1996 Act. These provisions apply to
both Scotland and England, see s. 8(5) 1996 Act. Defamation cases trials in Scotland
would normally be heard before a jury at the Court of Session. There appears to
be no limitation on the jurisdiction of a sheriff court to hear defamation cases,
although there is only one reported trial, Caldwell v. Bayne, 1936 52 Sh Ct Rep 334;
see Norrie, Defamation and Related Actions at 164.
201
S. 7 Defamation Act 1996.
202
See J. Erskine in J. Reid (ed.) Principles of the Law of Scotland (18th edn.,
Edinburgh: 1890) at para. 13.
to whether, in the circumstances, an interpretation of the newspaper

article renders it defamatory or innocent is left to the court.203
Imputations or allegations of crime, a lack of moral integrity or dis-
honesty, either in general society or in the category of persons to which
the pursuer belongs, are defamatory per se.
This present case clearly falls within the scope of action in defama-
tion. The main defence available in the law of defamation is the defence
of veritas: a successful claim can only be made where the statement
objected to is untrue. If the statement is true, the maxim veritas convicii
excusat operates as a total defence.204 There is a general presumption
of untruth in Scots law, so that defenders must prove the truth of state-
ments in their defence.
Various defences are available in cases of defamation, the most com-
mon being privilege, fair comment and fair retort,205 although these are not
relevant to the case at hand. Privilege is dealt with below.206 No defence of
fair comment is available where the facts are not true and therefore can-
not be used to justify the use of third party sources, whether or not it was
known at the time of their validity. The defence of fair retort (or response)
is only available to those who have been publicly challenged, but does not
justify any slander by the injured party. It is also inapplicable here.
The remaining defence to a defamation action is privilege. The law
grants either absolute or qualified protection to certain types of com-
munication and in the latter situation, to situations that are founded
on the notion of public interest and free debate.207 Privilege has grown
as both a common law and statutory defence. Communications in court
and parliament are exempt from establishing a claim in defamation.
Other types of communication made to persons in situations where
they are entitled to receive and act upon them are protected under
qualified privilege.
On the facts given in this particular case, there is no information
justifying the defence of privilege. Nor is there a duty at common law
to name or reveal the source of journalistic information. This has been
recognised as a common law pre-trial concession to the freedom of the
203
The decision in Auchenleck v. Gordon (1755) MOR 7348 confirmed the (civil)
jurisdiction of the Court of Session to sit with or without a jury, thus heralding the
departure from the original criminal focus of defamation.
204
McKeller v. Duke of Sutherland (1859) 21 D 222.
205
Gloag & Henderson, The Law of Scotland at para. 35.7.
206
See Case 12.
207
Ss. 14, 15 Defamation Act 1996.
press. Whether non-disclosure is upheld during trial depends on the

issues at stake.
In both circumstances (a) and (b) of the case at hand, the journalist’s
statements of corruption are untrue from the beginning. An action in
defamation for personal injury will be successful where the statements
impugn the politician’s character or business reputation.208
Until the implementation of the 1996 Act, liability under the
Defamation Act 1952 fell on those who originated the libel and all
those who subsequently repeated it. As a result, liability was imposed
equally on all authors, editors, informants, printers and publishers in
both the law of Scotland and England.
Under the terms of the Defamation Act 1996, there is now a new
defence of innocent dissemination,209 by which the genuinely innocent
may escape liability. In addition, informants may be sued on their own,
unless the material was furnished for the journalist’s benefit only, in
which case both the Press Industry’s Code of Practice210 and s. 10 of
the Defamation Act 1952 allow journalists and editors to protect their
sources. Whether or not the protection is invoked depends on the rela-
tionship between the informant and the journalist.
In situation (b), the original source of the false information remains
liable for damages.
Damages are available eo ipso for libel, and may indeed be nomin-
al.211 Scots law differentiates between solatium in the form of damages
for wronged feelings and damages for patrimonial loss (see below). A
claim for economic loss without solatium is permissible in Scots law.212
It should be pointed out that English cases provide little assistance
208
Muirhead v. George Outram & Co., 1983 SLT 201.
209
210
The Press Complaints Commission (PCC, see www.pcc.org.uk) operates a public
complaints procedure and publishes guidelines for the Press (the latest version
available on the above website) which, in terms of the Human Rights Act (HRA)
1998, are rules to which it is bound to comply and the courts bound to apply in any
proceedings brought under the HRA for breach of privacy, see s. 12(4)(a) HRA. The
self-regulatory value of the Code lies in requirements from publishers that they
openly and prominently publish the findings of any enquiries made by the PCC in
response to complaints made by the public, see Sarah Cox v. People, 7 Jun. 2003 (High
Court), unreported, www.guardian.co.uk/media/2003/jun/07/pressandpublishing.
privacy.
211
There is no such thing as iniuria sine damno, see Bradley v. Manley & James Ltd, 1913 SC
923 per Lord Justice-Clark McDonald at 926; Cassidy v. Connachie 1907 SC 112 at 116
per Lord Stormont-Darling; Allan v. Greater Glasgow Health Board 1998 SLT 580.
212
See Norrie, Defamation and Related Actions at 165.
in assessing damages, as both exemplary and punitive damages (the

latter only under restricted conditions) are admissible in that jur-
isdiction. In Scots law, aggravated damages may be awarded where
there is proof of deliberate intention or persistent repetition of
publication.213
On the facts, the case under examination indicates that both heads
of damage might be claimed. The law of defamation requires an assess-
ment of whether the clearly false statements have a negative impact
on the politician’s professional capacity or fitness for office. If there
is no damage to character or reputation, then no more than nominal
damages will be awarded. Therefore, damages can easily range from
literally one penny to much greater sums.214 Special damages can be
recovered if there is proof that financial loss and further suffering
are likely to occur. Where publication has been deliberate, reckless or
malicious, proof of this may aggravate the damages.
Nevertheless, s. 4 Defamation Act 1996 contains formal provisions
allowing offers of amends and corrections of defamatory texts to be
made along with ‘offers’ of compensation. Where such an offer is
accepted, the pursuer may not bring defamation proceedings or con-
tinue them.215 These provisions were introduced as a means of speeding
up the length and quantity of defamation actions brought before the
court.
The remaining question to be addressed relates to interdicts against
publication. The importance of interdict lies in the fact that once pub-
lication has taken place, the damage may be irreparable and dam-
ages only a partial remedy. Both Scottish and English courts operate a
213
Cunningham v. Duncan (1889) 16 R 383.
214
The law of Scotland is more modest in relation to its level of defamation awards
than England, see Baigent v. BBC 2001 SLT 427, particularly at para. 22; in Anderson
v. Palombo 1986 SLT 46 a claim for £10,000 was dismissed as ‘utterly ridiculous’ and
£200 was awarded. Thomas v. Bain (1888) 115 R 613 demonstrates a similar approach
in the nineteenth century. See Winter v. News Scotland Ltd 1991 SLT 828 (£50,000).
The wife of the Yorkshire ripper, Sonja Sutcliffe, was awarded £600,000 in her
libel case against Private Eye (1991); Elton John received one million pounds in the
award made in John v. MGN Ltd [1996] EMLR 229; the High Court awarded Naomi
Campbell £500 at first instance against MGN Ltd in [2002] EWHC 499 (QB); the
House of Lords confirmed the award on appeal, [2004] UKHL 22. In Campbell v. News
Group Newspapers Ltd (High Court), the judge pointed out in detail the discrepancies
between English libel and personal injuries awards, this being the background to
the power under s. 8 Courts and Legal Services Act 1990 for judges to review jury
awards.
215
presumption against the wrongfulness of a publication.216 The greatest

divergence between Scots and English defamation procedure relates
to pre-trial injunctions. Whereas the English courts operate the rule
against restraint of publication in defamation cases, commonly known
as the Bonnard v. Perryman rule217 or the rule against prior restraint, this
approach is unknown in Scots law. The test applied in Scotland in rela-
tion to the interim interdict is as follows:
the court is in use to have regard to the relative strength of the case put for-
ward in averment [affidavit] and argument by each party at the interlocutory
stage as one of the many factors that go to make up the balance of conven-
ience. Whether the likelihood of success should be regarded as a matter of
convenience or as a separate matter seems to me an academic question of no
real importance … If the pursuer appears likely to succeed at the end of the
day, it will tend to be convenient to grant interim interdict.218
Interdict will not, however, be granted when the case is based on

innuendo, as then the case itself is not clear. Where the case is unlikely
to proceed in the face of a defence such as privilege, then there can be
no place for interdict.

These formants relate to the willingness of the defendants to agree to
early settlement under the new 1996 Act and also relate to the politi-
cian’s standing, which is reflected in the level of damages. Liability now
only falls on those involved in the publication (i.e. the author, editor,
publisher), other than the genuinely innocent under s. 1 Defamation
Act 1996. A Scottish interim interdict will be awarded, not under the
prior restraint rule but on the averment that the allegations are obviously
unfounded. If a genuine offer of amends is made to the pursuer, it then
operates as a defence to any defamation claim that a reasonable offer has
not been accepted. Damages will be higher than just a nominal award in
view of the pursuer’s standing and potential patrimonial loss. As noted
above, damage awards in Scotland are less generous than in English law
as the law does not recognise exemplary or punitive damages.219
216
See Norrie, Defamation and Related Actions at 176.
217
[1891] 2 Ch 269.
218
NWL Ltd v. Woods [1979] 3 All ER 614, 628 per Lord Fraser (not a defamation case
itself).
219
See Norrie, Defamation and Related Actions.
Spain
I. Operative rules
Where the journalist’s statement is not supported by any facts, the pol-
itician is entitled to rectification and to sue the journalist, publisher
and editor-in-chief for compensation. The author, editor-in-chief and
publisher are jointly and severally liable.
Where the politician was informed beforehand about the forthcom-
ing article, it is possible for him/her to claim an injunction to prevent
publication.
Moreover, the politician has a right of reply and can demand the
publication of the judgment.
The politician does not have a claim where the journalist alleged some
facts related by a third person, which then turned out to be false.

The operative precedent rules are provided by the Spanish Ley Orgánica
2/1984 of 26 March, on the right to correct information (LO 2/1984).
According to Art. 1 LO 2/1984, a person ‘has the right to correct infor-
mation on facts related to him broadcasted by the mass media, which
he considers untrue and the dissemination of which can cause him
some damage’. LO 2/1984 provides for a quick summary trial in order to
obtain the rectification of this information. This action is compatible
with any other civil or criminal action that could assist the defamed
person. The defamed person can ask the media to correct the informa-
tion up to seven days after publication, and this correction should be
done within three days after the receipt of the claim, otherwise the
injured party has an action against the media, which would fall to be
considered by a civil court.
Moreover, the defamed politician can sue the journalist, the publisher
and the editor-in-chief of the newspaper for damages and an injunc-
tion according to Arts. 7.7220 and 9 LO 1/1982,221 engaging a standard of
220
Under Art. 7.7 LO 1/1982, ‘the imputation of facts or dissemination of value judgments
through actions or expressions damaging the dignity of a person, lessening their
reputation or attempting to lessen the respect of that person’ is to be considered an
illegitimate interference with the right to honour, privacy and one’s own image.
221
Art. 9 LO 1/1982 provides:
1. (…)
2. The courts will adopt all necessary measures to end the illegitimate
interference and restore the victim’s rights, as well as to prevent or impede
fault liability. These provisions also award a right of reply and a claim
for the publication of the judgment. Additionally, accusing a politician
of being corrupt is considered criminal defamation in Spain under Art.
205 Spanish Criminal Code and thus can be criminally prosecuted.
The question is more difficult where the journalist alleged some
facts related by a third person, which then turned out to be false. In
deciding such cases, courts will take the so-called Neutral Reportage
Doctrine into account. This doctrine provides a privilege to those
who, without any alteration or changes, fairly and accurately repro-
duce reports or statements made by a third party.222 Thus, if the
journalist reproduces information related by a third person with-
out adding anything to it and which does not appear to be false,
publishing this information is legal. Therefore, in situation (b), the
defamed politician does not have any legal action regarding false
information.
Despite the Neutral Reportage Doctrine, some recent decisions also
consider that the mass media has a minimal duty of investigating and
checking the content of the news and its veracity. If the facts alleged
by a third person are clearly false then liability could be imposed on
the journalist.
Where the politician was informed beforehand about the forthcom-
ing article, as a matter of principle the fundamental character of the
right to honour would support an action aimed at preventing damage
arising from the forthcoming false publication. Given that fundamen-
tal rights and property rights are both absolute rights and that courts
afford them similar treatment, there is certainly a possibility to stop
the publication with a type of injunction.
new interferences. The measures include an injunction, the right to

retaliate, to extend the judicial ruling and to compensation for losses.
3. Damages are presumed if an illegitimate interference is proved. The
compensation will include pain and suffering, which will be quantified
using the specific circumstances and the seriousness of the damage
effectively produced. For this quantification, the Court will take into
account (i) the extent or audience of the media that spread the illegitimate
interference; and (ii) the benefits obtained by the party causing the damages.
4. (…)
5. The statute of limitation to initiate actions is four years, beginning when
the party could file the action.
222
The following decisions of the Spanish Constitutional Court (STC), inter alia,
contain the Neutral Reportage Doctrine: STC 41/1994, Feb. 15 (RTC 41); STC 3/1997,
Jan. 13 (RTC 3); STC 134/1999, Jul. 15 (RTC 134); STC 76/2002, Apr. 8 (RTC 76); and
STC 54/2004, Apr. 15 (RTC 54).
Furthermore, the Spanish Civil Procedure Act admits the possibility

of adopting preventive measures before filing the claim (Art. 730). These
measures could support the immediate seizure of a publication before
it is published. It is necessary to sue up to twenty days after the adop-
tion of the preventive measures; otherwise, they will be removed.
Switzerland
I. Operative rules
In both cases, the politician has the right to claim economic and non-
economic damages. He can claim for both compensatory and injunctive
relief against the journalist, the publisher, and/or the editor-in-chief. In
situations where an injunction would be ineffective because it would
be applied too late, the politician may have the ‘right to respond’ with
respect to erroneous factual statements made against him.

Art. 28, para. 1 of the Swiss Civil Code (CC)223 affords legal protection to
anyone who suffers an unlawful infringement of his or her ‘personal-
ity’. Under para. 2, an infringement is ‘unlawful’ provided that it can-
not be justified by the consent of the injured party, by a preponderant
public or private interest, or by statute.
On the basis of this provision, Swiss law protects an aspect of per-
sonality rights called the ‘droit à l’honneur’, hereinafter referred to as
the ‘right to one’s reputation’. This right includes consideration of both
the individual’s internal and external moral integrity. Thus, the right
to one’s reputation aims to protect the individual’s self-esteem, as well
as any other aspects necessary for an individual to be respected in his
or her economic, social and/or professional spheres.
The extent of protection granted to a person’s reputation varies
depending on his or her social status.224 A politician is usually consid-
ered a public figure. As such, the politician’s personality rights will be
weighed differently than those of a private individual. According to the
case law stemming from Art. 17 of the Swiss Federal Constitution,225
the press is authorised to publish reports on the activities of a
223
Code civil suisse du 10 décembre 1907 (CC) (RS 210).
224
H. Deschenaux and P. H. Steinauer Personnes physiques et tutelle (4th edn., Berne: 2001)
at 178, n.. 559.
225
Art. 17 of the Swiss Federal Constitution protects the freedom of the press,
Constitution fédérale du 18 avril 1999 (RS 101).
politician that would probably be impermissible if a private citizen

were concerned.
However, a depreciation of the politician’s personal or professional
reputation 226 may still constitute an unlawful infringement of his/
her rights. In order to determine whether a declaration, such as ‘cor-
rupt person’, unlawfully smears the politician’s reputation, one must
use the ‘reasonable reader’ standard to consider the concrete facts.227
The politician’s interest in the integrity of his/her personality must
be balanced against the interest of the press in informing the pub-
lic; although the press functions as a ‘watchdog,’ its general mandate
to inform the public does not constitute a license to say anything it
considers newsworthy. The press must have a valid motive for infrin-
ging the individual’s personality interests.228 According to case law,
the public has an interest in being informed of the derelictions of
public officials and in knowing the names of the public officials who
have committed such wrongs.229 However, mentioning the name of
the public figure concerned is only permissible to the extent that the
report can be justified by the facts at hand and by a legitimate public
need to be informed.230 Likewise, ‘even a person who is the object of
public interest is not obligated to allow the media to report on more
than what is justified by a legitimate need to inform; the individual’s
interest in keeping things undisclosed must, to the extent possible, be
taken into account’.231

Opinions or value judgments are only permitted – and protected by
the freedom of opinion held by the media – to the extent that they
appear factually well-founded.232 However, they may still constitute an
unlawful infringement of the individual’s reputation where the lan-
guage used is unnecessarily hurtful.233 If they degrade the politician
in the eyes of the public and create a false picture in the public mind,
freedom of opinion is not a sufficient justification and the infringe-
ment will be considered tortious.
226
ATF/BGE 129 III 49 c. 2.2, JdT 2003 I 59.
227
Ibid., JdT 2003 I 59; ATF/BGE 127 III 481 c. 2b/aa, JdT 2002 I 426.
228
ATF/BGE 126 III 209 c. 3a, JdT 2000 I 302.
229
ATF/BGE 126 III 209 c. 4, JdT 2000 I 302.
230
ATF/BGE 126 III 305 c. 4b/aa, JdT 2001 I 34.
231
Ibid.
232
ATF/BGE 126 III 305 c. 4b/bb, JdT 2001 I 34.
233
Ibid.; ATF/BGE 106 II 92 c. 2c.
The Swiss Federal Court recognised for instance that publish-

ing a magazine article in which the district police commander was
described as ‘a snoop’, ‘gun-crazy’, and an ‘expert at FBI spy tactics’
intruded on the police commander’s right to reputation, and there-
fore constituted an unlawful infringement of his personality.234 More
recently, the Court of First Instance of Geneva held that two articles
insinuating that a politician took advantage of information to bene-
fit himself financially gave readers the impression that the benefits
had been obtained in a dishonest way, which constituted an unlawful
infringement of the politician’s reputation.235
The publication of inaccurate facts is unlawful, and it is only in rare
and exceptional cases that the dissemination of such facts is justified
by a sufficient interest.236 However, according to the case law of the
Federal Court, every imprecision, generalisation or uncertainty does
not automatically violate personality rights. Inaccurate information is
unlawful if it does not conform to the truth on the essential points,
and if it presents a person in such an erroneous light or paints him/her
in an image which is so clearly false that the individual finds himself
degraded in the eyes of his fellow citizens.237
The fact that the journalist received the information from a third
party does not provide him with a defence. A media outlet cannot
evade responsibility for the content of what it publishes by assert-
ing that it has simply reproduced the statements of a third party.238
The journalist has an obligation to verify his/her sources and their
objectivity in addition to verifying the truth of the information.239
Media organisations must decline publishing a suspicion or suppo-
sition where the source of the information makes restraint advis-
able. The publication will be unlawful if the suspicion or supposition
proves to be unfounded. Therefore, publication of the politician’s
234
ATF/BGE 119 II 97, JdT 1995 I 167.
235
Judgments of the Court of First Instance of the Geneva area, 9 Oct. 2003,
JTPI/11565/2003 and JTPI/11566/2003.
236
ATF/BGE 126 III 209 c. 3a, JdT 2000 I 302; ATF/BGE 126 III 305 c. 4b/bb,
JdT 2001 I 34.
237
ATF/BGE 123 III 354 c. 2a, JdT 1998 I 333.
238
ATF/BGE 126 III 305 c. 4b/aa, JdT 2001 I 34.
239
ATF/BGE 113 Ia 309 c. 5a; ATF/BGE 107 Ia 304 c. 5b.
name is likely to unlawfully infringe the politician’s right to his

reputation.
In both scenarios, the politician fi rst has the right to take defensive
action outlined under Art. 28a, para. 1 CC. More precisely, he can
take action to prevent the infringement, including provisional meas-
ures that seek to prevent publication of the statement (Art. 28a, para.
1, (1) CC).
Under Art. 28, para. 1 CC, a claim may be brought against any person
or entity who participates in the unlawful infringement.240 If the pol-
itician is unable to prevent publication of the article, Swiss law grants
the right to respond (Art. 28g CC). Nevertheless, in general, the right
to respond will not preclude a claim for unlawful infringement of
personality due to harmful language published in the press. In effect,
the right of reply serves only to oppose two different descriptions of
facts, without establishing whether the description presented by the
media has unlawfully violated personality rights.241 The politician
may, however, request a judgment declaring that the publication is
unlawful where the trouble caused by the infringement persists (Art.
28a, para. 1, (3) CC). The politician may also subsequently demand
damages.
The available remedies are governed by Art. 28a, para. 3 CC and are
based on Art. 41 et seq. of the Code of Obligations (CO). The injured
politician may demand payment of damages to the extent that he can
establish the existence of harm. He may also claim damages for pain
and suffering (Art. 49 CO) due to the unlawful loss of reputation and
esteem in society.242
According to Art. 49, para. 2 CO, it is also possible to substitute alter-
native types of remedy – e.g. publication of the judgment. Moreover,
the Federal Court has recently affi rmed that monetary damages do
not necessarily constitute an adequate remedy for pain and suffer-
ing, because the person needs to be indicated rather than consoled.243
Therefore, the tort suffered by the individual may sometimes be bet-
ter remedied by the declaratory judgment of unlawfulness than by
the payment of monetary damages.
240
Judgment of the Swiss Federal Court 5P.308/2003 c. 2.4, SJ 2004 I 250.
241
ATF/BGE 119 II 97 c. 2, JdT 1995 I 167.
242
RVJ 1995. p. 118 and 121. In a judgment published in REP 1982, p. 85, a politician
who had been unfairly treated in the press was granted damages of 5,000 CHF for
the pain and suffering resulting from the infringement of his reputation.
243
ATF/BGE 131 III 26 c. 12.2.2.

The Swiss Press Council is an institution which serves journalists
and the public. It functions as an arbitrator of questions related
to media ethics. Decisions rendered, although without binding
force and sometimes stemming from the Council’s own initiative,
are interesting because they examine questions relating to pro-
fessional ethics in journalism, namely with regard to the use of
information.244
According to the Swiss Press Council:
the duty to abstain from factually unfounded accusations requires that

the publication of criticism of individuals be abandoned unless plausible
proof of the accusation exists. Accuracy of the information must be verified
before its publication. Journalists who base their research on a thesis must
not destroy any element of information that can weaken this thesis […] It
is not permitted to elaborate on theses and to present them as fact in such
a way that the reader is unable to ascertain that the theses are not founded
on indisputable facts, but rather only on assumptions drawn from weak
indications.245
Before accusing a politician of ‘corruption’ without valid substan-

tiation, the journalist in this particular case is required to consider
the foreseeable consequences of his/her allegations. Neither the use of
the conditional tense nor the protection of the source circumvents the
obligation to verify the veracity of such sources.246
Comparative remarks
This is a typical case of defamation by the press, concerning a clas-
sic confl ict between freedom of speech and freedom of the press
on the one hand, and the right to honour and reputation on the
other hand. The hypotheses (a) and (b) reflect two major kinds of
offensive statements made in writing: the expression of a mere opin-
ion or value judgment in situation (a), and the allegation of facts in
situation (b).
Three questions are raised in this case: Is there any liability? Which
remedies are available? Who is liable? Before discussing these issues,
244
To be found at www.presserat.ch.
245
Conseil suisse de la presse: www.presserat.ch/vm_personnalite5.htm (5 Sept. 2005).
246
Conseil suisse de la presse: www.presserat.ch/vm_sources2.htm (5 Sept. 2005).
the applicable law governing the protection of honour and reputation

in the different legal systems has to be mapped out.
I. Foundations of liability
The first distinction is to be made between the continental European
civil law systems and the common law of the UK and Ireland. In
England, Ireland and Scotland defamation is primarily a civil tort. In
this regard, criminal law plays a minor role, if at all. On the contrary,
in the continental and Nordic systems, defamation is also (or even pri-
marily) a criminal offence. In some countries such as France, Italy and
Finland the obligation to pay damages to the victim is a direct conse-
quence of criminal responsibility.
1. In England, Ireland and Scotland, claims can be made under the
tort of defamation developed by traditional common law. A distinc-
tion is drawn between a written (libel) and an oral form (slander) of
defamation. The former applies to press publications. Liability for
libel is strict. Reputation is protected by defamation law as is bodily
integrity, and property is protected by the law of trespass. Libel does
not require any fault or damage to be shown by the claimant but
is actionable per se. The lowering of a person in the estimation of
right-thinking members of society is both necessary and sufficient.
This has to be assessed by a jury. In this regard, it does not make any
difference whether the defamatory statement is the expression of an
opinion or the allegation of facts. This distinction plays a role, how-
ever, with regard to possible defences. In situation (b), the journalist
may escape liability when he/she proves the truth of the defamatory
statements.
In situation (b), in addition to defamation law the English tort
of malicious falsehood and the corresponding Scots tort of verbal
injury also apply, insofar as the alleged facts are untrue and the
offender acted intentionally.
The illegitimacy of defamatory publications is assessed through a
judicial balancing of conflicting interests, both in the common law
and in the civil law countries. Common law courts take freedom
of expression into account, as is inherent in the common law
and under Art. 10 ECHR (which is now almost always expressly
mentioned) and balanced with interests in reputation (albeit not
treated as a fundamental right but certainly a fundamental interest
in the common law).
2. In relation to the legal bases for the protection of honour and
reputation within the continental and Nordic legal systems, two
models are highlighted.
(i) In France, the solution of the conflict between freedom of the

press and right to honour has been left exclusively to a special
statute. The French Cour de Cassation has made it clear that
where the Freedom of the Press Act 1881 applies, a concurrent
application of the general tort law provisions of the Civil
Code is excluded. The Freedom of the Press Act 1881 provides
for the paramount position of freedom of the press vis-à-vis
personality interests. The balance between these confl icting
values has been struck by legislation, not by a judicial weighing
of the constitutional rights. The French Press Act contains
detailed criminal law provisions regarding the publication of
defamatory statements. Two separate crimes of defamation by
the press exist: diffamation applies to allegations of facts, injure
to all other offensive statements. Criminal liability is not strict
in theory, but almost strict in practice: malice is required,
but presumed. The journalists who made the defamatory
statements can exculpate themselves by proving that the
alleged facts are true, or that they have made serious efforts to
verify the facts (‘bonne foi’). A serious obstacle to the protection
of persons offended in their honour and reputation who sue
under the French Freedom of the Press Act is the prescription
period of three months, within which a detailed complaint
must be filed before the criminal court.
(ii) In all of the other countries, the protection of honour and
reputation against offensive press statements results from
the combined and concurrent application of a plurality of
legal bases: constitutions, international conventions such
as the ECHR, general tort law provisions enshrined in the
national Civil Codes, special statutory provisions of civil and
criminal responsibility, Press Acts, etc. In many countries
such as Austria, Germany, Italy, the Netherlands, Portugal
and Switzerland, the illegitimacy of defamatory publications
from the perspective of tort law is assessed through a judicial
balancing of confl icting fundamental rights: on the one hand,
personality rights (honour and reputation), and on the other
hand, freedom of speech and freedom of the press. Whether
one or the other prevails depends on several circumstances,
such as the truth of the alleged facts, the extent to which
the journalists fulfilled their duty of professional care, and
the necessity, proportionality and adequacy of the published
statements with regard to the public interest in the subject
matter (see II below for further details).
3. In several countries such as Austria, Germany, Finland, Spain and
Switzerland and the common law countries, in order to hold a
tort or crime to be defamatory it is necessary to take the victim’s
notoriety and public function into account. Public figures, especially

politicians, must tolerate much harsher criticism than ordinary
citizens.
4. In many legal systems, both in common law and civil law, self-
regulatory instruments such as codes of conduct play a major role in
determining the duties of care of press organs and therefore their
civil liability. Sometimes self-regulatory instruments also provide
for methods of alternative dispute resolution, which may precede,
accompany or incorporate the ordinary tort liability proceed-
ings. This is, for example, the situation for the Belgian Raad van de
Journalistiek, the English Press Complaint Commission, the Finnish
Council for Mass Media, the German Presserat and the Swiss Press
Council.
II. Infringement of honour and reputation

1. Situation (a)
The blunt affirmation that a politician is corrupt, without any fac-
tual reference, may be interpreted in two different ways: as a mere
expression of opinion or a value judgment, or as an unsubstantiated
accusation. All legal systems considered agree that the accusation of
corruption – which is a criminal offence – cannot be made without any
reliable factual support, not even in political debate. The vast majority
of countries acknowledge an unlawful infringement of the politician’s
reputation in situation (a).
In most legal systems, the distinction between opinions and value
judgments on the one hand, and the allegation of facts on the other,
does not seem to be relevant for the solution of the present case.
This distinction only plays a role in Germany and Switzerland. In
both countries, the statement in question would be considered as the
expression of an opinion or a value judgment. This expression of opin-
ion would probably be deemed lawful in Germany, but unlawful in
Switzerland.
According to German courts and scholars, in case of doubt over
whether a statement is an opinion or an allegation of facts, it is pre-
sumed to be an opinion. Personality rights and media rights have equal
rank in principle, but in a conflict of values concerning the expression
of opinions there is a presumption that freedom of speech and free-
dom of the press would prevail, at least as far as public figures are con-
cerned. Opinions are only deemed to violate personality rights when
they primarily aim to damage the victim’s reputation (‘Schmähkritik’).
This requirement does not seem to be met in the instant case.
In Switzerland, opinions or value judgments are only permitted to

the extent that they appear to be factually well-founded. Since the
journalist’s statement in this situation is not supported by facts, free-
dom of the press will not be sufficient to justify the infringement of
the politician’s reputation.
2. Situation (b)
If a defamatory statement is supported by facts, the liability of the jour-
nalist first depends on the proof of truth and secondly on compliance
with their professional standards of care. In every private law system –
civil and common law – the defendant journalist is entitled to prove the
truth of the statements. If such evidence is shown, in most cases this will
free him/her from liability. Stating false facts is not protected by freedom
of speech. If evidence is missing, the journalist is liable in the strict com-
mon law of defamation. Liability requires malice or negligence under
civil law fault regimes. The respective standard of professional care varies
from country to country. In Austria and Spain, it is sufficient that a jour-
nalist fairly and accurately reproduces the allegation of a credible third
party, which does not appear to be false. Therefore in both countries, in
situation (b) the politician would probably not have any claim. In all of
the other countries, a journalist who reports facts provided by a third
party without further investigation commits a wrongful act. Journalists
are under a duty to verify their sources of information. In some coun-
tries such as Belgium and Germany, the more serious the accusation, the
higher the standard of care. In most countries, the alleged corruption of
politicians is of the highest public interest.
In the majority of legal systems considered, the burden of proof of
compliance with the journalists’ duties lies with the journalists them-
selves. They must prove that they have at least made serious efforts to
verify the facts.
In some countries such as Italy and Portugal, a third aspect plays a
major role in the balancing, which is the adequacy of the publication
from the point of view of correctness and politeness. Press statements
should not contain more than what is strictly necessary to inform the
public, and should be formulated in the manner which is least harmful
to the reputation of the persons involved.
III. Remedies
Three main types of remedies are envisaged: damages, injunction, and
right of reply.
1. Damages
(i) In most countries, a tort of infringement of the politician’s repu-
tation is present in both situations (a) and (b). The injured party can
recover both economic and non-economic loss.
In France, compensation is limited to non-pecuniary loss. In Greece,
pecuniary damages are always recoverable, while compensation for
non-pecuniary loss is only possible if the infringement was committed
intentionally.
In England, a jury determines the amount of damages to be awarded.
The Court of Appeal may reduce an excessive amount of damages
awarded by a jury. Damages under English law can be nominal (sym-
bolic award for the injury itself), general (compensation of non-eco-
nomic loss), or special (compensation of economic loss).
In the Netherlands, in assessing non-pecuniary damages the judge
can take the profits gained by the wrongdoer from the publication into
account. However, the injured party can only claim either compensa-
tion for this kind of damage or pecuniary damages for lost profits; a
combination of the two is not possible.
(ii) According to the majority opinion in Austria and Spain, the jour-
nalist’s behaviour in situation (b) is deemed legally correct, therefore
no damages can be claimed. With regard to situation (a), however,
the protection of the injured party’s honour also prevails in both of
these countries, thus the politician can claim both pecuniary and
non-pecuniary damages.
According to Spanish legislation, once an illegitimate interfer-
ence with the right to honour is shown, damages are presumed.
Compensation includes pain and suffering, which is to be quantified
by considering the circumstances under which the statement was pub-
lished, the circulation of the publication and the benefits obtained by
the wrongdoer.
In Austria, a much discussed issue in academic literature concerns the
amount of non-pecuniary damages to be awarded for privacy violations
committed by the media. The Austrian Media Act sets a maximum limit
of €20,000, which is arguably too small. Criticism has also been raised
in relation to the practice of the Austrian courts, which usually award
damages in notably smaller amounts than allowed for by statute.
(iii) In Germany, damages can only be claimed in situation (b). Both
economic and non-economic losses are recoverable, however compen-
sation for non-economic loss is only granted in cases of serious viola-
tions of personality rights.
(iv) Exemplary or punitive damages can be awarded in England,

Ireland and Scotland. In Greece and Italy, besides pecuniary and non-
pecuniary damages, the victim of a defamatory publication is entitled
by statute to an additional sum of money, which serves the function
of a private penalty. In Greece, this monetary remedy can be claimed
against the person responsible for any violation of personality rights
under Art. 59 Civil Code, provided the violation was intentional. In
Italy, this sanction is specifically provided for by the Press Act in cases
of defamation by the press. The amount of the award varies according
to the gravity of the offence and the circulation of the publication.
2. Injunction
In Belgium, France and Finland, freedom of speech and freedom of
the press are considered so fundamental that it does not seem possible
to impede the publication of defamatory statements by asking for a
preventive injunction. In Belgium, however, an injunction is possible
after publication to prevent the further dissemination of a defamatory
article.
In all the other countries, the injured party can also claim for a pre-
ventive injunction. In England, a problem arises from the fact that
an interlocutory injunction is granted by a court, while defamation
is decided upon by a jury. Therefore, interlocutory relief only seems
to be possible in the clearest cases where any jury would recognise
defamation.
In some countries such as Portugal and Greece, an injunction may
also be granted after publication to mitigate the injury and prevent
future harm. In the Netherlands, the victim who still has an interest
in preventing the further dissemination of the defamatory statement
after publication can request the recalling of the issues of the news-
paper in question.
3. Right of reply
In cases of untrue defamatory statements the majority of countries
grant the victim of press defamation a right of reply, i.e. the right to
have a rectification published in the same journal, newspaper, etc. As
a rule, this remedy is available regardless of the defamatory character
of the publication. This is a special remedy provided for by the Press
Acts.
No right of reply exists in England, Scotland and Ireland. A rectifica-
tion can only be made by the press itself in case of an offer of amends.
In Austria, Finland and Spain, the person aggrieved by a false state-

ment has the right to have it revoked or corrected by the press organ
itself. In Spain, the press is obliged to do this within three days of the
receipt of the request.
In Finland, Italy and Switzerland, the aggrieved person can also
request the publication of the defamation judgment.
IV. Addressees of liability

In all of the countries considered, liability for defamation by the press
falls (although often in different forms and to a variably great extent)
on the journalist, the editor-in-chief and the publisher. In England,
Scotland and Ireland, the joint liability of the author, editor, publisher,
printer, distributor and seller is strict, but several defences are avail-
able. In particular, printers, distributors and sellers can escape liability
by proving innocence in the dissemination of the publication.
In Austria and Greece, the liability of the owner of the newspa-
per is strict, while that of the journalist is based on negligence. In
Austria, the publisher’s liability follows that of the owner, while in
Greece the liability of both the publisher and the editor-in-chief is
fault-based.
In Germany, an injunction can be claimed against any person who
objectively contributed to the offensive act (author, editor-in-chief, pub-
lisher, distributor, etc.), independent of fault, while liability for dam-
ages always requires negligence. However, the publisher’s negligence
is presumed.
The journalist, editor-in-chief and publisher are jointly and severally
liable in Finland, Germany, Italy, Portugal and Spain. In most coun-
tries, their liability is fault-based. In Portugal, the owner of the news-
paper is only liable if the article was published with the knowledge of
the editor-in-chief or his/her substitute and without his/her opposition.
The burden of proof of knowledge and lack of opposition lies on the
claimant.
In Italy, only the editor-in-chief and the publisher can be sued for
injunction and rectification, while only the journalist is addressed by
the punitive reparation mentioned under III.2.(iv). However, all of these
persons are jointly and severally liable for damages.
In France, liability is en cascade: the directors, editors, writers, print-
ers, vendors and distributors are called one after the other, in function
of their rank. A similar rule applies in Belgium, where the publisher,
printer and distributor are not liable if the writer is known, and the
distributor is not liable if the publisher is known. In Belgium, journal-
ists who are employed enjoy special protection; they are only liable in
cases of serious and deliberate offences or recurrent negligence. Slight
negligence is not sufficient. The vicarious liability of an employer is
quite controversial in Belgian scholarship.
5 Case 2: Convicted law professor
Case
A law professor was convicted by a court of having committed a crime.
The day after the judgment, the case was published in a newspaper
mentioning the professor’s name. Does he have any claim against the
newspaper? Distinguish the following two situations:
(a) The crime consists of causing the death of a person in a car accident
due to drunken driving.
(b) The crime consists of promising female students better grades in
exchange for sex.
Discussions
Austria
I. Operative rules
In both situations, the law professor does not have a claim against the
owner/publisher of the newspaper.

§ 7a MedienG provides for a personal right to remain anonymous under
certain conditions. This right conflicts with the right of freedom of the
press and information (Art. 10 ECHR). Therefore, it is necessary that
a claimant has good reasons for claiming compensation under § 7a
MedienG.
Under § 7a MedienG, persons who are suspected of having commit-
ted a crime or on whom sentence has already been passed may sue
149
the owner/publisher of the newspaper who disclosed their identity for

compensation of non-economic loss, if:
(1) there is a sustained infringement of their protected interests

through the disclosure of their identity; and
(2) there is no prevailing public interest stemming from the position of
the claimant in public life or from another comparable connection
with public life.
A law professor is a person of relatively high public interest. When

he/she commits a crime – in the case at hand by causing a fatal traf-
fic accident due to drunken driving or by promising female students
better grades in exchange for sex1 – the disclosure of his/her identity
through the publication of the story with his/her full name in a news-
paper is justifiable under the abovementioned regulation.
The higher Regional Courts of Austria have found that there is suf-
ficient public interest in the disclosure of identity when, for example,
a leading police officer,2 a prominent doctor,3 or a respected adoptive
father of six children4 were convicted of having committed criminal
offences. In all of these cases, the freedom of the press and informa-
tion, as well as the public interest in being sufficiently informed about
the behaviour of the middle/upper class, prevail over the interests of
the claimant in remaining anonymous.
Among the considerations taken into account in balancing these
interests are: the prominence of the person in question, the impor-
tance of the issue for the press; and the originality of the news.
§ 7a, subs. 2(2) MedienG provides that the protected interests of a
claimant will be affronted if the publication (of his/her name, image or
other characteristics) concerns a minor party or a less serious type of
crime. In this case, however, neither the age of the party, nor the type
of the crimes committed may – in contrast to the arguments above –
establish a protectable interest for the claimant.
1
Cf. RV zur Mediengesetz-Novelle 1992, 13 (Government Bill for an amendment to the
Media Act): the identity of a top sportsman who caused a fatal traffic accident may
be disclosed regardless of whether he caused the accident when driving to a sporting
contest or during his leisure time.
2
OLG Innsbruck MR 1995, 95.
3
Ibid. at 160.
4
OLG Vienna 9.7.1997, 24 Bs 129/97.
c a se 2: con v ict ed l aw professor 151
Belgium
I. Operative rules
The professor does not have a claim against the newspaper. An injunc-
tion is not possible.

According to Art. 149 of the Constitution, all judgments are delivered
in open court and journalists are granted the right to access them and
to report and comment on them, even if they are not final.5 However,
that right must be exercised with caution. For example, they should
double-check the identity of the convicted criminal.6
Moreover, the journalist’s conduct will be weighed against Art. 1382
CC. The fact that the professor may have appealed against the judg-
ment, the scope of the article, etc., will be taken into account. In case
the information is wrong7 or contains details about the professor’s pri-
vate life which are not relevant to the crime in question, he would be
able to attain compensation.8
The existence of a right of reply is doubtful.9 The right of reply in a
newspaper can be exercised to rectify a factual element or to defend
oneself against defamation.10 In both hypotheses, the newspaper can
report on the judgment.
It is also very unlikely that the professor could obtain an injunc-
tion. The right to report on judgments can be categorised under the
umbrella of the fundamental right to freedom of speech.11
England
I. Operative rules
In both situations (a) and (b) the law professor will not be able to
successfully claim against the newspaper.
5
P. Lemmens, ‘Parlando ma non troppo’ (1999–2000) AJT 277.
6
E.g. Civil court Brussels 22 Dec. 1996, CDPK 1997, 666, note by D. Voorhoof, where
another person with an identical name was named as a convicted criminal on
television.
7
E.g. Civil court Liège 7 May 2002, AM 2002, 370.
8
D. Voorhoof, Handboek Mediarecht (Brussels: 2003) at 194 et seq. Cf. Civil court Brussels
29 Jun. 1987, JT 1987, 685.
9
See Case 1.
10
Art. 1 of the Right of Reply Act 8 July 1961.
11
See Case 1.
II. Descriptive Formants

(a) The crime consists of causing the death of a person in a car
accident due to drunken driving.
1. Defamation and malicious falsehood
In principle, the case could come under the tort of libel since the pub-
lication is clearly defamatory. However, the newspaper has the defence
of justification available since the statements are true. For the same
reason, there is no malicious falsehood. English courts have consist-
ently held that it is in the public interest that the right to free speech
is one which individuals should possess and exercise without impedi-
ment, so long as no wrongful act has been committed and no wrong
is done if it is true.12 Furthermore, under s. 14(1) of the Defamation Act
1996, the newspaper is absolutely privileged if the report is fair and
accurate. In fact, defamation law has even led to very accurate iden-
tifications by the press of persons found guilty in court proceedings
since any confusion between the name of the person convicted and
the name of another innocent party may render the press liable to the
latter.13
2. Negligence
The tort of negligence is usually not available in defamation cases. There
is no duty of care to take reasonable measures not to injure the claim-
ant’s reputation, even through the publication of true statements.14
3. Breach of confidence
Breach of confidence is actionable in equity. It does not require the
breach of a contractual obligation to confidentiality.15 The general
principle is that a duty of confidence arises when confidential infor-
mation comes to the knowledge of a person (the confidant) in cir-
cumstances where he/she has noticed, or is held to have agreed, that
the information is confidential, with the effect that in all circum-
stances it would be just that he/she be precluded from disclosing the
12
Bonnard v. Perryman [1891] 2 Ch 269, at 284, CA; Fraser v. Evans and Others [1969] 1 QB
349, at 360–1, per Lord Denning MR. See also S. Kentridge, ‘Freedom of Speech: Is it
the Primary Right?’ (1996) 45 International and Comparative Law Quarterly 253 et seq.
13
See Newstead v. London Express Newspaper, Limited [1940] 1 KB 377. See also B.
Brömmekamp, Die Pressefreiheit und ihre Grenzen in England und der Bundesrepublik
Deutschland (Frankfurt: 1997) at 38.
14
Spring v. Guardian Assurance plc [1994] 3 All ER 129.
15
Prince Albert v. Strange (1849) 1 H&T 1, at 25; Duchess of Argyll v. Duke of Argyll and Others
[1967] Ch 302, at 318 et seq.
information to others. This includes situations where the confidant

has deliberately closed his/her eyes to the obvious.16 This duty of con-
fidence is also imposed on a third party, such as a publisher, who is
in possession of information which he/she knows is subject to a duty
of confidence since the law of confidence would otherwise be of little
value.17
Traditionally, three requirements had to be satisfied. Firstly, the
information itself had to have the necessary quality of confidence
about it. Secondly, the information had to have been imparted in cir-
cumstances giving rise to a duty of confidence. Thirdly, there had to be
an unauthorised use of that information to the detriment of the party
communicating it.18
Recently, the courts have altered the requirements of the equitable
doctrine with respect to the misuse of personal information. An action
for breach of confidence can now be exercised in cases where there was
no pre-existing relationship of confidence between the parties, but the
‘confidence’ arose from the defendant having acquired information by
unlawful or surreptitious means that he/she should have known he/
she was not free to use.19 The current standing of the doctrine is best
summed up by Lord Nicholls in Campbell:
Now the law imposes a ‘duty of confidence’ whenever a person receives infor-
mation he knows or ought to know is fairly and reasonably to be regarded as
confidential … The continuing use of the phrase ‘duty of confidence’ and the
description of the information as ‘confidential’ is not altogether comfortable.
Information about an individual’s private life would not, in ordinary usage, be
called ‘confidential’. The more natural description today is that such informa-
tion is private.20
Later Baroness Hale stated ‘the exercise of balancing Article 8 and

Article 10 may begin when the person publishing the information
knows or ought to know that there is a reasonable expectation that
the information in question will be kept confidential’.21
16
Advocate-General v. Guardian Newspaper (No. 2) [1990] 1 AC 109, at 269, per Lord
Griffiths.
17
Ibid. at 268, per Lord Griffiths.
18
Coco v. A. N. Clark (Engineers) Limited [1969] RPC 41, per Megarry J. For further detail,
see Case 5.
19
See McKennitt v. Ash [2006] EWCA Civ 1714, at para. 8, per Buxton J. See also, e.g.,
Campbell v. MGN Ltd [2004] 2 AC 457 and Douglas v. Hello! Ltd (No. 3) [2006] QB 125.
20
[2004] 2 AC 457, at 465.
21
Ibid. at 495.
The High Court cases of McKennitt v. Ash22 and HRH The Prince of Wales
v. Associated Newspapers23 and the Court of Appeal decision in McKennitt
v. Ash24 have utilised the ‘reasonable expectation’ test as espoused in
Campbell.
However, breach of confidence cannot be argued where information
has already become public knowledge, since no reasonable expectation
of privacy can exist in such cases. Since criminal proceedings are held
publicly, information about such proceedings, or about convictions,
is information that is publicly available. Unlike in some other coun-
tries, in English law reports the parties to the criminal proceedings
are identified by name, with rare exceptions such as in cases involving
minors. Thus, in this particular case, no confidential information was
imparted to the public by the newspaper. The press and broadcasters
are entitled to publish the results of civil and criminal proceedings
without restrictions.25 Protection is only afforded to the relatives, and,
in particular, the children of persons convicted or accused of crime.26
4. The Data Protection Act 1998

The Data Protection Act 1998 regulates the processing of information
regarding individuals. Its application to breach of confidence cases,
as a result of the Data Protection Directive 95/46/EC27 was elaborated
on in Campbell v. MGN Ltd.28 In brief, the Data Protection Act 1998
comes into play where personal data has been processed, as usually
occurs in today’s production of print media. S. 1 of the Act indicates
that the newspaper can be taken to be a data controller. According to
Lord Phillips, the Data Protection Act 1998 applies to the publication
of newspapers and other hard copies containing information that has
been subjected to data processing.29 Under s. 2 of the Act, an article
22
[2005] EWHC 3003 (QB).
23
[2006] EWHC 11 (Ch).
24
[2006] EWCA Civ 1714.
25
R. v Central Independent Television plc [1994] Fam 192, at 202, per Neill LJ. See also J.
von Gerlach, ‘Persönlichkeitsschutz und öffentliches Informationsinteresse im
internationalen Vergleich’ (1997) Archiv für Presserecht 1, at 2.
26
See R v. Central Independent Television plc at 192. See also Clause 10 of the Code of
Practice of the Press Complaints Commission.
27
Directive 95/46/EC on the protection of individuals with regard to the processing of
personal data and the free movement of such data, OJ 1995 L281/31.
28
Campbell v. MGN Ltd [2003] EMLR 2, 39, at 59 et seq. See also the summary by Lindsay J
in Michael Douglas and Others v. Hello! Ltd and Others [2003] EWHC 786, at para.
230 et seq.
29
Campbell v. MGN Ltd at 66 et seq.
can contain sensitive personal data. Therefore, the data has to be proc-
essed fairly and lawfully. This is problematic in cases where data has
been obtained by breach of confidence.30 In contrast, where publicly
available personal data is processed, there is no breach of the Data
Protection Act 1998. Thus, in the present case, no claim arises under
the Data Protection Act 1998.
(b) The crime consists of promising female students better

grades in exchange for sex.
No distinctions can be made between this answer and the answer to
(a). The only restriction that springs to mind is that the newspaper
would be in breach of confidence if it published the names of the vic-
tims, i.e. the female students involved. Rape victims have long been
protected from being named. This protection has been extended by
the Sexual Offences (Amendment) Act 199231 in order to include all
types of sexual offences.
III. Metalegal Formants

English law has denied the existence of an all-encompassing tort of
invasion of privacy until now.32 Some judges have been critical of this
stance.33 In the Court of Appeal in Douglas v. Hello!,34 Sedley LJ seemed to
state that a right to privacy was in existence, which the English courts
would recognise.
However, he went on to state that this was merely pigeonholing
court practice, yet, significantly declared that this enabled the courts
to ‘recognise privacy itself as a legal principle drawn from the funda-
mental value of personal autonomy’. Lord Phillips MR for the Court of
Appeal has repeated the view that the invasion of private life should
be considered as a breach of privacy rather than a breach of con-
fidence.35 Two subsequent House of Lords decisions – Wainwright v.
30
Michael Douglas and Others v. Hello! Ltd and Others at para. 235 et seq., per Lindsay J.
31
1992 Act, Ch. 34.
32
See, in particular, the landmark case of Kaye v. Robertson and Another [1991] FSR 62, at
66, per Glidewill LJ. The notion of ‘privacy’ is used in s. 143 of the Broadcasting Act
1990 but this Act contains no definition, and the entitlement of the Broadcasting
Complaints Commission to rule that a particular transmission was an unwarranted
infringement of someone’s privacy triggers no legal sanction but the duty to pub-
lish the Broadcasting Complaint Commission’s finding.
33
See, for example, Kaye v. Robertson and Another at 70, per Bingham LJ.
34
Douglas v. Hello! [2001] 2 All ER 289.
35
Campbell v. MGN Ltd [2003] EMLR 2, 39, at 58.
Home Office36 and Campbell v. MGN Ltd37 – have bluntly affi rmed that
there is no separate tort of privacy. Compliance with the ECHR does
not require the creation of such a tort as long as its objectives are met
by other means.38
The courts have argued that the matter of the establishment of a
right to privacy, which affects the freedom of the press so fundamen-
tally, should be left to the legislature rather than the judiciary.39 In
1981, the Law Commission strongly recommended no less than the
codification and amendment of the law concerning breach of confi-
dence.40 In 1989, pressure by Members of Parliament forced the govern-
ment to establish a committee headed by Sir David Calcutt QC, which
delivered the so-called Calcutt Report in 1990.41 Nevertheless, the legis-
lator has generally remained passive until now and has merely regu-
lated some specific aspects of privacy.42 Statutory law and common law
are complemented by self-regulatory instruments, such as the Code of
Practice drawn up by the Press Complaints Commission.43
English law has relied on a variety of torts under common law and
equity, such as the torts of breach of confidence, trespass, nuisance,
malicious falsehood, passing-off, etc.44 In practice, breach of confidence
36
Wainwright v. Home Office [2003] 4 All ER 969.
37
Campbell v. MGN Ltd. (2004) 2 WLR 1232.
38
The Human Rights Act 1998 (HRA) that entered into force in 2000 has undoubtedly
brought new impetus to the debate. The HRA requires the interpretation of primary
legislation and secondary legislation in a way which is compatible with the rights
granted by the European Convention on Human Rights and Freedoms (ECHR),
among them Art. 8 on privacy, see s. 3(1) HRA. It also makes it unlawful for a public
authority to act in a way which is incompatible with a Convention right, s. 6(1) HRA.
Courts are, as such, public authorities under the terms of s. 6 (3)(b) HRA, and their
obligation to consider the Convention even applies to private law cases. There is a
debate as to whether the courts must interpret the law as being compatible with
ECHR or only have to take it into account.
39
R v. Central Independent Television plc at 204, per Hoffmann LJ.
40
For a review of the various recommendations made by the Law Commission, see
Michael Douglas and Others v. Hello! Ltd and Others [2001] QB 967, at 993 et seq., per
Brooke LJ.
41
Report of the Committee on Privacy and Related Matters, Cm 1102, Jun. 1990.
42
See, e.g., the Rehabilitation of Offenders Act 1984, the Defamation Act 1996, and
the Harassment Act 1997.
43
For an analysis of the Press Complaint Code, see G. Gounalakis and R. Glowalla,
‘Reformbestrebungen zum Persönlichkeitsschutz in England (Teil 2)’ (1997) Archiv
für Presserecht 870 et seq.
44
A well-known extra-judicial analysis is provided by Sir B. Neill, ‘Privacy: a chal-
lenge for the next century’, in B. Markesinis (ed.), Protecting Privacy (Oxford: 1999)
at 1 et seq. For a useful survey of case law prior to the House of Lords decisions see
G. Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right
is becoming the most important tort, to the extent that it could be

described as a de facto tort of invasion of privacy.
Finland
I. Operative rules
The professor does not have a claim against the newspaper in case (b)
and probably not in case (a) either. An injunction is not possible.

Although Ch. 24, s. 9 of the Finnish Penal Code (see Case 1) provides
that it is a punishable act to present true facts about a person in order
to insult that person, that is probably not the situation in this particu-
lar case.45 The provision in Ch. 24, s. 9(2) makes it lawful to criticise
and impart facts about persons in political and business life, about
civil servants, scientists and artists or other persons working in the
public sphere.
Recently, in decision 2005:136, the Finnish Supreme Court estab-
lished the rule that information about a crime committed by a person
belongs first and foremost to that person’s private sphere.46 The justifi-
cation is that, according to s. 11 of the Finnish Personal Data Act, crimi-
nal behaviour is sensitive information about a person.47 As a counter
principle, there is a legitimate public interest to receive information
concerning crimes and criminals. According to the Supreme Court,
of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726 et seq. For
monographs from the perspective of continental lawyers, see, e.g., M. Branscheid,
Zivilrechtlicher Persönlichkeitsschutz gegen die Presse in England (Münster: 2001). See also
A. Ohly, ‘Der Schutz der Persönlichkeit im englischen Zivilrecht’ (2001) 65 Rabels
Zeitschrift für ausländisches und internationales Privatrecht 39 et seq.
45
Until case 2005:136, the Supreme Court had not dealt with the question of when
it is lawful to publish the name and picture of a criminal, although case 2001:96
prima facie seems to have dealt with these questions. In a newspaper article in
Helsingin Sanomat dated 19 Oct. 2003, two Supreme Court judges explicitly stated
that the latter case merely dealt with the legal question of whether it is lawful to
publish the picture of a criminal taken in that criminal’s home and not with the
question of whether it is lawful to publish the name and a picture of the criminal
per se.
46
The Supreme Court took the opposite position to Vaasa Appellate Court 1994:12,
according to which the publishing of the picture of a criminal could not constitute
a violation of the criminal’s privacy as the crime was committed in a public place
and subject to public prosecution.
47
It is also to be noted that the Supreme Court refers to the case law of the ECtHR as a
justification for interpreting the scope of private life broadly.
there is no clear answer on how the balance between these opposite

interests should be reached.48
Thus, Ch. 24, s. 8 of the Finnish Penal Code can also be applicable
to the reporting of crimes and mentioning of the criminal’s name in
the press. This provision states that it is a crime to unlawfully reveal
information about someone’s private life to a large number of people
in a way which is likely to cause damage or suffering to the offended
person. Nevertheless, there is an exception under s. 8(2) concerning
information about a person in politics, business life or public adminis-
tration. According to s. 8(2), information can be revealed if it is relevant
to the evaluation of the person’s activities in these fields and the revela-
tions are needed for dealing with a socially important matter.
The Finnish Council for Mass Media has already provided more
detailed standards on when it is legitimate to disclose information
about the personality of a criminal. According to these guidelines, ‘the
publication of a name or other identifying facts when dealing with
crime can only be justified on the grounds that considerable public
interest is served by this’.49 Considerable public interest can be based
on many considerations. Firstly, the criminal act has to be taken into
account. If the crime is directed against society or its citizens and has a
severe impact on the economic life or the health of those citizens, this
will lower the requirements for revealing the name of the criminal.
Secondly, the position of the criminal is decisive. The more political,
economic or administrative power the criminal possesses, the more
legitimate it is to reveal his/her name. Thirdly, the point in time when
the name is revealed is important. The publication of the name of a
criminal is more legitimate directly after a court decision than at a
time when he/she is only a suspect.
In case 2005:136, the Supreme Court further mentions the need to
protect the victim and possible third parties as a decisive condition.
Moreover, the way in which the newspaper deals with the crime and
the criminal is of importance. If the article also reveals other facts
relating to the criminal’s private life it is more likely that mentioning
the name or the identity of the criminal is unlawful.50
48
See also P. Tiilikka, Sananvapaus ja yksilön suoja – Lehtiartikkelin aiheuttaman kär-
simyksen korvaaminen (Vantaa: 2007) at 147–8.
49
See www.jsn.fi/english/guidel.html#Protection (28 Feb. 2003). See also Tiilikka,
‘Yksityiselämän suojan tulkinnasta korkeimmassa oikeudessa’, in Mitä saa sanoa?
Viestintäoikeuden vuosikirja 2003 (Helsinki: 2003) at 97–9.
50
See also Tiilikka, Sananvapaus ja yksilön suoja at 507–29.
With regard to case (b), there is no doubt that crime in the form of
demanding a bribe (i.e. sex) has a direct impact on the professor’s posi-
tion as a university teacher and the public will have a legitimate inter-
est to know his name. In case (a), there is no connection between the
crime as such and the professor’s public office. In this case, however,
the crime, i.e. driving under the influence of alcohol and thereby caus-
ing someone’s death, is a severe threat to the security of the public.
The position that the professor holds involves teaching at the highest
academic level and this indicates that there is quite evidently a public
interest in revealing his name. Therefore, it is not likely that the pro-
fessor could claim damages.51 In both scenarios, his name was only
revealed after the conviction, which is more legitimate than the publi-
cation of a name before a conviction or even before a trial.
As was described in Case 1, injunctive relief is not possible in connec-
tion with matters that can be categorised under the use of the funda-
mental right of freedom of speech.
France
I. Operative rules
The law professor has no cause of action against the journal.

The principle that justice be administered in public is essential to
French law. It not only implies that the debate on and delivery of the
judgment take place publicly,52 but also that the press can report freely
on these facts.53 As long as the court proceedings have not yet been
completed, the principle that inquiry and investigation proceedings
are secret (Art. 11 Code of Criminal Procedure) and the presumption of
innocence (Art. 9–1 C.civ.) limit the freedom of journalists. Moreover,
the protection of the presumption of innocence has been strengthened
recently, notably by the Act of 15 June 2000.54 However, by definition, it
51
See Tiilikka, Päätoimittajan ja toimittajan vahingonkorvausvastuu (unpublished licenti-
ate (master’s) thesis, University of Helsinki: Sept. 2000) at 295, who states that it is
common in Finland that crimes involving violence while intoxicated are reported
in the newspaper mentioning the names of the criminals.
52
With the exception of certain cases concerning minors or sexual attacks.
53
Art. 41(3) of the 1881 Act.
54
Act no. 2000-516 of 15 Jun. 2000 reinforcing the protection of the presumption of
innocence and the rights of victims has notably modified Art. 9–1 C.civ., which now
looks at the person who ‘before any sentence (…) is publicly shown as being guilty
of facts under inquiry or preliminary investigation’.
only protects persons who have not yet been convicted. Once the con-
viction has been handed down, the person concerned cannot oppose a
report of that fact in the press or the mention of his/her name therein.
Furthermore, as the judgment in this case was published the day after
the proceedings had ended, the professor here cannot assert any ‘right
to be forgotten’ (see Case 3) or any injury to his capacity for resocialisa-
tion. As soon as he is convicted, he has no cause of action against the
journal which reports the judgment.
Germany
I. Operative rules
There are no claims against the newspaper, although this result may
be disputed with regard to situation (a) since the law is not clear in
such circumstances.

In contrast to Case 1, the allegations in Case 2 are undoubtedly true.
Nevertheless, it is harmful to any law professor’s reputation when
details about his/her unlawful behaviour are published. Therefore, his/
her honour and reputation are affected. However, the right to honour
and reputation only protects the honour and reputation deserved, not
the honour and reputation which is actually, but falsely, attributed to
the person by society.55 Therefore, a person who is concerned by a true
but embarrassing publication has no entitlement based on his or her
right to honour to prevent the press from reporting.
To the extent that the true fact, whether it is embarrassing or not,
stems from the inner private sphere of the person, there is a claim
against the invasion of this part of privacy based on the general per-
sonality right, protected by general tort law under § 823(1) BGB. Details
about one’s sexual life usually fall under the sphere of intimacy.56
However, in general there is no right of privacy in court proceedings.57
These events, even if originally derived from private situations, fall
under the social life of a person and not his/her private life and the
press may report on these proceedings, even by mentioning the names
55
BVerfG NJW 1989, 3269, 3270; OLG Karlsruhe, ZUM-RD 2006, 76, 77.
56
BGH NJW 1981, 1089, 1091; OLG Karlsruhe NJW 2006, 617, 618.
57
However, German procedural law does not allow cameras or recordings in court
rooms (Court TV) in order to prevent any undue influence on judges, parties and
witnesses, see § 169 Gerichtsverfassungsgesetz (GVG), BVerfG NJW 1996, 310; BVerfG
NJW 1996, 581, 583.
of the parties involved, as long as the facts reported are true and com-
plete, i.e. the professional duty of full and fair comment is met (see
Case 1).58 This right results from the fact that the press acts in the pub-
lic interest by reporting on criminal cases. The right of the public to
be informed about criminal court proceedings is limited by the right
of the convicted individual to be left alone as part of his/her interest
to social adjustment and rehabilitation.59 However, this interest only
arises a certain time after the conviction has passed. Therefore, in the
case at hand, the press has a right to report on the trial proceedings by
publishing the name of the professor if this report is published right
after or in close temporal proximity to the judgment. An exception to
the right of the press to report on the identity of the convicted is only
made for juvenile delinquents and minor offences.60
Doubts might appear concerning the exact content of the publication
and whether the press may publish the full facts of the case. As press
privileges must always be weighed against the personality interests of
the convicted individual, courts make distinctions with regard to the
question of how intensively the press may report. The more serious the
offence and the more eminent the position of the convicted person,
the more intensively the press may report.61 With respect to this dif-
ference, situation (b) will justify a more extensive report than situation
(a). In situation (a), the breach of law is serious with respect to the death
of a person. However, the relationship between the act and the func-
tion and status of the professor is less intensive than in situation (b),
therefore the public interest in knowing about the offender is less. One
might argue, however, that for a law professor any breach of law which
concerns his/her professional obligation to serve as an example to his/
her students is serious. Therefore, there is a relevant link between the
crime and the professional function of the convicted.62 A balancing of
interests could therefore come to the result that an anonymous report
58
BVerfGE 35, 202, 232 = NJW 1973, 1226 – ‘Lebach’-case I; OLG Nürnberg NJW 1996,
530; OLG Saarbrücken NJW-RR 1998, 745; BVerfG NJW 2000, 1859 – ‘Lebach’-case II;
OLG Frankfurt/Main AfP 2006, 185 – Cannibal of Rothenburg.
59
BVerfGE 35, 202, 237; OLG Hamburg ZUM 1995, 336, 338; OLG Frankfurt/Main
NJW-RR 1995, 476, 477.
60
BVerfGE 35, 202, 232; BGH AfP 2006, 62, 63.
61
BVerfG AfP 2006, 354, 355 f.; BGH NJW 2006, 599, 600; OLG Hamburg AfP 2006,
257, 258.
62
Similar case: OLG Düsseldorf AfP 1980, 108, 109: shoplifting by an important state
government official.
would not have been sufficient to satisfy the public interest in the case.
Therefore, there is probably no claim.
In situation (b), the professor’s function as a teacher implies that he
has a duty to refrain from exercising any undue influence on his stu-
dents. Although reports about the sexual life of a person will always
touch upon this person’s intimate life, this no longer holds true when
the sexual behaviour also touches upon that person’s public sphere.63

Due to the sociological and political ‘watchdog function’ of the press,
the press have a privilege to report on true facts. Therefore, public
figures and figures with public functions have to suffer a more intense
observation of their private behaviour. From a psychological point of
view, it has been questioned whether this may have the effect of deter-
ring competent persons from taking on a public position.64
Greece
I. Operative rules
The professor probably has a claim for compensation of both economic
and non-economic loss.

The act of defamation loses its unlawful character when it concerns jour-
nalistic information about severe crimes, an issue that is of significant
interest for society as a whole.65 Nonetheless, the public interest could
be satisfied without mentioning the name of the person involved. As the
Supreme Court has decided in a similar case, ‘the authors of the article
have exceeded the measure that is absolutely necessary for the fulfilment
of their duty in that the scope of informing the public could be achieved
without reference to the names of the persons involved’.66 Furthermore,
the journalist acted with fault since he/she was aware of the fact that the
publication of the name was not objectively necessary and that this act
specifically leads to injury to the professor’s honour and reputation.
The act still has an unlawful character, unlawfulness constituting
a main element of liability in tort law when the offender is aware
63
OLG Hamburg NJW-RR 1991, 98 (press report on an intimate relationship between
the father of former tennis champion Steffi Graf and an ex-Playmate alleging that a
child was born as a result of this relationship).
64
M. Kriele, ‘Ehrenschutz und Meinungsfreiheit’ (1994) NJW 1897, 1898.
65
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) at 70.
66
Supreme Court Decision 825/2002, available in Greek legal Database ‘NOMOS’.
that the stated facts are false or when the conditions and the man-
ner in which the facts are stated prove that defamation is intended.
Intentional defamation means ‘behaviour that mainly leads to injury
to a person’s honour by contesting his moral or social value’.67
The protective mechanism of Arts. 57 and 59 CC is set in motion
when the offence to one’s personality is a serious one. Apart from this
situation, many interferences into the personal sphere occur in every-
day life which do not exceed the limits set by social rules.68
Vague criteria are applied when establishing, in particular, whether
an act by the press is an injury to someone’s honour and reputation.
This depends on many factors such as: (a) the content of the insult; (b)
the qualitative and quantitative effect of the insult; (c) the medium
used for the insulting action; and (d) the reason and the motives for the
insulting action.69
Ireland
I. Operative rules
The professor does not have a claim against the newspaper in either
scenario.

As outlined in the English report, no action in defamation could exist
as the publication is both accurate and truthful. An action in breach of
confidence could not exist as the information is already in the public
domain by virtue of the professor’s appearance in court.
S. 18 of the Defamation Act 1961 confers a privilege on fair and
accurate reports of court proceedings which are held in public. These
reports must be contemporaneous, i.e. reporting must occur during
the trial or immediately afterwards. Thus, the professor would not
have an action against the newspaper as the story was published the
day after the verdict.
Italy
I. Operative rules
The professor has no cause of action against the newspaper in either
situation (a) or (b).
67
Ibid. 68 Karakostas, Personality and Press, at 68.
69
Ibid. at 70–3.

Publications concerning crimes committed in the past, which enable
the offender to be identified, are not allowed without restriction. As
a rule, if the crimes committed have already been made public in the
past, further infringements of the privacy of the convicted person are
no longer justified by a sufficient public interest; the ‘right to be forgot-
ten’ prevails.70
However, in the present case, the professor’s crime was reported in
the press for the first time the day after the sentencing. Therefore, there
is still public interest in the news. Clearly, this does not justify the pub-
lication of all details of the professor’s story. As his personal dignity
and privacy should be respected, the publication of details concerning
his intimate life or other personal data which are not essential to the
crime in question should be omitted. That published information must
be essential is explicitly required by Art. 137(3) Data Protection Code
(DPC) and Art. 6 of the Journalists’ Code of Conduct.71 This principle is
also emphasised by courts, scholars and the Data Protection Authority
(Garante per la protezione dei dati personali).72
If this requirement of ‘essentiality’ is met and if the right to be for-
gotten is not at stake, neither Italian legislation nor case law protect
the anonymity of the offender after sentencing has occurred.73 The
names of the persons whose involvement in criminal offences is cer-
tain are usually published in the news, regardless of the type of crime.
Anonymity after sentencing does not even seem to be an issue in aca-
demic debate (however, under Art. 52 DPC, the offender can oppose
the publication of his/her name in law reviews which reproduce the
text of the judgment74). Nevertheless, the anonymity of persons under
investigation is rarely granted, especially if the person concerned is
notorious.
70
See Case 3.
71
Codice di deontologia relativo al trattamento dei dati personali nell’esercizio dell’attività
giornalistica, Gazz. Uff. 3 Aug. 1998 no. 179. The Journalists’ Code of Conduct is now
provided for by Art. 139 DPC.
72
Cf., e.g., Garante protezione dati, 12 Oct. 1998, in M. Paissan (ed.), Privacy e giornal-
ismo (2nd edn., Rome: 2006) at 103; Garante protezione dati, 21 Oct. 1998, ibid.
at 179.
73
Garante protezione dati, 21 Oct. 1998; Garante protezione dati, 21 Nov. 2001, in
M. Paissan (ed.) Privacy e giornalismo at 183.
74
On this issue see G. Resta, ‘Privacy e processo civile: il problema della litigation
anonima’ (2005) Il diritto dell’informazione e dell’informatica at 681.
Thus, in both situations (a) and (b), the publication is to be deemed

lawful on the basis of the fundamental rights to freedom of the press
and freedom of information (Art. 21 Cost.), provided that the facts
reported are true, covered by a sufficient public interest, and are
respectfully formulated.75
The Netherlands
I. Operative rules
The professor does not have a claim against the newspaper.

(a) The crime consists of causing the death of a person in a car accident
due to drunken driving.
If someone commits a crime and is convicted by a court of doing so,
it is not necessarily unlawful to publish that person’s name and true
facts concerning his/her crime. A newspaper has the right to freedom
of expression (Art. 7 Constitution). Freedom of expression is only lim-
ited if the publication harms the criminal in a disproportional way. If
this is the case, the publication of his/her name is a breach of a duty
imposed by an unwritten rule of law pertaining to proper social con-
duct and, for that reason, an unlawful act. This is the situation when
there is no reasonable objective in publishing the name of the criminal
(see Case 1, circumstance (b)) and/or when the interests of the criminal
are unreasonably infringed by the publication (see Case 1, situation (a)).
Normally the public has a reasonable interest to be informed about
crimes and criminals and, thus, in the publication of a criminal’s name
(see Case 1, circumstance (b)). In general, the fact that the publication
of the criminal’s name infringes his/her interest to be left alone is not
decisive for the unlawfulness of the publication. However, it is differ-
ent if the publication would result in a clear and present danger to
the criminal, for instance if it can be expected that citizens might be
aggressive towards the criminal if they find out that he/she is their
neighbour (see Case 1, circumstance (a)).76
Although in this particular case the publication of the professor’s
name will harm his reputation and weaken his position, these inter-
ests do not outweigh the public interest in freedom of expression and
in being informed about facts that threaten the important values of
75
Cf. Case 1.
76
G. A. I. Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII, (Deventer: 2000).
society. Therefore, the professor does not have a claim either against
the journalist or against the journalist’s employer.
(b) The crime consists of promising female students better

grades in exchange for sex.
In this situation, other public interests are concerned besides the mere
public interest in freedom of expression. Arguably, the publication of
the professor’s name is a warning to other students and thus some
preventive effect can be contributed to the publication. Under these
circumstances, the only reason the publication of a name would be
unlawful is where it would result in a clear and present danger to the
life of the criminal (see Case 1, circumstance (a)). For the most part,
this danger cannot be distinguished before the name has been pub-
lished. For that reason the professor does not have a claim.
Portugal
I. Operative rules
The professor does not, in principle, have a claim against the newspa-
per in either situation.

There is no ‘right to remain anonymous’ in Portuguese law. In prin-
ciple, the conviction of an individual in a criminal case is a public
matter, which is not covered by restrictions related to privacy. The
identity (name, photo, etc.) of the victims may be withheld as a means
of protection, but this does not apply to the identity of the offender.
Furthermore, the trial takes place in public (as well as the sentenc-
ing), unless the president of the court decides to exclude or restrict its
publicity, according to Arts. 321 CPP and 206 CRP, on the basis of the
persons’ dignity, public order or good functioning of the proceedings
(Arts. 87(2) CPP and 206 CRP). As a rule, the only cases which are held
in camera concern sexual offences where the injured party is under 16
years old (Art. 87(3) CPP). At any rate, the final decision is always made
in public (Arts. 87(5) and 373 CPP).
Members of the media are allowed to report the content of all public
judicial proceedings, as long as they take the circumstances surround-
ing those proceedings into account when reporting (Art. 88(1) CPP).
The identification of offenders is always allowed; the identification
of victims of sexual crimes, crimes against honour, or invasions of
privacy is forbidden when these victims are under 16 years old (Art.
88(2), para. (c), CPP). Of course, some circumstances will inevitably lead
to a greater public interest in a specific case, and a case where the
convicted person is a law professor would undoubtedly be such an
instance. Journalists have a saying that ‘news happens when the gar-
dener bites the dog, not when the dog bites the gardener’. In the minds
of journalists and most of the public, there is something complex or
unusual about a law professor committing a criminal offence. This
makes it more ‘palatable’ to the public curiosity. The negative moral
value of drunken driving, connected with the seriousness of the death
of the victim (hypothesis (a)), increases the immorality of the case and
calls for a more intense social criticism; the same goes for hypothesis
(b). This justifies public reproach.
The professor is not entitled to claim compensation unless there are
any excessive and unlawful terms used in the report which may be
unnecessarily and unduly offensive.77 Therefore, the publication of the
case in the newspaper is legal and the law professor would have no
claim as long as:
(a) the article reports the final decision taking (or at least not disregard-
ing) the circumstances surrounding it into account (Art. 88(1) CPP);
(b) all information conveyed is accurate and objective (Art. 3 LI );
(c) it is done in a proportional, necessary and adequate manner.78
Scotland
I. Operative rules
The law professor does not have a claim.

Prior to the enactment of the HRA, the issue of press reports on court
proceedings following a criminal conviction was simply seen as a mat-
ter of open justice. The paramount principle of Scots law, as well as
English law, was that a system of open justice requires the correct
reporting of what has taken place in court:
The principle on which this rule is founded seems to be that, as the Courts of
Justice are open to the public, anything that takes place before a judge … is
77
See considerations in Case 1 regarding the provisions regulating journalistic activ-
ity in Portugal, in particular the Journalists Statute and the Journalists’ Union Code
of Practice.
78
STJ 5.03.1996, 29.10.1996, 26.09.2000, 14.05.2002.
necessarily and legitimately made in public, and being once made legitimately
public property, may be republished without inferring any responsibility.79
A criminal conviction is proof of the correctness of the reporting.80

With the advent of the HRA and Art. 8 ECHR, it is conceivable that
the question of an individual citizen’s right to privacy as a perpetrator
of crime and a parallel (competing) right to rehabilitation beyond the
public eye may deserve consideration. Case law protecting the privacy
of criminals is limited but nevertheless exists.81 There are, however,
some exceptions to the overriding principle of public justice.
At common law and by statute, both English and Scots law may
impose reporting restrictions in order to protect victims of crime.82
The legislation covers proceedings involving sexual offences against
women and children in particular.
There is only one specific statutory provision allowing for the protec-
tion of the offender in the sense of rehabilitation – the Rehabilitation
of Offenders Act83– but it is neither applicable here nor does it contain
any provisions relevant to the protection of identity in the sense of pri-
vacy. Furthermore, the Act does not limit press freedom to report on
the perpetrators of crimes. Even where it could be argued that the HRA
requires a greater assessment and a balance to be struck between the
perpetrator’s interests in privacy and the public interest, particularly
in view of the timing of the publication, the overriding interest is that
the public be informed of the truth.84
79
Richardson v. Wilson, (1879) 7R 237 per Lord President Inglis.
80
Civil Evidence Act 1968 s. 13(1) for England; Law Reform (Miscellaneous Provisions)
(Scotland) Act 1968, Ch. 70; see s. 12(2) Defamation Act 1996.
81
Restrictions on reporting can be made at common law and under statute for victims
to preserve their anonymity, see Calcutt Report, Report of the Committee on
Privacy and Related Matters, Cm 1102, Jun. 1990.
82
There are various statutes restricting reporting and photographing or sketching in
cases involving juveniles and specific categories of crime, see Calcutt Report, appen-
dix F; in the same report, appendix G lists those statutes where there are restric-
tions on the identification of victims.
83
Rehabilitation of Offenders Act 1974, Ch. 53, ss. 8 and 9. The rehabilitation period
for periods of imprisonment of six months and less is seven years; five years for
all other periods that are less than six months’ imprisonment. The Act also covers
discharges or acquittals.
84
There is no immediate equivalent authority to the decision of the German
Constitutional Court with regard to limitations on media coverage prejudicial to a
prisoner on his release, see BVerfG 35, 202 = NJW 1973, 1226 Lebach. For a discussion
on the balance of interests in German law see G. Brüggemeier, Deliktsrecht (Baden-
Baden: 1986), no. 229.
The recent release of an infamous child murderer in England, which

led to the High Court awarding a lifelong anonymity order for both the per-
petrator and her child,85 is a perfect example of an exceptional case relating
to the protection of the criminal. It should be recalled that such an order
can be made at common law.86 In the particular circumstances of that
case, the court relied on the evidence of a leading psychiatrist who con-
firmed the paramount medical reasons for making such an award.
Since the enactment of the HRA, there has been no recent Scots
authority supporting the principle that the perpetrator of a crime will
be granted equal or indeed greater protection than the victim.
Recent English cases relating to pre-trial charges have led to a renewed
call for the introduction of a clear right to privacy. A call for greater
protection of the perpetrator, as opposed to the victim, occurred as
a result of criminal proceedings (rape charges) against well-known
persons in public life that were subsequently dropped by the Crown
Prosecution Service (CPS) as the damage to the implicated individu-
als had already occurred through media coverage at the time of the
charges.87
The questions addressed in this particular hypothetical case distin-
guish between crimes (a) and (b), both perpetrated by a person of gen-
erally well-accepted standing. The only distinction between them is
in relation to the sentence imposed.88 The law does not prohibit the
publication of an individual’s criminal convictions, irrespective of the
type of crime or misdemeanour.89 Both instances referred to here dem-
onstrate behaviour which is not fitting for a person of this particular
standing, therefore there is limited room for lowering the professor
any more in the eyes of society.
85
X (A Woman formerly known as Mary Bell) and Anor. v. O’Brien & News Group Newspapers
Ltd [2003] EWHC 1101 (QB), Order of 21 May 2003. Such life long injunctions ad
mundum have only been ordered in three cases relating to child murderers and oth-
erwise in special circumstances involving ‘supergrasses’; see Venables v. News Group
Newspapers Ltd [2001] 1 All ER 908 (child murderers of James Bulger); Nicholls v. BBC
[1999] EMLR 791. These are all English authorities.
86
See Calcutt Report. Such orders are not made for convenience but in order to ensure
the administration of justice, see AG v. Leveller Magazine Ltd [1979] AC 440.
87
The Times, 27 May 2003.
88
See above n. 83.
89
Campbell v. MGN Ltd (HL) per Baroness Hale at para. 142: ‘On the other hand was the
public interest in the free reporting of murder trials. This is not only important
in itself, as a manifestation both of freedom of expression and freedom to receive
information. It is also an essential component in a fair trial … the public can have
confidence in the system both in general and in the particular case.’
At any rate, hypothesis (b) would go before a jury. As long as the

report only covers facts without any additional sting, there is little or
no legal remedy, not even a right to protection under the privacy provi-
sions of the HRA.
Nevertheless, should the reporting go beyond the necessary degree
of straight fact, the professor could theoretically bring a case of defa-
mation but would need to face the defence’s plea of veritas. Still, juries
can be persuaded that newspaper reports can contain libel or defama-
tory statements. The recent English libel case of Alan Campbell v. News
Group Newspapers Ltd, concerning a paedophile (a fact in itself not sub-
ject to dispute), demonstrates just how much libel cases turn on the
individual wording of the moment. In this particular instance,90 the
claimant had been seriously maligned in a news report. The fact that
he was apparently a paedophile was insufficient in itself to reduce
the sting of the libel, which included allegations of appearing in por-
nographic paedophile videos. On appeal, he was awarded £30,000 in
damages.
The remaining defence open to the press in this case is that of privi-
lege. Privilege is both a common law and statutory protection91 given to
court reporting and the subsequent media coverage of what has been
said in court. Common law privilege requires the reporting to be fair and
accurate. Whether the privilege itself is absolute or qualified it provides
a legal defence against claims of defamation. In relation to criminal pro-
ceedings, Home Office circulars require that the defendant’s name be
read out in court to avoid any errors regarding the actual person, so that,
unless exceptional conditions prevail, the name will be divulged in court.
There are diverging views as to whether Scots law attributes (reports
on) judicial proceedings with qualified privilege rather than absolute
privilege. The Scots authorities certainly show that if malice is averred,
the privilege may be lost. Hence, Scottish cases refer to qualified privi-
lege more.

In relation to the proper administration of justice, the provisions of the
HRA have had no major impact on restricting the freedom of expres-
sion concerning what takes place in the courts. If the case can be made
90
Alan Campbell v. News Group Newspapers Ltd [2002] EMLR 43.
91
Defamation Act 1996, ss. 14, 15; also regulated in specific statutes such as the 1990
Broadcasting Act.
that rehabilitation is endangered, then special interests will be taken

into account (cf. Mary Bell above) at that stage. It is unlikely that the
current tipping of the balance in favour of fair trial and justice will
give way to the perpetrator’s overriding privacy interests, as opposed
to those of the victim.
Spain
I. Operative rules
The professor does not have a claim.

Mentioning the professor’s name in a newspaper after he has been con-
victed of committing a crime is not actionable when the information
is true and is in the public interest. Some Spanish Supreme Court deci-
sions have dealt with this point. In one such case where a newspaper
published that the claimant had been convicted of committing a crime
and gave the claimant’s name, a conflict arose between the fundamen-
tal rights to honour and freedom of information. The court decided in
favour of the latter because the information was true and was in the
public interest and the report substantially reproduced the contents of
the Criminal Court decision.92 Art. 120.1 Spanish Constitution provides
92
Spanish Supreme Court Decision (STS), 13 Jun. 1998 (RJ 4688). There have been
some other notable cases relating to the publication of information that identifies
people under arrest for suspicion of having committed a crime. These include STS,
24 Jun. 2000 (RJ 5303), and STS, 29 Mar. 2001 (RJ 6637). In the fi rst case, a letter was
published in the readers’ opinion section of a newspaper. Its content referred to a
speech given by the mayor of Cabrales (a town in Asturias) before several journal-
ists, but in addition to criticising the speech, the anonymous author of the letter
also mentioned that the mayor was detained in Barajas airport for cocaine traffick-
ing. The mayor claimed against the editor, the director and assistant director of the
newspaper for damages and the publication of the sentence. First Instance Court of
Oviedo (30 Dec. 1994) granted the claim and required the defendants to pay €6,000,
a ruling that was confirmed both by Court of Appeals and Supreme Court: ‘the con-
tent of the letter goes beyond the freedom of speech given that the reference to the
detention has nothing to do with the speech, and the newspaper has allowed the
content of the letter as far as it published a letter without identifying the author.’
In the second case, a newspaper published that, after the breaking up a group of
thieves, two persons were detained as holders of the stolen goods (receptador). These
two persons were released and absolved and filed a claim against the newspaper.
The Supreme Court rejected the claim as it considered that the news was true –
mentioned that the claimants were detained but at fault – and the news is of public
interest. The identity of the claimants is also of interest: the right of information
includes all information, and not only part of it.
that judicial proceedings are to be held in public, with exceptions reg-

ulated by ordinary law.
Thus, in both cases, the professor has no action against the newspa-
per to protect his rights to honour or personal privacy.
Switzerland
I. Operative rules
If the crime consists of causing the death of a person in a car acci-
dent due to drunken driving, publication is unlawful and the profes-
sor would have a claim against the newspaper. If the crime consists of
promising students better grades in exchange for sex, the professor
has no legal claim against the newspaper.

As a rule, publishing information about a crime and mentioning a
person’s name therein is an infringement of his or her private sphere
and violates Art. 28, para. 1 CC. However, publication can be justified
by a public interest. In general, such an interest will be considered
dominant where the related events have repercussions on the public
activity of the convicted person or if they are based on that person’s
fame.93 It is commonly understood that a general interest in report-
ing on judicial proceedings exists, at least where the proceedings are
particularly interesting because of the status of the persons involved
and the nature of the infractions committed. However, the rule is
that such reports must be communicated in an anonymous form.94
Thus, the publication of the name or initials of the person indicted,
charged, or convicted is not justified, at least where the individual is
not already known by a large number of people or where divulging
his or her identity does not serve the needs of a police or judicial
investigation. The idea behind this is that divulging an individual’s
identity in the media constitutes a public vilification which compli-
cates reintegration into society. This is especially true in a country as
small as Switzerland.95
Some may argue that publication could prevent re-offending.
However, as Barrelet asserts, warning the public of the risks presented
93
ATF/BGE 126 III 209 c. 4, JdT 2000 I 302.
94
ATF/BGE 129 III 529 c. 3.2; ATF/BGE 116 IV 31, JdT 1992 IV 28 (‘Proksch’).
95
D. Barrelet, ‘La publication du nom des auteurs d’infractions par les médias’ (1998)
Médialex at 204 and 206.
by an individual, notably related to sexual behaviour, is not a predomi-

nant public interest. In fact, a large number of delinquents pose the
risk of re-offending, and if a preponderant public interest were present,
one could nullify the rule of anonymity.96
(a) The crime consists of causing the death of a person in a car

accident due to drunken driving.
The Federal Court has recognised that the publication of a judgment
can be essential for the public interest as an example, just as a driver
reprimanded for traffic violations provides an example to other driv-
ers on the road.97 Nevertheless, the rule is anonymity. Therefore, the
publication of someone’s name must be necessary for the protection of
the public. As pointed out earlier, the infraction must be related to the
individual’s public position and a preponderant public interest must
justify the infringement. In the case at hand it is hard to imagine how
the publication of the professor’s name will serve the public interest,
outweighing the infringement. Moreover, the public interest will be
equally satisfied if, rather than publishing the professor’s name, an
impersonal reference such as ‘a law professor’ were used. Here, since
the principle of proportionality between the public interest and the
professor’s private sphere is not respected, the infringement is unlaw-
ful. The situation would be different if the offender were a politician.
The public has the right to know about the kind of person they elect,
therefore the public interest would be weighty enough to justify the
infringement.
Where the trouble caused by the infringement persists, the law pro-
fessor may request a declaratory judgment holding that the publica-
tion is unlawful (Art. 28a, para. 1, ch. 3 CC). He may also subsequently
demand damages under Art. 28a, para. 3 CC.
(b) The crime consists of promising female students better grades

in exchange for sex.
In this scenario, concealing the name of the professor in connection
with this sort of behaviour could cause the public to feel deceived.
The sexual behaviour of the professor is part of his intimate sphere,
which includes facts and deeds that must be withheld from gen-
eral knowledge, with the exception of people to whom these facts
96 97
Ibid. at 210. ATF/BGE 92 IV 184 c. 1, JdT 1967 I 468.
were specifically confided.98 However, personality rights are not unre-

stricted, in particular where there is a public interest at stake.
Publication of the professor’s name may be in the public interest. It
may prevent the professor from committing further similar offences,
since all of his students would be aware of his actions. The infraction
is linked to his position as a professor and it is incompatible with his
functions. The need to protect the students and provide them with an
adequate learning environment justifies the infringement of his pri-
vate sphere. Therefore, publication is not unlawful and the law profes-
sor has no claim against the newspaper.

Directive 7.6 of the Swiss Press Council prohibits journalists from pub-
lishing the name or any other identifying characteristic of a person
involved in judicial proceedings. Simultaneously, it outlines the excep-
tions to the principle of anonymity and to the protection of the private
sphere; such exceptions are predominantly authorised ‘where the indi-
vidual exercises a political mandate or an important public function
and he is pursued for having committed acts incompatible with such
functions’ or ‘where his notoriety is recognised’.99
Recently, the names of two politicians appeared in a Swiss news-
paper after automobile accidents or speeding offences. Because both
were well known, their identities were revealed. The first politician,
accompanied by a passenger, was involved in a car accident that did
not result in serious injuries. The second politician was under scrutiny
because he caused an accident while driving under the influence of
alcohol, after already having had his driving licence suspended numer-
ous times for the same reason.
These two examples bring to light the relationship between the func-
tion performed by the individual and the image it represents, which
must be maintained. The politicians’ non-observance of their political
duties, as well as their notoriety, gave rise to the publication of their
names and infractions. This is in line with what the Swiss Press Council
has also affirmed: ‘the publication of identity is essential where the
individual concerned is publicly-known by virtue of the importance or
the nature of his or her professional activities and where the infraction
98
H. Deschenaux and P. H. Steinauer, Personnes physiques et tutelle (4th edn., Berne: 2001)
at 79, n. 560.
99
See www.presserat.ch (5 September 2005).
is attributed in relation to these.’100 These two cases demonstrate that

the right to privacy can be limited due to the position or notoriety of
a person.
Comparative remarks
The core question in this case is when and to what extent criminal
offenders should be granted anonymity in press reports concerning
the crimes they have committed. Here, freedom of the press, freedom
of information and the public interest may clash with the privacy
rights of the offender.
The crimes contemplated by hypotheses (a) and (b) differ significantly
both in context and gravity. In situation (a), the crime is negligently or
recklessly committed and is not related to the offender’s profession. In
situation (b), the crime is intentionally committed during the exercise
of the offender’s profession. From the viewpoint of social damage tout
court, the crime under (a) may be considered more serious than the one
under (b), because of the supreme rank of human life in all European
legal systems. From the viewpoint of the offender’s social and profes-
sional reputation, however, the disclosure of the offender’s identity in
situation (b) is likely to cause greater scandal and therefore greater
damage to the offender than in situation (a).
In most legal systems, no claims would be available to the offender
in either situation (a) or (b). In Greece, the offender probably has a
claim in both situations. In Switzerland, the offender only has a claim
in situation (a).
I. Prevalent solution: no claim

In England, Scotland and Ireland, as a rule only the victim’s anonymity
is considered worthy of protection. In rare and exceptional cases, the
offender is granted anonymity by considering special circumstances,
in particular his/her age. However, these exceptional circumstances
are not present in the instant case.
Within the civil law family, most countries do not provide for a statu-
tory regulation of the ‘right to anonymity’ in relation to media reports
in criminal matters. A remarkable exception is § 7 Austrian Media
Act (MedienG). This provision prohibits the disclosure of a criminal
100
Statement of the Conseil suisse de la presse 1994, n. 7 c. 8.
offender’s identity in the media if such disclosure would cause him/

her a lasting prejudice, unless the public interest in the disclosure, in
respect of the offender’s position in public life, prevails. The Austrian
courts interpret the ‘position in public life’ requirement quite exten-
sively, so that no right to anonymity is usually acknowledged for mem-
bers of the middle/upper class such as university professors.
In most legal systems, the limits of ‘good journalistic practice’ in
reporting about crimes and criminal procedures are defined by case
law or self-regulatory instruments. Two interesting examples of self-
regulation mentioned in the national reports are the guidelines of the
Swiss Press Council and the Finnish Council for Mass Media.
In many countries, the gravity of the crime and the societal position
of the offender may play a role in the courts’ determination of the limits
to lawful press reports. This is true, for example in Germany: the more
serious the offence and the higher the offender’s position in society,
the more intensively the media may report on the crime. Accordingly,
in situation (b), a more extensive report could be justified than in situ-
ation (a). However, even in situation (a) the publication of the offender’s
name would presumably be allowed in Germany.
As a rule, in most countries the press can mention the name of an
offender when reporting on crimes. Given the intense public interest
in these facts, freedom of the press prevails when balanced against the
offender’s right to anonymity and interest in resocialisation. The latter
may only prevail if the report is published a long time after the criminal
trial took place (see Case 3). This is not the situation in the present case,
where the facts were reported the day after the offender was convicted
in court. In this situation, as long as the only intrusion into the offend-
er’s private sphere is the publication of his/her name, the offender does
not have any claim. Legal remedies may only be granted if the report
discloses additional details about the offender’s private life or other-
wise oversteps the limits of a fair and accurate report (see Case 1).
II. The Greek and Swiss solutions

It seems to be acknowledged in both Greece and Switzerland that the
offender has a general right to anonymity, prohibiting the disclosure
of his or her identity in the mass media from the very moment that
the crime has been committed. In both countries, the rule is that the
persons implicated in media reports about crimes must remain anony-
mous. The publication of the offender’s name, in principle, gives the
right to claim under Art. 57 Greek Civil Code and Art. 28 Swiss Civil
Code, both of which provide for specific causes of action for infringe-
ments of personality.
In Greece, no justification on grounds of the public interest seems
to be acknowledged in these kinds of cases. The publication of the
offender’s name is generally deemed unnecessary. Therefore, a claim
for compensation of pecuniary and non-pecuniary loss would probably
be allowed in both situations (a) and (b).
In Switzerland, the public interest in being informed may justify the
infringement of the offender’s personality caused by the publication
of his name. According to the principle of proportionality, the pub-
lic interest has to be balanced against the offender’s privacy interests.
In situation (b), mentioning the professor’s name may be in the pub-
lic interest as it may prevent the professor from committing further
similar offences since all of his female students would be aware of
his actions. On the contrary, in situation (a) the public interest will be
equally satisfied if, rather than publishing the professor’s name, an
impersonal reference such as ‘a law professor’ was used. Therefore, in
this situation, the professor would have a claim for damages. Where
the trouble caused by the infringement persists, he also may request a
declaratory judgment holding that the publication is unlawful.
6 Case 3: The paedophile case
Case
A detailed report containing the names and photographs of several
paedophiles convicted by criminal courts is published in a high-circu-
lation magazine. One of the paedophiles, Larry, was convicted three
years ago. He was released from prison a week after the publication of
the list.
Can Larry sue for damages?
Discussions
Austria
I. Operative rules
Larry’s claim for damages will probably fail under Austrian Law.

If a general right to remain anonymous under § 7a MedienG (see Case 1)
were acknowledged, this would conflict with the media’s duty of
‘warning and protecting’ as a particular element of the ‘watchdog’
function of media,1 as is emphasised by some scholars and courts in
Austria.
This is particularly true in cases of sexual offences involving chil-
dren. Here, the interests of not only the parents but also of the public in
protecting children against the long-lasting and severe consequences
1
Cf. ECtHR since the decision Sunday Times v. United Kingdom (1979) 2 EHRR 245: UGrKa
20.5.1999, ÖIMR-NL 1999/3/4, 96. In respect of the media’s duties to warn and to pro-
tect the public see OLG Graz MR 1994, 193; E. Swoboda, Das Recht der Presse (2nd edn.,
Vienna: 1999) at 88 et seq.
178
c a se 3: t he pa edophile c a se 179
of sexual abuse clearly prevail over the interest of the convicted crimi-
nal to be reincorporated into society.
The Higher Regional Court of Graz, for example, held that a paedo-
phile who was sentenced to 15 months in jail had no right to remain
anonymous when released from prison. The public interest in warn-
ing and protecting potential future victims must be considered higher
than the interests of the paedophile.2
Applying these rules to our case, there is no chance either for Larry’s
claim for an injunction (§ 381 EO) or for a claim in damages pursuant
to § 7a MedienG.
Belgium
I. Operative rules
Larry can probably sue for damages.

Larry can refer to his ‘right to be forgotten’ (droit à l’oubli), under the
right to privacy3 and to image.4 The protection of this right commences
once the normal public interest in a crime disappears and applies to
offenders during their sentence and on their release.
The right to privacy is guaranteed by Art. 22 of the Constitution. This
article provides for the right to privacy and private life, except in some
cases set out by law. The right to image has been developed in court
decisions but is now protected by Art. 10 of the Copyright Act of 30 June
1994. All persons have an exclusive right to their image and its use,
which permits them to prohibit the reproduction and dissemination
2
OLG Graz 12.9.1994, 11 Bs 269/94.
3
For a general overview of the right to privacy, see H. Vandenberghe, ‘Bescherming
van het privéleven en het recht op informatie via de massamedia’ (1969–1970) RW
1447–1470; B. Oversteyns, ‘Het recht op eerbiediging van het privéleven’ (1988–89)
RW 488–98; E. Montero, ‘La responsabilité civile des médias’, in A. Strowel and F.
Tulkens (eds.), Prévention et réparation des
préjudices causés par les médias (Brussels: 1998) at 95–134; P. De Herdt, Art. 8 EVRM
en het Belgisch recht. De bescherming van privacy, gezin, woonst en communicatie
(Ghent: 1998), 367.
4
For a general overview of the right to image, see E. Guldix, ‘Algemene systema-
tische beschouwingen over het persoonlijkheidsrecht op de eigen afbeelding’,
(1980–81) RW 1161–92; M. Isgour and B. Vincotte, Le droit à l’image (Brussels: 1998) at
160; G. Ballon, ‘De rechten van de geportretteerde’ (1985–86) RW 2648–9; J. Lievens,
‘Het recht op afbeelding’ (1977–78) RW 1857–68; L. Diericx, Het recht op af beelding
(Antwerp: 2005).
thereof without prior express authorisation.5 Art. 10 does not prohibit

the actual taking of a photograph. It only prohibits its reproduction
and dissemination.6
The right to be forgotten does not prohibit renewed press attention
in a crime or a criminal provided the issue is newsworthy, e.g. in an
annual review. Furthermore, that attention must be in proportion to
the newsworthiness, e.g. only a short report would be justified, not the
recapitulation of the entire story in detail. The Civil Court of Brussels
condemned the Minister of Justice and a Belgian television station for
broadcasting a television programme reconstructing a prisoner’s spec-
tacular escape attempt which had taken place years before. The fact
that the programme was not related to an important social problem
was decisive. The court awarded the (former) prisoner compensation
of 100,000 BEF (€2,500) for the non-economic harm caused to him on
the grounds of a violation of the right to live an anonymous life.7
The judiciary attaches great importance to the right to be forgotten.8
However, renewed press attention – with the publication of a name and
photograph – could be justified if, for example, a convicted criminal is
released on parole and his victims react negatively to this. Attention
should then also be paid to interim developments, e.g. the criminal’s
good behaviour.
In the absence of such ‘special circumstances’, the publication of a
name and photograph would constitute a fault, enabling Larry to sue
for damages if no injunction was claimed/obtained.
As mentioned in Case 1, whether or not Larry can obtain an injunc-
tion to prevent the publication of the report is disputed in Belgian law.
England
I. Operative rules
Larry does not have a claim unless he can submit special evidence as
detailed below.
5
L. Diericx, Het recht op af beelding at 62.
6
G. Baeteman, A. Wylleman, J. Gerlo, G. Verschelden, E. Guldix and S. Brouwers,
‘Overzicht van rechtspraak. Personen- en familierecht 1995–2000’ (2001) TPR 1630.
7
Civil court Brussels 20 Sept. 2001, AM 2001, 77. See D. Voorhoof, ‘Ook gevangene
heeft recht op afbeelding. RTL-TVI en minister veroordeeld wegens schending recht
op afbeelding van gevangene’ (2001) Juristenkrant 1 and 16.
8
Civil court Brussels 30 Jun. 1997, JT 1997, 710; Civil court Namur 27 Sept. 1999, AM
2000, 471; Civil court Brussels 20 Sept. 2001, AM 2002, 77.

1.Substantive law
(a) Defamation The magazine has the defence of justification
(truth) available for the libel committed. There is an exception to
this defence under s. 8 of the Rehabilitation of Offenders Act 19749
for the ‘spent convictions’ of a ‘rehabilitated person’. Rehabilitation
periods are laid down in ss. 5 and 6 of the Act. For example, for a
sentence of imprisonment for a term exceeding six months but not
exceeding three years, the rehabilitation period is ten years from
the date of conviction. After this period it is not permitted to report
on the spent conviction. Still, the claimant would have to prove that
the publication was malicious, which this particular case does not
mention.
(b) Breach of confidence In two recent decisions passed in the after-

math of spectacular circumstances where children killed younger
children, injunction orders contra mundum were granted in order to
protect the child killers from being identified, and indeed ‘named and
shamed’ by the press or by members of the public.10 However, these
were extreme cases where persons had been given new identities and
who had, in one case, lived in the community for 23 years, while the
killing had occurred 35 years earlier.
The fi rst issue in the case at hand would be whether Larry’s name
and photograph had already been made public at the time of the con-
viction and were therefore already in the public domain. However,
this would not necessarily exclude breach of confidence since the
public forgets such things over time. English courts have held that
the unnecessary disclosure of a person’s background to new friends
or to the public at large may be an infringement of privacy or
confidentiality.11
The name and picture of an offender may be unknown to society at
large and the offender may have an interest in keeping these secret.
Even if some may have known him/her, this piece of information may
still have been unknown to many others and may, therefore, have been
9
1974 Ch. 53.
10
Venables v. News Group Newspapers Ltd and Others; Thompson v. News Group Newspapers
Ltd and Others [2001] Fam 430; X, A Woman Formerly known as Mary Bell, Y v. S O, News
Group Newspapers Ltd, MGN Ltd [2003] EWHC 1101.
11
See R v. Broadcasting Complaints Commission, ex parte Granada Television Limited [1995]
EMLR 163.
confidential or private information.12 Thus, Larry’s name and photo-

graph may have been private information. It would also have seemed
to be obvious that Larry wanted to keep this information private.
Therefore, the lawfulness of the publication of Larry’s name and pic-
ture would essentially depend on the third criterion of whether the mag-
azine has made authorised use of the information it has obtained. This
criterion has come under pressure through the adoption of the Human
Rights Act 1998. S. 6(1) HRA 1998 obliges the court to act in a way which
is compatible with the right to privacy conferred by the ECHR. At the
same time, s. 12 HRA 1998 on freedom of expression must be observed.
In the meantime, the English courts have developed their methodology
in relation to conflicts between Arts. 8 and 10 ECHR. The methodology
that courts will employ to balance these Articles was summarised by
Lord Steyn in In re S (A Child).13 His guidelines have subsequently been
followed by the High Court in the cases of McKennitt14 and HRH The Prince
of Wales,15 and the High Court’s use of these guidelines were approved by
the Court of Appeal in McKennitt.16 They are as follows:
(i) Neither Art. 8 nor Art. 10 has as such precedence over the other.
(ii) Where the values under the two articles are in conflict, an intense
focus on the comparative importance of the specific rights being
claimed in the individual case is necessary.
(iii) The justifications for interfering with or restricting each right must
be taken into account.
(iv) The proportionality test must be applied to each.
The rights may only be interfered with or restricted if three condi-

tions are fulfilled. Baroness Hale outlined the conditions in Campbell:17
(i) The interference or restriction must be ‘in accordance with the

law’; it must have a basis in national law which conforms to the
Convention’s standards of legality.
12
See Michael Barrymore v. News Group Newspapers Ltd [1997] FSR 600. With regard to the
accessibility of information that is, in principle, publicly available, see Jon Venables,
Robert Thompson v. News Group International and Others; Attorney-General v. Greater
Manchester Newspapers Ltd (2002) 99(6) LSG 30, where Dame Butler-Sloss held that
even information that is available in public libraries or in reports published on the
internet may be confidential if the ordinary citizen without background knowledge
would not be able to locate it.
13
In re S (A Child) [2005] 1 AC 593, at 603.
14
McKennitt v. Ash [2005] EWHC 3003 (QB).
15
HRH The Prince of Wales v. Associated Newspapers [2006] EWHC 11 (Ch).
16
McKennitt v. Ash [2006] EWCA Civ 1714.
17
[2004] 2 AC 457, at 497.
(ii) It must pursue one of the legitimate aims set out in each article.
Art. 8(2) provides for the ‘protection of the rights and freedoms
of others’. Art. 10(2) provides for the ‘protection of the reputation
or rights of others’ and for ‘preventing the disclosure of informa-
tion received in confidence’. The rights referred to may either
be rights protected under the national law or other Convention
rights.
(iii) Above all, the interference or restriction must be ‘necessary in a
democratic society’; it must meet a ‘pressing social need’ and be no
greater than is proportionate to the legitimate aim pursued; the
reasons given for it must be both ‘relevant’ and ‘sufficient’ for this
purpose.
In X, A Woman Formerly known as Mary Bell, Y v. S O, News Group

Newspapers Ltd, MGN Ltd, the public interest in the current wherea-
bouts of the claimant was not to be determinative.18 Instead, her frag-
ile mental and physical condition clearly tipped the balance in favour
of her right to confidentiality. However, Dame Elizabeth Butler-Sloss
mentioned in passing that there is a different situation in respect
of paedophiles, recognising that there is clear and understandable
public concern that they will reoffend.19 She also said that many seri-
ous offenders who do not enjoy the protection of the Rehabilitation
of Offenders Act 1974 would be unlikely to be granted injunctions
in order to be protected from breach of confidence.20 In R v. Chief
Constable of the North Wales Police, the court refused to grant injunc-
tive relief to prevent the Chief Constable from revealing the past
convictions of two paedophiles living on a caravan site to the owner
of that site.21 Thus, unless Larry can submit evidence relating to the
special circumstances of his case, such as immediate danger to his
18
There is also recent case law available on the publication of the addresses of celebri-
ties, here: Heather Mills. In Mills v. News Group Newspapers Ltd [2001] EMLR 41, Collins
J was, in principle, in support of protecting Heather Mills under the law of confiden-
tiality even though he did not make an injunction order due to the particularities
of the case. The court could not find a particular public interest in the address of
Heather Mills, while stalking may be a serious consequence of making the address
known to the public.
19
X, A Woman Formerly known as Mary Bell at para. 40.
20
Ibid., at para. 41.
21
R v. Chief Constable of the North Wales Police, ex parte AB [1999] QB 396. The balance
may be different in cases where no criminal convictions have been made, see Re L
(Minors) (Sexual Abuse: Disclosure), Re V (Minors) (Sexual Abuse: Disclosure) [1999] 1
WLR 299.
life,22 the publication of his name and address would not amount to
an unauthorised use of confidential information. 23
If information had been published under breach of confidence, Larry
could claim damages. If financial damage cannot be shown, nominal
damages could be awarded.
(c) The Data Protection Act 1998 The magazine could have also vio-
lated the Data Protection Act 1998 if information on Larry had been
published under breach of confidence. However, s. 32 of the Act pro-
vides for an exemption from liability for personal data which is proc-
essed for special purposes only if:
(a) the processing is undertaken with a view to the publication of any
journalistic, literary or artistic material by any person;
(b) the data controller reasonably believes that, having particular
regard to the special importance of the public interest in freedom of
expression, publication would be in the public interest; and
(c) the data controller reasonably believes that, in all the circum-
stances, compliance with that provision is incompatible with the
special purposes.24
S. 13 of the Data Protection Act 1998 states that an individual who

suffers damage due to a data controller’s infringement of any of the
requirements of this Act is entitled to compensation from the data
controller for that damage. An individual may also claim damages for
distress suffered because of that infringement. However, the data con-
troller has a defence available to prove that he or she had taken such
care as was reasonably required in all the circumstances to comply
with the requirements of the Act (s. 13(3)). In cases of breach of confi-
dence, the crucial question identified by Lindsay J in Douglas v. Hello! is
whether distress is suffered because of the infringement of the Data
Protection Act. Lindsay J held that in fact distress was suffered because
of the breach of confidence and that the breach of the Data Protection
Act did not constitute an additional route to recovery for damage or dis-
tress beyond a nominal award.25
22
Venables v. News Group Newspapers Ltd and Others at 451 et seq. In this respect, one may
remember recent cases of mob justice against paedophiles in England.
23
In practice, injunction orders are more likely to be made in cases in which the well-
being of minors is in danger. For an overview, see R v. Central Independent Television
plc [1994] Fam 192, at 207, per Waite LJ.
24
For a detailed analysis of this exemption, see Campbell v. MGN Ltd [2003] EMLR 2, 39,
at 69 et seq.
25
Michael Douglas and Others v. Hello! Ltd and Others [2003] EWHC 786, at para. 239.

Although the HRA 1998 has explicitly introduced a statutory duty
to balance the right to privacy and the freedom of expression, and
in particular the freedom of the press, examples of this balancing of
interests can be found in earlier cases. English courts have long recog-
nised the defence of public interest in the publication of confidential
information by the press.26 Thus, it was not necessary that the claim-
ant had committed a wrong. However, the public interest must not
be confused with what is interesting for the public,27 and it must also
not be confused with the interest of the media in publishing informa-
tion.28 Moreover, this balancing process must not be confused with the
defence of qualified privilege in defamation cases.29
Finland
I. Operative rules
Larry can claim damages. An injunction is not available.

As was explained in Case 2, in case 2005:136 the Finnish Supreme Court
recently established the rule that information relating to a crime com-
mitted by a person belongs to the scope of this person’s private life.
Therefore, the provision in Ch. 24, s. 8 of the Finnish Penal Code con-
cerning injury to another’s personal life is applicable. According to this
provision it is a crime to unlawfully disclose information to a large
number of people about someone’s private life in a way which is likely
to cause damage or suffering to the offended person. Taking into con-
sideration that Larry has already served his conviction, the public inter-
est is probably not convincing enough to legitimise the publication.
The new Supreme Court decision is in line with the previous case law
of the Finnish Council for Mass Media, according to which it can be ‘dis-
astrous for a person who has served his [or her] sentence, if the criminal
case including names and pictures is brought into the spotlight again’.30
26
See, for example, Lion Laboratories Ltd v. Evans and Others [1985] QB 526; Shelley Films
Limited v. Rex Features Limited [1994] EMLR 134, at 146.
27
See British Steel Corporation v. Granada Television Ltd [1981] AC 1096, at 1168.
28
See Lion Laboratories Ltd v. Evans and Others; Shelley Films Limited v. Rex Features Limited
at 150.
29
See Campbell v. MGN Ltd at 56.
30
The Finnish Council for Mass Media, decision 2915/SL/00. See also Tiilikka,
Päätoimittajan ja toimittajan vahingonkorvausvastuu (unpublished licentiate (master’s)
thesis, University of Helsinki: Sept. 2000) at 298–9.
The Council feels that a former prisoner has the right to start a new life
without the media reminding the public of the crime.
As the publication thus constitutes a punishable act, following the
same principles as in Case 1 compensation is possible for pure eco-
nomic loss according to Ch. 5, s. 1 of the Tort Liability Act and for
anguish according to Ch. 5, s. 6. As for the amount of compensation
it is difficult to assess what the amount granted by a court would be.
A rough estimate is in the region of €5,000–€20,000.31
If the magazine is found guilty of defamation, the profit of the crime
can be declared forfeited as was described above in Case 1.
France
I. Operative rules
Larry probably cannot obtain damages, however the solution here is
not certain in French law.

If the principle that justice be rendered in public authorises the press to
report on judicial debates and judgments proclaimed by the courts (see
Case 2), the question arises whether this immunity is limited in time.
This question has been debated in French law in respect of the ‘right
to be forgotten’ (droit a l’oubli): the disclosure of a fact referring to a per-
son’s private life is not reprehensible inasmuch as it is justified by the
necessity of information. However, this is not the case when the press
recalls the public’s attention to a judgment made many years ago.
The lower courts have tended to follow this reasoning, consider-
ing that ‘any person who was associated with a public event, even if
he/she was the protagonist of the event, may invoke the right to be
forgotten and can oppose the reminding of this event in his/her life,
which can harm resocialisation and have a harmful influence on his/
her private life’.32 However, in a 1990 decision in a case concerning
31
Cf. with a case from Forssa Local Court, Helsingin Sanomat 4.6.2002, where a jour-
nalist was found guilty of defamation when he had described another (fictitious)
journalist as a drunk who had made sexual statements in different restaurants. The
court found that it was possible to link the story to the claimant, who was also a
journalist. The claimant was granted damages of €5,000.
32
TGI Paris 25 Mar. 1987, D. 1988, somm., 198, concerned a play which reminded the
public of a flagrant crime committed by a person who, thereafter, was rehabilitated,
went to university and became a psychiatrist. Reminding the public of the person’s
past in such a way was condemned by the court on the ground that the period of
the re-publication of facts from the private life of the mistress of a

former collaborator of the Nazi regime, the Cour de cassation clearly
rejected a ‘right to be forgotten’ in French law. The court held in this
case that the facts were once expressly brought to the attention of the
public through the accounts of judicial debates which, having been
published in the local press, thereby escaped the sphere of private life
and that as a consequence the claimant could not ‘avail of a right to be
forgotten to hinder their republication’.33 More recently, the Cour de
cassation confirmed its refusal to allow a right to be forgotten where
the judicial facts were initially disseminated. In that specific case, the
claim was raised by the family of the victim and not by the offender.34
Despite these very clear decisions by the highest French civil court, it
is not completely excluded that Larry could be successful in his action.
Both legal scholarship and the lower courts in fact remain in favour
of a certain right to be forgotten, or at least admit that the legitimacy
of reporting on old convictions is not automatic. The judge will conse-
quently proceed to balance the interests in the case: on the one hand,
Larry’s interest in being resocialised after having served his sentence,
on the other, the interest of the magazine in informing its readers
about paedophilia.
Nevertheless, if reminding the public of the judgment against Larry
is considered legal, mentioning his name may be permitted but not
necessarily the publication of his photograph. French case law cer-
tainly considers that all persons entering the sphere of public atten-
tion in contemporary judicial proceedings can expect to see their
image disclosed in the press.35 However, again it must be a matter of
time or the event reminded was no longer actual nor corresponded to the public
need for information. See also: TGI Paris 20 Apr. 1983, JCP 1985, II, 20434 (simi-
lar outcome); CA Versailles 14 Sep. 1989, Gaz. Pal. 1990, 1, somm., 123: ‘through
the passing of a sufficiently long time, a public event can become, for the person
who was the protagonist, a fact of private life which should be kept secret and be
forgotten’.
33
Cass. civ. 20 Nov. 1990, JCP 1992, II, 21908.
34
Cass. civ. 13 Nov. 2003, D. 2004, 1634, upholding a judgment of the Court of Appeal
which denied the existence of an injury to image or private life, on grounds that
the judicial report already belonged to the history of big criminal cases, thus no
longer pertained to the private life of the victim’s family. The contested article falls
within the scope of the freedom to communicate information, which authorises the
publication of images of persons involved in a certain event, with the sole restric-
tion of the respect of their dignity.
35
Cass. civ. 12 Jul. 2001, JCP 2002, II, 10152: ‘the freedom to communicate information
justifies the publication of the image of a person involved in a case, reserving the
respect of human dignity’.
genuine contemporary news. Thus, it has been held that the incarcer-
ation of an important public official (a préfet to be exact) is informa-
tion legitimately brought to the attention of the public, but that the
article which reports on this cannot show the photograph of the préfet
behind bars.36 Therefore, it is arguable in this case that Larry could
obtain an order prohibiting the magazine from publishing his photo-
graph and that he will be awarded damages for the non-economic loss
arising from the violation of his right to image (see Case 7 below).
Germany
I. Operative rules
Larry may claim damages for the economic loss caused to him by the
publication as well as for a hypothetical licence fee for the publication
of the photograph. There is no claim for non-economic damages in this
case.

According to § 22 Kunsturhebergesetz (KUG), a person’s picture may not
be published without that person’s consent. § 23(1) KUG makes an
exception for pictures regarding ‘contemporary history’. German doc-
trine37 and case law38 have transformed this definition into the issue of
whether the depicted individual is ‘a person of contemporary history’.
Criminal offenders are usually categorised as ‘relative persons of con-
temporary history’ which means that they are only public figures in
relation to the crime they have committed.39 After the court proceed-
ings, this status fades away. Since three years have passed since his
conviction, Larry cannot be seen as a public figure anymore and his
picture may not be published without his consent.
In relation to the publication of Larry’s name together with the
information that he is a convicted criminal, no statutory provisions
36
TGI Paris 13 Oct. 1999, CCE 2001, comm., No. 10: ‘under certain circumstances free-
dom of expression (…) authorises the reproduction of the image of a person without
his/her authorisation, under the condition that the publication of the photograph in
question serves a legitimate information need of the public’. In that case, the jour-
nal wanted to ‘attract its readers through photographs suitable to satisfy a curiosity
which lacks any legitimacy’.
37
Since H. Neumann-Duesberg, ‘Bildberichterstattung über absolute und relative
Personen der Zeitgeschichte’ (1960) JZ 114.
38
A summary of the case law is given in BVerfGE 101, 361, 392 (Caroline).
39
J. R. V. Strobl-Albeg in K. E. Wenzel, Das Recht der Wort- und Bildberichterstattung (5th
edn. Cologne: 2003) at 473.
apply. The German courts rely on the general personality right (§

823(1) BGB). A violation depends on the result of a weighing of inter-
ests.40 The Federal Constitutional Court decided in 1973 that a ‘docu-
mentary fiction’ film about a murder could not be aired on TV four
years after the murder had taken place and shortly before one of the
perpetrators was due to be released from prison.41 The reason given
was that the offender had a legitimate interest in rehabilitation which
would be endangered if he were to be identified as a murderer.
This prohibitive rule may rely on the fact that the report in ques-
tion only gave a biased view of the murderer’s personality which was
reduced to its negative aspects.42 A publication which is less harmful
and more objective, e.g. a factual book about certain crimes, could
therefore be lawful even if it mentions names.43 In 1999, another
‘documentary fiction’ film about the same crime that was at issue in
the 1973 decision was held to be lawful on the grounds that it did not
directly mention the names of the offenders and that their rehabilita-
tion interests lose significance thirty years after the crime has been
committed.44 The court stated that no offender has the right ‘not to be
confronted with the crime in public’.45
This is especially true if current events give reasonable grounds
to speak about past crimes; however, case law is contradictory on
the question of what such reasonable grounds are.46 In addition, it is
acknowledged that the victim of the crime has a right to publicly talk
on television about crimes which were perpetrated long ago, even if
the mentioning of names leads to the identification of the offender.47
40
BGHZ 13, 334, 338; but see the critical analysis by K. Larenz and C.-W. Canaris,
Lehrbuch des Schuldrechts II/2 (13th edn., Munich: 1994) at 498 et seq.
41
BVerfGE 35, 202; q. v. OLG Frankfurt/Main AfP 2005, 185 – Cannibal of Ro(h)
tenburg.
42
BVerfGE 35, 202, 229; q. v. OLG Frankfurt/Main AfP 2005, 185, 189.
43
See OLG Hamburg, UFITA Vol. 78, 244, 250; A. Halfmeier, Die Veröffentlichung privater
Tatsachen als unerlaubte Handlung (Frankfurt: 2000) at 94 et seq.
44
BVerfG NJW 2000, 1859; q. v. LG Koblenz AfP 2006, 576, 580 f. – kidnapping of a
banker’s son Jakob von Metzler.
45
BVerfG NJW 2000, 1859, 1860.
46
Compare, e.g., KG AfP 1992, 302 (twenty-year-old conviction in connection with a
gang shooting may be published because the offender is now arrested again for a
similar matter) with OLG Frankfurt/Main NJW-RR 1995, 476 (name of a manager
who was convicted years ago for fraudulent bankruptcy may not be mentioned
although similar accusations have arisen with regard to his current position); for
further details J. Soehring, Presserecht (3rd edn., Stuttgart: 2000) at 393 et seq.
47
BVerfG NJW 1998, 2889, 2891.
Larry can therefore claim damages based on § 823(1) BGB. If there

is economic loss, this must be compensated. Larry may also claim an
adequate (hypothetical) licence fee for the publication of the photo-
graph.48 Damages for non-economic loss can only be claimed for ‘serious
and grave’ violations of personality rights and where no other remedy
is adequate.49 This may be the case if the article is intended to be of
a derogatory and disrespectful nature. The mere publication of names
and photographs of offenders has been held not to be such a grave
violation.50
Greece
I. Operative rules
A similar case has not come before the Greek courts. However, it is
submitted that Larry can sue for damages as the use of his name is a
disproportionate method of informing the public (see Case 2).

As in Case 2, this case concerns the dissemination of information which
is potentially damaging to an individual’s personality but which is in
the public interest. However, the goal of informing the public could be
achieved without mentioning the individual’s name.51
On the other hand, one could argue that the printed media republishes
a real fact which should be made known to the public. In this case, the
publication does not aim to injure the honour and reputation of the per-
son but rather to inform the public about serious anti-social behaviour.
48
See BGHZ 20, 345, 353; but see LG Frankfurt/Main, ZUM 2003, 974, 976:
Hypothetical licence fee only for famous people whose picture has monetary value.
In the past, it was doubtful whether a hypothetical licence fee could be claimed in
cases where the harm suffered by the claimant was essentially non-economic but
affected the claimant’s honour and reputation. In such cases, it was argued that the
claimant would not have agreed to the use of the photograph anyway and therefore
there was no economic interest at stake (BGHZ 26, 349, 353). Recently, the Federal
Court clarified that a hypothetical licence fee can be claimed in every case of
unlawful commercial use of a person’s photograph, regardless of whether that per-
son would have been willing or able to allow such use of the photograph (BGH NJW
2007, 689, 690 with note by Balthasar at 664 et seq.).
49
BGHZ 95, 212, 214 f.
50
OLG Nürnberg NJW 1996, 530 (publication of names); AG Charlottenburg, MMR
2000, 772, 774 f. (publication of names and photographs of convicted sexual offend-
ers on the internet); Soehring, Presserecht at 670.
51
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) at 70, see Supreme
Court (Areopag) Decision 825/2002, available in Greek legal Database ‘NOMOS’.
Ireland
I. Operative rules
It is unlikely that Larry would succeed in an action for defamation as
the magazine could rely on the defence of justification because the
statements made were true. It is also unlikely that an action in breach
of confidence by Larry would succeed as the information could not be
described as confidential.

As outlined in the English report, Larry could not sue for damages
in defamation. While the publication of the photographs could be
deemed defamatory if the statement made is untrue, the magazine
will have a full defence to an action in libel as the statement is in fact
accurate. This is known as the defence of justification. Under common
law, the defendant must prove that the substance of the statement is
correct.52 Furthermore, under s. 22 of the Defamation Act 1961, the
defence will not fail ‘by reason only that the truth of the charge is
not proved, if the words not proved to be true do not materially injure
the plaintiff’s reputation having regard to the truth of the remaining
charges’. One potential difficulty which could exist for the magazine in
this regard is whether in attempting to establish the defence of justifi-
cation it could rely on the evidence of Larry’s conviction as ‘conclusive’
evidence of his guilt as a paedophile. Previous case law has held that
evidence of a previous conviction is inadmissible in civil proceedings
dealing with the same issue.53 However, one decision overruled ear-
lier judgments on the point54 and has not received wholehearted sup-
port from the Irish judiciary.55 Thus in Kelly v. Ireland,56 O’Hanlon J left
the question open on whether evidence of a previous conviction could
be admitted in civil proceedings where it was relevant to the issue
which the court had to decide upon.57 In 1991, the Irish Law Reform
Commission recommended that the law in this area should be clarified
and that ‘a conviction should be treated, not merely as evidence of the
guilt of the person, but conclusive evidence’.58 These proposals have
not been enacted into Irish law. Notwithstanding these qualifications,
52
Alexander v. N.E. Railway Company (1865) 122 ER 1221.
53
Hollington v. F. Hewthorn & Co. [1943] KB 587; which has subsequently been modified
in England and Wales under s. 13 of the Civil Evidence Act 1968.
54
In the Estate of Crippen [1911] P 108. 55 Kelly v. Ireland [1986] ILRM 318.
56
[1986] ILRM 318. 57 Ibid. at 327.
58
Report on the Civil Law of Defamation (LRC 38–1991) at para. 7.11.
it is unlikely that Larry would succeed in proving that he had been

defamed and thus awarded damages.
An action for breach of confidence is also unlikely to succeed. The
traditional action for breach of confidence was developed in order to
protect the misuse of confidential information.59 If the information
is to be protected it must be communicated in circumstances where
there is an obligation of confidence placed on the person receiving the
information. There would appear to be no relationship in existence
between Larry and the magazine imposing an obligation of confidence.
The Irish courts have not yet shown any desire to extend the definition
of ‘confidential information’ to include information surreptitiously
acquired from another in the absence of the existence of a relationship
of confidence. Even if Larry successfully made such an argument, it is
likely that the court would find that it was in the public interest that
the information be published.60
An action for breach of privacy seeking to restrain the publication of
true but embarrassing facts is unlikely to succeed. While such actions
have been recognised in both the United States61 and in England,62 the
Irish High Court has specifically rejected the development of the law
in this manner to date.63
Italy
I. Operative rules
Larry can recover damages for economic and non-economic loss from
the magazine.

Since 1995, case law has regarded the republication of true but harm-
ful facts which were the basis of a past criminal judgment as unlawful
on the ground of a lack of sufficient public interest, unless new facts
have created a new public interest in their republication.64 Scholars
hailed the first decisions as the birth of a new right, the ‘right to be
59
House of Spring Gardens v. Point Blank Ltd [1984] IR 611 (SC).
60
National Irish Bank v. RTE [1998] 2 IR 465.
61
Restatement of the Law, Second, Torts 2d, The American Law Institute (1977) at 383–394,
ss. 652A–652I.
62
Campbell v. MGN Limited [2004] UKHL 22.
63
Per O’Hanlon J in Magurie v. Drury [1995] 1 ILRM 108 at 115.
64
Trib. Roma 15 May 1995, Foro it. 1996, I, 2566 with commentary by P. Laghezza; Dir.
inf. 1996, 422 with commentary by G. Napolitano; Dir. fam. per. 1998, 76 with com-
mentary by G. Cassano.
forgotten’ (diritto all’oblio).65 Actually, the Italian debate on a diritto

all’oblio in academic literature is considerably older, as it goes back to
the early 1980s.66 However, only since 1995 has this right begun to be
expressly mentioned by the courts.67
The right to be forgotten is deemed to stem from the right to priv-
acy. The latter was first recognised by scholars,68 then in 1975 by case
law,69 and finally in 1996 and 2003 by legislation.70 The right to privacy
is now commonly seen as one aspect of the constitutional protection
of the person under Art. 2 Cost.71 Its violation gives rise to civil liability
according to the general clause of Art. 2043 CC. Therefore, even sup-
posing that on the facts of this case the publication did not meet the
requirement of the crime of defamation,72 Larry could have a claim
for damages according to Art. 2043 CC as his right to be forgotten was
unjustly infringed. Moreover, by publishing Larry’s name and photo-
graph in relation to his conviction on the grounds of paedophilia, the
magazine processed Larry’s personal data. Under Arts. 11(1)(a) and 15(2)
Data Protection Code, a person whose personal data has not been proc-
essed lawfully and fairly can recover damages for non-pecuniary loss.
Metalegal reasons are to be taken into account both for this lawful-
ness and fairness test and for the unjust harm test under Art. 2043 CC.

One could argue that Larry’s right to be forgotten cannot prevail
over the freedom of the press because the crime of paedophilia is so
65
See e.g. the comment by G. Napolitano quoted in the previous footnote.
66
See T. A. Auletta, ‘Diritto alla riservatezza e droit à l’oubli’, in G. Alpa et al. (eds.),
L’informazione e i diritti della persona (Naples: 1983) at 127.
67
Trib. Roma 21 Nov. 1996, Giust. civ. 1997, 1979 with commentary by L. Crippa; Dir.
inf. 1997, 335 with commentary by G. Napolitano; Cass. 9 Apr. 1998 no. 3679, Foro it.
1998, I, 1834 with commentary by P. Laghezza; Danno resp. 1998, 882 with commen-
tary by C. Lo Surdo; see recently Garante protezione dati 15 Apr. 2004, in M. Paissan
(ed.), Privacy e giornalismo (2nd edn., Rome: 2006) at 311; Garante protezione dati 7
Jul. 2005, ibid., 316.
68
G. Morsillo, La tutela penale del diritto alla riservatezza (Milan: 1966).
69
Cass. 27 May 1975 no. 2129, Dir. aut. 1975, 351 (for more detail, see Cases 5 and 8).
70
In 1996 the Data Protection Act (Legge 31 Dec. 1996 no. 675, Tutela delle persone e
di altri soggetti rispetto al trattamento dei dati personali) was enacted; in 2003 it was
repealed and transformed into the Data Protection Code (Decreto legislativo 30 Jun.
2003 no. 196). On this see also Cases 5, 7, 8, 9 and 12.
71
Cf. Cass. 9 Jun. 1998 no. 5658, Foro it. 1998, I, 2387; S. Rodotà, ‘Tra diritti fondamen-
tali ed elasticità della normativa: il nuovo Codice sulla privacy’ (2004) Europa ediritto
privato 1.
72
If the authors of this report committed defamation, Larry would be entitled to the
remedies outlined under Case 1.
atrocious that the disclosure of the offender’s name and photograph

must be deemed lawful, regardless of the time which has passed, for
the sake of the public interest. However, this argument is not convin-
cing. A detailed magazine report showing a selection of photographs
of several paedophiles convicted years ago can hardly be seen as neces-
sary for the public interest. It is just a pillorying of individuals which
satisfies a base curiosity. As explained under Case 1, the content of
press reports must be proportional to the public interest. Unnecessary
injurious news is not covered by freedom of the press. Photographs of
persons who have already served their punishment are unnecessarily
injurious publications. This is true regardless of whether or not Larry’s
story was already in the press in the past, and irrespective of the num-
ber of years since he was convicted.
Precisely because paedophilia is such an appalling crime, the
greater the dissemination of the news, the greater the harm and the
lesser the chance of resocialisation for the offender. It is a well-known
fact that even within the prison walls paedophiles are marginalised
by other prisoners. Isolation and social stigmatisation increase not
only the psychological pain, but also the likelihood of the offender
committing the same offence again. On the facts of the present case,
the severe threat which the report poses to Larry’s resocialisation is
unquestionable as he is released from prison just a few days after the
publication.
For all these reasons, it is submitted that Larry’s personality rights
have been unjustly harmed by the report. He is therefore entitled to
damages for both pecuniary and non-pecuniary loss according to Art.
2043 CC and Art. 15(2) Data Protection Code.
The Netherlands
I. Operative rules
Larry can recover damages for both economic and non-economic loss.

According to Dutch law, in a case of this nature the right of freedom
of the press (Art. 7 Constitution) has to be weighed against the right to
be forgotten, which is derived from the right to privacy.73 An impor-
tant aspect of this right is the criminal’s possibility of rehabilitation,
73
HR 6 Jan. 1995, NJ 1995, 422 (Parool-Van Gasteren); G. A. I. Schuijt, Losbladige
Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 113.
which is also regarded as an interest of society as a whole. Therefore,

the interest in being forgotten increases with the passing of time.74
Immediately after a criminal is convicted, the interest in being forgot-
ten is not yet decisive for a publication to be unlawful.75
However, in this case the conviction took place three years ago. The
publication of the facts and the pictures does not seem to serve any
public interest other than the need for sensation (see Case 1, circum-
stance (b)). For that reason the right to be forgotten outweighs the right
to freedom of expression.
In relation to the publication of pictures, Arts. 20 and 21 Auteurswet
(law of author/copyright) specify the right to privacy in cases involv-
ing the publication of pictures. These provisions regulate the right of
the artist who creates a portrait (including pictures) on the one hand
and the right of the person portrayed on the other hand. A representa-
tion of a person (pictured, in clay, bronze, paint, pen, film, video) is a
portrait if there is a resemblance between the representation and the
facial features of this person. These provisions limit the right of the
artist and by doing so they are a legal specification of the protection of
privacy.76 Art. 20 Auteurswet provides that when a portrait is commis-
sioned by the person portrayed, the person who owns the copyright on
the portrait is not allowed to publish that portrait without the consent
of the person portrayed (or when this person has died, without the con-
sent of his surviving relatives in the ten years after his/her death). Art.
21 Auteurswet states that if a portrait has been published by the artist
who did not create that portrait under the commission of the person
portrayed, the publication thereof is illegal insofar as it infringes a rea-
sonable interest of the person portrayed.
If a picture has been published, the right to privacy, specified in
Arts. 20 and 21 Auteurswet, has to be weighed against other rights, for
instance the right to free speech. The infringement of the reasonable
interest of the person portrayed constitutes an infringement of the
right to privacy.77
Both the infringement of the right to privacy and the infringement
of economic interests78 are considered to be infringements of a rea-
sonable interest. Art. 21 Auteurswet does not apply when the person por-
trayed gave his/her consent to the publication of the portrait.
74
Schuijt, Losbladige Onrechtmatige Daad no. 40.
75
HR 21 Jan. 1994, NJ 1994, 473. 76 Schuijt, Losbladige Onrechtmatige Daad no. 121.
77
HR 1 Jul. 1988, NJ 1988, 1000. 78 HR 21 Jan. 1994, NJ 1994, 473.
It can be difficult for the person whose portrait has been published
to clarify what economic loss was suffered due to the unlawful publica-
tion thereof.79 If Larry could only request damages for economic loss, it
would literally be very difficult for him to uphold his right to be forgot-
ten and his right to privacy. Especially in these circumstances, Art. 6:106
jo. and Art. 6:95 BW recognise the possibility to sue for non-economic
loss in cases where the honour or reputation of the injured party has
been impugned or if his/her person has been otherwise afflicted.
Furthermore, Larry can ask for an assessment of damages on the
basis of Art. 6:104 BW. In this situation, the damages are assessed as the
amount of the profit (or a part thereof) earned by the magazine from
the publication of the picture (Case 1).
Portugal
I. Operative rules
Larry would, in principle, have no claim for damages.

All criminal convictions are public. Thus, there are, in principle, no
restrictions on publishing the names and identities of persons crimi-
nally convicted, unless it is strictly necessary for the protection of vic-
tims. The identification of offenders is always allowed, regardless of
what kind of crime is at stake, as long as the referred information is:
(1) put into context;
(2) rigorous and objective; and
(3) proportional, necessary and adequate.
Although serving a sentence means paying one’s debt to society, ex-

prisoners must learn to live with their past. However, the journal-
ist here would have had to obtain the information legally, i.e. either
through:
(1) the personal gathering, throughout the years, of information regard-
ing the decisions read in courts; or
(2) access to criminal records, with the permission of the Minister of
Justice – although quite unlikely to take place (Art. 7, para. (i), Law of
Criminal Identification80).
79
This is different when the person is a public figure who gives his/her consent for
financial gain.
80
Law no. 57/98, 18 Aug. 1998.
Moreover, we should look closely at the fact that the published report
also contained the photographs of the paedophiles. The right to image
is protected by Art. 26 CRP. Besides this, Art. 79(1) and (2) CC state that
someone’s picture may not be exposed reproduced or commercialised
without his/her consent, unless the lack of consent may be justified
because:
(1) the person is notorious or occupies a certain office;
(2) there are police or justice related reasons;
(3) scientific, didactic or cultural aims justify it;
(4) the reproduction of the image is framed within a public place or
facts of public interest or which have taken place in public.
The journalist can, of course, claim that reporting on this information

and the use of the image is in the interest of justice and that those
facts (the conviction) are of public interest and have taken place pub-
licly. However, Art. 79(3) CC also states that the image cannot be repro-
duced, exposed or commercialised if it harms the honour, reputation
or basic decency of that person (even in the situations stated in Art.
79(2) CC and mentioned above, this is implied). Although this legal rule
is quite clear, there is no doubt that pictures of convicted persons leav-
ing the courts are commonly published and shown on television news
programmes. There might be some reasons for this:
(1) these persons have voluntarily and legally limited their personality
rights, namely their right to honour and reputation, after having
committed a crime, mainly a sexual crime as socially condemned
as paedophilia (Art. 81 CC). However, this is probably not the case,
since even criminals who have been convicted for sexual offences
undoubtedly have the right to honour and reputation;
(2) it is commonly accepted media behaviour, which criminally con-
victed persons have not, so far, opposed (maybe this is due to their
psychologically fragile condition, other more important legal con-
cerns, etc).
Larry’s right to honour or reputation would not be harmed as long as

the information published was put into context, rigorous, objective,
proportional, necessary and adequate. However, his right to image
might be harmed through the publication of the picture, since the pub-
lication of the image itself could lead to much more serious damage to
Larry’s honour and reputation than the mere written information. In
this case, Larry could claim for damages, according to Art. 70 CC, for
the violation of his right to image.
Finally, Art. 199 CP (illegal recordings and photographs) states, inter

alia, that photographing someone against his or her will, even in
events where that person legitimately participated, or using those pho-
tographs, is a crime. It is questioned whether this rule aims to protect
the right to image81 or the right to privacy,82 although it seems to make
more sense that it protects the right to image since the right to privacy
is already criminally protected by Art. 192 CP.
The TRP decided that the consent requested by this penal rule is
not necessary when we are facing one of the situations established in
the above-mentioned Art. 79 (2) CC.83 Therefore, in these situations,
there would not be the need for consent and a crime would not have
been committed. This ‘crossed interpretation’ of civil and penal rules,
although not very common and even questionable, can be justified in
accordance with the principle of the unity of law (respect for the jurid-
ical order as a whole).
In the case before us, although it seems like consent would never-
theless be needed (since such a publication of image could be consid-
ered to harm the honour, reputation or basic decency of Larry – Art.
79 (3) CC), different opinions also exist. For example, it has been said
that although the right to privacy also exists in public places, it may
not obstruct the right to inform, namely concerning the taking of pic-
tures of public events.84 However, this preference given to the right to
inform, to the detriment of the right to privacy or the right to image,
is quite uncommon in Portuguese case law and would hardly be gener-
ally accepted. In fact, as seen in the decisions mentioned in reference
to Case 1, personality rights are given preference and constitute limits
to the right to inform and be informed.
The claim to prevent publication would be based on Art. 70 of the
Civil Code. In our opinion, and at least as far as the written report is
concerned, the injunction for the prevention of publication would be
denied, and so too would a claim for compensation. The facts are of
public knowledge and so their publication is lawful as long as the con-
tents of the text are objective, factual and true. We are not aware of any
similar case actually pending or which has been decided in Portugal.
81
Court of Appeal of Porto (Tribunal da Relação de Porto, TRP), 19.09.2001.
82
Court of Appeal of Lisbon (Tribunal da Relação de Lisboa, TRL), Process no.
7860/2001; STJ 06.03.2003.
83
TRP, 19.09.2001.
84
Public prosecutor on STJ 06.03.2003 and decision on Process no. 7860/2001, TRL.
Scotland
I. Operative rules
It is unlikely that Larry will have a claim.

This addresses a similar issue to that raised in Case 2, with a different
slant on the type of crime involved. Information about paedophiles
will generally be seen as falling within the category of public inter-
est: there is a real or potential danger to the community at large and
to children in particular. The public interest argument in favour of
freedom of information overrides any privacy considerations. Under
the terms of the self-regulatory Code of Practice of the Press Industry,85
the reporting in question falls within the definition of justifiable intru-
sions of privacy: ‘intrusions and enquiries into an individual’s private
life without his or her consent … are not generally acceptable and pub-
lication can only be justified when in the public interest. This would
include: (iii) protecting public health and safety.’
Undoubtedly, the effect of such a publication at the time when the
prisoner is being released will have a negative impact on the rehabili-
tation of the offender and can ostensibly lead to either public or media
harassment of or physical interference with the offender and his
family.86 The Rehabilitation of Offenders Act 1974 referred to above
applies to convictions of up to thirty months (two-and-a-half years) and
provides for various periods after which the offender is rehabilitated
and the offence is then ‘spent’. Its provisions do not apply here since
the sentence imposed in this case was three years.
If circumstances are such that the press subsequently has to be
fended off – for example if there are crowds of journalists surround-
ing the paedophile’s home – then a grant of interdict against ‘wrong-
causing behaviour’ could be issued.
The English case of A. Campbell v. News Group Newspapers,87 discussed
in Case 2 is a reflection of the very facts contained in this question and
illustrates the balance that has to be struck between the competing
85
See Case 1, Press Code of Practice of Press Complaints Commission, fi rst published
in 1990. In the House of Lords appeal in Naomi Campbell, Baroness Hale relied
strongly on the Code in conjunction with the test under s. 12(4) HRA in reaching
her conclusion that there had been an unwarranted intrusion of privacy.
86
See Case 2.
87
See Alan Campbell v. News Group Newspapers Ltd [2002] EMLR 43.
rights of privacy or individual informational rights and public infor-

mation.88 With regard to defamation, reference is again made to what
was said in Case 1, in particular that even if it is averred that the plain-
tiff is a known paedophile, the crux of any defamation or libel action
remains whether the statement is disparaging and not simply factual
description. Facts alone are not defamatory. Only where the informa-
tion is wrong in tone or sting might there be an arguable case of defam-
ation under s. 7 Defamation Act 1996. Human rights aspects of privacy
do not prevail in a matter of overriding public safety and interest.

The role of privacy and rehabilitation has to be balanced against regula-
tory preventive measures towards potential repeat offenders. A national
sex offenders register has been created under the Sex Offenders Act
1997, mainly with the latter purpose in mind. This could be read as
implying that there is a higher priority given to the protection of the
public rather than privacy of the individual criminal. The law of pri-
vacy in relation to protection of criminals has yet to be developed from
a human rights perspective.
Spain
I. Operative rules
Whether or not Larry will have a claim against the magazine depends
on the matter of public interest.

Taking for granted that the information published by the magazine is
true, the Spanish courts will position Larry’s claim against the public
interest.89 There is no such thing in Spanish law as a right to be for-
gotten. Nevertheless, the publication should contain correct informa-
tion about Larry’s release in the sense that he has already paid for his
crime. In general, such a case does not fall under the protection of the
law of honour in Spain.
88
Ibid.
89
STS, 9 Feb. 2004 where a newspaper published a headline affirming that a man
was detained by a group of women as an alleged rapist, but in the body of the news
the journalist referred to him as the sexual aggressor of a woman, alleging that he
had been convicted for a previous sexual criminal offence, although he was later
exonerated.
Even if the publication had specified that Larry had later been
released and, thus, had been substantially true, the information would
not have met the necessary requirement of general interest: the con-
crete information concerning the fact that a person was found guilty
and later released from prison would have been irrelevant for the infor-
mation and not in the general interest.
Switzerland
I. Operative rules
Larry may bring a claim for infringement and demand economic and
non-economic damages.

Under Swiss law, an individual’s personality may be unlawfully infringed
if he/she is reminded of his or her criminal background (Art. 28, para.
1 CC). More particularly, it may infringe upon the right to one’s repu-
tation and violate the private sphere.90 Thus, unless the infringement
can be justified by a preponderant public interest, the media will not
be authorised to associate an individual with criminal proceedings that
have already been concluded at least after a certain time. The Federal
Court has held that even if an individual played a part in current events
at the time, a criminal who has paid his or her debt to society has a
‘right to be forgotten’.91 Citizens who, due to a past event, find them-
selves under pressure in the present may oppose the renewed public
disclosure of such past events after a certain period of time. However,
according to the Federal Court, the right to be forgotten does not exist
to the same extent for public figures and the press has the right to reveal
their past convictions under certain circumstances.92
The situation discussed here can be compared to recent Federal
Court case law. One decision concerned a reformed criminal who,
more than twelve years after his criminal conviction and after having
successfully reintegrated himself into professional life, was confronted
with his past following the publication of an article in the press. In the
article, a journalist named each member of a gang that the ex-convict
90
Judgment of the Swiss Federal Court, 5P. 254/2002 c. 2.2.
91
ATF/BGE 122 III 449 c. 3b, JdT 1998 I 131. For a comparative analysis, see Franz
Werro, ‘The Right to Inform v. the Right to be Forgotten: A Transatlantic Clash’ in
Aurelia Colombi Ciacchi et al. (eds.) Haftungsrecht im Dritten Millenium (Baden-Baden:
2009), p. 287.
92
ATF/BGE 111 II 209 c. 3c, JdT 1986 I 600.
had belonged to, in addition to listing their robberies.93 As a result of

the article’s publication, the reformed criminal’s employer learned the
details of his past, and the latter felt forced to leave his job because
of the revelation. He received compensatory damages as well as non-
economic damages amounting to 40,000 Swiss Francs (approximately
€25,000). Another judgment concerned an article originally published
in the British press that was hung in the window of a kiosk in Geneva.
The article reported on an individual who was tried for the sexual abuse
of minors.94 Both the full name and photographs of the individual were
printed. The Federal Court found that there was an infringement of
his personality rights and held that the public interest in preventing
sex crimes against minors did not justify such a publication.
These two Federal Court decisions suggest that, in the case before us,
Larry will be able to successfully claim the unlawful infringement of
his personality. He may also claim related damages (Art. 28a, para. 3 CC
and Art. 41 et seq. CO), to the extent that he is able to establish the exist-
ence of a loss. Such loss could be established, for example, by lost wages
as a result of the denial of employment following the publication of the
article. However, the causal link between the denial of employment
and the journalist’s article will be difficult to establish. Larry could
also demand restitution of the profits made by the magazine as a result
of the article (Art. 28a, para. 3 and Art. 423 CO), as well as damages for
pain and suffering (Art. 49 CO).
In addition to violating Larry’s right to be forgotten, the journalist’s
article also infringes upon Larry’s rights to his reputation, to his private
sphere, and to his image. The right to one’s image is one of the personal-
ity rights protected by Art. 28, para. 1 CC and states that an individual’s
image cannot, in principle, be reproduced by drawing, painting, photog-
raphy, or any similar process – such as distribution – without the consent
of the individual in question.95 It is clear that the publication of such an
image tends to hinder the reintegration of the individual into society.

Judicial information allows the public control of justice. It consolidates
the legitimacy of the judicial process and fosters public trust. However,
once a judgment has been rendered, anonymity is the rule. The Swiss
Press Council highlights this point and uses it to specify that ‘the
93
Judgment of the Swiss Federal Court, 5C. 156/2003.
94
Judgment of the Swiss Federal Court, 5P. 254/2002.
95
RVJ 2003, p. 252 c. 4a.
respect of personality rights benefits the convicted, which facilitates

reintegration. It also aims to protect the convicted person’s family and
loved-ones. In most cases, media coverage of judicial proceedings does
not require the disclosure of the identities of those involved.’96
Comparative remarks
In broad terms, this case raises the question of whether or not an indi-
vidual who served his/her sentence has a right to oppose the dissem-
ination of information about this conviction. Specifically, the case
considers the extent to which the press can (re)publish information
after the sentence has been served on the grounds that it is in the pub-
lic interest to do so. This is the conflict that lies at the very heart of this
case – the balancing of the rights to freedom of the press and freedom
of information with the offender’s so-called ‘right to be forgotten’ in
the context of his/her resocialisation.
In one form or another, most countries recognise a ‘right to be
forgotten’ with regard to served sentences. Interestingly, while a
statutory version exists in both England and Scotland, most civil law
systems have recognised this right through case law. In the UK, the
Rehabilitation of Offenders Act 1974 sets out certain time limits after
which it is not allowed to report on a person’s time in jail. In Belgium,
Finland, Germany, Italy, the Netherlands and Switzerland the courts
have, at different stages, recognised the interests of the offender not to
have information about a served sentence republished thus endanger-
ing his/her resocialisation. In France, there is a dispute as to the exact
nature of a ‘right to be forgotten’ (droit à l’oubli). The Cour de cassation
has clearly rejected such a right but it appears that legal scholarship
and the lower courts favour a certain form of it.
The offender’s right to be forgotten will invariably be balanced
against the freedom of the press to report issues that are of public
interest. Depending on the legal system, it appears that up to three
factors will play a role in determining the public interest: the serious-
ness of the crime, the length of time since the crime was commit-
ted and whether or not current events necessitate the reporting of the
past crime. As regards the first factor, in England it appears that many
serious criminals will not enjoy the protection of the Rehabilitation
of Offenders Act or the doctrine of breach of confidence. It seems
96
that this is particularly true in respect of paedophiles where there is

‘understandable public concern about their reoffending’. This factor
also plays an important role in Austria, but not in the other legal sys-
tems. In the majority of private law systems under consideration, the
factors most relevant in assessing the public interest are the length of
time since the crime was committed and whether or not reporting the
crime is relevant in the contemporary setting. Generally, the interest
of the offender in being forgotten increases with the passing of time.
However notwithstanding this general rule, French and German juris-
prudence declare that certain current events may make it permissible
to refer to crimes from the past.
Another factor which will be taken into account in the balancing
process is the nature of the information itself. Generally, in those
countries where the public interest legitimates the reporting of Larry’s
served sentence, the publishing of the offenders’ name is just a corol-
lary. However, in some countries, different rules will apply in regard
to the publication of photographs. In France, the publication of Larry’s
photograph would have to be genuine contemporary news. Similarly,
under German law, serious criminal offenders are usually regarded as
‘relative persons of contemporary history’. In this respect, three years
after the trial Larry will no longer be regarded as a public figure and
consent will be needed to publish his photograph. Similar arguments
will apply in the Netherlands.
The results of this balancing process can be divided into two broad
categories. In the first category of countries, as a rule, freedom of
the press and freedom of information will prevail and therefore the
publication will be deemed lawful. These countries include Austria,
Portugal, England, Ireland and Scotland. However, in the UK the publi-
cation might be unlawful if there are exceptional circumstances in the
particular case, for example if the publication of the information puts
the offender’s life in danger.
In the second group of countries, the legitimate public interest in the
crime is considered to decrease over the course of time so that three
years after the crime was committed Larry’s right to be forgotten will
presumably prevail. Therefore the publication will be unlawful. These
countries include Belgium, Finland, Germany, Italy, the Netherlands
and Switzerland. Nevertheless, again with regard to special circum-
stances, a publication might be allowed. One example is in Germany
where publication might be lawful if current events give reasonable
grounds to refer to crimes from the past.
In France, the situation is less clear-cut. A ‘right to be forgotten’ is

acknowledged by academic literature and lower courts but the Cour
de cassation has not yet accepted this doctrine. Nevertheless, in balan-
cing the public interest in the crime against the offender’s right to be
resocialised after a served sentence, a French court might consider the
latter as prevailing and declare the publication unlawful. Even in cases
where the public interest in the crime will prevail, the publication of
Larry’s photograph might be unlawful as it is no longer a piece of genu-
ine contemporary news.
In Greece and Spain, cases of this kind have not yet been adjudicated
by civil courts nor discussed by scholars. However, it seems that Spanish
law does not recognise a ‘right to be forgotten’, not even implicitly. In
a balancing process the freedom of the press and the public interest in
the information would probably outweigh Larry’s personality interests.
On the contrary, in Greece, Larry’s personality interests would possibly
prevail, as under Greek law a disclosure of the offender’s identity is not
deemed necessary in order to satisfy the public interest in information
about crimes (see Case 2).
Taking the above into account, one can examine the question of
damages. As already stated, in Austria, Ireland, Portugal, Spain and
England and Scotland, Larry will generally not be entitled to damages.
On the contrary, in Belgium, Italy, the Netherlands and Switzerland
(and also possibly in Greece), Larry can claim compensation for both
pecuniary and non-pecuniary loss. In Finland and Germany, Larry can
only recover pecuniary loss. In France, Larry would probably have a
claim for damages (non-pecuniary loss only) resulting from the unlaw-
ful publication of his photograph.
7 Case 4: An invented life story?
Case
A well-known author published a successful novel. Its protagonist was a
man, depicted as opportunistic, cynical and corrupt, with wicked sexual
habits. The detailed description of his life, career, etc. corresponded per-
fectly to a real person – the famous actor X. However, the essential nega-
tive features and actions attributed to the character in the novel did not
match X, they were invented by the author. The novelist himself stressed
at various occasions that he just wanted to create the perfect, typical
figure of a deceitful intellectual. Moreover, on the last page of the novel
he wrote: ‘All persons in this book represent types, not portraits.’
Does the actor X have any claim against the author of the book?
Discussions
Austria
I. Operative rules
The actor X does not have a claim against the author of the book under
Austrian law.

To solve the problem of a so-called ‘roman à clef’, Austrian courts and
scholars apply a flexible system of arguments around which clusters of
cases are established which have something in common.1 This flexible
1
See O. Triffterer and K. Schmoller, ‘Die Freiheit der Kunst und die Grenzen
des Strafrechts’ (1993) ÖJZ 547 et seq., 573 et seq.; U. Brandstetter and H. Schmid,
Kommentar zum Mediengesetz (2nd edn., Vienna: 1999) § 28 no. 42.
206
c a se 4: a n in v en t ed life story ? 207
system is governed by the rule ‘the higher the artistic value, the broader
the artist’s freedom of expression’.2
In the first cluster of cases tortious conduct is present, which is only
garnished with some artistic behaviour. Here, the author is using lit-
erature as a ‘weapon’. Since the minimum requirements of art are not
met, the author cannot rely on the right of freedom of art.3
In a second cluster of cases there are high-ranking novels of artis-
tic quality but these are more or less ‘enriched’ by personal attacks
against protagonists who are only slightly concealed and therefore eas-
ily recognisable to the public.
The book Holzfällen, written by Thomas Bernhard, a famous Austrian
author, was held to be an example of the latter.4 In this book, a char-
acter, which could – primarily thanks to his name – be easily identi-
fied as an Austrian composer and patron, was insulted, ridiculed and
accused of dishonourable behaviour. In the course of a criminal trial,
the Higher Regional Court of Vienna had to decide if the novel should
be confiscated according to § 36 MedienG.
The court held that, according to the classic criteria for assessing
whether a piece of literature is art or not, the novel is of unquestion-
able artistic quality and the author therefore enjoys the protection of
Art. 17a StGG (Staatsgrundgesetz, a provision of constitutional law regu-
lating the right to freedom of art). The characters in the novel act in
their own – fictitious – reality and characteristics attributed to them
cannot be projected onto real living persons simply due to similarities
to the figures in the novel.
The court continued that some parts of the novel, however, seemed
to indicate that the author’s personal confl ict with the claimant was
predominate. The insulting content of these parts was held to be obvi-
ous; thus not necessitating further reasoning.
Despite this assessment, the court held that overall confiscating the
novel would be too harsh a measure and would mean a loss in respect
of art. Accordingly, the claimant’s application for confiscation was dis-
missed. In contrast to these arguments, one might argue that a civil
claim, even for damages, could have been successful since in the novel
Holzfällen the defamatory assaults were substantial and the author dir-
ectly sought confrontation with the claimant.
2
OLG Wien MR 1995, 52.
3
U. Brandstetter and H. Schmid, Kommentar § 28 no. 42.
4
OLG Wien MR 1985/1 A 9 et seq.
In the present case, the situation appears to be different. The artistic

ambition of a well-known author has more weight than the person-
ality rights of a depicted character unless the author primarily aims
to insult the offended person. Considering that the author repeatedly
emphasised that the figures in his novel are fictitious characters, this
does not seem to be the case. Consequently, the famous actor X does
not have a claim against the author.

It is difficult for the courts to decide whether and to what extent a
piece of literature or any other opus represents artistic value, espe-
cially since a general definition of what art is cannot be provided. In
any case, it must be considered that the understanding of what art is
substantially depends on the trends of thinking in society; often it is
determined by fringe groups.5
Belgium
I. Operative rules
X is entitled to compensation for non-economic loss if he proves that
the author is at fault.

Whether or not X could claim damages from the author under Belgian
law depends on the particular circumstances. On the one hand, the
author depicted a fictitious character, which was not X. He made it clear
that he wanted to represent a ‘type’. On the other hand, X could prove the
similarities between himself and the fictitious person and/or the extent
to which these similarities were intended and/or the misuse of these sim-
ilarities in order to give a semblance of truth to other negative features.
In short, X would have to prove fault to have a claim. That fault
could be that too many similarities exist, notwithstanding the use of
a fictional name or the clarification that a ‘type’ and not a person is
depicted. The result must be insulting in the given circumstances.6
5
H. Koziol and A. Warzilek, ‘Austrian Country Report’ no. 70, in H. Koziol and
A. Warzilek, The Protection of Personality Rights against Invasions by Mass Media (Vienna/
New York: 2005).
6
CA Brussels 12 Jan. 1994, RW 1994–95, 229. Comp. Hoge Raad 9 Oct. 2001, www.
rechtspraak.nl and TGI Paris 14 Sept. 1995, JT 1996, 196, note by A. Strowel: the civil
court of Paris had to decide on the case of Princess Lilian of Belgium and Prince
Alexander of Belgium against the editor of a book entitled ‘Une paix royale’. The
author gave the impression that his book was the result of several interviews with
The foregoing does not prevent other claims. For example, one could
obtain an injunction to prevent publication.7
A Belgian case decided in 1999 concerned the publication of a book
written by Herman Brusselmans, which caused a lot of commotion. It
was published the night before an annual book fair and contained a
description of a Belgian fashion designer which was not very flattering.
The fashion designer obtained an order for an injunction, temporarily
prohibiting the sale of the book.8 She later received €2,500 in damages
for non-economic loss.9
It is important to note that in this case Herman Brusselmans used the
fashion designer’s real name, admitted malicious intent and claimed
his allegations were true. In these circumstances, there can be no plea
based on artistic freedom.
A claim can only be made if the use of the person’s real name is unlaw-
ful. The use will be unlawful if it may lead to confusion. There can be
no confusion if the author made it clear that the essential negative fea-
tures are based on fiction and, of course, that clarification is true.
The violation of the right to privacy is not necessarily conditional on
the use of insulting language towards a third person. The civil court of
Liège had to assess an advertisement for a theatre performance which
presented the performance ‘as hardly less funny than the performance
of Mr X’. X was a successful artist known for his one man shows, who
claimed damages for the violation of the right to his own name. The
court decided that his right was not violated because his name was
not appropriated or misspelled. However, X received 20,000 BEF (€500)
damages for the violation of his right to privacy.10 This judgment seems
disproportionate as Belgian case law normally demands that certain
facts or behaviour or opinions are revealed, while the person involved
wants to keep these elements to him- or herself.11 In this regard, con-
sider for example the sexual orientation of a famous person.12
the princess and prince, while in reality those interviews never took place and were
invented by the author. The court decided that the author and the editor committed
several wrongs by leaving the public in doubt regarding the degree of truthfulness
of the book.
7
Cf. the Mephisto case leading to BVerfG 24 Feb. 1971, BVerfGE 30, 173.
8
CA Antwerp 4 Nov. 1999, Mediaforum 2000–1, no. 2 note by D. Voorhoof.
9
Civil court Antwerp 21 Dec. 2000, RW 2000–01, 1460.
10
Civil court Liège 12 Dec. 1997, JLMB 1998, 819.
11
12
CA Ghent 12 Jun. 2001, AM 2002, 169.
England
I. Operative rules
The actor X may have a claim in libel if the ordinary sensible reader
would understand the defamatory words as referring to the claimant
and if no satisfactory defence exists.

The novel could be defamatory towards X taking the form of libel.
Clearly, the description of being opportunistic, cynical and corrupt,
with wicked sexual habits, is defamatory. However, the defamation
must also refer to the claimant even though it does not need to be
express. The test is whether the ordinary sensible reader, in light of the
special facts, would understand the words as referring to the claimant.13
The defendant in this case is still liable for a work of fiction which is
reasonably understood to refer to the claimant, even if the author did
not know of his existence, because the words published have a specific
meaning which is harmful to the claimant’s reputation.14 The clause
that all persons in the book represented types, not portraits, would not
necessarily help the author if the ordinary sensible reader regarded
this as a mere feeble attempt to avoid liability. Since this appears to be
at least possible in the present case, the judge would have to leave the
matter to a jury to decide.
However, the Defamation Act 1996 provides a special statutory
defence in cases of ‘unintentional defamation’ by allowing the defamer
to make an ‘offer of amends’ by means of a suitable correction and
apology.
Finland
I. Operative rules
Whether or not actor X can claim damages depends on whether the
publication constitutes a crime (in this case defamation) or not. An
injunction is not possible, as was described in Case 1. If the publishing
of the novel is considered a crime then there is the possibility to claim
for the forfeiture of the unsold copies of the novel.
13
Newstead v. London Express Newspaper Limited [1940] 1 KB 377; Morgan v. Odhams Press
Ltd [1971] 1 WLR 1239. For a description of such an ordinary reader, see Charleston
and Another v. News Group Newspapers Ltd and Another [1995] 2 AC 65, at 73, per Lord
Bridge of Harwich.
14
E. Hulton & Co. v. Jones [1910] AC 20.

If the author understands that the creation of the character in the
novel and the publication of that novel can defame the actor, and
the novel is also objectively likely to defame, the author can be
sued for defamation according to Ch. 24, s. 9 of the Finnish Penal
Code provided that the false statements or insinuations are likely
to cause damage or suffering to the offended person.15 The actor is
also entitled to damages according to the principles mentioned in
Case 1: compensation for pure economic loss is possible according
to Ch. 5, s. 1 of the Tort Liability Act. If the actor can prove that he
has suffered pure economic loss, which can be a difficult task, he
can obtain damages. In addition, the actor has a claim for compen-
sation of anguish according to Ch. 5, s. 6. As was described in Case
3, a rough estimate of the amount of the damages would be in the
region of €5,000 – €20,000.
An injunction – as was described in Case 1 – is not a possible remedy
in matters concerning freedom of speech.
If the novel is found to be defamatory and thus constitutes a crime,
the copies of the novel can be declared forfeited, according to Ch. 10
of the Finnish Penal Code. In contrast to a newspaper, many copies of
a novel are usually printed, resulting in some of them being stored for
later sale. Therefore, the offended person has a legitimate interest to
have the unsold copies destroyed. As was also described in Case 1, the
profit of the crime can be declared forfeited.

It is difficult to determine what significance one should give to the
author’s statement that the protagonist is a fictitious person, if, despite
this, the reader of the novel gets the sense that the character in the
novel refers to the actor X. If the author understands that the average
reader nevertheless interprets the protagonist as actor X, the criteria
for the crime of defamation can be fulfilled. If the author has made an
effort to prevent the public from interpreting the protagonist as actor
X, the fact that the author lacks intention will eliminate the possibil-
ity of convicting him of defamation. The freedom of artistic expres-
sion legitimises elements from real life being mixed with fictitious
elements.
15
A. M. Nuutila, ‘Kunnian ja yksityiselämän loukkaaminen’, in O. Heinonen et al.
Rikosoikeus (Helsinki: 1999) at 590.
If the public at large understands that the novel is partly fictitious

and that the negative features cannot be attributed to the actor X, the
novel itself will therefore not constitute a crime.
France
I. Operative rules
The actor X probably has a claim for damages for non-economic loss
against the author of the book but case law is not settled on this point.

In this case, we are concerned with a conflict between freedom of expres-
sion and literary creation on the one hand, and the respect of personality
rights on the other. In theory, such a conflict is regulated in a different
manner depending on whether the work in question is a biography or
a work of fiction. Both the statement by the author and the disclaimer
which appeared at the end of the work give us reason to believe that we
are dealing with the latter. However, such a qualification does not depend
on the will of the author and French courts are vigilant in detecting dis-
guised biographies, i.e. the evocation of a story, which is true or allegedly
true, concerning a person easily identifiable. Thus, the Cour de cassation
has confirmed the injury to private life caused by an opus which ‘though
presented as a work of fiction, was in reality a badly disguised biography,
easily permitting the identification of various protagonists in their psy-
chological and emotional relations within the family’.16
Even without using his/her name, the identification of a character in
a novel can result from a collection of concordant indices, such as the
place where the story occurs, professional similarities, the recitation of
notorious facts, etc. In the instant case, the claimant actor enjoys great
notoriety. One could clearly notice the similarity between his life and
career and that of the character in the novel and thus prove that the
author was inspired by the life of X to write the novel.
Once the identification has been admitted, the judges must then
check whether the reputation or the private life of the victim has been
injured. The second hypothesis is more easily determined. French
courts do not hesitate to impose liability where, in spite of the fact that
the author claims that the character depicted is fictional, the revelation
16
Cass. civ. 25 Feb. 1997, JCP 1997, II, 22873. See also TGI Lyon 7 juin 1977, D. 1978,
jur., 18; Cass. civ. 9 Jul. 2003, Légipresse 2003, No. 205, I, 142: ‘The respect of privacy
is imposed upon the author of a novel more compellingly than on a journalist who
complies with his/her assignment to provide information’.
of imaginary ‘facts’, which the reader can misinterpret as true, consti-

tutes an injury to the private life of the person concerned.17 On the
other hand, a simple inexactitude of facts, which originate from the
pure imagination of the author without malevolent intention, must be
tolerated in the name of freedom of expression.18
In this case, however, it is not a matter of the disclosure of specific
facts but of the attribution of certain negative character traits. Though
X may feel that his reputation has been injured it is not certain that his
claim will succeed before a French court. An action in defamation on
the basis of the 1881 Freedom of the Press Act is not likely to succeed
given the different procedural obstacles, notably the very short pre-
scriptive time limit of just three months (see Case 1). On a private law
level, and in the absence of a general personality right in French law,
the action is only possible upon the basis of general rules of tort liabil-
ity, i.e. some culpable fault must be able to be attributed to the author
of the novel. Thus, though the application of Art. 1382 of the Civil Code
does not require proof of intention to injure, nonetheless the French
judges tended to favour the freedom of creation until recently.19
In deciding a case whose facts were similar to those of the instant
case, the Cour de cassation recently allowed the claim of a woman who
recognised that she was the protagonist of a detective story written by
an author who had presented her as an old prostitute. The appellate
court had ordered the suppression of four passages of the book contain-
ing the complained imputations. The author and the editor appealed to
the Cour de cassation. They maintained that
the narration of a purely fictional event, occurring in the life of one of the imag-
inary characters of a work of fiction which, although taking inspiration from
real facts, does not pretend to appear to be true, falls within the scope of the
author’s freedom of artistic creation. Thus, it does not constitute an injury to
the privacy of the person who may identify him- or herself with that character.
However, the Cour de cassation did not share this view. On the con-
trary, the court decided on 7 February 2006 that ‘a work of fiction,
17
CA Paris 12 Jul. 1991, Légipresse 1992, No. 89, I, 32.
18
N. Mallet-Poujol, ‘De la biographie à la fiction: la création littéraire au risque des
droits de la personne’ (2001) 24 Légicom 107–121.
19
Trib. civ. Seine 8 Dec. 1938, Gaz. Pal. 1939, 1, 382: ‘the incontestable right of a writer
to gain from real life the necessary materials for his/her work is only limited by the
respect due to the personality of others, without however having to excessively take into
account the human susceptibility’ (emphasis added); TGI Paris 9 Dec. 2002, D. 2003, jur.,
1715, concerning the confl ict between works of fiction and privacy; TGi Paris
16 Nov. 2006, Légipresse 2007, No. 240, III, 73.
occasionally relying on real facts and using some elements of a person’s

real life, cannot add to those elements others which, although fictional,
disregard the respect due to the privacy of that person’.20 If this prin-
ciple were applied in the present case, X would be entitled to damages
(non-economic loss) for the violation of his right to privacy (see Case 5).
Germany
I. Operative rules
In a very similar case to the case at hand the German courts granted an
injunction against the publication of a so-called Schlüsselroman (roman
à clef) with distorted facts about the life of the real character depicted
in the fictitious work.

There are at least two relevant personality interests in this case. First
of all, the actor’s honour or reputation might be maligned and sec-
ondly his person might be put into a false light by false or misleading
descriptions. The peculiarity of the harm in this case lies in the fact
that there is no single detrimental action. The novel is derogatory
to the whole biography and character of X and therefore of serious
intensity. In cases such as this, German lawyers do not speak of a
sole violation of a person’s right to honour but of a violation of a per-
son’s biography (Lebensbild),21 consisting of all actions, sentiments and
convictions which constitute a person’s individuality or identity. The
right to one’s biography may also be called the right to protect one’s
individuality or identity against false, misleading or incomplete bio-
graphical details.22 This right is affected in cases in which a fictitious
character can be identified as a real person by her or his relatives,
friends or by the public.23 A violation of the right can occur in two
constellations. Persons may bring a claim if their privacy is harmed by
making intimate details of their private lives publicly available.24 The
20
Cass. civ. 7 Feb. 2006, JCP 2006, II, 10041. A. Ohly, A. Lucas-Schloetter, H. Bewerley-
Smith, ‘Artistic Freedom Versus Privacy – A Delicate Balance: The Esra Case
Analysed from a Comparative Law Perspective’ (2008) iic vol. 39, 526.
21
OLG Düsseldorf NJW-RR 2000, 321.
22
K.-N. Peifer, Individualität im Zivilrecht (Tübingen: 2001) at 219, 222, 227.
23
BGHZ 84, 237 = NJW 1983, 1194 (satirical poem about the German department store
tycoon Helmut Horten); H. Hubmann, Das Persönlichkeitsrecht (2nd edn., Cologne/
Graz: 1967) at 304.
24
BGH NJW 1999, 2893 (publication of details about the divorce proceedings of the
publicly known aristocrat Ernst August Prinz von Hannover; although in this case,
the court found sufficient public interest to make the publication legitimate).
second constellation requires that fundamental facts about the person

are changed, suppressed or just invented by the author. This second
situation is the one in cases where fictitious works allude to the lives
of real people.25 Therefore, the right to one’s biography is at stake.
The claimant has an imminent interest in stopping the author
and the publisher publishing and distributing the novel through an
injunction. The author is primarily responsible for the allegation of
false facts. However, the author’s behaviour may be guarded by the
constitutional protection of freedom of art (Art. 5(3) GG). This requires
a balance of artistic freedom and personality interests. In principle,
artists may take ideas for their work from the lives of real people.
Though the constitutional provision does not refer to limits for art-
istic expression, courts and scholars agree on the point that freedom
of art may not recklessly violate other constitutional values such as
the rights to personal freedom and dignity.26 Therefore, freedom of
art does not afford the right to debase a person’s dignity. Alluding to
an existing person as representative of a type without mentioning
this person as an individual is within the limits of artistic liberty.27
Thus, courts will determine whether a disclaimer or other measures
of distancing used by the author are more than a simple camouflage
for a personal attack. Freedom of art does not allow the falsification
of facts.28
In a case concerning Klaus Mann’s novel Mephisto, which depicted
the life of the German actor Gustav Gründgens, an injunction was
granted in 1966, three years after Gründgens died. The Oberlandesgericht
Hamburg found that too many details about Gründgens’ life had been
omitted or changed.29 The mixture of true and fictitious details about
the main character would be read as a true biography of Gründgens,
not as a fictitious work. While the BGH confirmed this decision,30 the
BVerfG was divided. Finally, in a three against three decision there
was deemed to be no violation of constitutional law by the BGH
decision.31
25
Recently BVerfGE 119, 1, 29 – Esra; BGH ZUM 2005, 735 – Esra; KG Berlin, AfP 2004,
371 – Meere.
26
BVerfGE 30, 173, 193 – Mephisto; BVerfGE 33, 52, 71; BGHZ 84, 237 = NJW 1983, 1194;
OLG Karlsruhe NJW 1992, 647; R. Rixecker, Münchener Kommentar zum BGB (4th edn.,
Munich: 2001) § 12, note 167.
27
L. Zechlin, ‘Kunstfreiheit, Strafrecht und Satire’ (1983) NJW 1195, 1196.
28
OLG Karlsruhe NJW 1994, 1963, 1964.
29
Ufita 51 (1968), 362. 30 BGHZ 50, 133.
31
BVerfGE 30, 173 = NJW 1971, 1645.

The case shows that artistic freedom is valued more liberally than
press freedom. This is due to the sociological fact that less credibility
is attributed to artistic works. The reader or spectator is more critically
distanced from the realistic background of a fictitious work. Therefore,
the decision by the BVerfG was heavily criticised in Germany by non-
lawyers. In the end, the novel was not published until 1981, almost 20
years after Gründgen’s death. This time, nobody sued. The novel was a
big success for the publishing company and half a million copies sold
within two years.
Greece
I. Operative rules
X does not have a claim against the author of the book.

This case concerns a confl ict between the protection of personal-
ity and freedom of expression, particularly freedom of artistic
expression.
As already mentioned in Case 2, the particular action has an unlaw-
ful character when the conditions and the method of statement prove
that there is intended defamation. Intentional defamation means
‘behaviour that especially leads to injury to a person’s honour by con-
testing his moral or social value’.32 There is no indication of intention
on the part of the novelist to injure the honour and reputation of the
claimant.
The description of the person’s attributes in the novel have a gen-
eral character, creating a type of person with specific characteristics,
rather than trying to focus the reader on the person claiming to be
offended. As a general type of person it is very probable that many oth-
ers could find similarities with their own character.
Ireland
I. Operative rules
Actor X would succeed in a claim for defamation if it could be estab-
lished that the ordinary reasonable reader would understand that the
character in the book is a thinly disguised portrayal of actor X.
32
Supreme Court (Areopag) Decision 825/2002.

In order to succeed in an action for defamation, the plaintiff here must
establish that he has been identified by the offending statement.33 Even
where the reference to the plaintiff is unintentional, as the novelist has
claimed, an action may still exist.34 The strict liability nature of the tort
has the potential to cause harshness in cases where the defendant has
made a genuine error. Thus under s. 21 of the Defamation Act 1961, the
novelist may make an offer of amends to actor X if he can establish that
the relevant material was innocently published. The offer of amends
could involve the publishing of a correction and an apology.35 Were the
offer of amends to be accepted and a correction and apology published
then it would bring an end to any proceedings.36 The novelist will only
be able to make an offer of amends where he can show that he inno-
cently published the material.37 In order to establish that the material
was innocently published the novelist must first show that he did not
intend to publish the material concerning actor X and also that he was
not aware of the circumstances by which it might be understood by
the ordinary reader that the material did refer to the actor. Second,
the words used must not be prima facie defamatory. Finally, the novelist
must prove that he acted reasonably in the publication of the material
in all the circumstances. It is unlikely that the novelist will be able to
plead the defence of offer of amends based on the foregoing. It could
certainly be argued by actor X that the similarities between him and
the fictional character in the book are too close to be unintentional
and that given actor X’s fame the novelist should have been aware that
the ordinary reasonable reader would draw similar conclusions. At the
very least, the novelist should be aware of this possibility and the mere
publication of a disclaimer would not be sufficient to avoid liability.
33
Berry v. Irish Times Ltd [1973] IR 368.
34
Hulton v. Jones [1910] AC 20 (HL).
35
S. 21(3). 36 S. 21(4).
37
S. 21(5) of the Defamation Act 1961 provides: ‘For the purposes of this section words
shall be treated as published by one person (in this subsection referred to as the
publisher) innocently in relation to another person if, and only if, the following
conditions are satisfied, that is to say (a) that the publisher did not intend to publish
them of and concerning that other person, and did not know of circumstances by
virtue of which they might be understood to refer to him; or (b) that the words
were not defamatory on the face of them, and the publisher did not know of cir-
cumstances by virtue of which they might be understood to be defamatory of that
other person and in either case that the publisher exercised all reasonable care in
relation to the publication; and any reference in this subsection shall be construed
Italy
I. Operative rules
X can probably recover damages against the author of the book but
the law is not clear on this point. X’s claim for injunction would most
probably fail.

In implementing the Data Protection Directive 1995/46/EC through
the 1996 Data Protection Act (now Data Protection Code),38 Italy did
not introduce any specific exceptions concerning the use of per-
sonal data for literary and artistic purposes, permitted by Art. 9 of
the Directive. Consequently, if an author wishes to write a biography
about a certain person or, more generally, to report true facts involv-
ing certain persons by making use of personal data which is not yet in
the public domain, he or she cannot do so without that person’s con-
sent. However, in the present case the novelist did not wish to write
a biography about X, nor report true facts.39 He simply got inspiration
from X’s life for creating a fictitious figure which differs notably from
the real one. Moreover, the author explicitly made it clear that all
characters in his novel are supposed to represent types, not portraits.
Thus, one could argue that the Data Protection Code does not apply
here.
Nevertheless, X’s personality rights may have been infringed through
the publication of the novel. If the fictitious figure is so similar to X in
terms of life story, main characteristics, etc. that it would be immedi-
ately identified with X by all readers who know him, then the novel
as including a reference to any servant or agent of the publisher who was concerned
with the contents of the publication.’
38
See Case 3 re the Data Protection Act.
39
In a case decided in 2002 (Trib. Mondovì, 8 Mar. 2002, DPP 2003, 336 with a critical
commentary by L. Marocchi) the author of the novel Fattacci (Wicked Deeds) was
released from the accusation of defamation. The novel was a literary re-elaboration
of true or at least putatively true facts, which had come to the attention of the
media and criminal courts some years before. The novel attributed the commission
of criminal offences and very negative character traits to a young man (clearly iden-
tified in the novel by his real name) who was addicted to drugs and then murdered.
The court, after having balanced the deceased person’s fundamental rights to hon-
our and personal identity (Arts. 2, 3 Cost.) against the novelist’s freedom of speech
and freedom of art (Art. 21 Cost.), decided in favour of the writer. It held that the
personality rights violations contained in the novel were justified by the right to
report news (diritto di cronaca), since the writer did not invent any of the details of
the story but based them on media reports and documents in the possession of the
judiciary. On the right to report news, see Case 1.
could indeed cause harm to X’s reputation and/or distort his personal
identity.40 However, this would not automatically lead to the unlawful-
ness of the publication of the novel, because X’s personality rights have
to be balanced against the novelist’s freedom of artistic expression pro-
tected by Art. 21 Cost.
A case similar to the present one was decided in Italy in 1997.41
A female writer was convicted of the crime of defamation for publish-
ing a novel titled Il bastardo di Mautana (The Bastard of Mautana), which
mingled fictional elements with details from the real lives of persons
who were already dead at the time the book was published. In the novel,
very negative, defamatory characteristics were attributed to these per-
sons. They were easily identifiable in spite of the fictional names given to
them in the novel. The court held that the publication of this novel, writ-
ten without careful reference to historical sources, offended the mem-
ory of deceased persons and could not be considered a lawful exercise
of freedom of artistic expression. Thus the writer was sanctioned with a
penalty and ordered to pay damages (20 million Lire, i.e. approximately
€10,000 for non-economic loss, and 10 million Lire for economic loss,
approximately €5,000) to the heirs of the defamed persons. However, no
injunction was granted and the book is readily available on the market.

The striking of a fair balance between personality rights and free-
dom of artistic creation in cases concerning novels which interfere
with personality interests requires us to take metalegal elements into
account. Freedom of art cannot justify serious interferences with the
personality rights of third persons, however the protection of those
rights would be too far-reaching if novelists were no longer allowed
to derive inspiration from existing persons for inventing their char-
acters. Perhaps the best compromise in the instant case would be to
compensate the non-economic loss of the offended person, while not
imposing any kind of censorship (i.e. neither prohibiting the dissemin-
ation of the novel nor ordering the deletion of the offending sentences
from the novel). In substance, this solution seems to match with some
trends observed in Italian case law.42
40
See Case 15.
41
Trib. Piacenza 18 Apr. 1997, Foro it. 1998, II, 193, with commentary by A. Di
Martino: ‘La diffamazione a mezzo romanzo: rapporti tra tutela dell’onore e libertà
di espressione letteraria’.
42
Ibid.
The Netherlands
I. Operative rules
X has a claim against the author and publisher43 of the book. The fol-
lowing remedies are available to X: injunction, the recall of books,
economic damages (including profits deprived) and non-economic
damages.

In this case, both the freedom of the press (Art. 7 Constitution) and the
freedom of artistic expression are engaged, since the statement has been
published in a novel. However, Art. 6:162 BW implies that every exercise
of a right has its limits. Guided by the ‘proper social conduct standard’
it has to be decided whether the publication in this case is unlawful.
The fact that a novel is an artistic expression is not a carte blanche to be
offensive and/or to infringe someone’s honour and good reputation.
The mere fact that the life, career, etc. of the protagonist in the book
corresponds perfectly with the life of X is not a reason to render the
publication unlawful. Nevertheless, in this case the author implicitly
allows the impression that the negative features and actions attributed
to the protagonist are in fact features and actions of the actor, whereas
it is a given that the author invented those features and actions him-
self. The publication of these negative features and actions is offensive,
since it results in the public getting a bad impression of the person con-
cerned and his honour and reputation being infringed (see Case 1, cir-
cumstance (a)).44 As far as it is reasonable to get the impression that the
protagonist in the book can be identified with the actor,45 these facts
are not true or at least not based on objective innuendo (see Case 1, cir-
cumstance (c)). Consequently the publication of the negative features is
an unlawful infringement of actor X’s right to honour and reputation.
The mere disclaimer on the last page, ‘All persons in this book
represent types, not portraits’, is not enough to avoid or refute the rea-
sonable impression that the life of actor X has been described. If such a
quote were enough, it would be too easy to unrestrictively publish all
kinds of negative facts about people. This would excessively lower the
43
HR 10 Nov. 1989, NJ 1990, 113; G. A. I. Schuijt, Losbladige Onrechtmatige Daad,
Hoofdstuk VII (Deventer: 2000) no. 167.
44
45
HR 9 Oct. 2001, NJ 2002, 76.
protection of the personal interests of people who can be easily recog-

nised as characters in novels.
On the other hand, the mere fact that the fictional figure resembles
a real person is not enough to make the publication unlawful. For this,
it is necessary that a reasonable reader can recognise the real person
in the fictional figure in all respects. This is the case if readers cannot
distinguish between facts that are based on reality and remarks that
are inspired by the fantasy of the author (see Case 1, circumstance (d)).
If it is clear or indeed should be clear to the reader that the facts in the
novel are the result of the subjective vision of the author rather than
a description of objective facts, there is no basis for this reasonable
identification.46
Assuming that the suggestion made by the author justifies the
identification of the protagonist and actor X, and that therefore the
description of the negative features and actions is unlawful, X has
actions both against the author of the book and the publisher.47 If
the book has not yet been published, X can ask for an injunction
against the publication. Even if the book has already been published
and has been sold to the public, X can ask for an injunction prevent-
ing the remaining books being sold. Furthermore, he can ask the
publisher to recall the books that were already sold. He can also ask
for rectification.
According to Art. 6:95 BW, X can claim for compensation of loss
and/or of deprived profits. He has to prove that the author’s unlawful
act caused him to suffer loss. If so, upon the request of the actor the
amount of profit that the author and/or his publisher derived from the
unlawful act may also be taken into account in the assessment of the
damages (Art. 6:104 BW ).
Damages for non-economic loss can be claimed if the requirements
of Arts. 6:106 jo. and 6:96 BW are met. In this situation, the honour and
good reputation of the actor have to be infringed. Presupposing that
the publication is unlawful because it is reasonable to be under the
impression that the description of the negative features and actions
concerns the actor, then his right to honour and good reputation have
been infringed. For that reason he is entitled to damages for non-
economic loss.
46
47
HR 10 Nov. 1989, NJ 1990, 113; Schuijt, Losbladige Onrechtmatige Daad no. 167.
Portugal
I. Operative rules
The famous actor X can be awarded damages if the judge considers
that the character portrayed in the book in question can actually be
identified with him and this has caused damage to the actor’s personal
honour.

This case concerns a confl ict between two personality rights: the
actor’s right to honour and personal reputation and the author’s right
to the free development of personality (which protects freedom of
artistic creation). Objectively, it is important to ascertain whether
the text causes the character to be identified with the claimant, and
whether this identification is general and obvious or not. This may
vary widely from reader to reader and in different sectors of society,
but a general trend has to be established. Furthermore, the court will
have to analyse what damaging effects the identification will cause
to the claimant. This also depends largely on the circumstances of
the case.
Freedom of artistic creation is constitutionally protected by Arts. 42
and 78 CRP. However, when deciding on the particular case, the court
shall evaluate if and to what extent the claimant is bound to suffer for
the sake of liberty of freedom of artistic creation, or, on the contrary,
to what extent freedom of creation must be sacrificed at the expense
of personal honour. Casuistry is inevitable. The judge must weigh both
sides on the scales of justice and discern the equilibrium.
If the judge considers that:
(1) the average reader can identify the book’s character with the
famous actor X;
(2) it is so offensive to that person’s honour and reputation that the
freedom of cultural creation should give way to the right to honour;
and
(3) this has caused damage to the actor’s personal honour,
then, the famous actor X would be awarded damages, according to Art.

70 and 483 CC. Damages can even be awarded if the author did not act
with fault or with ‘animus injuriandi vel diffamandi’, since civil responsi-
bility can take place even if the author only acted negligently.48
48
Arts. 483 and 484 CC and STJ 27.05.1997, 3.02.1999.
Scotland
I. Operative rules
An action in defamation can be raised, although the outcome will
depend on whether a court sees the case as substantiated.

This question addresses the problem of a publication which, while dis-
claiming the use of a real life character as a model for its main protago-
nist, nevertheless might lead its readers to draw an inference that it is
in fact referring to the actor X.
Again, the law of defamation is involved here, together with the pos-
sible use of someone’s character for literary gain, although this latter
point is refuted by the author.
It is entirely irrelevant in Scots law whether defamation is made
intentionally or unintentionally. The disclaimer is also irrelevant in
that the question of whether there is a similarity between the charac-
ters is one to be left for the court to determine. X does not also need to
prove that the defendant author deliberately chose to disparage him
as a specific person. It is sufficient that the court and/or jury find that
the words – in this case in the context of the fictitious novel – could
reasonably be read (and understood) as referring to the particular
actor X.49
The leading English case of Hulton v. Jones,50 confirms the foregoing
principles and indeed has been followed by Scottish courts in Wragg
v. Thomson.51 The former case dealt with exactly the same type of cir-
cumstances as here: innocent defamation. Given that s. 9 Defamation
Act 1996 now allows a ‘short cut’ route to either an offer of amends or
a declaration that the statement – in this case, the novel – is defama-
tory, the ceiling limit of £10,000 damages under s. 9(1)(c) HRA could be
applied in such an ‘innocent’ case.
These authorities confirm that it is irrelevant whether X is known
to the author or indeed whether he was alluded to in the description
of the main character. Only the judge in summary proceedings and/or
the jury at trial need to be satisfied that X might reasonably be alluded to
by the text.
49
This still makes defamation a serious threat for fiction writers.
50
[1910] AC 20. 51 1909 2 SLT 409.
Spain
I. Operative rules
X cannot claim against the author of the book.

According to Art. 7.7 of Spanish LO 1/1982 and the facts described above
the actor X does not have an action to protect his rights to honour
and privacy. Creating a fictitious character is only subject to the limits
of freedom of speech. According to this, there is no criminal action
unless the facts could be qualified as defamation.
We do not know of any similar case in Spanish case law. However,
according to case law, there is no relevant difference between an opin-
ion made in a book or in the media.52
Switzerland
I. Operative rules
The actor may request a declaratory judgment that an unlawful
infringement of his personality occurred and ask the judge for an
injunction against the future distribution of the book. The actor
may also claim damages for the economic and non-economic loss
suffered.

The publication of a book is protected by freedom of expression (Art.
21 of the Swiss Federal Constitution), which includes artistic freedom.
However, artistic activity must remain within the limits of public order
and respect the personality rights of others, including their reputation
and their private spheres.53 Each case requires balancing the individu-
al’s rights against the author’s freedom of expression.
52
Neither ordinary legislation nor case law on the protection of honour make a
distinction depending on the different medium of communication of informa-
tion which intrudes into someone’s intimacy. The only relevant distinction made
is related to the extent of the dissemination of such information, but this dis-
tinction concerns the amount of the damage, not the existence of the loss itself.
Accordingly, and specifically under s. 9 LO 1/182, the amount of damages can vary
depending on the extent of dissemination of the untrue information or the infor-
mation obtained without the plaintiff’s knowledge. This rule seems to be correct.
53
ATF/BGE 120 II 225 c. 3b, JdT 1996 I 99.
The Federal Court has adopted quite a restrictive conception of Art.

21 in the ‘Julen’ opinion of 27 May 2003,54 where it held a painter who
painted a collection of portraits of recognisable semi-nude individuals
to be liable. It held that artistic freedom did not provide a defence for
the infringement of the reputation of the individuals depicted on the
canvas.
In the case at hand, the sentence which appears on the last page of the
novel leads us to believe that the book does not depict reality, but fiction.
In dealing with a fictional story, the novel must be written in such a fash-
ion that the reader cannot establish a link between the facts described
that would infringe a person’s reputation and an actual person.55 If the
actor depicted in the book is easily recognisable and if the book gives
this person an image which is falsified to the point of being hurtful in
the eyes of his peers, the actor may claim for unlawful infringement of
his reputation. It seems here that the two conditions have been met.
Thus, the actor may request specific injunctive relief by asking for
a declaratory judgment that the infringement was unlawful and an
injunction against future distribution of the novel (Art. 28a, para. 1
CC). He may also claim damages for economic harm suffered (Art. 28,
para. 3 CC), for pain and suffering and he may demand restitution of
the profits made.

According to the Swiss Press Council, ‘fiction is distinguished from
reality and will not be subjected to the exacting demands of veracity
in the same way that reported facts are’.56 The boundaries between fic-
tion and non-fiction must be clearly marked so that the reader is not
induced to believe erroneous information about a person. If this dis-
tinction is not clear, freedom of art, protected by Art. 21 of the Swiss
Federal Constitution, does not give carte blanche to the author and he/she
must respect the personality rights of the person he/she is referring to.
Comparative remarks
Case 4 deals with the conflict between freedom of art and the protec-
tion of personality. In most continental European legal orders this is a
54
Judgment of the Swiss Federal Court, 5C.26/2003.
55
See n. 53.
56
Statement of the Conseil suisse de la presse 1999, n. 9 c.2.
conflict between constitutionally guaranteed fundamental rights and

freedoms (Austria, Belgium, Germany, Greece, Italy, the Netherlands,
Portugal). What makes this case particularly difficult is that this type of
key novel (‘Schlüsselroman’, ‘roman à clef’) may be classified as a border-
line case between a biography and novel, a so-called ‘veiled biography’.
The unauthorised publication of biographies of celebrities, politi-
cians and other public figures could, under certain circumstances, be
justified on grounds of the public interest (see Case 5). On the contrary,
most legal systems would only allow the publication of a biography
of a private person with the prior consent of that person. In the case
of genuine novels with imaginary persons and plots, the freedom of
art takes priority. In borderline cases such as this one, continental
European civil laws weigh up the freedom of art against the protection
of personality. Two criteria are of special relevance here:
(i) Recognisability of the person portrayed. Is this merely the invention
of a particular type or character – or is it clearly the description of
an identifiable individual?
(ii) Protection of personality only takes precedence over freedom of art
if the portrayal of this recognisable individual is tantamount to a
significant infringement of his or her privacy, identity or honour.
It is hard to determine whether in the present case both prerequi-

sites are given. In Germany in the 1960s the Bundesgerichtshof judged in
favour of the claimant in the Mephisto case,57 which the present case
was modelled on (the first division of the German Constitutional Court
delivered a split vote). Today, a dismissal of the action would be more
likely. Furthermore, in Austria, Greece and Spain the publication of
such a novel would be lawful. In Austria, Italy, Germany and Greece
this outcome would be reached through a balancing of conflicting
rights in the framework of the general law of delict of the Civil Code.
In Spain, the relevant legal basis is a special statute: the 1982 Act on
the civil protection of the rights to honour, personal and family pri-
vacy, and one’s image.
In Italy, the Netherlands and Switzerland, an unlawful infringement
of X’s personality would probably be acknowledged and X would be
entitled to compensation of economic and non-economic loss. In the
Netherlands and Switzerland, X would also be granted an injunction,
while this seems unlikely in Italy.
57
BGH, 20 Mar. 1968, BGHZ 50, 133, NJW 1968, 1773.
Moreover, in France, an unlawful infringement of X’s personality

interests is likely to be acknowledged nowadays. Before 2006, French
courts tended to let freedom of art prevail over the right to privacy in
cases of this kind. In 2006, however, the Cour de cassation granted an
injunction to a woman who recognised herself as the figure of an old
prostitute in a ‘fictitious’ detective story. Like in X’s case, in this French
case the novel had also mingled some elements from the claimant’s
real life with fictional elements.
If an injury to personality rights is affirmed, continental European
legal orders provide the following remedies: injunction barring pub-
lication; compensation of economic and non-economic loss and (pos-
sibly) forfeiture.
In England, Scotland and Ireland the case would be subsumed under
the law of defamation (see Case 1). The result would depend on the
recognisability of X and the damage to his reputation by the portrayal
in the novel. In England, this decision would be taken by the jury.
Under the Irish Defamation Act of 1961 and the English and Scottish
Defamation Act of 1996, the author and publisher would be able to
avoid the payment of damages in cases of unintentional defamation by
making an offer of amends.
Unlike in the other European countries, in Finland civil liability for
defamation is strictly accessory to criminal liability. In the present
case, if the publication of the novel meets the requirements of a
crime of defamation, X can recover economic and non-economic loss.
Injunction is not possible before publication, but the unsold copies of
the book can be forfeited.
8 Case 5: A former statesman’s
family life
Case
After a famous statesman’s retreat from politics, his former secretary
published a biography revealing many details about his family life.
Can the statesman sue the author and the publisher for damages and
injunction?
Discussions
Austria
I. Operative rules
Whether the statesman is entitled to sue his former secretary
and the publisher of the book for damages depends on particular
circumstances.

In general, § 7 MedienG, which protects the right of ‘utmost intimacy’
(‘höchstpersönlicher Lebensbereich’), for example family life, health and sex-
ual life, corresponds with Art. 8 ECHR. In principle, all persons – includ-
ing politicians, statesmen and other ‘public figures’ – are protected
against unlawful public exposure through media reports, books, etc.
If the allegations made are true, under § 7, subs. 2(2) MedienG, it is of
central importance whether the published facts relating to the claim-
ant’s private life are strongly connected with his/her public life. In
addition, the particular behaviour and intention of the party infring-
ing the privacy of the claimant is relevant.
Austrian courts and scholars combine these elements in a flexible
way: the less the private details (e.g. conjugal disputes between the
228
c a se 5: a for mer stat esm a n’s fa mily life 229
statesman and his wife) are connected with the claimant’s public life
and the more malicious their description, the more plausible a claim
for damages even if the story is true. In contrast, if, for example, the
statesman fervently campaigned against homosexuals during his pol-
itical career, the secretary’s story on the statesman’s own homosexual
tendencies is, of course, of public interest and he may not receive com-
pensation even if some details are untrue and/or very intimate and/or
maliciously described.
With regard to this weighing of elements, if the secretary engages in
wrongful behaviour the statesman is entitled to sue.
Regarding economic loss, it is possible to sue the author and the
publisher for loss of earnings according to § 1330, subs. 2 ABGB (see
Case 1); consider for example a situation where the statesman fails to
secure a well-paid job because of the reports of his former secretary.
Compensation for pecuniary loss could be also deduced from the vio-
lation of the right to privacy, which is based on § 16 ABGB – the gen-
eral clause for the protection of privacy – together with Art. 8 ECHR.1
In this particular case, § 1295(1) ABGB, the general clause of tort law,
would be the basis for the claim.
Furthermore, under § 7 MedienG,2 the statesman could claim against
the publisher for compensation of non-economic loss up to a ceiling of
€20,000.
§ 1328a ABGB, which provides for compensation of economic and
non-economic loss in case of an infringement of privacy, is not appli-
cable either against the publisher or against the author3 due to subs.
2 which reads: ‘Responsibility for infringements of privacy by the
media is considered exclusively under the provisions of the Media
Act …’.4
Finally, the statesman may sue the author and the publisher for an
injunction under § 381 EO to prevent the publication.5
1
Art. 8 ECHR is part of Austrian constitutional law and can be made relevant in civil
law through § 16 ABGB (mittelbare Wirkung der Grundrechte im Zivilrecht: indirect effect
of human rights in civil law).
2
We would like to point out once again that this provision is part of a strict liability
regime (see Case 1).
3
RV (Regierungsvorlage) 173. BlgNR 22. GP 20.
4
In order to compensate non-pecuniary damage this provision presupposes a ser-
ious infringement. See Case 8. Analysing § 1328a ABGB in general: E. Helmich,
‘Schadenersatz bei Eingriffen in die Privatsphäre’ (2003) Ecolex 888 et seq.; M. Lukas,
‘Schadenersatz bei Verletzung der Privatsphäre’ (2004) RZ 33 et seq.
5
See Case 1, under n. 1; this claim does not depend on fault.

This case clearly shows that the Austrian legislator has a comprehensive
system of protection of personality rights as its objective. On the contrary,
there are individual provisions protecting various aspects of personality
in different statutes, which are inconsistent in respect of both the factual
requirements for their application and their legal consequences.6 This
shows how urgently a total reform of this area of law is required.
Belgium
I. Operative rules
The statesman can bring an action against the author of the book. He
will probably be entitled to damages for non-economic loss because of
the violation of his family intimacy. It is not certain whether he will
obtain an injunction or not.

The right to privacy7 means that every person has the right to lead
his/her life in his/her own way and to be protected against intrusion
by third persons. Details about sexual relationships, state of health,
sexual orientation, etc. are protected. Such information can only be
revealed where the person concerned gives his/her consent.8
Under Belgian law, the right to privacy also applies to public figures.
For example, the Court of Appeal of Ghent stressed that the members
of a famous pop group had the right to remain silent about their sexual
orientation. As they had a lot of female fans, they had always kept
their homosexuality a secret. A magazine that reported this fact was
held to have violated their right to privacy.9 In another case, the Civil
Court of Ghent stated that a stateman’s right to privacy was violated
by an article which contained medical information about him. On the
grounds of persistent rumours, a journalist stated in that article that
the statesman suffered from cancer and that his medical prognosis
was rather bad.10
6
Cf. F. Bydlinski, ‘Der Ersatz ideellen Schadens als sachliches und methodisches
Problem’ (1965) JBL 173 et seq.; H. Mayer, Persönlichkeitsschutz und Medienrecht
(Vienna: 1999).
7
For an explanation of the legal basis of the right to privacy, see Case 3.
8
‘Overzicht van rechtspraak. Personen- en familierecht 1995–2000’ (2001) TPR 2001,
1605 et seq.; D. Voorhoof, Handboek mediarecht (Brussels: 2003) at 147–9.
9
CA Ghent 12 Jun. 2001, AM 2002, 169.
10
Civil court Ghent 16 Dec. 1981, RW 1983–84, 2968.
In the case at hand, the statesman can bring an action against the
author of the book. He can obtain damages on the basis of Art. 1382
Code civil. As a result of the principle of multi-staged liability, he cannot
sue the publisher for damages.11

Belgian politicians have not often been the victims of publications
such as this one. However, for example, had a book about François
Mitterrand’s illness and private life been published in Belgium by his
doctor, his widow and children would also have been able to lodge
a claim against that doctor.12 That claim could have allowed for an
injunction a priori as well as damages a posteriori.
The disclosure of medical secrets is only allowed in court on legal
grounds (e.g. necessity) or in the interest of the patient. In the cited
French Mitterrand case there is no political justification for disclos-
ing medical secrets. This could be different if the illness was politi-
cally relevant. However, the public interest would have to prevail over
criminal law. The doctor must refer to necessity, comparable to his/her
divulgence of the hideout of a wounded gunman.13
Under the right to privacy it might not be unlawful to reveal that a
very conservative politician who adheres to traditional family values
has had an adulterous relationship.
England
I. Operative rules
The politician might have a claim for injunction and/or damages. This
will depend on the specific facts of the case, particularly whether the
politician has courted publicity before.

1. Substantive law
Breach of confidence would be likely to apply. The information about
the politician’s family life could be considered private information if it
had not been public knowledge previously.
Under the traditional three limbs of a breach of confidence action,
information that arises from a confidential relationship, for example,
11
See Case 1.
12
TGI Paris 23 Oct. 1996, AM 1997, 213.
13
Cass. 13 May 1987, JLMB 1987, 1165, note by Y. Hannequart.
from an employment relationship, is clearly private,14 and the same

would apply under the new reasonable expectations test. In the present
case, it the politician’s expectation that information relating to his
family life should not be made public and this should have been obvi-
ous to his secretary and also to the publisher.
Still, as mentioned before, the relevance of the politician’s right to
confidentiality and the freedom of the press have to be weighed and
balanced in each individual case. Generally speaking, a public figure
is entitled to have his/her privacy respected like anyone else.15 In this
particular case, it would probably depend upon whether the statesman
had courted attention before,16 and in particular, whether he sought
publicity in order to present himself to the public in the most favour-
able light possible. In such a case, he would not be allowed to complain
of an invasion of his private life which portrays him in a less favour-
able light in the eyes of the public.17 Had he instead kept his private life
out of the media spotlight during his time as a statesman his interest
in maintaining his privacy would surely prevail. The same would apply
under the new reasonable expectations test as developed in Campbell.
2. Remedies
(a) Injunction
An injunction is available as a remedy in equity, and, unlike the plea
of justification in defamation cases, merely pleading the public interest
defence will not prevent an injunction in cases of breach of confidence.
Courts have explicitly rejected the proposal to apply the defamation
rules to breach of confidence.18 In contrast, courts have frequently held
that, in a case of a breach of confidence, the claimant would not be
adequately compensated by an award of damages for the loss he/she
would have sustained, in particular where the damage to the claimant
might be irreparable19 or where the claimant intended to make his/
her own commercial use of the confidential information.20 Moreover,
14
See, for example, Pollard v. Photographic Company (1889) LR 40 Ch D 345, at 349. For
the confidential nature of a sexual relationship, see Stephens v. Avery and Others
[1988] Ch 449.
15
A v. B plc and Another [2003] QB 195, at 208, per Lord Woolf CJ; Campbell v. MGN Ltd
[2003] EMLR 2, 39, at 52.
16
A v. B plc and Another at 208, per Lord Woolf CJ; Campbell v. MGN Ltd [2004] 2 AC 457.
17
Woodward v. Hutchins [1977] 2 All ER 751.
18
Lion Laboratories Ltd. v. Evans and Others [1985] QB 526, at 546, per O’Connor LJ.
19
See Schering Chemicals Ltd. v. Falkman Ltd and Others [1982] QB 1, at 29, per Shaw LJ.
20
See, for example, Shelley Films Limited v. Rex Features Limited [1994] EMLR 134, at 151.
withholding an injunction might encourage trusted advisers to make

money out of the confidential information that they are dealing
with.21
In relation to personal information, the Court of Appeal held in
Douglas v. Hello! that following Campbell and von Hannover22 and taking
the mental distress suffered by the Douglases into account, the award
of £14,600 could not be regarded fairly as an ‘adequate remedy’. Such a
small sum could not function as any real deterrent to a newspaper or
a magazine planning to publish photographs which infringe an indi-
vidual’s privacy. The only way that the Douglases’ interests could have
been sufficiently protected was through the granting of an interlocu-
tory injunction.23
In interlocutory proceedings, s. 12(3) of the Human Rights Act 1998
requires that the court be satisfied that the applicant is likely to estab-
lish that the publication should not be allowed.24
(b) Damages
The politician can make a claim if he suffered any damage. In the
present case, the politician may have intended to make use of his life
story, for example, by writing and selling his memoirs. However, even
if he has not suffered financial detriment since the breach of confi-
dence involves no more than an invasion of personal privacy, he is still
entitled to damages in order to encourage respect for confidence. If any
profit has been made through the revelation of details of a person’s
private life it is appropriate that the profit should be awarded to that
person. Otherwise he/she may claim nominal damages.25
Finland
I. Operative rules
The statesman is entitled to damages. An injunction is not possible
as was already described in Case 1. If the biography itself can be con-
sidered unlawful (dissemination of information concerning someone’s
private life), there is the possibility to claim for forfeiture of the unsold
copies of the biography.
21
Schering Chemicals Ltd v. Falkman Ltd and Others at 39, per Templeman LJ; X Health
Authority v. Y [1988] RPC 379, at 395.
22
(2005) 40 EHRR 1.
23
[2006] QB 125, at 201–202.
24
See Case 1.
25
See Attorney-General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, at 255–256, per
Lord Keith of Kinkel.

According to Ch. 24, s. 8 of the Finnish Penal Code, which was already
referred to in Cases 2 and 3, it is a crime to unlawfully reveal infor-
mation to a large number of people about someone’s private life in a
manner which is likely to cause damage or suffering to the offended
person. Nevertheless, there is an exception under s. 8(2) concerning
information about a person in politics, business life or public adminis-
tration. According to this, information can be revealed if it is relevant
for the judging of the person’s activities in these fields and the revela-
tions are needed to deal with a socially important matter.
In this case we are told that the revealed information concerns the
statesman’s family life, which clearly lies within the realm of privacy.
Thus, it is only possible to reveal information about the politician’s pri-
vate life to the extent that the information is relevant for judging that
person’s activity as a politician.26 If the pieces of information revealed
in the book have no connection with the politician’s political activity,
they are protected by the Penal Code provision and the statesman is
entitled to damages. As was stated in Case 1, damages for pure eco-
nomic loss are possible if the politician can prove that he has suffered
such loss. Furthermore, according to Ch. 5, s. 6, the politician has a
claim of compensation for anguish. The allocation of liability between
the author and the publisher is regulated as in Case 1.
As was stated in Case 1, an injunction is not possible. If the details
revealed constitute a crime, then the copies of the biography can be
declared forfeited as was already described in Case 4.
France
I. Operative rules
The statesman can bring an action against the author and the editor of
the book which contains the details of his private life. While it is not
certain that he will obtain an injunction against the dissemination of
the work, he will, on the other hand, probably obtain damages for non-
economic loss suffered due to the violation of his family intimacy.

The details of family life belong to the protected sphere of private
life in French law. Not only is information relating to parenthood
26
See Government Bill 184/1999 p. 33 and Tiilikka, Sananvapaus ja yksilön suoja –
Lehtiartikkelin aiheuttaman kärsimyksen korvaaminen (Vantaa: 2007) at 484–94.
and family ties protected,27 but also more generally love and family
relations,28 the number and names of any children, and the state of
health of family members, etc. Thus, the author of a biography who
intends to divulge such information must first obtain the consent of
the person concerned.
One can naturally ask if this also holds true where the subject of
the biography is a public figure, a fortiori a statesman. French case
law consistently affi rms that public figures, whatever the origin of
their fame, enjoy the same personality rights as private figures in
principle.29 In practice, however, the protected sphere is inevitably
more limited.30 The right of the public to be informed justifies cer-
tain exceptions to the protection of privacy, in particular in the case
of persons exercising a public function who must be accountable
not only to their voters but also to the nation. The more important
the public office, the more important the right of the public to be
informed is.
A case comparable to the present case has been recently adjudicated
by the French courts. The personal doctor of the former President of
the Republic, François Mitterrand, published a book entitled ‘The Big
Secret’ after Mitterrand’s death. This book contained details about
the illness and the family life of the statesman. Mitterrand’s heirs
wished to prevent the distribution of the book. However, the case was
particular in that it concerned a deceased person and the facts could
have equally been considered as constituting the criminal offence of
breach of a professional secret on the part of the doctor. The case has
led to numerous decisions, all of which have been decided in favour
of the heirs, but for different reasons. Nevertheless, the judgment of
the summary proceedings ( juge des référés) is interesting: it stated that
the revelations contained in the work ‘constitute by their nature a
27
CA Paris 5 Dec. 1997, D. 1998, IR, 32.
28
CA Versailles 19 Jun. 2003 (Claudia Schiffer), Légipresse 2004, No. 210, I, 49: the love
life of any person is of a private nature.
29
CA Paris 1er Feb. 1989, D. 1990, jur., 48: ‘any person, whatever his/her rank, his/her
birth, his/her fortune, his/her functions, present or future, has a right to respect for
his/her private life’, Cass. civ. 27 févr. 2007, Bull. civ. I No. 85 p. 73.
30
See Cass. civ. 25 nov. 2004, Légipresse 2005, No. 218, III, 17: ‘any person, whatever his/
her notoriety, has a right to respect for his/her private life and can oppose the dis-
semination of information about himself/herself. If a person is notorious or exposed
to public interest on grounds of his/her birth, functions or profession, the scope of
application of this protection is (however) to be assessed differently than in situations
where this protection is invoked by an ordinary person.’ Cass. civ. 16 mai 2006, Bull.
civ. I, No. 247 p. 216.
particularly grave intrusion into the intimacy of the private family

life of President François Mitterrand’.31
One can thus expect that in this case the action of the statesman against
the author and the editor of the book would succeed, without having to
establish the secretary’s violation of the obligation of confidentiality. The
infringement of the right of privacy encompassed in Art. 9 C.C, according
to which ‘(e)veryone has the right to respect for his private life’, largely
suffices alone. It is not certain, however, that the claimant would obtain
an injunction to prevent the distribution of the work, insofar as French
case law is very respectful of the freedom of writers. On the other hand,
it is probable that the claimant will obtain damages for the non-economic
loss suffered because of the violation of his family intimacy.
Germany
I. Operative rules
The statesman probably has no claims at all, however case law is far
from clear in this area.

There is no contractual claim assuming that the secretary’s employ-
ment contract was not made with the statesman himself but with some
other institution. However, claims in tort may be based on § 823(1)
BGB since the publication of true but private facts may constitute an
infringement of the general personality right. This group of cases is
usually structured by doctrine and case law with reference to three
concentric ‘spheres’ for which different rules apply.32 The innermost
31
TGI réf. Paris 18 Jan. 1996, JCP 1996, II, 22632. However, this case led to the con-
demnation of France before the ECtHR: see ECtHR, 18 May 2004, Sté Plon c/ France,
CCE 2004, No. 96, 38, www.echr.coe.int (App. No. 58148/00). The ECtHR held that
the interim injunction ceasing the distribution of Le Grand Secret, which contained
revelations about François Mitterrand’s state of health and was published shortly
after his death by his doctor in violation of professional confidentiality, did not
amount to a violation of Art. 10 ECHR. However, concerning the measures ordered
after trial on the merits, the Court considered that maintaining the ban on the dis-
tribution of Le Grand Secret which was in force no longer met a ‘pressing social need’
and was therefore disproportionate in relation to the aims pursued. The ruling had
come more than nine months after President Mitterrand’s death in a context which
was different from the one in which the interim measure had been ordered, mainly
because of the time that had elapsed since then.
32
M. Löffler and R. Ricker, Handbuch des Presserechts (5th edn., Munich: 2005) at 325
et seq.; the division in spheres goes back to H. Hubmann, JZ 1957, 521, 524; OLG
Hamburg 11.5.1967, NJW 1967, 2314, 2316; but see the critique regarding this
sphere is the sphere of intimacy, surrounded by a broader sphere of

privacy which in turn is surrounded by the public or social sphere.
The intimate sphere is related to health, sexuality and the body as
well as personal thoughts and feelings recorded in diaries etc. The
intimate sphere is sometimes described as unassailable in the sense
that no weighing of interests can justify publications or intrusions
regarding intimate matters.33 Nevertheless, courts in fact use a weigh-
ing of interests even in cases concerning intrusions into the intimate
sphere.34 It is therefore more correct to say that a publication regarding
intimate matters is presumed unlawful unless a special justification is
provided.35
The private sphere consists of family, home and marital life; pub-
lications relating to this sphere are lawful depending on an open
weighing of interests, while publications regarding the social or pub-
lic sphere – including political and business activities – are generally
permitted.
The outcome of the case therefore depends on the content of the
book. If it describes ‘intimate’ matters such as sexual relations, its pub-
lication is unlawful unless there is an overriding public interest in the
specific publication, which is hard to imagine.
If the book is discrete in relation to sexual matters and describes
marital and family life in general, it will be categorised as a publication
regarding the private sphere so that a fairly open weighing of interests
is applied. The case law here is very contradictory. Typical tabloid-style
publications seem to be lawful, for example a report on the marital
problems and divorce of a prince. The Federal Court has said in this
context that even the public’s interest in ‘superficial entertainment’ can
outweigh an individual’s interest in privacy.36 If one applied this reason-
ing to the present case, any claim should be denied since publications
regarding a famous former statesman’s life seem to be of more legitim-
ate public interest than similar publications about a politically unim-
portant prince.
picture by K. Larenz and C.-W. Canaris, Lehrbuch des Schuldrechts II/2 (13th edn.,
Munich: 1994) at 503.
33
BVerfG NJW 2000, 2189; BGH NJW 1999, 2893, 2895; OLG Karlsruhe ZUM 2006, 226,
229; BGHZ 73, 120, 124; BVerfG 31.1.1973, BVerfGE 34, 238, 245.
34
BGH, NJW 1988, 1984, 1985; OLG Hamburg, NJW 1967, 2314, 2316; KG Berlin AfP
2004, 371.
35
K. Larenz and C.-W. Canaris, Lehrbuch des Schuldrechts at 503.
36
BGH, NJW 1999, 2893, 2894.
A recent lower court case regarding the former German Chancellor

Gerhard Schröder sheds a different light on the matter: Schröder suc-
cessfully claimed an injunction against a local newspaper which had
published a story alleging that Schröder had problems with his wife
and had an affair with a famous television journalist. The court argued
that there was no public interest in such matters. In the words of the
court, the ex-Chancellor’s alleged extramarital affair did not affect his
office and is ‘not of relevance for the public and for voters’.37
If one follows this argument where the marital life of an acting
statesman is declared to be irrelevant for voters, a former statesman
would have even stronger protection. Under this theory, the former
statesman could claim an injunction, as well as damages against both
the author and publisher. Damages for non-economic loss could only be
available if there was an especially ‘serious and grave violation’ of the
personality right which again depends on the content of the book.
However, the lower court decision in the Schröder case should not be
overrated. Its reasoning is incompatible with the Federal Court deci-
sion: if it is lawful to describe the divorce and extramarital relations of
a prince who holds no public office, one should think that it must also
be possible to describe similar matters regarding a person who holds –
or in the hypothetical case here has held – the state’s highest office.
The contradictions in German case law regarding the publication of true
but private facts highlight a basic problem: the decisions are based on
the assumption that it is proper for the courts to decide which informa-
tion is worthy for public discourse and which is not.38 It is questionable
whether this is an adequate role for the courts in a democratic state. In
the Schröder case, the defendant newspaper argued that it published a
comprehensive portrayal of the politician Schröder which in the view of
the journalists had to include his family life since his wife actively par-
ticipated in the electoral campaign.39 In a less publicised but comparable
case, another lower court had ruled that it was unlawful to publish the
information that a local politician hit his mother at a birthday party.40
37
LG Berlin, AfP 2003, 174, 176; see also LG Berlin, AfP 2006, 394, 395.
38
For details see A. Halfmeier, Die Veröffentlichung privater Tatsachen als unerlaubte
Handlung (Frankfurt: 2000) at 309 et seq.
39
C. Eggert, ‘Anmerkung zu LG Berlin 21.1.2003’ (2003) AfP 176.
40
LG Oldenburg, NJW 1987, 1419. The decision is criticised by Löffler and Ricker,
Handbuch des Presserechts at 327.
One possible argument against such decisions would be that the voters
themselves should decide whether they find such information politic-
ally relevant or not.
Greece
I. Operative rules
The statesman can sue both the author and publisher for damages for
non-economic loss. In addition, he can request interim measures to
prevent the further distribution of copies of his biography. In this case,
the heirs of the politician are legally entitled to claim reparation.

According to Art. 57(1) CC: ‘A person who has suffered an unlawful
attack on his personality has the right to claim the cessation of such an
attack and the non-recurrence thereof in the future. If the attack was
directed against the personality of a deceased person such a right shall
belong to the spouse, the descendants, the brothers and sisters and the
legatees appointed by his will.’
The book revealing many details of a person’s private life and ill-
ness amounts to an injury to the statesman’s privacy. Although public
persons should tolerate any interference with their private life as long
as it is connected to their public role, they are fully protected against
revealing aspects of their private life unconnected with their public
role, without previous consent.41
Ireland
I. Operative rules
It is likely that the statesman would have a remedy against his secre-
tary in the form of an action in breach of confidence. Both an injunc-
tion and damages are available to the statesman.
To obtain a remedy the statesman would have to establish that the
information relating to his family life was not already public knowl-
edge.42 A duty of confidence has been found in many relationships
and whether a duty of confidence exists in any given situation will be
determined by the use of the reasonable man test.43 If the secretary
41
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) at 81.
42
Saltman Engineering Co. Ltd v. Campbell Engineering Co. Ltd [1948] 65 RPC 203.
43
Coco v. AN Clark (Engineers) Ltd [1969] RPC 41, at 48.
obtained the details of the statesman’s family life through her role as
his employee, then an obligation of confidence will exist between the
parties arising implicitly from the contract of employment.44 It should
be remembered that the duty of confidence would also extend to third
parties – such as the publishers of her biography for example – who
also could be restrained from publishing the details.45 Notwithstanding
the confidential nature of the information, the Irish courts will have
regard to the secretary’s constitutional right to free expression guar-
anteed under Art. 40.6.1 and if the publication can be justified in the
public interest then its disclosure would be allowed.46 However, given
the fact that the statesman is no longer part of public life it would be
unlikely she could justify the publication on this ground.
An injunction is available to the statesman on grounds similar to those
outlined in the English report. The award of such injunctions is gov-
erned by the principles established in the decision of American Cyanamid
Co. v. Ethicon Ltd.47 Damages may also be awarded, particularly as there
was a contractual relationship between the parties.48 Finally, the states-
man may decide to choose an equitable remedy of an account of profits
which may ensure that the secretary does not profit from her breach.49

In 2006, the Irish government published the Privacy Bill. Unlike the
Defamation Bill which was published at the same time, the Privacy Bill
has proven to be extremely controversial and has not yet come before
the Oireachtas (Parliament) for debate. Whether it will ever be enacted
into law in its current form is certainly open to discussion.
The structure and content of the Bill is heavily influenced by the
ECtHR’s recent decision in Von Hannover v. Germany.50 The central aspect
44
Campbell v. Frisbee [2002] EWCA (Ch) 328.
45
See Oblique Financial Services Ltd v. The Promise Production Co. [1994] ILRM 74 (HC),
where Keane J explained: ‘It is obvious from the cases and indeed it is a matter of
common sense that the right to confidentiality, which the law recognises in these
cases, would be of little value if the third parties to whom this information has
been communicated were at liberty to publish it to the general public, without the
court being in a position to intervene.’
46
Gartside v. Outram (1856) 26 LJ CH 113.
47
[1975] AC 396.
48
R. Clark and S. Smyth, Intellectual Property Law in Ireland (2nd edn., Sussex: 2005)
at 500.
49
House of Spring Gardens Ltd v. Point Blank Ltd [1984] IR 611.
50
(2005) 40 EHRR 1.
of the legislation is the creation of a tort of violation of privacy. S. 2(1)

provides, ‘a person who, wilfully and without lawful authority, violates
the privacy of an individual commits a tort’. Under s. 3(1) the privacy ‘an
individual is entitled to is that which is reasonable in all the circum-
stances having regard to the rights of others and to the requirements
of public order, public morality and the common good’. S. 3(2) provides
examples of what would, in certain circumstances, amount to a vio-
lation of privacy including: subjecting an individual to surveillance,
disclosing information obtained as a result of any such surveillance,
using the image of another for advertising or financial gain without
their consent, etc.
S. 5(1) of the Bill provides a number of defences to an action for viola-
tion of privacy. Included among these is the defence that the actions of
the defendant were ‘an act of newsgathering, provided any disclosure
of material obtained as a result of such act was: (i) done in good faith (ii)
for the purpose of discussing a subject of public importance, (iii) or the
public benefit, and (iv) fair and reasonable in all of the circumstances’.
S. 8 of the Bill provides a remedy by means of an injunction or dam-
ages. S. 13 provides that such remedies may be sought in private.
As already stated above, the Privacy Bill has been the subject of
much controversy since its publication. Proponents of press freedom
have particular fears regarding the impact that the Bill could have for
investigative journalism. In particular, the rather limited defence that
the actions were an ‘act of newsgathering’ and the fact that a plaintiff
could seek a remedy from the courts in private has given much cause
for concern.
Italy
I. Operative rules
The statesman can sue the author and the publisher for damages and
an injunction.

As already mentioned in Case 3, about twenty years after the judicial
recognition of the right to privacy51 the Data Protection Act was enacted
to protect privacy and other fundamental interests of personality. This
51
Cass. 27 May 1975 no. 2129, Foro it. 1976, I, 2895. According to G. Alpa, ‘Privacy’, in I
Precedenti. La formazione giurisprudenziale del diritto civile, I (Torino: 2000) at 259 et seq.,
this is the leading precedent on the subject. For a description of this case, see Case 8.
Act was passed with the aim of implementing the Data Protection
Directive 1995/46/EC. In 2003 it was replaced by the Data Protection
Code (DPC).52 Like the former Data Protection Act, the DPC also has
a very broad scope of protection. It not only applies to computer data
banks, but to any kind of ‘processing’ of personal information, under-
taken by either private or public bodies.
It can be assumed that the revelation of details of a statesman’s family
life by his secretary is unlawful if it is done without consent (Art. 23 DPC).
It is accepted under Italian law that even public figures are entitled to
some sort of privacy protection. Society’s right to know (and its citizens’
right to information) finds its limit where the private sphere begins. The
constitutional protection of free speech (and other fundamental interests
such as historical research and artistic creation) cannot be invoked to
deprive persons of their basic liberties. An infringement of the privacy
interest of public figures can only be deemed lawful if some conditions
are met. Among other elements required by case law, the notice has to be
essential – from an objective point of view – to public debate.53
From the description of this case we cannot say with any certainty if
the facts involved are necessary for public debate. This condition would
probably be fulfilled if, for instance, the politician was the leader of
a conservative political party against homosexuality or the use of
drugs, and his biography revealed that he regularly used drugs or had
homosexual affairs. Apart from these exceptional hypotheses, where
the borderline between the private and the public sphere is extremely
subtle, information relating to a politician’s family life should not be
published without the prior consent of the person involved.
One should also consider that the secretary is under an implied con-
tractual duty of confidentiality. On the other hand, the publisher, who
is not contractually bound, is also answerable because of the tortious
infringement of privacy.
The politician can react to the infringement by claiming an injunction
and can recover damages for both economic and non-economic loss.
The quantification of such damages is not easy. According to Arts.
1226–2056 CC, the judge has discretionary power in assessing damages
52
See Case 3 re the Data Protection Act.
53
See Art. 137(3) Data Protection Code; and Art. 6 Journalists’ Code of Conduct. For
some interesting applications of the Data Protection Authority see Garante dati per-
sonali 31 Jan. 2000, in M. Paissan (ed.), Privacy e giornalismo (2nd edn., Rome: 2006) at
251 (illness of a politician); Garante dati personali 10 Oct. 2002, ibid. 260 (prostitu-
tion scandal).
where their exact amount cannot be proven. It is likely that the first
kind of damages would be determined by reference to the so-called
‘consent price’: the reasonable amount of royalties that the politician
would have gained by allowing an invasion of his right to privacy. Such
information usually has a significant market value and the courts are
inclined to re-allocate it to the claimant even if he/she did not intend to
consent to its commercial use.54 However, this issue is debated.55
In addition, compensation for non-economic loss is also recoverable.
Until the enactment of the Data Protection Act – and, more generally,
until the famous 2003 decisions of the Supreme Court56 – the claim-
ant could have only been entitled to these damages when the tort
amounted to a criminal offence (this rule was based on a restrictive
reading of Art. 2059 CC, in connection with Art. 185 CP). The Data
Protection Act 1996 and the Data Protection Code 2003 have taken a
different approach: according to Art. 15(2) DPC, non-pecuniary losses
are always recoverable whenever personal data is processed unlawfully
or contrary to the principle of good faith.
The Netherlands
I. Operative rules
Under certain conditions, the statesman can sue both the author and
the publisher for economic loss (if he suffers any) and non-economic
loss and also for profits which the author or the publisher obtain from
the publication. The statesman can request an injunction against both
the author and the publisher on the same basis.

It is decisive whether or not the publication of the details of the famous
statesman’s family life by his former secretary is a breach of an unwrit-
ten rule of law pertaining to proper social conduct. Under the given
54
See, among other decisions, Trib. Roma 20 Jul. 1991, Dir. inf. 1992, 88 (a picture of
the famous politician Bettino Craxi used in an advertisement for a newspaper);
Trib. Roma 25 Mar. 1992, Giur. it. 1992, I, 2, 644; but, for some limitations, see Cass.
25 Mar. 2003 no. 4366, Dir. inf. 2003, 521.
55
See, on this matter, P. Trimarchi, ‘L’arricchimento derivante da atto illecito’, in P.
Cendon (ed.), Scritti in onore di R. Sacco, II (Milan: 1994) at 1149; A. Barenghi, ‘Il prezzo
del consenso (mancato): il danno da sfruttamento dell’immagine e la sua liquidazi-
one’ (1992) Dir. inf. 565.
56
Cass., 31 May 2003 no. 8828; Cass. 31 May 2003 no. 8827; Cass. 12 May 2003 no. 7281;
Cass. 12 May 2003, no. 7283, Foro it. 2003, I, 2272; see also Corte Cost. 11 Jul. 2003
no. 233, Foro it. 2003, I, 2201.
circumstances, the right to freedom of expression and the right of

privacy have to be balanced and weighed against one another.57 With
regard to the right of freedom of expression, important factors include
whether publication of the information serves a public interest (Case 1,
circumstance (b)) and whether the publication adds new information
to the information that was already known to the public.
In relation to the right to one’s privacy, important factors are the
degree of intimacy of the information and whether or not the informa-
tion was not known to the public before the publication. If the informa-
tion was already known to the public, the mere publication of it does
not infringe the statesman’s right to privacy. Another important aspect
is whether the statesman himself already courted attention regarding
his private life (Case 1, circumstance (g)). If he already brought his pri-
vate life into the public domain, his right to privacy has to be given less
weight than if it is the first time that his family life (or information
about his family life) has been brought into the public domain.
If the facts were not previously known to the public, it might be
taken into consideration that the situation in which the former sec-
retary obtained the information about the family life of the famous
statesman is confidential (Case 1, circumstance (h)). The more confi-
dential the situation was in which the information was disclosed to
the secretary, the more care the secretary can be expected to take
when he/she publishes facts about the statesman. In this case, it is
clear that the information obtained by the secretary was imparted
in a confidential situation. Without having been employed as a sec-
retary, he/she would not have had access to information about the
statesman’s family.58
Assuming that the situation in which the secretary obtained the
information is confidential, another important factor is the way in
which the statesman acted before. If he made facts about his family
public, the publication of different facts of an equal level of intimacy is
not an unlawful act. If the statesman avoided revealing any facts about
his personal life, the publication of these facts is unlawful.
In that case the statesman can sue both the author and the publisher
for economic loss (if he suffers any) and for non-economic loss (Art.
6:106, s. 1(b) BW ) and for profits which are derived from the publication
57
G. A. I. Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII, (Deventer: 2000) no. 104.
58
HR 9 Jan. 1987, NJ 1987, 928 (Edamse bijstandsmoeder); Schuijt, Losbladige
Onrechtmatige Daad, no. 106.
by the author or the publisher (Art. 6:104 BW ) (see Case 1). On the same
grounds, the statesman can ask for an injunction against both the
author and the publisher.
Portugal
I. Operative rules
The statesman is entitled to claim for damages against both his former
secretary and the publisher for the violation of his privacy. He may also
claim for an injunction to prohibit the publication of the biography or
to recall the books already on the market.

It is seriously unethical for a secretary to disclose details of a present or
former employer’s family life. The fact that the statesman here is a well-
known person – a ‘public person’ – does not deprive him of his right to
privacy. Such conduct would only be lawful if founded on a pressing rea-
son of defence of the common good. Even then, it should be so done as to
cause as little damage as possible. However, action of this type is generally
driven purely by economic interest, rendering it legally unacceptable.
The right to privacy (‘right to discretion over one’s private life intim-
acy’, according to Portuguese terminology) is protected by Art. 26 CRP
and Art. 80 CC, which states that:
1. Everyone should be discreet regarding another’s intimacy of private

life.
2. The extension of discretion is defined according to the nature of the
case and the situation of the persons.
The rule stated in paragraph 2 makes the extent of each particular

right to privacy dependent on the circumstances of each case and how
famous the person in question is. However, this does not imply that
famous people do not have a right to privacy. Furthermore, accepting a
degraded and less dignified status for ‘public figures’, based on a kind
of ‘objective consent’, would be unconstitutional and would clash with
the principle of equality.
According to Portuguese social and political life patterns, a politi-
cian’s family life is, at least for the most part, included in their right
to privacy. Therefore, a judge would most likely consider that both the
former secretary and the publisher violated this politician’s right to
privacy. He would, therefore, be awarded damages to be paid by those
two persons (Arts. 70, 80 and 483 CC). The politician may also file for
an injunction to prohibit the publication of the biography or to recall

the books already on the market (Arts. 70(2) CC).
In addition, Art. 192(1), para. (d) CP considers breach of confidence a
crime: it is criminally punishable to divulge the intimacy of the family,
sexual life or facts regarding the private life of another person with-
out their consent and with the intention of invading their private life.
However, no crime is committed when the facts regarding someone’s
private life are divulged on the basis of a legitimate and relevant public
interest (Art. 192 (2) CP). As the book at the centre of the present case
does not invoke any kind of public interest, both the former secretary
and the publisher could also be convicted of the crime of invasion of
privacy as co-authors (Art. 26 CP).
Finally, Art. 16, para. 1 of the Labour Code (Código do Trabalho, CT )59
states that both the employer and the employee should respect one
another’s personality rights, namely, maintaining discretion in rela-
tion to the other’s intimacy of private life. Furthermore, paragraph 2
of the same provision specifies that the right to privacy includes both
access to and the disclosure of issues regarding the parties’ intimate
and personal sphere, including issues relating to their family, emo-
tional and sexual life, health condition and political and religious
beliefs. Although the violation of this particular rule is not consid-
ered a specific wrongful act in labour law (Art. 641 CT, a contrario), the
existence of this rule does increase the degree of wrongfulness of the
former secretary’s conduct.
Scotland
I. Operative rules
The statesman has a prima facie case of breach of confidentiality against
his former employee and will be entitled to an injunction and damages
depending on a number of factors as outlined below.

Scots law has always recognised that there are situations where private
and professional confidence is paramount and failure to maintain this
may lead to a situation of liability.60 The equitable notion of breach
of confidence has now been reinforced through the HRA to take on
59
Law no. 99/2003, 27 Aug., which came into force on 1 Dec. 2003.
60
Argyll (Duchess of) v. Argyll (Duke of) [1967] Ch 302.
a new form of private information or informational autonomy.61 In

the immediate instance involving the former statesman, the question
concerns the degree to which confidence forms an intrinsic part of
an employer/employee relationship. The law of confidence can oper-
ate as an effective tool to protect privacy in personal and employment
relationships.62
Both Scots and English law recognise the notion of breach of confi-
dence. Recent authorities from the English High Court and Court of
Appeal have addressed breach of confidence situations – admittedly
with varying momentum – to ascertain the correct balance to be struck
between privacy, confidentiality and freedom of expression.63 There
are various English dicta on what privacy itself can be interpreted as
meaning, ranging from the ‘avoidance of publicity’64 to ‘notions of
what an individual might want to be kept private secret or secluded are
subjective to that individual’.65 There is no more than a vague Scottish
definition of what confidential information is about.66
As the law stands at present, the English courts have certainly rec-
ognised that there is now a statutory right to protect privacy on the
basis of the HRA and the ECHR.67 ‘The law no longer needs to con-
struct an artificial relationship of confidentiality between intruder
and victim … it can recognise privacy itself as a principle.’68
What the courts have not yet done, however, is agree on a blan-
ket approach to upholding claims of breach of confidentiality and
61
Campbell v. MGN Ltd [2002] EWHC 499 (QB), Baroness Hale at para. 134.
62
Campbell v. MGN Ltd (HL), para. 134: ‘The position we have reached is that the
exercise of balancing Art. 8 and Art. 10 may begin when the person publishing the
information knows or ought to know that there is a reasonable expectation that the
information in question will be kept confidential.’
63
Douglas v. Hello Ltd [2001] QB 967 [2003] EWCA Civ 139; ibid. [2005] EWCA Civ 595
(House of Lords); Campbell v. Frisbee [2002] EWCA (Ch) 328; ibid. [2002] EWCA Civ
1374.
64
R v. Broadcasting Standards Commission ex parte BBC [2000] 3 All ER 989, 995 per Lord
Woolf, MR.
65
Ibid. per Hale LJ at 1000–1001.
66
Dalgliesh v. Lothian and Borders Police Board 1992 SLT 721 at 724, per Lord Cameron.
‘What is confidential about information is a matter of the precise circumstances of
the case, but generally something which is already widely known is not confiden-
tial … what is likewise a confidential relationship is not precisely defi ned.’
67
‘The Courts are in the process of adapting the law of confidentiality in the light of
the Human Rights Act 1998 in order to reflect the confl icting Convention rights of
respect for private and family life and freedom of expression.’ Campbell v. Frisbee at
para. 33, per Lord Philipps, MR, Court of Appeal.
68
Sedley LJ in Douglas v. Hello! [2001] QB 967 (High Court).
privacy.69 The balance needs to be re-struck in each specific case. The

Court of Appeal decision in the English case of Campbell v. Frisbee70
reflects the considerations the court must take into account when
striking a balance between the competing rights of privacy and confi-
dentiality against freedom of expression, within the context of a con-
tract for services. In that particular case, a former employee of Ms
Campbell passed information on to the press relating to clearly pri-
vate, if not intimate, matters. Her motives were to inform the public of
the darker side of Ms Campbell’s character. However, the publication
was not deemed justified under Art. 10 in view of the type of informa-
tion involved. In other words, the balance between these various com-
peting rights relates to the type of private information and whether it
fell within the public interest. Guidance in the immediate case can
perhaps best be sought in the words of Jack J in the post HRA case of
A v. B&C71 in which reference was made to Lord Goff of Chieveley in
the renowned freedom of expression case AG v. Guardian Newspapers
(No. 2) (Spycatcher) case.72
‘A duty of confidence will arise whenever the party subject to the
duty is in a situation where he either knows or ought to know that the
other person can reasonably expect his privacy to be protected.’
The statesman in this case can undoubtedly expect his former sec-
retary to maintain a duty of confidentiality. In the eyes of the law, a
statesman or politician, although more exposed to the public eye, is
equally entitled to his/her privacy, unless there is an overriding matter
of public interest.73
69
The judgment of Sedley LJ in the High Court in Douglas v. Hello! ibid., that English
courts should immediately recognise a law of privacy has not been directly fol-
lowed. The Court of Appeal in that case does recognise both privacy and commer-
cial equity in the selection and exploitation of one’s own authorised photographs,
see Douglas v Hello! [2005] EWCA Civ 595. The House of Lords in Campbell v. MGN
Ltd (HL) regards privacy as a new approach to breach of confidence that no longer
requires a relationship of trust or confidentiality but relates more to private infor-
mation, see the opinions of Lord Nicholls, paras. 13, 24, 30, 31; Lord Hoffmann,
paras. 44, 50, 53, 56; contra Baroness Hale, paras. 142, 147, 150. The Lords came
down in favour of privacy in the individual case but only by a narrow majority. The
views as to whether or not the publication of the photograph was an invasion of Ms
Campbell’s privacy were split so that the issue cannot be seen as settled.
70
See n. 63 above.
71
[2002] EWCA Civ 337; [2002] 2 All ER 545.
72
[1990] 1 AC 109 at 281.
73
See A v. B&C [2002] EWCA Civ 337; [2002] 2 All ER 545: ‘It is most unlikely that any
purpose will be served by a judge seeking to decide whether there exists a new
cause of action in tort which protects privacy’ (per Lord Woolf, CJ at para. 11 (vi)).
Moreover, again:
The court should protect from publication and give remedies for the wrongful
publication in breach of confidence details, which have the mark and badge of
confidentiality, of the private life which a celebrity or public figure has chosen
not to put in the public domain, unless despite the breach of confidentiality
and the private nature of the information, publication is justifiable.74
Whether or not the statesman can sue the author and publisher for
damages and interdict depends on the following:
(a) the degree to which there was an implied or explicit duty of con-
fidence between the parties. This is likely to be answered in the
positive;
(b) whether or not the information revealed by publication was already
known to the public: these facts must be ascertained; and
(c) whether in fact the publication involves a breach of this confidenti-
ality; and
(d) finally, under the law of defamation, whether the information
reflected in any way on the character of the statesman himself such
that the context of the information published cast a false light on
the statesman and/or his family members, giving rise to a possible
claim in defamation.
For the publication to override either express or implied duties of

confidentiality,75 the public need to have an overriding public inter-
est in the information.76 Although the Court of Appeal decision in
Campbell v. Frisbee of October 2002 highlights the various types of con-
fidential relationships between an employer and employee, the court
was still required to balance the vying interests of privacy and public
interest by ensuring that a person, indeed a public figure, is properly
portrayed by the press and not permitted to remain in a false light.77
Pre-HRA authority exists that maintains even if there is a breach of
confidentiality, the public should not be misled and injunctions may
even be refused where there is an overriding public interest in the
74
Morland J in the High Court in Campbell v. Mirror Group Newspapers Ltd [2002] EWHC
499 (QB); [2002] EWCA Civ 1373; Campbell v. MGN Ltd (HL); Campbell v. Mirror Group
Newspapers Ltd [2005] UKHL 61, at para. 70.
75
This is due to the so-called pressing public need.
76
Dalgliesh v. Lothian and Borders Police Board at 724.
77
See Campbell v. Mirror Group Newspapers, at first instance only, photograph of
Campbell coming out of Narcotics anonymous seen as breach of confidence; in the
House of Lords decision, Campbell v. MGN Ltd, putting the record straight created suf-
ficient public interest in the press report and photograph, per Lord Hoffmann, para.
truth.78 This ‘correct image’ approach now appears to be open after the
House of Lords decision in Campbell in 2004 that came down in favour
of balancing the interests in favour of privacy. The Lords indicate in
their decision that the information must have initially been revealed
through some confidential relationship.79 Each case will depend on
its own facts. ‘The principle of law is clear that a contractual obliga-
tion of confidentiality is not sacrosanct: the Common Law recognises
that the public interest may require or justify encroachments and this
approach is confirmed by art. 10 and section 12 (HRA).’80 The freedom
of expression and right to privacy are of equal value.81
Accordingly, there may well be circumstances of pressing public
interest where, in assessing the balance of interests, the UK courts are
required by s. 12 HRA to examine the extent to which it is in the public
interest to publish such information.82 Regard is also to be had to the
self-regulating terms of the Press Code on Privacy.83
In addition, the statesman may avail of the defence of privileged
information that is not allowed to be published. The general approach
even prior to HRA is to suppress information of a political or sensi-
tive nature, particularly in relation to government proceedings.84 The
authorities are careful to draw a line between what is genuinely sub-
ject to privilege and therefore protected, and what can be published
with impunity.85 Council of Europe Resolution 1165 of 1998, no. 9,
gives guidance to courts in finding the right balance: ‘Certain facts
58; in Campbell v. Frisbee, the Court of Appeal also encouraged Campbell to ‘put the
record right’ and reveal her dependency.
78
Philipps MR in Campbell [2003] QB 633 (CA), with reference to Lord Denning, in
Woodward v. Hutchins [1977] 1 WLR 760.
79
Campbell v. Frisbee. See para. 31: ‘the continuing applicability of these judgments
might be open to question on the ground that it did not accord with modern devel-
opments in breach of confidence claims’. See further A v. B&C n. 71 above: ‘If [the
cases] are authorities which relate to the action for breach of confidence prior to the
coming into force of the 1998 Act then they are largely of historic interest only’ (per
Lord Woolf, CJ at para. 9).
80
Campbell v. Frisbee, High Court, per Mr J Lightmann at para. 30.
81
Ibid. at para. 24.
82
See Venables v. News Group Newspapers Ltd [2001] 1 All ER 908 (child murderers of
James Bulger) per Butler-Sloss: ‘It is also recognised that it is just in all the cir-
cumstances that information known to be confidential should not be disclosed to
others.’
83
Code of Practice of the Press Complaints Commission (UK), 1990, see Case 1.
84
G. Robertson and A. Nicol, Media Law (3rd edn., London: 1992) at 189, 193.
85
Lord Advocate v. Scotsman Publications Ltd [1989] 2 All ER 852 (HL): no interdict against
memoirs of ex-member of MI6 despite source of information being confidential.
relating to the private lives of public figures, particularly politicians,

may indeed be of interest to citizens and it may therefore be legitimate
for readers, who are also voters, to be informed of those facts.’

The courts in England continue to reject a tort of invasion of privacy,
despite the case law inroads into developing a law of private informa-
tion, albeit combined with breach of confidence, since the advent of
the HRA. Scots law will possibly adopt the same position, although
it will look at privacy, confidentiality and wrongdoings rather than
individual torts. The exact relationship between privacy and breach of
confidentiality remains open to further judicial development since the
House of Lords decision in Campbell in May 2004.
Spain
I. Operative rules
The statesman can sue the author and publisher for damages and
injunction.

Publishing statements concerning the private life of a person or family,
which diminishes his or her reputation and good name, constitute an
illegitimate interference with the right to privacy.86 According to Art. 9.2
LO 1/1982, the claimant can ask for an injunction, putting an end to the
interference and prohibiting the re-occurrence thereof in the future.
Moreover, Art. 7.4 LO 1/1982 considers the revelation of details of a
person’s private life that are known due to a professional relationship
as an illegitimate interference.87
Switzerland
I. Operative rules
The politician has the right to request a judgment declaring the
unlawful nature of the infringement and an injunction against the
86
One of the most famous cases decided in Spain was STC 186/2001, Sept. 17 (RTC.
186), a case known as Isabel Preysler v. Hymsa and others, which is similar to the one
under consideration here.
87
Art. 7.4 LO 1/1982 states: ‘It will be considered an illegitimate interference with the
right to honour, privacy and image (4) to disclose private information of a person or
family when the informant has become aware of this information in a professional
or official capacity.’
subsequent distribution of the book. He may also sue both the pub-
lisher and the author for damages for the economic and non-economic
loss suffered.

Political figures are part of public life. Doctrinal writing draws a dis-
tinction between ‘absolute’ and ‘relative’ celebrities.88 Absolute celebri-
ties are individuals who have a lasting fame in contemporary history.
Relative celebrities, on the other hand, are those who have acquired a
passing fame or notoriety as a result of a fixed event, such as an acci-
dent, a crime, a competition, etc. Generally, a particular public interest
in information exists with respect to absolute celebrities. However, the
boundaries of these distinctions have been put into question by the von
Hannover judgment.
According to case law applying Art. 21 of the Constitution, a biog-
raphy is protected by freedom of expression and by artistic freedom.
In the case at hand, the biography concerns a political figure and obvi-
ously aims to satisfy the public interest in information. Therefore, the
statesman may not prevent the truthful telling of his life story in a
book. However, some elements of his private life may be revealed but
only to the extent that they report on his public activity or are at the
source of his fame.89 Thus, reporting events such as his birth, the pro-
gression of his studies, or even his marriage, will not constitute an
infringement on his personality rights.
The situation is different where facts or family events are part of the
politician’s private or intimate sphere; in the instant case, they may
not be revealed in a book without his consent.90 Information belonging
to the private sphere is considered sensitive under statutory law91 and
communication of this information to third parties is unlawful as a
rule (Art. 3 lit. c(2) and Art. 12, para. 2, lit. b LPD).
Thus, if the facts revealed in the politician’s biography belong to
his private or intimate sphere, he may legitimately ask the judge to
issue a provisional injunction against the publication of the book (Art.
28a, para. 2(1) CC) as well as requesting a declaratory judgment of the
88
H. Deschenaux and P.-H. Steinauer, Personnes physiques et tutelle (4th edn., Berne: 2001)
at 180, n. 561a.
89
F. Riklin, Schweizerisches Presserecht (Berne: 1996) § 7 n. 60.
90
Ibid.
91
Federal Statute on the Protection of Data; Loi fédérale du 19 juin 1992 sur la protec-
tion des données (LPD) (RS 235.1).
unlawful nature of the infringement. He may also demand that the

sale of the book be discontinued. Furthermore, the politician will be
able to claim damages for economic and non-economic loss (Art. 28a,
para. 3 CC), as well as restitution of profits and compensation for pain
and suffering.

In this case, the right to information confl icts with the politician’s
right to private life. Even though freedom of expression is of para-
mount importance in continental Europe, private life and reputation
also enjoys protection, clearly more than it does under US law.92 The
continental European approach requires the judge to strike a balance
between the right to information on the one hand and the individual’s
dignity and right to privacy on the other. Recent ECtHR decisions have
undertaken a rebalancing of these two fundamental values.93
Comparative remarks
This case deals with the conflict between freedom of expression, free-
dom of information and privacy in a particular context: the publica-
tion of a famous politician’s unauthorised biography including details
about his private life. Unlike in Case 4 (where, if there was a biography
at all, it was a veiled one), neither artistic freedom nor defamation
plays a role here. Case 5 is a pure privacy case: the core question is to
what extent the public interest in knowing the complete truth about
a former statesman justifies the publication of details regarding his
undisclosed private and family life.
I. The right to privacy: legal bases

In addition to being enshrined in Art. 8(1) ECHR, nowadays the right
to privacy is acknowledged in nearly all private laws under consid-
eration. It finds express or implied recognition in the legislation of
many countries. In continental Europe, a right to privacy is expressly
laid down in the Greek, Dutch and Spanish Constitution and in the
92
See on this subject J. Q. Whitman, ‘The Two Western Cultures of Privacy: Dignity
Versus Liberty’ (2004) 113 Yale Law Journal 1151 et seq.
93
Judgment of the ECHR of 25 May 2004, Oesterreichischer Rundfunk v. Austria, case no.
57597/00; Judgment of the ECHR of 18 May 2004, Plon v. France, case no. 58148/00;
Judgment of the ECHR of 24 Jun. 2002, von Hannover v. Germany, case no. 59320/00.
French and Portuguese Civil Codes. Furthermore, a right to privacy is

implicitly recognised by § 7(1) MedienG (Austrian Media Act) (tortious
liability for intrusion in someone’s intimate sphere – ‘höchstpersönlicher
Lebensbereich’), by Ch. 24, s. 8 Finnish Penal Code (harmful diffusion
of information relating to someone’s private life), by the Italian Data
Protection Code and the Swiss Data Protection Act. In Ireland, privacy
has been recognised as an unenumerated constitutional right under
Art. 40.3 of the Constitution. In England and Scotland, the Human
Rights Act 1998 has given express protection to ‘privacy interests’ as
defined by Art. 8(1) ECHR.
In Belgium, Germany and Italy a right to privacy has been acknowl-
edged by case law and academic writings. In Belgium, privacy is dealt
with as a subjective right protected by the general provision of the
Civil Code’s law of delict. However, the same is also true for Germany
and Italy, where privacy has a constitutional dimension as a specific
application of the fundamental right to personality laid down in the
Constitution.
II. Balancing privacy against freedom of expression and

information
In all countries under scrutiny, everybody – including celebrities such
as politicians, sport and popstars – enjoys the legal protection of his/
her privacy. In principle, information concerning the private and fam-
ily life of a public figure can only be published with his/her consent,
unless there is an overriding public interest in the information. In this
concrete case, the publication seems prima facie unlawful, since it con-
stitutes a breach of confidence between the secretary and the states-
man, possibly also giving rise to contractual liability for the violation
of a fiduciary duty.
Whether or not the justification of an overriding public interest
applies will be assessed through a case-by-case balancing.
In England, Scotland and Ireland, this balancing takes place under
the framework of the equitable doctrine of breach of confidence. In the
present case, if the facts had not been made public before, the disclos-
ure of private information acquired by the secretary on the basis of a
relationship of trust and confidence constitutes a prima facie breach
of confidence which entitles the statesman to damages. An overrid-
ing public interest in this information could only be exceptionally
affirmed. For example, if the statesman had sought publicity regard-
ing his private life before, in order to present himself in the most
favourable light a publication of facts from his family life which puts
him in a less favourable light would be allowed.
In continental Europe (including the Nordic countries) there seems
to be a wide consensus that the disclosure of facts concerning a public
figure’s intimate sphere (body, health, sex, love) can only be justified
by an overriding public interest in rare, exceptional cases. There must
be a significant connection between the private information and the
public function exercised by the person concerned. If this person is a
politician, the information must be politically relevant.
In Germany and Austria, freedom of expression and the public inter-
est in information seem to justify a wider range for the unauthorised
publication of private matters than in other countries. In Germany, the
statesman would probably not have any claim. In principle, the publi-
cation of true but private facts may constitute an infringement of the
‘general personality right’, entitling the statesman to claim under the
general law of delict (§ 823(1) BGB). However, in this case the justifica-
tion of an overriding public interest would apply, since the public has
a legitimate interest in knowing about the behaviour of high-profile
politicians. Only if the most intimate details such as sexual relations
are at stake, is an overriding public interest in disclosure unlikely to
be found.
In Austria, § 7(2) Media Act expressly allows the publication of even
intimate facts about public figures when they are true and ‘connected
with public life’. It is uncertain whether the statesman will be granted
legal protection in the case at hand.
Furthermore, in the Netherlands the outcome of the case is uncer-
tain. According to Dutch case law, if a politician has already made facts
from his family life public, the renewed publication of the same facts
as well as another publication concerning different facts from his fam-
ily life would be allowed. On the contrary, in most legal systems a pub-
lic figure’s consent to publish certain facts from his/her private life
would never justify the publication of different facts as such.
To summarise, in the majority of legal systems considered, privacy
interests would probably prevail when balanced against freedom of
expression and information. The opposite seems true in Germany,
where freedom of expression would probably prevail. In Austria and
the Netherlands, the outcome depends on the circumstances of the
case.
III. Remedies
In all legal systems considered, except for Germany, Austria and the
Netherlands, the statesman would probably be entitled to damages.
In Belgium, France and Greece, he would only have a claim for non-
pecuniary damages. In the other countries, pecuniary losses are also
recoverable. In some states, such as Italy, pecuniary losses include a
reasonable amount of royalties which the statesman would have been
entitled to if he had commercialised his biography himself. In the
Netherlands, England, Scotland and Ireland, the profits gained by the
secretary are to be awarded to the statesman as pecuniary losses. In
Switzerland, the politician has a separate claim for restitution of the
profits.
In England and Scotland, general damages also have a preventive
function. They can be awarded ‘in order to encourage respect for con-
fidences’. Otherwise, damages would be nominal.
In most countries where the statesman has a claim for damages, he is
also entitled to an injunction. Whether or not this is true for Belgium
and France, is uncertain. French and Belgian law tend to avoid injunc-
tions limiting freedom of expression. For the same reason, no injunc-
tive relief is available in Finland. Here, however, the statesman could
claim forfeiture of the unsold copies of his unauthorised biography if
the requirements for the crime of dissemination of private informa-
tion are met.
In Switzerland, the politician also can obtain a declaratory judgment
assessing the unlawful nature of the infringement.
9 Case 6: A satirical magazine
Case
In a satirical magazine, the Prime Minister of a nation is caricatured in
a cartoon as a pig copulating with another pig depicted as a judge. Does
the Prime Minister have any claim against the magazine?
Discussions
Austria
I. Operative rules
The Prime Minister will probably not have any claim.

‘Making a fool of somebody’ is the target of satirical art. Therefore, the
right to freedom of art (Art. 17a StGG)1 could be infringed if the Prime
Minister was entitled to sue the magazine.
To find the borderline between lawful and unlawful intrusions,2
Austrian courts first separate the factual core message of a caricature
from the satirical presentation and check whether this factual mes-
sage is likely to damage the honour or dignity of the person targeted.
Second, the courts look at the satirical presentation itself. Any dis-
tortion and exaggeration which is part of the caricature is not meas-
ured very strictly or in a narrowminded fashion. The constitutional
right to freedom of art may only be restricted if the essence of human
1
Cf. Case 4.
2
Cf. R. Reischauer in P. Rummel, Kommentar zum ABGB II/2b (3rd edn., Vienna: 2004) §
1330 no. 7h.
257
honour and dignity is affected.3 Therefore, satirical cartoons enjoy a

wider sphere of freedom compared to other pictures.
In 1992,4 the OGH held that the satirical presentation of the editor-in-
chief of a newspaper as a pig with the description ‘pig, open to doing
everything’ was allowed, after his newspaper had falsely described a
woman suspected of murder as a ‘secret prostitute’ and as a ‘pig who is
open to doing everything’.
Showing the Prime Minister as a pig copulating with another pig
depicted as a judge would therefore not clash with the Prime Minister’s
right to honour if there was a comparable factual background demon-
strating the concrete method of presentation, e.g. if some connections
of corruption between the Prime Minister and judicial authorities could
be proven.5 Moreover, we have to bear in mind that public figures must
have a broader range of tolerance.6 Consequently, it is probable that the
Prime Minister’s claim would fail under Austrian law.
Belgium
I. Operative rules
The Prime Minister cannot bring an action against the magazine. He/
she could sue the artist for damages. Whether or not he/she will receive
compensation is uncertain in Belgian law.

The Prime Minister will probably not have a claim against the maga-
zine; the Belgian Constitution has established ‘multi-staged liability’.7
If the artist is known, no claim can be lodged against the publisher,
printer or distributor.
Regarding whether the Prime Minister will have a claim against the
artist, satire is protected as freedom of speech and freedom of the press.
Public figures can be depicted in a humorous way. However, this ‘right
to humour’ does not exclude the (general) duty of care.8 Freedom of
3
Cf. OLG Wien MR 1995, 52.
4
JBl 1992, 246.
5
Arguably, here, because the picture transmits some kind of sexual message the right
to honour is affected as well as the right to privacy.
6
See Case 1.
7
Ibid.
8
See, in general, M. Isgour, ‘La satire: réflexions sur le “droit à l’humour”’ (2000) AM
59. In relation to satirical texts: Civil court Brussels 30 Mar. 1999, AM 2000, 102; Civil
court Brussels 4 May 1999, AM 2000, 106.
c a se 6: a sat ir ic a l m aga zine 259
speech is weighed against the personality rights of the depicted per-

son. Some criminal offences might also be relevant in this context.
Belgian case law is very tolerant of satire. A cartoon depicting local
councillors as corpulent men with cigars in their mouths and pockets
bulging with money was not considered a legal wrong. Even the use of
the expression ‘son of a bitch’ in this context was not considered a viola-
tion of their right to a good reputation.9 The Court of Appeal of Brussels
decided that caricatures permit an artist to exaggerate features with-
out harming someone’s reputation. In a 1998 case, a newspaper made
fun of a certain type of film director who, allegedly, was making too
much fuss about his own work.10 However, the satire exception does
not justify all invasions of personality rights. For example, the court
decided in the Herman Brusselmans case that it was not a matter of satire
but rather a deliberate personal attack on the fashion designer.11
England
I. Operative rules
The Prime Minister may have a claim in libel depending on how the
ordinary reader would understand the cartoon.

Under the circumstances outlined above, this could be a case of libel
since the Prime Minister is recognisable, the caricature has been
printed, and its content might suggest that the Prime Minister has an
inappropriate attitude towards the separation of powers, i.e. that he/
she breaches the duties connected to his/her office. Although English
common law is reluctant to protect public authorities under the law of
defamation due to the chilling effect on the exercise of the democratic
right of public criticism,12 it still protects holders of a public office from
defamation.
The mere fact that the cartoon was published in a satirical magazine
does not necessarily prevent liability, although the defendant would
certainly plead Art. 10 ECHR. In Sutcliffe v. Pressdram Ltd, the wife of
the ‘Yorkshire Ripper’ was awarded damages for a publication in the
satirical magazine ‘Private Eye’ that claimed she had sold her story
9
Civil court Nivelles 12 Mar. 2002, AM 2003, 77.
10
Brussels 30 Sept. 1998, RW 2000–01, 93.
11
Civil court Antwerp 21 Dec. 2000, RW 2000–01, 1460.
12
See Derbyshire County Council v. Times Newspapers Ltd and Others [1993] AC 534.
to the press.13 Furthermore, a cartoon does not in itself prevent any

defamatory meaning.14 Nevertheless, the context in which the carica-
ture was presented and the mode of publication have to be taken into
consideration.15
It still depends upon how the ordinary reader would understand the
cartoon. Again, one ought to remember that the court merely assesses
whether or not the cartoon is capable of bearing a defamatory mean-
ing, while the final decision is made by a jury.
Finland
I. Operative rules
The statesman probably does not have a claim against the magazine.

According to Ch. 24, s. 9(2) of the Finnish Penal Code, a person can be
heavily criticised for his or her activities in politics, business, a public
position, science, arts or other similar public activity, unless the criti-
cism clearly exceeds what can be considered acceptable. The more sig-
nificant a person’s social position is, the more criticism he/she has to
tolerate.16 If the criticism exceeds what can be considered acceptable,
it constitutes an act of defamation according to Ch. 24, s. 9 or 10 of the
Finnish Penal Code. If so, the case is judged as in Case 1.

In this case, it needs to be ascertained whether the cartoon exceeds
what can be considered acceptable. There is no precedent in this area.
It has to be taken into consideration that the magazine is a satirical
one, that it is a cartoon and that the Prime Minister is a public person
and has to endure intense criticism concerning his or her activities in
politics. If there have been such events in the Prime Minister’s political
life that can legitimate this sort of criticism, there are probably no
grounds for any claim.
13
Sutcliffe v. Pressdram Ltd [1991] QB 153. See also Goldsmith v. Sperrings Ltd [1977] 2 All
ER 566.
14
See Dunlop Rubber Company v. Dunlop [1921] 1 AC 367. See also P. Prescott, ‘Libel and
Pornography’ (1995) 58 Modern Law Review 750 et seq.
15
See, e.g., Charleston and Another v. News Group Newspapers Ltd and Another [1995] 2 AC
65, at 70, per Lord Bridge of Harwich.
16
See Vuortama, Journalisti 15/1999, www.journalistiliitto.fi/journalisti/arkisto/1599/
ala/alakerta.htm (9 June 2003) at 107.
France
I. Operative rules
The Prime Minister has no cause of action against the magazine.

French case law is particularly tolerant of satire and caricature.
French judges consider that ‘caricature, as a manifestation of the
freedom of criticism, authorises an artist to exaggerate features and
to alter the personality of those who he/she portrays’.17 The Court of
Appeal of Versailles has thus determined, with regard to the actor
Jean-Paul Belmondo, that ‘the distortion through a photomontage of
characteristics of a public figure and notably of a famous comedian
for humorous purposes is lawful so long as it is not outrageous and
does not manifestly have the ridiculing of the artist or the smear-
ing of his reputation as its objective’.18 The satire exception certainly
does not justify all injuries to personality, as is reported in certain
decisions where such an exception was rejected on the basis that it
was not a matter of genuine satire but rather of deliberate insult.19
The criteria for determining the legality of a caricature appears to
be the outcome sought; thus, the Cour de cassation puts forward the
principle that the ‘caricature is legal, according to the laws of this
genre, only in so far as it ensures the full exercise of freedom of
expression’.20
The instant case concerns a person exercising a public function.
The caricature is intended to denote a judgment which is not about
the character of the person as such but rather about the exercise of
his/her public function. Thus, it is very probable that such a cari-
cature will not be prohibited in French law because of freedom of
expression.
17
TGI réf. Paris 17 Sept. 1984, D. 1985, somm., 16. For a similar statement, see also TGI
réf. Paris 17 Jun. 1987, JCP 1988, II, 20957: ‘satire, like caricature, is a manifestation
of the freedom of criticism and thus permits exaggerations, deformations and heav-
ily ironic presentations’.
18
CA Versailles 31 Jan. 1991, Gaz. Pal. 1992, 2, 534. See also CA Paris 18 Feb. 1992, D.
1992, IR, 141: ‘if an article manifestly intended to present the reported facts in a
humorous tone, the appreciation of which as good or bad taste remains free, then
this article did not exceed the usual limits of the satirical genre, which is just one
of the aspects of freedom of expression’.
19
CA Paris 22 Nov. 1984, D. 1985, IR, 165; CA Paris 19 Jun. 1987, JCP 1988, II, 20957.
20
Cass. civ. 13 Jan. 1998, D. 1999, 120.
Germany
I. Operative rules
There is a claim against the magazine.

Depicting a person naked is an invasion of his or her privacy21 and
also possibly an infringement of the right to one’s own image (‘Recht
am eigenen Bild’, §§ 22 f. KUG).22 However, this is only true if a photo-
graph of an actual person is taken or if the depiction is so realistic
that it has photographic value. There have been cases in Germany
where the mere imitation of an intimate situation, which was aimed
at making a real person identifiable, was seen as an invasion of
privacy.23 However, in these cases the right to honour and reputa-
tion has always helped to defi ne the personality interest involved.
Therefore, sexually explicit caricatures will be regarded more readily
as an attack on a person’s honour than as an intrusion into his or her
privacy. Offensive acts are not restricted to words. Therefore, an alle-
gation relating to a person may also be established by pictures and
drawings.
The principal discussion will concern the balancing of interests in
order to decide whether or not there is a violation of a right to hon-
our or if the action is justified by the freedom of artistic expression
through satire (Art. 5(3) GG). Satirical expression must respect consti-
tutional values, such as the right to personal dignity.24 The German
Constitutional Court has created one basic limit to satire: the prohib-
ition of humiliation or disparagement which is an attack on human
dignity (Art. 1(1) GG).25 The right to human dignity as the ‘core’ of the
right to honour is seen as absolute. Where human dignity is touched,
no balancing of interests takes place.26
With special regard to politicians, the Constitutional Court has so
far rejected malicious cartoons clearly aimed at attacking the personal
21
BGH NJW 1974, 1947, 1949; OLG Munich NJW 1988, 915.
22
Cp. BVerfG NJW 2005, 3271, 3272; BGH NJW 2006, 603, 604.
23
LG Hamburg NJW-RR 2000, 978: satirical late night comedy show in which an
actress who resembled a well-known newscaster was acting in a pornographic
scene; the sexual life of a person, however, is not taboo, see OLG Hamburg NJW-RR
1991, 98 (Affair between father of ex-tennis star Steffi Graf and an ex-Playmate).
24
BVerfGE 86, 1 = NJW 1992, 2073 (satirical attacks against a disabled soldier).
25
BVerfGE 66, 116, 151; BVerfGE 82,43, 51; BVerfGE 82, 272, 283.
26
BVerfGE 6, 32, 41; BVerfGE 87, 209, 228.
dignity of the person or persons depicted. Among these was the satir-
ical drawing alluded to in this particular case.27 Therefore, the Prime
Minister will have a claim against the magazine.

The peculiarity of satirical expression lies in the fact that it has to
exaggerate; defensive satire is no satire at all.28 The reader knows
this and therefore does not tend to take ‘facts’ and opinions provided
by satirical depictions at face value. Courts have therefore granted
more freedom to satirical expression than to press reports or quasi-
documentaries (see e.g. Case 4). As far as politicians are concerned,
the freedom of satire seems to be almost limitless. The exceptions
are rare cases where the attack on the dignity of the person was
too obvious to be excused, and so courts made an exception to the
rule.29
Greece
I. Operative rules
The Prime Minister does not have a claim against the magazine.

As a public person, the Prime Minister must endure negative expres-
sions, critical comments and satirical representations. Satire focuses
on political events and topics referring to political and public persons,
and it is protected by the Constitution as an artistic means to express
opinions.
Public persons should tolerate any humorous or satirical presenta-
tion of their person, as long as this satire refers to their public role, and
there is no intention, direct or indirect, to insult or defame.30
As the Greek courts state: ‘in a democratic society, the person who
decides to undertake a position which interests the public … is sub-
jected to the strict control of the press, which he is obliged to endure,
unless his social value and honour are unacceptably injured.’31
27
BVerfGE 75, 369 = NJW 1987, 2661.
28
Ibid. at 2661, 2662.
29
OLG Hamburg ZUM 1995, 280, 281.
30
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) p. 82.
31
Revision Court of Athens, Cases 9975/1986: Elliniki Dikaiosini 28, p. 300,
3129/1988: Nomiko Vima 36, p. 1247, 8908/1988: Nomiko Vima 36, p. 1666.
Ireland
I. Operative rules
The Prime Minister could possibly bring an action in defamation claim-
ing that his/her reputation had been damaged by the publication of
the cartoon. However, it is likely that the magazine could defend itself
from any such action by pleading the defence of fair comment.

To succeed in an action in defamation, the Prime Minister would have
to establish that the defamatory material had been communicated to
a third party32 and that he/she has been identified from the piece.33 It
would also have to be established that the information was capable of
lowering his/her reputation in the minds of right-thinking members
of society or had subjected him/her to hatred, ridicule or contempt.34 It
is clear from the facts of this case that the information has been com-
municated to a third party through the publication of the cartoon in
a magazine. Furthermore, it would appear that the Prime Minister is
readily identifiable from the cartoon. The most difficult question to be
answered is whether the depiction of the Prime Minister in the man-
ner outlined is defamatory. This issue will be determined objectively;
would the ordinary reasonable reader understand the cartoon to imply
that the Prime Minister had acted in some inappropriate manner? In
other words, is the cartoon an innuendo – innocent when first consid-
ered, but suggesting another defamatory meaning?35 Such an impli-
cation could be drawn by viewing the cartoon by itself (known as the
false innuendo),36 or viewing the cartoon armed with the knowledge of
certain extrinsic information (known as the true innuendo).37
Alternatively, it could be argued that the publication of the cartoon
depicting the Prime Minister as a pig is defamatory in and of itself
as it subjects the Prime Minister to ridicule and contempt.38 In their
defence, the publishers could plead the defence of fair comment and
argue that the picture is satirical.39 That said, a publisher cannot go
32
Berry v. Irish Times Ltd [1973] IR 368.
33
Ibid.
34
Quigley v. Creation Ltd [1971] IR 269.
35
Berry v. Irish Times Ltd.
36
Campbell v. Irish Press Ltd (1955) 90 ILTR 105.
37
Tolley v. Fry & Sons Ltd [1931] AC 333.
38
Charleston v. News Group Newspapers Ltd [1995] 2 AC 65.
39
Barrett v. Long (1846) 8 ILRC 331.
too far in this regard and in one particular case, the English Court of
Appeal refused to hold that the words ‘hideously ugly’ were incapable
of having a defamatory effect.40
Italy
I. Operative rules
The Prime Minister can sue the magazine for injunction and damages
(economic and non-economic loss) and the cartoonist for reparation.

According to Italian case law, satire is a particular form of critical
expression, which cannot be completely free of the requirement of for-
mal correctness; otherwise everyone would have a ‘right to gratuitous
insult’.41 The Corte di cassazione has recently confirmed that the ‘limit
of correctness’ also applies to satire. No justification can be invoked for
satirical works ‘attributing an illegal or morally dishonourable behav-
iour to someone, making vulgar or disgusting associations, or deform-
ing someone’s image so as to provoke contempt or mockery’.42
This limit of formal correctness is considered to be secondary to the
necessity of respect for the fundamental personal rights protected by
Art. 2 Cost., even where criticism is expressed by means of satire.43 This
limit is held to be applicable to cartoons and caricatures as well as to
writings.44
On the facts of this case, the magazine published a cartoon, rudely
accusing the Prime Minister of dishonest behaviour. Based on the afore-
mentioned Corte di cassazione doctrine,45 Italian courts would probably
not regard the cartoon as covered by freedom of expression under
Art. 21 Cost., even where it alluded to true facts involving the Prime
Minister and members of the judiciary. The cartoonist would probably
be charged with the crime of defamation in the press (Art. 595 CP,
Art. 13 Press Act). Thus, the Prime Minister would be entitled to all
40
Berkoff v. Burchill [1996] 4 All ER 1008.
41
See e.g. Cass. 7 Nov. 2000 no. 14485, Giur. it. 2001, 136. For the limits set by Italian
case law to the right to express criticism, see Case 1.
42
Cass. 11 Jul. 2005 no. 34100, Guida al diritto 2005, 42, 84.
43
Cf. Cass. 24 May 2001 no. 7091, Arch. civ. 2001, 1130.
44
See Cass. 29 May 1996 no. 4993, Foro it. 1996, I, 2368; Cass. 7 Nov. 2000 no. 14485
Giur. it. 2001, 136. For a recent confirmation of these principles see Cass. 11 Jul. 2005
no. 34100, Guida al diritto 2005, 42, 84.
45
See n. 42 above.
remedies outlined in Case 1, except for rectification, which does not

make sense for satirical cartoons.

It may be questioned whether or not this outcome is correct. One may
argue that political satire, especially when expressed through carica-
ture, should not be restricted by any boundaries of politeness. Suppose
that the news truthfully reported that the Prime Minister had corrupt
dealings with a judge – how could satirical cartoonists have put this
better in a drawing than depicting both as copulating pigs? In such
cases, the defamatory cartoon arguably does not aim at just insult-
ing the public figures in question, but at presenting a (putatively) true
event in a very impressive, caustic satirical drawing.
In 1996, the Corte di cassazione expressed a very important prin-
ciple: satirical cartoons do not necessarily have to refer to true facts,
however, if they denigrate someone, the message expressed by the
cartoons must be consistent with the ‘quality of the public dimen-
sion’ of the person.46 This consistency is lacking if a cartoon refers
to defamatory facts which are not true, or to details of the person’s
intimate and strictly private life. The consistency is also lacking if
the cartoon does not express messages other than an insult to the
person.47
Arguably, if this prerequisite of coherence is met, the require-
ment of formal correctness should no longer play a role. Hence, a
fair solution could be the following: The cartoon depicting the Prime
Minister and a judge as copulating pigs only constitutes a lawful exer-
cise of the right to satire if it refers to (putatively) true facts which
lie beyond the untouchable realm of intimate life. Consequently,
the cartoon would be unlawful if it alluded to the Prime Minister’s
homosexual relationship with a judge, while it would be lawful if it
alluded to corruption, abuse of office or similar crimes committed
by the two.
The Netherlands
I. Operative rules
46
Cass. 29 May 1996 no. 4993, Foro it. 1996, I, 2368.
47
Ibid; Cass. 7 Jul. 1998 no. 7990, Danno e resp. 1998, 988, with critical commentary by
V. Carbone.

Public figures have to accept somewhat that they are subject to satire,
gossip, etc. more than non-public figures. Thus, for public figures the
right to privacy is more limited than for non-public figures.48 Yet, a
public figure still has the right to privacy.
Given this background, it has to be assessed whether this publica-
tion is satirical or whether it is unnecessarily offensive (Case 1, cir-
cumstance (d)) and for that reason a breach of written law (Art. 266,
s. 3 Penal Code)49 or a breach of duty. In general, satirical and other
negative remarks are rendered to be unlawfully offensive if they pur-
port to make someone appear in an unfavourable light and cause the
honour and good reputation of the defendant to be infringed.50 This is
not the case if it is clear that the publication concerns an expression of
the artist’s subjective opinion rather than objective facts. In that case,
the public interest in freedom of expression and freedom of artistic
expression has to be balanced with the personal interests of the Prime
Minister.51 Expressions of art may be confrontational, shocking and
provocative and this has to be borne in mind.
Since a Prime Minister is a public figure and the cartoon is an expres-
sion of art that expresses the artist’s subjective opinion rather than
objective facts, the publication of the cartoon is not unlawful. The
Prime Minister has no claim against the magazine.
Portugal
I. Operative rules
The Prime Minister has a claim against the magazine both for dam-
ages and injunction.

Bearing in mind the nature of his/her duties and the corresponding pub-
lic interest, a Prime Minister may be subject to intrusion into his/her
private life, which could be warranted by a pressing need to protect the
common good. ‘Public interest’ must not be confused with the ‘interest
or curiosity of the public’. Furthermore, s. 9 of the Journalists’ Union
48
HR 4 Mar. 1988, NJ 1989, 361 (De Bourbon Parma); G. A. I. Schuijt, Losbladige
Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 111.
49
50
HR 30 Oct. 2001, NJ 2002, 129; Schuijt, Losbladige Onrechtmatige Daad no. 57.
51
HR 12 Jun. 1992, NJ 1992, 554 (Mr Y).
Code of Practice also determines that ‘journalists must have regard for
the privacy of citizens except when the public interest is at stake or the
person’s conduct is manifestly in contradiction with the values and prin-
ciples that he publicly defends’.52 Gratuitous offence which is not justi-
fied by the defence of the common good is prejudicial to the dignity of
the democratic system and is, as such, criminally punishable with an
aggravated penalty (Art. 184 CP). Depicting a judge as a pig also con-
stitutes an offence against the judiciary and therefore the democratic
system.
It could be argued that the right to produce and publish carica-
ture, or satire in general, is protected by the right to inform and be
informed and freedom of the press (Arts. 37 and 38 CRP),53 as well as
by the freedom of artistic creation (Arts. 42 and 78 CRP).54 However,
invoking these rights and freedoms would most likely not justify a
caricature which is utterly offensive to the dignity of the persons
that are targeted, such as in the present case.55 Even if a political
sense can be attributed to the caricature, there are other means that
could be employed to achieve the same political purpose, which are
less offensive, or not even offensive at all. As in Case 5, a claim for
compensation and injunction may be fi led under the terms of Art.
70 CC.
Such caricatures (perhaps not as offensive as this one) are quite com-
mon in daily and weekly publications in Portugal. However, they are
seldom brought to court. This might be due to the unwritten rules of
political fair play and the relaxed public attitude regarding such cari-
catures. Still, when going beyond certain limits, some judges might
consider them a violation of the depicted person’s honour and reputa-
tion. That depends on the sole discretion of the judge (Art. 655 CPC and
Art. 127 CPP). All considerations made regarding Case 1 are applicable
mutatis mutandis to this case.
52
See considerations in Case 1 regarding the provisions regulating journalistic activ-
ity in Portugal, in particular the Journalists Statute and the Journalists’ Union Code
of Practice.
53
See answer to Case 1 for more information on these Articles.
54
See answer to Case 4 for more information on these Articles.
55
On the balance between the fundamental right to personal honour and reputa-
tion (Art. 26 CRP) and other fundamental rights and freedoms, see considerations
included in Case 1.
Scotland
I. Operative rules
The Prime Minister may have a claim in defamation.

The law of defamation applies equally to representations such as car-
toons in permanent form. S. 16 (1) of the Defamation Act 1952 provides
that ‘words shall be construed as including a reference to pictures,
visual images’. The particular question raised by this cartoon is
whether:
(a) there is any intention to harm the Prime Minister; and

(b) whether the cartoon in its context can be seen as inferring or imply-
ing any personal attributes of or aspersions on the Prime Minister
him- or herself.
Political and social satire is not prohibited by the general law.

Nevertheless, the law dictates the limits between tolerable satire and
caricature and defamatory depictions. This itself can only be estab-
lished on a case-by-case basis in relation to what constitutes genuine
satire and what is defamatory. It was originally defamatory to call some-
one a homosexual or make imputations of sodomy, and nineteenth-
century case law in particular bears witness to this.56 Moral attitudes
have changed, with corresponding changes in what is seen as defama-
tory. Technically, the provisions of s. 10 HRA will apply, but these are
merely reinforcing the classic position of freedom of the press and in
that sense also of satire.
Regard will be had to the type of publication, i.e. whether it was
in a serious periodical or a satirical magazine. The particular context
within which the matter is covered is relevant, because this may con-
tribute to the general innuendo and pave the way for a defamation
action.
The foregoing remarks serve to remind that whether or not a defam-
ation action succeeds will depend on the particular form the character-
isation takes. The decision as to whether a defamation trial should take
place is taken in summary proceedings, where the judge determines
56
Richardson v. Walker (1804) Hume 623; R. v. Queensbury 3 Apr. 1895 (England) where
the defendant was charged with criminal libel, having accused Oscar Wilde of pos-
ing as a sodomite.
whether or not there is an arguable case of defamation.57 If this is the

case, the matter will either be put to jury trial or the provisions on the
offer of amends under s. 4 will come into play and determine whether
or not a full trial is necessary.
Spain
I. Operative rules

Cases decided by the Supreme Court usually deal with the defamatory
status of a text accompanying a caricature, as opposed to the carica-
tures themselves.58 Nonetheless, LO 1/1982 provides that the carica-
ture of persons is an exception to the interference with one’s own
image principle (Art. 8.2(b)).59 Thus, there is no illegitimate interfer-
ence when the caricature respects social customs (Art. 2.1), which will
be examined on a case-by-case basis. In showing respect for social cus-
toms, it is understood that the person caricaturised is not defamed.
Switzerland
I. Operative rules
The Prime Minister does not have any legal recourse against the satir-
ical magazine.

Satire can be defined as ‘a mode of expression in which one know-
ingly gives words or images a sense other than that which they would
normally have’.60 It is protected by the freedom of opinion guaranteed
57
58
STS, 17 May 1990 (RJ. 3735) and STS 14 Apr. 2000 (RJ 2565). In the fi rst case, the
Supreme Court reversed the judicial rulings of first and second instance and con-
sidered that the poems written about a professor accompanied by his caricature
were written in a joking tone and do not suppose any illegitimate interference with
his honour. In the second case, under the caricature of the General Secretary of
the President of Catalonian government, a weekly magazine published the words
‘thief’. The Spanish Supreme Court ordered the magazine to pay €6,000 because the
word ‘thief’ is an insult, humiliating and unnecessary for the social criticism of the
public person, even in the graphic humour scenario.
59
‘In particular, the right to one’s own image will not impede: … (b) the use of the
caricature of these people, according to social customs.’
60
JAAC 68 n. 27 c. 4.1.
under Art. 16 Const., as well as under the freedom of art (Art. 21 Const.).
In contrast to a commentary or an editorial, satire not only permits the
use of a poisoned pen, but also the use of exaggeration and alteration.
In this sense, satire always contains a grain of truth. The limit imposed
on satire consists of the idea that the satire must be recognisable as
such to the public and must respect the private sphere to the extent
demanded by the general interest.61
The satire here consists of a cartoon likely to harm the reputation
of the Prime Minister depicted. One must not forget, however, that the
reach of reputation protection depends largely on the social and pro-
fessional situation of the holder.62 As a consequence of his/her political
activity and status as a public figure, it will be more difficult to recog-
nise an unlawful infringement of the Prime Minister’s reputation than
for a private citizen. One must take into account the circumstances
that surround the publication of the cartoon, the nature of the charges
against the Prime Minister, and their connection to actions or pub-
lic sentiment, of which satire is only the mischievous and somewhat
harmless echo.63
Here, the disputed cartoon was published in a satirical magazine
whose role it is to distribute this precise brand of humour. Therefore,
its mocking character is well known and not easily mistaken for fac-
tual news reporting.
The infringement of reputation must be measured according to
objective criteria. Whether harm has been caused to an individual’s
social esteem or not must be based on a reasonable reader’s point of
view, not on the harm subjectively felt by the individual.64 The fact
that, for example, the Prime Minister feels particularly offended by
the cartoon does not indicate whether the satire is degrading or not.
Before recognising the unlawfulness of the infringement, many
defences may be considered, such as the right to humour and the right
to criticise a public position. Restraint must be exercised before judg-
ing satirical jokes as degrading, because they play an important role
in society. Satire is a humorous way of criticising illustrious figures,
and in this way it remains lawful and even necessary to the extent
that it is founded on common knowledge and not needlessly hurtful.
Unlawful infringement does not just exist because the individual is
61
Statement of the Conseil suisse de la presse 1996, n. 8.
62
RVJ 1984, p. 213 c. 2a.
63
Ibid. at 2b. 64 Ibid. at 2a.
presented in an extremely unfavourable light.65 This can be true even

where the cartoon presents an individual as a prostitute66 or where a
couple is represented in an indecent pose.67 A judge in Sion refused to
recognise an unlawful infringement of the reputation of a professor
who was depicted naked in the shower, his head pasted onto the body
of a 12-year old boy, in a photomontage accompanying an article in the
Carnival newspaper. According to this judgment, the satire could have
only been unlawful if the individual targeted had been depicted in ‘a
degrading or immoral position or activity’.68 In light of this judgment
and decisions preceding it, it seems unlikely that an unlawful infringe-
ment of reputation would be recognised in the Prime Minister’s case.

Swiss case law appears to be rather tolerant of satire. No theme is
excluded from journalistic treatment, even in satirical form. It is even
permissible for religious symbols to be used in satire, but even so,
they should not be needlessly denigrated or ridiculed.69 Moreover, the
satire must not offend religious sentiment. With regard to the rela-
tively recent events in Denmark concerning caricatures of the Islamic
prophet Mohammed, it must be admitted that, although the liberty of
expression is fundamental, it is not without boundaries. The sensitiv-
ity of others, especially of minorities, must be respected. As Thomas
Maissen pointed out in his article: ‘What do we lose in terms of free-
dom, quality of life and possibilities of self-fulfillment if we freely,
respectfully and tolerantly give up the right to caricature or represent
a prophet of another religion? Nothing.’70
Comparative remarks
In the present case, the right to freedom of expression – in its particu-
lar form as freedom of satire – comes into conflict with the personality
rights of the Prime Minister, notably his/her honour and reputation.
These rights have to be balanced against each other. In this bal-
ancing, two factors play an important role: the status of the person
65
Decision of the Swiss Federal Court, 5C.26/2003 c. 2.3.
66
SJ 1995, p. 669. 67 SJZ 98 (2002), p. 208.
68
RVJ 1984, p. 213 c. 3.
69
70
T. Maissen, ‘Was bedeutet Toleranz heute? Überlegungen aus Anlass des
Karikaturen-Streits’, Neue Zürcher Zeitung 6 Feb. 2006.
caricatured, and the boundaries of legitimate satire itself. As to the

first factor, all countries recognise that the Prime Minister exercises
a public function and therefore must be prepared to endure criticism,
even if it is harsh.
As to the second factor, the core question is whether the criticism
expressed in the satire remains at a reasonable level or goes beyond
this level and unjustifiably attacks the honour and reputation of the
Prime Minister. In Austria, Belgium, Finland, France, the Netherlands,
Spain and Switzerland, the criticism in the satirical cartoon in question
will probably still be regarded as reasonable, as it directly relates to the
Prime Minister’s official functions. Therefore, the Prime Minister will
not have a claim. In the other countries considered there might be a
different outcome.
In England, Scotland and Ireland, the Prime Minister may have a
claim in defamation or libel depending on how the ordinary reader
would understand the cartoon. A satirical cartoon in itself does not
preclude any defamatory meaning. The context in which the carica-
ture was presented and the mode of publication have to be taken into
account.
In Belgium, the Prime Minister might have a claim against the art-
ist of the cartoon if it is considered to be an unjustified violation of
the politician’s personality rights. A claim against the magazine would
fail on grounds of the ‘multi-staged liability’ rule established by the
Belgian Constitution: if the artist is known, no claim can be lodged
against the publisher, printer or distributor.
In Germany, Italy and Portugal, the Prime Minister would probably
have a claim against the magazine. In these countries, satirical expres-
sion must also respect constitutional values, such as honour and dig-
nity. On these grounds, in Germany and Italy, cartoons such as this
one have been found to be acceptable by the courts. In Portugal, no
such judgments can be found since cases of this kind are normally not
brought before the court.
In Italy, the case law appears to be a bit contradictory. On the one
hand, according to the Italian Corte di cassazione, there is a borderline
of ‘formal correctness’ which has to be observed even by satirical
cartoons, in respect of the fundamental personal rights outlined in
the Constitution. Since the cartoon in question can hardly be seen as
‘formally correct’, it would come under the crime of defamation. On
the other hand, however, the Italian Supreme Court has deemed satir-
ical cartoons lawful when they express a message consistent with the
‘quality of the public dimension’ of the person caricatured. In the pre-

sent case one may argue that the cartoon expresses a specific political
criticism consistent with the public position of the Prime Minister and
therefore is covered by freedom of expression.
If, in the above countries, the cartoon was considered an unlawful
violation of the Prime Minister’s personality rights, he/she would be
entitled to the same remedies as in Case 1.
10 Case 7: A snapshot of a person
Case
Sally took a snapshot of person X in a market place without asking this
person’s permission. Does X have a claim against Sally? Does it make
a difference, if:
(a) X is famous or not;
(b) X is at work/is attending to his private affairs;
(c) the picture is published or not.
Discussions
Austria
I. Operative rules
X is not granted a claim in both situations (a) and (b). If, as suggested
under hypothesis (c), the picture is published, X only has a claim for
forbearance, publication of the judgment, abatement and restitution of
both pecuniary and non-pecuniary loss under certain circumstances.
A claim of unjust enrichment, however, appears highly improbable.

With regard to situation (a), it appears rather unlikely that X has any
remedy against the mere taking of the picture irrespective of whether
he is famous1 or not. The present case deals with the protection of pri-
vacy which can, in principle, be realised through the right to image
according to § 78 UrhG (Urheberechtsgesetz, Copyright Act).2 However,
1
See Case 1.
2
In Austria a provision of the Copyright Act serves as a legal basis for the right
to image, although this personality right is not a copyright at all; F. Bydlinski,
275
this provision only awards a claim if the picture is published;3 the

mere taking of the picture is not sufficient to merit a claim.4
Other provisions aimed at preventing the violation of privacy which
could be applicable are § 1328a ABGB and § 16 ABGB, together with Art.
8 ECHR.5 Under both regulations, not only the dissemination or pub-
lication of private information results in sanctions but even the mere
intrusion into privacy.6
However, the crucial question is whether X’s right of privacy is really
affected in the present case. On the one hand, the picture was taken in
the market place, which is a public place.7 In addition, the content of
the picture is not intimate at all. It presumably just shows X shopping
or walking around.
On the other hand, the picture was taken without X’s consent. He
probably did not even notice that the picture was being taken. However,
this would not be a sufficient basis for X to successfully bring an action
against Sally.
With regard to situation (b), it is doubtful that professional or busi-
ness affairs are covered by the provisions for the protection of privacy.8
The more information clearly relates to one’s profession or business,
the more private interests fade into the background. Since the photo-
graph has no specific intimate content, X does not even have a claim
if he is attending to his private affairs; this is even more so the case if
he is at work.
Under situation (c), if the picture is published not only is § 16 ABGB
together with Art. 8 ECHR applicable, but also § 78 UrhG. If the picture
‘Der Ersatz ideellen Schadens als sachliches und methodisches Problem’ (1965)
JBl 184; W. Dillenz and D. Gutmann, Kommentar zum Urheberrechtsgesetz und
Verwertungsgesellschaftengesetz (2nd edn. Vienna/New York: 2004) § 78 no. 1.
3
§ 78 Abs 1 UrhG reads: ‘Pictures of persons may neither be displayed in public nor
disseminated in another way in which they are made accessible to the public, if
the displaying or dissemination infringed upon justified interests of the portrayed
person or, if he/she has died without having given consent to the publication, a close
family member.’
4
Cf. E. Rehm, ‘Das Recht am eigenen Bild’ (1962) JBl 2. § 7 MedienG, aimed at the
protection of utmost privacy, is not applicable, since this provision presupposes a
presentation by the media.
5
Cf. Case 5.
6
Cf. J. Aicher in P. Rummel, Kommentar zum ABGB I (3rd edn., Vienna: 2000) § 16 no. 24.
Indeed, if § 78 UrhG is engaged or the publication takes place in a medium according
to the Media Act, § 1328a ABGB cannot be applied. See Case 5.
7
A. Warzilek, ‘Der “private” Politiker’ (5.7.2005) Salzburger Nachrichten, 6.
8
W. Posch in M. Schwimann, ABGB-Praxiskommentar I (3rd edn., Vienna: 2005) § 16 no.
40; J. Aicher in P. Rummel, Kommentar § 16 no. 24; see also Case 12.
c a se 7: a sna pshot of a per son 277
is published by the media, § 7 MedienG also applies against the pub-

lisher.9 However, the publication of the picture does not necessarily
infringe X’s privacy. If, for example, the picture is published for the
purpose of drawing attention to the opening of the market or that
season’s fresh produce, X’s privacy interests are not violated. If, by con-
trast, X is a famous person and the publication of the picture primarily
serves to economically benefit the newspaper/magazine, X could – in
light of the ECtHR decision in the case of von Hannover10 – claim for the
violation of his privacy.
In such a case, X could base his action on the violation of the right
to image under § 78 UrhG. He then has a claim for forbearance (§ 81
UrhG), publication of the judgment (§ 85 UrhG), abatement (§ 82 UrhG)
and damages (§ 87 UrhG).
The claim for compensation of both economic (§ 87 subs. 1 UrhG)
and non-economic loss (§ 87, subs. 2 UrhG) is awarded independent of
the degree of fault; slight negligence is sufficient. However, non-eco-
nomic loss is only compensated in cases involving particularly serious
intrusions.11
The claim for forbearance, abatement and damages could also be
based on § 16 ABGB, together with Art. 8 ECHR. Moreover, § 7 MedienG
allows for a claim against the publisher for compensation of non-eco-
nomic loss without fault.12 In contrast, the OGH would probably not
permit a claim of unjustified enrichment.13

It must be emphasised that some personality interests are of economic
value to the media. Thus, the courts should take actions for unjust
enrichment into consideration.
9
§ 1328a ABGB is not applicable because § 78 UrhG and § 7 MedienG are ‘leges
speciales’ (see § 1328a subs. 2 ABGB; RV 173. BlgNR 22. GP 20; Cf. also Case 5).
10
MR 2004, 246 et seq. The decisions of the ECtHR must be kept in mind when
interpreting civil law provisions on protection of privacy.
11
See e.g. OGH ÖBl 1970, 157; SZ 55/25. However, there is no indication in law for this
approach by the OGH; Cf. H. Koziol and A. Warzilek, ‘Austrian Country Report’ no.
163 with further ref., in H. Koziol and A. Warzilek, The Protection of Personality Rights
against Invasions by Mass Media (Vienna/New York: 2005); F. Mahr, ‘Bereicherung,
Schadenersatz und Herausgabe des Verletzergewinns’, in R. Dittrich, Beiträge zum
Urheberrecht IV (Vienna: 1996) 48 et seq.
12
See Case 5.
13
In the field of personality rights the courts have only admitted claims of unjust
enrichment in cases of unauthorised use of personal characteristics (e.g. name,
voice, picture) for commercials (see Cases 10 and 11).
According to § 87, subs. 2 UrhG, the seriousness of the infringement

should not be a precondition for the award of compensation for non-
economic loss.14 Where there is just a slight infringement, the compen-
sation awarded could simply be nominal.
Belgium
I. Operative rules
In both cases, X will have a claim against Sally unless she can prove
that there are circumstances that justify the publication.

A distinction should first be made between the ‘right to image’ in
general and the so-called ‘right to portrait’ in particular.15 The latter
is explicitly regulated by the Copyright Act of 30 June 1994. It only
applies when a photograph specifically focuses on a person. Even then,
the ‘right to portrait’ does not apply to topical portraits.
The general right to image would not be useful for X. That right pro-
hibits the taking and reproducing of a photograph without the consent
of the photographed person. However, this condition does not apply
to persons in a public place, whose consent may be presumed, and to
photographs used to illustrate a topical theme. Consequently, it is irrel-
evant whether or not the picture is published or sold, whether X is
famous or not and whether he is at work or attending to private affairs.
However, a photograph taken in a public place may not be (mis)used in
a different context.16
Under Belgian law, every person has an exclusive right to his/her
image. The use, reproduction, and dissemination of a photograph is
only possible if the person in the photograph has given his/her express
authorisation (cf. Art. 10 of the Copyright Act). This principle applies
to both public figures and private individuals.17 However, the consent
of famous persons will be more readily presumed than that of private
individuals.18 This applies to all public figures, e.g. politicians, sports-
persons, artists, models and temporary celebrities.
14
F. Mahr, ‘Der “besondere Ärger” als Voraussetzung einer Entschädigung nach § 87
Abs 2 UrhG’ (1996) MR 9.
15
See Case 3. For an overview, see L. Dierickx, Het recht op af beelding (Antwerp: 2005) p.
54 et seq.
16
E.g. Civil Court Antwerp 12 May 1989, RW 1989–90, 654. see D. Voorhoof, Handboek
mediarecht (Brussels: 2003), 152.
17
See L. Dierickx, Het recht op af beelding, p. 97 et seq.
18
E.g. Civil court Bruges 27 Jun. 1994, RW 1994–95, 473.
Once a public person has given explicit consent for the use of his/
her photograph, this consent must be interpreted restrictively.19 The
photograph can only be used for the purposes to which the consent
was given.
A distinction must again be made between portraits and topical pho-
tographs. If X is photographed as a professional, the photograph will be
regarded as topical and no consent is necessary. For example, a picture
taken of a policeman directing traffic or a bus driver constitutes a pho-
tograph of a profession, not of a person.
If X is photographed while attending to personal affairs, no consent
will be necessary for topical photographs/photographs of public places,
for example X participating in an animal rights’ demonstration or eat-
ing an ice cream at a fountain. It is the right to privacy that is more
important here.
Art. 10 of the Copyright Act does not prohibit the actual taking
of the photograph. It only prohibits reproducing and publishing the
photograph without the consent of the photographed person or his/her
heirs for twenty years after his/her death. The mere invasion of this
right can lead to an order for an injunction (a priori) and damages (a
posteriori); no fault has to be proved.
Moreover, the photographed person has the right to obtain damages
on the basis of Art. 1382 CC if he/she can prove the fault of the per-
son who took the photograph. From this perspective, the fact that the
photograph was falsified or used in an inappropriate context can be
relevant.20
The right to image and the right to privacy are seen as distinct per-
sonality rights, the violation of which must be separately assessed. The
civil court of Bruges had to decide a case concerning the publication
of some nude photographs taken in the changing room of the foot-
ball club ‘Club Bruges’ after the team had won the 1991–92 national
championship. The court decided that the public right to information
means that public persons such as football players can implicitly con-
sent to the taking of certain photographs, but this does not mean that
all photographs can be published, especially nude photographs. The
court decided in this case that the private lives of the photographed
persons were violated.21
19
E.g. Civil court Bruges 31 Jan. 1990, RW 1991–92, 234.
20
21
Civil court Bruges 27 Jun. 1994, RW 1994–95, 473.
Due to the protection of private life, a person’s permission to publish

their photograph must be interpreted narrowly. For example, a person
who is ‘famous’ for a limited period as a result of a certain event or
opportunity can implicitly consent to the publication of his/her photo-
graph. But he/she preserves the right to return to anonymity and to be
forgotten after some time.22
Nevertheless, Belgian case law is not unanimous on this subject. As
part of the infamous Dutroux case in Belgium, some photographs of
two of the girls who were kidnapped and murdered were published
in a book without the consent of their parents. Moreover, in a press
communiqué the parents had opposed the publication of these photo-
graphs; in their opinion their right to privacy was harmed. The court
did not agree however, because of the public right to information con-
cerning matters of public interest. The privacy interests of the persons
portrayed have to be weighed against the right of the public.23
England
I. Operative rules
X does not have a claim against the mere taking of the photograph.
X may have a claim in breach of confidence if the picture is published.
This will depend on whether there would have been a reasonable
expectation of privacy in respect of the photograph.

In principle, there is no law against the taking of a photograph24 and
there is no right to prevent the reproduction of photographs which
one does not own the copyright to.25 Whether X is famous or not is
irrelevant. In Creation Records v. News Group Newspapers, Lloyd J agreed
that ‘merely because a well-known person tries to stop people taking
photographs of him or her it does not follow that any picture taken in
evasion or defiance of those attempts is in breach of confidentiality’.26
22
Civil court Brussels 30 Jun. 1997, JT 1997, 710.
23
Antwerp (President) 8 Feb. 1999, Algemeen Juridisch Tijdschrift 1998–99, 789, note by
D. Voorhoof.
24
Sports and General Press Agency v. ‘Our Dogs’ Publishing Company [1916] 2 KB 880;
Bernstein of Leigh (Baron) v. Skyviews & General Ltd [1978] QB 479, at 488.
25
Elvis Presley Trade Marks [1997] RPC 543, at 547–8, per Laddie J.
26
Creation Records Limited and Others v. News Group Newspapers Limited [1997] EMLR
444, at 455. See also L. J. Smith, ‘Neuere Entwicklungen in der Haftung
für Persönlichkeitsrechtsverletzungen nach deutschem und englischem
However, after the entry into force of the Human Rights Act 1998,
this latter situation where a person actually tries to stop someone else
from taking photographs of him/her may have to be judged differently
under the aspect of harassment. Even Clause 4 of the Code of Practice
of the Press Complaints Commission requires journalists not to persist
in telephoning, questioning, pursuing or photographing individuals
after having been asked to desist. The rules of the PCC Code of Practice
have been referred to in a number of cases prior to and after the enact-
ment of the Human Rights Act 1998.27
However, this particular case could come under breach of confidence
if the photograph was published. Breach of confidence normally occurs
if information is obtained on a person within a secluded private prop-
erty but can, in exceptional cases, even occur in publicly accessible
places where there is a reasonable expectation of privacy.28 Obtaining
information includes taking photographs.29 In the instant case, no such
exceptional circumstances are reported.
Finland
I. Operative rules
X does not have a claim against Sally unless the picture is taken and used
for business purposes, e.g. published as a part of an advertisement.

In Finnish law, there is no provision allowing a natural person the
right to prohibit snapshots being taken of him/her if the picture is
taken in a public place under normal circumstances.30 If a person is
Recht – “Publish and be damned’” (1999) Zeitschrift für Europäisches Privatrecht 303, at
314. This might be different in the case of secret filming in public places which the
Court of Appeal in R v. William Loveridge and Others [2001] 2 Cr App R 29, 591, at 599,
per Lord Woolf CJ, considered objectionable because it is not open to those who are
subject of the filming to take any action to prevent it.
27
See, for example, Shelley Films Limited v. Rex Features Limited [1994] EMLR 134, at 150.
See also Schering Chemicals Ltd v. Falkman Ltd and Others [1982] QB 1, at 39, where
Templeman LJ criticised that the defendant resisted compliance with a rule of
professional conduct laid down by the National Union of Journalists for the purpose
of maintaining high professional standards amongst journalists.
28
For such an exceptional case see Creation Records Limited and Others v. News Group
Newspapers Limited. See also Case 8 (b).
29
Shelley Films Limited v. Rex Features Limited; Creation Records Limited and Others v. News
Group Newspapers Limited.
30
Kommittébetänkande 1973:1 p. 35, Vuortama, Yksityiselämä ja joukkotiedotus
(Rauma: 1983) p. 44 and 55 and Kemppinen, ‘Henkilön ja henkilön kuvan käyttö
photographed in the street, in a park or in a market place, the pho-

tographer is not obliged to first ask his/her permission. The taking of
a picture per se can seldom constitute a violation of the prohibition on
defamation under Ch. 24, s. 9 of the Penal Code, or a violation of the
prohibition on unlawful observation according to Ch. 24, s. 6 of the
Penal Code.31 However, if the photograph is taken in a public place in
humiliating or awkward circumstances, the photographing can consti-
tute a defamatory act according to Ch. 24, s. 9 of the Penal Code. It does
not make any difference whether the photographed person is a famous
person or whether he/she is at work.
In principle, a picture taken of an ordinary person in a public place
can be published without that person’s permission.32 However, if the
picture is published in a defamatory fashion, the publication can
constitute a crime according to Ch. 24, s. 9 of the Penal Code. Legal
scholars have considered that photographing a drunken, non-famous
person sleeping in the street as a possible defamatory act, which can
lead to sanctions and consequently to damages.33 If the publishing
of the picture constitutes a crime, the victim is entitled to damages
according to Ch. 5, s. 1 of the Finnish Tort Liability Act. Consequently,
if the photographed person is famous, the scope of his/her privacy is
much narrower. A picture of a drunken politician or a famous person
can, in principle, be published without negative consequences as the
public is considered to have a legitimate right to know of circum-
stances which can have an effect on a person’s capacity to attend to
his/her work.
If the picture is used for commercial purposes, the consent of the
photographed person is a necessary prerequisite (see Case 8).34 The view
has been presented that this right exists without a specific legislative
mainonnassa ja tiedotusvälineissä’, in Tommila (ed.), Tekijänoikeuskysymykset

markkinoinnissa (Loimaa: 1986) p. 77.
31
Kemppinen, ‘Oikeus omaan kuvaan’ (1979) Lakimies 774. See also Oesch, ‘Nordic
Countries’ in Gendreau, Nordemann and Oesch, Copyright and Photographs
(Wiltshire: 1999) p. 251 and Kivimäki, Tekijänoikeus (Turku: 1948) p. 232.
32
See decision 3107/IL/02 of the Finnish Council for Mass Media and Vuortama,
Journalisti 15/1999, www.journalistiliitto.fi/journalisti/arkisto/1599/ala/alakerta.htm
(9 Jun. 2003) p. 134.
33
Kemppinen, Oikeus omaan kuvaan p. 752.
34
Korkeamäki, Oesch and Taipale, ‘Finland’, in Ruijsenaars (ed.), Character
Merchandising in Europe (London: 2003) p. 105. See Oesch, ‘Nordic Countries’ p. 251,
where the author stresses that the consent of the photographed person must be
attained not only for commercial use, but also for use that can be compared to
commercial use.
provision.35 There are some Supreme Court cases where compensation

has been granted to persons who did not consent to the use of their
picture. In case 1982 II 36, compensation of 2,000 FIM (about €336)
was granted to a person who was photographed dressed in his military
uniform and whose picture was used in a brochure advertising Finland
as a tourist destination without his prior consent. The same amount
of compensation was awarded to the parents of a seven-year-old child
whose picture had appeared in an advertisement for a bank without
the parents’ consent. In an older case 1940 I 10, the father of a child
was given compensation of 5,000 FIM when a company had used his
child’s picture for marketing purposes. An injunction against the com-
pany was also granted.36
In the instant case, if person X has his own business or is an employee
and Sally is using the photograph for her own business purposes, X (or
his employer if X is an employee) can sue for an injunction at the
Finnish Market Court according to s. 1 of the Finnish Act on Unfair
Business Practices.37 The claim before the Market Court requires that
the photograph has been published for commercial purposes.
In addition, X or his employer can sue for damages for pure economic
loss if the act is considered to fulfil the criteria of especially weighty
reasons for compensation according to Ch. 5, s. 1 of the Finnish Tort
Liability Act. The question as to what constitutes an especially weighty
reason is problematic as the criterion was added to the provision in
Parliament. In case law, there are a few cases where acting contrary to
good practices – mainly according to the Finnish Act on Unfair Business
Practices38 – has been found to be an especially weighty reason. The
criteria for when there are especially weighty reasons are unclear.39
35
Muhonen, ‘Henkilön persoonan kaupallinen hyödyntäminen Yhdysvalloissa ja
Suomessa’ (1996) 6 Defensor Legis 772, Tiili, ‘Marknadsföring och rätt till egen bild’
(1988) Nordiskt Immateriellt Rättsskydd 28 and Melander, ‘Intimiteetin oikeussuojasta’
(1964) Lakimies 792.
36
In the legal doctrine, Sisula-Tulokas, Sveda, värk och annat lidande (Helsingfors: 1995)
p. 95 argues that compensation is only granted in these cases due to the unlawful
use of a picture and not due to any violation of privacy.
37
This happened in Market Court case 1981:18 where a popstar had been depicted on
t-shirts. The Market Court found the defendant guilty of unfair business practices
and granted an injunction.
38
In Supreme Court case 1991:79 the products of a businessman had been criticised
wrongfully in a way which was not in accordance with good journalistic practices.
The Supreme Court found that there were especially weighty reasons to award
compensation for pure economic loss.
39
Hemmo, ‘Selvitys puhdasta varallisuusvahinkoa koskevan sääntelyn
uudistamistarpeesta’ (2002) 26 Oikeusministeriön lausuntoja ja selvityksiä 8.
However, it is important to note that an act contrary to good practices

does not automatically constitute an especially weighty reason.40
The claim for compensation has to be presented at a local court
because the Market Court lacks the power to grant damages. The liabil-
ity is based on the fault of the person who uses the photograph.

The right to take pictures of anybody in a public place has been dis-
puted in older doctrine using the argument that only famous persons
are obliged to allow others to photograph them.41
France
I. Operative rules
If X is famous, he cannot enjoin the taking or publication of his pho-
tograph. If he is not famous, he can in principle enjoin the publication
unless Sally can prove that several criteria likely to justify the admis-
sibility of such a publication are fulfilled, such as the fact that the pho-
tograph was taken in a public place, the incidental position of X in the
photo, or the fact that X had been photographed while exercising his
profession. However, none of these criteria alone will suffice to justify
X’s lack of consent.

In French law, all persons have an exclusive right to their image and
its use which permits them to prohibit its reproduction and dissemi-
nation without prior express and specific authorisation.42 The right to
one’s image ensures protection not only against publication, but also
against merely taking that image without the consent of the person
portrayed. Furthermore, the fact that the person concerned is in a pub-
lic place,43 that he is photographed in the course of his professional
40
Ibid. at 7–8. The Finnish Council for Mass Media has itself criticised the possibility
of awarding compensation merely on the ground that the Council found an act of
a newspaper was not in accordance with good journalistic practice. See statement
3206/L/02.
41
Kivimäki, Ylöstalo, Lärobok i Finlands civilrätt (Vammala: 1961) p. 17 and Kivimäki,
‘Persoonallisuuden oikeusturvasta’, in Linkomies (ed.), Oma maa 2. Tietokirja Suomen
kodeille (Porvoo: 1958) at p. 29.
42
This formulation has been consecrated by unanimous case law.
43
See, e.g. CA Aix-en-Provence 30 Nov. 2001, CCE 2003, No. 11, 39: ‘the fact that a
person (even of topical interest or known by the public) is located in a public place
does not mean that the person renounced his/her rights to image and privacy’; TGI
activity44 or that he is famous are not sufficient reasons alone to justify

the lack of consent.
The exclusive character of the right to one’s image recognised by case
law is nothing but a term of art in reality. Two principal justifications,
which are of unequal importance in practice, can be invoked by the
defendant. The first concerns photographs taken in public, representing
a landscape or a street scene, a group or some other public event. In such
a situation, the use of an image is legal even without the consent of the
person represented because of the difficulty in obtaining the otherwise
necessary consent in practice. Here, it is a matter of the constraints of
social life.45 However, in such a situation, case law requires that the image
does not have the representation of the person as its objective and that
his/her presence in the photograph is just a coincidence. In the absence
of this requirement, the person can demand that the photograph is pub-
lished in a way that makes it impossible to identify his/her features. Thus,
French courts have sanctioned the publication of a photograph of a pros-
titute taken in the street on the basis that her face was recognisable,46
or a photograph of tourists taken in front of the leaning tower of Pisa,
which was intended to illustrate a campaign against the sloppiness of
summer clothing, on the basis that the persons depicted did not just have
an incidental role in the snapshot.47 Similarly, French courts have sanc-
tioned the photograph of a person in a synagogue because of its focus on
the person concerned,48 or that of a child participating in a folk festival
réf. Paris 3 May 2002, Légipresse 2002, No. 194, I, 101: ‘the fact that the photograph
in question was taken on a public street does mean that the protection of the right
(to image) disappears’; TGI Paris 15 Sept. 2003, Légipresse 2003, No. 207, I, 178: ‘it
does not really matter that the pictures were taken in a public place, since the
moments lived by the plaintiffs with their parents on that beach did not go beyond
the family sphere protected by Art. 9 CC’.
44
See, e.g., CA Paris 27 Feb. 2002, CCE 2003, No. 11, 40: ‘the publication of the image
of a person, independent of his/her notoriety and independent of the professional
activity concerning which the photograph was taken, is only allowed if expressly
authorised by that person. A specific authorisation is needed for each envisaged
use of the photograph’. – TGI Nanterre 28 Oct. 2002, Légipresse 2003, No. 199, I,
23: ‘the sole fact that the photograph was taken in the context of the exercise of
the plaintiff’s professional activity does not suffice to dispense from obtaining the
consent of the person concerned’.
45
See, e.g., CA Paris 13 Mar. 1986, D. 1986, somm., 445: ‘everybody can observe scenes
which occur in a public place, exposed to everybody’s eyes, and everybody in
principle can record and reproduce those scenes without needing the agreement of
each participant in those scenes’.
46
TGI Paris 27 Feb. 1974, D. 1974, jur., 530.
47
CA Paris 26 Mar. 1965, JCP 1965, II, 14305.
48
CA Paris 11 Feb. 1987, D. 1987, somm., 385.
because the child ‘was isolated from the event in which the photograph
had been taken’.49 However, more recent case law admits that the person
may be identifiable, provided the focus of the photograph is not on the
person but on the actual event instead.50
The second and, in practice, the most important basis for the justifi-
cation of the legality of photographs taken without the consent of the
person represented is the public’s right to information. In reality, this
mainly concerns public figures. However, this justification can also
apply where persons are involuntarily thrust into the public eye, as
occurs in the case of criminals, victims of crimes, etc. In the instant
case, if X is famous he will not be able to enjoin the publication of
the photograph unless it invades his privacy (see Case 8). In the latter
hypothesis, his cause of action will not be based on his right to his own
image, but rather on his right to privacy.
If X is not famous, the right of the public to information cannot jus-
tify the taking and publishing of the photograph. It is the combination
of several other criteria, such as the public place, the exercise of a pro-
fessional activity and X’s incidental position in the photograph which
could, in certain cases, relieve Sally from all liability.
Germany
I. Operative rules
If X is famous, he cannot prevent the taking or the publishing of the
picture if the situation is deemed to be newsworthy. If he is not famous,
an injunction may be granted against the taking and/or publication of
the picture if it focuses on him and if he has not tacitly consented. If
Sally knows X, his implicit consent to take the photograph may be pre-
sumed, but not to publish it.

The right to image is among the few personality rights which are codified
in German law (§§ 22 and 23 of the Copyright Act, ‘Kunsturhebergesetz’,
KUG).51 These provisions do not protect the photographer, but the person
49
Cass. civ. 12 Dec. 2000, D. 2001, jur., 2064.
50
Cass. civ. 25 Jan. 2000, JCP 2000, II, 10257: ‘the photograph was taken on the
doorstep of a public building and it was not possible to isolate (the claimant) from
the group of persons represented in the photograph, that was focused not on him
but on a topical event in which he happened to be involved in by coincidence due to
circumstances exclusively concerning his professional life’.
51
E. Schuster, Das Recht am eigenen Bild (Diss. Heidelberg: 1931) p. 14.
portrayed.52 § 22 KUG does not protect a person against the taking of

his/her photograph, but merely against the dissemination thereof.
Therefore, a supplementary protection has to be granted by the general
personality right which is regarded as one of the rights protected under
§ 823(1) BGB.53 The limitations in respect of the right to image are set
out in § 23(1) KUG.54
Usually in privacy cases, a balancing of the interests involved deter-
mines whether or not there was a violation of this right. In respect of
the right to image, this methodology changes slightly as § 23(1) KUG
provides some clear and special limitations to the right to image. If
these limitations are met, a violation of the right may be assumed if
interests are violated which are not directly protected by the KUG but
by the general right to personality. This requires an additional balan-
cing of interests under § 23(2) KUG.55
§ 22 KUG, in combination with the general right of personality, sets
out the principle that no person’s image may be taken without her or his
consent. § 23(1) KUG provides limitations to this right. The most import-
ant limitation relates to ‘situations from contemporary history’ (§ 23(1)1
KUG). The exact wording of the provision does not say that pictures
of famous persons will always be pictures from contemporary history.
Traditionally, courts and scholars in Germany speak of pictures of pub-
lic figures, as public figures are regarded as being part of contemporary
history.56 A further distinction is made: not only do public figures in a
narrow sense fall under this provision, but also private individuals who
only become public figures for a limited time and in relation to a single
historical fact, e.g. the relatives of public figures or criminals.57 These
persons are called ‘relative Personen der Zeitgeschichte’ (relative persons of
contemporary history), while public figures in general are called ‘abso-
lute Personen der Zeitgeschichte’ (absolute persons of contemporary his-
tory). If X is famous in either sense, under § 23(1)1 KUG a picture may be
taken of him and distributed without his consent.58
52
BVerfG NJW 2001, 1921, 1923 – Prinz Ernst August von Hannover.
53
BGHZ 20, 345, 347; BGHZ 24, 200, 208; H. Hubmann, Persönlichkeitsrecht (2nd edn.,
Cologne/Graz: 1967) p. 297.
54
See J. Helle, Besondere Persönlichkeitsrechte (Tübingen: 1991), pp. 171 et seq.
55
BGHZ 131, 332, 337.
56
Personen der Zeitgeschichte, see H. Neumann-Duesberg, ‘Bildberichterstattung über
absolute und relative Personen der Zeitgeschichte’ (1960) JZ 114–18.
57
J. R. von Strobl-Albeg, in K. -E. Wenzel, Das Recht der Wort- und Bildberichterstattung
(5th edn. Cologne: 2003) pp. 468 et seq.
58
Cf. KG Berlin ZUM-RD 2006, 552; LG Berlin ZUM-RD 2006, 571.
§ 23(2) KUG makes one further exception: if the picture violates the
personality interests of the depicted (public) person, the taking and
distribution falls under the general prohibition in § 22 KUG. Generally,
§ 23(2) KUG will not allow the distribution of photographs which have
been taken as a result of an invasion of privacy (see Case 8). Furthermore,
photographs depicting situations which put a person into a false light
or embarrass or humiliate him/her, i.e. intimate situations or naked
poses, are barred from publication.59 However, there is no information
in this particular case concerning these exceptions.
If X is a private person, in principle a picture may not be taken and/or
published without his consent (§ 22 KUG, § 823 (1) BGB). However, if the
picture is taken in a market place, another limitation is applicable under
§ 23(1) KUG. According to para. 2 of this provision, pictures of persons in
public places may be taken if the picture is focused on the public place.
Situation (b) raises the question of whether another exception may be
made for circumstances in which people are photographed in a profes-
sional activity or in an official function. In principle, § 23(1) KUG limits
the right to image to situations in which the use of personality features is
either necessary for media purposes or is unavoidable. Therefore, paras.
2 and 3 of § 23(1) KUG allow photographs of persons if the use is unavoida-
ble because the photograph does not focus on the person but on the place
or event depicted. As long as this limitation is met, it does not matter if
this person is photographed in a private or a professional situation.
If limitations under § 23(1) KUG are not met, one might argue that
a person who is photographed during her or his work has tacitly con-
sented thereto. This might be the case if a person carries out an offi-
cial function which is connected to the place where the photograph
is taken. Therefore, the guards in front of the President’s home at
Bellevue Palace in Berlin will tacitly consent to a tourist taking a pic-
ture which is focused on them.60 In the instant case, implied consent in
the taking of the photograph can also be assumed if X regularly carries
59
BGH GRUR 1975, 561, 562; NJW 1985, 1617; OLG Hamburg NJW 1996, 1151 = GRUR
1996, 123, 124; OLG Hamm NJW-RR 1997, 1044; but see OLG Frankfurt/Main NJW
2000, 594: Playboy photograph series of Katharina Witt; the distribution of a
copy of one of the photographs – taken from Playboy’s website – in a newspaper
was allowed for its informative value because the paper distributed the copy in
connection with a short satirical article about the fact that Witt had exposed
herself in Playboy.
60
See the dictum in a similar case by OLG München ZUM 1997, 388, 390. Public
officials are usually not regarded as persons belonging to contemporary history,
out a professional activity on a public market place or if he knows Sally

personally. However, this type of consent will not justify the commer-
cial publication of the photograph.

The respective provisions in §§ 22, 23 KUG stem from 1907. Critics argue
that in modern times the old KUG has become obsolete and should be
replaced by new provisions which are more suitable for the modern
media and information society.61
Greece
I. Operative rules
If X is not famous, he can sue Sally for taking the photograph without
his consent. If X is famous and the picture is published, a balancing of
interests has to take place.
In case of a photograph of X attending to his private affairs there is a
claim for damages whether the person is famous or not. As to the pub-
lication of a famous person’s picture taken in a public place, there is
no claim for damages unless other circumstances occur which amount
to an injury.

The personality of an individual includes all attributes which are
firmly connected to that person. Among the attributes which form the
content of the personality right is that of a person’s image.62 Image
refers to the external appearance of a person, which always accompa-
nies him/her and, therefore, he/she should be able to choose when to
expose it in public. Likewise, the image of a person does not belong to
the public but only to the person it represents. In Greek law it is forbid-
den to take a photograph of a person in any form and to present or to
expose this picture in public or through the press without the consent
of the depicted individual.63
OLG Karlsruhe NJW 1980, 1701; especially if the person is focused upon by the
camera, OLG Koblenz NVwZ 1998, 237, 238.
61
B. Hahn, ‘Das Recht am eigenen Bild – anders betrachtet’ (1997) NJW 1348, 1350.
62
See Supreme Court (Areopag) Decision 411/2002. Supreme Court (Areopag) Decision
961/2003. Supreme Court (Areopag) Decision 782/2005.
63
Plagiannakos, ‘Personality Right’ (1966) Elliniki Dikaiosini 101 ff. Paterakis,
Remuneration for non pecuniary damages (2nd edn., Athens: 1995) p. 125 ff. Sourlas, in
Georgiadis/Stathopoulos, Civil Code: Article by Article Interpretation (Athens: 1996) § 57.
Therefore, taking a picture of a person without his/her prior consent

constitutes an unlawful injury to that individual’s personality right,
within the meaning of Art. 57 CC. It is even unlawful where the pho-
tograph is not presented to the public or is not reproduced or dissemi-
nated further.64
Moreover, the subsequent publication of the photograph, combined
with other circumstances that diminish a person’s value and reputa-
tion, can amount to an injury to honour.65

If the picture is published by the press and the individual depicted is of
interest to the public, there is a conflict of interests, the balancing of
which should take all the facts of the case into account.66 Therefore, it is
not possible to put forward a general rule where publication is justified.
Self-determination, based on the constitutional right to the free
development of personality means that every human is free to decide
which aspects of his/her personality he/she shall reveal to third per-
sons, to choose the image he/she presents to society and to decide when
his/her personality is injured. Self determination itself is not unlim-
ited but subject to specific restrictions.67 The individual has to endure
intrusions into his/her personality which are connected to the way of
life he/she has chosen. If one chooses to participate in a public event or
to expose oneself publicly, this has the effect that one has accepted a
degree of invasion of privacy.
Ireland
I. Operative rules
X would not have an action against Sally in any of the circumstances
outlined above.

Privacy has been recognised as an unenumerated constitutional right
under Art. 40.3. In McGee v. AG,68 the Supreme Court recognised a
64
Supreme Court (Areopag) Decision 411/2002. Supreme Court (Areopag) Decision
961/2003.
65
Supreme Court (Areopag) Decision 782/2005. Supreme Court (Areopag) Decision
961/2003. See also Case 9.
66
67
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) p. 58.
68
[1974] IR 284.
right to marital privacy and in Kennedy and Arnold v. Ireland,69 the High
Court upheld a right to privacy in relation to telephone conversations
where the government had authorised the illegal tapping of jour-
nalists’ telephones. The exact parameters of the constitutional right
remain unclear. In Kane v. Governor of Mountjoy Prison,70 the court indi-
cated that the overt surveillance of an individual without specific jus-
tification could constitute an infringement of his/her constitutional
right to privacy. However, it is unlikely that the taking of a snapshot
by Sally could amount to ‘surveillance’ whether it was covertly or
overtly taken. The courts have been reluctant to recognise privacy
claims outside of these limited categories, particularly in light of the
explicit protection afforded to the right to free expression under Art.
40.6.1 of the Constitution, preferring to leave such developments to the
legislature.71
Notwithstanding this reluctance, the introduction of the European
Convention on Human Rights Act 2003, which enacts the ECHR into
Irish law, may provide renewed impetus to the Irish courts and the
legislature to develop privacy protection in a manner similar to what
the European Court of Human Rights has done.72
An action for breach of confidence by X would also be difficult to
maintain. No relationship of confidence has been reposed in Sally by X
that would give rise to an obligation on Sally not to breach that confi-
dence by publishing the information.73
Under s. 21(h) of the Copyright and Related Rights Act 2000, Sally, as
the photographer, would be considered an ‘author’ for the purposes of
the Act. As an author, Sally would be the first owner of the copyright
in the photograph and as a consequence X would have no remedy for
breach of copyright where Sally published the photograph.
Italy
I. Operative rules
The traditional rule is that X cannot prevent Sally from taking the pic-
ture in a public place. X can, in principle, obtain an injunction against
the publication of the photograph (Art. 10 CC, Arts. 96–97 Copyright
Act) and recover damages (Arts. 2043, 2059 CC).
69
[1987] IR 587. 70 [1988] IR 757.
71
Maguire v. Drury [1995] 1 ILRM 108 at 116.
72
Von Hannover v. Germany (2005) 40 EHRR 1 and the Privacy Bill 2006.
73
House of Spring Gardens v. Point Blank Ltd [1984] IR 611 (SC). See also Case 3.

The right to one’s own likeness is codified in Art. 10 CC. According to
this provision, every person can obtain an injunction and/or claim dam-
ages if his/her likeness is exhibited or published unlawfully. The lawful-
ness of the publication has to be judged according to the criteria set by
Arts. 96–97 Copyright Act (CA).74 Art. 96 CA sets out the general prin-
ciple of consent: nobody can publicly exhibit, publish or sell the portrait
or picture of another person without having first obtained the consent
of the said person or (after his/her death) his/her next of kin. This is the
general rule, however some exceptions are provided for. According to
Art. 97, no authorisation is required if the publication is justified: (a) on
the basis of the portrayed person’s status (he/she is a public figure or a
prominent person); (b) for police or judicial reasons; (c) in the interests
of science or culture. By the same token, publication is lawful if the pic-
ture is related to a public event or to a fact of public interest. However,
the picture cannot be exhibited or sold when the reproduction violates
the honour or reputation of the person portrayed.
One should also consider the Data Protection Code as applicable, at
least if the picture was taken with the aim of being published or sys-
tematically shown to third parties (Art. 5 (3) DPC). As a matter of fact,
the image constitutes ‘personal data’ under Art. 4 (1)b DPC.75 Taking a
photograph, as well as the publication thereof, are activities amount-
ing to a ‘processing’ of personal data (Art. 4(1)a DPC). This conclusion
has important consequences in terms of the rights and remedies of the
person portrayed.76
(1) The first problem raised by this case relates to the taking of the
picture. Is it lawful or not to take a picture of somebody without hav-
ing previously obtained his/her authorisation? The wording of Art. 10
CC and of Art. 96 CA is clear: the exhibition and the publication of a
portrait has to be authorised by the person portrayed, while the mere
taking of the photograph does not require his/her previous consent.
74
Legge 22 Apr. 1941 no. 633, Protezione del diritto d’autore e di altri diritti connessi al suo
esercizio.
75
See, for instance, Trib. Roma 12 Mar. 2004, Danno e resp. 2005, 879; Trib. Napoli 26
Jun. 2001, Dir. inf. 2001, 888; and Garante protezione dati 9 Mar. 2006, in M. Paissan
(ed.), Privacy e giornalismo (2nd edn., Rome: 2006) 293; Garante protezione dati 8 May
2000, ibid., 288.
76
Namely that the person portrayed (data subject) has a right to be informed (Art. 10)
and to authorise the fi xation, reproduction or publication of his/her likeness (Arts.
11, 20); has access rights (Art. 13a) and specific remedies against unfair or unlawful
The same solution is adopted by scholars and judges who agree that
simply taking a photograph of someone on a public street is not a tor-
tious act provided that the portrait is kept private and not publicly
exhibited.77 In conclusion, under the Copyright Act, X has no remedy
against Sally, irrespective of his status as a public or private figure.
If the Data Protection Code is applicable, the answer will be differ-
ent.78 As observed above, taking a picture amounts to a ‘gathering’ of
personal data under Art. 4a DPC. As a consequence, consent is required
(Art. 23). This is the general rule, however two important exceptions
should be mentioned. Both exceptions focus on the aim of so-called
‘gathering’. According to Art. 5(3), the DPC does not apply if the infor-
mation is processed by a natural person in the course of non-profes-
sional activity and is not intended to be (systematically) communicated
or disseminated.79 Secondly, no permission is required if personal data
is gathered by someone acting as a journalist (Art. 137(2) DPC).
(2) In order to judge the lawfulness of the publication, the following
factors have to be considered: (a) the place where the photograph was
taken; (b) the status of the person portrayed; (c) the context in which
the portrait is placed; (d) the function and purpose of the publication.
The last factor is probably the most important. Publication is always
unlawful if – in the absence of consent – it is carried out for com-
mercial purposes (advertising, use as trademark, etc.), regardless of the
status of the person portrayed, the activity performed, or the context
in which the picture was taken.80
treatment (Art. 13c, d, e); in addition he/she can recover damages for pecuniary
(Art. 18) and non-pecuniary losses (Art. 29 n. 9).
77
A. De Vita, ‘Art. 10’, in A. Pizzorusso, R. Romboli, U. Breccia and A. De Vita, ‘Le
persone fisiche’, in F. Galgano (ed.), Commentario del Codice Civile Scialoja-Branca
(Bologna/Rome: 1988) p. 546; P. Sirena, ‘La tutela inibitoria e cautelare del diritto
all’immagine’ (1996) Riv. crit. dir. priv. 321 et seq., 340; A. Giuffrida, Le persone.
Diritti della personalità (Turin: 2000) p. 206; G. Bavetta, ‘Immagine (diritto alla)’, in
Enciclopedia del Diritto, XX (Milan: 1970) p. 145. See also the decisions cited by A. De
Vita, ‘Art. 10’ above.
78
Compare the decision of the Data Protection Authority: Garante protezione dati 8
May 2000, in M. Paissan (ed.), Privacy e giornalismo at 288.
79
For instance, if I take a picture of my girlfriend with my mobile phone, this
action is in principle not subjected to the DPC (nevertheless, the rules on security
measures and liability for damage apply in any event: Art. 5(3) DPC); but if I intend
to post this picture on the internet (see Cass. Pen., 26 Mar. 2004, Foro it. 2006, II, 46)
or to show it systematically to third parties, then the DPC is applicable (see Garante
protezione dati, 12 Mar. 2003, Boll. no. 37, March 2003).
80
See, inter alia, Cass. 6 Feb. 1993 no. 1503, Giust. civ. 1994, I, 229 (a photograph of the
two famous cyclists Gino Bartali and Fausto Coppi, taken during a race, was used
Assuming that there is no commercial appropriation, other factors

then come into play. The first relevant aspect is the context in which the
portrait is set. Even if the photograph was taken in a public place and/
or with the consent of the person portrayed, the action remains unlaw-
ful when it puts the person in a false light, namely when it creates the
false impression that the person portrayed has something to do with
the subject matter of the publication.81
Provided that there is no alteration of the original context, the pub-
lication can be considered lawful if it is justified by the public inter-
est. The privacy interests of the person portrayed have to be weighed
against society’s right to know. Some limitations are set out in Art. 97
CA, but a balance is inevitable. The simple fact that a person was in a
public place is not always a justification for the reproduction of his/her
likeness.
If he/she is a public figure (circumstance (a)), the public is more likely
to have a legitimate interest in this information. For example, if a pic-
ture of a soccer player is taken in a disco,82 in a waiting area of an
airport,83 on a beach,84 or in a restaurant,85 then the publication is law-
ful. If he/she is not famous, the test is more stringent. In principle, the
publication of the photograph should require previous authorisation if
the focus is on the person and not on the place or the event depicted.
It has been decided, for instance, that in a film it is unlawful to repro-
duce the picture of a married woman sitting next to a man other than
in an advertisement for the bicycles ‘Legnano’); Cass. sez. un. 31 Jan. 1959, Foro
it. 1959, I, 200 (the picture of a politician, taken during a public speech, was used
to advertise a drink); Trib. Roma 12 Mar. 2004, Danno e resp. 2005, 879 (use of the
photograph of a person taken during the 1994 World Cup in an advertisement);
Trib. Roma 23 May 2001, Dir. inf. 2001, 881 (a photograph of a soccer player –
Carolina Morace – reproduced on the front cover of a book about soccer); Trib. Roma
20 Nov. 1986, Temi rom. 1986, 696 (use of the photograph of a man who used to swim
in the river Tevere (Rome) every New Year’s Day).
81
It has been decided, for example, that the publication of a picture of two Italian
tourists – photographed in a disco in Brazil – in a report about prostitution in Rio
de Janeiro violates their personality rights (Trib. Roma 24 Jun. 1993, Dir. inf. 1993,
981). Similarly, it is unlawful to reproduce the likeness of a lawyer, filmed while
arguing a case in court, in a programme about the problems of Italian criminal
justice (App. Roma 30 Sep. 1974, Foro it. 1974, I, 2789; Cass., 5 Apr. 1978 no. 1557,
Giust. civ. 1978, I, 1256).
82
See Garante protezione dati, Newsletter, 5–11 Feb. 2001.
83
Trib. Napoli 19 May 1989, Dir. inf. 1990, 520 (the case refers to Diego Maradona).
84
Garante protezione dati, 11 Dec. 2000, in M. Paissan (ed.), Privacy e giornalismo, 247.
85
Garante protezione dati, 12 Mar. 1999, in M. Paissan (ed.), Privacy e giornalismo, 250.
her husband at a race course,86 or the picture of a man attending a

soccer match.87 If the picture does not specifically focus on the person
then publication is lawful even without consent; it is not unlawful to
publish the likeness of a man or woman filmed among the public at
a criminal trial.88 In conclusion, a balancing of interests is required.
It has to be judged, according to the principles of proportionality and
essentiality, whether the informative value of the publication would
justify an infringement of the person’s privacy.
From this perspective, the activity undertaken by the person por-
trayed in circumstance (b) is an element to be taken into consideration,
even though it is not decisive. It can be argued that the publication is
lawful if the person is carrying out an official function which is con-
nected to the place where the photograph is taken: a report on crimi-
nal trials justifies the reproduction of the likeness of a judge sitting
in court.89 Private activities, on the other hand, seem to be better pro-
tected; however, case law is not always consistent. It has been decided,
for example, that it is unlawful to publish the likeness of a woman
actually ‘at work’ on the streets of Rome in a television report on pros-
titution (although the principle of human dignity is involved here),90
while it is not a tort to reproduce the picture of a person dancing in a
club in an article about night life.91
This confi rms that a balance is always needed and only an evalu-
ation of the concrete circumstances of the case – taking the con-
stitutional ranking of values into account – can lead to acceptable
results.
The Netherlands
I. Operative rules
X does not have a claim against Sally if the picture is not published.
Under certain circumstances, publication is unlawful. If this is the
case, X can claim both an injunction and, if the publication has already
taken place, damages for economic and non-economic loss.
86
Pret. Roma 7 Feb. 1977, Giust. civ. 1977, I, 1061.
87
Cass. 15 Mar. 1986 no. 1763, Nuova giur. civ. comm. 1986, I, 726.
88
Trib. Roma, 6 Feb. 1993, Dir. inf. 1993, 961; but it is unlawful to retransmit the video.
89
On this matter, see V. Zeno-Zencovich, ‘Ripresa televisiva dell’udienza penale e
tutela della personalità’ Dir. inf. 1985, 983.
90
App. Roma 29 Nov. 1993, Dir. inf. 1994, 299.
91
Trib. Napoli 26 Jun. 2001, Dir. inf. 2001, 888; Trib. Firenze 16 Mar. 1998, AIDA 2000,
1072.

Dutch law does not recognise a general right not to be photographed
without consent. Whether or not it is unlawful to take a picture of
someone depends on the circumstances involved. An important factor
is whether the person pictured was in a public or a private situation. In
principle, it is not unlawful to take a picture of someone in public.92
Taking pictures is to be distinguished from publishing them. When
a picture is published or will be published, the right to privacy of the
person pictured (specified in Arts. 20 and 21 Auteurswet) has to be taken
into account.
Arts. 20 and 21 Auteurswet (Copyright Act) specify the right to pri-
vacy of the person portrayed. A representation of a person (pictured,
in clay, bronze, paint, pen, film, video) is a portrait if there is a resem-
blance between the representation and the facial features of this per-
son. Art. 20 Auteurswet does not apply since X did not request to be
photographed.
Art. 21 Auteurswet provides that the unconsented publication of a por-
trait of an individual is unlawful insofar as publication infringes a rea-
sonable interest of the person portrayed. The reasonable interest can
be related to one’s right to privacy and/or to one’s commercial inter-
ests.93 If the publication of the picture infringes a reasonable interest
of the person portrayed, it has to be held that the right to personality
has been infringed. This right has to be balanced with other inter-
ests, such as the right to free speech.94 The mere infringement of the
right to one’s personality is not as such decisive for the unlawfulness
of the publication. Nevertheless, in general, the right to one’s person-
ality outweighs the right to free speech. If this occurs the publication
is unlawful (Art. 6:162 BW ) for being a breach of a duty imposed by an
unwritten rule of law pertaining to proper social conduct.
The publication of nude pictures, pictures that have been taken in
an intimate situation, pictures where publication causes danger to the
person photographed, pictures taken in embarrassing situations or pic-
tures which are embarrassing themselves are not only rendered to be
an infringement of the reasonable interest of the person pictured but
also a severe infringement of that person’s right to personality.95
92
G. A. I. Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 138.
93
HR 19 Jan. 1979, NJ 1979, 383.
94
HR 21 Jan. 1994, NJ 1994, 473.
95
S. Lindenbergh, Smartengeld (Deventer: 1998) p. 169.
In this situation, the honour or reputation of the person portrayed is

impugned or his person is otherwise injured by publication of the pic-
ture. The person pictured can obtain damages for non-economic loss
under Art. 6:106 BW.
In relation to situation (a), in general, taking pictures in public is not
unlawful. It does not make a difference to the outcome whether X is
famous or is not.
In respect of situation (b), if X is in a public place it is not decisive
whether he is at work or attending his private affairs. The general rule
that it is not unlawful to take a picture continues to be applicable.
We have to take more considerations into account in respect of situ-
ation (c). If the picture is not published, under the given circumstances
there is no ground for unlawfulness and thus X does not have a claim
against Sally. If the picture has been/will be published, X’s right to
privacy, specified in Art. 21 Auteurswet, might apply if the picture is a
portrait. As mentioned above, a representation of a person (pictured,
in clay, bronze, paint, pen, film, video) is a portrait if there is a resem-
blance between the representation and the facial features of this per-
son. According to Art. 21 Auteurswet the publication of a portrait without
the consent of the person depicted is rendered to be an infringement
of his/her right to privacy. There is a reasonable interest to prevent the
picture from being published if the interest of the person portrayed
outweighs general interests such as free speech. In this respect, we are
concerned with the way in which the right to privacy and the right to
free speech have to be balanced in general.
Among the interests that are to be taken into account in favour of
the person portrayed are both morally based interests (such as when
a nude picture, a defamatory picture etc. is involved) and financial
interests.
Assuming that the snapshot is a portrait, unauthorised publication
is an infringement of X’s privacy. This interest has to be balanced
with other interests, most importantly with the general interest
to be informed about important facts. In this case, the picture has
been taken in a public place and no facts have been given about the
indecency of the picture. Even if X was attending his private affairs,
he can be assumed to know that there is a possibility he will be pho-
tographed. If this is the case, the protection of his privacy is not a rea-
sonable interest.
If X is famous, his interest could be of a financial nature. If Sally
profits from the publication, a reasonable interest is indeed concerned
because X could have shared in the profit if he had been asked for his
consent for the publication. In that case, the publication of the portrait
is unlawful. X can ask for an injunction to prevent Sally from publish-
ing the picture. If the picture has already been published, X can ask for
damages for economic loss. Since X is famous, the damage suffered can
consist of the profits that X himself would have derived from publica-
tion with his consent. If X’s person has been inflicted due to the pub-
lication of his photograph he can ask for damages for non-economic
harm (Art. 6:106 BW ).
Whether the publication is indeed an injury to his person depends
on the type of publication. Since famous persons have to accept that
they are public figures, the mere publication of a photograph of a
famous person is not necessarily an injury to his person. If, however,
the context in which the picture has been published is negative, the
publication can constitute an infringement of the personality of the
person portrayed and for that reason can be an unlawful act. If this is
the case, X can ask for both an injunction and, if the publication has
already taken place, for damages for economic and non-economic loss.
Portugal
I. Operative rules
X might have a claim for an injunction (recovering the photograph)
against Sally. The same applies to hypotheses (a) and (b). In situation
(c), however, if the photograph is published, X would have a claim for
damages and for an injunction (prohibiting the distribution of the pub-
lication) unless X is famous, has not expressed his opposition to the
taking of the picture and the publication does not harm his honour,
reputation or decorum in any way.

The right to image is expressly provided for in Art. 79 CC.96 It states
that the ‘portrait’ of a person shall not be displayed or made public
without his or her consent (para. 1). Para. 2 states that consent is not
necessary when the display is justified by a number of circumstances
set out by law: the notoriety of the person, his/her role or position,
a legal or police requirement, scientific, didactic or cultural aims, or
when the display is made within the context of public places or in the
public interest. Art. 79, para. 3 introduces an important limitation to
96
On the Portuguese discussion relating to the right to image, see Case 3.
the dispensation of consent, stating that the image may not be dis-
played if it results in damage to the honour, reputation or decorum of
the person displayed.
Notwithstanding the seemingly straightforward regulations there
have been controversial issues. The most spectacular case arose when a
tabloid published a photograph of a topless girl on a nudist beach close
to Lisbon on its front page. The girl sued and the tabloid defended itself
by invoking Art. 79(2) and stating that she had voluntarily ‘given pub-
licity’ to her own body and that the photograph had been taken in a
public place. The Court disagreed on the grounds of Art. 79(3), making
clear that there is a difference between being naked on a nudist beach
and being exhibited on the front page of a tabloid, and that although
the display of nudity on the beach was voluntary, this was not the case
in respect of the newspaper, and thus the honour and reputation and
the private decorum of the claimant was injured.97
While the Civil Code (Art. 79) prohibits the public display of an
image, it does not prevent the mere act of taking a photograph of
someone in a public place. In fact, Art. 79 CC only protects the right
to image when it is exposed, reproduced or commercialised. However,
we cannot deduce from this wording that taking photographs of third
persons in public places is lawful. Firstly, this is because it creates a
risk for the persons involved, mainly because nowadays it is so easy to
manipulate photographs. Secondly, one does not lose all one’s privacy
just because one is in a public place. Being photographed in a public
place may circumstantially invade the personal privacy of the person.
From a civil law point of view, even though not expressly provided in
a specific legal provision such as Art. 79, this is nonetheless covered by
the general clause of Art. 70, which protects all individuals from actual
injuries or threats to their physical or moral personality. Taking into
account that:
– a market place is a public place;
– the image of a person in a market place cannot, in principle, in any
way harm his or her honour, reputation or decency (Art. 79, no. 3, CC);
and
– that the Case does not mention any exposure, reproduction or
commercialisation
it would probably be difficult for X to succeed in any civil claim

against Sally. Nevertheless, although there has not been any court
97
STJ 24.05.1989; BMJ (Boletim do Ministério da Justiça), 387, 531.
decision enlarging the scope of the right to image based on Art.

70 CC alone, a court decision could move in this very direction.
However, such a decision should be well justified by the judge. A
way of justifying such a claim would be to resort to the aforemen-
tioned ‘crossed interpretation’, based on the principle of the unity
of law (see Case 3). If Art. 199, no. 2, para. (a) CP states that photo-
graphing someone against his or her will, even in events where that
person legitimately participated, is a crime (no matter whether the
image is used or not), then it would be coherent to interpret Arts. 70
and 79 CC as also restricting the collection of persons’ images and
allowing for a civil claim. As long as this possibility is not tested in
court, we cannot tell if it reflects the Portuguese legal stance on this
issue. In any case, we cannot forget that the only claim at stake here
would be the recovery of the picture, not receiving compensation,
since there is no foreseeable (at least relevant) loss in the mere snap-
shot (Art. 483 CC).
The fact that X is famous (hypothesis (a)) may, in accordance with
Art. 79 (2), waive the need for the consent of the person photographed
if the photograph is not displayed afterwards in a manner that dam-
ages his honour, reputation or decorum.
Specifically relating to hypothesis (b), being at work might reduce
the scope of protection of the person’s right to image, since the work
environment can be considered to belong, depending on the situation,
to that person’s public sphere (or at least is more public than ‘attending
to his private affairs’).
Whether or not the photograph is published (hypothesis (c)) is
of central importance, as previously explained. If the image is pub-
lished, the risk of harming that person’s honour or decency increases
considerably.
Scotland
I. Operative rules
X does not have a claim against the public use of the photograph unless
a separate cogent argument can be made as to why privacy should be
conceded.

The classical approach to ‘privacy’ within the public sphere before the
implementation of the HRA, at least in England, was explained in the
case of Sports and General Press Agency v. Publishing Company:98 ‘no per-
son possesses a right of preventing another person photographing him
anymore than he has a right of preventing another person giving a
description of him’.
Being present in a public place does not normally exclude a photog-
rapher from taking photographs: it merely limits what can be done
with them thereafter. The immediate question of whether Scots law
protects the privacy of those photographed while moving freely in pub-
lic now requires examination in the light of both the HRA and the
developing concept of privacy. Although privacy itself can be seen as
relative to the concept of freedom of expression, case law is not par-
ticularly useful to the situation at hand.
‘There must be some interest of a private nature which the claim-
ant wishes to protect, but usually the answer to the question whether
there exists a private interest worthy of protection will be obvious.’99
There is little helpful authority under the HRA on this particular
question as the authority relates to well-known people100 and not the
ordinary citizen. Even in this authority, very particular circumstances
involving the processing of personal data, which is a matter of impor-
tance to journalists and data controllers alike, have surrounded the
cases.101 The public interest argument is also not likely to be useful in
this instance. There is no Scots authority equivalent to the Canadian
Supreme Court decision in which damages were awarded to a teenage
girl, photographed while sitting in public.102 The Canadian provinces
all have separate charters or acts on privacy, thus reducing the absolute
character of freedom of expression and creating a statutory right to
privacy.103
‘It is also recognised that the photographer is exempt from liabil-
ity as are those who publish the photograph, when an individual’s
own action, albeit unwitting, accidentally places him or her in the
98
[1916] 2 KB 880.
99
A v. B&C [2002] EWCA Civ 337; [2002] 2 All ER 545 per Lord Woolf, CJ at para. 11(vii).
100
See the recent privacy case of Sara Cox v. People, 7 Jun. 2003, High Court
(unrep.): out of court settlement of £50,000 for the publication of an unauthorised
naked photograph of the plaintiff (BBC Radio 1 DJ during honeymoon); see www.
mediaguardian.co.uk.
101
Campbell v. MGN [2002] EWHC 499 (QB) (HL); Theakston v. MGN Ltd. [2002] EWHC 137;
A v. B&C.
102
Les Éditions Vice-Versa v. Aubry [1998] 1 SCR 591.
103
See Calcutt Report, Committee on Privacy and related matters, Cm 1102, Jun. 1990,
Appendix D and E.
photograph in an accidental manner. In such a case … the person

“snapped up without warning” cannot complain.’104
The situation at hand does not fall within the category of private or
even commissioned photographs. In the latter case, the photographer’s
breach of copyright or possibly even breach of confidence105 will be
held in cases where the photograph suddenly lands in the hands of the
press.106 In such cases, the victim of a private or commissioned photo-
graph may at least rely on his/her moral rights under s. 85 Copyright
Act 1988 and sue for damages for breach of moral rights.
In assessing the rights and remedies under the HRA, a court is
required to take the Press Code provisions on privacy into considera-
tion.107 The Code itself only addresses the matter of photographs in pub-
lic where these are people who have a reasonable expectation of privacy.108
The English Court of Appeal decisions were founded on their own
very specific facts: one decision concerned Naomi Campbell, whose
photograph was taken while emerging from a dependency therapy
clinic;109 another decision related to the private wedding of Michael
Douglas and Catherine Zeta Jones,110 where unauthorised photographs
were published even though the couple had exclusively licensed the
wedding photographs to a particular photographer. In the Campbell
decision, the privacy of information was recognised;111 in the Douglas
decision, a different type of privacy was involved. This related to pub-
lication of unauthorised photographs taken by an intruder (taking
advantage of what was a private situation and selling these on to the
magazine Hello!). Nevertheless, the Court of Appeal discharged a High
Court interim injunction against publication on the balance of interests,
104
Quoted in A v. B&C.
105
The Copyright Act 1988 applies to both Scotland and England and has now
preserved privacy in domestic photography to the extent that copyright belongs to
the photographer.
106
Williams v. Settle (1960) 1 WLR 1072.
107
S. 12(4) (b) HRA 1998.
108
See Press Code: Privacy: (ii) the use of long lens photography to take pictures of
people in private places without their consent is unacceptable. In Sara Cox v. People
the plaintiff complained to the Press Complaints Commission and the People were
required to print an apology thereafter. The decision to sue was based on the
plaintiff’s view that the 63 word apology was insufficient recompense for the hurt
suffered.
109
Campbell v. MGN.
110
Douglas v. Hello! [2001] QB 967, [2003] EWCA Civ 139; ibid [2005] EWCA Civ 595
(House of Lords).
111
Morland J in Campbell v. MGN (High Court) at para. 166.
particularly on the basis of costs to Hello! in having to cancel one week’s

circulation. The Court referred to the couple’s clear right to choose
which photographs were to be made public (and hence privacy in their
selection of the photographs to be published). Under considerations of
proportionality, the remedy was deemed to be damages and not a con-
tinuing injunction.
‘The more intimate the aspect of private life interfered with, the
more serious must be the reasons for interference before the latter can
be legitimate.’112
The approach of the UK courts is nevertheless based on the premise
that there should be no interference with publication. Regardless of
what material is to be published, the court should prima facie not inter-
fere with its publication. S. 12(3) HRA requires the court to have regard
to the likelihood (i.e. chance of success in trial) of publication being
restrained before granting summary relief. S. 12(4) further requires
the court to have regard to the importance of freedom of expression
itself before making any injunctions or interdicts.
The question therefore turns to the nature of privacy under Art. 8
ECHR in relation to private figures. As long as privacy is not seen as an
absolute right, the authorities have not supported an application by the
person photographed to date. Any floodgate of applications to prevent
publication of ‘public’ photographs of individuals can only be met by
a decision made on the merits of each individual case. The current
authorities do not conclusively support a remedy in this case.113
In relation to Scots law,114 whether or not the HRA, in conjunction
with the Scots law of privacy based on iniuria, gives weight to the pre-
vention of a member of the public photographing another member of
the public can only be surmised. If the person is unknown and simply
carrying on with normal life, there appears to be no claim, not even
under the ECHR.
The only other possible head of claim would be for breach of statu-
tory duty under the Data Protection Act 1998 for failure to process data
information properly. This action would only lie against a journalist or
publisher. In Campbell v. MGN at first instance, Justice Morland awarded
Naomi Campbell £2,500 damages for breach of confidence and £1,000
112
Keene L. J in Douglas v. Hello! [2001] QB 967 at 1011–12, para 168; Sara Cox v. People.
113
See A v. B&C at para. 11 (vii): ‘… the weaker the claim for privacy, the more likely
that the claim for privacy will be outweighed by the claim based on freedom of
expression’, per Lord Woolf, CJ.
114
McKie v. Orr [2003] ScotsCS 40, 28 Feb. 2003, per Lord Emslie.
compensation under the Data Protection Act. Data subjects have a right
under s. 7(1) of the Act to be informed about which data is being proc-
essed. Under s. 13(1) an individual can also be compensated for breach
of statutory duty where a data controller fails to comply with the Act.
S. 32 of the Act provides an exemption from the data protection rules
but only for specific categories of journalism and library work. The
purpose of these provisions is to limit the ability of data subjects to
invoke statutory rights to impede publication.115
The House of Lords in Naomi Campbell has left the issue open regarding
the legality of publishing a photograph of a well-known individual
taken in public which, in the context of a press report relating to con-
fidential information, might be seen to constitute an invasion of pri-
vacy. Given that the decision relates to a public figure and not a private
figure, the decision is circumspect in relation to ordinary citizens.
Spain
I. Operative rules
If X is a private person he will have a claim against Sally whether or
not the photograph is published. If X is a famous person he will only
have a claim against Sally if he is attending to his private affairs when
photographed.

The right to one’s own image is a personality right recognised as an
autonomous right with its own specific content, different to that of
personal and familial privacy. The right to one’s own image is pro-
tected by Art. 18.1 of the Constitution, and limited by Art. 20 of the
Constitution, especially by the right to freely communicate informa-
tion when a public interest exists in publishing the image. It is abso-
lutely vital that these issues are decided on a case-by-case basis.
The constitutional regulation of the right to image is realised through
Arts. 7.5116 and 8.2 LO 1/1982.117
115
See I. J. Lloyd, Information Technology Law (3rd edn., London: 2000) p. 172.
116
Art. 7.5 reads: ‘The following will be considered an illegitimate interference with the
right to honour, privacy and image: (…) the capturing, reproduction or publishing of
pictures, films, or by any other means, the image of people in places, or moments,
whether in their private or public life, except what is mentioned in Art. 8.2’.
117
Art. 8.2 reads: ‘In particular, the right to one’s own image will not impede: the
capture, reproduction or publication by any media when the person is a public
Spanish case law has defined the right to image as a personality

right, derived from human dignity, the function of which is to protect
the moral dimension of persons, entitling the holder:
(i) to decide which graphic information generated by his/her physical
features can be publicly distributed; and
(ii) to prevent the taking, reproduction or publishing of his/her image
by an unauthorised party, whatever this third party’s purpose is (be
it informational, commercial, scientific, or cultural).118
Thus, there are two dimensions: a positive version which entitles the
holder to expressly control the economic exploitation of his/her image;
and a negative version, which entitles the holder to prevent the unau-
thorised use of his/her image.
Spanish case law has set out that consent to be photographed must
not be confused with the consent to publish these pictures.119 In the
same sense, some decisions have reasoned that publishing images
of public persons when these images are totally unconnected to the
position of the public person could be considered an illegitimate
interference, but this is a doctrine which has not completely been
standardised.
If X is a private person and did not give his consent to be photo-
graphed and the picture is published, X has an action against Sally and
the media and can claim for an injunction and damages.120 If the pic-
ture is not published, X has an action against Sally in order to recover
the picture and can also claim for damages, although it is improbable
that X will succeed. Whether X was at work or attending his private
officer practicing public work or a famous or public person and the image is
captured during a public meeting or act or in a place open to the public, the use of
caricature of these persons, according to the social customs, graphic information
about a public event when the image of a certain person is merely incidental. The
exceptions mentioned in paragraphs (a) and (b) do not apply to officials or people
whose work is of a nature that requires anonymity for this person.’
118
STC, 26 Mar. 2001, 81/2001.
119
STS, 1st chamber, 3 Nov. 1988.
120
See STS, 7 Oct. 1996 (RJ. 7058): a photographer took several pictures of a family on
the street. The photographer provided the City Hall with those pictures to illustrate
a public campaign for the ‘respect of the elderly’. The family sued the photographer
and the City Hall for illegitimate use of their image. The Supreme Court rejected the
appeal filed by the defendants. The Supreme Court considered that the cultural and
public interest that guided the public campaign could not prevail over the claimants’
right to honour. The right to one’s own image included the exclusive right to consent
on its taking, manipulation and reproduction. This right did not dissipate because
these were not public persons and the pictures were taken on the street.
affairs is irrelevant, unless X is a civil servant or has a position in pub-

lic life.121
If X is a famous person and did not give his consent to be photo-
graphed but the picture was taken at work and was published, he has
no action against Sally.122 On the contrary, if the picture was taken
when the famous person was attending to his private affairs, X is
allowed to file a civil action against Sally and the newspaper/magazine
asking for an injunction and damages.123 If the picture is not published,
X does not have an action against Sally.
According to Spanish Law, the Copyright Act (Ley 23/2006, de
Propiedad Intelectual) is not applicable in this case. Copyright only pro-
tects the work of an author or artist. The protection does not include
photographs taken without the consent of the depicted person. The
Copyright Act only protects the photographer and the professional, or
at least the intended, model.
Switzerland
I. Operative rules
Whether or not taking someone’s picture is unlawful depends on the
circumstances to a large degree. In a public market place, without any
121
STS, 25 Oct. 2000 (RJ. 8486), several newspapers and tabloid magazines published
pictures of a policewoman as a result of an incident involving two policemen
with whom she had had a relationship. Along with pictures of the policewoman
taken on the street while she was wearing the police uniform, other pictures
were published where she participated in beauty contests. A public television
network broadcasted the news (TVE). The policewoman sued the newspapers,
tabloid magazines, their directors and editors, as well as TVE, seeking an award
for damages of 565.000.000 pesetas (pts). The Court of First Instance and the Court
of Appeal dismissed the claim. The Supreme Court rejected the appeal. The taking
of the pictures was allowed in both cases; in the first case, the pictures relating to
the beauty contests were allowed because they were taken at a public event, and in
the second case, the pictures were of a civil servant or a public person engaged in a
profession with a public projection.
122
See, however, STS, 19 Mar. 1996 (RJ. 2371), where a professional model sued a
photographer to whom she had entrusted a portfolio for marketing purposes.
The photographer sold one of the pictures to an editorial without the model’s
permission for 5.000 pts. The editorial used the picture on a book cover. The Court
of First Instance ordered the photographer and another unidentified defendant
(most probably the editorial company) to pay 350.000 pts. The Court of Appeal and
the Supreme Court confirmed this ruling. The Supreme Court considered that
intellectual property had a limit on the right to honour. Although it was admissible
to take and reproduce pictures of a public person for informative purposes, benefit
from this use without the express permission of the model was not allowed.
123
STS, 22 Mar. 2001 (RJ. 4751), a tabloid magazine published pictures of a famous
person without her permission. In those pictures she appeared trying on a bikini
refusal from the person captured on film, the picture taken does not
automatically constitute an unlawful infringement of the person’s
rights.

The right to one’s image constitutes an aspect of the personality
rights protected under Art. 28, para. 1 CC. As such, an image cannot,
in principle, be reproduced by drawing, painting, photography, or
any comparable process without the consent of the individual; more-
over, such reproduction may not be distributed without this person’s
consent.124
With respect to the hypotheses discussed, it should be noted that
the protection afforded to the individual depends on the sphere in
which he or she fi nds him or herself. Three different spheres are
usually distinguished. First, the secret or intimate sphere encom-
passes facts that are not accessible to others unless physical or psy-
chological boundaries have been crossed; it also covers facts that the
individual concerned wants to keep to him or herself or that he or
she does not want to share outside a small circle of confidants. As
a result, the secret sphere is made up of any facts that are strictly
personal and that are generally kept from others. Secondly, the pri-
vate sphere concerns all the facts and events that do not take place
in public, but that may be known by people who are relatively close
to the individual. Finally, the public sphere encompasses facts that
are accessible to everyone. Art. 28 CC gives protection to information
included in either the intimate or private spheres, but not to publicly
known facts, at least in principle.
As for situation (a), X’s consent is presumed and the picture is there-
fore not unlawful unless X expresses his refusal.125
If X is a well-known figure (actor, politician, etc.), there will be a legal
justification as long as the picture was taken in the context of X’s public
activity (Art. 13a, para. 2(f) Legge federale sulla protezione dei dati – LPD). In
in a shopping mall. She sued the editorial company, the photographer and ‘Europa
Press, S.A.’ seeking damages and the publication of the fi nal judgment in the
magazine. The Court of First Instance and the Court of Appeal ruled in favour of
the claimant. The Supreme Court rejected the appeal since it considered that the
article infringed the right to the claimant’s own image and her right to privacy.
The taking of pictures of a public person without their permission for purely
commercial purposes is not allowed if they have not given their permission.
124
RVJ 2003, p. 252 c. 4a.
125
P. Tercier, Le nouveau droit de la personnalité (Zurich: 1984) n. 472.
fact, a defence exists regarding the public’s interest in being informed

about public figures. There will be an unlawful infringement if X did
not intend to attract attention and actually wanted to avoid media
attention. Activities with this intention, even those exercised in pub-
lic, belong to the private sphere.
In respect of situation (b), photographing a person at his or her
workplace invades his or her private sphere.126 Even though work
generally takes place in an accessible area, access is only granted
to a certain group of people. This is all the more so if the person
is engaged in personal business. Such activities belong to the pri-
vate or even intimate sphere of the person concerned. The Federal
Court has held that photographing a person in front of the door of
his or her house constitutes an unlawful infringement.127 In both
hypotheses, compensatory and injunctive relief will be available to
the individual.
In relation to situation (c), agreeing to have one’s picture taken does
not mean agreeing to the publication of the picture. Unauthorised
publication is unlawful within the meaning of Art. 28 CC.128 The
same idea also applies where the photograph is used for a differ-
ent purpose or under different conditions than those understood
and authorised by the individual at the outset. Thus, a person who
consents to pose for a photograph to commemorate a family event
does not thereby authorise the commercial use of his or her image.129
Furthermore, a person who poses for an photograph to be used in
a leaflet does not thereby authorise the use of the photograph on a
billboard.130
Where an unlawful infringement of the right to image is established,
compensatory and injunctive relief will be available.
Comparative remarks
This case raises the question of whether and to what extent individ-
uals have the right not to be photographed in public places, and to
126
T. Legler, Vie privée, image volée: la protection de la personnalité contre les prises de vues
(Berne: 1997) p. 115. According to this author, professional relationships belong to
the private sphere.
127
ATF/BGE 118 IV 41 c. 3.
128
ATF/BGE 127 III 481 c. a/aa, JdT 2002 I 426 (‘Minelli’); ATF/BGE 70 II 130; RSJ
1912/1913 241.
129
B1ZR 43, p. 1944 n. 46.
130
Judgment of the Obergericht of the area of Zurich, in: SJZ 71 (1975), p. 28.
take action against the use – in particular the publication – of those

photographs. If a picture is published, the personality interests of the
person portrayed come into conflict with the professional freedom of
the photographer and (possibly) the freedom of the press. These inter-
ests are to be balanced against each other. The result of this balancing
may lead to different results according to the notoriety of the person
portrayed or the fact that he/she was photographed while attending a
professional or a private activity.
I. Legal bases
Many private law systems conceive this case in terms of a ‘right to
one’s image’. In the majority of the continental European legal systems
considered, a right to one’s image is expressly or implicitly regulated
by statute and finds considerable attention in both jurisprudence and
academic literature.
In Italy and Portugal, a subjective right to one’s own image is expressly
laid down in the Civil Code. In Austria, Belgium, Germany, Italy and
the Netherlands, a statutory regulation of the use of one’s image is
provided for in the Copyright Acts or other special legislation. Unlike
the other countries, in the Netherlands, courts and scholars seem to
avoid speaking of a ‘right to one’s image’: they simply refer to privacy
and personality rights.
In many countries, the right to one’s image was born as a pre-
constitutional subjective right, but then over the course of time it
gained a constitutional dimension. In Spain, both the Constitution
(Art. 18) and a special statute (Ley Organica) of 1982 expressly protect
the ‘fundamental right to honour, privacy and image’. In Germany,
Switzerland, Italy and Greece, the (statutory) right to one’s image
is also embedded in the general constitutional guarantees of the
personality.
A right to one’s image is neither acknowledged in England, Scotland
and Ireland, nor in Finland. In the UK and Ireland, the present case is
dealt with under the equitable doctrine of breach of confidence (pri-
vacy). In Finland, protection against the taking or use of an individu-
al’s photograph is only granted within the narrow scope of the crimes
of defamation and disclosure of private information under the Penal
Code, or when a person’s image has been commercially exploited. In
the latter situation, Finnish courts and scholars acknowledge the viola-
tion of a right existing without a special legal provision, which entitles
its holder to sue the wrongdoer in tort.
In Italy, Switzerland, England and Scotland, a further legal basis

referred to in this case is data protection law. A person’s image can be
seen as personal data and its photographic reproduction as a processing
thereof. In Italy, England and Scotland, data protection law and copy-
right law appear to be conflicting legal formants which cause some
uncertainty in the solution of this case, as will be explained below.
To assess the lawfulness of Sally’s conduct in the legal systems con-
sidered, a first distinction is to be made between the mere taking of a
photograph and the dissemination thereof.
II. Taking of photographs

In most legal systems considered there is no specific regulation con-
cerning the mere taking of a photograph. The legal criteria governing
this area are to be logically deduced from the rules governing the use
(in particular, the publication) of a person’s image, laid down for exam-
ple in the Copyright Acts.
1. First model: No taking of photographs without consent

In France, Germany, Greece, Spain and Switzerland, the taking of an
individual’s photograph without his/her consent is considered a viola-
tion of his/her right to image or general personality right. This quali-
fies Sally’s taking of a picture as unlawful, unless a specific justification
applies. Such a justification may be based on the person’s notoriety (see
IV. below), the public or professional nature of the activity attended by
the person photographed (see V. below) or the publicity of the premises
where the photograph has been made (see 2. below). Where these cir-
cumstances allow the unauthorised publication of photographs (see III.
below), they also allow the taking of photographs without the consent
of the person portrayed.
2. Second model: Photographs can be taken in public places without consent

Under Austrian, Belgian, Dutch, Finnish, Italian, Portuguese, English,
Scots and Irish law, a person can, in principle, be photographed in a
public place without his/her consent. No distinction is made in this
regard between famous and non-famous persons.
The principle of being photographed in a public place without
consent may be subject to exceptions regarding the special circum-
stances under which the photograph has been taken. In Finland, Sally
would only act wrongfully if the requirements of the crime of def-
amation are met. This would be the case, for example, if someone
is photographed under ‘humiliating or awkward circumstances’, for

example being drunk and sleeping in the street. The results will be
similar in the Netherlands and Portugal, although coming from a dif-
ferent legal standpoint. In these countries, the taking of a photograph
could be considered a violation of personality rights under exceptional
circumstances.
In England, Scotland and Ireland, established case law does not prevent
the mere taking of a person’s photograph in a public place. Photographs
seem to be treated differently to films. In an English case where a per-
son had secretly filmed another person, the judge found a breach of
confidence on the ground that it was not open to those who were sub-
ject of the filming to take any action to prevent it.131 However, it is dif-
ficult to understand why the same reasoning should not be extended
to the taking of photographs. It is also arguable that the traditional
English approach to photographs of persons taken in public places prob-
ably does not comply with the Human Rights Act. At least in cases of
harassment by the photographer in the sense of the Code of Practice
of the Press Complaints Commission (clause no. 4), the taking of the
photograph could hardly be deemed lawful. Furthermore, according to
the Data Protection Act 1998, the person photographed has a right to be
informed about which pictures or data are being processed. Exemption
from the data protection rules is only provided for specific categories
of journalism and library work. On the facts of this case, none of these
exceptions applies, thus Sally could be considered in breach of a statu-
tory duty because she failed to process X’s data properly.
In addition, in Italy, the Data Protection Code seems to bar the tak-
ing of photographs without the authorisation of the person portrayed.
The processing of personal data always requires a person’s consent.
Exemptions are only provided for journalists, or for data gathered by
a natural person in the course of a purely personal activity. The latter
exemption may apply to Sally. However, traditionally, Italian courts have
dealt with cases of this kind not in terms of data protection law but in
terms of copyright law. The Italian Copyright Act 1941 only prohibits the
dissemination of the photograph not the taking thereof as such.
3. Interim account
To summarise, the mere taking of a photograph of X in public would be
allowed in Austria, Belgium, Finland, Italy, the Netherlands, Portugal
131
R. v. William Loveridge and Others [2001] 2 Cr App R 29, 591 at 599, per Lord Woolf.
and under English, Scots and Irish law. In this regard, it is irrelevant
whether X is famous or not. On the contrary, in France, Germany,
Greece, Spain, Switzerland (and possibly under the English Data
Protection Act), the taking of X’s photograph is in principle unlawful.
Exceptions may be made if X is a celebrity or he is attending a profes-
sional activity.
III. Publication of photographs

With regard to the publication of photographs of an individual taken
with or without his/her consent, a distinction can be made between
three models: the European continental civil law, the common law and
the Nordic law.
1. The continental European model

The continental European model focuses on the principle of consent.
A person’s image can only be published with his/her authorisation,
unless a specific justification applies. A first question may be raised
concerning what ‘a person’s image’ is. A distinction is commonly made
between pictures actually focusing on a person and topical portraits,
i.e. pictures of places or events not focusing on the individual persons
who happen to be there. In general, the principle of necessary consent
only applies to pictures focusing on a specific person. French case law
has sometimes followed a stricter rule: when persons occasionally pho-
tographed in topical portraits are identifiable, their consent will also
be necessary. A similar rule seems to be followed in the Netherlands,
where a person’s photograph is considered a portrait in the sense of the
Copyright Act if the facial features are recognisable.
In relation to the patterns of solution of the present case, the conti-
nental European private laws may be divided in two main groups:
(a) In Belgium and France, neither personality rights nor specific statu-
tory exemptions seem to govern this case. The Belgian Copyright
Act of 1994 simply prohibits the reproduction and publication of a
person’s image without his/her express consent. The absoluteness of
this rule is softened by case law regarding presumptions. In particu-
lar, the consent of persons photographed in public places will always
be presumed. In French case law, the ‘incidental position’ of the
portrayed person in the picture, his/her public function or notoriety,
his/her being photographed in a public place, attending a profes-
sional activity, etc. are circumstances which may justify publication
without the person’s consent, but only if these occur cumulatively.
None of these criteria alone will be sufficient.
(b) In Austria, Germany, Greece, Italy, the Netherlands, Portugal,

Spain and Switzerland, personality rights and/or special statutory
provisions play a decisive role in the solution of this case. Within
this group of countries, a distinction can be made between three
models.
In Germany, Italy, Portugal, Spain and Switzerland, specific statu-

tory exemptions to the principle of necessary consent are provided in
the Civil Code (Portugal), in Copyright Acts (Germany and Italy), in
Data Protection Acts or Codes (Italy and Switzerland) or in other spe-
cial statutes (Spain). These provisions allow publication without the
consent of the person portrayed in consideration of his/her notoriety
and social position, his/her presence in a public place, his/her involve-
ment in facts of public interest, or other reasons, for example of polic-
ing, administration of justice, science, culture and education. However,
if one of these exemptions applies, this does not automatically make
an unauthorised publication licit. Even if these requirements are met,
a publication may be deemed unlawful on the grounds of violation of
personality rights, in particular the right to privacy. Thus, a balanc-
ing between personality rights and the public interest will always be
needed.
Furthermore, in Austria and in the Netherlands, this case will
be solved by a personality rights-based balancing embedded in the
interpretation of Copyrights Acts. However, the Austrian and Dutch
Copyright Acts follow a significantly different pattern than those
in Germany and Italy. They are based on general clauses declaring
that the use of a person’s portrait without his/her consent is unlaw-
ful when it infringes his/her ‘reasonable’ or ‘legitimate interests’.
In Austria, this requirement is met in cases of violation of privacy
and other personality interests, unless the latter are outweighed by
confl icting interests such as free speech or the right to be informed.
In the Netherlands, the scope of personality protection is nar-
rower: photographs taken in public places may always be published
unless they are indecent or harmful to the honour or safety of the
person portrayed.
In Greece there is no detailed statutory regulation of the use of one’s
image. However, the Greek solution to this case very much resembles
the common pattern outlined above: The publication of a person’s photo-
graph without his/her consent constitutes a violation of his/her personal-
ity right, which has to be balanced against freedom of the press and the
public interest, taking all the circumstances of the case into account.
2. The common law model

According to the traditional common law approach there is no right to
prevent the reproduction and publication of photographs in which one
does not own the copyright. However, the Human Rights Act requires the
protection of privacy interests and case law in both England and Scotland
pursues this protection through the equitable doctrine of breach of confi-
dence. The principle has been established that even in public places there
may be a reasonable expectation of privacy. A balance is to be struck
between privacy and freedom of expression taking all the circumstances
of the case into account, in particular the public interest in the photo-
graphic information. The more intimate the aspect of private life inter-
fered with, the more serious the reason for interference must be before
the personal information can be brought to the attention of the general
public.
Despite the existence of a constitutional right to privacy in Ireland,
traditionally the regulation of this area has mirrored developments
in the UK. However, the introduction of the European Convention on
Human Rights Act in 2003 might lead to an expansion of the scope of
the right to privacy to encompass the reproduction and publication of
photographs in circumstances similar to the case before us.
3. The Nordic model

The perspective of the Nordic countries such as Finland is strongly
focused on criminal law. In this case, tort liability only arises when the
publication of the photographs meets the requirements of the crime of
defamation. Otherwise, pictures taken in public places can always be
published without the consent of the persons portrayed.
IV. Notoriety of the photographed person

In all legal systems considered, celebrities or other public persons enjoy
less protection than ordinary citizens. This is due to the greater public
interest in information about protagonists of public life.
In Germany, Italy, Portugal, Spain and Switzerland, the position of
the portrayed person in public life finds express consideration in the
above-mentioned statutes regulating the use of one’s image, as a rea-
son for exemption from the consent requirement. In Germany, start-
ing from an interpretation of the notion of ‘situations of contemporary
history’ (§ 23 Artists’ Copyright Act 1907), scholars and courts have
developed the concepts of ‘absolute’ and ‘relative persons of contempor-
ary history’.
All legal systems under scrutiny acknowledge that even a person

who constantly puts themselves in the public spotlight should be enti-
tled to legal remedies against the publication of photographs which
violate his/her privacy (see II.1.) or seriously damage his/her honour
and reputation. This is the absolute minimum of personality protec-
tion. In Finland, protection against the dissemination of photographs
of celebrities taken in public ends here. Most countries go a step fur-
ther and bar at least the publication of pictures which are embarrass-
ing, indecent or concern a person’s most intimate sphere (e.g. nude
photographs). In Germany, the Netherlands and Portugal, the protec-
tion of notorious persons in public ends here. In the end, a common
core may coincide with the recent outcomes of the English case law
on privacy: even public figures shall be protected in situations where
there is a reasonable expectation of privacy, no matter whether the
photographs are taken in the private sphere or in public places.
The question most relevant in practice is to what extent the public
interest in information on celebrities justifies the publication of pho-
tographs taken of their private and family life outside their home. In
the light of the ECtHR judgment in the von Hannover case,132 it should
be questioned how far the traditional approaches of the legal systems
considered conform to Art. 8 ECHR. Both issues will be dealt with in
Case 8.
V. Persons photographed at work or attending private affairs

In many countries, the outcome of this case may vary according to
whether X is photographed at work or attending his private affairs.
In general, less protection is accorded to the former situation. In most
countries, the mere fact that X is photographed at work will not alone
justify publication. It is just one of the elements relevant for the bal-
ancing of conflicting interests.
Under Spanish law, the taking and publishing of photographs from
X’s private life is normally unlawful. Photographs of X at work will
always be allowed where X is a civil servant or public figure only. In
Switzerland, photographing a person at his or her workplace will be
considered an invasion in this person’s private sphere, which is in prin-
ciple unlawful.
In other countries, the solution is less clear-cut. In Germany and
Italy, if X exercises an official function connected with the public place
132
Von Hannover v. Germany (2005) 40 EHRR 1.
where he is photographed (e.g. a palace guard), the taking and publica-

tion of photographs may be allowed even when the pictures specifi-
cally focus on X. In Germany, this result is based on the assumption of
the tacit consent of the person photographed. This tacit consent how-
ever will not legitimate commercial publication of the photograph.
(The problems of commercial exploitation of one’s image will be dealt
with in Case 10.)
Under current Irish law, it would not make much difference whether
X is photographed at work or attending private affairs. In both situa-
tions, X will probably not have any claim, neither under the doctrine of
breach of confidence nor under copyright law. Time will tell whether
the European Convention on Human Rights Act 2003 will encourage
Irish courts and legislature to develop privacy protection in a similar
manner to that of the ECtHR in the von Hannover case.
VI. Remedies
If Sally’s taking of the picture is deemed unlawful, in all legal systems
considered X will be able to claim both damages and injunction.
Damages will be mostly for both pecuniary and non-pecuniary loss. In
Greece, only non-pecuniary losses are recoverable. In the Netherlands,
the amount of pecuniary damages coincides with the profits earned by
Sally from the publication.
In England and Scotland, X can claim damages both under the law of
confidence and under the Data Protection Act: the awards will be cumu-
lated. An injunction against publication will not be readily granted.
In Finland, an unusual system of remedies is provided for in situ-
ations where X is photographed at work and the picture is used for
commercial purposes. These cases are regulated by the Finnish Act
on Unfair Business Practices. In such situations, X can claim for an
injunction before the Finnish Market Court, but he can sue for dam-
ages before the ordinary civil courts. Pure economic loss is only recov-
erable if there are ‘especially weighty reasons for compensation’.
11 Case 8: A paparazzo’s telephoto lens
Case
With a strong telephoto lens, a paparazzo took a photograph of a famous
princess, sitting in the garden of her private villa together with her
new lover and her little son. The picture was published on the cover of
a tabloid, under the heading: ‘The Princess’ New Family’.
(a) Can the princess skim off the profits that the magazine earned due
to the publication of her photograph? If yes, is the magazine under a
duty to disclose the necessary information?
(b) Would it make a difference if the princess was not sitting at home,
but in the back garden of a countryside restaurant?
Discussions
Austria
I. Operative rules
Taking a photograph with a strong telephoto lens could qualify as an
intrusion into the princess’ right to privacy and intimacy, which may
entitle the princess to sue the paparazzo for the forbearance of the fur-
ther taking of photographs, destruction of the negatives and compensa-
tion of damage. She may also sue the owner/publisher of the magazine for
damages, but this will not include skimming off the magazine’s profit.

The OGH pointed out in the ‘Vranitzky case’ that even public figures
have a right to privacy and intimacy.1 The princess sitting in the garden
1
OGH MR 1997, 28; cf. also Cases 1 and 7.
317
318 personality rights in european tort law
of her private villa (situation (a)) or in the back garden of a country-

side restaurant (situation (b)) with her new lover and her little son are
both private acts. Consequently, the cover photograph is a sufficient
intrusion per se. This follows from the ECtHR’s ruling in the case of von
Hannover v. Germany.2
Where there is fault, economic loss would be compensated under
§ 1295 ABGB or § 87, subs. 1 UrhG. A claim for compensation of non-
economic loss against the owner/publisher could be (independent of
any culpable behaviour) based on § 7 MedienG or (as a fault-based claim)
on § 87, subs. 2 UrhG; according to the OGH, the latter provision applies
in cases of severe intrusion only.3
The paparazzo’s actions are also unlawful. Taking photographs with
a special telephoto lens in intimate situations is an invasive act con-
fl icting with the princess’ right to privacy pursuant to § 1328a ABGB4
or pursuant to Art. 8 ECHR in connection with § 16 ABGB. In addition,
one has to bear in mind that the paparazzi earn a lot of money for pho-
tographs of this kind. As Koziol recently argued, the defendant’s profits
are not only subject to skimming off (‘Gewinnabschöpfungen’),5 but may
also contribute to the determination of the scope of tortious liability
and the recoverability of losses. The higher the defendant’s profits, the
more extensive his responsibility is.6
Both elements together, namely the offensive way in which the
paparazzo took the photograph in question and his profits, may be suf-
ficient grounds to constitute the tort of intrusion into the princess’
right of privacy.
There is no court judgment in Austria establishing a claimant’s right
to skim off the profits of newspapers or magazines as, for example, under
German or English law. Skimming off profits under Austrian law would
presumably be a question of unjust enrichment and not one of torts.7
2
ECtHR MR 2004, 246 et seq.; cf. also Case 7.
3
See Case 7.
4
This provision can only be applied to the taking of the picture, but not to the
publication in the magazine (see § 1328a subs. 2 ABGB; cf. also Cases 5 and 7).
5
Cf. C. -W. Canaris, ‘Gewinnabschöpfung bei Verlust des allgemeinen
Persönlichkeitsrechts’, in Festschrift für E. Deutsch zum 70. Geburtstag (Cologne/Berlin/
Bonn/Munich: 1999) 85; G. Wagner, ‘Geldersatz für Persönlichkeitsverletzungen’
(2000) ZEuP 200.
6
H. Koziol, ‘Die Bereicherung des Schädigers als schadenersatzrechtliches
Zurechnungselement’, in Im Dienste der Gerechtigkeit: Festschrift für Franz Bydlinski
(Vienna: 2002) 192.
7
See Case 7. In the context of the unauthorised use of personality aspects of famous
persons for advertising purposes the OGH granted a hypothetical licence fee under
the law of unjust enrichment (cf. the remarks in Cases 10, 11).
case 8: a paparazzo’s telephoto lens 319
The tort of invasion of privacy under Austrian law which was alleged
above is based on the violation of protective rules. In this respect the
compensation of economic loss is not a problem: Under § 1295, subs. 1
ABGB the princess may sue the paparazzo for damages for economic
loss. Moreover, this claim could also be based on § 1328a ABGB.
In respect of non-economic loss, the princess has a claim for compen-
sation against the paparazzo according to § 1328a ABGB. However, this
loss is only eligible to be compensated in cases of serious infringement.
This precondition is expressly stipulated in § 1328a ABGB.8
Belgium
I. Operative rules
In both cases, the paparazzo will need the consent of the princess to
publish her photograph. She will be able to skim off the profits earned
by the magazine.

The princess can skim off the profits earned by the magazine.
Unauthorised commercial exploitation of a person’s image deprives
him/her of the possibility to exploit the image him/herself. The loss will
be compensated as economic loss. In the absence of standard measures,
the economic loss will sometimes be estimated ex aequo et bono.9 Mostly,
it will be estimated in concreto. Damages will be awarded according to
the going rate for publishing similar photographs.10
The outcome is the same if the princess was sitting in the back garden
of a countryside restaurant. The paparazzo will not need the consent of
the princess to take the photograph. However, he will need her express
consent if he wants to publish her photograph in a magazine.11
Freedom of the press has to be weighed against the right to privacy.
The Belgian Cour de Cassation has decided that the press must try to
seek the truth and at the same time must try to protect an individual’s
private life and cannot publish articles that are unnecessarily damag-
ing.12 Those considerations are also valid for public persons, who also
enjoy the right to privacy. Members of the royal family, for example,
can claim the right to privacy.13
8
Cf. Case 5.
9
CA Brussels 4 Oct. 1989, RW 1989–90, 651, note by D. Voorhoof.
10
Civil court Bruges 7 Nov. 1995, Ing. Cons. 1996, 23; Civil court Brussels 16 Nov. 1999,
AM 2000, 117.
11 12
See Case 7. Cass. 13 Sept. 1991, RW 1991–92, 464.
13
Brussels 25 Nov. 1981, JT 1982, 275.
Belgian case law has nevertheless laid down particular standards

for public persons. It is accepted that persons can be categorised, so
that, for example, politicians must take more criticism than mag-
istrates because they are in a better position to defend themselves
in the press.14 A further relevant factor is whether the criticism is
connected to someone’s public position.15 For example, the criticism
of a politician who was a member of the committee of inquiry for
the Dutroux case was allowed. The press reports written about this
politician were correct and only concerned his activities in this
committee.16
Notwithstanding the criminal prosecution of the photographer,
the princess is entitled to damages for invasions of her right to image
and to privacy. It is thus possible to sue for damages without having
to prove the conditions under Art. 1382 of the Civil Code. Damages
indemnify non-economic loss. The Cour de Cassation decided that emo-
tional damages should compensate and repair pain, distress or other
non-economic loss.17 Until recently, the amount of compensation was
usually estimated ex aequo et bono to be a nominal amount (€1). Since
then, larger amounts of compensation have been awarded on obscure
grounds.18 At any rate, a certain nominal sum will be awarded for the
mere invasion of the personality right. The amount varies and also
depends on the fault of the paparazzo.
England
I. Operative rules
The claimant will probably have a claim for breach of confidence in both
situations but that will depend on the exact facts of the case. In prin-
ciple, restitutionary damages are available for breach of confidence.

1. Substantive law
(a) Trespass Generally speaking, the tort of trespass forbids intrusion
onto private property. However, this only applies where the tortfeasor
has entered the private property. If the paparazzo has taken the picture
14
Brussels 5 Feb. 1990, RW 1989–90, 1464.
15
D. Voorhoof, Handboek mediarecht (Brussels: 2007) 136 et seq.
16
Civil court Brussels 21 Sept. 1999, AM 2000, 334.
17
Cass. 3 Feb. 1987, Arr. Cass. 1986–87, 724.
18
E. Guldix and A. Wylleman, ‘De positie en de handhaving van
persoonlijkheidsrechten in het Belgisch privaatrecht’ (1999) TPR 1625 at 1651.
from outside the limits of the princess’ private grounds no action can
be taken under trespass.19
(b) Breach of confidence The paparazzo’s conduct would, however,

constitute a clear breach of confidence under the reasonable expec-
tations test.20 The reasonable expectation of privacy will usually be
present if the act complained of takes place within a secluded private
property.
In principle, freedom of the press and Art. 8 ECHR would have to be
weighed against each other in order to determine which right prevails
in this instance. However, in the present case, freedom of expression
cannot outweigh the breach of confidence. Particular attention should
be paid to the Code of Practice of the Press Complaints Commission
(PCC). According to s. 12 (4)(b) HRA 1998, any relevant privacy code has
to be taken into account. The most prominent code in this particular
field is the PCC Code.21 Under clause 3(2), it is unacceptable to photo-
graph individuals in a private place without their consent.
2. Remedies
Breach of confidence is an equitable remedy. Thus, restitutionary
damages are awarded by the courts.22 For example, in the Spycatcher
case, the House of Lords held that the profit, in equity, belongs to the
owner of the information.23 However, this may be different when the
defendant has not realised that he/she was breaching the claimant’s
confidence.24 In Peter Pan v. Corsets Silhouette, Pennycuick J recognised
that the claimant company whose brassieres were manufactured by
the defendant company through a breach of confidence could claim
et seq. and A. van Oevelen, ‘Schade en schadeloosstelling bij de schending van

grondrechten door private personen’, in K. Rimanque (ed.), De toepasselijkheid van
grondrechten in private verhoudingen (Antwerp: 1982) pp. 438–39.
19
Bernstein of Leigh (Baron) v. Skyviews & General Ltd [1978] QB 479.
20
For the requirements of breach of confidence, see the answer to Case 2.
21
The current version dates from Sept. 2009 and is available at www.pcc.org.uk/
assets/111/Code_A4_version_2009.pdf. See also Mills v. News Group Newspapers Ltd
[2001] EMLR 41, 957, at 969.
22
For a detailed analysis of restitutionary damages for breach of confidence, see
G. Jones, ‘Restitution of Benefits Obtained in Breach of Another’s Confidence’ (1970)
86 Law Quarterly Review, 463 at 473 et seq.
23
Attorney-General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, at 262, per Lord
Keith of Kinkel.
24
See Seager v. Copydex Ltd [1967] 2 All ER 415, with an analysis in G. Jones, ‘Restitution
of Benefits’ at 475 et seq.
an account of the profits made from the offending brassieres in ques-

tion, not just from the use of the claimant’s patterns and informa-
tion.25 Compensatory damages were awarded in Douglas v. Hello!26
where the damage was the competitor magazine’s loss of circulation.
Damages would also be available for distress. These would usually
be quite modest, although perhaps more than in Douglas as in that
case the claimants had already agreed to make their wedding photo-
graphs public and it was only the medium that was the subject of the
litigation.
3. Disclosure
The princess could seek an order for disclosure under r. 31 of the
Civil Procedure Rules, under which disclosure can be withheld on
grounds of privilege and public interest. The defendants would
have to persuade the judge of any reasons why disclosure was not
appropriate.
(b) Would it make a difference if the princess was not sitting at

home, but in the back garden of a countryside restaurant? It would
not necessarily make a difference, depending on the circumstances.
If the princess was aware that she was courting publicity through her
excursion to the countryside restaurant, there would be no right of
privacy. If she was going to an entirely unknown and hidden place, the
situation may be different. There is no restriction of confidentiality of
private property.27 English courts have recently frequently referred to
the ECtHR case of von Hannover,28 although the Court of Appeal indi-
cated that it was ‘far from clear that the House of Lords that decided
Campbell would have handled von Hannover in the same way as did the
ECtHR’.29
This has also been recognised in Clause 3 of the Code of Practice of
the Press Complaints Commission, which explains that ‘private places’
may include public property where there is a reasonable expectation
of privacy.
25
Peter Pan Manufacturing Corp v. Corsets Silhouette Ltd [1963] 3 All ER 402, with an
analysis in G. Jones, ‘Restitution of Benefits’ at 486 et seq.
26
Douglas v. Hello! [2004] EMLR 2.
27
See also Venables v. News Group Newspapers Ltd and Others; Thompson v. News Group
Newspapers Ltd and Others [2001] Fam 430, at 462.
28
Court of Appeal in Douglas and McKennitt; High Court in McKennitt and HRH Prince of
Wales.
29
[2006] EWCA Civ 1714, at para. 39.
Finland
I. Operative rules
The princess cannot skim off the profit earned by the magazine. The
situation is the same in both situation (a) and in situation (b).

According to Ch. 24, s. 6 of the Finnish Penal Code,30 it is a crime to take
pictures of a person, without that person’s consent,31 in a place which
is protected as that person’s domicile, which also includes the garden.32
According to the same provision under Ch. 24, s. 6, the crime can also
be committed in a semi-public place, e.g. a restaurant or the garden of
a restaurant, if the observation of a person can be considered a viola-
tion of the privacy of that person. Whereas the client of a restaurant is
normally allowed to take pictures in the restaurant in such a manner
that other guests are also included in the picture, it is clearly unlawful
for a paparazzo to take pictures of guests from outside the restaurant
or the garden of a restaurant.33 A public person, e.g. a princess, also has
a private sphere, which can be violated, although this private sphere is
narrower than the sphere of an ordinary person.
It is also possible that the publishing of the photographs constitutes
a defamatory act according to Ch. 24, s. 9 or 10 of the Finnish Penal
Code. If so, the case is judged as in Case 1.
Although it is a crime to take photographs of private persons in
private surroundings, the victim, i.e. the princess, is only entitled to
damages for the personal loss suffered, which is not related to the
profit earned by the magazine. Instead, the profit of the magazine can
30
S. 6 reads as follows: ‘Illicit observation (531/2000)(1) A person who unlawfully
watches or monitors with a technical device (1) a person in domestic premises, a
toilet, a dressing room or another comparable place, or (2) a person in a building,
apartment or fenced yard that is closed to the public, as referred to in s. 3, where
this violates the person’s privacy, shall be sentenced for illicit observation to a fine or
to imprisonment for at most one year. (2) An attempt is punishable.’
31
If the picture is taken and used, e.g. published, with the person’s consent, the
use of the picture for another purpose can constitute a crime according to
the Finnish Penal Code Ch. 24, s. 8. This was the situation in Supreme Court
case 1980 II 123, where a photograph of a shopkeeper was taken and published
in connection with food prices. When the picture was used in a political
advertisement by a student without the consent of the shopkeeper, the student
was found guilty and was obliged together with five political associations to pay
damages of 5.000 FIM (€841).
32
Government Bill 184/1999 p. 29. 33 Ibid. at p. 31.
be forfeited,34 i.e. according to Ch. 10, s. 2 of the Finnish Penal Code the
state has the right to the profit.
France
I. Operative rules
The princess cannot obtain an order against the journal to skim off the
profits attained from the publication of her photograph.
The solution would not be different if the princess was sitting in the
garden of a countryside restaurant.

The publication of a photograph taken with a telephoto lens of a famous
princess with her family in a private place is undeniably an infringement
of her right to privacy. Such an infringement certainly cannot be justi-
fied by the public’s right to information and the princess has an action
for damages against the magazine. It is very likely that in the determi-
nation of legal consequences a French judge would take the particularly
reprehensible way in which the photograph was taken into account.35
Given the circumstances of the case, the damage which must be
repaired is purely non-economic. Thus, although French law readily
admits the allocation of damages in reparation of non-economic loss,
the lower courts hold a discretionary power in determining the amount
to be awarded. They do not need to let the criteria used to measure those
amounts be known. Because tort liability in French law has a purely
remedial function, the amount of damages cannot be adjusted according
to the gravity of fault i.e. the behaviour of the defendant.36 The amount
of damages has certainly increased in recent years. However, this move
34
This happened in Supreme Court case 1980 II 94.
35
CA Versailles 23 Sept. 1999, CCE 2000, No. 25, 23: ‘to assess the harm suffered, one
has to take into account (…) the fact that the contested photographs were taken
with a telephoto lens and without the knowledge of the persons concerned’. – Cass.
civ. 18 Mar. 2004, Légipresse 2004, No. 211, I, 68: this Court approved the lower
court decisions in that they stressed that the photographs illustrating the article,
although taken at a public demonstration, were taken with the aid of a telephoto
lens and without the knowledge of the persons concerned.
36
CA Paris 26 Apr. 1983, D. 1983, jur., 376: ‘the award of damages is intended
to repair the harm suffered and does not have to vary with the gravity of the
committed fault’; CA Versailles 16 Jan. 1998, D. 1999, somm., 168: ‘the allocated
sum was calculated by taking a recidivism into account otherwise qualified as
towards taking a severe stance against tabloids remains semi-official.37

Some scholars proposed to revert to the concept of punitive damages or
at least to take the profits made by the journal into account in order to
calculate the amount of damages. However, these proposals have not
been accepted by the courts. The Cour de cassation has thus approved the
decision of an appellate court which ‘held that the importance of the
harm suffered by M. Delon was not a function of the profit realised by
the Ici-Paris company’.38 The princess thus cannot obtain an order for
skimming off the profits of the magazine.
If the princess had been photographed in the same manner in the
presence of the same persons, however, not at home but instead in the
garden of a restaurant, it is not certain that the solution of the case
would be any different. The fact that the photograph has been taken
in a public place is not alone sufficient to justify the absence of consent
(see Case 7). It has thus recently been determined that:
it is of little importance that the photographs taken of the claimants as they
were walking in the Saint-Cloud park were taken in a public place because
they were taken with the aid of a telephoto lens and have been published
without the authorisation of the interested parties at a moment where they
could legitimately believe themselves to be sheltered from indiscreet eyes as
they could see no one in front of them. The publication of these photographs
is an invasion of their privacy.39
Germany
I. Operative rules
The princess may claim the profits earned by the magazine if the
magazine editors knew or ought to have known that the publication
“refractoriness”, and the disregarding of warnings previously addressed to the

editor. All these elements can characterise the intensity of a fault but not the
intensity of a harm, which is the only acceptable parameter before a civil court.’
37
Carval, La responsabilité civile dans sa fonction de peine privée (Paris: 1995) p. 32;
Montero, ‘La responsabilité civile des médias’, in Strowel and Tulkens (eds.),
Prévention et réparation des préjudices causés par les médias (Brussels: 1998) p. 131.
38
Cass. civ. 17 Nov. 1987, Bull. civ. I, No. 301 p. 216. See, more recently, TGI Paris 5 May
1999, D. 2000, somm., 269: ‘the profits gained by the journal are unrelated to the
assessment of the harm’; TGI Nanterre 27 Feb. 2001, Légipresse 2001, No. 182, I,
78: ‘there is no reason why one should take into account the publisher’s profits
from the sale of the issue where the contested photograph was inserted, because
the harm suffered by the claimants does not depend on the profit gained by the
publisher’; TGI réf. Nanterre 12 Nov. 2001, Légipresse 2002, No. 188, I, 4.
39
TGI Nanterre 6 Mar. 2001, Légipresse 2001, No. 184, I, 103; CA Versailles 23 Oct.
2003, Légipresse 2003, No. 207, I, 178.
was unlawful. If this is the case, the magazine must also disclose any
information which is necessary to calculate its extra profit. If the mag-
azine editors were not negligent in thinking that the publication was
lawful, the princess can still demand a hypothetical licence fee for the
publication of the photograph.

The publication constitutes a violation of the princess’ right to her own
image (§§ 22, 23 KUG). Although a princess was considered by the older
German case law as an ‘absolute person of contemporary history’, she
still enjoys a certain private sphere. This is regarded as a legitimate
interest which makes the publication of a picture unlawful according
to § 23(2) KUG. Although the boundaries of this private sphere are some-
times hard to define, one’s own home and garden certainly fall within
the private sphere.40 The claim for skimming off the extra profits may
be based on § 687(2) BGB, on § 823(1) BGB or on § 812 BGB. According to
§ 687(2) and §§ 681, 667 BGB, someone who intentionally interferes in
another’s affairs and treats them as his/her own is liable for the result-
ing profits. Unlawful use of somebody’s picture is regarded as such
interference.41 Intentional interference means that the editors knew
that the publication was unlawful. According to § 687(2) and §§ 681,
666 BGB, the defendant must also account for the profits gained from
the publication. For a claim for compensation under § 823(1) BGB it is
sufficient that the editors acted negligently regarding the unlawful-
ness of the publication. In cases such as this where the right to one’s
image is violated, the plaintiff may also demand the profits gained by
such a violation, including account of the profits.42
Negligence is not necessary for a claim for unjust enrichment (§ 812
BGB). The German courts have accepted such claims in cases where
40
BGHZ 131, 332, 336.
41
Ehmann , in W. Erman, Handkommentar zum Bürgerlichen Gesetzbuch (12th edn.,
Münster/Cologne: 2008) § 687 no. 10.
42
BGHZ 143, 214, 232. Note that this is not necessarily the case for violations of other
personality interests which are protected under the general personality right. In
such cases, the fact that the defendant made a profit is only one of several factors to
be considered in the determination of damages for non-economic loss (if any), see
BGHZ 128, 1, 16 (invented interview). The difference is explained with the idea that
the right to one’s image is clearly of economic value, but other personality aspects
are not (H. Sprau in O. Palandt, Bürgerliches Gesetzbuch (66th edn., Munich: 2007),
§ 823 BGB no. 125). This distinction is not very convincing since an exclusive
interview with Princess Caroline about her love life which was at issue in BGHZ
128, 1, is certainly also of substantial economic value.
someone’s photograph was used without permission for advertising

purposes.43 Under this theory, the defendant’s profits cannot be
skimmed off, however the defendant owes a hypothetical licence fee.44
Only if the defendant knew that his/her enrichment was unlawful
would he/she have to turn over all profits.45
but in the back garden of a countryside restaurant? This would not
make any difference if the restaurant garden can be qualified as a place
where privacy can reasonably be expected. An older opinion suggested
that public figures cannot prevent the publication of photographs
taken outside of their own home.46 Nevertheless, even before the fam-
ous Strasbourg decision in von Hannover v. Germany, the German Federal
Court rejected such a limitation of the private sphere by declaring that
it extends to all places where someone has ‘retreated into a spatial
isolation in which it is obvious that he wants to be by himself and in
which he acts in a way in the specific situation that he would not do
in public, relying on this isolation’.47 In that particular case, such spa-
tial isolation was assumed in a dimly lit restaurant. The Constitutional
Court accepted this formula in general,48 but it may be criticised for its
vagueness since the legality of a publication may now depend on the
brightness of the light bulbs in a specific restaurant.49

The increased willingness of the Federal Court to attach monetary value
to certain personality rights has been criticised by a few authors who warn
of inappropriate commercialism regarding personality rights.50 They
stress that although society in fact attaches market value to many – if not
43
See, e.g., BGH AfP 2006, 559; NJW 1992, 2084; LG Hamburg AfP 2006, 585.
44
BGH NJW 2007, 689, 690; see also Case 3, n. 45.
45
Canaris, ‘Gewinnabschöpfung bei Verlust des allgemeinen Persönlichkeitsrechts’,
in FS Deutsch (Cologne: 1999) 85, 91 et seq.
46
K. -E. Wenzel , Das Recht der Wort- und Bildberichterstattung (4th edn., Cologne: 1994)
no. 5.46 and 5.60; OLG Hamburg NJW-RR 1995, 790 (overruled by BGHZ 131, 332).
47
BGHZ 131, 332, 339.
48
BVerfGE 101, 363, 393 et seq.
49
But see the thoughtful defence of the formula by J. Soehring, ‘Caroline und ein
Ende?’ (2000) Zeitschrift für Medien und Kommunikationsnecht 230, 233.
50
H. Schack, ‘Anmerkung zu BGH 1.12.1999 – I ZR 49/97 – Marlene Dietrich
(vermögenswerte Bestandteile des postmortalen Persönlichkeitsrechts)’
(2000) JZ 1060; K. N. Peifer, ‘Eigenheit oder Eigentum – Was schützt das
Persönlichkeitsrecht?’ (2002) GRUR 495.
all – aspects of personality, the judiciary should not simply follow this
trend but should make value judgments regarding its desirability.51
Greece
I. Operative rules
The princess has a claim for compensation of non-economic harm. It is
unlikely that she can skim off the profits earned by the publication of
her photographs.

There is no ground in either Greek scholarship or court decisions to
accept the pecuniary exploitation of personality’s aspects, such as
name, image, voice, etc. As the Supreme Court has stated, ‘the claim for
non-pecuniary damages exists even when a person’s image is exposed
for promotional reasons’.52
The Greek courts have accepted that taking a photograph of a
person without consent does not amount to an offence when the per-
son depicted is a person of public importance, such as a politician, a
diplomat, an artist, an athlete, etc. Therefore taking a picture of the
princess, especially in a public place (restaurant) does not objectively
amount to an offence per se.
Taking pictures of a person and displaying them publicly, without this
person’s consent, is unlawful, unless the pictures represent a person of
public interest, a person of contemporary history, or persons who are
exposed publicly.53 Any use of a picture for commercial purposes with-
out the consent of the person depicted constitutes an unlawful injury to
personality. Even in cases involving public persons, the picture and its
publication must not intend to present aspects of private life, unless these
have to do with moments connected to his/her social role or office.54
Ireland
I. Operative rules
The princess would not succeed in bringing an action for breach of con-
fidence. An action for breach of privacy could be raised by the princess
51
Schack, ‘Anmerkung zu BGH 1.12.1999’ at 1062.
52
53
Sourlas in Georgiadis-Stathopoulos, Civil Code – Interpretation by Article (Athens: 1996)
Arts. 57–60, no. 83. Karakatsanis, in Georgiadis-Stathopoulos, Art. 57, no. 9.
54
Karakostas, Personality and Press (3rd edn., Athens/Komotini: 2000) 81–2.
and the ECtHR has recognised the existence of such a right based on
facts similar to those outlined above.55 Whether the princess would be
able to skim off the profits of the magazine would depend on whether
the Irish courts would recognise her action for invasion of privacy.

An action for breach of confidence would not succeed due to the absence
of a special relationship of trust and confidence between the parties.56
While the Irish courts have yet to recognise a breach of privacy action
based on these facts, the recent judgment of the ECtHR in von Hannover
v. Germany57 could have important implications for the development of
the law in Ireland in this regard. The princess could plead that under
the European Convention on Human Rights Act 2003 the Irish courts
must follow the von Hannover decision – possibly through the expansion
of the Constitutional right to privacy – and recognise that her privacy
had been invaded, thereby leading to an award of damages.
Italy
I. Operative rules
The publication of the photograph is unlawful in this case. The prin-
cess cannot skim off the profits earned by the defendant. However, she
can recover damages for economic and non-economic loss.

Two different questions are raised by this case. The first one is related
to the unlawfulness of the publication (1); the second one to the actions
available to the princess (2).
(1) The publication of a photograph taken in a private place requires
the prior consent of the person portrayed, otherwise it amounts to a
tort (and possibly to a crime: Art. 615 bis CP). Protection is afforded by
the right to privacy (Arts. 1–2 DPC) and the right to one’s own like-
ness (Art. 10 CC). As already mentioned in Cases 5 and 7, both rights
have limitations. According to Art. 97 CA, no consent to publication
is required if the photograph relates to a public figure. However, it is
a well-established principle that the particular status of the claimant
is not a justification of the defendant’s action per se. In other words,
the restriction of the privacy rights of a prominent person must be
55
56 57
House of Spring Gardens v. Point Blank Ltd [1984] IR 611 (SC). See n. 55.
justified on the basis of society’s interest in information. No ‘waiver of

privacy’ doctrine is accepted by Italian law. To be lawful, the disclos-
ure of private facts should pursue serious and not frivolous interests.
These principles were stated by the Supreme Court for the first time in
1975, in a case entirely similar to the one discussed.58 Princess Soraya
Esfandiari was sitting in the garden of her private villa next to her new
lover, the movie director F.I. With a strong telephoto lens a paparazzo
took many photographs of the two talking side-by-side and also kiss-
ing each other. The photographs were published in the tabloid ‘Gente’.
Soraya successfully sued the publisher. For the first time, the judges
recognised a right of privacy and rejected the argument that the infor-
mation concerning prominent persons is a ‘public good’ at any rate. If
privacy infringement is not aimed at satisfying a relevant informative
value, then it amounts to a tort.59
It is not unlikely – but the issue is much debated – that the result
would be similar under situation (b). Assuming that the princess was
sitting in a famous restaurant in Piazza Campo de’ Fiori in Rome,
no violation of her right to privacy or right to image could probably
be found. Anyone could see the two lovers sitting side-by-side and it
would be unreasonable for the princess to expect the information to
be kept secret.60 The situation would be different if the two were eat-
ing in the back garden of a countryside restaurant. Here she would
have a reasonable expectation of privacy, because it is arguable that
nobody could easily observe the two lovers. This is a typical scenario
in which a public place is legally interpreted as a private one. As is
well-known, the distinction between public and private cannot be
described in purely spatial terms, but involves a value judgement.
The private sphere can extend far beyond the walls of one’s house, as
the Italian Supreme Court has stated;61 on the other hand, even pri-
vate occurrences can sometimes be lacking in privacy protection. As
always, a balance of interests is needed. The real question is whether
58
Cass. 27 May 1975 no. 2129, Foro it. 1976, I, 2895; see also Trib. Milano 17 Jul. 1982
no. 1390, Riv. pen. 1982, 898 (publication of a photograph of the actress Sophia Loren
depicted naked in a private house).
59
Two similar cases should be mentioned: the first one concerns Marina Doria, the
wife of Prince Vittorio Emanuele di Savoia (Trib. Milano 8 Apr. 1991, Dir. inf. 1991,
865); the second a popular journalist and now politician, Lilli Gruber (Trib. Milano
17 Nov. 1994, Dir. inf. 1995, 373).
60
See Trib. Napoli 26 Jun. 2001, Dir. inf. 2001, 888; Garante protezione dati
12 Mar. 1999, in M. Paissan (ed.), Privacy e giornalismo (2nd edn., Rome: 2006) 250.
61
See Cass. 8 Jun. 1998 no. 5658, Dir. inf. 1999, 39 (the case concerns the television
broadcast of a divorce trial).
the information to be disclosed is deemed essential to society (Art.

137(3) DPC).
The case law gives some guidelines. It has been decided that the press
cannot publish the picture of a famous journalist pictured semi-nude
on a desert beach in the Seychelles Islands: in these circumstances he/
she has a reasonable expectation of privacy.62 Similarly, it is unlawful
to publish the photograph of a public figure standing in front of the
window and on the balcony of a hotel room.63 However, even a street
can on some occasions become a ‘private place’: a recent judgment has
considered it unlawful to secretly follow two relatively famous persons
and to publicise their meeting, in the absence of any relevant public
interest in this information. The judge noted that gossip is not a valid
justification for privacy infringements.64 On the contrary, the publica-
tion of the photographs of a private wedding – held in a small church
closed to the public – is not prohibited if this information is essential to
society.65
Applying these principles to our case, one could assume that the pub-
lication is unlawful: the information is not essential to the public and
the princess has a reasonable expectation of privacy in that particular
location.
(2) The princess cannot skim off all of the profits earned due to the
unlawful publication of her photograph.
In matters of interference with property rights, tort law takes prec-
edence over the law on restitution. A general rule on unjust enrich-
ment is provided for by Art. 2041 CC, but since Art. 2042 CC provides
for a principle of subsidiarity, it is up to the law of torts to deal with
these situations.66 The princess can claim compensation for any losses
actually suffered.
According to the Elizabeth Taylor doctrine,67 the princess should be
awarded the foregone royalties for the publication of the photograph
as lost profits.
62
Pret. Roma 15 Apr. 1988, Dir. inf. 1988, 458; but for a different solution, see Cass. 29
Sep. 2006 no. 21172.
63
Trib. Milano 18 Apr. 1999, AIDA Rep. 2000, 1072.
64
Trib. Roma 24 Oct. 2001, Dir. inf. 2002, 797.
65
Trib. Roma 24 Jan. 2002, Dir. inf. 2002, 505: in this case, the former Minister for
the Interior and President of the Italian Republic Francesco Cossiga was one of the
witnesses at the wedding of a former terrorist.
66
See, exactly on this point, App. Roma 27 May 1955, Foro it. 1956, I, 793 (film on
Enrico Caruso’s life).
67
App. Milano 16 May 1989, Foro it. 1991, I, 2861; Cass. 16 Apr. 1991 no. 4031, Nuova
giur. civ. comm. 1992, I, 45; Cass. 6 Feb. 1993 no. 1503, Giust. civ. 1994, I, 229; Cass., 11
In addition, she could recover damages for non-economic loss. This

action could be based either on Art. 15(2) DPC (unlawful processing of
personal data)68 or Art. 2059 CC.69
Nevertheless, it should be noted that restitutionary elements could
play a significant role in the determination of the amount of damages.
According to Arts. 1226 and 2056 CC judges have discretionary power
in the assessment of damages where the exact amount cannot be ascer-
tained. Sometimes they make use of this power in order to strengthen
the deterrence function of the remedy: it happens that both the value
of the asset misappropriated and the infringer’s gain are taken into
account as a basis for the calculation of damages. As a consequence,
part of the profits gained by the defendant may be reallocated to the
claimant, understood as damages.70

According to some scholars this approach is dogmatically and practi-
cally unsatisfactory.71 In a typical damage action the claimant seeks
redress for the harm suffered, whereas in the interference situation
there is no ‘harm’ other than a reduction of the claimant’s right to the
exclusive enjoyment of his/her property. In these cases, the tortious
scheme cannot work properly and should be abandoned in favour of
Oct. 1997 no. 9880, Foro it. 1998, I, 499; see also recently Trib. Milano 17 Nov. 2005,
AIDA 2006, 534; Trib. Torino 2 Mar. 2000, Resp. civ. prev. 2001, 174; Trib. Roma 23 May
2001, Dir. inf. 2001, 881.
68
See e.g. Trib. Milano 13 Apr. 2000, Dir. inf. 2000, 371; Trib. Orvieto 23 Nov 2002,
Dir. inf. 2003, 333; Trib. Roma 10 Jan. 2003, Dir. inf. 2003, 532; Trib. Roma 22 Nov.
2002, Dir. inf. 2003, 525; Trib. Roma 12 Mar. 2004, Danno e resp. 2005, 879.
69
This according to the new construction of this provision adopted by the Corte di
cassazione in 2003. See Cass. 29 May 1996 no. 4993, Foro it. 1996, I, 2368; Cass. 7 Nov.
2000 no. 14485, Giur. it. 2001, 136. For a recent confirmation of these principles see
Cass. 11 Jul. 2005 no. 34100, Guida al diritto 2005, 42, 84.
70
This becomes clear when one looks at the amounts recovered by Marina Doria
(Trib. Milano 8 Apr. 1991, Dir. inf. 1991, 865) and Lilli Gruber (Trib. Milano 17 Nov.
1994, Dir. inf. 1995, 373) in the two cases discussed above (see n. 59 above): the
princess Marina Doria was awarded about €100,000, the journalist Lilli Gruber
about €50,000. One can conclude that no restitutionary claim is available to the
claimant, but the action for damages works (sometimes) as a proxy. For an overview
of the monetary rewards allocated by the courts in Italy, see E. Borrelli, ‘La
quantificazione del danno per violazione del right of publicity’ (1996)
Danno e resp, 166.
71
See P. Sirena, La gestione di affari altrui. Ingerenze altruistiche, ingerenze egoistiche e
restituzione del profitto (Torino: 1999) 277 et seq.; cf. also the general remarks by
C. Castronovo, ‘L a violazione della proprietà intellettuale come lesione del potere di
disposizione. Dal danno all’arricchimento’ (2003) Dir. ind., 7.
restitutionary actions. It is argued (applying the provisions on negotio-

rum gestio) that the defendant could be obliged to turn over all of the
profits unjustly gained if he/she knew that the enrichment was unlaw-
ful.72 Useful indications could be now taken from the new Industrial
Property Code, which expressly provides for restitutionary actions (see
Art. 125).
The Netherlands
I. Operative rules
In situation (a), if the publication of the pictures is unlawful, the prin-
cess is entitled to damages, including the skimming off of profits
earned due to the publication. In situation (b), the princess does not
have a claim.

In this case a distinction has to be made between the (un)lawfulness
of the way in which the paparazzo gathered the information, e.g. took
the picture, and the (un)lawfulness of the publication of the picture.
The standards of Art. 6:162 BW apply with regard to the way the
press gathers its information.73 The method of gathering information
can be a breach of a statutory duty. Relevant provisions are Arts. 138
and 139f Sr (Penal Code), regulating the protection of domestic peace
and quiet against trespass/intrusion and, furthermore, the situation in
which the act of trespassing is used to take a picture. If the method of
gathering information is contrary to these provisions, the act is unlaw-
ful. If this is not the case, in line with the spirit of Arts. 138 and 139f
Sr, in respect of the private law situation between the paparazzo and
the princess, a duty of care can exist which results in the method of
gathering the information being deemed unlawful. An important fac-
tor is whether the situation in which the person was photographed is
private in the sense that he/she may assume that he/she is not being
photographed. If, in contrast, the place is public or not private in a way
in which one may assume that one is not being photographed, there
is no duty to refrain from photographing that person. In the instant
72
P. Sirena, La gestione di affari altrui at 278; id., ‘Lo sfruttamento commerciale abusivo
dell’immagine altrui’, in Annuario 2001 della L.U.M.S.A. (Rome: 2001) 76; see also
P. Trimarchi, ‘L’arricchimento derivante da atto illecito’, in Scritti in onore di R. Sacco,
II (Milan: 1994) 1149 at 1157; P. Vercellone, ‘Diritti della personalità e “rights of
publicity”’ (1995) Riv. trim. dir. proc. civ. 1163, 1173.
73
Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 84.
case, the princess’ assumption that she is in a purely private situation

is only reasonable if the place in which she was pictured is very diffi-
cult to access and if it is clear that the paparazzo had to take complex
actions to photograph her. Although the princess is a public figure and
has to accept that her privacy is more limited than that of non-public
figures,74 she also has the right to protection of this relatively limited
privacy. Outside this area, the princess has to be aware of the fact that
she is a person in which the public is interested and for that reason
people will do their best to take pictures of her.
Although the way in which the picture has been taken might be
unlawful and therefore actionable as such (for instance through an
injunction), the princess’ interest in an action has to be regarded as per-
tinent if the picture is published. If her facial features are recognisable,
the picture is a portrait. If this is the case, Art. 21 Auteurswet applies.
As described in Case 7, in light of the ‘reasonable interest’ require-
ment, the interests of the princess and the interest of the photogra-
pher and the general interest in being informed have to be balanced.
In this case, the princess’ interest, in particular in the protection of
her private life, is at stake. Whether this interest outweighs the other
interests depends on the situation in which she was pictured (very pri-
vate, semi-private or public) and on the question whether she herself
already went public with her ‘new family’ or has had pictures of her
‘new family’ taken and published. If that is the case, the general inter-
est in being informed about the life of the princess will outweigh the
interest of the princess.
If the publication of the pictures is unlawful, the princess is entitled
to damages, including the skimming off of profits earned due to the
publication (Art. 6:104 BW ) (see Case 1). Art. 6:104 BW only applies if the
injured party actually suffered loss. If someone is infringed in his/her
person, there is non-economic loss and so this person has the possibil-
ity of applying Art. 6:104 BW. However, if the financial interest was the
reason for the unlawfulness of the publication, it has to be proved that
this interest was indeed harmed.
Art. 6:104 BW does not provide the injured party with a right to have
the wrongdoer turn over his/her entire profits. It provides that the
judge can assess the damages on the basis of the net profits. The judge
is not entitled to assess the damages in this (abstract) way unless he has
74
HR 4 Mar. 1988, NJ 1989, 361 (De Bourbon Parma); Schuijt, Losbladige Onrechtmatige
Daad no. 111.
been asked to do so by the injured party and the injured party based
this request on facts. The victim does not have to prove the amount of
profits. This implies that the judge needs information from the wrong-
doer about the net profits. Although there is not a clear duty on the
part of the wrongdoer to unveil information about profits, without
this information the judge will assess the profits according to insights
based on the information which is available.
but in the back garden of a countryside restaurant? From the above
answer it can be derived that a claim only exists if the picture has been
taken in a private situation. A restaurant is a public place in which the
princess has to take into account that she may be photographed. A pic-
ture of her having a meal with her ‘new family’ does not infringe her
right to privacy in a way which constitutes a reasonable interest in the
sense of Art. 21 Auteurswet.
Portugal
I. Operative rules
The princess would most likely not be able to skim off the profits the
magazine earned, regardless of whether she was at her home (hypothesis
(a)) or in the back garden of a countryside restaurant (hypothesis (b)).

The taking of the photograph, followed by its publication, is unlawful
and infringes the rights to image (Art. 79 CC) and to privacy (Art. 80
CC 75), as previously referred to in Cases 5 and 7. It is also considered a
crime (Art. 199 CP). In addition, according to the LI, the freedom of the
press has to respect the right to image and to privacy (Art. 3) and, as
the EJ establishes, journalists should not gather images or declarations
which may harm someone’s dignity (Art. 14, para. f)). Finally, Art. 29(1)
LI determines that cases of civil responsibility arising from wrongful
acts committed through the press shall be solved according to the gen-
eral civil responsibility rules.
Following the celebrated Princess Caroline cases, there has been a
tendency to allow the possibility of ‘skimming off’ the profits earned
75
Art. 80 (Right to privacy in respect of the intimacy of private life):
Everyone must respect the privacy of the intimacy of the private lives of others.
The extent of this privacy is defined in accordance with the nature of the case and
the condition of the persons.
by the magazine through its unlawful actions. In general, it can be

said that there is no autonomous reference to punitive damages in
Portuguese law. However, some leading authors admit an exception
to the traditional strictly compensatory nature of civil liability and
make brief references to the punitive function of civil responsibility.
The introduction of this concept in Portugal has had very few reper-
cussions until now and there are no court rulings, to our knowledge,
accepting a solution of this kind. Even if some authors recognise a
punitive function to civil responsibility, punitive damages can only
be awarded when and as far as there are actual material and/or moral
damages.76 If the court was to decide to award punitive damages and
required information from the newspaper regarding the amount of
the profits earned from publication, it could order the newspaper to
provide the necessary information either of its own initiative or at the
request of the victim. The newspaper cannot refuse to provide such
information.
If the princess was sitting in the back garden of a restaurant, rather
than at home, the difference would not be decisive. The injury to her
personality would only be of a less serious degree, as the location
where the photograph was taken would then be less private, although
not completely public. Nonetheless, there would be a breach of her per-
sonal privacy and an unlawful use of her image. In any case, the prin-
cess would most likely not be able to skim off the profits the magazine
earned, no matter where she was when the picture was taken (hypoth-
esis (a) or (b)).
Scotland
I. Operative rules
The princess will be awarded an interdict against further intrusion
and pursuit by the paparazzi in relation to taking photographs of her
within her private sphere, together with damages for solatium on
proof.

The scene described here reflects the Princess Caroline of Monaco
litigation decided by the German Federal Supreme Court (BGH ) in
Caroline von Monaco II/III,77 as expanded by the ECtHR.78 Relying on the
76 77
STJ 29.04.2002. BGH NJW1995, 861 Caroline; NJW 1996, 984.
78
authority of the pre-HRA European decision Earl and Countess of Spencer,

concerning a paparazzi long lens intrusion claim,79 as followed by
the long line of case law developing since Douglas v. Hello!,80 claims for
breach of confidence and breach of privacy are likely to be recognised
in Scotland as they are in England. Although Sedley J at first instance
in Douglas came down in favour of a fully fledged right to privacy,81
the House of Lords has not pronounced conclusively on the matter.
Given the statutory basis to privacy, the Scottish courts will certainly
take the English decisions into account. Generally, the sustainability
of a claim of infringement of privacy will depend on the individual
circumstances: whether intrusions are within the private home or gar-
den, etc. will be of importance in the final assessment.82 Scots law,
unlike England, has no tort of trespass.83
Should the princess be sitting in a public place, then the general pre-
sumption against a private situation within the public sphere would
apply, unless it is obvious from the circumstances that she was seeking
privacy. The actual balance in the individual case can only be deter-
mined on the facts:
in the majority of cases the question of whether there is an interest capable of

being the subject of a claim for privacy should not be allowed to be the sub-
ject of detailed argument. Certain facts relating to the private lives of public
figures … may be of interest to citizens and it may therefore be legitimate for
readers to be informed … The advantage of not having to distinguish between
acts which are public and those which are private in a difficult case are made
clear by what Gleeson CJ had to say on the subject in Australian Broadcasting
Corp. v. Lenah Game Meats Pty Ltd.84 ‘There is no bright line that can be drawn
79
Earl and Countess of Spencer v. UK [1998] 25 EHRR CD 105.
80
The High Court proceedings in Douglas v. Hello! [2001] QB 967 are complicated in
view of the search for the appropriate remedy in equity in the circumstances, see
Court of Appeal, [2003] EWCA Civ 139, para. 67.
81
See Douglas High Court, ibid. per Sedley LJ para. 110: ‘We have reached a point at
which it can be said with confidence that the law recognises and will appropriately
protect a right of personal privacy.’
82
The Court of Appeal in Douglas decided that the wedding couple had a clear
commercial interest in the photographs, which the law could protect, n. 80 above,
Lord Phillips MR at para. 107: ‘It follows that we do not accept (the) submission that
the effect of the OK! contract precluded the Douglases’ right to contend that their
wedding was a private occasion and as such, protected by the law of confidence’. See
also Sara Cox v. People, 7 Jun. 2003 (High Court), unreported at www.guardianmedia.
co.uk.
83
The Criminal Justice and Public Order Act 1994 has now introduced a special
trespass for new ‘generation rave’ forms of trespass in England. However, this does
not make the law equal between both countries.
84
[2001] HCA 63 at para. 42.
between what is private and what is not … The requirement that disclosure or
observation of information or conduct would be highly offensive to a reason-
able person of ordinary sensibilities is in many circumstances a useful practi-
cal test of what is private’.85
On the facts, Scottish courts would also classify the paparazzi intru-
sion into the home/garden as an invasion of the private sphere under
both the HRA and Art. 8 ECHR, possibly even in conjunction with s. 8
Protection from Harassment Act.86 The latter statute has introduced
the civil remedies claim of interdict, damages and a non-harassment
order in relation to disturbing conduct in Scotland.
The actions of the paparazzo in this case conflict with the Press’ own
Code of Conduct87 that the judges are required to have regard to when
determining the action. From the facts given, a court will be obliged to
grant an interdict along with an award of damages.
The question of whether aggravated – in contrast to punitive – dam-
ages will be awarded depends on the degree of harmful intent and
the paparazzo’s personal intrusion.88 If the intrusion is deliberate – as
the facts here indicate – there is nothing to stop the court ordering
an account of profits.89 Information relating to profits from the dis-
tribution of the photographs can easily be acquired through pre-trial
discovery.90 This requires the defendants to present their financial
information before the court. Whether or not the interdict will be
awarded depends on the expediency of the matter in relation to s. 12(3)
which allows the court alternatives to injunctions such as an order for
damages. A continuation of the injunction against the publishers was
refused in the Douglas case and an award of damages was found more
appropriate than stopping one week’s circulation of the magazine.91
Public figures do undergo greater press exposure than private citi-
zens. The publication of a television reporter entering a brothel was
accepted by the court as legitimate in Theakston v. MGN Ltd,92 despite
his claim for privacy.
85
A v. B&C [2002] EWCA Civ 337; [2002] 2 All ER 545 per Lord Woolf, CJ at para. 11 (vii).
86
Protection against intrusions is also provided for under the new statute Protection
from Harassment Act 1997.
87
See Case 1 re Press Code.
88
Damages in Scots law include compensation for defamation and verbal injury.
89
An account of profits is the measure of extra profit gained through the publication.
Scots Law does not tolerate punitive damages, in contrast to the English position,
see Cassell v. Broome [1972] AC 1027. Accounting for profits is a discretionary remedy.
90
This compels defendants to provide full information to the court relating to the
plaintiff’s case.
91 92
This decision is based on s. 12(3) and (4) HRA. [2002] EWHC 137.
Spain
I. Operative rules
The princess can skim off the profits earned by the magazine and the
magazine is under a duty to disclose any necessary information. It
would make a difference if the princess was sitting in the back garden
of a countryside restaurant as the princess would not have a claim in
such a situation.

Art. 9.3 of Spanish Act 1/1982 provides that any benefit obtained by
the party causing the loss shall be one of the criteria in quantifying the
amount to be awarded to the injured party. In court proceedings, the
magazine has a duty to disclose any necessary information. There are
some Supreme Court decisions that used this criterion to quantify the
amount to be awarded to the claimant.93
It would make a difference if the princess was not sitting at home,
but in the back garden of a countryside restaurant. As a princess
is a public person and a restaurant is a public place, we can con-
clude that the princess would not succeed in bringing a claim in this
93
See STS, 25 Nov. 2002 (RJ. 10274). In this case, a magazine published several
pictures of a professional model (Judit Mascó) in two different issues. In the fi rst
one, no. 829, fourteen pictures of the model were published and titled ‘Judit
Mascó in her bathroom, her most erotic pictures’. In the second issue, no. 985,
a picture of the model was displayed on the cover, and the table of contents
directed the reader to pictures of another model along with an interview that
did not belong to Judit M. The model sued ‘Ediciones Zeta, SA’, ‘Distribuciones
Periódicas, SA’ and José C. for infringement of her right to honour, personal
and family privacy and the right to her own image, seeking damages equalling
the profits earned due to the publication of her pictures in issue no. 985, and
compensation of €360,607 for moral damages, €120,202 for direct loss and
€300,506 for loss of profit. The Court of First Instance ruled in favour of the
claimant holding the defendants jointly responsible to pay compensation
equalling the net benefit obtained due to the publication of the model’s pictures,
plus €60,101 for material loss and €240,404 for moral damages. The Court of
Appeal rejected the claimant’s appeal and partially upheld the defendants’
appeal. ‘Distribuciones Periódicas, SA’ was acquitted and the award of damages
relating to the net benefit obtained by the defendants was reduced. The Supreme
Court ruled partially in favour of the defendants. The Supreme Court reversed
the judgment rendered in the fi rst instance, rejected the award of material
damages and decreased the compensation for moral damages to €48,080. With
regard to the pictures in issue no. 829, the Supreme Court considered that the
pictures represented a minor fault, thus fi xing moral damages at €12,020. With
regard to issue no. 985, the Court ruled that the model’s image was supplanted,
which was considered to be a major infringement of her right to privacy and
honour, thus quantifying moral damages of €36,060.
scenario and no damages would be awarded for the publication of

the picture.
A decision of the Spanish Supreme Court94 confirmed the principle
that the right to image does not deserve protection when the affected
is a public person and the image is taken in a public place. The case
concerned pictures taken of a famous married Spanish banker and his
lover in a federal reserve in Kenya. However, the Spanish Constitutional
Court reversed this decision, and held that the publication of the pic-
ture was unauthorised as the picture belonged to the personal and
privacy sphere, it was taken by a relative with his camera, and he was
on a family holiday.
Switzerland
I. Operative rules
Whether the princess is in the garden of her private villa or in the
garden of a restaurant she may bring a claim for the unlawful infringe-
ment of her private sphere as well as for an infringement of her rights
to her image. She may be able to receive restitution of profits earned
by the publication of the article, but she cannot force the magazine to
disclose the information and documents necessary for the calculation
and proof of such profits.

Before determining whether an individual’s personality has been
unlawfully invaded, two elements must be taken into account: on one
hand, the status of the person concerned, and on the other hand, the
three-sphere theory.
Whoever the individual concerned is, in a recent opinion the
Federal Court has adopted the German distinction between individ-
uals permanently belonging to contemporary history (absolute Person
der Zeitgeschichte) and those who occupy a temporary place in history
(relative Person der Zeitgeschichte).95 The fi rst category primarily includes
politicians, monarchs, and extraordinary figures of world economics,
science, entertainment, art, literature and sports. A public interest in
being informed exists when such people are concerned. The second
category includes people who fi nd themselves momentarily in the
spotlight; thus, reporting on them in relation to the event that made
them temporarily famous is not unlawful. In the Minelli opinion, the
94 95
STS, 21 Oct. 1997. ATF/BGE 127 III 481 c. 2c, JdT 2002 I 426 (‘Minelli’).
Federal Court also held that some intermediary categories exist. For
those, the interests present on each side must be balanced.96
As a general rule stemming from this decision, a princess belongs to
the category of permanent celebrities. However, this statement needs
to be nuanced in light of the recent ECtHR decision in von Hannover v.
Germany.97 For the ECtHR, the German approach (also adopted by Swiss
law) of making the protection of the private sphere depend on the
celebrity being in a secluded location and acting in a way that objec-
tively demonstrates the celebrity’s desire for privacy, lacks clarity and
does not enable an individual to know when he or she must submit
to others’ intrusion, most notably that of the tabloid press. More con-
cretely, the particular circumstances of a situation along with the offi-
cial position of an individual must be considered in order to determine
the appropriate degree of protection.
In Switzerland, the protection afforded by law depends on the sphere
concerned. The protection of the private and intimate spheres is broad.
However, the scope of the private sphere depends on a person’s notori-
ety and can be diminished according to the degree of the latter.
Case law affords great importance to the individual’s intent to keep
certain facts or activities out of the public eye. Interference with an
individual’s private life is only justified to the extent that it is linked to
the individual’s public function and that it respects the principle of pro-
portionality. In the von Hannover case, the Court considered as decisive
the fact that the princess had gone to an isolated place and objectively
demonstrated that she did not want to have photographs taken. The
Court broadened the protection of the private sphere in that celebrities
benefit more and more from a ‘travelling private sphere’, which also
applies when they appear in public. The Court has also become less
tolerant where the publicity’s sole function is to satisfy public curios-
ity about the details of a celebrity’s private life and does not relate to
photography or articles concerning the public or official functions of
the celebrity, which might contribute to public debate in the interest
of society as a whole.
In the case at hand, whether the photograph was taken in the gar-
den of the princess’ private villa, part of her private domain, or in a
restaurant does not make a difference. The fact that the paparazzo
96
ATF/BGE 127 II 481 c. 2c/bb, JdT 2002 I 426 (‘Minelli’).
97
Judgment of the ECHR of 24 Jun. 2002, von Hannover v. Germany, case no. 59320/00.
On this case see Part 4 of G. Brüggemeier, ‘Protection of Personality Rights in the
Law of Delict/Torts in Europe: Mapping out Paradigms’, in this volume.
must have used a telephoto lens supports the idea that the princess
had the precise intention of keeping the event out of public view.
The fact that she was with her family must also be given consider-
able weight. The meal enjoyed in the garden forms part of her private
sphere. Even though it was an event which took place in public, the
choice of the location indicates that the princess had no intention of
attracting attention.
In order to obtain restitution of the economic profit the tabloid
made from the publication of the photograph, the princess must initi-
ate a claim for the restitution of profits (Art. 28a, para. 3 CC). There
are four conditions to this claim: (1) there must be an infringement
of a personality right; (2) that infringement must be unlawful; (3) the
infringing party must have made a profit, in other words a net aug-
mentation of the income made after recovery of costs; and (4) a causal
relationship must exist between the infringement and the profit. With
respect to the third condition, the profit corresponds to the income
received because of an increase in circulation, deducting the value of
the photographer’s intellectual property rights (including copyright),
costs of paper, printing, and distribution. Taking into account the fact
that the individual harmed has no judicial means of demanding any
documents or information from the tabloid which would permit the
calculation and proof of the net profits received, the judge will usually
determine the amount of damages awarded, considering the ordinary
course of events (Art. 42, para. 2 CO).

Some media outlets have been using the private life or images of celeb-
rities more and more for commercial objectives. Technological progress
facilitates this trend. However, the phenomenon of ‘sensationalisa-
tion’98 also serves the interests of the celebrities because it increases
their notoriety. In addition, they use the exploitation of their images
to demand considerable damages. It is worth noting in this controver-
sial area that while Caroline of Monaco or other celebrities regularly
obtain large sums as a result of unauthorised publicity, the same is not
true for the average person.99 Courts are much less generous when it
98
Term borrowed from D. Barrelet, summarising the article of W. Larese, ‘Die
Genugtuung: ein verkanntes Instrument des Persönlichkeitsschutzes?’ (1997)
Médialex 139.
99
See F. Werro, ‘La tentation des dommages-intérêts punitifs en droit des médias’
(2002) Médialex 82 et seq.
comes to an average person; it seems that infringements of the person-

ality rights of the latter do not have the same value.
That being said, it is clear that the tabloid press and the paparazzi
behave in a manner that renders life quite difficult for individuals
who simply wish to have some sort of private life.100 In this sense,
the von Hannover decision, discussed above, sends out a positive mes-
sage that may serve to calm the vehemence of certain factions of the
press.
Comparative remarks
While Case 7 deals with all possible claims of persons – both celeb-
rities and ordinary citizens – photographed in public places without
their consent, Case 8 specifically focuses on the damages claims of
celebrities photographed outside their homes, but in places which are
clearly private or on the border between public and private. Cases like
this are frequently brought before courts all over Europe. Two main
questions arise. How is the confl ict between the privacy of celebrities
and the freedom of the (tabloid) press to be solved? If the personality
interest prevails and the celebrity has a claim for damages, how are the
latter to be assessed?
I. Privacy protection of celebrities inside their home

In all countries considered, it is unlawful to secretly photograph people
inside their residential areas with the help of a strong telephoto lens,
be it in flats, houses, gardens or on yachts. In these scenarios, contin-
ental European legal systems will acknowledge an unjustified viola-
tion of the photographed person’s right to privacy and/or right to one’s
image. Under English and Scots law, the claim will fall under breach
of confidence. In Ireland, a privacy action will probably be successful
under the European Convention on Human Rights Act 2003.
In many countries, the paparazzo will also be in breach of statutory
or professional duties. Some self-regulatory instruments such as the
UK Code of Conduct of the Press Complaints Commission expressly
disallow the use of a telephoto lens in private places. Finally, in some
countries such as Finland and Belgium the paparazzo will also be crim-
inally responsible.
100
D. Barrelet, ‘Un livre sur la santé d’un défunt chef d’Etat ne peut être interdit’
(2004) Médialex 168.
Beyond this, the unlawfulness will not only affect the paparazzo’s
conduct but also the publication of the photographs by a magazine.
II. Privacy protection of celebrities in semi-public places

Restaurants are in principle public places, however, they can more or
less offer privacy to their customers. People sitting in a terrace pizze-
ria in a crowded city square are of course more exposed to the public
eye than people sitting in the back garden of a countryside restaurant
at night. Most legal systems take such differences into account when
balancing the privacy interests of celebrities against the freedom of
the tabloid press. The English rule that regardless of the degree of pub-
licity of the place, a legitimate interest in protection is given where
there is a reasonable expectation of privacy is helpful. Whether or not
a certain location meets this requirement can only be assessed on a
case-by-case basis considering all of the circumstances. For example,
in England whether or not the princess was aware she was courting
publicity while going to the restaurant may play a role. If the answer
to this is in the affirmative the information in question will not be
confidential.
The Dutch Civil Code also makes use of the general notion of rea-
sonableness to distinguish the privacy interests which are worthy of
legal protection from those which are not. However, court practice
in the Netherlands leads to different results than in England. In the
Netherlands it seems that the publication of unauthorised photographs
of celebrities in public places is always allowed, unless these are defam-
atory or indecent.
On the contrary, in most legal systems considered, the publication
of a photograph of the princess sitting in the back garden of a country
restaurant will be deemed unlawful. In Finland, the publication gives
rise to criminal responsibility and accessory tort liability; in England
and Scotland to liability for breach of confidence; in Ireland to liabil-
ity for breach of privacy under the European Convention on Human
Rights Act 2003; in Austria, Belgium, France, Germany, Greece, Italy,
Portugal and Switzerland to civil liability for the violation of the right
to one’s image and/or privacy or the violation of an innominate person-
ality right.
The method of solution of the present case is basically the same in
Italy, Germany and Switzerland. However, even quite early on Italian
scholars and courts have rejected a privacy definition formulated in
spatial terms, preferring to draw the borderline between publicity and
privacy on the basis of value judgements only. On the contrary, German

and Swiss courts used to follow a spatial criterion. Accordingly, it is
unlawful to invade the privacy of celebrities in situations of ‘seclusion’
in which it is obvious that the persons in question want to be alone and
act as they would not do in public. In a famous German case, Princess
Caroline was photographed while having a meal with her then lover
in a dimly lit restaurant. The particular lighting conditions were con-
sidered decisive by the Bundesgerichtshof, which allowed the princess to
recover damages from the magazine.101 This has sparked some criti-
cism among scholars, who speak of a ‘30 Watt case law’ to point out the
vagueness and arbitrariness of this kind of distinction between lawful
and unlawful photograph publications.
To summarise, in most legal systems considered the princess would
enjoy the same privacy protection in the back garden of a country-
side restaurant as she would at home. The opposite is true for the
Netherlands and Spain. These two countries form their results on the
same ground: the princess is a public person, the restaurant is a pub-
lic place, and the act of sitting at a table having a meal has nothing
strange, defamatory or indecent about it.
III. Privacy and image rights of celebrities after

the von Hannover judgment
The traditional national approaches outlined above and in Case 7 will
have to be brought into conformity with the judgment of the ECtHR
in the von Hannover case.102 From the viewpoint of outcomes, the ECtHR
has followed the French and Belgian model: photographs concerning
a person’s private life can only be published with the person’s con-
sent, even in the case of celebrities portrayed in public places. From
the viewpoint of legal terminology, the ECtHR has primarily focused
on the right to privacy and less on the right to one’s image because only
the former is laid down in the ECHR.
The ECtHR has set clear rules on how to balance privacy against
freedom of the press. The latter prevails if the publication is concerned
with information about the exercise of official functions or is otherwise
related to the public debate or when the press is fulfilling its watchdog
function in political issues. To satisfy the mere curiosity of readers of
101
BGH, 19 Dec. 1995, BGHZ 131, 332; NJW 1996, 1128; see also BVerfG, 15 Dec. 1999,
BVerfGE 101, 361; NJW 2000, 1021.
102
Von Hannover v. Germany (2005) 40 EHRR 1; see already Brüggemeier, ‘Protection of
Personality Rights’ (in this volume) under 4.
tabloids is not a legitimate ground for exploiting and commercialising

the private life of celebrities.
To comply with Art. 8 ECHR, as interpreted by the ECtHR, German
and Swiss case law will have to restrict the traditional freedom of
tabloid press to report about celebrities and possibly to abandon the
notion of ‘absolute persons of contemporary history’. Dutch law has
to broaden the interpretation of the statutory notion of ‘reasonable
interests’ so as to include privacy in situations where celebrities ‘unof-
ficially’ appear in public. The same is true for Spanish law with regard
to the notions of privacy and intimacy.
IV. Damages and account of profits

In nearly all countries considered, when the publication is deemed
unlawful the princess has a claim for damages against the magazine
(as to the addressees see Case 1 Comparative Remarks IV.).
In France, Germany and Greece, compensation in the present case is
limited to non-economic loss. In the other legal systems, both damages
for economic and non-economic loss are recoverable. In most countries,
the profits made by the magazine through the deliberate unauthorised
use of the photograph will be taken into account in the assessment of
damages.
A complete restitution of the profits seems possible in Belgium,
Germany, Portugal, Spain, Switzerland and in the common law coun-
tries. In England, restitutionary damages were developed in equity on
the basis of the principle that profits made by exploiting confidential
information belong to the owner of the information who wants to keep
that information confidential. A substantively similar rule applies in
Belgium, where the princess can recover the profits she would have
made as economic loss if she had commercially exploited her image
herself.
In Germany, the princess can only claim skimming off the profits if
the editors of the magazine knowingly violated her personality right
(§ 687(2) BGB). In Spain, according to a specific statutory provision
the gains obtained by the tortfeasor are one of the decisive factors in
assessing damages for the violation of the claimant’s right to honour,
image or privacy. A similar rule is acknowledged in the Netherlands
and in Italian case law. However, in both Italy and the Netherlands the
application of this rule by the courts does not seem to grant complete
restitution but only a partial re-allocation of the profits.
In Germany, Spain, England and Scotland, the magazine is under a

duty to disclose information concerning the amount of profits earned
through the unlawful publication. In the other legal systems no duty
of this kind is acknowledged, although in some countries, such as Italy,
procedural mechanisms exist which could be applied in order to reach
this result.
In Finland, the princess cannot skim off the profits gained by the
magazine. However, these profits can be forfeited by the state as ben-
efits of a crime.
12 Case 9: Naked.Little.Girl.Com
Case
Susan and Robert sold a photograph of their four-year-old daughter
Lily, running naked on the beach, to a sun cream manufacturer. The
photograph appeared in several magazines as part of an advertisement
for the products of that firm. Kevin scanned the photograph and put it
on the internet, on a site called ‘naked.little.girl.com’. Can Lily claim
damages from Kevin? Is the internet provider liable?
Discussions
Austria
I. Operative rules
Lily has a claim against Kevin for the forbearance of future publication
of her picture on the internet, abatement, publication of the courts
findings and for compensation, as well as for a preliminary injunction.
In respect of the access and host provider, Lily cannot sue for damages
but has a claim for injunction.

The right to image (§ 78 UrhG; see Case 7) is not just restricted to adults
but also applies to children.
The consent of both Susan and Robert as Lily’s parents refers only
to the publication of the naked photograph in magazines as an adver-
tisement for certain suncare products. There seems to be nothing
sinister about this type of publication. However, advertising a naked
four-year-old girl on a website called ‘naked.little.girl.com’ appears to
have a more sinister connotation. As far as the parents’ consent (on
348
c a se 9: na k ed.lit t le.gir l .com 349
Lily’s behalf) is concerned, they have only given their consent for
the publication of the photograph in a certain medium (magazines).
Lily’s appearance on the internet, however, concerns both a ‘different
medium’1 and a ‘different public’2 (i.e. a different group of addressees).
Therefore, there is no valid consent.
Weighing the interest of Kevin to upload the picture onto the inter-
net against Lily’s right to image, it is without doubt that Kevin, as a
content provider, infringed the legitimate interests of the four-year-
old. Kevin probably committed a crime (pornographic presentation of
minors) under § 207a StGB (Strafgesetzbuch, Penal Code). Thus, he can be
sued for forbearance (§ 81 UrhG), abatement (§ 82 UrhG), damages for
economic and non-economic loss (§ 87, subs. 1 and 2 UrhG) and publica-
tion of the court’s findings (§ 85 UrhG), and furthermore for a prelimi-
nary injunction under § 381 EO.
This holds true even if Lily becomes a ‘public figure’ after being pub-
lished in several magazines. Her interests in relation to her future life
prevail over those of Kevin.
Since the publication on the internet has to be regarded as a ‘severe
infringement’, Kevin even has to compensate Lily for non-economic
harm (§ 87, subs. 2 UrhG).3
According to the Electronic Commerce Act 2001 (ECG),4 access and
host providers – who are, in most cases, just one person – are gener-
ally not responsible for internet content.5 Zankl compares the access
provider with the builder of a bridge who cannot be held liable for
a murderer driving his/her car over the bridge to the place of the
crime.6
1
See OGH MR 1997, 150; E. Swoboda, Das Recht der Presse (2nd edn., Vienna: 1999) 207
n. 433.
2
‘Andere Öffentlichkeit’ – see OGH MR 1996, 67: consenting to a television interview
does not mean consent to the publication of the picture in an article dealing with
neo-Nazism among civil servants.
3
See Case 7.
4
BGBl (Bundesgesetzblatt, Federal Law Gazette) I Nr 152/2001; on this, see W. Zankl,
E-Commerce Gesetz, Kommentar und Handbuch (Vienna: 2002). This statute implements
the Electronic Commerce Directive of the European Community 2000/31/EC.
5
Cf. § 13 (access-provider) and § 16 (host-provider) ECG. This was not the opinion of
the courts before the enforcement of the EC Act. Therefore, the Higher Regional
Court of Vienna for instance held that providers of online chat rooms have the duty
to remove insulting statements at least within a few days from their homepages
(OLG Wien MR 2002, 73).
6
W. Zankl, E-Commerce § 13 no. 186.
Both providers can only be held liable for damages if they definitely
knew of the unlawful content on their systems. However, they have no
duty to guard and examine their systems.
§ 19 ECG expressly states that claims for injunction against access
and host providers are always admissible. § 381 EO,7 on which indi-
vidual claims for a preliminary injunction are based, only demands
objective endangerment (objektive Gefährdung), which is not dependent
on the conduct of the defendant.8 Accordingly, the provider is bound to
block the illegal material on its system.
Belgium
I. Operative rules
Susan and Robert can claim damages from Kevin on Lily’s behalf.
Whether or not the internet provider is liable will depend on the par-
ticular circumstances.

Susan and Robert lawfully sold their daughter’s photograph. Parents
exercise the personality rights of their minor children who lack the
power of discernment. For minors with the power of discernment, par-
ents exercise the property rights of the personality rights (right to pub-
licity). These minors exercise their personality rights themselves.9
As Lily’s legal representatives, Susan and Robert can sue Kevin. Art. 10
of the Copyright Act prohibits the publication of a photograph with-
out the express consent of the person photographed or his/her legal
representative. Once consent is given, it is interpreted restrictively.10
Firstly, Susan and Robert can obtain an injunction (action en cessation).11
Secondly, they can sue for damages, albeit only compensatory damages;
the mere invasion of the personality right grants a right to damages for
non-economic loss. As far as economic loss is concerned, Kevin will be
7
See Case 1.
8
W. Zankl, E-Commerce § 13 no. 200; R. Holzhammer, Österreichisches Zivilprozeßrecht
(2nd edn., Vienna: 1980) 295.
9
Regarding the incompetence of minors, see generally: P. Senaeve, Compendium van
het Personen- en Familierecht, Deel 2 Familierecht (Louvain: 2003) 217 et seq.
10
See Case 7.
11
Comp. CA Liège (President) 28 Nov. 2001, JT 2002, 308, note by A. Cruquenaire and
J. Herveg, ‘La responsabilité des intermédiares de l’internet et les procédures en
référé ou comme en référé’.
able to assert successfully that Susan and Robert did not lose the possi-
bility to exploit the image themselves. However, a similar exploitation
would be contrary to the public order and parental duties.
Susan and Robert are entitled to claim against the internet service
provider. Under Art. 383bis of the Criminal Code, ‘the crime of (…) exhib-
iting or distributing, (…), pornographic material involving minors is
punishable with a sentence of imprisonment of between 5 and 10 years
and a fine of €500 – €1000 (x 5)’. Legal bodies are criminally respon-
sible in Belgian law (Art. 5 of the Criminal Code). Susan and Robert
can bring a civil claim for damages, parallel to a criminal prosecu-
tion. However, the judiciary holds that internet service providers are
not bound to systematically track down any illegal use of the internet.
Whether or not the internet service provider can be held to account
will depend on the particular circumstances, e.g. collaboration with
the prosecutor, preventive steps taken and immediate blocking of the
internet page after notification.12
England
I. Operative rules
The claimant may have a claim in copyright and defamation. The
internet provider might be liable in defamation and under Electronic
Commerce law.
II. Descriptive Formants

1. Claim for damages
(a) Breach of confidence In principle, remedies for breach of confi-
dence are available in cases where photographs have been taken in a
private situation and the negatives are used for further copies there-
after.13 The same should apply if reproduction does not take place
through copies made from negatives but through scanning. However,
in relation to the tort of breach of confidence a remedy would only
be available if the information imparted was confidential. Therefore,
12
Civil court Hasselt 17 Nov. 2000, AM 2001, 161. In general (on European
initiatives): K. Bodard, ‘Aansprakelijkheid van Internet Service Providers in
Europees perspectief’ in K. Byttebier, R. Feltkamp and E. Janssens (eds.),
Internet en recht (Antwerp: 2001) 285; A. Lucas, ‘La responsabilité civile des acteurs de
l’Internet’ (2001) AM 42; T. Verbiest and E. Wery, ‘La responsabilité des fournisseurs
de services Internet: derniers développements jurisprudentiels’ (2001) JT 165.
13
See Pollard v. Photographic Company (1889) LR 40 Ch D 345.
it must not be something which is public property and public know-

ledge.14 Since the photograph had already appeared in several maga-
zines it was clearly public knowledge.
(b) Copyright The original photograph taken was protected by copy-

right, and it is, generally speaking, an infringement to reproduce this
image by whatever type of process.15
(c) Defamation If the publication of Lily’s photograph on Kevin’s web-

site constitutes a defamatory statement, Lily can sue for damages.
If naked.little.girl.com was a pornographic website, the uploading of
Lily’s photograph on that website would imply that her parents have
consented to its publication, which is clearly defamatory. If it is just
another commercial website, the information would merely be that
Lily’s parents have sold Lily’s picture for commercial purposes, which
can, in principle, be a defamatory statement,16 but which is perfectly
true in this case.
The first problem is that Lily has probably not been named on the
website and therefore her parents will not be identifiable to the pub-
lic. They may, however, be identifiable to their friends and acquaint-
ances (who should not visit the website anyway if it shows child
pornography).
(d) Passing-off The tort of passing-off protects a person’s property

through his/her goodwill and therefore requires that a person whose
picture is used for advertising purposes without his or her consent has
marketable goodwill.17 Lily or her parents are not famous persons and
therefore cannot claim damages under the tort of passing-off.
2. Liability of the internet provider

The internet provider might be liable if the material on naked.little.
girl.com was defamatory. The issue of the liability of an internet
provider for defamation was considered for the first time in Godfrey
14
Saltman Engineering Co. Ltd v. Campbell Engineering Co. Ltd (1948) 65 RPC 203, at 215,
per Lord Greene MR; Mills v. News Group Newspapers Ltd [2001] EMLR 41, 957, at 968.
15
Creation Records Ltd v. News Group Newspapers Ltd [1997] EMLR 444, at 450. Notably,
English law recognises copyright in any photograph, regardless of its artistic value,
see, for example, A. Ohly, ‘Der Schutz der Persönlichkeit im englischen Zivilrecht’
(2001) 65 Rabels Zeitschrift für ausländisches und internationales Privatrecht 39, at 51.
16
See Tolley v. J. S. Fry and Sons Limited [1931] AC 333.
17
For details, see the answer to Case 10.
v. Demon Internet, dealing with the so-called Usenet.18 Morland J held

that internet providers are not only owners of an electronic device
through which postings were transmitted but that they are distribu-
tors in the sense of the law of defamation.19 In Godfrey, the defence of
innocent dissemination was not available since although the claimant
had complained to the internet provider by fax, the defendant only
took down the defamatory material after a fortnight.20
On 21 August 2002, the Electronic Commerce (EC Directive)
Regulations 200221 came into force, implementing the Electronic
Commerce Directive 2000/31/EC. Liability for hosting is regulated
under Reg. 19, according to which the service provider shall not be lia-
ble for damages or for any other pecuniary remedy, or for any criminal
sanction as a result of that storage where:
(i) the service provider does not have actual knowledge of unlawful activity or
information and, where a claim for damages is made, is not aware of facts or
circumstances from which it would have been apparent that the activity or
information was unlawful; or upon obtaining such knowledge or awareness,
acts expeditiously to remove or to disable access to the information; and
(ii) the recipient of the service was not acting under the authority or the control
of the service provider.
The solution under Reg. 19 of the present case would be identical to the
solution under the common law of defamation.
Finland
I. Operative rules
Lily probably cannot claim damages from Kevin or from the internet
provider.

As was described in Case 7, in principle a person does not have a right to
his or her own picture per se. Only if the publishing occurs in a defamatory
18
Godfrey v. Demon Internet Ltd [2001] QB 201.
19
Ibid. at 209. On the notion of distributors, see the answer to Case 1. It should
be noted that each visit to the respective webpage constitutes an actionable
publication. This is particularly important for the limitation period of one year
for claims under the law of defamation, see s. 4A of the Limitation Act 1980: it is
not only the first visit of any person to the webpage that determines the limitation
period applicable (so-called single publication rule), but the limitation period starts
anew with each visit. See Loutchansky v. Times Newspapers Ltd (No. 2) [2001] EMLR 36,
876, per Gray J.
20 21
Godfrey v. Demon Internet Ltd at 212. SI 2002/2013.
way or for marketing purposes does the person photographed have a right
to damages. It has to be considered that the picture of Lily had previously
been part of an advertisement and can hardly be viewed as pornographic
material. According to Ch. 17, s. 18 of the Finnish Penal Code, the dis-
semination of pornographic pictures of children is prohibited. However,
the fact that a child is nude in a picture does not make it pornographic as
such. Only if the picture is contrary to sexual decency can the dissemi-
nation of that picture be a crime.22 The fact that Lily has appeared in an
advertisement seems to imply that the picture is not pornographic.
If Kevin has put the picture on the site ‘naked.little.girl.com’ as a
private person and the site is not a commercial one, then the possi-
bilities for Lily to claim damages are non-existent, regardless of the
fact that Kevin or the internet provider can be found guilty of a crime
because of any other pictures on the website that can be considered
pornographic. Lily’s right to compensation is to be judged only on
the basis of the picture which has appeared on the suncare adver-
tisements and not on the basis of Kevin’s or the internet provider’s
execution of other crimes in connection with the site called ‘naked.
little.girl.com’.
If the internet site is lawful, regardless of its provocative name, and
it is of a commercial nature, Lily may have a possibility to claim com-
pensation for the use of her picture. The right to damages is judged as
in Case 7.
As Lily apparently is not the holder of any copyright to the picture,
Lily is not entitled to damages on this ground either.
France
I. Operative rules
Lily has a claim for an injunction against Kevin and the internet pro-
vider, but can only claim damages from Kevin.

The enforcement of the personality rights of minors, notably the right
to their own image, presupposes the action of their legal representa-
tives, in practice their parents.23 Thus, Lily cannot bring a cause of
action alone, but only assisted by her parents Susan and Robert.
22
Government Bill 6/1997 p. 147.
23
TGI Nanterre 23 Jan. 2002, Légipresse 2002, No. 190, I, 46: ‘an action brought in
the name of minor children, which is of non-economic nature as it concerns
The authorisation for the use of the photograph in question was

only given to the sun cream manufacturer for the advertisement of
its products and does not apply to third parties. It is a firmly estab-
lished principle of French law that the consent given for the use of an
image is unique and only benefits the person to whom consent has
been granted and only for those uses which have been agreed upon
by the parties.24 The French courts have thus frequently held that ‘all
persons have a right to their image and the use thereof permitting
them to oppose its unauthorised reproduction or dissemination. The
burden of proof of authorisation, of its limits and its conditions is on
the person who reproduces the image’.25 Lily and her parents’ claim
against Kevin will thus be allowed by the French courts, which will
order the removal of the controversial photograph from the site in
question and will grant damages for non-economic loss, as is usual
in such cases. In relation to the amount to be granted, it may well be
substantial: Kevin’s site is clearly all too immoral. The title of his site
leaves no doubt as to the sexual, if not paedophiliac connotation of its
content.
Concerning the liability of the internet provider, the Act of 1 August
2000 (which amended the Freedom of Commu nication Act 1986),26
drawing on the principles established in the Electronic Commerce
Directive of 8 June 2000, establishes the rule that access providers
shall not be responsible for the content on their network and that
host providers are only liable in tort in situations in which, ‘having
been asked by a court, (they) have not acted promptly to block access’
to the content which they store. Accordingly, in current French law,
host providers are exempt from all obligations of surveillance and
rejoinder, except where a judge, having observed the illegal nature
of certain content, has ordered an injunction blocking access to that
content. Therefore, they are not required to react when sued by the
victim. The illegal content can thus remain accessible online for a
certain period of time after the victim has had knowledge thereof
personality rights, must be brought jointly by both parents’; TGI réf. Toulouse
8 Mar. 2002, Légipresse 2002, No. 191, I, 53.
24
Lucas-Schloetter, Droit moral et droits de la personnalité. Etude de droit comparé français
et allemand (Aix-en-Provence: 2002) No. 479–480. See, e.g., Cass. civ. 30 May 2000, JCP
2001, II, 10524, sanctioning ‘the publication of photographs (which) do not respect
the purpose envisaged in the authorisation given by the person concerned’.
25
CA Versailles 19 Sept. 2002, Légipresse 2002, No. 198, I, 6.
26
Loi n° 2000–719 du 1er août 2000 (D. 2000, leg., 357) modifiant la loi du 30 sept. 1986
relative à la liberté de communication.
and has initiated legal action before a court.27 The Act of 1 August
2000 was modified by the Act of 21 June 2004 on confidence in the
digital economy (la loi pour la confiance dans l’economie numérique,
so-called LCNE). The latter Act is the transposition, with an eighteen-
month delay, of the EC Directive on e-commerce of 8 June 2000.28 Art.
6-I 7° LCNE, drawing on Art. 15 of the Directive, sets out the prin-
ciple of absence of a general obligation of surveillance on the part
of internet service providers.29 Furthermore, the Act distinguishes
between access providers (Art. 9 LCNE) and host providers (Art. 6-I
LCNE). The criminal responsibility of host providers is treated dis-
tinctly from civil liability: on this point the formulation of the LCNE
is very close to that of the Directive. Both criminal and civil liability
are only engaged when the host provider had ‘effective knowledge’
of the unlawfulness of the stored information, or when the host pro-
vider, after gaining knowledge of it, did not ‘act promptly in order
to withdraw this information or in order to make the access thereto
impossible’.30 The absence of responsibility of host providers is thus
counterbalanced by an obligation to react promptly, to which a pre-
sumption of knowledge of the contested facts is added, once a certain
amount of information has been communicated to the host provider
and notably the reasons why that specific content must be withdrawn
(Art. 6-I 5° LCNE).
Having recognised the injury to the right to one’s own image and
Lily’s right to privacy, the judge can order Kevin to withdraw the pho-
tographs in question from his site and require the host provider to
ensure that the obligation is fulfilled. However, only Kevin would be
ordered to pay damages, since French law refuses to place the burden
of a general duty of surveillance on web hosts.
27
Passa, ‘Internet et droit d’auteur’ (2001) 1970 Juris-Classeur Propriété Littéraire et
Artistique, n°191. Derieux, ‘Internet et droit de la communication’ (2002) 1300 Juris-
Classeur Communication n°62.
28
The Act of 1 Aug. 2000 was inspired by the Directive but did not transpose it into
French law.
29
Art. 6-I 7° LCNE: ‘The persons mentioned under 1 and 2 (access providers and host
providers) are neither under a general obligation of surveillance concerning the
information transmitted or stored, nor under a general obligation to research facts
or circumstances revealing illegal activities.’
30
For an example, see TGI Paris 19 Oct. 2006, Légipresse 2006, No. 237, I, 174: the host
provider ‘is not responsible for the content of the hosted site’, and ‘must withdraw
the stored data or make access thereto impossible from the moment when the host
provider receives knowledge of the manifest unlawfulness of the data, or when a
judicial decision has ordered that this be done’.
Germany
I. Operative rules
Lily has a claim for an injunction against Kevin and the internet pro-
vider but can only claim damages from Kevin.

The claim for an injunction against Kevin is based on Lily’s right to
control the publication of her image according to §§ 22, 23 KUG. The
right to one’s image, as well as the general personality right, not only
belongs to adults, but also to children, regardless of whether they con-
sciously experience an infringement of these rights.31 The publication
on the internet has not been consented to by Lily’s parents and Lily’s
appearance in certain advertisements does not make her a public fig-
ure.32 This could be different if Lily were the object of public interest
for other reasons; for example, a German court decided that it was
not unlawful for a newspaper to publish and comment on a nude
photograph of the famous ice skater Katharina Witt after she had
authorised the publication of this photograph in Playboy magazine.33
As stated above, damages for non-economic loss can only be awarded
for serious infringements of personality rights. However, the publica-
tion of a naked photograph is generally seen as such a serious infringe-
ment.34 One could still argue that in this case the infringement is less
serious since Lily (acting through her parents) has already consented to
appear naked in public. This argument may become relevant in cases
such as the Katharina Witt case described above where someone has
consented to the publication of certain pictures in one magazine and
then claims damages for non-economic loss from a second magazine
which publishes these pictures.
In the present case, this ‘prior publication’ argument does not apply
since the circumstances of publication are very different. The prior
publication was obviously of a rather innocent character, while Kevin’s
publication seems less innocent and must therefore be regarded as
causing serious non-economic harm. Thus, an award for non-economic
31
BGHZ 120, 29, 35 (in a somewhat different context, but with a general scope); LG
Berlin, GRUR 1974, 415 (specifically regarding pictures).
32
Compare BGH, NJW 1985, 1617, 1618 (prior publication of nude photograph in
school book does not make later publications lawful).
33
OLG Frankfurt/M., NJW 2000, 594, 595.
34
BGH, NJW 1985, 1617, 1619; OLG Hamm NJW-RR 1997, 1044; LG Berlin, GRUR 1974,
415; J. Soehring, Presserecht (3rd edn., Stuttgart: 2000) 667.
loss will be given, although it may be less than what would be given
to an adult. One court decision suggests that for a small child there is
less harm since its facial features will change over time so that after a
while it will hardly be identifiable.35
The liability of the internet provider is regulated by the German
Parliament according to the Electronic Commerce Directive of the
European Community.36 The provisions distinguish between the
‘content provider’, the ‘host provider’, and the ‘access provider’. In this
case, Kevin is the content provider and is therefore liable according to
general principles as stated above. The access provider only provides
technical access to the internet for the customer and is free from all
liability.37 The host provider ‘hosts’ other people’s content on data
storage systems, but is not obliged to search this content for unlaw-
ful material. He/she is only liable for damages if he/she intentionally
hosts unlawful material on his/her systems, that is if he/she defin-
itely knows that such material exists on his/her systems and still does
not act to remove it; Art. 14(1) E-Commerce-Directive, § 10 German
Telemediengesetz.38 However, these rules still allow an injunction against
the host provider which does not require any fault on the part of the host
provider. This follows from § 7(2) Telemediengesetz,39 which implements
Art. 14(3) E-Commerce Directive.40 However, the wording of the injunc-
tion should consider that the provider must delete or block the illegal
material when it is found, but cannot be forced to control whether the
same material is placed on the provider’s storage systems again.41

There seems to be a tendency in the European Commission to eco-
nomically support electronic commerce suppliers by freeing them
from as much liability as possible.42 In this light, one might even read
35
LG Berlin, GRUR 1974, 415.
36
Electronic Commerce Act of 14 Dec. 2001; for an overview see G. Spindler,
‘Das Gesetz zum elektronischen Geschäftsverkehr – Verantwortlichkeit der
Diensteanbieter und Herkunftslandprinzip’ (2002) Neue Juristische Wochenschrift 921.
37
Regarding criminal law, see LG München I, NJW 2000, 1051 (Compuserve).
38 39
Formerly § 11 Teledienstegesetz. Formerly § 8(2) Teledienstegesetz.
40
OLG München 17.5.2002, NJW 2002, 2398, 2399; G. Gounalakis and L. Rhode,
Persönlichkeitsschutz im Internet (Munich: 2002) 192. See also recital 45 in the Preamble
to the E-Commerce-Directive; E. Crabit, ‘La directive sur le commerce électronique.
Le projet “Méditerranée”’ (2000) Revue du Droit de l’Union Européenne 749, 814.
41
Spindler, ‘Das Gesetz zum elektronischen Geschäftsverkehr’ at 921, 925.
42
Typical of this idea is recital 5 in the Preamble to the E-Commerce-Directive which
bemoans legal obstacles to the development of electronic commerce, although, in
Art. 14 E-Commerce Directive in a way that would prohibit an injunc-

tion against the host provider. However, such an interpretation would
mean that the traditional media and the new electronic media would
be treated differently: with respect to print media, for example, the
rule is clear. An injunction can even be brought against a distributor
who unwittingly distributes unlawful material, since the interest in
stopping the distribution should prevail.43 There is no normative rea-
son why the outcome should be different with respect to the electronic
media.44
Greece
I. Operative rules
The child can claim damages from the photographer, however not
personally but through her parents acting as her legal representatives
before the courts.

As already stated in Case 7, taking a picture of a person without his/
her prior consent constitutes an unlawful offence against his/her
personality right within the meaning of Art. 57 CC. According to
the Supreme Court (Areopag) ‘un unlawful injury to personality …
includes the use of a person’s image for commercial exploitation with-
out his consent. … the injury is more severe when, in the picture
used, the person is presented naked or partially-naked, even though
this photograph was produced in the past, for other reasons and with
the person’s consent’.45
According to Art. 1510 CC ‘care for a minor child is a duty and a right
of the parents (parental care) and is exercised jointly. Parental care
includes care of the child’s person, the management of its property and
the representation of the child in any matter, legal transaction or court
action relating to its person or to its property.’
According to s. 45 of the E-Commerce Directive the internet ser-
vice provider, as the technical support intermediary in uploading
fact, it seems that most problems of electronic commerce are simply due to bad
management and a lack of utility for consumers.
43
See, e.g., E. H. Burkhardt, in K. -E. Wenzel, Das Recht der Wort- und Bildberichterstattung
(5th edn., Colonge: 2003) 845.
44
A. Halfmeier, ‘Vom Cassislikör zur E-Commerce-Richtlinie: Auf dem Weg zu einem
europäischen Mediendeliktsrecht’ (2001) ZEuP 837, 867; LG Köln, MMR 2002, 254.
45
webpages onto the internet, has to immediately block pages with

illegal content.46
Ireland
I. Operative rules
Lily would not be able to claim damages from Kevin. It is likely that the
internet provider would be criminally liable.

Lily could not succeed in an action for infringement of copyright as she
did not take the photograph. If Susan or Robert took the photograph of
Lily then they would be considered the first owners of the copyright.47
It would appear from the above scenario that the sun cream manufac-
turer purchased the photograph of Lily for specific use in its promo-
tional material and therefore it would seem that the manufacturer was
assigned the copyright. In order for any such assignment to be effective
it must be in writing and must be signed by the assignor.48 However, even
if Susan and Robert had assigned the copyright to the sun cream manu-
facturer it would seem reasonable that they would have done this subject
to certain restrictions such as what the photograph could be used for.49 If
that were the case, Susan and Robert could bring an action against Kevin
for an infringement of copyright. If no such express limitation was in
place, Susan and Robert could rely on a right to integrity which arises
automatically under s. 109(1) of the Copyright and Related Rights Act
2000. This section provides the author with ‘the right to object to any
distortion, mutilation or other modifications of or other derogatory act-
ing in relation to the work which would prejudice his or her reputation
…’ It could certainly be argued that Kevin’s posting of the photograph on
a website called ‘naked.little.girl.com’ would be in breach of this right to
integrity, particularly if the website is pornographic.
The right to privacy has been recognised as an unenumerated con-
stitutional right under Art. 40.3 in limited circumstances.50 It is not
46
See Court of Athens Decision 1639/2001.
47
S. 21(h) of the Copyright and Related Rights Act 2000.
48
S. 47(3) of the Copyright Act 1963 and s. 120(3) of the Copyright and Related Rights
Act 2000.
49
S. 47(2) of the Copyright Act 1963 and s. 120(2) of the Copyright and Related Rights
Act 2000.
50
McGee v. AG [1974] IR 284 (SC); Kennedy and Arnold v. Ireland [1987] IR 587; and Norris
v. AG [1984] IR 36.
certain whether a private citizen could instigate proceedings for

breach of privacy in Lily’s situation. To date, the courts have indicated
that an expansion of the right to privacy should be left to the legisla-
ture.51 However, since the enactment of the European Convention on
Human Rights Act 2003, it could be argued that Lily’s right to privacy
under Art. 8 was breached by the publication of the photograph in this
manner by Kevin. Such an argument could be developed in conjunc-
tion with the Irish constitutional case law already in existence on the
matter. However, because Susan and Robert have already agreed to sell
the photograph, such an action might be difficult to sustain.
To succeed in an action for breach of confidence, Lily would need to
establish that the information was communicated in circumstances
which gave rise to a confidential relationship and this is not the case
here.52 Furthermore, the information would not appear to have the
‘necessary quality of confidence about it’ and as it had already appeared
in the public domain any such action would consequently fail.53
Under the Child Trafficking and Pornography Act 1998, trafficking
and the use of children for purposes of sexual exploitation are prohib-
ited. It is an offence to produce, disseminate, handle or possess child
pornography which includes both visual and aural representations of
children.54 For the purposes of the Act, a child is any person under the
age of 17.55 Penalties include imprisonment and a fine.56 Thus, if the
images were deemed to be pornographic the internet provider could be
found liable if they knowingly allowed the publication of the images.
Italy
I. Operative rules
Lily can recover damages from Kevin. The internet provider is not
liable.

The reproduction of the photograph on the website is unlawful.
According to Art. 96 CA, publication requires the permission of the per-
son portrayed. Lily does not have the competence to decide. Therefore,
the declaration must come from her parents.57 They agreed to the
51
Per O’Hanlon J. in Maguire v. Drury [1995] 1 ILRM 108 at 116.
52
53 54 55 56
Ibid, Costello J at 660. SS. 5(1) and 2(1). S. 2(1). S. 5(1).
57
See Trib. Catania 16 Dec. 1982, Giur. merito 1984, I, 855; Trib. Torino 15 Jan. 1994, Dir.
ind. 1994, 723.
commercial exploitation of the picture. However, one cannot assume

that the photograph, once published, becomes a public good. Consent
to interference with personality rights is both subjectively and object-
ively restricted and is subject to a narrow interpretation.58 In these
matters, no doctrine of ‘exhaustion’ is accepted. Therefore, the permis-
sion given by Lily’s parents does not include any derivative use of the
photograph: Lily’s picture cannot be used by persons other than the
licensee for other purposes or in other contexts.
In this case, the context is not only different, but also humiliating.
It is true that Lily was initially depicted naked. However, the portrait’s
reproduction in an advert for sun cream is not comparable to publi-
cation on a website with erotic or pornographic features.59 Therefore,
Lily’s rights to likeness, honour and personal identity were infringed.
Lily’s parents, acting on her behalf, can recover damages for non-
economic loss from Kevin (Art. 2059 CC; Art. 15 (2) DPC).
The liability of the internet provider is regulated by decreto legislativo
9–4–2003, n. 70, implementing the E-Commerce Directive 2000/31/EC.
This Act follows the same principles set out in the Directive. As a result,
the host provider is only liable for damages if he/she has actual know-
ledge of illegal material stored on his/her system and still does not act
to remove it (Art. 16).60 In any event, there is no general obligation to
monitor transmitted or stored information, nor a duty to actively seek
facts or circumstances indicating illegal activity (Art. 17). Therefore, if
the internet provider has no actual knowledge of the unlawful publi-
cation of Lily’s picture and no authority has given notice of the illegal
material stored on the website, it is not answerable for any loss suf-
fered by Lily. Only Kevin is liable as the content provider.
The Netherlands
I. Operative rules
Lily can claim both damages for economic and non-economic loss from
Kevin. The internet provider is liable if it posts the photograph on the
58
Cass. 17 Feb. 2004 no. 3014, La resp. civ. 2004, 112; Cass. 10 Jun. 1997 no. 5175, Foro it.
1997, I, 2920; A. De Vita, ‘Art. 10’, in A. Pizzorusso, R. Romboli, U. Breccia and
A. De Vita, ‘L e persone fisiche’, in F. Galgano (ed.), Commentario del Codice Civile
Scialoja-Branca (Bologna/Rome: 1988) at 564 et seq.
59
For a similar case, see Trib. Bologna 27 Nov. 1997, Dir. aut. 1998, 521; see also
Trib. Bari 13 Jun. 2006, Dir. Internet 2006, 563 with commentary by L. Trucco,
‘Pubblicazione d’immagini personali in Rete e responsabilità del provider’.
60
On this matter, see Trib. Bari 13 Jun. 2006, Dir. Internet 2006, 563.
site or if he/she does not remove the photograph after having been
informed that it is unlawful.

Kevin published the picture without the consent of Lily’s parents and/
or Lily. In relation to the context in which the picture has been pub-
lished (Case 1, circumstance (d)), the internet site ‘naked.little.girl.com’
which has sexual, pornographic and erotic connotations, this consti-
tutes an unlawful act towards Lily.61
The fact that Lily’s parents sold the picture to a sun cream manu-
facturer and knew that the picture would appear in an advertisement
in several magazines implies that they gave consent for publication in
that context.62 It does not imply that they consented to the publication
of the picture on an internet site aimed at pornography and/or sexual
expressions.63
Lily can claim damages from Kevin. Her claim for economic loss
suffered is based on Art. 6:96 BW. She can receive damages for non-
economic loss if she proves that her person was infringed (Art. 6:106
BW ).64
With regard to the internet provider, the same standards apply as
for publishers and other intermediaries in the process of communica-
tion.65 If the internet provider posted the publication on the site he/she
is jointly and severally liable (Art. 6:6, s. 2 jo. Art. 6:102 BW ).
If the internet provider was not involved in posting the picture on
the site, whether he/she has a duty to take measures depends on the
circumstances involved. If he/she has been informed of the fact that
one of the users of his system acts unlawfully by infringing someone’s
personality, he has to take measures. If this is the case, Lily can claim
an injunction to have her picture removed from the site. If the pro-
vider does not remove the picture he is jointly and severally liable for
the loss Lily suffers as a consequence of her picture being posted on
the internet site.
61
HR 30 Oct. 1987, NJ 1988, 277 (Naturist Guide); Court of Appeal Amsterdam,
10 Sept. 1998, Mediaforum 1998–11/12, no. 52; G. A. I Schuijt, Losbladige Onrechtmatige
Daad, Hoofdstuk VII (Deventer: 2000) no. 128.
62
Court of first instance Utrecht, 18 Mar. 1999, Informatierecht/AMI 1999–6, pp. 94–6.
63 64
HR 30 Oct. 1987, NJ 1988, 277 (Naturist Guide). Ibid.
65
Portugal
I. Operative rules
Lily is entitled to compensation from Kevin for non-economic loss. The
internet provider is only liable if it refuses to remove the photograph
after being asked to do so by Lily, represented by her parents, and either
following a decision by a supervisory authority or a court injunction.

Art. 81 CC prohibits, in principle, ‘any voluntary limitation of person-
ality rights, if contrary to the principles of “public order”’ (para. 1).
However, para. 2 states that, when admissible, voluntary limitations
of personality rights are freely revocable, even though compensation
may have to be paid to the other party for the loss caused to his/her
legitimate expectations.
Selling the photograph of a naked four-year-old girl to a sun cream
manufacturer to be used as a commercial advertisement is not unlaw-
ful in itself. However, the use of the image of minors in advertisements
is limited by Art. 14 of the Code of Publicity66 (Código da Publicidade,
CPub) to cases where there is a direct relationship between the minor
and the product or service to which the advertisement relates. This has
to do with protection of minors and restricting (ab)use of their images
in advertising. The wording of this case does not exclude the lawful use
of the photograph in the advertisement of sun cream if it is specially
designed for babies or young children and if the parents consent.
Moreover, it is seriously immoral and unlawful to publish the said
photograph on an internet site called ‘naked.little.girl.com’. This prac-
tice has nothing to do with the aim for which the consent for publica-
tion was given and constitutes clear abuse. The general rule, as stated
above, is that someone’s picture may not be displayed, reproduced or
commercialised without his/her consent (Art. 79 CC), unless a lack of
consent may be justified by one of the reasons mentioned in para. 2
of Art. 79 CC. One of those justifications is the reproduction of the
image framed within a public place or facts of public interest or which
have taken place in public. Kevin can therefore allege that the pic-
ture depicts facts (running on the beach) which have taken place pub-
licly (a public beach, we presume). Still, Lily can counter-allege that
framing the image within a public place does not, by itself, justify the
66
Decree-Law no. 330/90, 23 Oct.
freedom to publish the picture (STJ 8.11.2001). In addition, her image

in an advertisement campaign was not harmful to her reputation or
honour, but having it on an internet website called ‘naked.little.girl.
com’ is, on the contrary, very offensive to her honour and reputation.
According to Art. 79(3) CC, posting the image on that website can be
considered a wrongful act. Therefore, on the grounds of Arts. 70 and 79
CC, Lily, represented by either of her parents, may file for an injunction
to remove the photograph from the internet, which would most likely
be granted. She is also entitled to compensation for non-economic loss
on the grounds of Arts. 483 and 496 CC.
In relation to consent, Art. 340 CC determines that the infringe-
ment of a right is lawful as long as the person entitled to this right
has consented to that infringement (i.e. to the individual harmful con-
duct). Furthermore, in respect of the right to image, consent is only
valid if it refers to a specific picture, not any picture of that person
(STJ 8.11.2001). Lily, through her parents, only gave consent to the sun
cream manufacturer, not to Kevin. In addition, even if consent had
been given to Kevin, posting that picture on a website with such a
name could easily be connected to paedophiliac activities. Since paedo-
philia is a crime (Art. 172 CP) and completely against public order and
morals, at any rate any consent would be considered void and Kevin’s
conduct would be wrongful (Arts. 81(1), 280(2) and 340(2) CC).
In respect of the internet services provider (ISP), Portugal has trans-
posed Directive 2000/31/EC, regarding e-commerce, through Decree-
Law no. 7/2004, 7 January. The ISP is not obliged to monitor the legality
of the contents of the sites hosted (Art. 12). The ISP can only be liable
if it refuses to remove the photograph, after being asked to do so by
Lily, represented by her parents. After the request to remove unlaw-
ful contents (image, text or other), the ISP either acts accordingly or
bears the responsibility for failure to act and for maintaining the sta-
tus quo (Arts. 13 and 16). In the latter scenario, a claim for damages
can be lodged based on the provisions mentioned, in connection with
Arts. 483 and 496 CC. If the wrongfulness of the contents in question
is not obvious, the ISP is not obliged to remove them or block access
to them (Art. 18). Whoever believes that certain internet content is
somehow wrongful can complain to the Portuguese Communications
Supervisory Authority,67 which has to provide a temporary solution
(Art. 18(2)). On the other hand, if someone is interested in keeping such
67
ICP-ANACOM, www.icp.pt/.
content available on the internet he/she can appeal to the Authority

against any decision made by it to remove such content (Art. 18(3)).
Besides these administrative instruments, one can simultaneously
resort to a court action (Art. 18(8)).
Scotland
I. Operative rules
Lily’s civil law claim is restricted to an action against Kevin for dam-
ages for breach of statutory duty under the Data Protection Act 1998
rules. The internet services provider (ISP) will only incur liability if it
ignores prior notification to remove the data. A criminal prosecution
under the relevant provisions of the Scottish equivalent of the English
Protection of Children Act 1978 as amended, i.e. the Civic Government
(Scotland) Act 1982, is possible.

A website showing a photograph of a naked child under a domain
name which has child abuse/paedophiliac overtones raises various
civil and criminal law issues. In relation to the photograph itself, copy-
right law remains narrow in its scope of protection and therefore dif-
ficult to invoke here. This is all the more so where the photograph has
previously been licensed or sold to an advertising agency. There is no
recourse here to s. 85 of the Copyright, Design and Patents Act 1988
(owners’ right to restrict use), as the parents cannot claim that the
photograph was either commissioned for private purposes or subject
to their control. Lily’s parents have consented to the photograph being
used for specific commercial purposes in the first place. Only Lily’s
moral right to her picture remains unaffected.68
Nevertheless, the parental consent/licence cannot be deemed to
automatically extend to all subsequent (ab)use. In view of its previ-
ous use in advertising, a claim for defamation may well fail on the
grounds that the photograph has already appeared in the public
sphere as an advertisement.69 Although the photograph is in the pub-
lic domain, the law of privacy and confidentiality may offer some
protection, particularly as Lily is a minor. In the Douglas case, both
68
S. 85 Copyright, Patents and Design Act 1998. The moral rights still attach to Lily
and can be claimed through her parents on her behalf.
69
See Charleston v. NGN [1995] 2 WLR 450 – not libellous to use the photograph of a
well-known actress on a pornographic computer game.
the court of fi rst instance and the Court of Appeal conceded that
there had been a breach of confidence through the unlawful com-
mercialisation of personal information in photographs by a maga-
zine competing against the magazine to which the exclusive rights
in the wedding photographs had been contracted. It is not declared in
this case whether Kevin is working for profit or not. It is possible to
claim breach of confidence along with invasion of the right to privacy
against Kevin (following the judicial statements in the cases reported
previously it appears obvious that privacy covers situations where
children are exposed distastefully), but criminal law appears to offer
a stronger line of action.
Some assistance can be found in the particular statutory provisions
prohibiting the publication of photographs of children, particularly
where these are lacking innocence or are obscene. Photographs of chil-
dren, whether decent or not, are subject to special statutory restric-
tions and it is an indecent offence to possess an obscene photograph
of a child.70
The case raises strong data protection aspects. Kevin is required by
the Data Protection Act 1998 (DPA) to provide the source of the data and
accompanying information on communication, and is liable under those
provisions where there is no authorisation by the data subject.71 Kevin is
a data controller for the purposes of the Act and must comply with the
data processing principles under s. 4(3) DPA. Data subjects have a right
to access the information processed under s. 7, including the right to
prevent processing likely to cause distress under s. 10. Failure to comply
with the data protection rules leads to liability for breach of statutory
duty and prosecution under s. 60 DPA. This ground of action has been
reinforced by the Directive on Privacy and Electronic Communication
2002/58/EC,72 which has since been transposed in the UK.73 These rules
are limited in scope to providers of public communication services so
that Kevin is excluded from their ambit. The provisions of the Data
Protection Act remain unaffected.
70
In both Scotland and England it is an offence to have or take obscene photographs
of children. Protection of Children Act 1978, as amended in 1994 applies in
England; R v. Fellows [1997] 2 All ER 548. It is regulated by the Civic Government
(Scotland) Act 1982, Ch. 45, s. 52.
71
See s. 10 Data Protection Act 1998; s. 13 (compensation). See generally, I. Lloyd, Legal
Aspects of the Information Society (London: 2002) para 3:60 ff.
72
OJ L201/37 of 31.07.2002.
73
The Privacy and Electronic Communications (EC Directive) Regulations 2003, SI
2003/2426.
1. Liability of provider
The public policy element of publishing an online photograph of a
minor requires the regulators of internet services to act against
publication in the circumstances outlined in the instant case. The
E-commerce Directive 2000/31/EC was transposed into UK law by the
Electronic Commerce Regulations 2002.74 The Regulations contain a
two-fold approach to regulatory matters, including provider liability.
Monitoring and shut down control by the regulatory authority occurs
in cases where matters of public policy are endangered (this would
extend to a case where minors are involved). Nevertheless, the liabil-
ity of the ISP under the regulations is limited where the content is
displayed unknowingly. An ISP can escape content liability under
these circumstances. Prior notice to remove must be served on the
ISP.75 The ISP is only liable under these provisions once it has been
notified and only fails thereafter to take reasonable steps to remove
the publication.
Spain
I. Operative rules
Lily’s representatives can claim damages and an injunction from Kevin
as the authorisation to publish the picture was only given to the sun
cream manufacturer. If the internet service provider has no actual
acknowledge of the illegal content it will not be held liable.

Kevin should have asked Lily’s parents for permission to publish the
photograph.76 Otherwise, he is liable for harm and has to remove the
photograph from the internet. Therefore, the parents can claim for an
injunction against Kevin, according to LO 1/1982.
In addition to injunctive relief, the amount of damages to be
awarded could be interesting because Kevin could argue that
74 75
SI 2002/2013. Reg. 19, SI 2002/2013.
76
STS, 24 Apr. 2000 (RJ 2673), dealt with this topic. This case concerned the wedding
of the sister of a famous Spanish television actress (Lydia Bosch). The company
who took the wedding photographs sold some pictures to a famous magazine, who
published them. The Spanish Supreme Court condemned the agency and ordered
the magazine to pay €3,000 for illegitimate interference, given that, although
express permission was given for taking the photographs, there was no consent for
publication, which must be expressly given. Moreover, Lydia’s sister is not a public
person and her domicile is not a public place.
hundreds of people had already seen the picture of Lily naked in

the sun cream advertisement so no damage was caused. We consider
that the relevance of this fact would be minimal as permission was
only given to the sun cream manufacturer and Kevin used the pic-
ture for commercial purposes. At any rate, the action against Kevin
will include a claim for non-pecuniary damages. Criminal law would
also be applicable here as the picture could be considered as child
pornography.
With regard to the internet provider, we must consider the Spanish
Act 34/2002 of 11 July concerning information society services and
e-commerce,77 which adopts Directive 2000/31/EC on certain legal
aspects of information society services, in particular electronic com-
merce, in the internal market. In our case, if we consider that ‘put
it on internet’ and ‘internet provider’ refer to hosting services, then
Art. 16 of the Act is applicable. This establishes the liability of the
service provider for hosting where the provider has actual know-
ledge of illegal activity or upon becoming aware of the illegal activity
does not take necessary steps to remove the information or disable
access to the information. Thus, if the internet service provider has
no actual knowledge of the illegal content, it will not be liable.
Switzerland
I. Operative rules
Robert and Susan may bring proceedings on behalf of their daugh-
ter and demand economic and non-economic damages from Kevin. If
the photograph of Lily is distinguished by its individuality, it must be
considered a ‘work of art’ under the applicable statute on copyright,
hereinafter referred to as the LDA,78 which applies to the exclusion of
Art. 28 CC. The LDA, nevertheless, refers to the same judicial remedies
as general law. Specific injunctive relief may be requested against ‘any
individual who participates in the infringement’ (Art. 28, para. 1 CC).
An action for specific relief can, therefore, also be brought against the
internet provider.
77
Ley 34/2004, de 11 de Julio, de servicios de la sociedad de la información y de
comercio electrónico.
78
Loi fédérale du 9 octobre 1992 sur le droit d’auteur et les droits voisins (LDA) (RS
231.1).

As Lily is a minor without capacity to understand, her parents must
act on her behalf. The right to one’s own image is part of the person-
ality rights protected by Art. 28, para. 1 CC. As we have seen already,
an individual’s image cannot, in principle, be reproduced by drawing,
painting, photography or any comparable process without the prior or
subsequent consent of the individual; neither can such a reproduction
be distributed without consent.79 By scanning the photograph of Lily
without the consent of her parents, Kevin unlawfully infringed her
image rights.
In addition, the name of the website, which has a sexual connota-
tion, and its association with the name of the little girl, infringes on
Lily’s right to her reputation. Therefore, Lily’s parents may demand
a declaratory judgment that an unlawful infringement occurred and
ask for an injunction to prevent the photograph being posted on the
website (Art. 28, para. 1(2) and (3) CC). They may also claim economic
and non-economic damages (Art. 28a, para. 3 CC).
Moreover, if the photograph of Lily was considered a ‘work of art’
within the meaning of Art. 2 LDA, in other words a ‘creation of the
mind, literary or artistic which has an individual character, and whose
value or purpose lies therein’, it might also benefit from protection
under this Act. Art. 2 provides a list of examples of works it protects,
and specifically mentions photographic, cinematographic, and other
visual or audiovisual works (Art. 2, para. 2(g) LDA).
To be elevated to the status of ‘work of art’, the work must be
an original creation, a work with a novel idea; it must incorpor-
ate a creative idea or contain a personal expression of thought.80
The determinative criterion is the individuality of the creation.81
According to the Federal Court, it is possible to give a photograph
an individual character by virtue of its composition, for example, by
the choice of objects shown, the frame, the method of processing,
or even by the use of a determined objective, of particular fi lters
or fi lm, in adjusting the focus of the photograph, in altering the
clarity of the photograph, and by work done on the negative.82 That
79
RVJ 2003, p. 252 c. 4a.
80
ATF/BGE 130 III 168 c. 4 et seq., JdT 2004 I 258; Judgment of the regional Court of
Saint-Gallen, in SIC 2000, p. 188 c. 1c/aa.
81
ATF/BGE 130 III 168 c. 4.5, JdT 2004 I 258.
82
ATF/BGE 130 III 714 c. 2.1, JdT 2004 I 281.
the result attains the expression of a thought is thereby determina-

tive as an expression possessing an individual character. A photo-
graph that does not distinguish itself from an ordinary snapshot
does not correspond to the idea of a work of art protected by the
LDA .83
If the photograph of Lily is distinguishable by its individuality,
the LDA applies. Art. 10 LDA gives the creator of a work of art, here
Lily’s parents, the exclusive right to decide its use. By reproducing
and distributing the photograph without permission, Kevin vio-
lated this right. Lily’s parents may invoke Arts. 61 and 62 LDA in
order to demand a declaratory judgment stating that the infringe-
ment was unlawful and an injunction to put a stop to it. Economic
damages are provided for by Art. 62, para. 3 LDA which refers back
to the Code of Obligations’ provisions. Damages for pain and suffer-
ing will not be granted except in an especially serious infringement
case.84
Finally, Art. 67 LDA provides for criminal sanctions when a creator’s
rights are violated. By virtue of Art. 28, para. 1 CC, specific injunct-
ive relief may be requested against ‘any individual who participates
in the infringement’. This expression has a broad sense and it tar-
gets any individual whose participation causes, permits, or facilitates
an unlawful infringement of the personality rights of others.85 An
action for specific relief can, therefore, be brought against the inter-
net provider.86
Claims for compensatory relief (Art. 41 et seq. CO) and pain and suf-
fering (Art. 49 CO) may also be directed at the internet provider if the
provider violates its duty of care.87 Such a violation exists where the
provider was aware or should have been aware of the infringing char-
acter of the content of the website.88
83
Judgment of the Federal Court, 4C.111/2002 c. 2.3.
84
A court in Zurich held that where a photograph of a young woman selling
condoms in front of a nightclub is published in a magazine with classified ads
for prostitutes, general life experience strongly suggests that pain and suffering
results therefrom. Judgment of the Obergericht of the area of Zurich, in SIC 2002,
p. 34 c. 3.4.
85
H. Deschenaux and P. -H. Steinauer, Personnes physiques et tutelle (4th edn.,
Berne: 2001) p. 188, n. 575.
86
P. Rohn, Zivilrechtliche Verantwortlichkeit der Internet Provider nach schweizerischem Recht
(Zurich: 2004) p. 218.
87 88
Ibid. at p. 219. Ibid.

The internet permits those who have technological equipment at their
disposal and the knowledge necessary to traverse the whole world as
well as its ideas and creations while incurring only minimal costs. In
addition, a preventative examination of what is placed at the public’s dis-
position is difficult to conduct. To overcome the difficulties that result
from such an undertaking, Switzerland adopted a Federal Statute on
the Surveillance of Correspondence by Mail and Telecommunication
in 2002.89 The ordinance90 that accompanies this statute defines the
types of surveillance that can be ordered, the means of execution, and
the obligations of service providers. Currently, surveillance of internet
access is limited to email functions (Art. 24 Ordonnance du 31 octobre
2001 sur la surveillance de la correspondence par poste et télécommu-
nication, OSCPT ). However, Switzerland signed the European Council’s
Convention on Cybercrime on 23 November 2001, which should insti-
gate a significant modification of Swiss law. Most notably, it will allow
cross-border judicial cooperation and it will provide for more intensive
investigations.91
Comparative remarks
This case revolves around the unauthorised use of a minor’s photo-
graph on an internet website. However, prior to this, the photograph
in question was published legally in several magazines as an advertise-
ment for a sun cream manufacturer. Therefore, the case concerns the
right to one’s image in the context of a photograph which has already
been published. In particular, does prior lawful publication mean that
a third party can subsequently make use of the photograph for his/her
own purposes without seeking consent? In this framework we consider
two questions. Firstly, can Lily sue Kevin for damages for the unauthor-
ised use of her photograph? Secondly, is there liability on the part of
the internet provider?
89
Loi fédérale du 6 octobre 2000 sur la surveillance de la correspondance par poste et
télécommunication (LSCPT) (RS 780.1).
90
Ordonnance du 31 octobre 2001 sur la surveillance de la correspondance par poste
et télécommunication (OSCPT) (RS 780.11).
91
For a detailed analysis, see L. Moreillon and S. Blank, ‘La surveillance policière et
judiciaire des communications par Internet’ (2004) Médialex 81 et seq.
Lily enjoys the protection of her right to image in most of the legal
systems considered. The fact that she is a minor is irrelevant. However,
from a procedural point of view, it is her parents who will take an
action on her behalf. Almost all national reporters consider that the
publication of Lily’s photograph, without consent, is an unlawful act
by Kevin and constitutes a civil wrong and/or a criminal offence. In
this respect, in most legal systems, it does not appear to make a diffe-
rence that the photograph had already been published prior to Kevin’s
use of it. One exception is possibly the UK where it appears that Lily
would be in a more favourable position to claim breach of confidence
if the photograph had not already been in the public domain. For the
legal bases of right to image claims, see Cases 7 and 8. In this respect,
depending on the legal system, Lily can successfully sue Kevin on the
basis of general personality rights provisions (as set out in civil codes
and/or case law), copyright law and/or common law torts and equitable
doctrines.
In most countries, the damages awarded will be in the form of com-
pensation for non-economic loss. In order to claim damages for eco-
nomic loss it would have to be shown that Lily and her parents lost the
opportunity to exploit the image themselves – which would seemingly
not be possible under the facts of this case.
In Germany, it is necessary to show a ‘serious infringement’ of per-
sonality rights in order to claim compensation for non-economic loss.
In this case, it appears that Kevin’s publication would be regarded as
a ‘serious infringement’ because it involves a naked photograph and a
‘less than innocent’ context. Therefore, Lily can claim for non- economic
loss. Nevertheless, interestingly, she may receive less than an adult in
the same situation because the facial features of a child will change
over time and become less identifiable.
The only legal systems in which Lily can probably not claim dam-
ages are Finland and Ireland. In Finland, Lily could only sue Kevin if
the publication was defamatory or was used for commercial purposes.
Since the photograph in question is not a pornographic picture and
since Kevin’s website does not appear to have a commercial purpose,
Lily does not have a claim. Interestingly, even if there was other porno-
graphic material on the website which made Kevin criminally account-
able, this would not be grounds for civil liability. In Ireland, it is likely
that the internet provider would be criminally liable, but Kevin’s civil
liability would most probably be denied.
The question of the liability of the internet provider is a separate and

distinct issue to that of Kevin’s liability. The answer is similar across
most legal systems due to the implementation of the E-Commerce dir-
ective. If the photograph in question is deemed to be unlawful and the
provider has actual knowledge of its existence, then he/she can be sued
for an injunction.
13 Case 10: The late famous tennis
player
Case
For advertising purposes, an electronics company used a photograph of
a famous tennis player, depicted in action during a tournament match.
This photograph was well-known, as it had appeared in the press
some years earlier. In the advert, just three words (‘Energy’, ‘Power’,
‘Speed’) and the name of the company were written underneath the
photograph.
(a) Can the tennis player, who had not authorised this advert, sue the
company for injunction and compensation?
(b) Do the damages include skimming off the profits earned by the
company through their use of the photograph?
(c) What would be the result if the famous tennis player had died prior
to the publication but he has a surviving spouse and child?
Discussions
Austria
I. Operative rules
The tennis player can bring an action for forbearance, abatement
and for publication of the judgment. However, he is not entitled to
claim compensation for his economic and non-economic loss. He
can also obtain a hypothetical licence fee under the law of unjust
enrichment.
If the close relatives are the trustees of the deceased tennis
player they can bring an action in his name under the law of unjust
enrichment.
375

(a) Can the tennis player, who had not authorised this advert,
sue the company for injunction and compensation?
Even if the illustrated person is well-known, his right to image (§ 78
UrhG) can be injured.1 Using a picture for advertising purposes with-
out obtaining the consent of the (famous) person concerned is a prime
example of a violation of § 78 UrhG.2 In the view of the OGH, this cre-
ates the false impression that the picture was made available to the
advertising company by the tennis player for consideration.3 It does
not make any difference whether or not the name of the person is
mentioned.4
The tennis player can raise the following claims: forbearance (§ 81
UrhG), abatement (§ 82 UrhG), publication of the judgment (§ 85 UrhG).5
According to § 87, subs. 1 UrhG, the tennis player is also entitled to
ask for compensation of the economic loss he suffered. Analysing the
facts, the only feasible damage to property seems to be the equivalent
of a hypothetical adequate money consideration for the use of the pho-
tograph in an advertisement,6 i.e. a hypothetical licence fee. Indeed, in
one case concerning the unauthorised use of an image for an advertise-
ment, the OGH did not accept such a claim.7
Furthermore, under § 87, subs. 2 UrhG compensation for non-
economic harm could be awarded if the infringement was particularly
serious;8 however, this is not the case here.
(b) Do the damages include skimming off the profits earned by the company
through their use of the photograph?
In the present case, an action for restitution of the unjust enrichment
under § 1041 ABGB9 could be brought. When used for an unauthor-
ised advertisement, the fame of a celebrated person such as a famous
1
OGH MR 1996, 30; cf. Cases 1, 7, 8.
2
OGH SZ 44/104; ÖBl 1973, 139; ÖBl 1977, 22; ÖBl 1982, 85; MR 1997, 26.
3 4
OGH MR 1999, 278 (commentary by G. Korn). OGH SZ 55/12.
5
E. Rehm, ‘Das Recht am eigenen Bild’ (1962) JBl 1 et seq.
6
There is no indication that the athlete suffered loss because he promised someone to
exclusively promote certain products.
7 8
OGH EvBl 1983/66 = ÖBl 1983, 119 = SZ 55/12. See Case 7.
9
§ 1041 ABGB (‘Use of property for the gain of another’) reads: ‘Where property has
been used for the benefit of another, not in the management of a business, the
owner can demand the return thereof in kind or, if such return can no longer be
made, the value thereof at time of its use, even though no advantage was received
therefrom.’
c a se 10: t he l at e fa mous t ennis pl ay er 377
sportsperson can be subsumed under the term ‘property’ in the sense

of this particular provision.10
According to § 1041 ABGB, the level of the remuneration, which in
our case is a hypothetical licence fee,11 depends on the integrity of the
party who has been unjustly enriched.12 If this party was honest, the
fair market value would have to be reimbursed; if not, the highest
price achievable on the market would have to be paid (see § 417 ABGB).
As the electronics company was probably dishonest,13 it has to pay the
highest market price.
Skimming off the (net) profits earned by the company (through
their use of the picture) instead of a hypothetical licence fee is a rather
difficult question.14 Up until now, the OGH has not dealt with this
problem.15
The spouse and the child are close relatives according to § 78, subs. 1
UrhG; § 78, subs. 2 UrhG refers explicitly to § 77, subs. 2 UrhG, which
defines the term ‘close relatives’ as ascendants, descendants and the
surviving spouse.16 These persons can prevent the dissemination of
a picture of their deceased relative if their legitimate interests are
affected. However, in the present case these interests are presumably
10
OGH EvBl 1983/66 = ÖBl 1983, 118 = SZ 55/12; JBl 1989, 786 = MR 1989, 132.
11
As a result, regarding our case the OGH does not award this fee under tort law but
under the law of unjust enrichment.
12
OGH JBl 1992, 388; JBl 1996, 653; JBl 1998, 250; P. Apathy, ‘Redlicher oder
unredlicher Besitzer’ (1989) NZ 142; F. Bydlinski, ‘Zum Bereicherungsanspruch
gegen den Unredlichen’ (1969) JBL 252 et seq.
13
The defendant has to be regarded as dishonest if he/she must reasonably suppose
that the used property does not belong to him/her cf. § 326 ABGB.
14
Of course, this is only relevant if the profits earned are greater than the licence fee.
15
§ 87 subs. 4 UrhG, which provides for such a claim regarding classical copyright
infringements, is not applicable. Indeed, § 1041 ABGB in connection with § 330
ABGB could be an appropriate basis. If the company acted in bad faith, it not only
has to substitute the common value of the used ‘property’ but the additional
advantages which occurred through the use. If this is the case, the contribution
of the company to these advantages (e.g. the money spent to manufacture the
products and on the advertising campaign) should be taken into consideration; cf.
H. Koziol and A. Warzilek, ‘Austrian Country Report’ no. 200 with further ref., in
H. Koziol and A. Warzilek, The Protection of Personality Rights against Invasions by Mass
Media (Vienna/New York: 2005).
16
Children, parents and the surviving spouse are entitled to this protection for their
whole life, but other close relatives are only entitled to it for ten years from the end
of the year of the death of the person portrayed.
not encroached. It would be straying too far from the issue if direct
protection were to be granted to the close relatives.
It has to be examined whether the personality right of the tennis
player in itself could be still a basis for a claim. Here we are concerned
with whether or not there are post-mortem personality rights in
Austria. Both the OGH17 and scholars18 recognise these types of rights.
The relatives in the sense of § 77, subs. 2 UrhG could be regarded as
trustees of the deceased person.19 Consequently, they can obtain remu-
neration under the law of unjust enrichment (§ 1041 ABGB). Moreover,
there could be a post-mortem claim for forbearance, abatement and for
publication of the judgment.
There is no compensation for non-economic harm (the deceased
could not sustain any pain and suffering).20

The courts often regard the unauthorised use of an image for an
advertisement as an offending act, since this suggests that the
injured person has sold a particular feature of his/her personality
for remuneration.21 Korn is rightly critical of this approach, since
nowadays such a suggestion is neither offensive nor scandalous.
Nevertheless he argues that utilising someone’s picture for advertis-
ing purposes without his/her agreement should not be permitted.
The decision to become part of an advertising campaign should be
17
SZ 57/98; MR 2002, 291.
18
J. Aicher in P. Rummel, Kommentar zum ABGB I (3rd edn., Vienna: 2000) § 16 no. 28;
H. Koziol, Österreichisches Haftpflichtrecht II (2nd edn., Vienna: 1984) 17; K. Prietl,
‘Die ärztliche Schweigepfl icht nach dem Tod des Patienten’, (1995) RdM 6 et seq.;
B. Raschauer, Namensrecht (Vienna: 1978) 272; cf. also M. Binder, ‘Das rechtliche
Fortleben des menschlichen Körpers nach dem Tode’ (1998/99) JAP 228 et seq.;
K. Weber, ‘Ist der “Ötzi” ein Denkmal?’ (1992) ÖJZ 673 et seq.
19
H. Koziol, Österreichisches Haftpflichtrecht II at 17. In respect of the commercial
use of a deceased person’s name, see also P. Zöchbauer, ‘Zur Gestattung der
Namensverwendung’ (2001) MR 353 et seq. In life, the deceased is entitled to
nominate a trustee of his/her choice.
20
H. Koziol, Österreichisches Haftpflichtrecht II at 18. In a decision concerning the
postmortal application of § 1330 subs. 1 ABGB (Recht auf Ehre; right to honour)
the OGH was not obliged to take a firm stand in respect of this problem, because
according to this provision there is never compensation for non-economic harm;
OGH MR 2002, 288 et seq.
21
OGH MR 1990, 141 (commentary by M. Polak); MR 1995, 109 (commentary by
M. Walter); MR 1999, 278 (commentary by G. Korn); OLG Wien MR 1986/4, 19.
regarded as a product of one’s right to freely express an opinion (cf.

Art. 10 ECHR).22
In respect of this particular case, it is questionable whether one
could request an adequate hypothetical licence fee under § 87, subs. 1
UrhG. However, this tort law approach entails specific problems. Firstly,
following the widely recognised balance theory, which says that one
has to calculate the hypothetical current financial status with total
disregard for the damage which has occurred minus the real current
financial status,23 no pecuniary loss arises if the tennis player categori-
cally refuses to conclude contracts on the utilisation of his personality
features. In this case the difference between his two compared finan-
cial situations is zero.24 Secondly, from a dogmatic point of view it is
not necessary to invoke tort law to recover the profits gained by the
company. In Austria, the remedy of unjust enrichment exists which
aims exactly at this goal.25
In particular, the creation of a fictitious licence contract between
the electronics company and the athlete, which is the precondition
for a measurable loss, can be deemed as improper and unnecessary
given that the claimant is usually entitled to receive the correspond-
ing remuneration under the law of unjust enrichment.26 Despite these
misgivings, the legislator has agreed that the concept of economic loss
in terms of § 87, subs. 1 UrhG also encompasses remuneration repre-
senting an adequate, hypothetical licence fee.27 Although this opinion
refers to infringements of copyright, the same should apply where
22
G. Korn, commentary on OGH MR 1999, 279. In Austria, the text of the ECtHR is
constitutional law; see Cases 5 and 11.
23
OGH SZ 50/50; EvBl 1983/66 = ÖBl 1983, 119 = SZ 55/12; H. Koziol, Österreichisches
Haftpflichtrecht I (3rd edn., Vienna: 1997) no. 2/19; H. Koziol and R. Welser, Bürgerliches
Recht II (13th edn., Vienna: 2007) 324.
24
Cf. BGH NJW 1958, 827; NJW 1961, 2059; NJW 1979, 2205; cf. further E. Ullmann,
‘Persönlichkeitsrechte in Lizenz?’ (1999) AfP 212; A. Warzilek, commentary on LG
Hamburg MR 2004, 194.
25
Cf. H. Koziol, ‘Summary and Outlook’ no. 42, in H. Koziol and A. Warzilek, The
Protection of Personality Rights.
26
A. Warzilek, commentary on LG Hamburg MR 2004, 194.
27
‘Erläuternde Bemerkungen zum UrhG 1936’, in W. Dillenz, Materialien zum
österreichischen Urheberrecht (Vienna: 1986) 177; see also H. Torggler, ‘Probleme
des Schadenersatzes im Immaterialgüter- und Wettbewerbsrecht’ (1976) ÖBl 59;
dissenting F. Mahr, ‘Die “rätselhafte Schadenspauschalierung” nach § 87 Abs. 3
UrhG’ (1994) MR 187 et seq.; ibid., ‘Bereicherung, Schadenersatz und Herausgabe des
Verletzergewinnes’, in R. Dittrich, Beiträge zum Urheberrecht IV (Vienna: 1996) 40.
there are infringements of the right to image (§ 78 UrhG). However, in

one case concerning the unauthorised use of an image for an advertise-
ment the OGH inconsistently did not award a hypothetical licence fee
under tort law.28
In the author’s opinion, the property value embodied by the picture
of the deceased should not be capable of being accessed by any third
person. The German Supreme Court (BGH ) adopted this remarkable
position in the ‘Marlene Dietrich case’.29 In this context, under Austrian
law the most suitable remedy would be a claim under the law of unjust
enrichment.30
Finally, one has to state that personality rights cannot be inherited;
however, this does not constitute an obstacle for post-mortem person-
ality rights.31 Up until now the OGH did not consciously decide whether
the protection of post-mortem personality rights should be limited by
an absolute period of time32 or whether a balancing of the time which
has passed and the seriousness of the infringement should take place
in every individual case.33 In respect of legal certainty, the first solu-
tion is preferable.
Irrespective of the fact that the nucleus of personality rights is ide-
alistic, nowadays economic aspects stand in the foreground for both
courts and scholars.34 It is submitted that this trend will intensify in
the future.
Belgium
I. Operative rules
The sportsman can sue the company for damages and an injunction.
He will receive compensation for his lost earning capacity.
28
OGH EvBl 1983/66 = ÖBl 1983, 119 = SZ 55/12.
29
BGH MR 1999, 338.
30
The German BGH granted a claim for damages. Bearing in mind the existence of §
77 subs. 2 UrhG, instead of the heirs, like in Germany, the close relatives should be
entitled to lodge this claim as trustees. This solution would also be more coherent
with another approach: At the time of the transfer of the hereditary rights this
reward did not exist. Then again, the heirs could also be seen as the appropriate
claimants, since they have to be regarded as the economic successors of the
deceased.
31
OGH MR 2002, 291.
32
Cf. § 77 subs. 2 and § 78 subs. 2 UrhG; cf. also the fi xed period of seventy years after
the death of the author for the protection of copyrights (§ 60 UrhG).
33
OGH MR 2002, 292.
34
Cf. A. Warzilek, ‘Comparative Report’ no. 21, in H. Koziol and A. Warzilek, The
Protection of Personality Rights; differentiating OGH MR 1995, 110 = ÖBl 1995, 287 = SZ
If the tennis player has died before the publication of the photo-
graph, his widow and child can sue the company for the protection of
his reputation.

The sportsman will be able to successfully sue the company for injunc-
tion and compensation.
A sportsperson cannot oppose the publication of a (one-off) topical
photograph in a journalistic context which informs the public, e.g. the
publication of a photograph in a newspaper article on sports.
However, his/her right to image is considered to have been infringed
if the photograph is used for other purposes, e.g. commercial purposes.
In such cases, he/she can seek an injunction and sue for damages for
economic and non-economic loss. Compensation for non-economic loss
arises from the mere invasion of the right to image. Damages for eco-
nomic loss stem from the lost possibility for the sportsperson to exploit
his/her own image commercially.35
Kim Clijsters, a Belgian tennis player, reached the finals of the
Roland Garros tennis tournament in 2001. At that time, a company
used her photograph for advertisement purposes in a newspaper.
Clijsters received €2,000 for moral harm.36 In another case, Clijsters
received €1 in damages for moral harm from a company that also used
her photograph for advertisement purposes.37
Personality rights are personal. Whether or not this means that there
is no post-mortem protection is uncertain under Belgian law since the
courts accept that they can protect the memories of the deceased rela-
tives.38 A Belgian newspaper La Dernière Heure used a photograph of the
Belgian politician André Cools which was taken at the time he was
dying after having been shot by some gangsters. The paper used the
photograph in a promotional campaign in the printed press and on
the television and the photograph was accompanied by music from
the movie The Godfather, suggesting some rather dishonest dealings in
Belgian politics. His relatives sued the newspaper. The civil court of
67/224; cf. also W. Dillenz and D. Gutmann, Kommentar zum Urheberrechtsgesetz und
Verwertungsgesellschaftengesetz (2nd edn., Vienna: 2004) § 78 no. 12.
35
CA Brussels 4 Oct. 1989, RW 1989–90, 651.
36
Civil Court Hasselt 19 Dec. 2003, AM 2004, 388.
37
Civil Court Ghent 19 Nov. 2003, AM 2004, 384.
38
Brussels decided that the newspaper committed a fault by tarnishing

the reputation of André Cools.39
England
I. Operative rules
The claimant might have a claim in passing off although this is unlikely
due to the specific requirements of the tort. Damages under passing off
cannot consist of skimming off the profits earned by the defendant.
The electronics company could not be held liable if the defendant has
died prior to publication.

1. Defamation In England, the case of Tolley v. Fry was decided in
1931. Mr Tolley was a famous amateur golfer whose reputation as an
amateur was harmed when he appeared in an advertisement for the
defendant’s brand of chocolate without his permission.40 Even though
he won his case at the time, it would appear somewhat unlikely that
today’s society would find it harmful to a famous tennis player’s repu-
tation to be shown in an advertisement along with the words ‘Energy’,
‘Power’ and ‘Speed’.41 It would depend on the reputation of the ten-
nis player and the company respectively whether the photograph was
defamatory or not. The court would only decide whether or not the
advertisement may be regarded to be libellous, and if so, leave it to the
jury to make the final decision.
An injunction would probably not be available, whereas the tennis
player could sue for damages after publication.
39
Civil court Brussels 12 Mar. 1996, JLMB 1996, 1015.
40
Tolley v. J. S. Fry and Sons, Limited [1931] AC 333.
41
See also Elvis Presley Trade Marks [1999] RPC 567, at 583, per Walker LJ. In
continental literature, Tolley v. Fry is still, and perhaps wrongly, seen as a case that
demonstrates that even in England one is protected from having one’s photograph
used in an advertisement through the tort of defamation. See, for example,
T. Hoppe, ‘Gewinnorientierte Persönlichkeitsverletzung in der europäischen
Regenbogenpresse’ (2000) Zeitschrift für Europäisches Privatrecht 29, at 35. In fact, no
such case appears to have been brought after Tolley v. Fry.
2. Copyright Copyright cannot play a role here since it is not the

tennis player but the photographer who owns the copyright in the
photograph.42
3. Passing-off Passing- off is an old tort whose origins lie in the nine-
teenth century when it was anchored to the name or trademark of
a product or business. However, in response to modern business
practices it has expanded in its application.43 The use of the tort of
passing-off in cases such as the present one was also discussed in Tolley
v. Fry but was decided to be inapplicable. This has certainly discour-
aged legal practitioners from recommending legal action for the appro-
priation of personality until recently.44
Nevertheless, the tort of passing-off appears to have been extended
recently in order to include cases such as the present one. Passing-off
has been described, in Warnink v. Townend, as requiring the follow-
ing elements: ‘(1) A misrepresentation, (2) made by a trader in the
course of trade, (3) to prospective customers of his [or her] or ultimate
consumers of goods or services supplied by him [or her], (4) which is
calculated to injure the business or goodwill of another trader and (5)
which causes actual damage to a business or goodwill of the claim-
ant or will probably do so.’45 This description might have at least cor-
responded to celebrities whose personalities are used for advertising
and other business purposes and who could therefore be regarded as
‘traders’.46
However, the problem for cases such as the present one was that in
McCulloch v. May, Wynn-Parry J had introduced the further require-
ment that the claimant and the defendant had to have a common
field of activity.47 Therefore, only a tennis player who was in the elec-
tronics business at the same time would have a claim under this
restriction. The rule established in McCulloch v. May has been heavily
42
S. 4(1)(a) of the Copyright, Designs and Patent Act 1988. See also T. Frazer,
‘Appropriation of Personality – A New Tort?’ (1983) 99 Law Quarterly Review 281,
at 290.
43
See Parker-Knoll Ltd v. Knoll International Ltd [1962] RPC 265, at 278, per Lord Morris;
Cadbury Schweppes Pty Ltd v. Pub Squash Co Pty Ltd [1981] RPC 429, per Lord Scarman.
See also T. Frazer, ‘Appropriation of Personality’ at 286.
44
See T. Frazer, ‘Appropriation of Personality’ at 283 et seq.
45
Erven Warnink Besloten Vennootschap and Another v. J. Townend & Sons (Hull) Ltd [1979] AC
731, at 742, per Lord Diplock.
46
See T. Frazer, ‘Appropriation of Personality’ at 287.
47
McCulloch v. Lewis A. May (Produce Distributors Ltd) [1947] 2 All ER 845.
criticised in academic writing,48 and courts in other common law

jurisdictions, in particular in Australia, have expressly rejected the
approach taken in this case.49 It has also been rejected by courts in
England.50
This issue of advertisements using the image of a celebrity has
recently come before the English courts in Irvine v. Talksport. 51 In this
case, the radio broadcaster Talksport, a broadcaster of high-profile
sporting events, had used a picture of the Formula One racer Eddie
Irvine for promoting their services. Talksport had manipulated the
picture in such a way that Eddie Irvine was holding a radio, instead of
a mobile, as on the original picture. In his judgment of 13 March 2002,
Laddie J argued that the tort of passing-off does not create a monop-
oly right in the use of a word or a name but that it protects goodwill
against damage, and that goodwill is property. Damage can arise from
the selling of inferior goods or services under the guise that they are
from the claimant, however the action is not merely restricted to this
type of damage. For example, it is common for celebrities to exploit
their names and images through endorsement,52 i.e. by telling the
relevant public that they approve of a product or service or that they
are happy to be associated with it, thereby encouraging members
of the public to buy or use the product or service.53 The commer-
cial value of such endorsements is recognised by manufacturers and
retailers when they pay famous persons to endorse their goods or ser-
vices. Laddie J concluded that the modern law of passing-off should
apply to cases of false endorsement. The claimant has to prove two
facts: firstly, he/she has to prove that he/she had a significant reputa-
tion or goodwill at the time of the acts complained of; secondly, he/
she has to show that the actions of the defendant resulted in a false
message which would be understood by a sizeable section of his/her
market that his/her goods have been endorsed, recommended or are
approved of by the claimant.54 This part of the judgment was not
48
See, in particular, T. Frazer, ‘Appropriation of Personality’ at 290.
49
See the decision by the High Court of New South Wales in Henderson v. Radio
Corporation Pty Ltd [1969] RPC 218, which was recently approved by the High Court
of Australia in Campomar Sociedad, Limitada v. Nike International Ltd (2000) 46 IPR 481.
50
See, for example, Harrods Ltd v. Harrodian School Ltd [1996] RPC 697, at 714, per
Millett LJ.
51
Irvine v. Talksport Ltd [2002] FSR 60 943.
52
For details, see Irvine v. Talksport Ltd at 957 et seq.
53
For this description of endorsement, see Irvine v. Talksport Ltd at 948.
54
Irvine v. Talksport Ltd at 959.
appealed by the defendant.55 In contrast, pure character merchan-

dising, where an advertisement uses the name of a celebrity without
creating the wrong impression that the person mentioned was the
creator of the goods or guaranteed their quality, is not actionable
under the tort of passing- off.56
4. Self-regulation Portraying people without their consent in adver-

tising is dealt with in a number of self-regulatory instruments.57 For
example, the British Code of Advertising Practice, administered by the
Advertising Standards Authority,58 provides in Rule 13.1 that market-
ers are urged to obtain written permission before:
– referring to or portraying members of the public or their identifi-
able possessions (the use of crowd scenes or general public locations
may be acceptable without permission);
– referring to people who have a public profile (references that accu-
rately reflect the contents of books, articles or films may be accept-
able without permission);
– implying any personal approval of the advertised product (marketers
should recognise that those who do not wish to be associated with
the product may have a legal claim).
Furthermore, Rule 14.5 provides that unless they are genuine state-
ments taken from a published source, references to tests, trials, pro-
fessional endorsements, research facilities and professional journals
should only be used with the permission of those concerned.
(b) Do the damages include skimming off the profits earned by

the company through their use of the photograph?
1. Defamation If the photograph was defamatory, restitutionary
damages would not, in principle, be available. However, exemplary
or punitive damages can, in individual cases, serve a similar purpose
since they aim to discourage the defamer by taking what he/she earned
from the defamation from him/her. However, this does not infer that
the defamer’s earnings are calculated precisely.59 In fact, this is one
55
Nevertheless, Parker LJ obiter expressed his approval in his judgment on the appeal
on the representation issue and on damages of 1 April 2003, Irvine v. Talksport Ltd
(No. 2) [2003] EWCA Civ 423; [2003] 2 All ER 881; [2003] EMLR 538 at para. 32.
56
See, for example, Elvis Presley Trade Marks at 597–8, per Brown LJ.
57
For details, see T. Frazer, ‘Appropriation of Personality’ at 282–3.
58
Available at www.asa.org.uk.
59
Broome v. Cassell & Co [1972] AC 1027, at 1094, per Lord Morris.
advantage of exemplary damages over restitutionary damages as evi-

dence must be produced relating to the gains made by the defendant
from the tort.
2. Passing off The issue of damages for passing off was subject to the
decision in Irvine v. Talksport (No. 2). According to Laddie J, since the
claimant has property rights in his goodwill, protected by an action in
passing off, the court is entitled to approach the issue of damages in
the same way as it would do in the case of an infringement of similar
property rights. The claimant can recover direct loss if he suffered any,
for example, by losing another contract due to the false endorsement.
Where the claimant has a habit in entering into advertising contracts,
his standard fee would be the correct measure of the loss. Otherwise,
damages are assessed on a reasonable endorsement fee basis, which
is the equivalent of a reasonable royalty, i.e. the court works out a fee
which would have been reached between a willing endorser and a will-
ing endorsee.60 In contrast, the profits that the defendant made cannot
be claimed.61
to the publication but has a surviving spouse and child?
1. Defamation A person’s reputation is only protected by the tort
of defamation during his/her lifetime. According to s. 1(1) of the Law
Reform (Miscellaneous Provisions) Act 1934, causes of action for defa-
mation do not survive after the death of the person defamed.
Equally, the protection granted by self-regulatory instruments only
relates to living persons. The only applicable rule in the ASA Code of
Advertising Practice is Rule 13.3, according to which references to
anyone who is deceased should be handled with particular care to
avoid causing offence or distress.
60
Irvine v. Talksport Ltd (No. 2), with critical commentary by A. Learmonth, ‘Eddie, Are
You Okay? Product Endorsement and Passing Off’ (2002) Intellectual Property Quarterly
306 et seq., and A. Michaels, ‘Passing Off by False Endorsement – But What’s the
Damage?’ (2000) European Intellectual Property Review 448 et seq. In this case, Laddie
J merely awarded £2,000 since the promotion was only sent to just under 1,000
people. This was varied by the Court of Appeal by substituting a figure of £25,000
for Laddie J’s figure of £2,000; see Irvine v. Talksport Ltd (No. 2).
61
The same applies, for example, to patent infringements, see General Tire and Rubber
Company v. Firestone Tyre and Rubber Company Ltd [1976] RPC 197, at 212 et seq., per Lord
Wilberforce.
2. Passing off If the famous tennis player was already dead, the pub-
lic could not possibly believe that he endorses the advertised product.
Thus, the electronics company could not be liable for passing off.
Finland
I. Operative rules
The tennis player can sue for both an injunction at the Market Court
and for damages at a local court. The damages will include the eco-
nomic loss suffered by the tennis player, not skimming off the profits
earned by the company. It is uncertain whether the spouse and child
of the deceased will have a claim.

The right of a person to decide whether his or her picture is used for
commercial purposes is not based on any legal provision, but on a few
court cases and legal doctrine. In 1940, the Finnish Supreme Court
decided that a person whose picture was used for commercial purposes
was entitled to claim an injunction and damages from the company
that had used the picture in an advertisement.62 This case was fol-
lowed in 1982 by a case where a picture taken of a person was used for
commercial purposes without his consent. The person was entitled to
damages for this use.63 The right to compensation is acknowledged by
several authors.64
According to the Finnish Act on Unfair Business Practices, when a
picture used in an advertisement is taken of a person acting for busi-
ness purposes, this person can bring a case before the Finnish Market
Court if the picture is used without his/her consent. However, the
Market Court cannot decide on the question of damages. This is done
in the general courts.
The level of damages is based on the loss suffered by the tennis
player and is compared to the economic loss suffered by the player. In
practice, the amounts have been fairly low, e.g. €1,000– €2,000 in the
older cases.
62 63
Supreme Court 1940 I 10. Supreme Court 1982 II 36.
64
Nuutila, ‘Kunnian ja yksityiselämän loukkaaminen’, in Heinonen, Koskinen,
Lappi-Seppälä, Majanen, Nuotio, Nuutila and Rautio, Rikosoikeus (Helsinki: 1999)
595, Muhonen, ‘Henkilön persoonan kaupallinen hyödyntäminen Yhdysvalloissa ja
Suomessa’ (1996) Defensor Legis 777 and Tiili, ‘Marknadsföring och rätt till egen bild’
(1988) Nordiskt Immateriellt Rättsskydd 28.

Whether or not the spouse and the child of the deceased tennis player
in situation (c) have any claim is unclear. There are no court cases in
Finland and legal doctrine does not give a clear answer. In the Finnish
Tort Liability Act there is a provision in Ch. 7, s. 3 that excludes the
possibility of a relative claiming damages for non-economic injury.
E contrario, claiming damages for the use of a picture for commercial
purposes would be possible.
It is also legally possible that the relatives could have the right to
claim an injunction if the picture is used for marketing purposes.65
France
I. Operative rules
The tennis player can sue the company for an injunction and compen-
sation. The damages do not include skimming off the profits earned
by the company through their use of the photograph. The surviving
spouse and child may also sue the company for an injunction and com-
pensation, but French law is not clear on this point.

The tennis player can sue the company which used his photograph for
advertising purposes without his consent in order to obtain an injunc-
tion to prevent the violation of his right to image and reparation for
the damage suffered. Being a famous athlete, he is one of the so-called
public persons, the violation of whose personality right may be jus-
tified by the public’s right to be informed. In French law, however,
it is unanimously accepted that the legitimate exercise of the right
to information excludes all commercial or advertising purposes. Case
law has repeatedly condemned the commercial use of photographs of
famous sportspersons even when those have been taken during the
course of their professional activity.66 Therefore, the injury to person-
ality rights will not be justified by the right to information when the
publication serves purely commercial purposes. Public figures, just
65
See Tiili, ‘Marknadsföring och rätt till egen bild’, at 34–5.
66
TGI Paris 21 Dec. 1983, Gaz. Pal. 1984, 2, somm., 360; TGI Paris 4 Jul. 1984, D. 1985,
somm., 14; TGI Paris 30 Apr. 1986, D. 1987, somm., 137; CA Paris 3 Apr. 1987, D.
1987, somm., 384; TGI Nanterre 6 Apr. 1995, Gaz. Pal. 1995, 1, 285.
like private citizens, have a cause of action when their image is used
for advertising purposes.

The use of the tennis player’s image in an advertisement has no pejo-
rative connotation and in no way damages his private life. Thus, the
damage which must be repaired here is of a purely economic nature.
In France, the reparation of economic loss suffered where personal-
ity attributes are exploited without consent is unfortunately not very
clearly distinguished from non-economic loss.67 Nevertheless, for
a long time now the courts have awarded damages, but often only
implicitly,68 which are intended to compensate the lost earning capac-
ity of the injured party. More recent case law does not hesitate to con-
sider economic loss which results from an unauthorised exploitation,69
and seems to calculate the damages by reference to the sum which
would have in fact been received had the consent of the owner been
obtained. On the other hand, courts are very reluctant to take prof-
its earned through the use of one’s image into account when calculat-
ing damages,70 the determination of which ultimately appears rather
arbitrary.
If the tennis player had died prior to the use of his image in the adver-
tisement by the company it is not certain that his widow and child
could bring a cause of action for compensation for economic loss.
67
See, however, TGI Paris 28 Sept. 2006, Légipresse 2007, No. 239, III, 55, clearly
distinguishing between the two types of loss: ‘the claim (…) thus has the
compensation not of non-economic, but of economic loss as its actual object which
stems from the exploitation of the (claimant’s) image, name and voice without any
remuneration, loss which is recoverable on the basis of Art 1382 Code civil’.
68
See, e.g., CA Paris 1er Dec. 1965 (Pétula Clark), JCP 1966, II, 14711; CA Paris 13 Feb.
1971 (Belmondo), JCP 1971, II, 16771.
69
TGI Lyon 17 Dec. 1980, D. 1981, jur., 202; CA Paris 9 Nov. 1982, D. 1984, jur., 30; CA
Paris 14 Jun. 1983, D. 1984, jur., 75; TGI Paris 21 Dec. 1983, D. 1984, IR, 331; TGI
Paris 30 Apr. 1986, D. 1987, somm., 137; CA Paris 3 Apr. 1987, D. 1988, somm., 390;
CA Nîmes 7 Jan. 1988, JCP 1988, II, 21059 […]; CA Versailles 2 May 2002, Légipresse
2002, No. 192, I, 69: ‘the claimant, a former actress and model (…) suffered harm,
due to the unauthorised reproduction of several photographs of her, because of
the sole fact that she was deprived of the remuneration which she could have
legitimately received if she had sold her rights on the photographs in question’.
70
See, e.g., TGI Paris 5 May 1999, D. 2000, jur., 269 – see Case 7.
French law is essentially undecided on the issue of the protection of

the economic value of personality rights post-mortem. French case law
has sought to distinguish between the non-pecuniary aspects of per-
sonality rights, which would not be descendible on the one hand, and
the economic aspects which would descend to heirs through ordinary
rules of inheritance on the other. French courts have thus stated that
‘the right to one’s image has both a moral and an economic nature
(and) that the economic right, which enables expressing the commer-
cial exploitation of the image in monetary terms, is not purely per-
sonal and passes on to the heirs’.71 However, the case law of the lower
courts is not unanimous72 and the Cour de cassation has not yet ruled
on this point.73 Consequently, it is difficult to state the exact position
of French law on this question. This is all the more true because the
opinions of legal scholars are just as divided. Even among scholars who
favour the recognition of an economic right to the use of all attributes
of the personality, which at any rate is not yet part of French positive
law, opinion is divided as to whether such a right should or should not
be descendible.74
Thus it seems that the widow and the child of the deceased tennis
player do not have any cause of action for compensation. It would only
71
TGI Aix-en-Provence 24 Nov. 1988 (Raimu), JCP 1989, II, 21329. See also: TGI réf. Paris
4 Aug. 1995 (Jean Monnet), 167 RIDA 1996, 291: ‘whereas the right to image, from
its moral aspect, maintains a strictly personal character and extinguishes when its
holder dies, (…) the exploitation made of the image for commercial purposes gives a
patrimonial character to this right which descends to heirs’; CA Paris 10 Sept. 1996
(Coluche), 171 RIDA 1997, 345; CA Grenoble 24 Jun. 2002, Légipresse 2002, No. 195, I,
118: ‘the economic right which allows placing a monetary value on the commercial
exploitation of the image is not personal and descends to heirs’.
72
See, e.g., CA Paris 7 Jun. 1983 (Claude François), Gaz. Pal. 1984, 2, 528: ‘the right
of a person to his/her own image is an attribute of his/her personality and not an
economic right. Thus, after the person’s death, his/her heirs cannot sell the right to
reproduce his/her image to a third person.’
73
See, however, Cass. civ. 15 Feb. 2005, D. 2005, IR, 597, concerning the use of the
photograph of a deceased man on a CD cover. The court rejected the claim of his
children who demanded compensation for the commercial use of the photograph
because ‘the right to claim in respect of the right to privacy or the right to image
extinguishes with the death of the person concerned’. The Cour de cassation also
refused to distinguish between a non-economic, non-descendible right and an
economic right in respect of the image which descends to heirs.
74
See, e.g., Gaillard, ‘La double nature du droit à l’image et ses conséquences en droit
positif français’ (1984) Dalloz Chronique (D. chr.) 163: ‘the monopoly acknowledged
to each individual on the commercial exploitation of his/her image extinguishes
with the death of the concerned person’. On the contrary, see Caron, ‘Les contrats
d’exploitation de l’image de la personne’, in Ass. Capitant (ed.), L’image (Paris: 2005),
be different in a case where the deceased brought such a claim before

he/she died, his/her heirs then being entitled to pursue that claim.
Germany
I. Operative rules
The tennis player may claim an injunction as well as compensation
with regard to the licence fee saved by the company and with regard to
the profit earned by the company.

The dissemination of a photograph taken from a live sports activity
such as a tournament match falls directly under § 22 KUG. This pro-
vision prohibits the dissemination of a person’s image without this
person’s consent.
With respect to a person’s public appearances, one can argue that the
distribution of a photograph taken at a public sports event is undertaken
with the knowledge and consent of the person depicted. As an athlete is
aware of the presence of journalists, he/she will at least tacitly consent
to his/her actions being filmed and this film being distributed. The ath-
lete may have even expressly consented to this in his/her contract with
the event organiser. However, consent to an interference with personal
attributes does not extend to any derivative use which is later made
of this photograph.75 As the consent to a personal picture will always
stem from a special situation and the circumstances under which the
consent is given,76 it has to be narrowly construed.77 Therefore, implied
consent will legitimise reports about the event as well as reports about
the athlete, but not the use of his/her picture in an advertisement.
A justification can only be assumed if one of the limitations set out
in § 23(1) KUG is met. Here, the limitation for pictures of contempor-
ary events (§ 23(1) 1 KUG) comes into play. This limitation has been
introduced with special reference to the needs of the press to report on
103: ‘it would not be incoherent to foresee a post mortem devolution of the right
to exploit one’s own image’. See A. Lucas-Schloetter, Droit d’auteur et droits de la
personnalité, Juris-Classeur Propriété Littéraire et Artistique, Fasc. 1118, 2009, No. 52 s.
75
BGH NJW 2005, 56, 57.
76
BGHZ 20, 345, 348; BGH NJW 1996, 593, 549 (memorial coin with the portrait
of Willy Brandt); N. Dasch, Die Einwilligung zum Eingriff in das Recht am eigenen Bild
(Munich: 1990), 14.
77
H. Forkel, ‘Lizenzen an Persönlichkeitsrechten durch gebundene
Rechtsübertragung’ (1988) Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 491, 500.
current events, which includes not only political events, but also sports
and entertainment events.78 Therefore, the photograph falls under
§ 23(1) 1 KUG. However, distribution without the consent of the depicted
person is only justified for the purposes set out in § 23(1) 1, e.g. for press
purposes. Public figures still have a claim if their photograph is used
for commercial purposes.79 Even if a product related to the sports event
is marketed, § 23(1) 1 KUG does not allow the use of any photograph
of the person but only those photographs which are clearly related to
the marketed product or event.80 As a result, the photograph, together
with the commercial use made of it, has to encompass a news value.
With regard to this limitation, the marketing of a sports book with
an unauthorised photograph of a tennis star81 would be allowed just
like the distribution of a CD together with an unauthorised portrait
of the star.82 In this particular case, neither of these situations is met.
Therefore, the publication of the photograph constitutes a pure com-
mercial use of the photograph and has no news value. Consequently,
the tennis player has a claim against its use for an injunction as well
as damages.
The tennis star could also ask for the profits earned by the com-
pany provided that he does not generally oppose the commercial use
of his attributes. Then, only non-monetary relief could be granted,
which, however, requires that the commercialisation of the photo-
graph is, as such, a grave and reckless injury to personality inter-
ests.83 This would in fact be denied by the German courts (see also
Case 11).
If the famous tennis player dies before publication, his surviving
spouse and child could claim compensation. Case law up to now has
acknowledged that the pecuniary personal attributes (e.g. the right to
one’s image) are hereditary.84
78
OLG Frankfurt NJW 2000, 594 (Katharina Witt).
79
BGHZ 20, 345 – Paul Dahlke; BGH GRUR 1972, 97; BGHZ 49, 289; BGH NJW 1979,
2205, 2206; BGH NJW 1992, 2084; BGH NJW-RR 1995, 789; BGH NJW 1996, 593,
594 (memorial coin of Willy Brandt); accepted by BVerfG NJW 2001, 594, 595; LG
München I ZUM-RD 2006, 465, 466 f.
80
BGH NJW 2009, 3032; BGHZ 151, 26 = GRUR 2002, 690.
81
OLG Frankfurt NJW 1989, 402: tennis book with a front cover photograph of Boris
Becker.
82
BGH NJW 1997, 1152 (Bob Dylan): but not if these CDs are unauthorised bootleg
copies.
83
BGHZ 128, 1, 15.
84
BGH NJW 2000, 2195, 2197; consenting BVerfG WRP 2006, 1361, 1364.

The discussion whether fully attenuated property rights with respect
to personality interests should be granted by law is a question of legal
policy. The traditional task of personality rights is to protect moral but
not pecuniary interests. This is due to the historical development of
the German Civil Code which was originally formed to protect merely
commercial interests, while the protection of moral interests was left
to social norms.85 This was rectified by the courts after World War II
arguing that social norms do not offer sufficient protection of person-
ality interests. In recent times there is a strong tendency to protect per-
sonal interests by the same sanctions that are used for the protection
of commercial interests. However, the transformation of a moral right
into a commercial right tends to weaken the moral value of personality
interests.
Greece
I. Operative rules
The tennis player has a claim against the company for an injunc-
tion and compensation. The compensation does not include the skim-
ming off of profits earned by the company through the use of his
photograph.

(a) Can the tennis player, who had not authorised this advert, sue the company
for injunction and compensation?
In order to claim compensation the tennis player has to prove that
the presentation of the picture to the public is combined with other
circumstances which diminish his value and reputation, causing an
injury to his honour.
(b) Do the damages include skimming off the profits earned by the company
through their use of the photograph?
There is no ground in Greek scholarship and court decisions to accept
the pecuniary exploitation of aspects of personality, such as name,
image, voice, etc. As the Supreme Court has stated ‘the claim to non-
pecuniary damages exists even when a person’s image is exposed for
promotional reasons’.86
85
S. Gottwald, Das allgemeine Persönlichkeitsrecht (Berlin/Baden-Baden: 1996), 18 and 145.
86
The right to claim the cessation of the offence and the non-recurrence
thereof in the future, as well as damages for non-economic harm
belongs to the relatives (spouse, descendants, brothers, sisters) and
legatees appointed under a will in case that the offence was directed
against the personality of a deceased person (Art. 57(1) CC).
Ireland
I. Operative rules
The tennis player would have an action in defamation if it could be
established that the association with the electronics company would –
objectively speaking – damage the player’s reputation. If that were the
case, the tennis player could obtain an injunction and damages. An
action in passing off could possibly succeed notwithstanding the fact
that there is no evidence the tennis player and the electronics com-
pany shared the same market.

As outlined in the English report, an action in defamation can only
be brought about where the tennis player’s false association with the
electronics company would damage his reputation in the eyes of right-
thinking members of society.87 If such a claim were successful, the
tennis player could seek an injunction limiting further publication of
the photograph and obtain financial damages as compensation for the
consequent damage to his reputation.
The tennis player would not have an action for infringement of copy-
right as the photographer would be considered the first owner of the
copyright in the photograph.88
The common law action of passing off has provided little protection
to ‘image’ rights. Traditionally, case law would suggest that the mis-
representation must be made by a trader acting in a common course
of trade with the plaintiff.89 The rationale for this requirement would
appear to lie in the fact that the plaintiff would suffer little damage
where the defendant was not directly competing with him/her in the
87
Tolley v. J.S. Fry and Sons Ltd.
88
S. 21(h) of the Copyright and Related Rights Act 2000.
89
Erven Warnink Besloten Vennootschap and Another v. Townend & Sons (Hull) Ltd and
McCulloch v. Lewis A. May (Produce Distributors) Ltd.
marketplace. There is no common field of business – of which we are

aware – between the tennis player and the electronics company and
therefore there can be no passing off. It has been suggested by some
commentators that the law should be developed – based on the con-
stitutional guarantees of a citizen’s personal and property rights – to
offer such protection.90 Indeed, recent English case law on this point
has indicated that an action in passing off will not necessarily fail
simply because there was no ‘common course of trade’ between the
plaintiff and the defendant. It would seem logical that Irish law on
passing off would develop in a similar manner and recognise a claim
in these circumstances on the basis that such a false association weak-
ens the goodwill which the tennis player has created in his image.
To succeed in such an action it would be necessary to show that the
public reasonably believed that the tennis player had consented to the
endorsement.91
Advertising in Ireland is regulated by the Advertising Standards
Authority of Ireland (ASAI). This is an independent self-regulatory body
which is financed by the advertising industry. The ASAI has developed its
own voluntary code of conduct which has proven very effective. Under
the code of conduct, all advertisements must be honest and truthful,92
should not mislead by inaccuracy or ambiguity,93 should not claim or
imply an endorsement where none exists94 and should not exploit or
make unfair use of the goodwill attached to the name of another per-
son.95 The electronics company here is in breach of the ASAI’s code of
conduct. It is clear that the advertisement by the electronics company
implies that the tennis player has endorsed their products where no
such endorsement exists and they are making unfair use of the good-
will attached to the tennis player’s name. However, the ASAI is a self-
regulatory body primarily designed to protect public consumers and
as a consequence the tennis player’s remedies are somewhat limited.
On foot of a complaint, the ASAI could order that the advertisement be
amended and the media could refuse to continue publication of it. Any
member who refuses to comply with any such decision could be fined
or suspended from membership. Thus, while the tennis player may not
90
J. Healy, ‘The Tort of Passing Off: Part 1 – Developments and Current Tensions’
(1997) Irish Law Times 196 at 198.
91
Irvine v. Talksport Ltd.
92
Rule 2.1 of the ASAI Code of Conduct (5th edn., 2001), available at www.asai.ie/
documents/ASAI%202001%20Codes.pdf.
93 94 95
Ibid. Rule 2.22. Ibid. Rule 2.31. Ibid. Rule 2.53.
obtain an injunction preventing the publication of the advertisement,

censure from the ASAI can be just as effective in preventing the con-
tinued display of the advertisement.
Italy
I. Operative rules
The tennis player can sue the company for injunction and damages.
Damages do not in principle include skimming off the profits earned
by the defendant. If the famous player has died prior to the publication
it is likely that the surviving spouse and child would be granted the
same remedies.

(a) Can the tennis player, who had not authorised this advert, sue
the company for injunction and compensation?
Under Italian law, every person has a protected interest in the publicity
value of his/her personality. It is debated whether this interest should
be qualified as a property right – and hence alienable – or as a personal-
ity right with economic aspects.96 However, it is clear that commercial
exploitation of one’s own identity requires the permission of the per-
son involved. This conclusion is supported by a huge number of deci-
sions and by specific provisions on name, nickname and portrait (Arts.
6–10 CC, Arts. 96–97 CA, Art. 21 Trademark Act); it is also affirmed in
academic literature.
It is not always easy to determine the exact scope of protection of this
right,97 however in cases such as this one an unlawful infringement is
undisputable. This is a typical example of commercial exploitation. It
is irrelevant that the photograph was well-known, as it had appeared
in the press some years earlier. As a matter of fact, its reproduction
lacks any informative function: it is not aimed at informing the pub-
lic – for instance – about the unforgettable match won by the tennis
player in late 1973. It is just intended to reap the benefits associated
with the value of the player’s personality. No consent was given here.
96
On this matter, see A. Zoppini, ‘Le “nuove proprietà” nella trasmissione ereditaria
della ricchezza (note a margine della teoria dei beni)’ (2000) Rivista di diritto civile I,
185, 236; G. Resta, Autonomia privata e diritti della personalità (Naples: 2005) 245–7.
97
Particularly difficult are the cases in which the exploitation has been carried out
using a medium with intrinsic informative value: see Trib. Milano 23 Dec. 1999, Dir.
inf. 2000, 622; on this issue, see C. Scognamiglio, ‘Scopo informativo ed intento di
lucro nella disciplina della pubblicazione del ritratto’ (1991) Dir. inf., 129.
Therefore, according to Art. 10 CC, in connection with Arts. 96–97 CA,

the claimant can enjoin the publication.
He/she can also recover damages in respect of lost profits for the
foregone royalties. As explained in Case 8, this action is based on Art.
2043 CC, which is the general clause on extra-contractual liability,
and not on the general provision on unjust enrichment (Art. 2041 CC).
Therefore, the burden of proof is on the claimant, who has to demon-
strate the commercial value of his/her personality and the ‘damage’
suffered.
The damage is not assumed to be in re ipsa.98 However, presumptions
are commonly admitted with the result that the burden of proof is
significantly relaxed. There is no doubt that a famous tennis player’s
image has a high market value. As a consequence, the loss can be pre-
sumed and the claimant only has to prove the amount of the reason-
able royalties.

Damages do not in principle consist of skimming off the profits
‘unjustly’ earned by the defendant.99 However, it may happen that the
judge, exercising discretionary power (Arts. 1226–2056 CC), will take
the circulation of the advert into account and, indirectly, the profits
gained. Up to now, one of the highest amounts awarded was around
€100,000 (claimant: Elizabeth Taylor).100
(c) What would be the result if the famous tennis player has died prior
It is likely that the result would not be different in the hypothesis
that the tennis player died prior to the publication, but had a surviv-
ing spouse and a child. Art. 96 CA states that after the death of the
person portrayed, the required permission must not be obtained from
the heirs, but from the relatives. The qualification of this interest is
disputed. Traditionally, it has been considered either as a reflection
of the personality right of the deceased or as a peculiar entitlement
acquired iure proprio (under the assumption that personality rights can
98
Cass. 25 Mar. 2003 no. 4366, Dir. inf. 2003, 521.
99
See Case 8.
100
See E. Borrelli, ‘La quantificazione del danno per violazione del right of publicity’
(1996) Danno e responsabilità, 166.
be extinguished and are not transmissible after death).101 More recently,

however, some scholars have been adopting the view that personality
rights – or at least their economic components – are descendible to
some extent and can be acquired iure hereditario. This controversy is not
a purely dogmatic one since it has relevant systematic implications.
Nevertheless, it is not necessary to go into theoretical details in order
to answer our question.102
Case law offers clear guidelines. It is undisputed that – under proper
conditions – surviving relatives can be granted injunctions in order
to oppose unlawful exploitations of the deceased’s personality. Many
decisions can be cited – concerning the right to one’s own name, to
one’s own image and to privacy103 – which support this solution. Yet
the same can be said in relation to damages. It is important to note
that while in Germany this issue has been openly debated for years,
in Italy, the courts – moving from the same theoretical assumptions
about the non-transferability of personality rights – have commonly
allowed the right of the relatives to sue for compensation. Already in
1953, tenor Caruso’s son was awarded about €1,000 for the unlawful
appropriation of his father’s identity (the damage was calculated on
the basis of foregone royalties).104 In two recent cases, both regarding
the unlawful commercial exploitation of someone’s likeness, the sis-
ter of Massimo Troisi was granted €12,500, while the child of Antonio
De Curtis (known as Totò) was awarded €25,000.105 Looking at these
101
G. Bonilini, Manuale di diritto ereditario e delle donazioni (2nd edn., Turin: 2003)
10; A. Palazzo, Le successioni, vol. 1, Trattato di diritto privato Iudica-Zatti (2nd edn.,
Milan: 2000) 188; L. Ferri, Disposizioni generali sulle successioni, Commentario del codice
civile Scialoja-Branca, II, Delle successioni art. 456–511 (3rd edn., Bologna/Rome:
1997) 32.
102
See for a discussion of this issue, A. Zaccaria, Diritti extrapatrimoniali e successione.
Dall’unità al pluralismo nelle trasmissioni per causa di morte (Padova: 1988) 72 et seq.;
A. Zoppini, ‘Le “nuove proprietà” nella trasmissione ereditaria della ricchezza’ at
185, 238; G. Resta, Autonomia privata e diritti della personalità at 396 et seq.; V. Zeno-
Zencovich, ‘Profili negoziali degli attributi della personalità’ (1993) Dir. inf., 579.
103
See e.g. Trib. Milano 24 Sept. 1953, Foro pad. 1953, I, 1341; App. Milano 27 Oct. 1954,
Dir. aut. 1955, 221; Trib. Roma 25 Feb. 1956, Rass. dir. cin. 1956, 136; Pret. Roma 15
Mar. 1956, Rass. dir. cin. 1956, 47; Trib. Roma 20 Mar. 1985, Dir. aut. 1987, 67 (De
Chirico); Pret. Roma 3 Mar. 1986, Giust. civ. 1986, I, 2279; Pret. Verona 30 Oct. 1990,
Dir. inf. 1991, 171; Trib. Milano 15 Sep. 1994, Dir. inf. 1995, 626; Trib. Milano 30 Jun.
1995, AIDA 1995, 702.
104
Trib. Roma 23 Feb. 1955, Rass. dir. cin. 1955, 100, 107; Trib. Roma 14 Sep. 1953, Foro it.
1954, I, 115; App. Roma 17 May 1955, Foro it. 1956, I, 793.
105
Trib. Napoli 18 Apr. 1997, Dir. ind. 1997, 903; Trib. Roma 22 Dec. 1994, Foro it. 1995, I,
2285 (Totò); see also App. Roma 4 Jun. 2001, Dir. aut. 2001, 468.
decisions – but it has to be noted that no Supreme Court decision is

reported – one gets the impression that, notwithstanding the contrast-
ing theoretical assumptions, personality rights are treated as descend-
ible rights by the law in action.
Therefore, it is likely that the relatives of the deceased can prevent
the publication and recover damages.
The Netherlands
I. Operative rules
(a) The tennis player can claim compensation for missed profits and for
an injunction against the future publication of the advert.
(b) The tennis player can claim for damages that consist of skimming
off the profits, but he cannot claim for both compensation of loss of
his own profits and for skimming off profits of the company.
(c) The spouse and child can obtain compensation on the same basis as
the tennis player himself.

(a) Can the tennis player, who had not authorised this advert,
sue the company for injunction and compensation?
Presupposing that the tennis player has not authorised the electronics
company to use this picture before for the purposes of advertisement,
the case will depend on reasonable foreseeability with regard to the
method of publication, the form, the context and the size/dimension
and frequency of publication. Given the fact that the picture had been
published several years earlier, we can assume that the tennis player
did not reasonably foresee that the picture would be used several years
later.106
Assuming that the picture shows the image of the tennis player, Art.
21 Auteurswet applies. Whether it is unlawful to publish the portrait
without the authorisation of the person portrayed depends on the
outcome of the ‘reasonable interest’ test (see Case 7). In this case, the
tennis player has at least a financial interest not to have his portrait
published without consent, since if his consent had been requested
106
It is also possible that the assumed contract provided that the picture was only
to be used to a certain, well-outlined, extent. In that case, the use of the picture
after several years and outside the contractual limits is a breach of contract. With
regards to damages, the same rules apply as when the breach is based on extra-
contractual liability.
he could have asked for payment. In such cases the outcome of the
reasonable interest test is that the publication is unlawful. The tennis
player can ask for compensation for the profits that he missed and for
an injunction against the future publication of the advert.

As explained under Case 1, the tennis player may choose to base his
claim for compensation of damages either on Art. 6:96 BW or on Art.
6:104 BW. The tennis player cannot get both compensation for missed
profits and also the profits made by the electronics company. He can
however base his claim for damages both on Art. 6:96 BW and 6:106 BW
(in which case he has to raise facts that support the claim). In the end,
the judge has to decide whether the compensation should be based on
Art. 6:96 BW or 6:104 BW. If he considers Art. 6:104 BW to be applicable,
he has to assess the damages according to Art. 6:96 BW and 6:104 BW
and has to choose the provision which is most favourable to the tennis
player.
If the tennis player died before the publication of the advert, accord-
ing to Arts. 21 and 25a Auteurswet his parents, spouse and children can
invoke the right to the portrait. In testing the reasonable interest, the
same factors have to be balanced as those that apply when the tennis
player himself invokes the right to his portrait. On behalf of the tennis
player and his spouse and child, these factors are the right to privacy
(which is not a persuasive interest, given the fact that the picture had
already been published several years ago) and the right to profit from
the portrait. If the publication is unlawful for that reason, the spouse
and child can be awarded compensation on the same basis as the ten-
nis player himself (see (b)). It is subject to debate whether the right of
the tennis player is a right that can as such be inherited by his heirs or
that the heirs obtain their own (commercial) rights from the right of
the tennis player.
Portugal
I. Operative rules
sation. It would be very unlikely that the damages would consist of
skimming off the profits earned by the company through the use of
the photograph. If the famous tennis player had died prior to the pub-
lication but has a surviving spouse and child, they would, in principle,
be entitled to initiate a claim.

As previously explained, according to Art. 79(1) CC the image of a per-
son shall not be published without his/her prior consent, unless the
exposure is justified by the notoriety of the person, his/her functions,
justice or police requirements, scientific, didactic or cultural aims, or
when the image is taken in a public place or facts are disclosed that
are public or of public interest (para. 2), but not if the image harms the
honour, reputation or decorum of the depicted person.
There are two independent issues that have to be addressed relating
to this question: firstly, if there is a wrongful act, and secondly, if there
are damages. In relation to the first issue, using the image in question
without permission might not violate Art. 79, since the person is fam-
ous and this publicity does not harm his/her honour or reputation (Art.
79, paras. 2 and 3 CC). However, this conduct is wrongful because using
the image or words of a person in advertising without his/her author-
isation is forbidden (Art. 7 (2)(e) CPub). With regard to the existence of
damages, even if the tennis player did not suffer any direct damage
arising from the advertisement (damnum emergens), he did in fact lose
the profits he could have earned using that picture for advertising or
any other purpose (lucrum cessans). In fact, in spite of not particularly
harming his honour, dignity or reputation, the tennis player suffers a
loss of the value that he could have gained for the commercial use of
his photograph. Therefore, he has the right to sue the company for an
injunction and compensation for the benefits that he did not obtain
due to the wrongful conduct (Art. 70(2) CC) (although he did not already
own those benefits when the wrongful conduct took place). He may file
for an injunction to remove his image from the press and claim com-
pensation for the amount of the lost value (Art. 70 CC).
The CPub also determines that, according to the general rules, all
entities who contribute to the advertisement in some way are civ-
illy and jointly responsible for the damage caused as a result of their
wrongful acts (Art. 30(1)). Finally, using the image or words of another
person in advertising without his/her authorisation is also sanctioned
with a fine.
Regarding ‘punitive damages’, see Case 8.
Personality rights are protected post-mortem by Art. 71 CC. The sur-

viving widow or widower, ascendants, descendants, siblings, nephews/
nieces and heirs of the deceased may file claims. However, Art. 71(3) CC
states that if the wrongfulness of the offence results from the absence
of consent, only the persons who were entitled to give that consent can
legitimately take any measures. This means that if the tennis player
was already dead when the publication took place, only the persons
who own any rights over that picture (not necessarily any family mem-
ber or heir) can go to court. In any case, both the surviving spouse
and child would, in principle, be entitled to file a claim before a court.
There is, however, disagreement among legal scholars concerning
compensation. Some deny compensation to the persons mentioned in
Art. 71 CC since they do not exercise a right that is rightfully theirs. On
the contrary, others admit that these persons exercise their own right.
There are also those who argue that, under Art. 71 CC, it is the per-
sonality of the deceased him/herself that is safeguarded post-mortem,
however this is an isolated opinion.
Scotland
I. Operative rules
A claim for passing off will only be successful if the tennis player can
prove economic damage. An action in defamation could also be raised
if it can be shown that the tennis player’s professional reputation is
likely to suffer at the hands of the new ‘advertising campaign’. Under
s. 85 of the Copyright Act, the tennis player can apply for an injunction
against the advertising firm for breach of his moral rights in the use
of his photograph.

This is the classical situation of appropriation of personality for com-
mercial use. It relates to the right of a well-known professional to deter-
mine which commercial activities he/she wishes to be associated with.
Neither the law of defamation nor breach of confidence are likely to
offer a remedy here. On the facts given there has been no impropriety
in accessing the photograph, nor is there any suggestion that the ten-
nis player is lowered in the eyes of right-minded people. It is a true
misappropriation of personality claim: the tennis player has neither
consented to the re-use of his photograph in a new commercial context
nor has he consented to being part of the new advertising campaign. In
addition, it may well constitute a data protection issue.
However, the foregoing is subject to the following remarks: there

is no such thing in either English or Scots law as a right to one’s own
image. Privacy as such is not generally deemed to extend to one’s trade
or business.107 Case law on the misappropriation of personality for com-
mercial use has focused on the claim of defamation and passing off,
and contrasts greatly with the position in both the US and Canada.108
There are two main issues here: ownership of the photograph and
use of the tennis player’s photograph for commercial advertising for
a company with which he has no contacts (false attribution through
misappropriation of personality). This photograph has presumably
been taken from the public domain. Paparazzi photographs belong to
the photographers, so there will be no claim against the original pho-
tographer. An injunction will be granted on the basis of s. 85 of the
Copyright Act as a means of enforcing his moral rights:
Generally speaking an individual’s privacy is only protected by the law of
copy right if he has an interest in the copyright … the only protection avail-
able to someone who is not the copyright owner is that provided under s. 85 of
the 1988 Act to prevent publication by a third party against whom the author
or subsequent copyright owner intends taking no action himself.109
The common law action of passing off is designed to prevent the

unauthorised use of certain attributes and, as stated above, tradition-
ally related to a commercial environment. Given that the tennis player
is ‘famous’, he will be classified as a professional in the sense of being
able to attach an economic value to his photograph. The only require-
ment for action in passing off is proof of damage. Recent English
authority110 confirms the suitability of the action for the tennis player
and gives further enlightenment on commercial misappropriation and
character merchandising. Scots law here is presumed to be on level
pegging with English law.
Spain
I. Operative rules
sation. Damages are comprised of skimming off the profits earned by
107
See Case 1 re Press Code on Privacy.
108
Carson v. Here’s Johnny Portable Toilets Inc. 698 F. 2d 83 I (1983).
109
See Calcutt Report, Committee on Privacy and related matters, Cm 1102, June 1990
at para. 9.5.
110
Irvine & Ors v. Talksport Ltd (No. 2).
the company. If the tennis player was deceased prior to publication, his
surviving spouse and child could initiate an action.

An identical case to this one was resolved by the Spanish Supreme
Court.111 Pictures of several Spanish sportsmen were taken at a compe-
tition in the 1984 Los Angeles Olympic Games. Afterwards, a calendar
sponsored by a famous beer brand published pictures of the medallists.
The medallists filed a claim as they did not authorise the publication.
The Supreme Court decided in favour of the claimants, given that,
although the image was taken in a public place and referred to public
persons, the commercial use thereof must be expressly consented to.112
In relation to the action of the surviving spouse and child, Art. 4 LO
1/1982 provides that actions to protect the honour, privacy and image
of a deceased individual can be taken by persons appointed to this
effect in his/her will. If there is no appointment in the will, or the per-
son appointed is also deceased, then the action can be initiated by the
surviving spouse, children, parents or siblings of the deceased person
who were alive at the time of the death.
Additionally, according to Art. 9.4 LO 1/1982, the amount to be
awarded for pain and suffering, in the case of Art. 4, will correspond
to the persons mentioned in that provision and, if not, to their succes-
sors in the proportion in which the court considers they have been
affected.113
Switzerland
I. Operative rules
The tennis player may put an end to the infringement by asking the
judge to issue an injunction against any further distribution of the
111
STS, 3 Oct. 1996 (RJ 7012).
112
A similar case was resolved in STS, 1 Apr. 2003 (RJ 2979). Picture cards of members
of the Spanish soccer national team were commercialised by an entity who only
had the authorisation to commercialise the image of these members as players of
their respective clubs, but not as members of the Spanish national team. The twen-
ty-two members of the national team claimed against the picture cards company,
and the Supreme Court confi rmed the amount awarded by the lower courts. The
public sphere of a person legitimises the capture of his/her image and publishing
for informative reasons, but never when the goal is commercial exploitation. The
players did not authorise the publication of their images with the national team,
only with their respective clubs.
113
See STS, 23 May 2003 (RJ 3593); STS, 27 Jun. 2003 (RJ 4312); STS, 2 Feb. 1993 (RJ 794);
and STS, 27 Jun. 1996 (RJ 4792).
advertisement. He also has the right to demand a declaratory judg-

ment holding the infringement unlawful so that he may claim dam-
ages from the advertising company. Damages include restitution of
any profits made from the use of the tennis player’s image.
After his death, his wife and child may bring proceedings in their own
names for the unlawful infringement based on their right to ‘piété filiale’,
meaning the feelings of attachment and consideration that relatives have
for one another. However, the spouse and child cannot bring the same
claims that the tennis player would have had. Only where the tennis
player had already initiated legal action before his death could his family
stand in for him and continue to pursue those claims on his behalf.

(a) Can the tennis player, who had not authorised this advert, sue the company
for injunction and compensation?
As stated above, the right to one’s own image is part of the personality
rights protected under Art. 28(1) CC. As we have seen, an image may
not, in principle, be reproduced by drawing, painting, photography,
or any comparable process without the prior or subsequent consent of
the individual concerned; moreover, such a reproduction cannot be
distributed without consent.114
A famous tennis player is a public figure. Thus, the protection of his
personality rights is more limited than that of average individuals;
however, it does include the use of his image for advertising purpos-
es.115 The fact that athletes make a large part of their income from
advertising does not authorise advertisers to use athletes’ images
without their consent. Such behaviour was classified as ‘inhumane’
by a court in Zurich, because the athlete fi nds him or herself reduced
to publicising the product being advertised.116 Anyone voluntarily
participating in an advertisement will be identified with the product
presented and if his or her image is used without authorisation in
connection with this product, he or she will be seen as having given
an opinion on or having a certain relationship with the product.117 To
the person used in the advertisement, this may seem like a serious
infringement of his or her personality rights.
The fact that the tennis player had authorised the publication of this
photograph in a newspaper several years earlier does not legitimise
114
RVJ 2003, p. 252 c. 4a.
115
Judgment of the District Court of the area of Zurich, in: SIC 2003, p. 127 c. 28 et seq.
116 117
Ibid. c. 30. Ibid. at c. 28 et seq.
its subsequent use for advertising purposes.118 His renewed consent is,
in fact, necessary; without it there is an unlawful infringement of his
right to the protection of his image. The protection given by this right
also extends to distortion or abusive exploitation.119 In that respect,
the Obergericht of Zurich has held that any photography taken for use
in advertising may not be used for another advertising campaign with-
out the consent of the individual concerned.120 Moreover, an unlawful
infringement against personality rights will be more easily recognised
where there is a notable divergence between the initial intended use of
the image and its use for advertising purposes.121
Therefore, the tennis player may bring proceedings to put an end
to the infringement (Art. 28a, 1(2) CC) by asking for injunctive relief
against any further distribution of the advertisement. He may also ask
for a declaratory judgment declaring that the infringement is unlaw-
ful (Art. 28a(3) CC) and demand economic and non-economic damages
from the advertising company (Art. 28a(3) CC). According to the gen-
eral rule (see Art. 49 CO), damages for pain and suffering will not be
awarded unless he proves that the infringement he suffered was par-
ticularly egregious.

The tennis player has the right to demand restitution of any profits
made by the advertiser through a claim for the restitution of profits
(Art. 28a(3) CC and Art. 423 CO). However, he has no legal means of
forcing the company to provide any documents or information that
would permit him to calculate and prove the amount of profits earned.
Therefore, he would probably ask the judge to make a determination in
equity taking the normal course of affairs into account (Art. 42(2) CO).
Under Art. 31 CC, personality rights expire upon the death of their
holder.122 However, this principle does not prevent heirs from bringing
118
Judgment of the Obergericht of the area of Zurich, in SJZ 71 (1975), p. 27 c. 3 to 5.
119
P. Tercier, Le nouveau droit de la personnalité (Zurich: 1984) n. 458.
120
Judgment of the Obergericht of the area of Zurich, in ZR 71 (1972), p. 104.
121
Judgment of the District Court of the area of Zurich, in SIC 2003, p. 127 c. 28 et seq.
122
A. Büchler, ‘Die Kommerzialisierung Verstorbener, Ein Plädoyer für die
Vererblichkeit vermögenswerter Persönlichkeitsrechtsaspekte’ (2003) Pratique
Juridique Actuelle 7.
proceedings in their own names for an unlawful infringement com-

mitted against their own familial sentiments regarding the deceased.
This includes the memory of the deceased, and it permits those close
to him/her to bring proceedings to protect the honour or the image of
the latter, primarily by means of specific injunctive relief.
Since personality rights are not transferable, it is only if the person-
ality rights of the spouse and child are infringed by the advertisement
that they can bring suit for recognition and cessation of the infringe-
ment.123 Actions for the restitution of profits will not be open to them
because their familial rights do not confer a legal position which
would include the economic and commercial elements of personality
rights.124 So far, Swiss law retains the purely ideal aspect of personality
rights in such situations.
The situation will be different if the publication takes place prior to
the tennis player’s death and if the deceased brings proceedings while
still alive. His heirs could then stand in for him and continue the claim
after his death. It is only where the tennis player commenced legal
action during his lifetime that the right to continue the proccedings
may be inherited.125

The notion that benefits of the personality only have an ideal value is
open to criticism. It is more useful to recognise that the benefits also
have an inheritable value. Even if the Swiss courts currently seem
reluctant to grant more than an ideal value, the legislature has clearly
recognised this by expressly establishing an action for the restitution
of profits in order to protect personality rights (Art. 28a(3) CC ).
Images, signs, or objects bearing the mark of an individual are
benefits of the personality for which the value is often not only ideal
but also and foremost commercial. The exploitation engaged in by
celebrities concerning their images shows that the personality is
based on economic reality.126 A large number of these celebrities are
athletes who receive a significant portion of their incomes from the
123
ATF/BGE 104 II 225 c. 5b, JdT 1979 I 546.
124
ATF/BGE 129 I 302, in: PJA 2004, p. 742; A. Büchler, ‘Die Kommerzialisierung
Verstorbener’, at 7.
125
ATF/BGE 104 II 225 c. 5b, JdT 1979 I 546.
126
F. Werro, ‘La tentation des dommages-intérêts punitifs en droit des médias’ (2002)
Médialex 82 at 88. See also, Franz Werro, ‘Une remise du gain sans gain? Une illus-
tration de l’arbitrage délicat entre liberté et dignité’, in Mélanges en l’honneur de
Pierre Tercier (Zürich: 2008), p. 495.
commercialisation of their personality rights. To the extent that an

individual holds a right, the media has no right to enrich itself at the
expense of that individual. As a result, anyone who appropriates the
image of an athlete and uses it to serve his/her own economic purposes
appropriates the benefits of others who alone are entitled to decide if
their image may be used for free or not. The fact that unjust enrich-
ment may be difficult to establish does not change anything. Rather,
it is better to reinforce the protection of the victim, famous or not,
and to sanction any unlawful infringements more forcefully through
adopting actions for the restitution of profits.
Comparative remarks
This is the first case which deals exclusively with the appropriation of
personality for commercial purposes. In contrast to Case 9, there is a
shift in focus from privacy interests to publicity interests. Indeed, at
first glance, there is no obvious damage to the honour or reputation of
the tennis player as this photograph was taken at a public event, had
already appeared in the press and the advertisement merely consists
of three neutral words under his photograph. In this case, we see a
marked difference in approach between the civil law legal systems and
the common law systems and Scotland. The tennis player has a claim
in all of the civil law countries. However, the outcome is far from cer-
tain in the common law and Scotland.
I. The claimant’s claim

The tennis player will be entitled to a preventative injunction and com-
pensation in all of the civil law legal systems considered. This will be
achieved in continental Europe through the use of general tort law and
special copyright provisions. There are two deciding factors in ascer-
taining the unlawfulness of the defendant’s conduct. Firstly, the photo-
graph was used for purely commercial purposes and this excludes
the defence of freedom of expression or public interest. Secondly, the
photograph was published without the consent of the tennis player.
In this sense, even though the picture was taken at a public event and
was already well-known, publication in such a manner will not be
permitted.
In Finland, a person’s right to decide whether his or her picture is
used for commercial purposes is mainly based on case law and academic
writings. The Finnish Supreme Court has allowed claims for injunction
and damages (based on the Tort Liability Act) where a person’s picture
is used in advertising without authorisation. Moreover, according to
the Finnish Act on Unfair Business Practices, when a picture is taken
of a person who is acting for business purposes, this person can claim
before the Finnish Market Court. The Market Court can, however, only
grant an injunction: claims for damages must be brought before the
general courts.
In England, Ireland and Scotland, the tennis player has fewer
options in relation to his causes of action. He can only proceed on
the basis of defamation and/or passing off. Copyright does not play a
role as it is the photographer who owns the copyright. Even though
there is case law to support the use of defamation in such a scenario,
it is unlikely that the claimant would be successful with this action,
given that, on these facts, it is difficult to prove damage to reputa-
tion. Traditionally, the use of passing off has also proved somewhat
troublesome. However, recent case law has suggested a less restrictive
approach to pleading the tort. Nevertheless, in this case, the claimant
would have to prove that he enjoyed significant goodwill at the time
of publication and that the publication led a substantial proportion
of the market to believe that the product had been endorsed by the
claimant. In this particular case, the advertisement in question con-
tained a well-known and unabridged photograph of the claimant at
a tournament match with three neutral words underneath. It might
be difficult to conclusively prove that a significant proportion of the
market saw an endorsement link between the claimant and the com-
pany. Nonetheless, if successful using these torts, the claimant would
be entitled to damages under defamation and an injunction and/or
damages under passing off.
In Ireland, self-regulation plays an important role in this case. The
publication of such an advertisement amounts to a breach of the
code of conduct of the Advertising Standards Authority of Ireland
(ASAI). The ASAI could order that the advertisement be amended and
the media could refuse to continue publication of it. Any member
who refuses to comply with any such decision could be fined or sus-
pended. Thus, while the tennis player may not obtain an injunction
preventing the publication of the advertisement, censure from the
ASAI can be just as effective in preventing the continued display of
the advertisement.
II. Damages awarded

The question of damages is of significance in this case because of the
publicity interests involved. In this respect, the form of damages and
the method of award should differ considerably from cases involving
pure privacy interests. If these publicity interests are seen as having
proprietary characteristics in the individual legal systems, then the
damages awarded could conceivably be similar to damages awarded in
breach of intellectual property cases, i.e. compensation for the prop-
erty owner’s lost profits and disgorging the unjust enrichment on the
part of the defendant.
In the first instance, it is clear that most legal systems appreciate
a difference between privacy interests on the one hand and the com-
mercial nature of this case on the other. Indeed, for the majority of
countries, the loss in this case is solely economic. The only exception
to this general observation is Greece where there does not seem to be
a possibility to claim damages for economic loss. However, damages
for non-economic loss appear to be recoverable, even in purely com-
mercial cases.
The majority of civil law legal systems consider that the claimant
can claim for the lost opportunity of earning money resulting from
the publication of his photograph. In France, while there might not
be a distinct divide between economic and non-economic damages, in
such cases courts have implicitly awarded damages for the lost earn-
ing opportunity. In most countries, this award will usually be calcu-
lated on the basis of a hypothetical licence fee. In the common law
countries and Scotland it is more difficult to assess how the damages
will be determined in an individual case. If the claimant is successful
with the action in defamation, then restitutionary damages will not
be available. In respect of passing off, the goodwill of the claimant will
be treated as a property right. Therefore, he can claim damages for the
lost opportunity of earnings. This is calculated either on the basis of
what the claimant usually charges for such advertisements or on the
basis of a reasonable endorsement fee determined by the court.
In Finland, the recoverable economic damage is limited to the loss
actually suffered by the tennis player. The amount of damages usually
awarded by the courts is fairly low.
Only some of the legal systems consider that the claimant will have
a claim in respect of skimming off the profits made by the defendant.
However, in some systems, there are certain requirements attached to
the granting of this remedy. In Germany, it is only possible provided

that the claimant does not resist the commercial use of his personal-
ity in general. The Dutch courts will allow a skimming of profits but
it cannot be awarded in conjunction with damages for a lost earning
opportunity. It also seems likely that this remedy would be granted
in Austria, Belgium, Portugal, Spain and Switzerland. The possibility
of seeking this remedy is ruled out in Finland, France and Greece. In
the case of England, Italy and Scotland, in principle, the remedy will
not be entertained. However, the court may, on its own discretion,
take the profits into account when assessing damages.
III. Post-mortem appropriation of personality

As a matter of principle, personality rights are connected to the living
individual and therefore cease to exist on the death of that person. It
is for this reason that the issue of post-mortem appropriation of per-
sonality is noteworthy in this case. If the publicity interests involved
can be ‘inherited’ by the surviving spouse and child, then this could be
regarded as a further proprietary characteristic.
In many countries such as Belgium, France, Italy, Germany and
Switzerland, personality interests are prevalently treated, at least in
theory, as being purely personal and non-transferable. Accordingly, the
spouse and child would be entitled to an injunction, but not to mon-
etary compensation of the tennis player’s losses. However, the issue
is highly controversial. Some courts and scholars tend to also allow
damage claims for economic loss. The German Supreme Court and
the lower courts in France and Italy clearly acknowledge some kind
of appropriation of the economic aspects of personality by the heirs of
the deceased, which enables them to recover damages.
In Austria, the economic loss of the deceased may be recovered by
the relatives under the law of unjust enrichment. This solution is also
defended by the Swiss report.
In the Netherlands, Portugal and Spain, specific legislative causes of
action enable the relatives and heirs to claim injunction and damages
for violation of personality and the image rights of the deceased. The
theoretical justification of this cause of action (own rights of the rela-
tives, or inherited rights of the deceased) is subject to debate.
In Greece, the spouse and child will be able to recover non- economic
damages on grounds of violation of the personality rights of the
deceased. On the contrary, in Finland claims of surviving family
members for non-economic loss are explicitly excluded, but claims for
economic loss could be theoretically allowed.
The surviving dependants will not have a claim in the common law
systems and Scotland. Defamation is only actionable during the life-
time of the aggrieved person. In respect of passing off, it would not be
possible to prove that a significant proportion of the market reasonably
believes that the deceased endorsed the product in question.
14 Case 11: The popular TV presenter
Case
A popular TV presenter with a very distinctive voice once did a voice-
over on some adverts for a coffee company. After he had made it clear
that he did not want to do any more of these adverts, the company
produced a radio commercial in which his voice had been imitated by
another person. Can the TV presenter sue the company for an injunc-
tion and compensation?
Discussions
Austria
I. Operative rules
The presenter can claim for forbearance and for compensation under
the law of unjust enrichment. He also might have a claim for non-
economic damages. Economic damages are probably not recoverable
in this case.

A right to one’s own spoken words and to the protection of one’s char-
acteristic voice against imitation can be established on the basis of a
consideration of other personality rights and constitutional aspects
(above all Art. 10 ECHR) and a general weighing of interests, combined
with § 16 ABGB.1
1
J. Aicher in P. Rummel, Kommentar zum ABGB I (3rd edn., Vienna: 2000) § 16 no.
22; M. -T. Frick, Persönlichkeitsrechte (Vienna: 1991) 154; H. Koziol, Österreichisches
Haftpflichtrecht II (2nd edn., Vienna: 1984) 13.
413
In 2001, the OLG Wien (Higher Regional Court of Vienna) passed judg-
ment on a similar case, tackling the same problems as the case at hand.
The court had to decide whether to issue a preliminary injunction in
relation to a radio commercial for a political campaign in which the
voices of actors from a well-known television series were imitated.2 In
another decision addressing the same legal dispute, the OGH approved
the protection of someone’s characteristic voice against exploitation
through use in a commercial.3 From these two judgments it follows
that the coffee company encroaches on the presenter’s personality
right and has to pay a hypothetical licence fee under § 1041 ABGB for
any unjust enrichment.4
Since the presenter’s voice is very distinctive and hence easy to
remember it is an important part of his personality. Although the pre-
senter was not mentioned by name on the radio, the average attentive
listener could – because of the cadence, the intonation, the pitch and
the melodic characteristic of the voice – identify him as the narrator
of the commercial. In addition, the audience was accustomed to hear-
ing his voice on the old radio adverts. By broadcasting the unauthor-
ised commercial the presenter’s fame, reputation and personality were
exploited because the listeners got the false impression that the pre-
senter decided to promote the coffee.5 The coffee company obviously
wanted to allow people to recognise the TV presenter’s voice.
As a matter of principle, the Austrian legal order not only protects
someone’s picture or name but every similar identifying feature of an
individual.6
In the present case, Art. 10 ECHR (freedom of expression) is also
affected. The decision whether or not to participate in adverts belongs
to the sphere of freedom of expression.7 This is another argument dem-
onstrating the unlawfulness of imitating a distinctive voice for adver-
tising purposes.8
The presenter can submit a claim for forbearance. Furthermore, he
can demand publication of the judgment of forbearance under § 78 and
2
MR 2002, 27. This decision was reviewed by the OGH. However, the OGH did not
have to deal with any of the elements we are interested in.
3
MR 2003, 95.
4
In the second judgment, the OGH granted ATS 80,000 (approximately €5,800) for the
unjust enrichment.
5
See Case 10.
6
Cf. G. Korn, commentary on OLG Wien MR 2002, 29; consentient: OGH MR 2003, 95.
7
VfGH (Verfassungsgerichtshof, Constitutional Court) MR 1986, 16; see also Case 10.
8
G. Korn, commentary on OLG Wien MR 2002, 29.
c a se 11: t he popul a r t v pr esen t er 415
§ 85 UrhG by analogy9 or by making reference to the general principles

of law.10
The only supposable economic loss could be the equivalent of an
adequate hypothetical licence fee.11 Regarding the unauthorised use
of a picture for an advertisement, the OGH did not accept such a loss
in terms of § 87, subs. 1 UrhG so it probably would not do so either in
terms of § 1295 ABGB (the general clause of tort law).
Since a special provision awarding compensation for non-economic
damage in the legally protected area of the presenter’s personality is
lacking, we have to exert the general principles of fault-based liability
in the ABGB. According to §§ 1323, 1324 ABGB non-economic damages
are only awarded if the tortfeasor acted with gross negligence at least.12
However, there is no case law to approve this position in respect of the
right to spoken words. The OGH often limits compensation for non-
economic loss to cases in which it is regulated in express terms.13 Given
that personality rights are absolutely protected rights, this approach is
not appropriate here.
The TV presenter can claim under the law of unjust enrichment.
He has a certain fame of monetary value, which, in connection with
unauthorised commercials, the OGH classifies as a ‘property’ in terms
of § 1041 ABGB.14

Regarding compensation for non-economic harm we have to differen-
tiate between personality rights anchored in the Copyright Act and
those derived from § 16 ABGB. In the first case, the injured person can
recover compensation for non-economic harm for any fault on the
basis of § 87, subs. 2 UrhG, which, according to the OGH, is restricted to
cases of particularly serious violations.15 In the second case, we do not
9
OGH MR 2003, 95.
10
W. Posch in M. Schwimann, ABGB-Praxiskommentar I (3rd edn., Vienna: 2005) § 16
no. 54.
11
For the problems in respect of this damage and the preference of a solution under
the law of unjust enrichment see Case 10.
12
E. Karner and H. Koziol , Der Ersatz ideellen Schadens im österreichischen Recht und
seine Reform, Verhandlungen des 15. Österreichischen Juristentages, Bürgerliches Recht
II/1 (Vienna: 2003) 17 et seq.; E. Karner and H. Koziol, ‘Non-Pecuniary Loss Under
Austrian Law’, in W. V. H. Rogers, Damages for Non-Pecuniary Loss in a Comparative
Perspective (Vienna/New York: 2001) 1 et seq.
13 14
Cf. Case 17. MR 1992, 95; see also Case 10.
15
See Cases 7, 8, 9 and 10. Cf. the situation regarding § 1328a ABGB: this provision
presupposes (any) culpable behaviour on the one hand and a serious infringement
know the position of the OGH; there is no case law. In our opinion the
general provisions of the ABGB should be applied. According to §§ 1323,
1324 ABGB compensation for non-economic harm can only be awarded
if the wrongdoer acted with gross negligence at least.16
In our minds the legislator should explicitly harmonise the provi-
sions on the compensation of non-economic harm within the sphere
of personality rights in order to avoid an offence against the principle
of equal treatment.17
Belgium
I. Operative rules
The TV presenter has a claim against the coffee company.

Belgian singer-songwriter Rocco Granata was asked to adapt his song
Mi sono innamorato di Marina for Melitta coffee filters (‘Melitta aroma
Melitta’). He refused to sing the adapted version himself so as to avoid
being identified with a commercial product. His voice was then imi-
tated by another singer. The Brussels Court of Appeal granted €12,500
in economic and non-economic damages to Rocco Granata. The singer
had only granted a so-called ‘synchronisation right’.
A person’s voice is part of an individual’s personality (timbre, tone,
sonority, skill). Imitating a person’s voice without his/her consent in
a pure commercial and publicity context, which creates confusion
between the original and the imitation, constitutes a fault in sensu Art.
1382 CC.18
England
I. Operative rules
The claimant may have a claim for an injunction and compensation
under the torts of defamation and passing off.
on the other (see Case 8). In contrast, according to the provisions of the Media
Act aimed at the protection of personality, a claim does not depend on culpable
behaviour; see Case 1.
16
Ibid. Indeed, it could be possible that the OGH denies any compensation of non-
economic loss at all or implements the requirement of seriousness in the sense of §
87, subs. 2 UrhG or § 1328a ABGB respectively by analogy.
17
See the Metalegal formants in Case 5.
18
CA Brussels 19 Jan. 2001, RW 2001–2002, 207; AM 2002, 450, note by F. Brison.

1. Defamation
In this case, an action can be grounded in defamation if the broad-
casted voice could reasonably be understood to be that of the TV pre-
senter. It would then depend on whether his reputation could have
been harmed in the eyes of right-minded people.19 However, since he
had done a voiceover on radio commercials for this particular coffee
company before, this seems unlikely. Nevertheless, he may have had
a special reason for distancing himself from the company, such as a
sudden decline in the company’s reputation, for example, due to the
unethical exploitation of coffee planters in thirdworld countries. In
such a case, the imitation would be capable of bearing a defamatory
meaning.
2. Passing off
The TV presenter may also claim damages under the tort of passing
off.20 This issue had first been touched upon by Hodson LJ in Sim v.
Heinz21 but has not been decided upon nor followed up in later years.22
However, the recent decision in Irvine v. Talksport might also cover the
case of the TV presenter. It would probably be crucial to know whether
the TV presenter has only recoiled from making radio commercials for
this particular coffee company, or whether he has completely retired.
In the latter case, he would not have suffered damage and therefore
would not have a claim.
Finland
I. Operative rules
It is quite possible that the TV presenter has a right to sue for an injunc-
tion and compensation.

The issue of a person’s right to his/her own voice has not arisen in
Finnish law as such. There are no applicable provisions. The use of a
person’s voice can be judged in the same way as the use of a photo-
graph. A good imitation should be understood as if the voice of the
19
Sim v. HJ Heinz Co Ltd [1959] 1 WLR 313.
20 21
For details, see the answer to Case 10. Sim v. HJ Heinz Co Ltd.
22
See T. Frazer, ‘Appropriation of Personality – A New Tort?’ (1983) 99 Law Quarterly
Review 281, at 286–7.
imitated person was used and the imitated person should have a right
to compensation.23 However, if the listener gets the impression that the
imitator is making only a parody of the presenter’s voice, the situation
possibly has to be judged otherwise.
A comparison can be made to a case before the Finnish Market Court24
where a weatherman sued a company which used an actor to imitate
him in an advertisement. The Court found that the company had acted
contrary to good business practices. The Court also referred to the ICC
International Code of Advertising Practice (see Art. 9 of the Code of
1997, which is now in force), according to which referring to a person in
an advertisement without this person’s prior consent is prohibited.
It would be very likely that the Market Court would grant an injunc-
tion if the TV presenter can be regarded as acting in the course of his
business activity. If the TV presenter is only an employee, the employer
could bring the case before the Market Court. Thus, it is probable that
the TV presenter would be granted an injunction on the grounds that
the practice of the coffee company is not in accordance with good busi-
ness practices.
According to Ch. 5, s. 1 of the Finnish Tort Liability Act, the possibil-
ity of obtaining compensation for pure economic loss, as was described
in Case 7, requires an especially weighty reason for compensation. In
some court cases, acting against good business practices and therefore
against the Act on Unfair Business Practices has been considered to
be an especially weighty reason. Consequently, the court has granted
damages for pure economic loss.25 As was stated in Case 7, it is unclear
as to what will constitute an especially weighty reason otherwise.
France
I. Operative rules
The TV presenter can sue the company for an injunction and
compensation.

Just as images are protected, the voice is also protected under French
law as an expression of the personality. Even though there are far
23
Muhonen, ‘Henkilön persoonan kaupallinen hyödyntäminen Yhdysvalloissa ja
Suomessa’ (1996) Defensor Legis 780 and 781.
24
The Market Court case 1996:25 Juha Föhr v. Korpivaara Oy.
25
See Hemmo, ‘Selvitys puhdasta varallisuusvahinkoa koskevan sääntelyn
uudistamistarpeesta’ (2002) 26 Oikeusministeriön lausuntoja ja selvityksiä 7–8.
fewer decisions than those dealing with the image of persons, French
law recognises everyone’s right to his/her voice, defined as the right of
every individual to prohibit the recording of his/her voice and the dif-
fusion of such a recording.26 Just as the use of a doppelganger in adver-
tising can be the basis of an action for the infringement of the right
to one’s image,27 the imitation of a person’s voice is an infringement
of the right to one’s own voice if it is recognisable as such.28 In a case
similar to the present one, which concerned the imitation of the voice
of the actor Claude Piéplu for advertising purposes, French courts held
that ‘the voice constitutes one of the attributes of personality (and)
that all persons have the right to forbid another from imitating their
voice in conditions likely to create a confusion of persons, or to cause
them any other harm’.29 The TV presenter could thus obtain an injunc-
tion without difficulty preventing the company from broadcasting the
radio advertisement in question.
In relation to compensation for the harm suffered by the TV pre-
senter, it is likely that the courts will take his decision to refuse to
produce any further advertisements into consideration and thus the
rarity of his voice to determine the extent of the economic loss. In
the Piéplu decision, cited earlier, the French judges held that the art-
ist suffered ‘a professional harm for he only very rarely participated
in advertising publicity. He can thus demand, due to his fame, a high
rate of remuneration, which is so high in part precisely because his
appearances in advertisements are so rare.’30 The existence of non-
economic harm on the other hand will probably not be accepted
as the products for which the publicity is made have no negative
character.
26
Huet-Weiller, ‘La protection juridique de la voix humaine’ (1982) Revue trimestrielle
de droit civil. 511.
27
TGI Paris 17 Oct. 1984, aff. Depardieu, D. 1985, somm., 324.
28
CA Pau 22 Jan. 2001, D. 2002, somm., 2375: ‘the voice constitutes one
of the attributes of personality. It can enjoy the protection established by
Art. 9 CC, insofar as a characteristic voice can be related to an identifiable
person’.
29
TGI Paris 3 Dec. 1975, Piéplu, D. 1977, jur., 211. The court held in that case that
‘the audience was led to believe that the text accompanying the cartoon
was recited by Claude Piéplu, and there was nothing else which could have
enlightened the audience on the truth’. See also TGI réf. Paris 11 Jul. 1977,
D. 1977, jur., 700: ‘the commercial use of the voice of a person easily identifiable
by reason of his/her notoriety and the public character of his/her activity is
reprehensible’.
30
TGI Paris 3 Dec. 1975, D. 1977, jur., 211.
Germany
I. Operative rules
The TV presenter may claim an injunction and probably also damages,
although the amount and calculation of damages are disputed.

This case raises the question of whether a personality interest exists
in protecting one’s own voice against eavesdropping, storage on a tape
recorder and dissemination of this copy. Courts have acknowledged
a right to one’s voice especially as an aspect of a person’s privacy.
Therefore, the first cases in this field were cases in which surveillance
of the person was verging upon an intrusion into her or his privacy.31
Courts have said that the tape recording of a person’s voice leads to
a form of materialisation (‘Verdinglichung’) which is equivalent in its
intensity to the taking of a person’s image by filming him or her.32 The
main aspect which legitimates protection through § 22 KUG is the fact
that a person becomes immediately identifiable through his/her image.
This can also occur through a person’s voice, at least if the voice is very
distinctive as in the present case.33 Distinctiveness can be assumed if a
substantial part of the general public, relatives or friends of the person
will recognise this person by hearing the voice. Therefore, a compari-
son to the protection of image under §§ 22, 23 KUG would be suitable,34
however the majority of scholars in Germany do not use this analogy
but prefer the direct application of § 823(1) BGB to protect the voice.35
The next question is whether the use of an imitator is a use of the
claimant’s personality attributes. In such cases, it is not suitable to speak
of a duplication of the voice but one might still speak of an appropria-
tion of the distinctiveness of a person’s voice as a personality feature,
which could be termed ‘likeness’. Therefore, courts would agree to a
violation in cases where doubles are used.36 In a recent decision, even
31
BVerfGE 34, 238 246; BGHZ 27, 284; BGH NJW 1982, 277; and in penal cases BGHSt
14, 358.
32
BGH NJW 1987, 2667, 2668.
33
Similar case in Germany OLG Hamburg, GRUR 1989, 666, concerning the well-
known comedian Heinz Ehrhardt.
34
K. -H. Peifer, Individualität im Zivilrecht (Tübingen: 2001) 165.
35
A. Freitag, Die Kommerzialisierung von Darbietung und Persönlichkeit des ausübenden
Künstlers (Baden-Baden: 1993) 150; Anke Schierholz, Der Schutz der menschlichen
Stimme (Baden-Baden: 1998) 85, 86.
36
OLG Hamburg, GRUR 1989, 666.
the imitation of the distinctive pose of the actress Marlene Dietrich in

the movie Der blaue Engel was considered an appropriation of Dietrich’s
likeness.37
If the person appropriated is a public figure, one might argue that
this person cannot object to the public use of his or her voice, espe-
cially in cases where this voice has been frequently used in public.
However, as already explained in Case 7, the general limitation of §
23(1) 1 KUG for the use of personality features for press purposes is not
applicable in cases where the voice is used for commercial purposes.38
The defendant will not be allowed to argue that prior commercial use
demonstrates a general consent to commercial use.39
Therefore, the TV presenter will be successful in his claim for an
injunction. The claim for compensation will usually be successful
under the conditions discussed in Case 10. However, in the instant case,
the presenter has changed his attitude towards the commercial use of
his personality features. Taking this into account, his voice no longer
has any commercial value for the claimant. Nevertheless, a growing
opinion in Germany would grant a claim for the profits earned by the
defendant, concentrating on the fact that he/she has made unauthor-
ised use of another person’s right.40 The majority opinion would still
argue that an action for profits will only be successful if the good appro-
priated had a commercial value for the claimant.41 With respect to the
intentional and reckless violation of personality rights, courts have
granted pecuniary compensation if the violation cannot be repaired by
non-monetary restitution.42 However, this relief, at least up until now,
is only given in cases in which the appropriation constitutes a serious
and reckless injury to personal interests. Mere commercial use would
not rise to this level.43
37
BGH NJW 2000, 2201.
38
OLG Hamburg GRUR 1989, 666 (Heinz Erhardt); similar case OLG Karlsruhe AfP 1996,
282 (singer Ivan Rebroff ).
39
See Case 9.
40
V. Beuthien and A. Schmölz, Persönlichkeitsschutz durch Persönlichkeitsgüterrechte
(Munich: 1999) 64.
41
BGHZ 26, 349, 353; BGHZ 44, 372, 375; A. Peuker, ‘Persönlichkeitsbezogene
Immaterialgüterrechte’ (2000) Zeitschrift für Urheber – und Medienrecht 710, 716.
L. Raiser, ‘Der Stand der Lehre vom subjektiven Recht im Deutschen Zivilrecht’
(1961) JZ 465, 475; E. -J. Mestmäcker, ‘Eingriffserwerb und Rechtsverletzung in der
ungerechtfertigten Bereicherung’ (1958) Juristenzeitung 521, 525.
42
BGHZ 128, 1, 15.
43
LG München I, ZUM 2002, 238, 240.

The case clearly shows the distinction between personal (moral) and
commercial interests. The case shows that compensatory damages
should and need not be constructed in a way to give incentives for mar-
keting the use of personal features.
Greece
I. Operative rules
The TV presenter has a claim against the company for an injunction
and compensation.

As already mentioned, the notion of ‘personality’ is to be understood as
‘a net of values, protected by the Constitution (Art. 2 (1)), which consist
of the moral substance of the individual.’ 44 Under this general ‘right of
personality’ many new aspects of personality may be included, which
are recognised by modern economic and social mores and whose pro-
tection becomes indispensable through the evolution of life and mod-
ern technical means.45
One of these aspects is also a person’s voice, which cannot be used
for commercial purposes without prior consent.
Ireland
I. Operative rules
An action in defamation could only arise if it could be proven that the
presenter’s continued association with the coffee company was damag-
ing to his reputation. Given recent English jurisprudence on the issue,
an action in passing off could succeed on similar grounds in Ireland.
If this is the case, an injunction could be granted in favour of the TV
presenter.

If an action in defamation were to succeed, the TV presenter would
need to establish that the public reasonably believed that the presenter
44
Supreme Court (Areopag) Decision 854/2002. Court of Thessaloniki Decision
16923/2003. Decisions cited are available in Greek via the legal database ‘NOMOS’.
45
See, for example, Court of Thessaloniki 16923/2003: ‘the notion of right of
personality includes as a specific aspect of it the freedom of a person to enter
was continuing to endorse the products of the coffee company when in

fact that was no longer the case and the false association was defam-
atory. However, given the fact that the TV presenter had previously
endorsed these products it would be hard to establish that his associa-
tion with the company was damaging his reputation. If, however, the
company had received some bad publicity, the TV presenter may no
longer have wished to be associated with it or its products. If so, then
the false impression (whether intentional or not) that the presenter
had a continued association with the company could be harmful to the
presenter’s reputation. If that were the case, the TV presenter would be
entitled to compensation for the damage caused and to an injunction
preventing the future broadcasting of the advertisements.
It could be very difficult to bring an action in passing off as there was
no common course of trade between the presenter and the company.46
This requirement has effectively been abolished in England following
the decision of Irvine v. Talksport Ltd.47
A complaint could be made to the Advertising Standards Authority
of Ireland (ASAI) alleging a breach of the ASAI’s code of conduct. In
particular, it would appear that at the very least that the use of the
imitator’s voice was in breach of the code as it implied that the TV pre-
senter continued to endorse the company’s product where in fact this
was no longer the case.48
Italy
I. Operative rules
It is likely that the TV presenter can enjoin the commercial exploita-
tion of his voice and recover damages.

The possibility of recognising an interest in one’s own voice is disputed.
The traditional view rejects this,49 while the most recent literature
seems to admit it.50 One should not be misled. The traditional approach
legally functioning casinos and to take part to the games played there, as long as
the person is of the legal age and accepts the terms and regulations of the casino ’.
46 47 48
See generally Case 10. [2002] 2 All ER 414. Ibid.
49
See G. Santini, ‘Il c.d. diritto alla voce’, in Problemi attuali del diritto industriale
(Milan: 1977) 1027 et seq.
50
See C. M. Bianca, Diritto civile, 1, La norma giuridica, I soggetti (Milan: 1984) 121;
G. Savorani, La notorietà della persona da interesse protetto a bene giuridico
(Padova: 2000) 38.
makes sense in a strict ‘personality right’ perspective. The voice – it is

argued – has a weak distinctive character and cannot easily identify a
person.51 This perspective changes when one looks at the same problem
within the frame of the right of publicity. The voices of actors, journal-
ists, politicians and many other public figures often have a distinctive
character and therefore a strong publicity value. The restrictive solution
could be based on a formalistic reasoning: no provision of the Civil Code
or of the Copyright Act openly recognises a right to one’s own voice (but
it cannot be forgotten that the voice can be considered ‘personal data’
according to the definition given by Art. 4(1) b DPC).52 However, this con-
clusion is not convincing since other personal indicia, which are also
not mentioned in the Civil Code, have so far received protection through
extensive or analogical interpretation of the provisions on name and
likeness.53 Therefore, if the voice has a distinctive character – as in the
present case – and it is used as an instrument of commercial appropri-
ation of personality, there is no reason to deny protection.
One should be aware that this conclusion is not yet supported by a
sufficient number of authorities to be considered acknowledged law.
An important 1993 decision awarded damages to the pop singer Angelo
Branduardi whose (imitated) voice was used in an advert for rusks pro-
duced by Buitoni; the judges referred to the right to one’s voice as an
integral part of the right to control the commercial exploitation of
one’s own personality.54 Two other cases seem to deny the existence of
such a right under Italian law. However, their importance should not
be overemphasised. The precedential value of the first decision is weak
because it concerns a ‘remix’ of famous songs (which is a copyright
issue) and not a use of the voice for advertising purposes.55 However,
even in the second case – which is actually related to a hypothesis
of commercial appropriation – the rejection of a right to one’s own
voice only counts as an obiter dictum, since the infringer’s liability is
affirmed on the basis of performer’s rights (Art. 80 et seq. CA).56
51
Trib. Milano 10 Feb. 1966, Giust. civ. 1966, I, 810 at 814.
52
Garante protezione dati 26 Nov. 1999, Boll. no. 6, 1998, 32.
53
A famous example is given by Pret. Roma 18 Apr. 1984, Foro it. 1984, I, 2030: the
commercial use of the cap and the glasses commonly worn by the singer Lucio Dalla
is unlawful.
54
Trib. Roma 12 May 1993, Dir. inf. 1994, 305 at 308; see also Trib. Milano 26 May 1997,
AIDA 1997, Rep., 1024.
55
Trib. Milano 10 Feb. 2000, AIDA 2000, 879.
56
App. Milano 30 Mar. 1999, AIDA 2000, 700. It is interesting to note that the issue
of the violation of a personality interest in the voice was not even raised by the
claimant (referring only to his performer’s right).
Another issue should be considered. In the present case, the voice

of the TV presenter was not reproduced in its original form but imi-
tated by another person. This element is negligible. Once we take a
publicity right perspective, it is completely irrelevant whether the
commercial exploitation was realised through the reproduction of the
original voice or through a faithful imitation. At any rate, the test is
that of ‘identifiability’. If a significant number of persons had reason-
ably identified the claimant from the overall context of the defendant’s
reproduction, then an infringement of the exclusive right could not be
denied.57 This conclusion is supported by many cases on ‘look-alikes’58
and by the decision already discussed concerning the misappropriation
of a famous singer’s voice and musical style.59
The Netherlands
I. Operative rules
The presenter can both ask for an injunction and can claim damages.

If the commercial as a whole gives the reasonable impression that the
TV presenter is involved, the commercial is unlawful.60 Whether or not
the impression is reasonable depends on the particular circumstances
and their interconnection. If, for example, the company uses the same
wording as in the former commercial, it is more likely that the imi-
tated voice will be recognised by people as the voice of the TV pre-
senter. If the wording differs greatly from the former commercial and
does not make a link to that commercial, the quality of the imitation
becomes more important. If the quality is perfect and it is reasonable
to be under the impression that the voice of the TV presenter has been
used, the commercial can be regarded as unlawful. If the voice is an
imitation but is done in such a manner that it cannot objectively be a
reason for confusion, the commercial is not an unlawful act.
The basis for the unlawfulness of the act is the fact that the commer-
cial tries to use the TV presenter’s popularity. Since this popularity is
57
See on this point the remarks by T. McCarthy, The Rights of Publicity and Privacy, I (St.
Paul: 1998) 3–20.
58
Trib. Milano 26 Oct. 1992, Dir. inf. 1993, 944; Trib. Roma 28 Jan. 1992, Dir. inf. 1992,
830; Pret. Roma 6 Jul. 1987, Dir. inf. 1987, 1039. On this problem, see G. Ponzanelli,
‘La povertà dei “sosia” e la ricchezza delle “celebrità”: il “right of publicity”
nell’esperienza italiana’ (1988) Dir. inf., 126.
59
Trib. Roma 12 May 1993, Dir. inf. 1994, 305.
60
Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 138.
the reason why the TV presenter can trade in his voice, it is a breach
of duty to use that voice without prior authorisation from the TV
presenter.
The fact that the TV presenter is a famous person does not change
this, since his right to trade in his voice in the way he wishes to is part
of the wider personality right.61
This is also the reason why the use of voices of public figures that are
normally not used in a commercial setting (like the voices of members
of the royal family) is an infringement of their privacy.62 Generally
speaking, the right to privacy outweighs the commercial interests. The
presenter can claim for both an injunction and damages.
The commercial can also be considered a breach of the former con-
tract between the company and the TV presenter. However, the breach
of duty in either contract or tort does not differ in terms of effects for
damages and injunctions.
Portugal
I. Operative rules
The TV presenter can sue the company for an injunction and compen-
sation if the imitation was perceived by the public as the TV presenter’s
original voice.

Arts. 72 and 74 CC provide protection to everyone’s name and pseudo-
nym (the latter only if it is famous). From these legal rules, and in con-
junction with Art. 70 (general clause of protection of personality rights),
one can derive a general protection of personal identity. A person’s
voice can, we believe, be included in that person’s personal identity
and, therefore, also deserves legal protection. The voice is understood
as part of everyone’s identity, everyone’s ‘sound-image’.
On the other hand, Art. 81 CC states that the personality rights
holder may freely terminate all agreements or contracts made for the
exercise of personality rights whenever he/she wishes. This means
that personality rights, even after being bound by contract, may
always be recouped. Therefore, it is valid and lawful for the ‘popular
61
In HR 18 Oct. 1987, RvdW 1987, 186, the Supreme Court explicitly held that Art. 21
Auteurswet does not apply where the human voice is reproduced.
62
Court of first instance Amsterdam, 7 Jul. 2000, KG 2000, 155; Schuijt, Losbladige
Onrechtmatige Daad no. 111.
TV presenter’ to cancel his agreement for the use of his voice in

commercial adverts, although he may have to compensate the other
party for losses caused by frustration of legitimate expectations aris-
ing from the agreement.
There is no Portuguese court decision referring to similar facts.
However, voice imitations are a current form of entertainment and
could be claimed to be protected by the freedom of artistic creation
(Art. 42 CRP). In addition, Art. 7 CPub only considers advertising as
unlawful when it contains words from someone who has not given his/
her consent, not an imitation of someone else’s voice (Art. 7 (1), para.
(e)). What we believe to be essential for a voice imitation to be consid-
ered lawful is a public awareness that it is just an imitation and not
the original voice. Therefore, in the present case it is crucial to know
whether it was perceivable by the public that the voice in the advertise-
ment was just an imitation and not the original.
In conclusion, the imitation of the TV presenter’s voice may consti-
tute usurpation of identity if done in a way that is capable of leading
third parties or people in general to believe that it is his own voice.
However, the imitation may be done in such a way that is recognis-
able as an imitation. Then it may be construed as an artistic deed,
which is in principle lawful. Even as an artistic act, its lawfulness is
excluded if it is done in such a way as to offend the dignity of the TV
presenter. The matter depends on the circumstances to a large extent
and the manner in which the imitation is performed, and has to be
decided on a case-by-case basis. The TV presenter would probably only
be able to sue for injunction and damages (both lucrum cessans – see
Case 10 – and non-economic damages) if the imitation aimed at and
actually succeeded at making the public believe that the voice in the
advertisement was the original and not just an imitation or, though
recognisable as an imitation, was humiliating or offensive to the TV
presenter’s dignity (Arts. 70, 483 and 484 CC ). If this were the case,
he would be entitled to an injunction to prevent the broadcasting of
the radio commercial and to compensation for economic and non-
economic loss.
Scotland
I. Operative rules
The TV presenter may have a claim for damages and injunction under
the tort of passing off.

Various questions are raised here relating to the law of defamation,
the law of privacy and the concept of injury to reputation. It should
be recalled that defamation includes cases where ‘right-minded
persons’,63 in reading or hearing the libel, fear that there has been an
element of hatred, ridicule or contempt. In this particular instance,
the public is being misled. The TV presenter is being put in a false light
in that the public presumes he is in fact continuing to narrate radio
commercials.
The question addresses the problem whether a professional person
can be seen to own or have a property right in the exploitation of his
voice (image, likeness). Whether or not Scots law protects the appropria-
tion of a professional person’s image, thereby causing him/her damage,
depends on the issue of whether professional persons are deemed to
have a commercial value in the sense of goodwill in their image. This
question has at least been addressed by English courts, commencing
with the famous decision in Tolley v. Fry64 where a photo of an amateur
golfer was used in conjunction with advertising. It has an immediate
counterpart in the case of Sim v. H. J. Heinz & Co Ltd.65 The circumstances
in the latter decision were very similar to the facts given here – a well-
known actor sought to restrain the defendants, Heinz & Co Ltd, from
simulating his distinctive voice in an advertisement. The claim was
based on both libel and passing off and it was argued that the goodwill
(property right to one’s own image akin to get up) could cause con-
fusion among the public. Here, the English court said: ‘It would be a
great defect in the law if it were possible for a party, for the purposes
of commercial gain, to make use of the voice of another party without
his consent.’66
The court did not entirely dismiss the notion that a person might
have good will in respect of his/her image/voice. Proof of commercial
interest is paramount to any case in passing off. Therefore, in England
an action could not be granted in a subsequent passing off case, where
no economic reputation was found to exist.67 Despite the lack of
63
Sim v. Stretch (1936) 52 TLR 669.
64
Tolly v. J. S. Fry & Sons Ltd [1931] AC 333.
65 66
[1959] 1 WLR 313. Ibid. at 313, 317.
67
Lyngstad v. Annabass Products [1977] FSR 62 (character merchandising without the
consent of Abba pop group) – held no commercial interest in the UK under the law
Scottish authority on the point, the law is presumed to be the same

as in England. Developments in intellectual property law through the
Copyright, Designs and Patents Act 1988 will lead to greater awareness
of the notion of copyright in the spoken word (‘oral copyright’), par-
ticularly through broadcasting and the media.68
Spain
I. Operative rules
The TV presenter can sue the company for an injunction and
compensation.

Voice is protected by Art. 7.6 LO 1/1982. The rule permits the recov-
ery of economic loss stemming from unauthorised commercial
exploitation.
A similar case was resolved by the Spanish Supreme Court69 and
confirmed by the Constitutional Court.70 Emilio Aragón, a famous TV
showman famous for wearing a black tie tuxedo with white converse
basketball shoes, released a disc titled ‘te huelen los pies’ (your feet
smell), which became the number one selling single on several music
charts. Some days later, a deodorant company used an image of two
legs in black trousers and white basketball shoes in an advertisement
with a caption indicating that ‘the most popular person in Spain is
just stopping by to say your feet smell’. The Supreme Court reversed
the claim because it considered that it was not possible to identify the
claimant. A dissenting opinion was included in the judicial ruling. The
Constitutional Court added that the claimant had tried to protect the
patrimonial aspect of the image of a fictional character. However, this
case did not involve a reproduction of the face or other physical aspect
of the claimant, but a reproduction of external characteristics of a fic-
tional figure.
of passing off. The aftermath of Princess Diana character merchandising in the

USA, in which the Princess Diana Trust lost its challenge before California’s courts,
indicates the difficulties associated with this particular action, see The Times,
12 Jul 2003.
68
See H. McQueen, ‘My tongue is mine’ain’ (2005) Modern Law Review
68, 349–377.
69
STS, 30 Jan. 1998, (RJ 358).
70
STC 71/2001, 26 Mar. (RTC 71).
Switzerland
I. Operative rules
The TV host may bring an action for compensatory and injunctive relief
if the imitation of his voice was successful, in other words, if it causes
people to believe the commercial was made by the TV host himself.

The voice is an aspect of the personality and therefore part of the per-
sonality rights protected under Art. 28, para. 1 CC.71 Protection extends
to reproductions, distortions or exploitations to the extent that the
individual is identifiable.72 Thus, two hypotheses are distinguishable.
If the imitation was successful, listeners will be misled in respect of
the true identity of the speaker. In fact, they will associate the adver-
tisement for this product with the TV host, believing that they recog-
nise his voice. Two reasons lead to this supposition. First, the job that
the TV presenter has assures the wide public distribution of his voice,
and second, his particular tone gives his voice a unique character. The
fact that the commercial in question was played over the radio further
reinforces confusion in the listeners’ minds because they cannot see
the speaker’s face. It appears that the endorsement of this product’s
qualities is likely to be wrongly attributed to the TV host. As a result,
even though the presenter expressly declined to make the commer-
cial, the company has unlawfully infringed his personality rights by
imitating his voice without his consent. Since no preponderant public
or private interest justifies the infringement, the TV host can sue the
company for an injunction and compensation.
If, by contrast, the imitation does not cause listeners to identify the
voice as that of the TV host, his right to his own voice has not been
infringed upon. Thus, he has no legal remedy available under Art.
28a CC.

This hypothesis is interesting in two ways. First, it underlines that
obtaining someone’s permission to use a recording on one occasion
does not imply that there is a right to subsequent use. Second, it raises
a question surrounding commercials made with the cooperation
71
P. Tercier, Le nouveau droit de la personnalité (Zurich: 1984) n. 453 et seq.
72
D. Barrelet, Droit suisse des mass media (2nd edn., Berne: 1987) n. 531; L. Schürmann
and P. Nobel, Medienrecht (Berne: 1993) 234.
of TV hosts. Where television stations are controlled by the State,

independence must be fiercely guarded; the television media cannot
promote one-sided commercial or partisan interests. Thus, when TV
hosts freely engage in this exercise, it is incumbent upon them to ‘be
vigilant that neither their independence nor the media’s credibility is
compromised’.73
Comparative remarks
This case concerns the commercial appropriation of voice as an aspect
of personality. In the majority of legal systems, the TV presenter will be
successful in suing for both an injunction and compensation. However,
as in Case 10, there is a clear difference between the standard of pro-
tection offered by the civil law systems on the one hand and the com-
mon law systems and Scotland on the other.
The core consideration in this scenario is that of the distinctiveness
of the voice in question. A person’s voice may not be as easily identifi-
able as his/her image. Therefore, in order to have a successful claim,
the imitation must be distinct and easily recognisable to the extent
that a significant proportion of listeners will identify it with the claim-
ant. Once this has been established, it appears that the claimant will
be successful in suing for an injunction and damages, given that he
did not consent to the reproduction. The fact that the TV presenter
had once spoken on some adverts for the company will not amount to
a defence. As a holder of personality rights, the presenter has a right to
use his voice for commercial purposes and can decide how and when
to do this. In this case, he no longer has a contract with the coffee com-
pany. Therefore, the company does not have any right to use or imitate
his voice for commercial purposes. These are points of agreement in
all of the legal systems considered. However, the legal vehicles used to
reach this result and the remedies available differ to a certain extent.
In the majority of the civil law systems, general tort law provisions
will be sufficient to award the plaintiff an injunction and damages. In
Austria, Germany and Italy, the Copyright Acts could correspondingly
be applied in this case. In Spain, the unauthorised use of a person’s
voice falls within the scope of application of the 1982 Act on the civil
protection of honour, privacy and one’s image. In Finland, as in Case 10,
not only general tort law but also the Act of Unfair Business Practices
73
Statement of the Conseil suisse de la presse 1993, n. 5.
would be engaged: the presenter could probably claim an injunction

before the Market Court and damages before the civil courts.
In the common law systems and Scotland it is less certain that tra-
ditional torts will offer the claimant adequate protection. Defamation
is one possibility but it would have to be shown that the imitation
somehow damaged the reputation of the presenter in the eyes of right-
minded members of society. A better possibility is the tort of passing off.
However, this option is also not without its shortcomings. According to
case law, there has to be a commercial interest involved, which means
that if the presenter has retired from making adverts in general, he
will not be able to sue in passing off. As in Case 10, if the facts of the
action fall outside the scope of these torts, then the claimant will not
be successful.
In Ireland, as in Case 10, the advertisement constitutes a breach of
the ASAI code of conduct, which paves the way for effective preventive
remedies.
If we assume that the claimant does have a claim in England, Ireland
and Scotland, then all legal systems will award the presenter an injunc-
tion to prevent any further appropriation of his voice. In respect of the
awarding and calculation of damages see the comparative remarks to
Case 10.
15 Case 12: Copied emails
Case
The politicians Smith and Jones exchanged emails in which they dis-
cussed a planned tax increase and agreed that this plan should be kept
secret until after the election. An unknown person at the internet
company which ‘delivered’ the emails copied them and sent the copies
to a newspaper. The newspaper informs Smith that it plans to publish
the emails.
(a) Is Smith entitled to an injunction against the imminent publication
of the emails?
(b) Would it make a difference if the conduct of the unknown person
constitutes a criminal offence?
Discussions
Austria
I. Operative rules
Smith cannot initiate any legal proceedings.

§ 77 UrhG provides for the protection of letters, diaries and similar
confidential records against public reading and publication.1 Arguably,
an email may be regarded as a similar confidential document, like a
letter, since it serves the same purpose.
1
That means that this provision regulates a very specific personality right which is
connected to the right to privacy; cf. H. Koziol and A.Warzilek, ‘Austrian Country
Report’ no. 34 in H. Koziol and A. Warzilek, The Protection of Personality Rights against
Invasions by Mass Media (Vienna/New York: 2005).
433
Only documents in written form are protected by § 77 UrhG.2 An

email fulfils this criterion. Although its content is saved, transmitted
and presented electronically, it can still be read from the monitor. As a
consequence, § 77 UrhG is directly applicable.
§ 77 UrhG only prohibits the dissemination of confidential docu-
ments if the ‘legitimate interests of the writer are affected’ (cf. § 78
UrhG and Cases 7 and 10). The honour and privacy of an individual
are undoubtedly ‘legitimate interests’. Facts concerning family life
(e.g. adulterous relations, an illegitimate child), sexual orientation
and health (e.g. a sexually transmitted disease)3 constitute the central
part of privacy.
However, this is not the issue in the present case; in contrast, the
email refers to a work-related matter. The affected persons are politi-
cians exchanging emails about their tax policy. It is rather doubtful
whether and to what extent secrets concerning business and profes-
sional life are protected by the right to privacy in terms of § 16 ABGB
and Art. 8 ECHR.4 Moreover, it is quite certain that § 7 MedienG5 is not
appropriate here. § 77 UrhG can be applied because the ‘legitimate
interests’ referred to in this paragraph not only include the private
sphere but also the business sphere.6
Now we must examine – always bearing the legitimate interests of
the two politicians in mind7 – whether disclosing the content of the
emails through their publication in the newspaper without the per-
mission of the authors is contrary to law.
At this point, a weighing of interests is required between the politi-
cians’ need for protection on the one hand, and the right of the public
to obtain information and the freedom of the press, which in Austria is
anchored in Art. 10 ECHR and Art. 13 StGG (Staatsgrundgesetz; a specific
2
Thus, recorded tapes can only be subsumed under § 77 UrhG by analogy; R. Dittrich,
‘Der Schutz der Persönlichkeit nach österreichischem Urheberrecht’ (1970) ÖJZ 535.
3
See W. Dillenz and D. Gutmann, Kommentar zum Urheberrechtsgesetz und
Verwertungsgesellschaftengesetz (2nd edn., Vienna: 2004) § 77 no. 3.
4
W. Posch in M. Schwimann, ABGB-Praxiskommentar I (3rd edn., Vienna: 2005) § 16 no.
40; against J. Aicher in P. Rummel, Kommentar zum ABGB I (3rd edn., Vienna: 2000)
§ 16 no. 24; H. Koziol, Österreichisches Haftpflichtrecht II (2nd edn., Vienna: 1984) 16.
§ 1328a ABGB, the special provision to protect someone’s privacy is inherently not
applicable since the defendant is a media outlet (§ 1328a subs. 2 ABGB; see Cases 5
and 7).
5
See Case 5.
6
M. -T. Frick, Persönlichkeitsrechte (Vienna: 1991) 149.
7
According to § 77 subs. 3 UrhG, the addressee of a letter also attains protection. We
may apply this provision by analogy.
c a se 12: copied em a ils 435
provision of constitutional law), on the other hand.8 In our case, the

protection of the personality rights of both Smith and Jones comes up
against limiting factors. The more someone presents him- or herself
to the public, the more he or she loses the related protection of his or
her personality. This principle is especially important for public fig-
ures (‘Personen der Zeitgeschichte’) such as politicians; however, a cease-
less interference with the personality rights of a famous person is not
permitted.9
We believe that the essential question in this case concerns the fol-
lowing: just how serious was the private nature of the communication
which took place between Smith and Jones? Firstly, the information in
the emails was confidential because Smith and Jones intended to avoid
disseminating it among the public.10 Secondly, they would have liked
to have avoided letting people know how they address one another
while communicating on an informal level.11 Both of these two aspects
suggest that the impending publication would be unlawful.
However, it is certain that their political opinions expressed in the
emails are very important for the general public to form an opinion of
these two politicians. The politicians probably wanted to reserve their
intention to raise taxes because they were afraid of losing the upcom-
ing election. It is exactly this motivation which illustrates the precise
public interest in the information at hand. In a democratic society the
media should be allowed to report on this issue even though the acqui-
sition of the information was illegal. As a result, there are no legal
remedies available here.
It makes a difference whether the conduct of the unknown person
constitutes a criminal offence12 because then the media’s right to pub-
lish is subject to stricter conditions, however this only influences the
weighing of interests. This means that – under certain conditions – the
publication could be still possible.13
8
U. Brandstetter and H. Schmid, Kommentar zum Mediengesetz (2nd edn., Vienna: 1999)
Vor § 6 nos. 16 et seq.; H. Koziol and A. Warzilek, ‘Austrian Country Report’ nos. 61 et
seq., 68 et seq., 71.
9
See Cases 1, 7, 8.
10
C. Gassauer-Fleissner, ‘Geheimhaltung, Offenbarung und Veröffentlichung von
Daten in Informationsnetzwerken’ (1997) Ecolex 102.
11
BGHZ 73, 120.
12
K. von Holleben, Geldersatz bei Persönlichkeitsverletzungen durch die Medien (Baden-
Baden: 1999) 24; A. Warzilek, ‘Comparative Report’ no. 63 in H. Koziol and A.
Warzilek, The Protection of Personality Rights.
13
Cf. BGHZ 73, 120.

Some scholars stress the legitimate interests in information rather
than focusing on the public-figure standard, as the justification is pri-
marily connected to issues relevant to the public and is not connected
to the status of a person.14
Belgium
I. Operative rules
It is uncertain whether Smith would get an injunction.

The confidentiality of communication is an important aspect of the
right to privacy under Belgian law. It is a general principle in civil law
that results in the protection of all confidential messages disseminated
by post, fax, telephone, email, etc.15
However, the confidentiality of communication is also protected
under criminal law. Anyone who intentionally violates this confidenti-
ality commits a crime (Art. 314bis Penal Code). Nevertheless, the scope
of this provision is restricted as it is necessary that the wrongdoer has
used a device to obtain the secret information. For example, when a
third person just reads another person’s email and thus is aware of
the content of this message, he/she did not use a device and is not
punishable.16
The confidentiality of emails has become a popular topic under
Belgian law, especially regarding the possibility of employers to read
their employees’ emails.17
If Smith was to bring his action before a civil court, he would cer-
tainly obtain a judgment that the interception of his email by the
14
W. Berka, ‘Grundfreiheiten’ no. 107, in H. Koziol and A. Warzilek, The Protection of
Personality Rights; cf. also A. Warzilek, ‘Comparative Report’.
15
16
A. Smets, Vrijheid van meningsuiting van de werknemer, Reeks Advocatenpraktijk – Sociaal
Recht, n° 3 and 4 (Antwerp: 2002) 24–5.
17
P. De Hert, ‘C.A.O. nr. 81 en advies nr. 10/2000 over controle van internet en e-mail.
Sociale actoren herlezen strafwetten en grondrechten’ (2002–03) RW 1281–94;
R. Blanpain, Gebruik en controle van e-mail, intranet en internet in de onderneming. Praktijk
en recht (Bruges: 2003) 264; P. De Hert, ‘Internetrechten in het bedrijf. Controle op
e-mail en Internetgebruik in Belgisch en Europees perspectief’ (2001) AM 110–125;
T. Claeys and D. Dejonghe, ‘Gebruik van e-mail en internet op de werkplaats en
controle door de werkgever’ (2001) JTT 121–34.
wrongdoer violates the confidentiality of his correspondence. The per-

son who intercepted the email committed a fault.
In this case, however, Smith’s action is directed against the journalist
and not against the privacy invader. Belgian judges are quite hesitant
in issuing injunctions as they are attached to freedom of expression.18
England
I. Operative rules
Smith can claim for an injunction under an action for breach of con-
fidence. If the conduct of the unknown person constituted a crimi-
nal offence, it would be more likely that a court would grant an
injunction.

1. Defamation
There would be no cause of action for defamation here as the defence
of justification would prevail because the newspaper would only be
reporting the truth. Interlocutory injunctions will not normally
be granted where the defendant intends to rely on the justification
defence.19
The emails will attract the protection of the law of confidence. The par-
ties here expected their correspondence to be private. Considering the
position of the court in Francome v. Mirror Group Newspapers,20 the person
intercepting the emails would be viewed as being in the same position
as an eavesdropper. In deciding whether to prevent the publication,
the courts have to balance this right to privacy against the public inter-
est in knowing about the correspondence. While it might be acceptable
to reveal information for the purposes of preventing, detecting or dis-
covering a crime,21 or, for example, to show that breathalyser equip-
ment used to convict people was faulty,22 there has to be some inequity
served by the disclosure. In Francome v. Mirror Group Newspapers,23 this
18
See Case 1.
19
Bonnard v. Perryman [1891] 2 Ch 269; Fraser v. Evans [1969] 1 All ER 8.
20
Francome v. Mirror Group Newspapers [1984] 1 WLR 892.
21
Malone v. Metropolitan Police Commissioner [1979] Ch 344.
22
Lion Laboratories Ltd v. Evans and Others [1985] QB 526; Malone v. Metropolitan Police
Commissioner.
23
See n. 20.
has been said to encompass the disclosure of crimes, anti-social behav-

iour and hypocrisy. The injunction was granted in Francome because the
court said that it was interested in ‘justice not convenience’, referring
to the usual test of the balance of convenience used for interlocutory
injunctions. This shows that the courts are more protective in relation
to the law of confidence than when there is defamation. Of course, in
order to justify the breach of confidence the politicians might be said
to be behaving with hypocrisy. If they had made a categoric statement
that they would not increase taxes then the disclosure of the email
might be more readily justified. However, one suspects that the judi-
ciary will be protective of the rights of politicians to discuss future
policy in private.
3. Copyright
Finally, the publication of the emails would be a breach of copyright.
In Ashdown v. Telegraph Group Limited,24 it was recognised that copyright
can constitute a prima facie limitation of the exercise of the right to
freedom of expression under Art. 10 ECHR. However, Art. 10 (2) ECHR
states that restrictions on the right are permissible if they are: (1) pre-
scribed by law; (2) for the protection of the rights of others; and (3) are
necessary in a democratic society. In Ashdown, it was held that the pro-
visions of the Copyright Act, and in particular the ‘fair use’ exemption,
satisfy Art. 10(2) ECHR. Therefore, the Copyright Act was considered
sufficient protection for any interests in freedom of expression. The
legislation already struck an appropriate balance between copyright
and freedom of expression.
Would it make a difference if the conduct of the unknown person

constitutes a criminal offence? The fact that a crime may have been
committed may make it more likely for an injunction to be granted.
In Francome, the court was keen to stress that people could not simply
ignore the law and then pay their way out of having infringed it.25
Finland
I. Operative rules
There seems to be no possibility for Smith to ask for an injunction
prior to publication.
24 25
Ashdown v. Telegraph Group Limited [2001] 4 All ER 666. See n. 20.

As was described in Case 1, it is generally not possible to obtain an
injunction preventing a publication, not even when the publication
will constitute a crime. According to Ch. 38, s. 4 of the Finnish Penal
Code, a person who copies emails severely breaches the confidentiality
of communication because his/her position at the internet company
makes it possible for him/her to read the content of the messages. The
fact that the person remained unknown does not change the harsh
position of Finnish law: the publication cannot be prohibited.
France
I. Operative rules
Smith could probably not obtain an injunction against the publication
of the emails, even if the employee of the internet company is guilty of
the crime of interception of correspondence.

For a long time now, French law has protected the confidentiality of cor-
respondence, not only through penal law, but also through private law.
Furthermore, for a long time the confidentiality of letters has even been
the only way in which to protect the values of privacy and the secrets
of individuals26 and has represented the point of departure for the rec-
ognition of a right to privacy.27 The confidentiality of correspondence
is a general principle of law which is recognised by case law without an
explicit textual basis, but which can nowadays be related to the right
to privacy.28 The extension of the protection of correspondence to elec-
tronic methods of communication has only recently been discussed. Art.
1 of the Act of 10 July 1991 ‘On the Confidentiality of Correspondence
Transmitted by Telecommunications’ states that: ‘Confidentiality in
correspondence transmitted by telecommunications is guaranteed by
26
Cass. civ. 26 Oct. 1965, D. 1966. jur., 356; TGI Saint-Quentin 30 Jan. 1969, D. 1969,
somm., 73: ‘within the objective of protection of personality in its most intimate
sphere, the possibility to invoke the right to confidentiality is available to the
addressee of a letter which is found, without fraud, in the hands of a third person.
More generally, this possibility is open to anybody whose intimacy is disclosed in a
letter possessed by a person who intends to use it publicly’.
27
Kayser, La protection de la vie privée par le droit (3rd edn., Paris: 1995) 121;
Lucas-Schloetter, in Beverley-Smith, Ohly, Lucas-Schloetter, Privacy, Property and
Personality. Civil Law Perspectives on Commercial Appropriation (Cambridge: 2005) 149.
28
Beignier, ‘Lettres missives’ (1994) Juris-Classeur Civil, Annexes, Fasc. 20, No. 4.
the law’. However, it was only in 2000 that case law clearly addressed
the legal status of electronic mail. The judges in the relevant case
considered that ‘like telephone conversations, electronic messages
represent correspondence transmitted by telecommunication’ and
‘constitute private correspondence’.29 The issue has since been dis-
cussed with particular regard to the relationship between an employer
and an employee.30
If Smith brings an action before the civil courts, he could certainly
obtain a judgment that the interception of emails exchanged with
Jones violates the principle of the confidentiality of correspondence
and that the person who made this interception committed a fault.
On the other hand, it is not certain whether or not he will obtain an
injunction from the civil court against the journalist to prohibit the
publication of the emails in question. Such an action would in fact be
heard by a judge at summary proceedings, as is specified for urgent
matters. Such judges have been quite reluctant to issue preliminary
injunctions against publication in the name of the freedom of expres-
sion.31 The fact that the persons concerned are public figures, and
furthermore politicians, and the fact that the content of the emails
in question concerns tax increases, i.e. questions of general interest,
will probably lead the courts to refuse any prior restraint by means of
injunction, and will result in the journalist being judged after publica-
tion for having breached the confidentiality of correspondence.32
29
TGI Paris 2 Nov. 2000, No. 9725223011, www.legalis.net/jurisprudence-decision.
php3?id_article=167
30
Thus, in a much discussed decision dated 2 Oct. 2001, the Cour de cassation
stated: ‘the employee, even during worktime and at the workplace, has a right
of respect to the intimacy of his/her private life, which particularly implies the
confidentiality of correspondence. The employer thus cannot, without violating this
fundamental liberty, acquire knowledge of the personal messages sent and received
by the employee through an information technology device put at the employee’s
disposal for his/her work. This even holds true when the employer had prohibited a
non-professional use of the computer’ (Cass. soc. 2 Oct. 2001, D. 2002, jur., 2296).
31
However, in a matter of professional confidentiality, the distribution of the book
of the doctor of the former French President François Mitterrand was forbidden in
summary proceedings. See, TGI réf. Paris 18 Jan. 1996, JCP 1996, II, 22589 and CA
Paris 13 Mar. 1996, JCP 1996, II, 22632. On the Mitterrand judgment, see Case 5
above.
32
See, e.g., CA Paris 25 Apr. 1989, D. 1989, IR, 160: The journalist who ‘provided
himself/herself with confidential data in an unlawful manner, and ensures the
culpable dissemination of that information (…) causes (…) an incontrovertible
harm’.
In penal law, Art. 432–9(2) of the Penal Code punishes:

(…) employees of electronic communication networks open to the public, or
(…) employees of a supplier of telecommunication services who, acting in the
performing of their office, order, commit or facilitate, except where provided
for by law, any interception or misappropriation of correspondence sent,
transmitted or received by means of telecommunication, or the use or the
disclosure of its contents.
It is thus certain that the internet company employee could be found

guilty by the criminal courts on the basis of this provision. As for the
journalist, if he/she publishes the emails in question he/she could be
punished by one year’s imprisonment and a fine of €45,000 accord-
ing to Art. 226–15(2) of the Penal Code which sanctions ‘the malicious
interception, diversion, use or disclosure of correspondence sent,
transmitted or received by means of telecommunication (…)’. On the
other hand, the penal judges cannot issue a preventive injunction as
the crime must be committed before it can be sanctioned.
Germany
I. Operative rules
Smith is probably not entitled to an injunction against the publication
of the emails, although the result is not clear.

(a) Is Smith entitled to an injunction against the imminent publication
of the emails?
Smith’s claim for an injunction could be based on § 823(1) BGB since his
general personality right is affected. It is accepted in case law that this
right includes the protection of confidentiality in communication.33 The
question of whether there is an unlawful violation of this right depends
on a weighing of interests which takes the interests of the media and
the public into account with regard to the planned publication.34 In this
balancing process, it is relevant how the information was obtained,
since it is said that if the information has been illegally obtained then
there is an indication that the publication thereof is also unlawful.35
33
BGHZ 73, 120, 122 et seq. 34 Ibid. at 124.
35
BVerfGE 66, 116, 139; K. Larenz and C. -W. Canaris, Lehrbuch des Schuldrechts II/2 (13th
edn., Munich: 1994) at 509. See, already, RG 28.12.1899, RGZ 45, 170, 173 (publication
of photographs showing the body of Bismarck is illegal since they were obtained by
criminal trespass).
The publication of confidential emails is not covered by the Criminal

Code, unlike the publication of illegally taped telephone conversa-
tions which is a criminal offence according to § 201 Strafgesetzbuch if
there is no overriding public interest in such publication. In this case,
the issue of public interest seems open to discussion.36 However, the
unknown person in the internet company certainly commits a crim-
inal offence since § 206 Strafgesetzbuch penalises any intrusion into
classified telecommunication which includes email traffic.37 This pro-
vision of criminal law only applies to telecommunication companies
and their employees, not to journalists who publish illegally obtained
information.
Since the information was obtained illegally, its publication is also
deemed illegal unless the published information is so vital for the pub-
lic that this benefit clearly outweighs the breach of the law which was
committed in obtaining the information.38 The Federal Constitutional
Court has stated that ‘as a rule’ such public benefit will only exist
where the information serves to uncover illegal acts.39 The behaviour
of both Smith and Jones is a political issue of great importance but
does not fulfil the conditions of a criminal offence. Therefore one
could argue that the publication is illegal in this case.40 On the other
hand, the political importance of this information is so obvious that
the voters should be able to take note of it before they make their
choice in the election. Hence, this seems to be one of the exceptions to
the rule described by the Constitutional Court where even though no
criminal behaviour is uncovered, the information is of utmost public
importance and thus outweighs the initial breach of the law. After all,
the Federal Constitutional Court has repeatedly stressed that freedom
of speech is granted by the Constitution in particular to enable public
debate in a democratic society.41
36
However, some commentators only see such an overriding interest if a severe
breach of the law is to be uncovered (SK-StGB/Hoyer, § 201 no. 35), while others are
more liberal in this respect and allow the uncovering of other important social
scandals that do not rise to the level of illegality: Lenckner in A. Schönke and
H. Schröder, StGB (27th edn., Munich: 2006) § 201 no. 25.
37
See §§ 4 and 85 Telekommunikationsgesetz.
38 39
BVerfGE 66, 116, 139. Ibid.
40
See also Larenz and Canaris, Lehrbuch des Schuldrechts at 508: material obtained
through crimes may be used to uncover other criminal acts but not to criticise
general problems or scandals.
41
See, e.g., BVerfGE 7, 198, 208.
(b) Would it make a difference if the conduct of the unknown

person constitutes a criminal offence?
This would make a clear difference in the weighing of interests
described above. If the conduct of the unknown person does not con-
stitute a criminal offence, the balancing process remains fully open.42
If this is the situation, the publication of such matters of public import-
ance would clearly not give rise to an injunction.
Greece
I. Operative rules
The politicians do not have a claim. Although there may be a viola-
tion of the confidentiality of communication, Smith probably will have
no claim for an injunction. The interest in safeguarding freedom of
expression shall be taken into account since the information given is
of public interest.

According to Art. 14(2) of the Greek Constitution the press is free and
all other preventive measures are in principle prohibited. The freedom
of information and press may be restricted by law, however in this case
these restrictions should be of a general nature and should have only
an ex post (after publication) character. As both legal scholarship and
the courts have affirmed, freedom of the press is not absolute. It should
not lead to the sacrifice of any other lawful interest; therefore, it is sub-
ject to a general provision of respecting the laws of the State.
Regulations providing for a restriction of freedom of the press may
refer to national security, public order, the protection of honour and
other rights of third persons, the prevention of communicating confi-
dential information or securing the validity, objectiveness and impar-
tiality of the courts.
Ireland
I. Operative rules
Smith is unlikely to succeed in obtaining an injunction preventing the
publication of the information.
42
See Larenz and Canaris, Lehrbuch des Schuldrechts at 509: if the information is not
obtained by criminal means, but only through breach of contract or other private
law violations, an injunction needs special justification.

As the newspaper could plead the defence of justification, Smith would
not be entitled to prevent the publication of the emails by arguing that
they were capable of being defamatory. The courts have tended not
to award interlocutory injunctions in defamation actions where the
defendant intends to rely on the justification defence and where there
are substantial grounds that the court will be satisfied that he/she had
a reasonable chance of relying on this defence.43
It is unlikely that Smith would be successful in obtaining an injunc-
tion under breach of confidence preventing the publication of the
information. While it could be argued that the information was com-
municated to Jones in circumstances that would impose an obligation
of confidence on him, there is no evidence of a similar relationship
between Smith and the newspaper. Academic commentators have
advised against the extension of the law through the creation of an
artificial relationship whereby an obligation of ‘trust and confidence’
would be found to exist between the individual communicating the
information (Smith) and the party who has surreptitiously acquired
the information (the newspaper). It has been argued that to do so would
result in the contortion of the traditional action, leaving it lacking in
doctrinal coherence.44
The newspaper could argue that the publication of the information
was in the public interest on the basis that it was in the interests of
freedom of expression and that the public had a right to know the
true intentions of its elected representatives. However, this exception
has been strictly applied. In National Irish Bank v. RTE,45 Shanley J stated
that the ‘disclosure of confidential information will almost always be
justified in the public interest where it is a disclosure of information
as to the commission or the intended commission of serious crime’.46
Beyond the disclosure of information regarding serious crime, Shanley
J observed that disclosure in the public interest would include informa-
tion relating to misdeeds of a serious nature and of importance to the
State.47
In Mahon v. Post Publications, the Irish Supreme Court has recently
upheld the right of the press to communicate information.48 In that
43
X v. RTE, Supreme Court, 27 Mar. 1990.
44
McMahon and Binchy, Law of Torts (3rd edn., Dublin: 2000) 1004.
45 46
[1998] 2 IR 465. Ibid. at 475.
47
Ibid. citing Ungoed-Thomas J in Beloff v. Pressdram Limited [1973] 1 AER 241 at 260.
48
[2007] IESC 15.
case, the majority of the Supreme Court refused to grant an injunction

prohibiting the defendant publishing confidential material which had
been distributed to certain individuals in private. Fennelly J (delivering
the judgment for the majority) reiterated the importance of the press
being able to communicate freely in such circumstances stating that
‘the right of a free press to communicate information without let or
restraint is intrinsic to a free and democratic society’.49
Italy
I. Operative rules
Smith is probably entitled to an injunction against the publication of
the emails.

In order to answer this question, one should look not only to the
Civil Code but also to criminal and constitutional law provisions. The
confidentiality of communications is one of the most important and
far-reaching examples of privacy protection under Italian law. Every
citizen has a constitutional right to freedom and confidentiality of cor-
respondence, post and any other communication (Art. 15 Cost.). Any
violation of this right amounts to a crime (Art. 616 et seq. CP). Emails
are also specifically protected (Arts. 616, 617 quater, 617 quinquies, 617
sexies CP). In addition, many provisions of the DPC and the Copyright
Act (related to personal letters, Art. 93 et seq.) are applicable.
This case involves two problems. First of all, Smith’s action is not
directed against the privacy invader, who is unknown, but against a
third party, which is not responsible for the violation. Secondly, the
defendant could claim a media privilege (Art. 21 Cost.).
One could argue that neither the identity of the internet company
employee nor the constitutional protection of freedom of the press
could lead to the forfeiture of a fundamental liberty, such as confi-
dentiality of correspondence. It should be noted that the Penal Code
not only prohibits the active and material violation of this right
(Art. 616 PC), but also the disclosure of the content of such exchanges,
which should have been kept secret and which were unlawfully
acquired (Art. 618 CP). However, this disclosure is only punished
if there is no sufficient justification (‘giusta causa’). Obviously, it is not
easy to predict how such a general clause will be interpreted and
49
Ibid. at para. 51.
applied by the judges.50 On the other hand, it is not necessary to

give a specific answer to this question. What matters in our case is
not the punishment of a crime, but rather the prevention thereof by
means of injunctive relief (this could simply consist of an order for
an injunction provided for by the Data Protection Authority under
Art. 7(3) b DPC).
The remedy which Smith is requesting is grounded in the right to
privacy, namely to the confidentiality of correspondence. This should
be available to the claimant even if the defendant were acting in
the public interest. Indeed, no substantive privilege can be granted to
the press if the proper procedural conditions are not met. The DPC and
the Journalists’ Code of Conduct quite clearly state that personal data
can only be collected, processed and diffused according to good faith.
Otherwise the processing is unlawful. The principle of good faith
entails both substantive and procedural fairness51 and implies that
there is a duty on the publisher to previously ascertain the lawfulness
of the procedure adopted in order to acquire the notice. To publish
information which has been obtained in an improper manner, namely
to the detriment of a constitutional right, is a clear violation of such
a principle.52 The highly informative value of the data is not a valid
defence.
This conclusion is supported by two interesting decisions of the Data
Protection Authority:
In the first case, a well-known politician was waiting to be interviewed in a

television studio. He started speaking with a colleague of his about some fer-
vent political issues without knowing (and without being informed) that his
50
On this point, see F. Antolisei, Manuale di diritto penale. Parte speciale, I (Milan: 1994)
221 et seq.; A. Scalisi, Il diritto alla riservatezza (Milan: 2002) 142–3.
51
See on this principle E. Navarretta, ‘Art. 9’, in C. M. Bianca and F. D. Busnelli (eds.),
Tutela della privacy. Commentario alla l. 31 dicembre 1996, n. 675, in Le nuove leggi civili
commentate (Padova: 1999) 318 et seq.; P. Iamiceli, ‘Liceità, correttezza, finalità
nel trattamento dei dati personali’, in R. Pardolesi (ed.), Diritto alla riservatezza e
circolazione dei dati personali, I (Milan: 2003) 419 et seq.
52
See Garante protezione dati 30 Oct. 2000, in M. Paissan (ed.), Privacy e giornalismo
(2nd edn., Rome: 2006) 297 (the publication of a videotape illegally recorded during
a professional meeting was considered unlawful); see also Trib. Milano 17 Jul. 1982
no. 1390, Riv. pen. 1982, 898 (publication of a naked photograph of the actress Sophia
Loren). A contrasting solution has been reached by Trib. Milano 21 Jan. 2005, Dir.
inf. 2005, 104 in a slightly different case: a newspaper had published – lawfully
according to the court – the content of a private electronic communication (SMS)
taken from divorce proceedings.
microphone was switched on. The content of the discussion – which was quite
embarrassing for the politician – was broadcasted on television and the poli-
tician filed a claim before the Data Protection Authority. The Commissioner
decided that the processing was against good faith and therefore unlawful.53
In the second case, a chief officer of a fire department brought proceedings
against the publication and broadcasting of a telephone call made to a local
politician from his office (and registered, as is customary, for security reasons)
on the website of an Italian newspaper. In particular, he based his claim upon
the right of opposition on legitimate grounds under Art. 11, (1), (a) (b) DPC. The
Data Protection Authority found the broadcasting to be unlawful under the
principles of proportionality and legal certainty, and directed that there be no
further dissemination by the defendant.54
The Netherlands
I. Operative rules
Smith is not entitled to an injunction.

Art. 10 of the Constitution and Art. 8 ECHR protect both relational and
informational privacy. The right to privacy is not limited to private
places. One may also assume that Smith has a right to privacy while at
the workplace.
This case concerns informational privacy, more specifically the
(breach of) confidentiality of correspondence. Arts. 370 et seq. Penal
Code recognise this specific right. These rights are not absolute. In
relation to freedom of expression, if a good reason exists to publish
information that is ordinarily protected both interests have to be
balanced.
It is clear that the unknown person here has breached the confiden-
tiality of correspondence by copying it and sending it to the newspaper.
In order to determine whether it is unlawful to publish the informa-
tion depends on whether publication is important for the public inter-
est, e.g. if the publication is necessary for public safety.
In this case, the proposed tax increase is not an interest concern-
ing safety. On the other hand, the public have an interest in knowing
about the policies which politicians intend to make after the election.
The fact that the information concerning the tax increase is obtained
53
See Garante protezione dati, 22 Jul. 1998, Boll. no. 5, 1998, 26.
54
See Garante protezione dati, 8 Feb. 2007, Boll. no. 80, 2007, doc. web no. 1388922.
by the unknown person in an unlawful manner (and even in a manner

which is prohibited by the Penal Code) does not necessarily imply that
the newspaper acts unlawfully if it publishes the information.55
Given the public interest in knowing these facts which are not
related to the private life of either Smith or Jones, the general inter-
est of the freedom of the press and of the public in being informed
about facts that are of public relevance outweighs the interest of
Smith.
Portugal
I. Operative rules
Smith is entitled to an injunction against the imminent publication
of the emails. It would not make any difference if the conduct of the
unknown person constitutes a criminal offence.

Emails are equivalent to letters. This exchange of emails is of a private
nature and, therefore, must not be published without the consent and,
furthermore, against the will of Smith and Jones.
The inviolability of correspondence is provided for in Art. 34(1)
CRP: the confidentiality of correspondence and other means of private
communication is inviolable. Furthermore, the Civil Code contains a
detailed regulation of private writings, such as correspondence, mem-
oirs, or similar documents under Arts. 75, 76, 77 and 78. Art. 76(1) CC
states that the addressee of a confidential letter shall keep its con-
tents secret and shall not take advantage of any information acquired
therefrom. Confidential letters may only be published with the prior
consent of their authors or that of the Court (Art. 76(1) CC). The same
applies to family or personal memoirs, or any other writings that have
a confidential nature or which may concern the ‘intimacy of private
life’ (Art. 77 CC). Addressees of non-confidential letters may only use
them under such conditions as do not conflict with the expectations of
their authors (Art. 78 CC).
The question refers to the publishing, not by the addressee, but by a
third party that acquired the text of the email, without the consent of
its author. The copying of the email is illegal and so is its publication
without the prior consent of its author or of the Court. Thus, there are
55
Court of first instance Amsterdam, 8 Oct. 1997, Mediaforum 1997–11/12; Schuijt,
Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 84.
grounds for injunction to prevent the publication and for compensa-

tion (Arts. 70 and 76 CC).
Interfering with the contents of private correspondence constitutes
a criminal offence, punishable with imprisonment of up to one year
or a fine (Art. 194 CP). This does not alter the civil consequences of the
case.
As far as we know, there is no Portuguese court decision with similar
facts to the instant case.
Scotland
I. Operative rules
It is possible that Smith has claims under statutory data protection and
communication provisions, alongside possible breach of confidence
and copyright.

This question raises various issues surrounding the competing values
of privacy and free speech and the illegal interception of mail and copy-
right. Issues of privilege and parliamentary contempt are presumed
not to arise on the facts here but could otherwise have been relevant if
the emails were sent on a parliamentary intranet network.56 An action
by the Members of Parliament (MP) to prevent the publication of their
email correspondence (on a matter of public concern, tax) depends on
the balance to be struck between the competing interests of confiden-
tiality and public interest in taxation.
Generally speaking, intercepting (e)mail, telephone tapping and
general interception fall within the exclusive domain of activities
that require a warrant, obtained at the request of the police under
the authority of the Lord Advocate or Attorney General. This applies
whether the internet activity is illegal or not. The unauthorised inter-
ception of electronic communications is an offence, its regulation
embedded in the Regulation of Investigatory Powers Act 2000.57 The
Communications Act 2003 merely governs public regulatory issues for
telecommunication providers.58
56
Hamilton v. Al Fayed [2001] 1 AC 395.
57
Interception of Communications Act 1985 has been repealed and substituted by the
Regulation of Investigatory Powers Act 2000, Ch. 23; for the unauthorised access to
computer material, see Computer Misuse Act 2000, Ch. 18.
58
Communications Act 2003, Ch. 21.
The Regulation of Investigatory Powers Act applies to Scotland.

Unlike the 2003 Privacy Regulations, its provisions extend to the
unlawful interception of private networks. S. 18(2) imposes civil liabil-
ity for unlawful interception. The categories of lawful interception do
not cover the situation raised in this case.
Beyond the criminal aspects mentioned here, the notion of freedom
of the press and the overriding public interest may be of assistance.
The balance to be struck in this particular instance is between the
right to privacy of communication between parliamentarians and
the public’s right to learn of such planned tax increases. The court is
required to take the Press Council’s code of conduct into account when
striking this balance. Within its rules, this includes the protection of
the public from being misled.59 Taxation is a matter of public interest
and concern.
Some assistance can be gained from English authority on the matter,
discussed before the Court of Appeal in Campbell v. Frisbee:60 ‘In these
cases of confidential information it is a question of balancing the pub-
lic interest in maintaining the confidence against the public interest
in knowing the truth.’61
Whereas the Campbell case related to private information, the issue
before the court here relates to tax, which is a matter of public con-
cern. On the balance of probabilities, a claim for breach of confidence
is unlikely to succeed if the public interest defence is accepted.62 It
will be difficult for the politicians here to allege that the communica-
tion has any overriding confidential or private nature. The statutory
offence of illegal interception remains unaffected by this.
There is some relevant authority concerning confidential informa-
tion of a public nature in relation to an MP, Paddy Ashdown,63 where
information from his professional diaries became available through
an unknown source to the press and was subsequently published. This
case was held to be a clear breach of copyright. Here, there was no more
than an indication of the competing right of freedom of the press.64 In
59
S. 18(iii) Press Complaints Commission Code of Practice; see Case 1.
60
Campbell v. Frisbee [2002] EWCA Civ 1374 at para. 29.
61
Woodward v. Hutchins [1977] 1 WLR 760 per Lord Denning at 763–4.
62
This does not take any claims the employer may have against the employee into
account.
63
Rt Hon. P. Ashdown v. Telegraph Group Ltd [2001] EWCA Civ 1142.
64
Ibid., per Lord Phillips MR at para. 82: ‘There may in law have been justification for
the publication of the confidential information that was contained in the minute.
This is not an issue before the court.’
this instance, the court focused more on the issue of authorisation of

publication – it was known that the diaries were to be published at a
later stage – and the author’s right to receive any resulting profit. The
case is not an authority on how the balancing of interests under s. 12(4)
HRA is to be undertaken in the individual case.
In relation to the intercepted communication relating to tax, even if
there is a breach of copyright, the overriding balance will be struck in
favour of publication. The statutory rules against interception remain
unaffected.
Spain
I. Operative rules
Although there is no specific injunction, the right to privacy could be
protected in the same way as was described above in the second part
of Case 1. In this respect, there would be no difference if the unknown
person’s conduct constituted a criminal offence.

Art. 7.3 LO 1/1982 considers the revelation or publication of letters,
reports and any other personal private writings as an illegitimate
interference.65 For the remedies provided under LO 1/1982 see Case 1.
Switzerland
I. Operative rules
Smith can request that the judge prevent publication of the email in a
newspaper by means of specific injunctive relief. It does not make a dif-
ference whether the conduct that caused the infringement constitutes
a criminal offence or not.

According to Art. 13, para. 1 of the Swiss Federal Constitution, every
individual has the right to respect for his or her private and family life,
domicile, correspondence and the relationships established through
postal correspondence and telecommunications. This provision
65
Art 7.3 LO 1/1982 reads: ‘It will be considered an illegitimate interference with the
right to honour, privacy and own image: … (3) to disclose or spread facts concerning
the private life of a person or family which affect their reputation or good name,
as well as the disclosure of the content of letters, memoirs or any other private and
intimate written material.’
especially guarantees the confidentiality of telecommunications. In a

recent decision, the Federal Court held that this protection also extends
to electronic mail transmitted via the internet.66
In relationships between private persons, Art. 28 CC guarantees the
right to respect for the private sphere. This sphere includes events that
each individual wishes to share with a limited number of people. Such
is the case regarding an electronic message system.67
Arguably, the tax increase plan raised in the facts of this case belongs
to this category of information because the two politicians intended to
keep the plan a secret for a certain amount of time. Thus, this informa-
tion could be considered part of their private spheres. According to Art.
28, para. 2 CC, an infringement is unlawful to the extent that it cannot
be justified by a preponderant public or private interest or by the law.
Freedom of the press and the latter’s role as watchdog may constitute a
defence for the publication of the email.
Thus, the politicians’ interest in keeping this information secret,
the respect of the confidentiality of their communications and their
private spheres must be balanced against the fact that the publication
of this information contributes to transparency of the political debate
during the election period and that it permits people to vote with full
knowledge of their representatives’ policies. The protection of the poli-
ticians’ private sphere will usually prevail over the public interest in
being informed.
The fact that the information was obtained illegally by the employee
makes no real difference. The unlawful infringement of the politicians’
private spheres will only be more effortlessly proved because the infor-
mation was illegally obtained by the internet company employee.
The employee of the internet company violated two provisions of Swiss
law. By sending a copy of the emails to the newspaper, the employee
violated his obligation to keep the information he was able to access
through his job functions secret. Art. 43 of the Telecommunications
Statute68 prohibits any individual responsible for the functioning of the
telecommunications service from passing on information regarding
the communications of its users to third parties without authorisation.
In light of this legislative mechanism, the copying of the politicians’
email will be held to be contrary to their rights. Subsequently, break-
ing into a computer system without authorisation is a criminal offence
66 67
ATF/BGE 126 I 50 c. 6a, JdT 2001 I 764. ATF/BGE 130 III 28 c. 4.2.
68
Loi du 30 avril 1997 sur les télécommunications (LTC) (RS 784.10).
punishable under Swiss law (Art. 143bis of the Swiss Criminal Code
(CP)69).
Thus, if the infringement is admitted and not justified by the public
interest, the politicians will have the right to request that the judge
issue an injunction against the publication of the article (Art, 28a,
para. 1(1) CC).

This hypothesis touches on the question of publication of confiden-
tial information. On several occasions, the Swiss Press Council has had
the opportunity to make statements in this respect. According to the
Council, ‘the job of the media – which is to make things public – pre-
supposes that their investigations are not limited and that they take
into consideration anything that, in their estimation, will interest the
public’.70
More specifically related to the facts of our case, the Council has also
affirmed that ‘indiscretions and disclosures to the media of secret or
confidential information are practically inevitable’71 and that the State
should only punish them in particularly obvious cases. It has, how-
ever, specified that publication should not take place except when the
importance of the subject matter demands that it be published for pub-
lic knowledge and where good reasons exist to publish it sooner rather
than later. In addition, the publication must not include information
obtained by methods such as corruption, blackmail, wiretapping or
illegal eavesdropping, or theft or burglary unless it serves preponder-
ant interests.
Comparative remarks
This case concerns the privacy interests of politicians in having their
private correspondence respected and the competing interests of free-
dom of the press and the right of the public to receive information
which may be in its interest. For the purposes of this case, it is impor-
tant to point out the difference in standing between the unknown
person at the internet company who initially infringed the privacy
interests of the politician and the third party who intends to publish
69
Code pénal suisse du 21 décembre 1937 (CP) (RS 311.0).
70 71
Statement of the Conseil suisse de la presse 1994, n. 2. Ibid.
the emails. The injunction is sought against the latter party. The legal
consequences for the unknown person are not considered here.
The confidentiality of correspondence is a general legal principle
recognised in all of the legal systems considered. Indeed, the right to
respect for one’s correspondence is expressly mentioned in Art. 8 ECHR.
It also finds expression in the constitutional texts of Italy, Portugal,
and Switzerland and in the civil law and/or criminal law of many other
legal systems. The principle has been developed by case law in England,
France (as part of the wider right to privacy) and Germany (as part of
the general personality right). The legal instruments used to protect
the confidentiality of correspondence include criminal and general
tort law provisions, copyright and data protection law and equitable
doctrines in the case of the common law systems.
The question put forward in this case is whether or not Smith is enti-
tled to an injunction to prevent the publication of the emails. In the
first instance, it is clear across the board that the unknown person at
the internet company has unlawfully and, in some countries, illegally
interfered with private correspondence. In ordinary circumstances one
would expect that this alone would result in an injunction in favour
of the claimants. However, we have to consider that the correspond-
ence in question was between politicians and, thus, the publication of
the emails may be warranted if these contain information which is in
the public interest. In this particular case the information concerns
a planned tax increase and an arrangement that this increase should
be kept secret until after the next election. Most national reporters
agree that there is a public interest in respect of such information. As a
consequence, the courts must attempt to strike a balance between the
privacy interests of the politicians and the right of the public to receive
this information.
While the approach to this question of balancing is similar across
most of the legal systems considered, the outcome of the process varies
considerably. The results can be divided under three broad headings.
I. Smith is entitled to an injunction

It seems that the politician will most likely be entitled to an injunc-
tion in both Italy and Portugal. The combined effects of constitutional,
criminal and civil protection means that confidentiality of correspond-
ence has an extremely important status in Italian law. In the instant
case, the privacy interests of the politicians should win out, even if the
defendant was acting in the public interest, because the defendant’s
action will not be deemed lawful if the ‘proper procedural conditions’

have not been met in the first instance. Indeed, the Data Protection Code
and the Journalists’ Code of Conduct state that data must be processed
in accordance with good faith. An interference with the constitution-
ally guaranteed confidentiality of correspondence is an infringement
of this principle. Interestingly, in such a scenario, the public interest
in obtaining the information will not constitute a defence. Similarly,
in Portugal, politicians enjoy a very high level of protection. The start-
ing and ending point is that the exchange of emails is of a private
nature and, therefore, it is a breach of the law to publish them without
consent. It seems that the issue of public interest in the subject mat-
ter of the emails does not play a role in this hypothetical case and
the claimants will consequently be entitled to an injunction under the
civil code.
In England, case law has established that the law of confidence
should protect private correspondence. Seemingly, courts will be more
ready to grant an injunction in these types of cases than in defamation
actions. Thus, the claimant will presumably be successful in seeking
an injunction. In Switzerland, the fact that the politicians wanted to
keep their planned tax increase secret denotes that the information
belongs to the category of private information, the infringement of
which is actionable under the civil code. Even though there is a pub-
lic interest in the subject matter, the protection of this private sphere
should win out.
II. Smith is not entitled to an injunction

In Finland, the claimant will not be entitled to an injunction because
such a remedy is practically non-existent in cases involving freedom
of expression (see Case 1). Similarly, the Greek courts will not allow
an injunction as remedies in such cases should only be granted after
publication. In the Netherlands, the public interest in the information
means that freedom of the press will outweigh the privacy interests of
the claimants, taking into account that the facts are not related to the
private lives of the politicians. Likewise, in Ireland there would be an
overriding public interest in the information contained in the emails
and the claimants would not be successful with their action.
III. Smith will probably not be entitled to an injunction

The result is less clear-cut in Belgium, France, Germany and Scotland,
although the consensus is that Smith will probably not be entitled to an
injunction. In Belgium and France, although it is apparent that there

is a violation of confidentiality of communication, it is not completely
clear whether an injunction will be awarded. Belgian and French courts
are traditionally wary of issuing injunctions in cases concerning free-
dom of expression, in particular when politicians are involved and the
correspondence concerns issues of policy. In Germany, the publication
of information, which is obtained illegally, will usually be considered
unlawful. However, taking into account the importance consistently
attached to freedom of expression by the Constitutional Court, the
information in question may be of such political relevance that it could
perhaps be an exception to this rule. Therefore an injunction may not
be available to the claimant.
In Scotland, Smith would possibly be entitled to an injunction under
statutory data protection and communication law. Claims under breach
of confidence and copyright law would probably fail.
(b) Does it make a difference if the conduct of the unknown person

constitutes a criminal offence?
In England and Germany, the criminal offence appears to have an
impact on the outcome of the proceedings. In England, there is case
law to suggest that an injunction will be more readily granted in such
a scenario. As pointed out above, in Germany if information is obtained
illegally, then, in general, the subsequent publication is also deemed
unlawful.
Whether or not the conduct of the unknown person constituted a
criminal offence appears to be of varying significance. In many coun-
tries, it will not make a difference to the civil action against the defend-
ants. For example, under Dutch law, just because the information is
initially obtained in an unlawful way, it does not necessarily follow
that the newspaper acted unlawfully in publishing the information.
16 Case 13: Brigitte’s diaries
Case
Jonathan, a house owner, found some diaries in his attic belonging
to Brigitte who had been living there twenty years before. Jonathan
became the owner of the books and published the diaries. Does Brigitte
have any claim against Jonathan? Would it make a difference if Jonathan
made some effort to contact Brigitte before the publication?
Discussions
Austria
I. Operative rules
If Brigitte’s legitimate interests are injured by the publication, she can
request forbearance and publication of the judgment. Apart from this,
she can recover damages for economic and non-economic loss.

It is irrelevant that Jonathan became the owner of the diaries. The
property right according to § 354 ABGB has to be strictly segregated
from copyright and personality rights.
If the diaries can be seen as a specific intellectual creation in terms
of § 1 UrhG, Brigitte obtains protection as an author. Indeed, this would
not make a big difference, since, generally speaking, the legal conse-
quences for infringements of her copyright are the same as for viola-
tions of § 77 UrhG.1
1
Admittedly, as an author Brigitte could benefit from § 86 UrhG (hypothetical
licence fee under the law of unjust enrichment) and § 87, subs. 3 and 4 UrhG (double
457
As already mentioned in Case 12, the protection of diaries, letters

and similar confidential records under civil law is anchored in § 77
UrhG, which only prohibits the dissemination of such records if the
‘legitimate interests of the writer are injured’ (the field of these inter-
ests includes, inter alia, facts from private life). Brigitte can only take
legal measures if this precondition is fulfilled.
If Brigitte had already died in the meantime, her direct relatives
(ascendants and descendants) and surviving spouse would benefit from
the protection granted by § 77 UrhG, provided that their legitimate
interests are affected. Furthermore, under certain conditions Brigitte’s
personality can also be protected post-mortem.2
If Jonathan made some effort to contact Brigitte before the publica-
tion she can still make reference to her legitimate interests.
Brigitte can claim for forbearance (§ 81 UrhG). Furthermore she can
demand the publication of the judgment of the forbearance under § 85
UrhG.
Compensation for both economic and non-economic loss is also avail-
able (§ 87 UrhG).3
Moreover, the publication has to be qualified as a ‘medium of com-
munication’ in the sense of § 1(1) MedienG. As a consequence, under §
7 MedienG Brigitte is entitled to ask for compensation of up to €20,000
for non-economic harm against the publisher,4 but this is only possible
if her strictly personal sphere is affected5 and she is publicly compro-
mised by the infringement.
She cannot claim for a hypothetical licence fee under tort law (§ 87,
subs. 1 UrhG). Given that she is not famous and the infringement is not
connected to an unauthorised commercial, the OGH would presumably
not grant this fee under the law of unjust enrichment either (here,
a claim would be independent of Jonathan’s fault). This questionable
result can be derived from case law under § 78 UrhG.6
hypothetical licence fee as material damage; skimming off the net profits earned by
Jonathan in place of the licence fee).
2
See Case 10.
3
Non-pecuniary loss is only recoverable if the infringement was particularly severe;
see Case 7. If Jonathan took all reasonable efforts to contact Brigitte, he would pos-
sibly not be liable due to § 87 UrhG because then he did not act with fault.
4
This provision is part of a strict liability regime; see Case 5.
5
In this case, she could refer to her right to privacy under § 16 ABGB, together with
Art. 8 ECHR also. Given that the publication has to be regarded as a ‘medium of
communication’ in the sense of the MedienG, § 1328a ABGB is not applicable (see §
1328a, subs. 2 ABGB; furthermore Cases 5, 7 and 12).
6
Cf. Cases 8, 10 and 11.
c a se 13: br igi t t e’s di a r ies 459
Belgium
I. Operative rules
Brigitte can claim damages from Jonathan.

Diaries are protected under Art. 1, § 1 of the Copyright Act as a work
of literature or as the author’s personal views – e.g. ‘X is a horrible per-
son’. The author, and, up until seventy years after his/her death his/her
heirs, have the exclusive right to publish the work and to consent to
publication by another person. Invasion of this right gives grounds for
damages for economic and non-economic loss.
Diaries would not be protected under the Copyright Act if they con-
tain no personal views, in other words if it they are only calendars –
e.g. ‘12/6, 7.00 p.m.: meet A at his home’. Publishing such ‘information’
could constitute an invasion of the right to privacy and give cause for
damages on those grounds.
England
I. Operative rules
Brigitte has a claim against Jonathan under breach of confidence and
under copyright law.7 It would not make a difference if Jonathan had
made some effort to contact Brigitte before publication.

The test of private information is whether matters fall within the ambit
of private life. Furthermore, ‘essentially the touchstone of private life
is whether in respect of the disclosed facts the person in question had
a reasonable expectation of privacy’.8 Certainly recording one’s per-
sonal thoughts in a diary would seem to fall under this category. In
the recent case of Michael Barrymore v. News Group Newspapers Ltd,9 cor-
respondence between two parties setting out their personal views
had been treated as confidential. It is only if the information was in
fact public that the diaries would lose their confidentiality. As they no
doubt expressed personal opinion, it would not be sufficient that the
facts on which they were based were well-known. There would have to
7
On copyright law, see the Scottish report.
8
Campbell v. MGN Ltd [2004] 2 WLR 1232, at para. 21 (per Lord Nicholls).
9
Michael Barrymore v. News Group Newspapers Ltd [1997] FSR 600.
be some overriding public interest to justify the breach of confidence.

Efforts to contact Brigitte prior to the publication are irrelevant.
Brigitte could claim an account of profits if Jonathan has made any.
Furthermore, she can claim damages for distress.10
Finland
I. Operative rules
Brigitte cannot obtain an injunction prior to publication. Brigitte has a
right to claim damages for the publication.

Firstly, the publication here can constitute a violation of a person’s pri-
vate life or honour according to Ch. 24, ss. 8, 9 or 10 of the Finnish
Penal Code, as was described in Cases 1 and 5. Such a violation can
constitute grounds for compensation.
Secondly, Brigitte’s right as the author of the diaries is regulated
under the Finnish Copyright Act. Anyone who has created a liter-
ary work has the copyright to that work. A fairly low level of quality
is required in order for the work to be considered a literary work.11
There seems to be no doubt that Brigitte’s diaries are protected by the
Copyright Act. Jonathan is therefore not entitled to publish the diaries
without Brigitte’s consent. This prohibition exists irrespective of the
fact that Jonathan can be regarded as the owner of the actual copies of
the diaries.
There is no provision granting the possibility of an injunction in
connection with the violation of copyright. As was stated in the previ-
ous case, the main principle is that it is not possible to prohibit publica-
tion prior to the actual publication.
According to s. 57 of the Copyright Act, the unlawful use of a work
protected by copyright constitutes grounds for damages. In any case,
the damages consist of appropriate compensation for the use. If the
violation of the copyright is intentional or negligent, the damages addi-
tionally consist of compensation for other loss and for suffering and
other detriment. It is difficult to assess the amount of the damages, but
the starting point is that Brigitte should be put in the same position
as if there had not been any violation of her copyright. The fact that
Jonathan tried to contact Brigitte prior to publication does not have
10
See the answer to Case 5.
11
Haarmann, Tekijänoikeus ja lähioikeudet (Jyväskylä: 2005) 63.
any substantial impact on the amount of the damages because the pub-
lishing was nevertheless intentional in both cases.12

While there is no provision for an injunction in copyright law, views
can also be found which maintain that an injunction is possible.13
However, freedom of speech has a strong position in Finnish law nowa-
days as it is one of the fundamental rights. A limitation of a fundamen-
tal right is only possible through law.
France
I. Operative rules
Brigitte can sue both on the basis of her copyright and on her right to
privacy and can obtain an injunction against publication along with
damages.

First, Brigitte can bring an action on the basis of copyright. French
copyright law grants moral rights including the right of disclosure (Art.
L.121–2 Intellectual Property Code, CPI ), that is the right to decide the
time and conditions in which the work can be rendered accessible to the
public. A publication made without the consent of the author infringes
his/her right of disclosure as well as his/her rights of exploitation, and
specifically the right of reproduction.14 Jonathan is thus liable for copy-
right infringement if he publishes Brigitte’s diaries without her con-
sent, and it does not really matter that he has made an effort to contact
Brigitte prior to publication. Having found her diaries in his attic, he
can be considered the owner of the physical object according to private
law15 but, since the property in the physical object is independent of
the copyright (Art. L. 111–3 line 1 CPI ), Jonathan is not relieved of his
duty to obtain the consent of Brigitte for the publication.16
12
See Viljanen, Perusoikeuksien rajoitusedellytykset (Vantaa: 2001) 37–114.
13
Norrgård, Interimistiska förbud i immaterialrätten (Jyväskylä: 2002) 89–93.
14
Art. L. 122–3, 1 CPI: ‘Reproduction shall consist of the physical fi xation of a work by
any process permitting it to be communicated to the public in an indirect manner.’
15
Acquisition of property by possession (Art. 2276 C.civ.: ‘In matters of movables,
possession is equivalent to a title’), occupation of res nullius and res derelictae (Art.
716 C.civ.: ‘Ownership of a treasure trove belongs to he who discovers it on his own
property’).
16
See CA Paris 16 Feb. 1945, D. 1945, jur., 259: he who receives a letter,
although undoubtedly the proprietor of the material object, does not own the
However, such a cause of action is only available under the condition

that the diaries in question are protected by copyright law: for this, the
diaries must be an original work. In French law, originality is found
where the work carries ‘the stamp of the personality of the author’.
French law also states that the copyright protection is independent
of the kind, form of expression, merit or purpose of the work (Art.
L. 112–1 CPI ). French case law appears very generous and accords the
benefit of copyright to ‘works’ where the originality is not particularly
evident such as technical notices, address lists, telephone books, con-
tracts, etc.17 Thus, it is very likely that Brigitte’s diaries enjoy copyright
protection under French law.
Brigitte’s action against infringement of her copyright, more pre-
cisely the infringement of her right of disclosure and her right to
reproduction, is likely to be accepted by the French courts which will
probably enjoin the publication. They will certainly award damages in
reparation of the economic and non-economic loss the person suffered
due to the unauthorised publication.
However, Brigitte can also bring a claim on the basis of her person-
ality rights. Her diaries certainly contain details of her intimate pri-
vate life. Divulging this information without her consent irrefutably
constitutes an infringement of her right to privacy. It is unlikely that
this injury could be justified by some overriding interest possessed by
Jonathan.18 Thus, the injury will certainly be sanctioned on the basis
of Art. 9 CC.
Germany
I. Operative rules
Irrespective of any efforts to locate Brigitte, she will be granted an
injunction against the publication of her diaries, as well as damages.
Depending on the content and circumstances of the publication,
Brigitte may also have a claim for non-economic damages. In addition,
she may demand any profits that Jonathan might have gained through
the publication.
thought of the author and its expression. See, also, Perot-Morel, ‘Droit d’auteur
et lettres missives’, in Françon and Goyard (eds.), Les correspondances inédites
(Paris: 1984) 27–45.
17
Lucas, Traité de la Propriété Littéraire et Artistique (3rd edn., Paris: 2006) 70 and 79.
18
The publication of a diary against the will of its author has been admitted by the
courts, however the particular case concerned divorce (Cass. civ. 6 May 1999, D.
2000, jur., 557).

A person’s diaries or other personal writings such as letters or notes
are protected under German law regardless of who owns the paper
on which they are written. This protection may be granted under the
law of copyright in special cases if the diaries reach a certain artis-
tic or intellectual level which would qualify them as a ‘work’ under
the German law of copyright.19 This depends on the level of artistic
expression which the diaries exhibit and cannot be determined here.
Usually, a diary will not reach that level and therefore will not be
protected by copyright in the strict sense.20 Nevertheless, if the diary
deals with the private sphere of its author, any unauthorised publica-
tion of the diary is regarded as an infringement of the general person-
ality right.21 There may be justifications where there is great public
interest in the published material, but this particular case does not
offer any facts that could be used for such a justification. Therefore,
Brigitte can claim an injunction. She may also claim damages based
on § 823(1) BGB including a hypothetical licence fee for the publica-
tion. The claim for skimming off the profits may be based either on
§ 823(1) or on § 687(2) BGB.22
As with every violation of the general personality right, a claim for
damages for non-economic loss requires that the violation be of a cer-
tain seriousness and gravity.23 This might be the case if the publication
exploits intimate details of Brigitte’s diaries for purely commercial rea-
sons. If Jonathan did not even try to contact Brigitte, he would show a
certain recklessness which would be weighed in favour of an award for
non-economic damages.
Even if Jonathan made efforts to locate Brigitte, an injunction may
still be granted against him since this remedy does not require the
showing of fault on the part of the defendant. However, Brigitte prob-
ably cannot claim any non-economic damages in this case unless the
content of the publication is so intimate that this is sufficiently serious
in and of itself.
19
See, for an illustration, BGHZ 15, 249, 255 ff. (the diaries of Cosima Wagner).
20
KG NJW 1995, 3392 (Letters of Botho Strauss); Schack, Urheber- und
Urhebervertragsrecht (4th edn., Tübingen: 2007) no. 54; Rehbinder, Urheberrecht (15th
edn., Munich: 2008) no. 438.
21
Ehmann, in Erman, BGB (12th edn., Münster/Cologne: 2008) appendix to § 12
no. 120.
22
See Case 8. 23 See Case 1.
Greece
I. Operative rules
Brigitte has a claim against the publication of her diaries on the basis
of her personality right, as well as for the infringement of her copy-
right, especially her moral rights.

Publishing the diary of a person which contains personal and intimate
information without the person’s consent constitutes an infringement
of that person’s right to privacy.
Furthermore a diary enjoys protection under the terms of Copyright
Law (Law 2121/1993) as a written text, as long as the minimum level of
originality required is fulfilled (Art. 2(1) Law 2121/93) . The copyright
in the work includes the right to exploit the work (economic right)
and the right to protect any personal connection with the work (moral
right) as exclusive and absolute rights (Art. 1 Law 2121/93).
The moral right, in particular, confers powers upon the author to
inter alia:
(a) decide on the time, place and manner in which the work shall be
made accessible to the public (publication);
(b) to demand that his/her position as the author of the work be
acknowledged and, in particular, to the extent that it is possible,
that his/her name be indicated on the copies of his/her work and
noted whenever his/her work is used publicly, or, conversely, if he/
she so wishes, that the work be presented anonymously or under a
pseudonym (Art. 4(1) Law 2121/93).
In all cases of infringement of copyright the author is entitled to

demand recognition of his/her right, the suppression of the infringe-
ment and the omission of the infringement in the future. A person
who culpably infringes copyright, apart from the penalties provided
under penal law, must repair the moral damage caused and is liable for
the payment of damages (Art. 65 Law 2121/93).
Ireland
I. Operative rules
Brigitte may have a claim for breach of copyright depending on whether
or not she can establish that she transferred ownership of the diaries
with the house.

It would seem unlikely that an action for breach of confidence would
be successful. In order to maintain such an action, the information
must be confidential, it must be imparted in circumstances importing
an obligation of confidence and there must be an unauthorised use of
the information to the detriment of the party who communicated it.24
It could not be said that the information was imparted in a manner
which imported an obligation of confidence.
It is unlikely that an action could be maintained for breach of pri-
vacy by Brigitte.25
As the author of the diaries, Brigitte would own the copyright.26
Under s. 47(3) of the Copyright Act 1963 and s. 120(3) of the Copyright
and Related Rights Act 2000 an assignment of copyright will not be
effective unless it is in writing and signed by or on behalf of the indi-
vidual transferring the copyright. There is no evidence that in selling
the house to Jonathan she also intended to assign the copyright of the
diaries. As a consequence Brigitte may have a claim for breach of copy-
right against Jonathan.
Italy
I. Operative rules
Brigitte can recover damages from Jonathan. It is immaterial whether
Jonathan made some effort to contact Brigitte before the publication.

This case raises an interesting question, which refers – in some sense –
to the distinction between corpus mysticum and corpus mechanicum.
Assuming that the diaries contain personal information and deal with
Brigitte’s private sphere it should be determined whether the owner
of these manuscripts is free to publish their content. The conflict is
between tangible property (the book) and intangible property (the
information contained in it).
A solution can be found on the basis of the Copyright Act. If a diary
reaches a sufficient artistic or intellectual level it may be granted
protection as a ‘work’ under the Italian law of copyright (Art. 1 CA).
Otherwise the provisions on neighbouring rights can be applied.
24
25 26
See generally Case 3. Ss. 8(1) and 9(2) of the Copyright Act 1963.
According to Art. 93 CA, personal writings which refer to the private

sphere, such as letters, notes and memoirs, cannot be published with-
out the author’s permission. Consent is not required if the publication
is necessary for reasons of justice or for the protection of personal or
familial honour and reputation (Art. 94 CA).
A diary can be considered to be personal writing under this pro-
vision.27 Its publication is not intended to satisfy any relevant pub-
lic interest. Therefore, it should be considered unlawful and can be
enjoined by Brigitte, regardless of whether Jonathan has made some
effort to contact her before the publication. It should be noted that the
period of twenty years which has passed is not relevant, since the right
of privacy is not subject to any period of limitation. Indeed, even after
Brigitte’s death, the right can be exercised by her surviving relatives
(Art. 93, n. 2 CA). It is interesting to observe that the same result could
be reached by applying the Data Protection Code, under the assump-
tion that a diary is a collection of personal information.
Brigitte can also claim damages. Up until a few years ago it was
difficult to recover non-pecuniary loss in privacy infringement cases
because of the obstacle represented by Art. 2059 CC. Damages were
only awarded if the tort amounted to a crime (Art. 185 et seq. CP). Since
the enactment of the Data Protection Act 1996 and the overruling of
the old restrictive doctrine in 2003 by the Italian Supreme Court, this
limitation has been overcome.28
The Netherlands
I. Operative rules
Brigitte can claim damages and an injunction.

As the owner of the diaries, is Jonathan entitled to publish facts
belonging to Brigitte’s sphere of privacy? Cases often concern freedom
of expression and the right of the public to be informed on the one
hand, and the protection of one’s private life on the other. In this case
it is unclear whether there is a specific general interest involved in
publishing the diaries. On the other hand, it is clear that the diaries
27
Seemingly, only one decision deals with a diary as an object of privacy rights. In
Pret. Trapani 20 Mar. 1993, Foro it. 1994, I, 2575 a woman was denied an injunction
prohibiting the exhibition of her personal diary, which was in her husband’s
possession, in a divorce trial.
28
See Case 5.
contain information of an utmost private nature. The right to privacy

outweighs the right to freedom of expression, and given the limited
importance of the diaries for the public, the general interest to be
informed.29
The extent of intimacy of the published information invokes a duty
on behalf of the publisher to at least investigate whether Brigitte is
still alive and whether she can be traced. Without taking any such
measures, the publication of the diaries is an unlawful infringement
of Brigitte’s privacy. Brigitte can claim non-economic damages and
ask for an injunction. If Jonathan made efforts to trace Brigitte and
did not find her, the publication might be justified. If Brigitte appears
afterwards, it can be injurious to her not to recall the publication.
However, in this situation Jonathan’s interest will not only be that
of freedom of expression but also the financial interest in selling the
publication.
Portugal
I. Operative rules
Brigitte can sue Jonathan for an injunction and compensation. It does
not make any difference whether or not Jonathan made any effort to
contact Brigitte before the publication.

In accordance with Art. 77 CC, the diaries may not be published with-
out Brigitte’s consent. Any efforts made by Jonathan to contact Brigitte
bear no relevance in connection with the publication of the diaries.
Brigitte may file for an injunction to prohibit publication and/or to
seize the diaries which have already been published (Art. 70 CC). She
may also claim restitution of the diaries and demand compensation for
moral damages (Art. 483 CC).
Apart from personality rights, this case also involves a question of
copyright. Brigitte has an author’s moral right over her diaries and,
thus, their publication by Jonathan without her consent constitutes a
criminal offence of usurpation punishable by up to three years’ impris-
onment (Arts. 177 and 179 Code of Authors Rights). This Code also pro-
vides for the seizing of the diaries which have already been published
(Art. 201) and compensation (Art. 203).
29
President of the Court of first instance Arnhem, 8 Aug. 1990, KG 1991, 14; Schuijt,
Losbladige Onrechtmatige Daad, Hoofdstuk VII (Deventer: 2000) no. 106.
Scotland
I. Operative rules
Brigitte has a claim for infringement of copyright and a remedy in dam-
ages or an account of profits in relation to what Jonathan will defend
as an innocent breach of copyright. An action in passing off will not
succeed unless Brigitte can establish a strong commercial (literary) or
economic connection with her name and/or business. She also has a
claim for breach of confidentiality and privacy.

Diaries are the incarnation of what the law of confidentiality and copy-
right are all about. Jonathan has published Brigitte’s diaries without her
permission. If he has adopted the form of the diaries and not merely
re-written the information contained therein, there is a clear breach of
copyright alongside considerations of breach of confidentiality, privacy
and passing off. Passing off is a remedy available in specific situations
where work is either ‘passed off’ as belonging to another or appropri-
ated and erroneously made to appear to be the work of another. From
the facts, this does not appear to be relevant in the immediate case. It
is conceivable that Brigitte has a right to all or a combination of these
remedies.
Under the Copyright, Patents and Design Act 1988, copyright subsists
in written works30 for seventy years post mortem auctoris.31 From the
facts of this case, we can presume that copyright still exists and that
there was no consent to publication, since this would be a complete
defence.32 Firstly, there is a rebuttable statutory presumption that the
publisher or person named on the publication is the copyright owner.33
This in itself does not transfer either the author’s copyright under
s. 11(1) of the 1988 Act or the moral rights in the works to the new
owner Jonathan.34 The diaries qualify for copyright under s. 153 of the
1988 Act. The right to be identified as the author under s. 77 continues
30
Ch. 48. Applicable in Scotland, see s. 157.
31
S. 12 Copyright and Patents Act 1988 as amended by Directive 93/98/EC on Duration
of Copyright and Rights in Performing, now implemented by SI 1995/3297.
32
Beverly-Smith, The Commercial Appropriation of Personality (Cambridge: 2002) 126;
Dubrulle v. Dubrulle French Can. School Ltd (2001) 8 CPR (fourth) 180.
33
S. 104(1)(a) Copyright, Patents and Design Act 1988.
34
The right to rely on moral rights alone under s. 77(1) only exists when the author
has first asserted his/her rights, see s. 78.
as long as copyright in the work subsists; the right to correct any false
attribution persists for twenty years after a person’s death.35
The publication of diaries without the author’s consent is a clear
breach of copyright under s 96. Remedies under s. 96(2) are described as
‘all such relief by way of damages, injunctions, accounts or otherwise
is available to the plaintiff as is available in respect of the infringe-
ment of any other property right’.
This provision is subject to the defence of innocent publication pro-
vided by s. 97. Under this rule, damages (but not other remedies) are
only available if it can be shown that the breach was not a conscious
one. Nevertheless, s. 97(2)(b) allows accounting for profit in cases where
breach is established. According to this provision, Jonathan may well
have a solid defence of innocent publication, and may only be liable to
account for any profits made and not under any further heads of dam-
age. This can only be established after proof. A defence of fair use is
not relevant here.36
An action under the law of passing off is more complex in the imme-
diate situation. Effectively, both Brigitte’s name and work have been
misappropriated and attributed to Jonathan. The delict of passing off
is a common law right to assertion of ownership and good will in a
business. Should Jonathan imply that he is the author or creator of
the publication, there may be at least an arguable case for passing off.
Nevertheless, passing off actions depend on damage or any likelihood
thereof being shown. The passing off action has inherent limitations
in this case due to a lack of commercial interest. Brigitte would have
to prove that her name and professional reputation were at stake and
that she has suffered economic loss as a result.37 Neither Scots law nor
English law has any authority which wholeheartedly supports the mis-
appropriation or use of an individual’s name that is not immediately
within a commercial context. From the facts of this case, we can only
presume that Brigitte herself is not commercially active in either this
or another compatible field of activity.38
The development of the law in both Canada and Australia in relation
to the tort of misappropriation of personality demonstrates a broader
35
S. 86 Copyright, Patents and Design Act 1988.
36
Rt Hon. P. Ashdown v. Telegraph Group Ltd [2001] EWCA Civ 1142.
37
Beverly-Smith, The Commercial Appropriation of Personality, 98.
38
See H. L. McQueen, ‘My tongue is mine’ain’ (2005) 68 Modern Law Review at 129.
approach to the misappropriation of names for commercial and non-

commercial purposes than the law in the UK.39
This leaves Brigitte with a choice of actions for both invasion of priv-
acy and breach of confidentiality. Diaries are confidential by their very
nature, so that an unauthorised publication by any third party (in this
case Jonathan) would appear prima facie to be a breach of confidence.
Privacy and confidentiality can coexist without their borders requir-
ing specific demarcation. Even though no particular confidential rela-
tionship existed between Jonathan and Brigitte, since the enactment
of the HRA, such a relationship is not or rather is no longer required
by the law in order to establish a breach of confidence.40 British courts
are reluctant to recognise a blanket approach to privacy, preferring
to decide a claim on the individual circumstances of each case. The
action for breach of confidentiality is admissible at the same time as
breach of privacy.41

The English Court of Appeal decision in Paddy Ashdown42 is of relevance
here, although the specific circumstances should be distinguished.
That case involved competing claims of breach of copyright by the
politician and the defences of public interest and fair use raised by the
press as defendants. The case is important for its method of balancing
copyright protection and confidentiality against freedom of expression
and public interest in reporting: there will be circumstances where
the public interest trumps copyright.43 Neither copyright nor confiden-
tiality confer an automatic right to enforcement or prevention of free
speech.
39
See Beverly-Smith, The Commercial Appropriation of Personality, 92–102.
40
See Douglas v. Hello! [2003] EWCA Civ 139; [2005] EWCA Civ 595: ‘a right of privacy
or equitable remedy for breach of confidence has been recognised, even in the
absence of any pre-existing confidential relationships, in … Venables v. MGN [2001]
Fam 430, A v. B plc [2002] 3 WLR 542l and in Campbell v. MGN [2003] 2 WLR 80’, per LJ
Rix at para. 5.
41
Campbell v. MGN Ltd: ‘The development of the law of confidentiality since … the Act
… has seen information described as “confidential” not where it has been confided
by one person to another but where it relates to an aspect of an individual’s private
life which he does not choose to make public. We consider that the unjustifiable
publication of such information would be better described as breach of privacy,
rather than breach of confidence’, per Lord Phillips at para. 70. Douglas v. Hello!: ‘The
judge dealt with breach of confidence and invasion of the right to privacy together’,
at para. 27.
42 43
See n. 36. Ibid. at para. 58.
Spain
I. Operative rules
Brigitte has a claim against Jonathan. It would not make a differ-
ence if Jonathan made some efforts to contact Brigitte before the
publication.

As long as a diary is, categorically, a person’s most private writing, its
publication must be considered an illegitimate interference with the
right to privacy. Diaries are protected as a part of the author’s privacy.
Therefore, according to Spanish Law, the Copyright Act is not applica-
ble to this case. The diaries were not written for commercial use, only
for private use.
According to Art. 7.3 LO 1/1982, irrespective of who owns the dia-
ries, unless there is a previous authorisation from the author it is pro-
vided in Art. 2.2 that ‘there will not be an intromission in the rights
protected when authorised by law or when the holder had given his
express consent’.
The fact that Jonathan has become the owner of the writings should
not interfere with Brigitte’s right to privacy, and in this respect, it is
irrelevant how much of an effort Jonathan made to contact Brigitte.
Switzerland
I. Operative rules
By publishing Brigitte’s diaries without her consent Jonathan has vio-
lated her rights as an author. Therefore, Brigitte is entitled to the com-
pensatory and injunctive remedies provided by the law. The solution
will be no different if Jonathan had made an effort to contact Brigitte
before publication of her diaries.

Brigitte’s diaries are protected by the Statute on Copyright (‘LDA’).44
A ‘work of art’ under Art. 2, para. 1 LDA is any creation of the mind,
literary or artistic, which has an individual character. More precisely,
creations of the mind are works which use language, whether literary,
scientific, or otherwise (Art. 2, para. 1 lit. a LDA).
44
Loi fédérale du 9 octobre 1992 sur le droit d’auteur et les droits voisins (LDA)
(RS 231.1).
Case law defi nes ‘literature’ broadly.45 However, the result of the
mind’s creation must materialise into something that is new and
which has an individual character. This individuality consists of the
fact that the work must carry the stamp of the author’s personality.
‘A low level of individuality’46 is sufficient to trigger the protection
of the law. Undoubtedly, Brigitte’s diaries constitute a literary work
within the meaning of Art. 2, para. 2 lit. a LDA . Even if Brigitte has
already died, her work is protected and remains so up to seventy
years after her death. Her heirs will therefore have the right to bring
a claim.
Authors have a series of prerogatives at their disposal, including the
exclusive right to decide how the work will be used (Art. 9, paras. 2 and
10 LDA). By publishing Brigitte’s diaries without her consent, Jonathan
has offered them to the public and put copies of them into circulation,
which constitutes a violation of Art. 10, para. 2, lit. a LDA.
Thus, Brigitte may request a declaratory judgment holding the
infringement unlawful (Art. 61 LDA) and ask the judge for an injunc-
tion against the further distribution of the diaries (Art. 62, para. 1,
lit. b LDA). She also has the right to demand publication of the judg-
ment (Art. 66 LDA). Finally, Art. 62 of the LDA provides for the com-
pensatory actions found in the Code of Obligations. This provision
should allow Brigitte to receive any profits that Jonathan earned from
the publication of the diaries. In addition, if details of her intimate
or private life were revealed to the public the infringement must be
considered serious, which will allow Brigitte to claim damages for
pain and suffering.
The result will not be different if Jonathan attempted to contact
Brigitte before the publication of the diaries.

In contrast to Case 5 in which a statesman contested the publication of
a biography about him, here we are dealing with a ‘private’ individual
who serves no official function. Thus, the defence that exists in the
public’s right to information may not be validly used here. In fact, only
Brigitte’s consent would effectively eliminate the unlawful nature of
the infringement.
45
Judgment of the District Court of the Unterrheintal, in SIC 2002, p. 589 c. II 3.
46
Ibid.; D. Barrelet and W. Egloff, Das neue Urheberrecht, Kommentar zum Bundesgesetz über
das Urheberrecht und verwandte Schutzrechte (Berne: 2000) n. 6 et seq. and Art. 2 LDA.
Comparative remarks
Diaries usually contain the most private and intimate information
about the writer’s person, his/her thoughts and feelings. In addition,
they may be regarded as an intellectual work or a piece of art. When
diaries are published without the writer’s consent, a conflict arises
between the writer’s interests in privacy and copyright on the one
hand and the interest of the owner of the manuscript and the public
on the other. In the present case, Jonathan’s ownership of Brigitte’s
diaries is beyond question. The core issue is what Brigitte can claim
from Jonathan for having neglected to ask for permission to publish
her diaries. Does it matter that Jonathan made an effort to find and
contact Brigitte before publication?
I. Foundations of liability: privacy, copyright and media law

In most of the legal systems considered, both privacy rights and copy-
right law are engaged in this case. An exception is made in Spain where
copyright law would only apply if Brigitte had written her diaries with
the intention to publish and commercially exploit them herself. Under
Spanish law, the remedies against the unauthorised publication of
documents written for purely private use are exclusively regulated by
privacy law, i.e. the 1982 Act on the civil protection of honour, privacy
and one’s image.
1. Privacy law
In all other private law regimes it is certain that Jonathan’s publication
of the diaries without Brigitte’s consent constitutes an unlawful viola-
tion of her privacy. From the facts of the case, no justification is given
based on an overriding public interest. Jonathan will be liable:
– in England, Scotland and Ireland for breach of confidence;
– in Belgium, France, Finland and Spain under the delict of intrusion
into one’s privacy;
– in Germany, Greece, Italy, the Netherlands and Portugal under the
delict of violation of a personality right;
– in Italy under data protection law also.
The legal consequences are the same as in Case 5.
2. Copyright law
In relation to the applicability of copyright law, a first question has
to be addressed: which requirements should a diary meet in order to
become a ‘work’ which is protected by copyright? Most legal systems,
at least in theory, require a certain degree of originality and some

intellectual or artistic requirements before considering a piece of writ-
ing a ‘work’. In practice, however, these requirements are dealt with
in the individual countries in a relatively strict manner. In Belgium,
France, Finland, Greece, Ireland, Portugal, Switzerland, England and
Scotland, ordinary private diaries also suffice for copyright. They can
only be published with the author’s consent, no matter who the owner
is. Jonathan will therefore be liable under copyright law.
On the contrary, Austria, Germany and Italy seem to still adhere to a
quite narrow definition of ‘work’ which excludes ordinary diaries with-
out intellectual or artistic requirements. In Germany, such writings
fall completely out of the scope of copyright law. Protection of these
documents against unauthorised publication can only be granted by
the law of privacy, i.e. a subdivision of the general personality right.
In Austria and Italy, the Copyright Acts provide for two different sets
of rules: those applicable to ‘works’ and those applicable to private docu-
ments which cannot be considered ‘works’, such as diaries, letters, notes,
memoirs and other personal writings. According to these Acts, the unau-
thorised publication of such documents is prohibited when it amounts
to an unjustified intrusion into the writer’s private sphere. Since no jus-
tifications are at hand, Jonathan will be liable under Austrian and Italian
copyright law – not for breach of copyright in the strict sense, but for the
unauthorised publication of private writings regulated in the Copyright
Acts. The remedies provided for by these Acts are substantively the same
in both cases of violation (see ‘Remedies’ below).
3. Media law
In Austria, Jonathan will also be liable for the unauthorised and unjus-
tified publication of Brigitte’s diaries under the 1981 Media Act. For the
consequences of this liability see III. below.
II. Due care

In most of the legal systems considered, Jonathan will be liable for
the unauthorised publication regardless of his possible efforts to locate
and contact Brigitte beforehand. The publication remains an inten-
tional violation of either Brigitte’s copyright or her privacy. These
attempts to locate her only seem to matter in Austria, Germany and
the Netherlands.
In the Netherlands, if Jonathan made an effort to locate Brigitte but
could not find her, the publication may be justified. However, if Brigitte
shows up afterwards and opposes the publication, Jonathan might be

under a duty to recall it. In this case, both Jonathan’s freedom to use
his property and his commercial interest in the publication will have
to be balanced against Brigitte’s personality rights.
In Austria, if Jonathan took due care in trying to locate Brigitte or
her heirs before publishing the diaries, he will not be liable under
copyright and privacy law, since this liability requires fault. Slight neg-
ligence will be sufficient in this regard. If Jonathan cannot even be
found to be slightly negligent, he will nevertheless remain responsible
under the Media Act (as the diary is considered a ‘medium of commu-
nication’), which provides for a strict liability regime.
In Germany, non-economic loss is only recoverable in case of serious
and grave violations of personality rights. If Jonathan, for example,
did not even try to locate Brigitte, this recklessness would constitute a
grave violation.
III. Remedies
In all of the legal systems considered, Brigitte has a claim for dam-
ages against Jonathan. In most countries except Spain and Germany,
both economic and non-economic loss is recoverable. Compensation
for economic loss is possible under copyright law and the general law
of delict (if there is a ‘work’ in the sense of copyright law). Damages
alternatively cover the concrete economic loss, a hypothetical licence
fee or skimming off Jonathan’s profits.
In Finland, under copyright law appropriate compensation for the
unauthorised use of the work shall be paid regardless of fault, while
compensation for pain and suffering and other kind of losses is only
possible in cases of intentional or negligent violations of copyright.
In Austria, England and Scotland, Brigitte will also be able to skim
off the profits made by Jonathan; however, in Germany this is only
permitted when the requirements of copyright law are met.
In relation to the non-monetary remedies, Brigitte will be able to
obtain an injunction in all countries except for Belgium and Finland,
for the same reasons outlined in Case 5. In the present case, however,
the Belgian and French solutions on this point diverge since in France
a claim for injunction is given on the basis of copyright law.
Additionally, in Switzerland, the claimant may seek a declaratory
judgment stating that the infringement was unlawful.
17 Case 14: Tape recordings of a
committee meeting
Case
During a municipal authority committee meeting which was open
to the public and concerned the widening of a public road, Maria, a
member of the public, secretly recorded the discussion. Maria was the
tenant of a house on the road in question and was, like most of her
neighbours, opposed to the widening project. At the end of the sitting,
committee members noticed that Maria had recorded the discussion
and they wanted her to hand over the tape. Maria refused. Do the com-
mittee members have any claim against Maria?
Discussions
Austria
I. Operative rules
The participants of the meeting can claim for abatement and
forbearance.

The right to one’s own spoken words is derived from § 16 ABGB and can
be invoked in relation to the values underlying different provisions of the
Austrian legal order.1 § 120 StGB (‘misuse of sound recorders or listening
devices’) can be considered, however it is too restricted on its own.2
1
OGH AnwBl 1993, 952 = JBl 1993, 338 = ÖJZ 1993/111 = RdA 1993, 143 = RdW 1993, 82
= SZ 65/134; see also OGH MR 2003, 92 and OLG Wien MR 2002, 27.
2
J. Aicher in P. Rummel, Kommentar zum ABGB I (3rd edn., Vienna: 2000) § 16 no. 22;
W. Posch in M. Schwimann, ABGB-Praxiskommentar I (3rd edn., Vienna: 2005) § 16
476
c a se 1 4: ta pe r ecor dings of a commi t t ee meet ing 477
The secret recording of a private conversation is unlawful. If a pub-

lic conversation is involved, in Posch’s opinion there could only be an
infringement of a personality right if there is an untrue, an abridged
or a manipulated quotation.3
The crucial point in this case is whether the secret recording of the
discussion at the committee meeting should be allowed considering
that there was public access to the meeting. According to the OGH,
the right to one’s own spoken words includes the speaker’s autonomy
to decide if his/her voice should be taped by a recording machine.4 In
this particular case, although the meeting was open to the public the
participants did not anticipate that it would be recorded.
The statement of the OGH, which maintained that there is a strong
interference with the right to the free development of one’s person-
ality if a participant in a conversation is afraid that his/her words
and the sound of his/her voice with all its characteristics and imper-
fections will be secretly recorded,5 should not just be limited to pri-
vate conversations. The participants of the meeting could not expect
that their conversation would be saved on a tape for posterity. In
a heated discussion it is always possible that somebody uses crude
and impolite expressions which might only express meaning at a
specific moment in the conversation and which are fleeting and tran-
sitory and might possibly be put into context during the ongoing
discussion.6 This argument is connected to the standards of Art. 10
ECHR.7
Therefore, recording the discussion was an infringement of the
speakers’ right to decide who they wanted to speak to8 because Maria
no. 35. § 120 StGB reads: ‘Subs. 1: A person who uses a sound recorder or a listening
device to inform himself or somebody else of a non-public comment of another
person, which was not addressed to him or to the other person, will be punished
by a term of imprisonment of up to 2 years or a fine of up to 360 instalments
(Tagessätze). Subs. 2: The same penalty applies to a person who allows a third
person access to a sound recording of a non-public comment without the consent
of the speaker, if it was not addressed to the third person, or who publishes such a
recording. Subs. 3: The wrongdoer can be punished only if there is an authorisation
of the injured person.’
3
He suggests therefore to use the principles elaborated by the German BGH (see
e.g. BGHZ 13, 334 and BGHZ 31, 308); W. Posch in M. Schwimann, Praxiskommentar
§ 16 no. 37.
4 5
OGH JBl 1993, 339. Ibid.
6 7
Cf. BGHZ 27, 287. See Case 11.
8
H. Hubmann, Das Persönlichkeitsrecht (2nd edn., Cologne/Graz: 1967) 313.
expanded the public without informing them first.9 Furthermore,

there is the danger of improper use.10
This point of view is supported by the law of civil procedure. Pursuant
to Art. 90, subs. 1 B-VG (Bundesverfassungsgesetz, Constitution) and § 171,
subs. 1 ZPO (Zivilprozessordnung, Code of Civil Procedure), court cases
have to be open to the public. However, television and radio recordings
of court proceedings are prohibited (§ 22 MedienG).11 This example dem-
onstrates that the law accepts different types of public spheres.
Though a weighing of interests could lead to a justification in the indi-
vidual case, such a justification should only be accepted in exceptional
circumstances12 since the protection of someone’s personal sphere is of
high importance and since a secret recording has the stigma of fraud
and insolence. Indeed, Maria cannot refer to the principle of freedom
of the press because she is not working for the media. Overall, one
could be of the opinion that in this particular case there is an infringe-
ment of the right to one’s own spoken words.
As a consequence, the participants of the meeting can claim for for-
bearance, the publication of the judgment on the forbearance (§ 85
UrhG by analogy),13 abatement and compensation.
According to the general principle of §§ 1323, 1324 ABGB, compen-
sation for non-economic harm is only granted if Maria acted in gross
negligence.14 As this is a borderline case, this question remains open.15
However, the amount of the award for non-economic loss, if there is to
be any at all, should be very low. Furthermore, considering the facts of
our case economic loss is hardly conceivable. Thus, the most relevant
claims would be for abatement and possibly also for forbearance.
Belgium
I. Operative rules
The members of the committee have no cause of action against Maria.
9
OGH JBl 1993, 339.
10
H. Hubmann, Persönlichkeitsrecht at 312. As Maria is an opponent of the project, this
danger is increased.
11
See W. Rechberger and D. -A. Simotta, Grundriss des östereichischen Zivilprozessrechts
(6th edn., Vienna: 2003) nos. 281 et seq.
12
H. Hubmann, Persönlichkeitsrecht at 314.
13
See Case 11. However, in the present case this might not be an appropriate
instrument.
14
See again Case 11.
15
It could be discussed if it is enough to meet this standard that she consciously
recorded the talks.

Art. 8, § 1, para. 2 of the Copyright Act allows the unrestricted repro-
duction and publication of speeches delivered at the meetings of repre-
sentative assemblies. The members of the committee can only prevent
publication as a separate work.16
England
I. Operative rules
The committee members do not have a claim against Maria.

1. Defamation
As Maria has only taped what has been said there can be no question
of her defaming any of the speakers by merely recording the discus-
sion. Of course, if anything defamatory was uttered by the speakers
this might give rise to separate legal issues which we need not go into
here.
As everything was expressed in public, the information can hardly be
said to be confidential.
Finland
I. Operative rules
It is not possible to claim against Maria.

The discussion during the committee meeting was open to the public
and therefore Maria was allowed to attend the meeting. According to
Ch. 24, s. 5 of the Finnish Penal Code, the listening to or the record-
ing of persons speaking is prohibited if the listening or the recording
is a violation of privacy in the home, or if the listening or recording
is done secretly and the discussion was not intended to be heard by
any outsider and under such circumstances the speaker did not expect
that an outsider would hear the speech. However, as Maria attended a
public meeting, her recording was lawful and no claim can be made
against her.
16
F. Van Isacker, Kritische synthese van het Belgisch auteursrecht (Antwerp: 1985) 93 et seq.;
J. Corbet, Auteursrecht, in APR (Brussels: 1991) 79–80.
In Finnish legal doctrine, this same question has rarely been dis-
cussed. The main principle is mentioned: it is lawful to record in
public places.17 There is a relevant Supreme Court case18 where a per-
son who was questioned by two policemen had videotaped his inter-
rogation. The Supreme Court found that the recording was not illegal
because the person had not recorded anything else other than what
he himself had been able to observe during the interrogation. The
legal principle of this case can be applied mutatis mutandis to mere
audio recording.
France
I. Operative rules
The members of the committee do not have a cause of action against
Maria.

The protection that French law offers the right of privacy undeniably
covers words spoken in private places and/or those words which have
a confidential character. Art. 226–1 of the Penal Code punishes ‘any
wilful violation of the intimacy of the private life of other persons by
resorting to any means of … intercepting, recording or transmitting
words uttered in confidential or private circumstances, without the
consent of their speaker (…)’. The same holds true in private law – con-
versations are protected against third parties who listen to or record
the words of another person without his/her knowledge. However, case
law on this subject is scarce.19
Nevertheless, for this protection to apply it is necessary that the con-
versation be confidential or at least held in private. In the instant case,
the place (in public) and the subject, which is a matter of public inter-
est, means that it is less likely that there is an injury to the speakers’
right of privacy. The members of the committee cannot successfully
argue that Maria deceitfully gained access to the council meeting or
that she has violated any obligation of confidentiality, inasmuch as the
meeting of the municipal council was held in public. As a consequence,
17
Vuortama, Journalisti 15/1999, www.journalistiliitto.fi/journalisti/arkisto/1599/ala/
alakerta.htm (9 Jun. 2003) p. 45.
18
Supreme Court case 1990:36.
19
TGI Paris 11 Jul. 1977, D. 1977, 700: the act of recording another’s voice ‘abusively
during a private telephone conversation without the consent of the interested
person (…) amounts to a violation of privacy’.
Maria cannot be held to be at fault. The members of the committee

have no claim against her.
Germany
I. Operative rules
The committee members probably do not have a claim against Maria
although the matter is disputed.

The situation in this particular case would be different if a private or
non-public conversation was recorded, since then a Criminal Code pro-
vision (§ 201) would be applicable, which prohibits the unauthorised
recording of non-public speech. However, even in those cases there is
considerable debate regarding certain exceptions in which the secret
recording of non-public speech should be allowed.20
As stated in the case description, the committee meeting was ‘open
to the public’ and thus any speeches which were delivered there can
only be described as public speeches which do not deserve special
protection. Nevertheless, in 1979, the OLG Köln decided on a case in
which a public committee meeting was secretly recorded and held
that the affected speakers had a claim to have the tapes handed over
based on their general personality right.21 The court reasoned that
the recording was not justified by the public interest in controlling
political or governmental activity since taking notes would have
been sufficient.22 However, the Federal Court and Constitutional
Court cases cited in that decision only relate to speech in private
situations.23 Nevertheless, the 1979 decision serves as a basis for some
scholars to argue that even public speech may not be recorded with-
out authorisation.24
20
See Ehmann, in Erman, BGB (12th edn., Münster/Cologne: 2008) appendix to § 12
no. 131 et seq.
21
OLG Köln, NJW 1979, 661; see also BVerwG 85, 283.
22
Ibid. at 662.
23
BGHZ 27, 284; BVerfGE 34, 238. See also BVerfG NJW 2002, 3619, 3621: the Federal
Constitutional Court states that the Constitution protects the right to decide
whether one’s spoken words are taped or not. However, this case deals with
listening to telephone conversations by loudspeaker without the knowledge of
the person on the other end of the line – a situation that is hard to compare with
speaking at a public meeting.
24
K. Larenz and C. -W. Canaris, Lehrbuch des Schuldrechts II/2 (13th edn., Munich: 1994)
505; Hager in Staudinger, BGB (13th edn., Munich: 1999) § 823 no. C 161.
In 1986, the OLG Celle held that tape recordings by guests at a city
council meeting are allowed, at least if these guests mention the fact
that they are recording beforehand.25 This Court argued that the con-
stitutional right to the free acquisition of information of both the press
and citizens (Art. 5 Grundgesetz) protects this activity. The same has
been said by a prominent author in constitutional law.26 This view
seems more convincing since the general personality right should
not be used to restrict public discussion on matters of public interest
such as the road widening in the instant case. Therefore, the recording
of public meetings is lawful as long as it does not interfere with the
orderly holding of the meeting (with regard to noise, etc.).
Accordingly, there is no claim against Maria if she had announced
beforehand that she was recording the meeting. The question
whether the mere secrecy of her recording makes it unlawful remains
unanswered.

Contrary to the 1979 court decision described above, Maria’s conduct
should not be regarded as unlawful. The danger that the speakers
might have said things which they would not have said if they had
known about the recording is not limited to a recording. In a steno-
graphic transcript which Maria could certainly have used, the situa-
tion would be the same. Furthermore, the main argument advanced by
the 1979 decision is rather odd: The recording is said to possibly distort
or change the true meaning of what the speaker said. One would think
that this possible distortion would even be magnified if one takes notes
instead of recording every word.27 Whoever speaks in a public meeting
about local politics must know that his/her words are taken seriously
and can be used later in the political discussion. Therefore, in this par-
ticular case, the citizen’s interest in gathering information should out-
weigh the personality interests of the speakers.
Greece
I. Operative rules
The committee members do not have a claim against Maria for the
recording of the public session.
25
OLG Celle, AfP 1986, 57.
26
C. Degenhart in Bonner Kommentar (Heidelberg: 1991) Art. 5 GG no. 349.
27
Stober, ‘Zur Tonbandaufzeichnung in öffentlichen Gemeinderatssitzungen’ (1976)
Deutsche Verwaltungsblatt 371.

As an activity of public administrative bodies, the meeting of the
municipal authority is open to the public. Ensuring access to the pub-
lic serves the transparency of administrative actions and the right of
citizens to be informed about these actions.
Ireland
I. Operative rules
The committee members would not have an action against Maria.

The meeting was a public meeting and as such any communications
made during the meeting could not be considered to be confidential.
Italy
I. Operative rules
It is likely that the committee members cannot force Maria to hand
over the tape.

It is not easy to answer this particular case since no specific precedent
seems to exist in Italian case law.28 However, it can be argued that the
committee members cannot force Maria to hand over the tape; they
can only exercise the rights granted by the Data Protection Code under
proper conditions.
First of all, it should be determined whether the DPC applies. The
answer is in principle affirmative. The voice qualifies as ‘personal
data’ according to Art. 4(1) b DPC.29 One can assume that in this case
committee members can be easily identified by their participation in
the discussion. Secondly, the recording of sound and its storage can be
qualified as ‘processing’ of personal data (Art. 4(1) a DPC). One could
argue that Maria is only processing this information in the course
of a purely personal activity. However, even ‘personal processing’ is
subject to the data privacy regulation if the information is intended
28
By contrast, many cases can be found relating to the issue of recording of a
private communication made by one of the parties with the aim of acquiring
evidence to be used in the event of litigation (see e.g. Garante protezione dati 12
Jul. 2000, doc. Web no. 1113769; Cass. 19 Feb. 1981 no. 5934, Cass. pen. 1982, 1529).
29
Garante protezione dati, 26 Nov. 1999, Boll. no. 6, 1998, 32.
to be systematically communicated or publicly disseminated (Art.

5(3) DPC).30 It could be the case that Maria is recording the discussion
because she is a tenant and she is opposing the planned widening of
the road. Hence, one should ascertain whether she intends to use the
tape simply in order to analyse the political issues on the table or, for
instance, to publish the dialogue on the internet.
Even if the DPC is applicable, it seems that the previous permission
of the person who is being taped is not required in order to lawfully
record the discussion. Indeed, the meeting was open to the public and
concerned matters of public interest (ex Art. 24(1) c DPC). Personal
data has to be processed according to good faith and the committee
members have to be previously informed of the recording;31 however,
this duty does not exist if the information is collected with the aim
of acquiring evidence to be used in litigation (Art. 15(3) DPC). In any
event, the rights recognised by Art. 7 DPC have to be respected. The
committee members could claim for the alteration of incorrect data (for
instance, if the speaker’s voice is attributed to another person); the eras-
ure of unnecessary information according to the principle of finality
(for example, the parts of the discussion not strictly related to political
matters); the integration of the data. The right to object on compelling
legitimate grounds (Art. 7(4)(a)) could be particularly relevant for this
case. However, the balancing of the two positions is required and it is
likely that the principle of transparency of public procedures32 will pre-
vail over the opposing principle of data protection. Such a conclusion is
also supported by the regulation on access to and publication of courts
decisions and proceedings (Art. 51 et seq. DPC).
The Netherlands
I. Operative rules
The committee does not have a claim.

Dutch law recognises the right of inviolability of the home (see Case 8)
and the right of inviolability of a room intended for public service (that
30
See the report by the Data Protection Authority: Garante protezione dati, La privacy
nelle pubbliche amministrazioni – Relazione 2003 – 28 Apr. 2004.
31
This was expressly stated by the Data Protection Authority in its report (see n. 30
above), in a case quite similar to our question.
32
See in general Arts. 22 et seq. Legge 241/1990; and more specifically Art. 10 Decreto
legge 18 Aug. 2000 no. 267, Testo unico delle leggi sull’ordinamento degli enti locali.
is a room which is used by public/law bodies such as rooms in state

universities, courtrooms, rooms in the town hall, etc.). These rights
protect against unlawful entry to a dwelling (Arts. 138 and 139 Sr). The
provision that one is not allowed to intentionally intercept or record
a conversation being held in a house or in a place intended for public
service (Art. 139a Sr) or at another place (‘anywhere except in a dwell-
ing, an enclosed room or premises’) (Art. 139b Sr) without having been
authorised to do so by a participant in such a conversation (Art. 139a Sr
and Art. 139b Sr) is derived from this penal provision.
In this case, the meeting was open to the public. Maria did not unlaw-
fully intrude into the tranquility of someone’s house. She secretly
recorded a discussion in which she participated herself. None of the
abovementioned penal provisions apply.
Whether Maria breached a non-statutory duty towards the committee
needs to be assessed. It is unclear which interests of the committee
could be infringed by the recording of the public discussion. The
committee does not have the capacity to ask Maria to hand over the
tape on behalf of the other people who came to the meeting. Moreover,
it is unclear whether the tape contains information that is of a pri-
vate nature. Under these circumstances, there is no indication that the
recording was injurious to the committee. The committee does not
have a claim.
Portugal
I. Operative rules
The members of the committee do not have any claim against Maria.

There is no legal rule or case law which directly protects the right to
voice. However, it is possible to use analogy in order to protect voice in
the same way as the right to image is protected (Art. 10 (1) and (2), and
Art. 79 CC). In fact, one can claim the reasonability of not allowing some-
one’s voice to be played, reproduced or commercialised without his or
her consent. Nevertheless, we cannot forget two additional remarks:
– Art. 79 CC only protects the right to image when it is exposed, repro-
duced or commercialised, not when it is merely taken (see Case 7 for
further developments);
– drawing an analogy with the exceptions also established by Art. 79,
one should also conclude that consent can be overridden when the
recording of the voice is done within a public place, or facts of public
interest or facts which have taken place publicly are recorded.
As the meeting was public, attended by the public and of public inter-
est, any possible need for consent would easily be overridden.
Maria’s conduct is lawful. Therefore, she may keep the tape and the
committee members have no grounds to claim against her.
Scotland
I. Operative rules
The committee members do not have a claim against Maria.

Proceedings at municipal public meetings which have been called to
discuss a public planning matter are regulated in Scots law under the
provisions of the Town and Country Planning (Scotland) Act 1997.33
Such meetings are, by their very nature, designed to give the public
an opportunity to express opinions, to make written statements and
to appear as witnesses. Statutory regulation is complex, and details of
administrative rules are governed by departmental orders.34 Provisions
exist which are similar to those applicable in England:35 a register of
participants according to specific categories, along with outline state-
ments of members of the panel, must be made available to members
of the public. Since 2000, the UK has a Freedom of Information Act
the Scottish counterpart of which enables citizens to request access
to certain public information.36 In this particular case, the meeting is
unlikely to attract more than qualified privilege.37 The type of body to
which the qualified privilege attaches itself is governed by particular
statutes.38 Attending and recording the meeting would then be incon-
sistent, particularly if those recordings are published.
Scots law, like English law, regards the unauthorised recording of legal
proceedings as contempt of court,39 the distinction drawn in Attorney
33
Ch 8. See further Town and Country Planning (Consequential Provisions) (Scotland)
Act 1997, Ch. 11. For England, see Planning Inquiries (Attendance of Public) Act
1982, Ch. 21. The Local Government (Access to Information Act) 1985 inserts public
access provisions into the Local Government (Scotland) Act 1973.
34
Scottish Office Circulars; see J. Rowan-Robinson, Scottish Planning Law and Procedure
(Edinburgh: 2001) para. 20.97.
35
See Department of Environment Code.
36
Ch. 36 (Eng); Freedom of Information (Scotland) Act 2002, entered into force on
1 Jan. 2005.
37
Sch. 1, Part II Defamation Act 1996.
38
Local Government (Scotland) Act 1994, Public Bodies (Admission to Meetings) Act
1960.
39
Contempt of Court Act 1981, Ch. 49, applicable in both Scotland and England.
General v. BBC40 clearly separating judicial proceedings from adminis-

trative proceedings. The planning committee meets in an administra-
tive capacity, not in a judicial capacity, so contempt is not an issue here.
Nevertheless, such meetings are subject to rules of procedure, which
include the possibility of excluding the press and public where matters
are confidential (this itself is open to judicial review). The meeting has
not excluded the public, but information which is imparted during the
proceedings is prima facie confidential, since the proceedings are argu-
ably subject to at least qualified privilege. However, the categories of
privilege are not easy to define.41
The recording is clearly unauthorised. Copyright may well exist in
relation to the recording of a conversation, although the recording
of a public meeting held under statutory authority is not an infringe-
ment of copyright per se unless it is subsequently published. In assess-
ing whether there is a prima facie breach of confidence, a balance
needs to be made between public access to information and the need
for maintaining confidentiality in so far as it serves the purposes
of good administration. A correct and fair newspaper report on the
meeting, as opposed to a recording of the proceedings, would nor-
mally not be prohibited. In the past, Scottish courts have made use
of Art. 6(1) ECHR in planning cases where tribunals have functioned
in an unacceptable manner.42 The Scottish courts are also willing to
determine those aspects of planning proposals and decisions that
belong to the public domain.43 The information recorded by Maria
relates to public proceedings, so that the crux of the matter relates to
the confidentiality of the situation and the exact position regarding
the information presented at the hearing, subject to the foregoing
rules on privilege.
The overriding principle of freedom of expression contained in
s. 12 HRA requires the court under s. 12(4)(a), in considering whether to
grant any relief, to examine:
(a) the extent to which:

(i) the material has, or is about to, become available to the
public; or
40
[1980] 3 ER 161 (HL).
41
Trapp v. Mackie 1979 SLT 126 per Lord Fraser at 134: ‘provided the tribunal is one
recognised by law, there is no single element the presence or absence of which will
be conclusive in showing whether it has attributes similar to those of a court of law
to create absolute privilege’.
42
Lafarge Redland Aggregates, Petitioners 2000 SLT 1361.
43
Cumming v. Sec. of State for Scotland 1993 SLT 228.
(ii) it is, or would be, in the public interest for the material to be
published;
(b) the existence of any privacy code.
Where a meeting is non-adversarial and witnesses are not being called,

evidence and statements require less legal protection. Breach of confi-
dentiality is arguable where evidence is made causing the proceedings
to fall within a privileged category. Arguments would need to be put to
a court establishing that this is the case.
Spain
I. Operative rules
The committee does not have a claim against Maria.

Art. 7.2 of LO 1/1982 only prohibits recording which aims to obtain
information about another person’s private life.44
The meeting was open to the public, the information was of public
interest and there was no specific provision prohibiting the recording
of the discussion. Thus, in this case, there would be no action against
Maria.

We have not found any similar cases in Spain. However, decisions on
cases relating to the broadcasting of recorded private conversations,
such as the STS, 14 May 2001,45 reiterate that only the recording of con-
versations relating to private life is prohibited.
Switzerland
I. Operative rules
The committee members have no legal recourse to force Maria to hand
over the recording.

The protection afforded by Art. 28 CC generally only covers information
related to private or intimate life. This information is not supposed to
44
‘The following will be considered an illegitimate interference with the right
to honour, privacy and own image: … (2) to use any equipment to know about the
private life of people, their statements or private letters not addressed to who is
using this equipment, as well as the recording, reproducing or registering thereof.’
45
RJ 6494.
be known by a large part of the general public, in contrast with infor-

mation related to public life.
In this case, the meeting was open to the general population and its
subject was in the public interest. As a result, the information released
during the meeting must be considered part of the public domain.
According to case law such information may not only be known by
anyone, but may also be released without authorisation.46 Thus, Art. 28
CC may not be invoked. The same holds true for recorded comments
made by any other participants during the course of the meeting.
The result might have been different if a private association had held
the meeting. In fact, members’ activities that are not public are consid-
ered part of their private spheres.47

Recording a private conversation without the consent of the par-
ticipants constitutes an offence according to Art. 173ter of the Swiss
Criminal Code. Even a conversation held in a large assembly is consid-
ered private if the organisers have taken special measures to prevent
third parties attending. Hence, it is the context in which the conver-
sation takes place that matters. In the case at hand, the committee
meeting was open to the public. Therefore, it is a public conversation
and recording it is neither an infringement of personality rights nor an
offence in criminal law.
Comparative remarks
This case deals with a confl ict between a special personality interest,
the ‘right to one’s own spoken word’, and the freedom of informa-
tion in matters of public interest. The core question here is whether
and to what extent European private laws protect a person’s inter-
est in deciding about the recording and the use of his or her public
speech. In the present case, speeches are delivered in a committee
meeting open to the public, on a topic which is in the public inter-
est. Maria secretly recorded the speeches. These circumstances may
be decisive in order to question the lawfulness of her conduct. The
committee members might have a legitimate interest in knowing in
advance whether or not their speeches are recorded. Indeed, people
usually speak less freely if they know that each single word they say
46 47
ATF/BGE 97 II 97 c. 3, JdT 1972 I 242. Ibid.
is being recorded and possibly may be reproduced at any time before

an audience in the future.

In the majority of the legal systems considered, the committee mem-
bers will not have any claim against Maria since the meeting was
open to the public. Anyone could hear the speeches, and no private
information was at stake. A ‘right to one’s own spoken word’, or a cor-
respondent personality interest, would only enjoy protection in the
context of a private or confidential speech, which may only include
the meetings of administrative bodies when these are not open to
the public.
In some countries, such as Belgium, the unrestricted right to repro-
duce and publish speeches delivered in meetings of representative
assemblies is granted by statute. In other countries such as England,
France, Finland, Greece, Ireland, the Netherlands, Portugal, Spain and
Switzerland, the lawfulness of Maria’s recording emerges a contrario,
as the requirements of privacy and confidentiality are not met in the
case at hand.
II. Possible claims of the committee members in the

individual countries
In Austria, Germany, Italy and Scotland the committee members could
possibly have a claim against Maria. In this regard, three different
models can be outlined:
– In Austria and Germany, damages and an injunction would be
granted on the basis of the general law of delict applicable where the
violation of personality rights occurs (see Cases 1 and 5). Austrian and
German courts and scholars have acknowledged the ‘right to one’s
own spoken word’ as a personality right under § 823(1) BGB and § 16
ABG. This right includes the power to decide whether or not one’s
own voice may be recorded. However, it is unclear to what extent this
right is touched upon in cases of speeches open to the public.
– In Italy, Maria could not be ordered to hand over the tape; however
an injunction and other specific committee member claims (but
not damages) could arise from data protection law. For example, the
committee members have a right to access the recordings of their
speeches, they can request the erasure of unnecessary information,
the modification of incorrect data, the integration of incomplete
data, and on justified grounds they can also oppose the data
processing as a whole.
– In Scotland, the equitable doctrine of breach of confidence applies

(see Case 5). A balance needs to be made between the public access
to information and the need to maintain confidentiality in so far as
it serves the purposes of good administration. In this balancing, the
public interest would probably prevail.
18 Case 15: ‘Light cigarettes reduce
the risk of cancer’
Case
In an advertisement for ‘light’ cigarettes, Dr Smith was quoted as say-
ing: ‘Light cigarettes reduce the risk of cancer by up to 50%.’ The doc-
tor’s opinion was authentic; he had uttered these words at a scientific
conference. But Dr Smith had always been a fierce opponent of smok-
ing in general. Does the doctor have any claim against the tobacco
company?
Discussions
Austria
I. Operative rules
Dr Smith can claim damages for economic and, in the case of gross
negligence or intent, non-economic loss.

According to prevailing opinion, mentioning someone’s name in a
commercial is not an arrogation of the name under § 43 ABGB (protec-
tion of the name)1 because the producer of the commercial actually
intended the product to be associated with this particular person and
so the name is used as a mark of that person in a correct manner.2
1
§ 43 ABGB states: ‘If the right of any person to use his name is contested, or if any
person is harmed by the unauthorised use of his name (assumed name), he may
proceed to enjoin such interference and, in case of fault, to collect damages’. OGH
ÖBl 1998, 298; OLG Wien, MR 1986/4, 19; J. Aicher in P. Rummel, Kommentar zum
ABGB I (3rd edn., Vienna: 2000) § 43 no. 10; for Germany see BGHZ 30, 10.
2
OLG Wien MR 1986/4, 19; H. Koziol, Österreichisches Haftpflichtrecht II (2nd edn.,
Vienna: 1984) 10.
492
c a se 15: ‘ligh t ciga r et t es r educe t he r isk of c a ncer’ 493
However, another personality right, derived from § 16 together with

§ 43 and § 1330 ABGB, called the ‘right to not be mentioned by name’
(Recht auf Namensanonymität),3 is applicable in such a constellation.
By stating a person’s name in a commercial, the audience could be
under the impression that the name has been made available to the
concerned company for such purposes. The right to decide if the name
of a person should be used in a commercial has to be strictly reserved
to that particular person.4
Moreover, in our case, the product could be classified as offensive
due to the fact that many people hold cigarettes – as a carcinogenic
product – in low regard. To make matters worse, Dr Smith is a fierce
opponent of smoking. The commercial objectively caused the wrong
impression that he allowed his name and his statement to be used
in return for remuneration. As a consequence, his reputation was
injured. On the one hand, his chance to make any future commer-
cials was affected, and on the other hand his public reputation and
his reputation amongst scientific colleagues was affected.5
§ 1330, subs. 2 ABGB, which contains a specific provision to protect
one’s ‘economic reputation’6 (reflected in one’s creditworthiness, earn-
ings and advancement in profession), is not applicable, given that this
regulation explicitly requires a fallacious infringement.7
Moreover, the use of the statement infringes the right to one’s own
spoken words. Although the statement was made in public, protection
is granted because the statement was modified and taken out of its
context.8
In connection with unauthorised commercials, a person’s degree of
fame has to be considered as ‘property’ under § 1041 ABGB.9 Thus, Dr
Smith can make a claim under the law of unjust enrichment.10 The
3
J. Aicher in P. Rummel, Kommentar § 16 no. 23; H. Koziol and A. Warzilek, ‘Austrian
Country Report’ nos. 40 et seq. with further ref. in H. Koziol and A. Warzilek, The
Protection of Personality Rights against Invasions by Mass Media (New York/Vienna: 2005).
4
OLG Wien MR 1986/4, 19; see also Cases 10 and 11.
5 6
Ibid. at 20. See Case 1.
7
According to this provision, only pecuniary damages are compensated. See Case 1;
furthermore M. Hinteregger, ‘Der Schutz der Privatsphäre durch das österreichische
Schadenersatzrecht – de lege lata et de lege ferenda’ in Bundesministerium für Justiz
(ed.), Aktuelle Entwicklungen im Schadenersatzrecht (Vienna: 2002) 168.
8
See Case 14.
9
OGH ÖBl 1991, 40; MR 1995, 109 = ÖBl 1995, 284; ÖBl 1998, 300; see also
Cases 10 and 11.
10
If Dr Smith was not famous, the OGH would not grant this claim; see Cases 10,
11 and 13.
cigarette company received financial benefit by using Dr Smith’s name,

since they saved money by not paying a licence fee.
It is not possible that Dr Smith could alternatively ask for this hypo-
thetical licence fee as pecuniary loss under the law of torts (§ 1295
et seq. ABGB).11 In contrast, other pecuniary losses (e.g. loss of income as
a result of the fact that his clients do not trust him any longer) could
definitely be substituted under §§ 1295 et seq. ABGB, the general provi-
sions of tort law.12
If the tortfeasor acted with gross negligence, Dr Smith could possi-
bly ask for compensation of non-pecuniary harm according to §§ 1323,
1324.13

In contrast to the German BGH,14 for the Austrian courts15 it is decisive
whether the audience is under the wrong impression that the famous
person concerned made his/her name available for the commercial (on
receipt of payment). The more generous German approach should be
favoured.
Belgium
I. Operative rules
Dr Smith can claim for damages and injunction.

Arts. 21 and 22 of the Copyright Act provide for the right to quote
(scientific) works of literature.16 However, this right only applies to quo-
tations which have exploratory purposes or those for the purpose of
criticism or public debate, education or scientific research. Other quo-
tations require the author’s consent.
This protection applies to spoken words. Art. 8 of the Copyright Act
defines a work of literature – which includes scientific works – as, inter
11
See Cases 10 and 11.
12
In respect of personality infringements it is usually very difficult for the claimant
to prove such loss.
13
See Cases 11, 14.
14
BGHZ 30, 13. For the BGH it is enough that there are ‘instinctive associations of
ideas between the involved person and the product’.
15
OGH ÖBl 1998, 299 et seq.; OLG Wien MR 1986/4, 20.
16
D. Voorhoof, ‘Letterkundige werken. Wetenschappelijke werken. Fotokopie.
Leenrecht’ in F. Gotzen (ed.), Belgisch auteursrecht van oud naar nieuw – Le renouveau du
droit d’auteur en Belgique (Brussels: 1996) 153.
alia, verbal or spoken expressions of thought, lessons, lectures, speeches

and sermons. The free reproduction of speeches in public assemblies
does not apply to lectures or conferences.
In addition, the name (and fame) of a scientist cannot be used for
commercial purposes without his/her consent. The President of the
Antwerp Civil Court ruled in a similar fashion in a case involving a
Belgian minister. An advertisement (mis)used one of that minister’s
policy documents, referred to her by name and included a photo.17
Finally, the doctor in this case can refer to his moral right not to be
identified with a commercial product.
For all these reasons, he can seek an injunction and sue for damages
for non-economic loss.
England
I. Operative rules
It is possible that Dr Smith has a claim in defamation against the
tobacco company.

True words may still be defamatory if placed in a context where they
lower the opinion of the claimant in the minds of right-thinking people
generally. In order to do this it will have to be shown that the claimant
was a fierce opponent of the tobacco industry and the impression given
by the statement was that he had changed his opinion or was in some
way endorsing light cigarettes.18
Finland
I. Operative rules
Dr Smith can claim for an injunction at the Market Court and probably
for damages at a local court.

Opinion in legal doctrine is that the individual has a right to decide
whether he/she is cited in an advertisement or not.19 As the tobacco
17
Civil court Antwerp (President), 22 May 2001, AM 2002, 170.
18
Tolley v. J.S. Fry & Sons Ltd [1931] AC 333.
19
Kemppinen, ‘Henkilön ja henkilön kuvan käyttö mainonnassa ja
tiedotusvälineissä’, in Tommila (ed.), Tekijänoikeuskysymykset markkinoinnissa
(Loimaa: 1986) 80–1.
company has not asked Dr Smith for permission to use this statement,
he has the possibility to request an injunction. There is no possibility
for a private person to ask for an injunction at the Market Court, only a
local court can grant an injunction to a private person. If Dr Smith can
be considered as a person acting within his business capacity, he can
ask for an injunction at the Market Court.
The possibility of obtaining damages depends on whether the spe-
cial grounds as stated in Ch. 5, s. 1 of the Finnish Tort Liability Act
exist: the prerequisite for damages – when the act causing pure eco-
nomic loss is not a crime – is that there are especially weighty reasons
for compensation. As was stated in Case 7, it is unclear what constitutes
an especially weighty reason.
Furthermore, the quotation can constitute a violation of Dr Smith’s
honour. In that situation, the case will be judged as in Case 1.
France
I. Operative rules
Dr Smith can bring a cause of action against the tobacco company
on the basis of the general rules of tort liability and will probably be
granted damages in reparation of non-economic loss. It is not certain
on the other hand whether or not he will be able to obtain an injunc-
tion against the advertisement.

Quoting the words that Dr Smith stated during a scientific conference
in the advertisement for the ‘light’ cigarettes cannot be seen as an
infringement of his right of privacy. The citation faithfully repeats the
exact statement made by Dr Smith. Thus, he cannot argue that his
statements as such were somehow twisted or distorted.
However, Dr Smith can blame the tobacco company for linking his
statements to the advertisement against his will, i.e. not only for using
his name and scientific reputation for commercial purposes, but also
for altering his personality in the eyes of the public by taking his state-
ments out of context. Dr Smith cannot base his action on the right to
his own name in so far as the commercial use of his name alone is not
susceptible of injuring his personality, having regard to the fact that
his name is a common one which excludes all risk of confusion.
French private law does not recognise a right of protection of repu-
tation nor a general right of personality. Thus, Dr Smith’s action can
only be based on the principles of tort law, i.e. on Art. 1382 Civil Code.20
However, the applicability of this provision requires an act which can
be characterised as a ‘fault’ and which causes harm. In relation to
fault, it is probable that the French courts will consider that this is
constituted by the distortion of Dr Smith’s personality by the cigarette
manufacturer. In relation to harm, it is even more important that Dr
Smith is a fierce opponent of smoking in general. Thus, it is likely that
the French courts will award damages to Dr Smith to compensate his
non-economic loss. On the other hand, it is not certain whether Dr
Smith can obtain an injunction against the broadcasting of the adver-
tisement since French judges often consider that damages are suffi-
cient in such cases.
Germany
I. Operative rules
Dr Smith can claim an injunction and damages including compensa-
tion for non-economic loss.

The right of identity is not merely infringed by the distortion of the truth
but also by the distortion of the context in which a true statement has
been expressed.21 A distortion of truth will result in a violation of the
right to identity if an ordinary person sees or hears the advertisement
and gets the impression that Dr Smith is a supporter of ‘light cigarettes’.
The citation cannot be legitimated by freedom of expression (Art. 5(1)
GG). In principle, companies may possess this basic right (cf. Art. 19(3)
GG), but the use of personal attributes for commercial purposes is not
legitimated by Art. 5(1) GG in cases where the advertisement is not
related to a service or product made or willingly distributed by the per-
son whose attributes are being used.22 Therefore, citations taken from a
conference statement may be used to commercialise a book which the
person has written. If, as in this case, the cited person has no link to the
product, the misleading combination of both the personal features and
the product gives rise to an exclusion of the press privilege. Therefore,
20
Mestre, ‘La protection, indépendante du droit de réponse, des personnes physiques
et des personnes morales contre l’altération de leur personnalité aux yeux du
public’ (1974) JCP I, 2623.
21
BGH ZUM-RD 2008, 117.
22
Cf. Case 10.
Dr Smith can claim an injunction against the further publication of

the advertisement. As the use of his personal attributes is intentional
because there was clear knowledge about the lack of consent, and as
this gravely affects his professional position, a mere correction will not
be able to repair the damage which has been done. Therefore, courts
would also grant monetary compensation. The fear of deterring free
expression does not exist with respect to commercial speech.
Greece
I. Operative rules
Dr Smith can sue the tobacco company for damages and an
injunction.

In this case, the statement is used (a) without the consent of the doctor,
(b) under such circumstances that one may presume that he is a sup-
porter of cigarettes and the whole advertisement took place with his
participation and approval, and (c) is harmful to his scientific reputa-
tion, showing an inconsistency in his opinion.
Dr Smith has a claim against the tobacco company for compensa-
tion of non-economic loss due to an infringement of his personality
right. The doctor can claim for the cessation of the offence and the
non-recurrence thereof in the future. He can also claim for repara-
tion in kind. This can be achieved through a rectification by the press
explaining that this sentence does not represent the doctor’s personal
opinion.
Ireland
I. Operative rules
Dr Smith might have an action in defamation depending on the con-
text in which the statement was made by the tobacco company.

Dr Smith could possibly claim that the statement was defamatory as it
portrayed him in a false light. If the statement was taken out of context
and it falsely led ordinary reasonable readers to believe that Dr Smith
was a hypocrite he could have an action in defamation. This is known
as innuendo.23 Dr Smith could argue that although the published
23
Tolley v. Fry & Sons Ltd, Berry v. The Irish Times [1973] IR 368.
statement is authentic, the insertion of it in an advertisement promot-

ing cigarettes could lead the public to believe that Dr Smith was hypo-
critical, i.e. espousing views which are anti-smoking, while accepting
payment from a tobacco company to promote their product.24 The bur-
den of proof would be on Dr Smith to establish that the words had such
a secondary meaning.25
Italy
I. Operative rules
Dr Smith can sue the tobacco company for an injunction, damages
and rectification. He also can make a claim for the publication of the
court’s judgment in one or more newspapers.

In 1974 a new personality right was born in Italian case law: the right
to personal identity.26
This right was originally created in order to extend the applicabil-
ity of the remedies provided by Arts. 7 and 10 CC (right to one’s own
name and image) to cases where the picture of a person was used for
purposes which were different from those the person had allowed the
publication for.27 Nevertheless, the new right then came to encompass
all types of cases where one’s personal data was reported incorrectly or
reported so as to put the person in a false light.
Personal identity is commonly defined as the projection of a per-
son in the context of his/her social relationships, ideas, experiences
and moral, social, political beliefs. It can be infringed by attributing
acts to the person he/she never committed, opinions he/she never
expressed, qualifications he/she never possessed, etc., regardless of
whether or not this attribution is detrimental to the person’s honour
and reputation.28
24
Ibid. 25 Berry v. The Irish Times.
26
However, the preparation for this judicial development took place through
discussion in academic literature since the late 1940s: see A. De Cupis, Il diritto
all’identità personale (Milan: 1949).
27
The first judgment which acknowledged this doctrine is Pret. Roma 6 May 1974,
Foro it. 1974, I, 1806. A married couple had allowed the publication of their picture
in a farm review. Then the same picture was published, without the couple’s
knowledge, in a referendum poster advertising against divorce. The couple, who
were actually in favour of divorce, successfully sued the committee which had
issued the poster for injunction and damages under Art. 10 CC (right to image).
28
See e.g. Trib. Roma 27 Mar. 1984, NGCC 1985, I, 71 with commentary by M. Dogliotti.
On the right to personal identity, see A. De Cupis, I diritti della personalità, Trattato di
In 1985, a case perfectly similar to the present one was decided

by the Corte di cassazione.29 Some phrases from an interview given by
the director of the National Institute for the study and treatment of
tumours were used by a tobacco company to advertise ‘light’ cigarettes.
In the opinion of the Court, such a use of the interview distorted both
the social image of the doctor and the Institute, who were constantly
engaged in the prevention of tumours and the fight against smoking,
and therefore constituted an infringement to their right to personal
identity. Accordingly, the Court held the remedies of injunction, dam-
ages and publication of the judgment in one or more newspapers to
be applicable on the analogy of Art. 7 CC (right to one’s own name).
Moreover, it held Art. 8 Press Act (right to rectification) to be directly
applicable.
In relation to the legal basis of the right to personal identity, in
the 1985 case the Supreme Court already deduced this right from
the overall protection of personality granted by Art. 2 Cost. This rela-
tionship was better specified in 1996, as the Court, following schol-
ars’ suggestions, confirmed the right to personal identity as being
directly based on Art. 2 Cost. and thus held the statutory remedies
protecting name, image, copyright, etc. to be directly (no longer ana-
logically) applicable because the relevant statutory provision must be
reinterpreted in light of the Constitution.30 Now the right to personal
identity is expressly enshrined in the Data Protection Code (Art. 2
DPC).31
With regard to recoverable damages, these include non-pecuniary
loss (according to the new interpretation of Art. 2059 CC supported by
the Supreme Court in 2003).32
diritto civile e commerciale già diretto da A. Cicu e F. Messineo e continuato da L. Mengoni,

IV (2nd edn., Milan: 1982); F. Macioce, Tutela civile della persona e identità personale
(Padova: 1984); V. Scalisi, ‘Identità personale e danno non patrimoniale’ (1984) Riv.
dir. civ. I, 433 at 437; V. Zeno-Zencovich, ‘Identità personale’, in Dig. disc. priv. sez. civ.,
IX (Turin: 1993) 294.
29
Cass. 22 Jun. 1985 no. 3769, Foro it. 1985, I, 221.
30
Cass. 7 Feb. 1996 no. 978, Foro it. 1996, I, 1253.
31
On the right to personal identity in the framework of data protection law
see S. Rodotà, ‘Persona, riservatezza, identità. Prime note sistematiche sulla
protezione dei dati personali’ (1997) Rivista critica del diritto privato 583;
G. Cassano, ‘Il risarcimento del danno da lesione dell’identità personale’ (1999)
Dir. inf. 107.
32
Cass. 31 May 2003 no. 8828; Cass. 31 May 2003 no. 8827; Cass. 12 May 2003 no. 7281;
Cass. 12 May 2003, no. 7283, Foro it. 2003, I, 2272; see also Corte Cost. 11 Jul. 2003
no. 233, Foro it. 2003, I, 2201.
The Netherlands
I. Operative rules
The professor can claim an injunction, rectification and damages for
economic and non-economic loss.

Dutch law recognises a special provision with regard to misleading
publicity (Art. 6:194 BW ). This provision defines the unlawfulness of
advertising conduct vis-à-vis consumers and co-competitors. It does not
apply in relation to a person whose scientific or professional declara-
tions have been used in a misleading way.
Firstly, the doctor has a claim if the advertisement is a breach of a
rule of unwritten law pertaining to proper social conduct and thus is
harmful to him. Disregarding the substance of what has been claimed
by the tobacco company, the professor has an interest in his opinions
not being used for commercial purposes without his consent. The com-
mercial context (Case 1, circumstance (d)) can harm the good reputa-
tion of the professor and therefore his personality.
Secondly, it is unlawful to put the sentence in a context that is mis-
leading to the public.
Both grounds can be used by the professor for a claim. He can ask
for an injunction against the publication of the advert in the future.
He can also ask for rectification with regard to the adverts that have
already been published. Moreover, he can sue the tobacco company
for both economic and non-economic damages. In relation to the eco-
nomic damages he has to prove that he suffered economic loss as a con-
sequence of the advert. With regard to the damages for non-economic
loss he has to prove that his honour or reputation has been impugned.
The damages will be assessed fairly (Art. 6:106 BW ).
Portugal
I. Operative rules
The doctor may file for an injunction and claim compensation from
the tobacco company.

Although the phrase was authentic and its meaning was not manip-
ulated in any way, there is a difference between the context in
which it was said and the one in which it was published. Merely
uttering some words at a scientific conference is not the same thing

as publishing the same words, out of their original context, in a com-
mercial advertisement. In the context of a commercial advertisement
for ‘light’ cigarettes, people will probably read this phrase as support
for ‘light’ cigarette smoking. This is contrary to the position of Dr
Smith who is a fierce campaigner against smoking any kind of ciga-
rettes, and distorts his personal public image. This advertisement
was intentionally meant, and induces the public to conclude that
Dr Smith agreed to participate in a campaign for smoking, in a contra-
dictory hypocritical way. This seriously damages his reputation as a
doctor and as a fierce campaigner against smoking causes him per-
sonal moral suffering. In conclusion, the publication of this state-
ment does have a negative effect on his professional, scientific and
personal reputation, since it distorts his public image. Therefore,
Dr Smith’s right to honour is harmed (Art. 26(1) CRP and Art. 70(1) CC).
In addition, both the commercial use of Dr Smith’s words and the
reference to him, without his consent, are also unlawful on other legal
grounds. As already mentioned in Case 10, the CPub considers an adver-
tisement wrongful if it contains words from someone who has not
given his/her consent to that use (Art. 7(2), para. (e) CPub). Therefore, if
Dr Smith has not given his consent, the use of his words in an advertis-
ing campaign is unlawful.
Since there is wrongful conduct and damages can be recovered,
Dr Smith may file for an injunction to stop the use of his statement
(Art. 70(2) CC), and may claim compensation (certainly for non-eco-
nomic loss, and possibly for economic loss if the harm to his reputa-
tion results in him losing his job, clients, research funds or any other
economic income) (Arts. 70, 483 and 496 CC).
Scotland
I. Operative rules
Dr Smith may have a claim in defamation and passing off.

Dr Smith’s medically correct statement has been taken out of con-
text for use in (unauthorised) commercial advertising on behalf of
the tobacco industry which he is fiercely opposed to. This creates the
impression that Dr Smith has both consented to the advert and agrees
with its content. Two major issues are raised: firstly, defamation,
i.e. the use of a correct statement in a new context that gives rise to
a different innuendo or meaning. Although the statement is correct,
its new context puts the statement and its author in a wrong or false
light, thus causing actual or potential injury to his personal feelings
and professional reputation. Secondly, the claim of passing off, i.e. the
commercial appropriation of Dr Smith’s personality and reputation
for use in a commercial (advertising) context is raised. Passing off is a
form of economic tort, with particular prerequisites in relation to its
applicability. The laws of both Scotland and England are the same in
relation to passing off; the distinctions in relation to defamation have
already been pointed out.
The general principles of the law of defamation apply to the situation
outlined here. Within the scope of the summary application under s. 7
of the Defamation Act 1996, a judge will decide whether Dr Smith has
an arguable case in defamation, i.e. whether he has been lowered in
the eyes of the public by the use of a statement likely to cause damage
to his professional reputation. If the answer is positive, the case can
either proceed to settlement under the offer of amends provisions of the
1996 Act or alternatively proceed to trial.
A parallel claim based on the delict of passing off can also be consid-
ered. Passing off is a remedy based on the notion of injury to personal
reputation and injury to commercial goodwill.33 It allows traders and,
to a more limited extent the professional community, to prevent the
(mis)appropriation of their reputation, be it through photography, mis-
use of the company name or goodwill. English authorities clearly indi-
cate that the claim is based solely on the likelihood of confusion in
the public eye.34 The court will award injunctions in passing off cases
where confusion in the public eye (as to ownership of the trade or good
in question) can be proved. This explains the paramount use of passing
off as a common law form of prevention of unfair or misleading advertis-
ing or trading.
Unlike the US jurisdictions, there is no independent single tort or
category of appropriation of personality in either Scots or English law.
Nor is there likely to be a pervasive element of privacy in this case.
33
Sim v. H.J. Heinz & Co Ltd [1959] 1 WLR 313.
34
A passing off claim was successful in Clark v. Associated Newspapers [1998] RPC 261,
where the court granted an injunction against the Evening Standard to prevent it
from publishing fake imitations of the plaintiff’s own publication. The fact that it
was an imitation was insufficient to prevent the claim. See now Irvine v. Talksport Ltd
[2003] EWCA Civ 423.
Dr Smith is an outspoken opponent of the tobacco industry and

through the advertisement with which he is now associated there is a
new slant on Dr Smith’s reputation. English, and indeed Scots author-
ities are reserved about conceding passing off actions where there is
no clear economic reputation at stake. As was set out in Lord Diplock’s
classic passing off speech in Warnink v. Tounent,35 the law requires the
following elements to be present in order to constitute a valid cause of
action:36
(1) misrepresentation;
(2) made by a trader in the course of trade;
(3) to prospective customers or consumers of goods or services supplied
by him;
(4) foreseeably calculated to injure the business or good will of another
trader;
(5) resulting in actual damage to the business or good will.
This list has since been reduced to a classical trinity37 of

(a) reputation acquired by pursuer in goods, name or mark;
(b) misrepresentation by defendant leading to confusion or deception
causing;
(c) damage to plaintiff.38
The courts continue to interpret economic reputation narrowly.

There must be goodwill and reputation if a claim is to be met. This
causes problems in practice in that the notion of reputation is much
broader than goodwill and is not necessarily seen by Scots or English
law as linked to a property right in goodwill.39 Drawing the line
between personal and commercial reputation is difficult, particularly
when dealing with a professional reputation such as Dr Smith’s: it is
both an economic asset and an aspect of his dignity. The notion of
injury to reputation is flexible and certainly in libel law, according to
Lord Atkin in Sim v. Stretch,40 is to be understood as follows: ‘Would the
words tend to lower the plaintiff in the estimation of right thinking
members of society generally?’
35
[1979] AC 731.
36
Beverly-Smith, The Commercial Appropriation of Personality (Cambridge: 2002) 60.
37
Ibid.
38
Reckit & Coleman Ltd v. Bordan Inc [1990] 1 WLR 491, 499; Consorzio del Prosciutto di
Parma v. Marks & Spencer plc [1991] RPC 351, 368.
39
Anheuser Bush Inc. v. Budwar NP [1984] FSR 413.
40
[1936] 52 TLR 669.
Reputation in passing off cases differs markedly from reputation in

defamation cases. Cases of libel or defamation are actionable per se with-
out the need to show that special damage has been caused. Damage to
reputation and goodwill in a passing off action is only actionable where
there is or is likely to be damage. In this respect there is a distinction
between reputation and goodwill which needs to be clarified on Dr
Smith’s behalf. Nineteenth-century English authorities show the diffi-
culties with passing off claims: where physicians were named in con-
nection with advertisements for medical products, the courts refused
relief under the tort of passing off. Unless clear economic reputations
can be proven, the claim will fail.41
The more modern authority in Sim v. H.J. Heinz & Co Ltd42 is an
example of an attempt to sue under both defamation and passing off.
This case has been discussed in connection with Case 11 and shows
the difficulties a pursuer must overcome in order to bring a success-
ful action.
Spain
I. Operative rules
Dr Smith can claim for the protection of his honour and can demand
damages for the unlawful interference caused by his association with
the publicity of the campaign in favour of light cigarettes.

As a general principle in democratic societies, science is seen as a com-
mon service and a public good and nobody can deprive any citizen of
the general knowledge provided by scientific discoveries. In that sense,
freedom of speech and information is imposed. The use of such infor-
mation, however, is limited to the general limits in the scientific com-
munity: for example, use for quotation or learned explanation. In this
case, Dr Smith’s statement has not been published for scientific pur-
poses, but for advertising purposes. Within the meaning of Art. 7.6 LO
1/1982,43 this is lawful if the holder of the right has given his consent.
However, that is not the case here.
41
Clark v. Freeman (1848) 11 BEAV 112 (50 REP 759); Williams v. Hodge (1887)
4 TLR 175.
42
[1959] 1 WLR 313; see also the successful claim in Irvine v. Talksport Ltd.
43
According to Art. 7.6 of LO 1/1982, it is an illegitimate interference ‘to use the
name, voice or image of a person for publicity, commercial or similar purposes’.
Switzerland
I. Operative rules
Because the distribution of this advertisement puts Dr Smith in a false
light it violates his personality rights. Thus, he may make use of the
remedies provided for by Arts. 28 et seq. CC.

Behaviour or declarations that present an inaccurate image of an
individual and make him or her appear in a false light unlawfully
infringe on the personality of that individual.44 The same is true
where quotes are taken out of their original context and reproduced
under different circumstances which distort their original mean-
ing.45 The quote taken from Dr Smith during a scientific conference
has been used in order to serve interests that are the opposite to
those which he defends. The advertisement suggests that this doctor,
known for being a fervent member of the fight against tobacco, has
changed his opinion and now touts the virtues of light cigarettes. As
such, the advertisement puts the doctor’s quote in a false light and is
thereby unlawful.
Thus, the doctor may request a declaratory judgment stating that the
infringement is unlawful and an injunction against the further distri-
bution of the advertisement (Art. 28a CC). He may also demand damages
for economic harm (Art. 41 CO). However, he will have to establish that
he has suffered economic loss and that this was caused by the advertise-
ment. The loss may consist of the doctor’s loss of patients. In addition,
the doctor could bring a claim for restitution of profits earned (Art. 42,
para. 3 CO). Then, he would have to prove that the profits earned by the
cigarette company resulted from the use of his quotation. Finally, he
could request damages for pain and suffering (Art. 49 CO) to the extent
that he can prove that the infringement resulting from the distribution
of the advertisement was particularly egregious.

Not long ago, a Swedish doctor and researcher associated with the
tobacco industry was employed by a Swiss university. He worked
under various titles for more than twenty-five years and in 2001 he
44
R. Vito, Schweizerisches Haftpflichtrecht (Zurich: 2002) n. 462.
45
Ibid., n. 463.
was denounced by two militant supporters of the anti-tobacco cause

and legal proceedings were launched. They revealed the close, secret
ties that connected the researcher to a multinational cigarette corpora-
tion. For years, these relations had biased the results of his studies on
second-hand smoke. On numerous occasions the said researcher had
claimed that no link could be established between exposing children
to smoke and respiratory illnesses and infections.
Comparative remarks
This case deals less with the boundaries of self-determination in respect
of one’s own spoken words and more with the authentic presentation
of a person in the public domain. A statement made by Dr Smith is used
for commercial purposes without his consent. His words are quoted
in their true form. Nevertheless, they are taken out of their original
context and made to serve an objective (selling cigarettes) which com-
pletely contradicts his objectives, opinions and beliefs.
In all private law systems considered, Dr Smith’s interest in not being
presented in public against his will as a supporter of ‘light’ cigarettes is
held to be worthy of legal protection. He will have at least a claim for
damages against the tobacco company (see II below).
I. Legal bases
The answers to this case in the individual legal systems can roughly
be systematised according to four models – the defamation model,
the personal identity model, the mixed model and the copyright
model.
1. The defamation model

In England, Scotland and Ireland, this case is dealt with under the frame-
work of the common law of defamation (see Case 1) and passing off (see
Case 10). However, the courts are reserved about allowing passing off
actions where there is no clear economic reputation at stake. In this
case, the advertisement may have injured Dr Smith’s professional repu-
tation, but his interest in not being publicly presented as a supporter
of light cigarettes is not primarily commercial. Therefore, Dr Smith’s
passing off claim will be less likely to succeed than his defamation
claim. The defamation requirements are most probably met since the
advertisement created the false impression that the doctor had given
his consent or that he was in some way endorsing ‘light’ cigarettes.
This could have lowered him in the opinion of right-thinking people,

thus injuring his personal feelings and professional reputation.
Furthermore, in Spain the solution to this case clearly focuses on the
law of defamation. The publication of the advertisement will be consid-
ered an unlawful infringement of Dr Smith’s honour and reputation,
giving rise to the civil liability of the tobacco company under the 1982
Act on the protection of one’s honour, privacy and image (see Case 1).
2. The personal identity model

In Germany, Italy and Switzerland, the main focus of this case lies in
the doctor’s legitimate interest not to be put into a false light, regard-
less of any possible detriment to his honour and reputation. According
to this approach, the mere fact that Dr Smith’s statement was taken
out of its original context, losing its original meaning and giving the
false impression that he was endorsing ‘light’ cigarettes, amounts to a
violation of his right to personality which makes the tobacco company
liable under the general law of delict.
For cases of this kind, Italian scholars and courts have developed a
specific doctrine: the ‘right to personal identity’. This right is seen as
embedded in the protection of personality under Art. 2 of the Italian
Constitution. An infringement of this right occurs when acts, opin-
ions, preferences, qualifications, etc. are attributed to a person who
has never committed, expressed or possessed them. In this regard, it
is sufficient that a person is associated with something – a product,
a political opinion, etc. – which this person does not in fact endorse
or favour. If the right to personal identity is violated, its holder may
rely on any cause of action protecting one’s name, image and copy-
right: the corresponding legal provisions are to be interpreted in the
light of the Italian Constitution so as to cover these kind of cases
as well.
3. The mixed model

A combined application of legal instruments protecting honour and
reputation on the one hand, and self-determination regarding the use
of one’s name, words, etc. on the other, characterises the approach of
the Austrian, Dutch, Finnish, French, Greek and Portuguese legal sys-
tems. In particular, the Austrian, Dutch and French solutions should
be remarked upon.
In Austria, unlike Germany and Switzerland, the personal identity
approach focusing on one’s personality interest not to be portrayed in
a false light has not yet gained ground. In cases such as this, Austrian
scholars invoke a plurality of personality rights such as the right to
self-determination regarding the use of one’s name, the right to one’s
spoken words, and the right to personal and professional reputation.
In the Netherlands, the liability of the tobacco company is based on
the breach of a rule of unwritten law pertaining to proper social con-
duct, according to the general clause of the law of delict (Art. 6:162 BW ).
Dr Smith may either rely on the violation of his reputation, which also
constitutes an injury to his personality, or on the fact that his words
were put in a context that is misleading to the public. Both grounds
can support his claim.
French law neither acknowledges a general right to personality, nor
a right to reputation which goes beyond the scope of the criminal law
protection of honour (see Case 1). Nevertheless, in this case the tobacco
company will be liable in delict since both the use of Dr Smith’s name
and scientific reputation for commercial purposes and the distortion
of his personality caused by taking his statements out of their original
context can be considered a culpable act under the general clause of
non-contractual liability (Art. 1382 C. civ.).
4. The copyright model

In Belgium, the solution of this case focuses on copyright law. Oral
expressions of thoughts, lectures and speeches such as Dr Smith’s state-
ment will be considered a ‘work of literature’ in the sense of Art. 8
Copyright Act. Since the tobacco company quoted Dr Smith’s words for
purposes other than science, education or public debate, according to
Arts. 21 and 22 Copyright Act the author’s prior consent would have
been necessary. Furthermore, Dr Smith can rely on his moral right not
to be identified with a commercial product.
II. Remedies
In all legal systems, Dr Smith will be able to claim damages. In the
majority of countries, compensation covers both economic and non-
economic loss. In Belgium, France and Greece only non-economic
loss seems recoverable. In Finland, since no criminal law provision is
engaged, damages for pure economic loss can only be awarded under
general tort law when there are ‘especially weighty reasons for com-
pensation’ (see Case 7).
In most legal systems, Dr Smith will also be granted an injunction
against the present and future publication of the advertisement. This
is certainly not true for France where the courts are reluctant to award
injunctive relief in these kinds of cases.
In Finland, it would make a difference whether or not Dr Smith
is acting in the course of his business or as a private person. In the
first alternative he will have to claim an injunction before the Market
Court, in the second alternative before the civil court.
Besides damages and injunction, in some countries Dr Smith will be
entitled to additional remedies. In Greece, Italy and the Netherlands, he
may obtain rectification, for example in the form of a press announce-
ment clarifying that the statements contained in the tobacco adver-
tisement do not represent his personal opinion. In Italy, he can also
request the publication of the court judgment in one or more news-
papers. In Switzerland, he may request a declaratory judgment on the
unlawfulness of the advertisement.
19 Case 16: Doctor’s non-disclosure
of a foetal disease
Case
Bridget was pregnant. She was under the treatment of a doctor who
did not inform her that her foetus had a genetic anomaly, which was
likely to cause brain damage. Her child was born mentally disabled.
If Bridget had known about the anomaly she would have preferred to
have undergone a (legal) abortion. Can Bridget sue the doctor for dam-
ages for non-economic loss, because he deprived her of the chance to
decide whether or not to have the child?
Discussions
Austria
I. Operative rules
Damages in respect of economic loss (additional maintenance costs), as
well as in respect of non-economic loss (shock) could be awarded here.
However, Bridget will not be compensated for non-economic harm
resulting from the mere loss of autonomy.

Under Austrian law it is unclear whether there is a personal right to
family planning1 the infringement of which gives rise to a claim for
damages in tort. As far as the rights to self-determination and free
1
Cf. C. Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung (Vienna: 2002) 213
et seq.; H. Koziol, Österreichisches Haftpflichtrecht I (3rd edn., Vienna: 1997) no. 11/8;
F. Bydlinski, ‘Das Kind als Schadensursache im Österreichischen Recht’, in
U. Magnus and J. Spier, European Tort Law, Liber amicorum for Helmut Koziol (Frankfurt
am Main: 2000) 63.
511
will are concerned,2 claims in tort for compensation are only granted
where there is intentional infringement.3
In the present case, however, there is a contractual relationship
between Bridget and the doctor. The contract of medical treatment
means that there is a duty on the doctor to inform the patient of any
health risks (to either the mother or the foetus);4 this is, of course, true
with respect to genetic anomalies and risks derived therefrom. Failure
to inform, therefore, is a breach of contract. As a consequence, Bridget
can sue the doctor under contract law, provided that the damage falls
within the contract’s scope of protection.5
In respect of this question, it must be pointed out that in the present
case both pecuniary and non-pecuniary consequences follow from the
existence of a disabled child, such as the obligation to provide mainte-
nance, the shock that the mother could have suffered after realising
that her child is seriously disabled and the psychological burden in
caring for a disabled child.
In Austrian legal literature whether the compensation of pecuniary
loss implies that a child is equated with damage was subject to much
debate.6 The OGH held that the obligation to provide maintenance
can be separated from the child itself.7 Therefore, this qualification
of damage does not clash with the principle that human life cannot
2
Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung at 215 et seq.
3
Cf. § 874 and § 1300 ABGB, § 105 et seq. StGB.
4
OGH JBl 1999, 593 = RdM 1999/23 (commentary by C. Kopetzki) = RdW 1999,
781 = SZ 72/91.
5
Koziol, Österreichisches Haftpflichtrecht I nos. 2/26 et seq., 11/15.
6
Cf. E. Bernat, ‘Unerwünschtes Leben, unerwünschte Geburt und Arzthaftung: der
österreichische “case of fi rst impression” vor dem Hintergrund der anglo-
amerikanischen Rechtsentwicklung’, in E. Bernat, E. Böhler and A. Weilinger, Zum
Recht der Wirtschaft II, Festschrift für Heinz Krejci (Vienna: 2001) 1041;
F. Bydlinski, ‘Das Leben als Schaden?’ (16.8.1999) Die Presse 8 and ‘Das Kind als
Schadensursache’ at 29; S. Engel, ‘Verletzung der ärztlichen Aufklärungspfl icht –
Geburt eines behinderten Kindes als ersatzfähiger Schaden der Eltern’ (1999/2000)
JAP 131; Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung and ‘Arzthaftung
infolge unerwünschter Geburt eines Kindes’ (1999) RdM 163; G. M. Hochhaltinger,
‘Stellungnahme zur Begründungsweise des OGH in der Entscheidung
“Arzthaftung: Geburt eines behinderten Kindes als Schaden der Eltern”’ (2000) JBl
58; R. Rebhahn, ‘Schadenersatz wegen der Geburt eines nicht gewünschten Kindes?’
(2000) JBl 265; B. Schilcher, ‘Weiter so, verehrtes Höchstgericht’ (31.7.1999) Die Presse
2; G. Wilhelm, ‘Die versäumte Abtreibung und die Grenzen juristischen Denkens’
(1999) Ecolex 593.
7
Cf. OGH JBl 1999, 593 = RdM 1999/23 (commentary by C. Kopetzki) = RdW 1999, 781 =
SZ 72/91.
c a se 16: doctor’s non-disclosur e of a foeta l dise a se 513
be regarded as damage. Consequently, at least the additional financial

burden of maintaining a disabled child was held to be restitutable.8
It is doubtful whether the same is true in respect of the non-pecu-
niary harm of the parents that follows from the birth of the disabled
child. It seems impossible to separate the non-pecuniary burden of car-
ing for a disabled child from the child itself. As a consequence, a claim
for compensation must be rejected,9 notwithstanding that the contract
may aim to avoid non-pecuniary harm.10 However, the mother’s shock
after realising that the child is disabled would be compensated under
§ 1325 ABGB (pain and suffering).11
Finally, the non-pecuniary loss which follows from being deprived
of the chance to decide whether or not to undergo an abortion arises
from the mere lack of personal autonomy. This is independent of the
decision Bridget would have made if she had been informed.
Since this non-pecuniary loss is not the result of an infringement of
the claimant’s absolutely protected rights (such as physical integrity12
which refers to tangible goods in the external sphere of a person), it is
doubtful whether it is compensable.
Under Austrian law, compensation for non-pecuniary loss prima-
rily means compensation for pain and suffering in terms of § 1325
ABGB. Accordingly, the OGH regularly limits compensation of non-
pecuniary loss to the (few) cases in which it is regulated in express
terms.13 Such a special regulation concerning non-pecuniary harm
resulting from the loss of personal autonomy does not exist in
Austrian law.
8
Ibid.
9
Bernat, ‘Unerwünschtes Leben’ at 1075 (n. 189 referring to the German decision
of BGHZ 124, 128); on the contrary, see Koziol, Österreichisches Haftpflichtrecht I
no. 11/15, who seems to take the possibility of compensation into account; see also
A. Fenyves and C. Hirsch, ‘Zur Deckung der Ansprüche aus “wrongful life” und
“wrongful birth” in der Arzthaftpfl ichtversicherung’ (2000) RdM 15.
10
OGH JBl 1999, 593 = RdM 1999/23 (commentary by Ch. Kopetzki) = RdW 1999,
781 = SZ 72/91.
11
Bernat, ‘Unerwünschtes Leben’ at 1075 (n. 189); Bydlinski, ‘Das Kind als
Schadensursache’ at 63; Fenyves and Hirsch, ‘Zur Deckung der Ansprüche aus
“wrongful life” und “wrongful birth”’ at 15.
12
Cf. E. Karner, Der Ersatz ideeller Schäden bei Körperverletzung (Vienna: 1999) 79 et seq.;
Koziol, Österreichisches Haftpflichtrecht I nos. 11/7, 11/10.
13
The following provisions explicitly compensate non-economic loss: § 1325, § 1328,
§ 1328a (cf. Cases 5, 8), § 1331 ABGB; §§ 6 et seq. MedienG (Cf. Cases 1, 2, 5, 8), § 87
subs. 2 UrhG (cf. Cases 7, 8, 9, 10), § 16 subs. 2 UWG (cf. Case 17).
Following compelling arguments among Austrian scholars,14

the Supreme Court has recently broadened the range of protected
interests:15 close relatives are awarded compensation for emotional
distress resulting from the wrongful death of a family member, even if
it does not lead to physical or mental harm according to § 1325 ABGB.
In the case of gross negligence or intent they are compensated on the
analogy of §§ 1331, 1328, 1329 ABGB and § 213a ASVG.16 A minori ad
maius, one can assume that if ‘pure’ non-pecuniary loss (without injury
to absolutely protected rights) is compensated in tort law, the more it
must be compensated in contract law.17 On this basis, at least in cases
of gross negligence or intent, compensation for the loss of freedom to
decide does not seem to be out of reach.
However, it must be emphasised that the Supreme Court’s extension
of liability takes place within strict limits. Only close relatives of the
injured party can bring a claim for compensation as the harm suffered
by them is grave and can be objectively estimated. These limitations
keep the floodgates shut.
In respect of the harm to Bridget resulting from the loss of a chance
to decide, these preconditions for compensation are not met. She does
not suffer grave harm therefrom nor can it be objectively estimated.18
Her ‘damage’ is not comparable to that of the relatives of a person who
is killed. As a consequence, liability for emotional distress resulting
from the loss of freedom to decide has to be denied.

Due to fundamental changes in Austrian jurisprudence that have
taken place over recent years, the problem of compensation for ‘pure’
non-pecuniary loss cannot be answered easily and requires a deeper
analysis. However, without express provisions concerning a special
14
Koziol, Österreichisches Haftpflichtrecht I nos. 11/6, 11/14; P. Barth, ‘Hat der Patient bei
eigenmächtigen medizinischen Eingriffen Anspruch auf Ersatz seines Körper- und
Gesundheitsschadens?’ (1999) RdM 112 et seq.; Hirsch, Arzthaftung bei fehlgeschlagener
Familienplanung at 191 et seq.; E. Karner, commentary on OGH ZVR 2001, 288.
15
Cf. OGH ASoK 2001, 323 (commentary by L. Stärker) = ecolex 2001/235 (commentary
by E. Helmich) = JBl 2001, 660 = ZVR 2001/73 (commentary by E. Karner); T. Schobel,
‘Ersatzfähigkeit reiner Trauerschäden’ (2002) RdW 195.
16
Cf. also Case 11.
17
F. Bydlinski, ‘Der Ersatz ideellen Schadens als sachliches und methodisches
Problem’ (1965) JBl 251; Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung at 218;
Koziol, Österreichisches Haftpflichtrecht I nos. 2/118, 11/13, 11/14.
18
Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung at 218.
personality right to family planning and the legal consequences of its

violation, the restrictive character of the Austrian law of compensation
will prevail.
Belgium
I. Operative rules
Bridget can sue the doctor for economic loss. The question of compen-
sation for non-economic loss is less certain, but most literature and
case law is in favour of the granting of such damages.

The subject here is the action of the mother iure proprio, or the so-called
wrongful birth action. We will only indirectly address the question of
the parent’s action (qualitate qua) or that of the child itself (wrongful life
action).
Under Belgian law, there is no doubt that Bridget can bring a wrong-
ful birth action against the doctor, provided that she can prove that
the doctor committed a fault by not informing her and that she would
have had an abortion had she known about the anomaly.19
The rights of patients are protected under the Patients Rights Act
of 22 August 2002. Art. 7 prescribes that every patient has a right to
information in respect of his/her state of health and the presumed
ensuing developments. This right to information is not necessarily
related to medical treatment. Furthermore, all medical acts require
the voluntary and informed consent of the patient. His/her will must
be respected at all times.
The right to information and informed consent are thus separate
rights, but it is possible that both rights will sometimes overlap in
practice.20
There is no doubt that Bridget can claim compensation for economic
loss: e.g. the costs of the (monitoring of the) pregnancy, the childbirth
and the aftercare, the extra costs caused by the disability, etc.
She can also sue for damages for non-economic loss arising from the
loss of the right to family planning.21
19
The first general and comparative study under Belgian law is that of R. Kruithof,
‘Schadevergoeding wegens de geboorte van een ongewenst kind’ (1986–87) RW 2737.
20
See H. Nys, ‘Geneeskunde, recht en medisch handelen’, in APR (Ghent: 2005) 148
et seq.; W. Dijckhoffz, ‘Het recht op informatie en geïnformeerde toestemming’
(2003–04) T. Gez./Rev. de Santé.
21
Kruithof, ‘Schadevergoeding wegens de geboorte van een ongewenst kind’.
Sometimes, it is contested that a parent can claim money for loss

(being confronted with a (disabled) child or seeing that (disabled) child
suffer). ‘A child is a blessing’ and the existence of such a child (with
a disability) cannot be considered a loss.22 However, this seems to be
the minority opinion23 and conflicts with the acceptance of economic
loss.
To put it succinctly, (the disability of) a child can result in loss for
the parent; therefore, compensation is not contrary to public policy.
Parents have a right to family planning.
Even the French ‘anti-Perruche’-law n° 2002–303 of 4 March 2002 relative
aux droits des malades et à la qualité du système de santé,24 passed in the
aftermath of the Perruche case,25 explicitly provides for a wrongful
birth action. However, it excludes compensation for the extra costs of
the disability, whereas in Belgium these costs are compensated.
England
I. Operative rules
It is uncertain whether Bridget can claim in this situation.

The doctor’s failure to inform Bridget of the genetic anomaly is
undoubtedly negligent giving rise to a claim in damages. No damages
are awarded for having a healthy baby, but damages covering the costs
of a disabled baby are encompassed.26 However, can damages be recov-
ered for depriving Bridget of the chance to decide whether or not to
have the child? The case of Rees v. Darlington Memorial Hospital NHS Trust27
concerned a disabled mother whose failed sterilisation led to her hav-
ing a baby. She was awarded compensation for not being able to have
the family life she had planned. The same principle of choice could be
extended to the present circumstances; however, there are differences
22
Civil court Courtrai 3 Jan. 1989, RW 1988–89, 1171.
23
Indeed more recently for Belgium see Civil court Brussels 7 Jun. 2002, TBBR 2002,
483 and on the more liberal approach, see G. Génicot, ‘Le dommage constitué par la
naissance d’un enfant handicappé’ (2002) TBBR 79, nos. 10–16. From a comparative
point of view, see F. Keuleneer, ‘Wrongful birth, Liability and Idemnification: An
Uneasy Fit’, Case Note on Hoge Raad 21 Feb. 1997, BVerFG (Erster Senat) 12 Nov. 1997
and BVerfG (Zweiter Senat) 22 Oct. 1997, (1999) 2 ERPL 241–56.
24
JO n° 54 of 5 Mar. 2002.
25
Cass. fr. 17 Nov. 2000, www.courdecassation.fr.
26
Macfarlane v. Tayside Health Board [2000] 2 AC 59.
27
Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
which may make recovery difficult. In Rees, the woman had not wanted
any children; Bridget’s complaint is not that she had a child, but that
she was not able to make a fully informed choice whether or not to go
ahead with the pregnancy. There would also be the possibility of the
defence investigating what her reaction would have been as if it can be
shown that she would most likely have continued with the pregnancy
then there would be no actionable damage.
Finland
I. Operative rules
There is probably no possibility to sue the doctor for non-economic
loss.

According to s. 5 of the Finnish Act on the Position and Rights of the
Patients, a patient has the right to receive all information about his
or her health. The doctor’s failure to provide information about the
foetus can be considered as being contrary to this provision. The ques-
tion is, thus, whether Bridget has suffered any non-economic loss as a
result of being deprived of her right to decide whether or not to give
birth to the child. As has been stated in connection with several pre-
vious cases, the possibility of obtaining damages for anguish is quite
limited. Compensation for anguish is granted according to Ch 5, s. 6
of the Finnish Tort Liability Act if the liberty, peace, honour or pri-
vate life of a person has been offended through a punishable offence.
The Finnish Supreme Court has been rather restrictive in granting
damages for anguish without a legal provision28 and therefore it is
very unlikely that Bridget would be granted a right to damages for
anguish.

In principle, it is possible to argue that the doctor’s omission of crucial
information is comparable to an offence against liberty and, conse-
quently, Bridget would have a right to damages for anguish. It is argu-
able that this situation could be compared to a severe offence against
human dignity, although this type of act is not criminalised. After the
28
Routamo & Ståhlberg, Suomen vahingonkorvausoikeus (4th edn., Jyväskylä: 2000)
222–3.
amendment of the provision, which took effect on 1 January 2006, this

could constitute the right to compensation for anguish.
France
I. Operative rules
Bridget has an action against the doctor who did not inform her of the
genetic anomaly which the foetus suffered from, thus depriving her of
the opportunity to undergo an abortion.

It is important to properly set out the terms of debate. This is not sim-
ply a case of determining whether the birth of a child without a disa-
bility can alone be considered a loss recoverable by its parents (wrongful
birth),29 or whether the fact that being born disabled can constitute a
loss recoverable by the child him- or herself (wrongful life).30 The ques-
tion here is limited to whether a doctor can be held liable for the fail-
ure to inform his/her patient, which has deprived that patient of ‘the
chance’ to terminate her pregnancy.
A doctor who does not inform a future mother of an anomaly affect-
ing her foetus and the risk that she may give birth to a disabled child
is in breach of contract for failure to properly and fully inform his/her
patient. However, the anomaly must have been capable of being dis-
covered during the pregnancy, i.e. the ultrasound tests must have been
improperly done or the doctor must have not arranged complementary
examinations.31 This would constitute a violation of the medical pro-
fessional’s contractual duty of care and his/her duty to fully inform the
patient, which leads to the obligation of repairing the harm suffered
by the parents because of their child’s disability, on the basis of Arts.
1134 and 1147 CC.32 Thus, in French law the parents can indeed bring
an action for having lost their ‘chance’ to have an abortion where a
child is born disabled.33
29
In French law, the existence of a child cannot alone constitute a legally reparable
loss to the mother, even if the birth occurs after a failed attempt at an abortion
(Cass. civ. 25 Jun. 1991, D. 1991, jur., 566 ; CE 2 Jul. 1982, D. 1984, jur., 425).
30
See below III. Metalegal formants.
31
Cass. civ. 16 Jul. 1991, JCP 1992, II, 21947: by not having carried out supplementary
examinations which would have enabled them to inform the parents about the
risks caused by the pregnancy, the doctors did not fulfil their obligation to inform.
32
Cass. civ. 26 Mar. 1996, D. 1997, jur., 35.
33
See, e.g., TGI Montpellier 15 Dec. 1989, JCP 1990, II, 21556; Cass. civ. 16 Jun. 1991,
JCP 1991, IV, 336; CA Bordeaux 18 sept. 2001 (unpublished): ‘the lack of information
Nevertheless, uncertainty remains in relation to the extent of the

loss recoverable by the persons who were not properly informed about
the risk of giving birth to a disabled child. If the damage to be rem-
edied is the deprivation of the chance to have an abortion, that is a
‘chance’ to avoid the birth, there can only be partial reparation.34 If, on
the other hand, the damage compensated is that of giving birth to and
raising a disabled child, then the reparation must be total,35 i.e. it must
include all the costs caused by the disability.
In any case, it is certain that Bridget can demand reparation of the
non-economic loss she has suffered under French law. Moreover, it
does not really matter whether or not she would have had an abor-
tion. Her non-economic loss stems from the fact that the doctor
‘denied her a piece of information which would have permitted her
to either have recourse to an abortion, or to prepare to give birth
to a disabled child’, as the Cour de cassation held in its decision of 28
November 2001.36
In French law, these questions only raise issues of civil liability,
essentially arising from a contractual duty, and do not raise issues con-
cerning the protection of personality rights or interests.

Even if the case here only concerned the indemnification of the harm
to the mother herself, it is nonetheless appropriate to make a state-
ment about the lawsuits brought by parents in the name of their dis-
abled child. The question is whether the doctor’s fault in failing to
diagnose the prenatal disability, which prevented the mother from
exercising her choice to have an abortion, can constitute a loss which
about the risks to the foetus constitutes a fault committed by the doctor in
executing the contract concluded with the mother, which prevented her from
exercising her choice to have an abortion’.
34
Chartier, La réparation du préjudice (Paris: 1996) 14.
35
See, e.g., CE 14 Feb. 1997, JCP 1997, II, 22828, according to which the doctors’
fault consisted in falsely assuring the parents that the child would not suffer from
a genetic defect and that the pregnancy could be normally carried to full term,
and that this fault ‘should be regarded as the direct cause of the harm suffered by
(the parents) because of their child’s infirmity’. Thus, the administrative courts
not only awarded compensation for the parents’ non-economic loss and ‘disrupted
life conditions’, but also held ‘that the particular expenses incurred by the parents
because of their child’s infirmity, notably for special treatment and education, must
equally be taken into account in assessing the economic loss’.
36
Ass. plén. 29 Nov. 2001, D. 2001, IR, 3587.
is recoverable by the child. In the highly publicised Perruche case

(17 November 2000), the Cour de cassation has admitted:
when the faults committed by the doctor and the laboratory in the execution
of contracts formed with a pregnant woman have prevented her exercise of
the choice of abortion in order to avoid the birth of a disabled child, that child
can then demand reparation of the harm resulting from that disability and
caused by the faults in question.37
This case law has been confirmed by three judgments from 13 July
2001,38 as well as in the decision of 28 November 2001 cited above. In
all of these cases, the disability was attributed to genetic or congenital
factors of a sort that the error in prenatal diagnosis committed by the
doctor was not in itself the cause of the disability. Nevertheless, for
the Cour de cassation, finding the doctor liable only required proof of a
causal connection between his/her fault and the harm alleged by the
child due to the fact that his/her mother was deprived of the possibil-
ity to exercise her choice to have an abortion. Thus, the harm suffered
by the disabled person is the loss of a chance, namely the right not
to be born. This decision, which has caused general pandemonium in
moral and ethical terms has led the legislator to intervene. The Act
of 4 March 2002 on the rights of the ill and the quality of the health
system contains a First Title called ‘Solidarity with disabled persons’,39
Art. 1 of which excludes the recoverability of damage consisting of
being born.
Germany
I. Operative rules
Bridget may claim damages based on both contract law and tort law.
However, damages will only be paid for the birth of a disabled child.
37
Ass. plén. 17 Nov. 2000, D. 2001, jur., 316; JCP 2000, II, 10438.
38
Ass. plén. 13 Jul. 2001, D. 2001, jur., 2325; JCP 2001, II, 10601.
39
Art. 1 of this Act notably states that ‘nobody can claim loss for the mere fact of
having been born. The person born with a disability due to medical fault can obtain
reparation of his/her harm when the culpable act directly caused the disability
or aggrieved it, or prevented the taking of measures suitable to attenuate it. Once
a professional or an institution in the medical sector is held liable vis-à-vis the
parents of a child born with a disability which was not assessed during pregnancy
because of a manifest fault, the parents can claim compensation on the basis of the
loss suffered by them only. This loss will not include the particular expenses caused
by the disability during the child’s entire life. The compensation of these expenses
is a matter of national solidarity’.
The deprivation of the chance to decide whether or not to undergo a

legal abortion will not be considered.

Courts in Germany have been reluctant to accept tort claims due to
the violation of personality rights in the area of medical treatment.40
In these cases, medical treatment is usually part of a contract and the
question of damages has concentrated on the question of whether the
birth of an unwanted child (‘wrongful life’) gives rise to a contractual
claim against the doctor who made the false diagnosis. There are a
number of decisions in which the BGH has granted special damages in
cases where a false diagnosis could be proven.41 Therefore, the doctor is
liable to pay the medical and maintenance costs which the unwanted
birth causes. Furthermore, the BGH has given the mother a claim for
non-economic loss on the grounds of § 253(2) BGB (formerly § 847 BGB)
as going through an unwanted pregnancy is seen as equal to a bodily
injury by mistreatment.42
There has been debate concerning the question of whether the grant-
ing of damages implicitly expresses that the unwanted child is seen as
damage per se. However, courts have skipped this point by making it
clear that the damage is not paid because of the existence of ‘wrong-
ful life’ but because of the maintenance costs resulting from having
to raise a disabled child.43 Therefore, the claim in this case will not
be a claim in relation to the personality right of the parents but an
ordinary contractual claim combined with a delictual claim on the
grounds of bodily injury (§§ 823(1), 251(1), 253(2) BGB).

The right to autonomously decide whether or not to have and raise
children is listed among the basic interests of the private life of any
individual. The right to family planning has gained special importance
in a time where the exact planning of birth and even genetic make-up
40
BGHZ 86, 240, 249; 124, 128, 141.
41
BGH NJW 1995, 1609 and 2407; BGHZ 86, 240; BGH, VersR 1983, 396.
42
See BGH NJW 1980, 1452, 1453 (case of BGHZ 76, 249 but these specific remarks
were not reported).
43
BGHZ 124, 128, 135; BGH NJW 1995, 1609, NJW 1995, 2407, 2409; NJW 2000, 1782;
OLG Düsseldorf NJW 1995, 788, 789; accepted by BVerfG NJW 1998, 519 (1st senate),
but see the critique of the 2nd senate in BVerfGE 88, 203 = NJW 1993, 1751; NJW
1998, 523.
has become realistic as a result of recent developments in medical

research and treatment. Compared to the modern questions of how to
plan children by directly influencing their genetic make-up, the ques-
tion of whether there is a right to abortion in certain cases has long
been an issue. Still, this discussion is restricted to penal law and the
matter concerning whether the State may interfere with private deci-
sions in this field. Scholars are divided about the existence of a right to
family planning through abortion in private law even in cases where
the unborn baby is likely to be born with incurable disabilities.44
Greece
I. Operative rules
Bridget probably has the right to claim damages from the doctor who
did not inform her about the genetic anomaly of her foetus.

According to Art. 304 of the Penal Code, termination of pregnancy is
lawful when modern means of prenatal diagnosis have shown that
there is a serious genetic anomaly of the foetus which will lead to the
birth of a handicapped child and the period of gestation has not been
more than twenty-four weeks.
Moreover, Art. 10 of Law 2619/199845 entitled ‘Personal Life and the
Right to be Informed’ provides that: ‘1. All persons have the right of
respect to their personal life in connection with information on the
state of their health. 2. All persons have the right to be informed of all
information related to the state of their health. Nevertheless, the desire
of a person who chooses not to be informed should be respected.’
Bridget was deprived by the doctor of the opportunity to decide
whether or not to terminate the pregnancy because of a serious genetic
anomaly of the foetus. On the basis of the abovementioned legislative
provision, the breach of information duty on the part of the doctor can
be considered an unlawful act which possibly entitles Bridget to claim
for damages.
44
Baston-Vogt, Der sachliche Schutzbereich des zivilrechtlichen allgemeinen Persönlichkeitsrecht
(Tübingen: 1997) 386 with further references; the majority rejects the existence
of such a right, see R. Rixecker, Münchener Kommentar zum BGB (4th edn.,
Munich: 2001), § 12 note 121. In favour of such a right W. Lankers, ‘Zur Abwälzung
von Unterhaltskosten’ (1969) Zeitschrift für das gesamte Familiesrecht 384, 385.
45
Law 2619/1998 ratified the Contract of European Council for the Protection of
Human Rights and Human Dignity in connection with the applications of biology
and medicine.

Following the passing of Law 2619/1998, there has been a theoret-
ical debate on recognising a legal basis for the right of a patient to
be informed about the state of his or her physical health.46 The right
to private life has been widely used by scholars as a legal basis for a
patient’s right to information, abortion and euthanasia. Although Art.
10 of Law 2619/1998 expressly connects the patient’s right to informa-
tion with the right to private life (in Greek translated as ‘personal life’),
this reference to the right to private life does not lead to a positive right
to be informed. The recognition of a positive ‘right to be informed’ for
patients should offer a legal basis for a possible claim against the doc-
tor in case of the non-disclosure of information or disclosure of errone-
ous information to his/her patient.47 A possible legal basis for a claim
against the doctor is under Art. 57 of the Civil Code. The protection of
personality also includes the right to the free development of personal-
ity, with its particular aspect of freedom of choice, which is recognised
as a positive and active right. This ‘freedom of choice’ may include the
right to abortion and the right to die as sub-rights.48
Ireland
I. Operative rules
Bridget cannot sue the doctor for damages for non-economic loss on
the grounds that he deprived her of the chance to decide whether or
not to have the child. However, she may have a claim in damages for
the extra costs associated with raising a disabled child.

Art. 40.3.3 of the Constitution protects the right to life of the
unborn.49 However, where the birth of the child represents a real
46
See Kanellopoulou-Mpoti, ‘The problem of establishing the right of information for
patients and the right to abortion on the right of privacy (remarks in relation to
Law 2619/1998)’ (2000) Kritiki Epitheorisi 179–94.
47
Androulidakis, The obligation for information of the patient (Athens: 1993).
48
Kanellopoulou-Mpoti, ‘The problem of establishing the right of information for
patients’ at 193.
49
The full text of Art. 40.3.3 provides as follows: ‘The State acknowledges the right
to life of the unborn and, with due regard to the equal right to life of the mother,
guarantees in its laws to respect, and, as far as practicable, by its laws to defend
and vindicate that right. This subsection shall not limit freedom to travel between
the State and another state. This subsection shall not limit freedom to obtain or
make available, in the State, subject to such conditions as may be laid down by law,
information relating to services lawfully available in another state.’
and substantial risk to the life of the mother a legal abortion may
be performed in order to protect the mother’s life.50 This exception
was established in Attorney General v. X51 where a fourteen-year-old
girl who became pregnant as a result of being raped requested that
the Supreme Court lift an injunction which had been granted by
the High Court preventing her from travelling in order to undergo
an abortion. The majority of the Court lifted the injunction as there
was a real and substantial risk that the girl would commit suicide if
she was not permitted to have an abortion. Finlay CJ observed that
the mother’s right to life must be protected in such circumstances
stating that:
… the proper test to be applied is that if it is established as a matter of prob-
ability that there is a real and substantial risk to the life, as distinct from the
health, of the mother, which can only be avoided by the termination of her
pregnancy, such termination is permissible, having regard to the true inter-
pretation of Article 40, s 3, sub-s 3 of the Constitution.52
There is no evidence in Bridget’s case that her life is in any kind of

danger if she gives birth to the baby and, as such, having an abortion
in Ireland is not a possibility. This has implications regarding any
claim that Bridget may have against the doctor. In order to establish
a claim in negligence, she must prove that she was owed a duty of
care, that the doctor had acted unreasonably and that this failure
to take reasonable care caused the damage.53 It is clear here that the
doctor owed Bridget a duty of care and that his failure to disclose the
information regarding the foetus was negligent behaviour. However,
it is in relation to the last part of her claim that Bridget will have
most difficulty. If a defendant is to be liable in negligence, it must be
shown that the negligent behaviour caused the damage. To measure
causation the courts have adopted the ‘but for’ test, i.e. the plaintiff
must prove that but for the defendant’s negligence he/she would not
have been injured.54 Bridget’s case would fail on an application of the
‘but for’ test. It cannot be said that ‘but for’ the failure of the doctor
to inform her of the anomaly she would have avoided the damage as
the only way to avoid the damage was through an abortion which
was not legally available to her.
50 51
Attorney General v. X [1992] 1 IR 1. Ibid.
52 53
Ibid. at 53. Donoghue v. Stevenson [1932] 1 AC 562.
54
Barnett v. Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
Alternatively, Bridget could argue that the doctor’s failure to inform

her of the anomaly deprived her of the opportunity of travelling to
another jurisdiction in which she could obtain an abortion. However,
such an argument is also unlikely to succeed. It is doubtful given the
protections offered to the unborn under Art. 40.3.3 that the courts
would recognise such a claim as a matter of public policy.55 For these
reasons it would also be unlikely that Bridget would succeed in a claim
where the child was disabled.56
Italy
I. Operative rules
Bridget can recover damages (for both economic and non-economic
loss) from the doctor.

Under Italian law57 within the first ninety days of pregnancy a woman
can undergo a legal abortion if there are foetal anomalies or malfor-
mations, however only if these anomalies pose a serious threat to her
physical or mental health. After the first ninety days, abortion on the
ground of foetal anomalies is only allowed before the foetus has grown
so much that it would be able to survive outside of the womb, and
only if the anomalies are likely to cause grave danger58 to the woman’s
physical or mental health.
During the last ten years, the Supreme Court seems to have reached
a well-established position in ‘wrongful-life’ cases.59 Accordingly, a doc-
tor who intentionally or negligently fails to inform a pregnant woman
about possible or existing foetal anomalies or malformations is liable
for breach of contract (Art. 1218 CC). The mother (or the father)60 of the
disabled child can recover damages, providing that the requirements
for legal abortion were met at the time of the doctor’s failure.
55
McKay v. Essex Area Health Authority [1982] QB 1166.
56
Macfarlane v. Tayside Health Board [1999] 3 WLR 1301.
57
Arts. 4 and 6 Pregnancy Interruption Act (Legge 22 May 1978, n. 194).
58
According to Cass. 24 Mar. 1999 no. 2793, Danno resp. 1999, 10, 1033 with
commentary by R. De Matteis, a ‘grave danger’ under Art. 6 Pregnancy Interruption
Act is something more than a ‘serious threat’ under Art. 4 of the same Act.
59
Cass. 1 Dec. 1998 no. 12195, Danno resp. 1999, 5, 522 with commentary by
E. Filograna; Cass. 24 Mar. 1999 no. 2793 (n. 58 above); Cass. 10 May 2002 no. 6735,
Danno resp. 2002, 11, 1148; Cass. 29 Jul. 2004 no. 14488, Corriere giur. 2004, 143; Cass.
20 Oct. 2005 no. 20320, Foro. it. 2006, I, 2097.
60
As recently decided by Cass. 20 Oct. 2005 no. 20320 (n. 59 above) .
Both economic and non-economic loss is recoverable. Economic loss

includes damnum emergens (e.g. medical expenses, other expenses for
the care of a disabled child) and lucrum cessans (i.e. the reduction in the
mother’s income due to the necessity of taking care of a disabled child).
Non-economic loss consists of both the psychological shock resulting
from the birth of a disabled child and the harm to social and family
life (danno alla vita di relazione).61
Non-economic loss is always assessed by making use of the equitable
method (Art. 1226 and 2056 CC). In cases such as the present one, the
courts also apply this method to quantify economic loss because of the
impossibility of exactly assessing future costs and income reductions
due to the birth of a disabled child.62

Since Italian law only allows abortion if it is necessary to protect the
mother’s health, it could be argued that only the harm to the mother’s
health should be recoverable. This argument was put forward in 1994 by
the Corte di cassazione in a case involving an unsuccessful abortion, which
resulted in the birth of a perfectly healthy child.63 In 1998, this prece-
dent seems to have been overruled, as the Supreme Court stated that the
requirement of grave danger for the woman’s health only poses a limit to
the woman’s right to abortion, and not to the contractual liability of the
physician. Accordingly, if the requirements for a legal abortion are met
but the woman cannot freely decide on an abortion because of the doc-
tor’s contractual breach, she is entitled to damages not only for injury to
her health, but also for all other types of harm, including economic loss.
However, the latter rule was stated in a case where a disabled child was
born and it was confirmed by later judgments all concerning similar
cases. Thus, one may wonder whether the Supreme Court will also apply
the 1998 rule to cases where an unwanted healthy child is born.
61
A precise definition of the recoverable damages has been given by Cass. 10 May
2002 no. 6735 (n. 59 above).
62
Cass. 10 May 2002 no. 6735 (n. 59 above).
63
Cass. 8 Jul. 1994 no. 6464, Nuova giur. civ. comm. 1995, I, 1111. In this case, the
woman did not suffer any physical or psychological harm; on the contrary, she
experienced maternity as something positive. She only felt she was harmed by the
doctor from an economic point of view, as she had decided to undergo abortion
because she was very young and hence not able to support a child. Thus, she
sued the doctor to recover the costs of the child’s support and education, but was
unsuccessful.
The Netherlands
I. Operative rules
Bridget can claim both damages for economic loss (loss of income, costs
related to the life of the child, costs related to the delivery of the child)
and non-economic loss.

As he did not inform Bridget about the genetic foetal anomaly, the
doctor has breached a duty either in contract or in tort. According to
Dutch law, in cases such as these the substance and the consequences
of these breaches do not differ.
The result of the doctor’s breach of duty towards Bridget64 is that she
is deprived of the right to prevent the birth of a child with a genetic
anomaly, which is a part of her right to self-determination. In medical
cases, the right to information which creates the ability to determine
one’s own life as much as possible, is derived from Arts. 10 and 11
Constitution and from Arts. 7:448 and 450 BW.65
If a doctor breaches his/her duty to provide his/her patient with
information which is relevant in relation to that person’s possibility to
make choices, he/she is liable for the damage that has been caused by
the breach. The patient has to prove the causal relation between the
damage and the breach of duty (see Case 1). If the duty is to provide
the patient with information so that the patient can make a deliber-
ate, well-informed choice, the patient has to make it clear that he/she
would have made another choice provided that he/she had been given
the information. In this case, Bridget has to prove that she would have
decided to undergo a legal abortion. The likelihood of the position that
one would have made another choice depends on circumstances such
as the severity of the disability and the chance that the risk of the dis-
ability will be realised.
If Bridget manages to prove that she would have undergone a legal
abortion if she had been given the information, she is entitled to both
damages for economic and non-economic loss.
64
In Dutch case law and doctrine, a duty towards the child has also been
recognised: Court of Appeal The Hague, 26 Mar. 2003, C00/564; C.H. Sieburgh, ‘Het
zijn en het niet. De beoordeling in rechte van de gevolgen van een niet-beoogde
conceptie of geboorte’, in S. C. J. J. Kortmann and B. C. J. Hamel (eds.), Wrongful
Birth en Wrongful Life (Deventer: 2003) 65–92; Procureur General Hartkamp, in his
Conclusion of 5 Nov. 2004, C03/206HR.
65
HR 23 Nov. 2001, NJ 2002, 387.
The loss of income (she has to prove that she would have had (more)
income from employment if she would not have given birth) and the
costs related to the life of the child are both to be regarded as eco-
nomic loss. Furthermore, Bridget has a claim for costs related to the
delivery of the child.
Only if Art. 6:106 BW applies can Bridget obtain damages for non-
economic loss. In this case she can argue that the pregnancy and the
delivery cause physical injury and that she is entitled to compensation
for non-economic harm related to this physical injury. A case where
a mother gave birth by means of caesarean section was regarded as a
physical injury and the mother was entitled to damages for both eco-
nomic and non-economic loss.66 Another possible ground for obtaining
damages for non-economic loss is the ‘otherwise affliction of person’
principle. The fact that Bridget was not given the relevant informa-
tion to make a well-informed decision about keeping the baby is to be
regarded as an infringement of a right of personality which entitles
her to compensation of damages for non-economic loss.67
In the well-known Kelly case,68 the Dutch Supreme Court held that
the provider of care (a midwife) was not only liable towards the mother
of the disabled child but also towards the father and the child itself.
During the pregnancy check-ups, Kelly’s parents informed the mid-
wife that the father’s nephew had a severe disability. The midwife
assured the parents that it was not necessary to have prenatal screen-
ing (or to consult a geneticist) since the parents already had a healthy
child. When Kelly was born, it was clear that she suffered from the
same disability as her cousin.
According to experts, the information regarding the disability in the
family given to the midwife should have been a reason for a reason-
ably competent midwife to offer the parents the possibility of prenatal
screening and/or to consult a geneticist.
If the midwife would have done so, the geneticist would have
informed the parents about the risk of having a child with the same
disability as the father’s nephew. In that situation, the parents would
have been well-informed and would have been able to choose to
undergo prenatal testing. If that testing would have revealed that Kelly
had the same genetic disorder as her cousin, her parents would have
66
HR 9 Aug. 2002, C00/288 HR, LJN: AE2/17.
67
Advocat General Spier, in his Conclusion in HR 9 Aug. 2002, C00/288 HR,
LJN: AE2/17, who refers to other authors.
68
HR 18 Mar. 2005, C03/206 HR, RvdW 2005, 42 (Kelly).
had the opportunity to choose whether they would like to continue the
pregnancy or to terminate it (they argue that they would have chosen
to terminate the pregnancy, which would have been legally possible in
the Netherlands in the given circumstances).
In this case, the duty that has been breached by the midwife is the
duty to provide the parents with sufficient information to make well-
informed decisions regarding whether or not they would like to have
chosen to undergo prenatal testing.
Given the fact that a duty has been breached, the questions are (a) to
whom has the duty been breached; (b) has loss been suffered and/or is
it repairable; and (c) does a relevant causal relationship exist between
the breach of duty and the loss?
The answers to these questions are closely connected. The solution
chosen by the Supreme Court in the Kelly case is that the midwife not
only breached a duty to the mother (based on the contract) but also to
the father and the child.
The breach of duty to the father is extra-contractual (no contract
had been concluded between the midwife and the father). The mid-
wife’s duty to the father is inspired by her duty to the mother, since the
interests of the father are most closely related to the substance of the
contract between the midwife and the mother. Therefore, the midwife
breached a duty to the father imposed by a rule of unwritten law per-
taining to proper social conduct (Art. 6:162, para. 2).
Although in general it is possible to breach a duty to an unborn
child (for instance through intra-uterinal malpractice), the question is
whether in this case the child can derive a breach of duty to itself from
the breach of duty to its parents. The child has no right to its own non-
existence.69 Therefore, the duty to the child is derived from the duty
to correctly and adequately inform its parents. Since parents are sup-
posed to want to obtain information that will protect the interest of
their child in a way which they consider to be the best for their child,
the doctor has a duty to correctly and adequately inform the child.
The breach of the duty to the parents implied a breach of an extra-
contractual duty to the child.70
69
See for a different opinion on that aspect see Van Kooten and Wattendorff, ‘Het
belang niet geboren te worden’, in L. Timmerman, H. van Kooten, L. Strikwerda
et al., Hartkampvariaties (Deventer: 2006) and T. Hartlief, ‘Hollandse toestanden: de
Hoge Raad over “wrongful life”’ (2005) 22 Nederlands Tijdschrift voor Burgerlijk Recht
232 et seq.
70
Although it is technically possible to base a duty on contract (either when the
parent concluded a contract with the midwife in favour of their child or when the
In relation to damages, the parents are entitled to damages for eco-

nomic loss (the costs of raising the child). With regard to damages for
non-economic loss, the mother has a claim (Art. 6:106, para. 1(b)) for
the infringement of her fundamental right to self-determination. The
father has a claim for the same reason. In addition to this ground for
non-economic damages it is possible that the parents will suffer men-
tal harm on being confronted with a disabled child. If they want com-
pensation for this type of harm they have to prove that they actually
suffered relevant mental harm (which can for instance be proved by
the fact that they need to see a psychiatrist).
The harm suffered by Kelly is a more complicated issue. Since dam-
ages are often calculated by comparing the situation with and without
the breach of duty, the situations to be compared would be the situation
where the disabled child exists and the situation where it does not exist
at all, since it is factually impossible that the child would have existed
without the disability. The problem is that by granting the child costs for
its entire life, the judge seems to imply that it has a right to its own non-
existence. Nevertheless, the Supreme Court granted the child its own
claim (in case her parents die and are no longer able to claim the costs of
raising her). It has to be mentioned here that the disability of the child in
this case is so severe that it is hard to imagine how there could be costs
related to the life of the child that are not related to its disability.
Finally, the causal relationship between the breach of duty and loss
concerning the child’s claim is questionable for reasons that are com-
parable with the question regarding the compensation of its loss. Since
the doctor’s breach of duty did not actually worsen the child’s disabil-
ity, he/she did not cause the harm. This argument is paralysed by mere
reference to the possibility of liability for loss caused by omissions in
general.71 The other argument concerning the causal relationship is
that if a causal relationship were accepted it factually implies that the
child has the right not to exist. Presupposing that a situation in which
the child would have existed without a disability is technically impos-
sible, it is unacceptable that for that reason the existing duty towards
the child would be of no effect.72 Although the Supreme Court did not
contract has to be interpreted as protecting both the interests of the parents and
the unborn child (see Sieburgh, ‘Het zijn en het niet’ at 85–91)), in the given case
the Supreme Court based the duty towards the child on tort.
71
Asser and Hartkamp, Asser’s handleiding tot de beoefening van het Nederlands Burgerlijk
Recht. Verbintenissenrecht. De verbintenis in het algemeen, 4-I (Deventer: 2004) no. 438.
72
C.H. Sieburgh, ‘Schadevergoeding én leven, Compositie met rood, geel en blauw’
(2005) Weekblad voor Privaatrecht, Notariaat en Registratie 6637, 755–62.
explicitly explain how the causal relationship is constructed, it holds

the midwife liable for the loss suffered by the child due to the breach
of duty, explicitly considering that it does not have a right to its own
non-existence. Moreover, the Supreme Court has considered several
times that granting the claim of the child does not mean that the life
of the child is considered to be of less value. The mere aim of granting
the claim is to compensate the child for life costs.
Portugal
I. Operative rules
Bridget is entitled to sue the doctor for breach of the medical duty to
inform, and to claim compensation for economic and non-economic
loss.

Art. 142(1) CP, last amended by Act no. 16/2007 of 17 April, sets out
five causes of justification which make abortions not criminally
punishable. These include abortions within the initial ten weeks
of pregnancy by choice of the patient, abortions within the initial
twenty-four weeks of pregnancy when there are sound grounds to
foresee that the child will suffer an incurable grave illness or congeni-
tal malformation, and abortions of non-viable foetus in any moment
of the pregnancy.
These exceptions to the criminal wrongfulness of abortion strike a
balance between the constitutionally protected prenatal life and the
constitutionally protected rights of pregnant women, such as their
right to life, health, honour, reputation, dignity and conscious mater-
nity. Act no. 16/2007 imposes on the National Health Service (Serviço
Nacional de Saúde) the obligation to guarantee pregnant women the pos-
sibility of carrying out an abortion under the conditions legally estab-
lished (Arts. 2 and 3).
The Medical Ethics Code (Código Deontológico, CD) states that doctors
should clarify the diagnosis or medical treatment he/she intends to use
to the patient, his/her family or whoever legally represents him/her
(Art. 38(1)). In addition, doctors should also reveal any prognostic or
diagnostic information to the patient, except if the doctor believes, for
important reasons, that this should not be done (Art. 40(1)). Therefore,
doctors have the duty to inform pregnant patients about any special
condition or foetal deficiency whenever they know about it, and also
of their prospects, in accordance with medical science and legis artis. In
this case, the doctor should have informed Bridget of the genetic foetal
anomaly as soon as he knew about it.
Then, Bridget would have had the opportunity to undergo a legal
abortion. In depriving Bridget of the possibility to undergo an abor-
tion for a genetically abnormal foetus, the doctor violated his duty
of informing her, thereby harming her right to conscious maternity.
Moreover, by not informing Bridget about the genetic foetal anomaly,
the doctor also committed a disciplinary infraction and can therefore
be sanctioned by the Medical Doctors Council.
In conclusion, Bridget can sue the doctor for violation of his duty to
inform her of the prenatal prognostic/diagnostic information and the
consequent violation of her rights to honour, reputation, dignity and
conscious maternity, thereby claiming compensation for economic
and non-economic loss. If there was a contract for the provision of ser-
vices between Bridget and the doctor or the clinic/hospital where he
worked (private medical care), the doctor and/or the clinic/hospital are
presumably at fault and the provisions which can underlie the claim
are Arts. 798 and 799 CC. If the medical service was provided by a pub-
lic hospital/service, then Bridget would have a claim in tort based on
Arts. 70(1), 483 and 496 CC.
Scotland
I. Operative rules
The outcome of this case is uncertain.

This question raises the issue of what has been referred to as a ‘wrong-
ful birth’ case, which gives rise to issues governed in England (but not
in Scotland) by the Congenital Disabilities Act 1976.73 The authorities in
both Scots and English law generally avoid use of the term ‘wrongful’.
The issue here addresses medical negligence through the failure to cor-
rectly diagnose and inform the patient thereafter, and furthermore, the
extent to which this failure breaches relations inherently confidential.
73
Congenital Disabilities (Civil Liability) Act 1976, Ch. 28. S. 1(2)(a) covers wrongful
birth situations where a doctor negligently advises parents about the risk of a
future child inheriting a genetic disorder, and a child is conceived on the basis of
this information and born disabled. The categories of in utero damage now extend
to disabilities arising from the selection or storage of embryos during fertilisation
treatment, see Human Fertilisation and Embryology Act 1990. The latter applies in
Scotland.
Breach of confidentiality in this context relates to the failure to create a

basis for personal informational autonomy in the sense of being placed
in an informed position so as to decide whether or not to give birth
to the child. Bridget has a right to a healthy family life, as part of her
rights under Art. 8 ECHR. The patient-doctor relationship is of a spe-
cific confidential nature and Scots law has traditionally recognised the
category of breach of confidence at least. Congenital abnormality is a
ground for the termination of pregnancy under s. 1(1)(d) of the Abortion
Act 1967. It appears that there is potential for the development of the
law here.
The intricacies of the National Health Service (NHS) result in claims
against the medical profession being made under the heading of neg-
ligence and not contract.74 Unlike continental case law, there is a lack
of reference in the decisions to any contractual notion of performance
or remedy ad quem.
Paradoxically, in the face of negligently performed sterilisation
operations the Scottish and English courts are willing to recognise
that there has been personal injury and wrongdoing or negligence.
Nevertheless, they are conscious of the problem that a wrongdoing
may go without a remedy, treating the question of damages as a sepa-
rate issue. Although not explicitly referred to in so many words, birth
(and life) is not an injury, thus alleviating the courts of the need to
quantify life in the form of damages. Interestingly, great attention and
parallels are sought in relation to what is otherwise seen in tort law
as consequential loss of unwanted or ‘uninformed’ motherhood in this
situation.75
The predominant Scottish authority relates to wrongful conception.
Here, the Scottish courts have been willing to award damages or sola-
tium for the parental distress caused by an unwanted pregnancy.76 Case
74
Considerations relating to private medicine are not addressed here, but it is
submitted that even in relation to this the issue will revolve around delict/
negligence and not around contract.
75
MacFarlane v. Tayside Health Authority per Lord Hope: ‘The fact that pregnancy
and childbirth involve changes to the body which may cause in varying degrees
discomfort, distress and pain, solatium is due for the pain and suffering which
was experienced during that period. And the fact that these consequences flow
naturally from the negligently caused conception which has preceded them does
not remove them from a proper scope of the award.’
76
Allan v. Greater Glasgow Health Board 1998 SLT 580 judgment of 25 Nov. 1993, no
general restriction or policy reasons not to make such an award in Scots law,
therefore damages awarded for pain and distress of pregnancy and birth (Lord
law to date was reviewed in the House of Lords appeal in a Scottish

case, McFarlane v. Tayside Health Authority in 1999.77 In that case, the Lords
rejected any claim for wrongful birth but did allow a conventional (or
low) award to be fixed by the Court of Session for pain and suffering,
however not for the costs of raising the child. In reaching their conclu-
sion, the Lords went to great lengths to compare the legal position of
child and mother in a wrongful life situation on a comparative basis.78
Since that decision, English authorities have shifted the focus from
the policy-weighted arguments against awards for wrongful concep-
tion or birth where these relate to the costs of upbringing as conse-
quential loss in cases involving disabilities. The two English cases,
Parkinson v. St James and Seacroft University Hospital79 and Rees v. Darlington
Memorial Hospital NHS Trust80 necessitated a reassessment of the issue
where either the child born is disabled or the mother herself is disa-
bled. Both of these decisions mark cautious departures from the general
rule against maintenance damages to only allow them where there are
such special circumstances.81 MacFarlane has only been distinguished
and neither departed from nor overruled.
This cautionary approach applies equally to wrongful life actions, i.e.
actions brought by the child him- or herself. There is only pre-HRA
English authority on this point. The traditional position was adopted
in McKay v. Essex Area Health Authority,82 a case which relates exclusively
to disabilities which arose through medical negligence in the failure
to diagnose rubella.83
The reasons for the rejection of the wrongful life action have been
discussed in full elsewhere. Firstly, the prevailing view is that ‘to dam-
age is to make worse, not to make simpliciter’.84 In other words, there
Cameron); the Outer House rejected the claim for damages in McFarlane 1997 SLT
211 but this was adjusted by the Second Division which recognised a claim for
damages where damnun has resulted from iniuria, 1998 SLT 308. In the final decision
of the House of Lords in MacFarlane, see above.
77
MacFarlane v. Tayside Health Authority.
78
Ibid., particularly the speeches of Lord Slyn and
Lord Hope.
79 80
[2002] QB 266. [2003] UKHL 52.
81
This was the position taken earlier in England in Emeh v. Kensington AHA [1984] 3 All
ER 1044.
82
[1982] QB 1166.
83
B. S. Markesinis and S. F. Deakin, Tort Law (3rd edn., Oxford: 1994) 251–7.
84
Ibid. at 255. The pervading argument against wrongful life claims appears to be
that a decision on abortion would thereafter fall within the doctor’s duty of care
and place a further duty on the doctor, instead of allocating it to the private sphere.
have been no external influences leading to the genetic abnormality.

Secondly, British courts clearly shy away from regarding life, whether
healthy or not, as an injury. This is a matter of legal policy from which
the judges are not willing to depart and which was examined in detail
in Rees in the context of wrongful birth.
The one area which still requires development is the right to fam-
ily life in terms of Art. 8 ECHR, in conjunction with breach of confi-
dentiality as an inherent part of that right.85 Scots law continues to
operate the concept of personal wrongdoing within the category of
negligence.
To establish liability by a doctor where departure from normal practice is

alleged, three facts require to be established. First of all, it must be proved that
there is a usual normal practice. Secondly, it must be proved that the defender
has not adopted that practice; and thirdly (and this is of crucial importance),
it must be established that the course the doctor adopted is one which no pro-
fessional man of ordinary skill would have taken if he had been acting with
ordinary care.86
A negligence claim would stand or fail simply on the basis of what the
professional standard is seen to be.87 However, this being said, wrong-
ful conception actions in Scots law brought by the mother remain
permissible and particularly so since McFarlane.88 The HRA could con-
tribute to the development of the law here by allowing an action for
breach of confidence where the patient has not been informed of the
likelihood of disorder.

Scots law may well allow a claim for breach of confidentiality where
there is a clear doctor-patient relationship of confidentiality. In such
a case, it has been stated with authority that a claim for actio iniuri-
arum could be admissible.89 Despite the lack of authority, the relevance
of the right to a (healthy) family life in the context of Art. 8 ECHR
deserves to be reflected in future case law. It is submitted that McKay
and Essex would be viewed nowadays as wrongful birth on a par with
85
Markesinis and Deakin, Tort Law, 257.
86
Hunter v. Hanley 1955 SC 200 at 206, per Lord Clyde.
87
Whitehouse v. Jordan [1981] 1 All ER 267 is still looked upon as the general approach.
88
See J. Blackie, in E. Deutsch and H. L. Schreiber, Medical Responsibility in Western
Europe (Berlin: 1985) 568–94.
89
See Stair, Memorial Encyclopaedia, Law Society of Scotland (Edinburgh: 1996), Vol. 14,
para. 1131.
the exceptional circumstances outlined in Rees, giving rise to an action

on the basis of the case.90
Spain
I. Operative rules
Bridget is entitled to receive compensation because the doctor did not
inform her about the foetal anomalies. Compensation will be calcu-
lated according to the loss that the anomalies cause the mother. The
injured party will be able to claim for non-contractual liability and will
obtain damages for any loss she has suffered and any loss she thinks
she may suffer in the future.
Spanish tort law does not recognise general compensation in favour
of a child born with physical or psychiatric anomalies. Life is always
better than death.

Under Spanish law, wrongful conception cases are decided according to
the general liability rules. This is an important difference with main-
stream US case law (Roe v. Wade) in which the foundation of the right
to avoid pregnancy or to have an abortion is one of the dimensions of
the woman’s right to privacy. In Spain, when faced with these cases,
lawyers and courts argue about the loss caused to the wishes of the
parents by the pregnancy. Compensation for this loss is to be found in
the general clause of Art. 1902 CC (liability for negligence, alterum non
laedere).
Civil courts decisions clearly distinguish two types of cases:
(1) Cases involving so-called wrongful conception: those in which the

failure of birth-control measures results in the birth of a child.91 In
these cases, courts refuse compensation whenever it is demonstrated
that there was no medical negligence hindering the birth-control
technique.
(2) Cases of wrongful birth, such as the proposed one here. In this
type of case, courts recognise the necessity for compensation if it is
shown that the child’s anomalies amount to economic loss for the
family and non-economic loss for the parents.92
90
See above on liability under the Human Fertilisation and Embryology Act 1990.
91
The leading paper on this matter in Spanish doctrine is M. Martín Casals and
J. Solé Feliu, ‘Anticoncepciones fallidas e hijos no previstos’ (2001) 3 InDret at
www.indret.com.
92
The leading case is STS, 6 Jun. 1997 (RJ 4610). In this case, the mother of a
child born with Downs Syndrome claimed €300,506 from the doctors and the
It is important to point out that there is no general rule in Spanish

law to receive compensation in cases where there is no medical mal-
practice but the birth is subsequently not desired.93 The birth of a new
human life cannot be considered as harm in itself.
Therefore, compensation should be based on the existence of eco-
nomic or non-economic damage caused to the parents of children born
with anomalies which were not detected during the pregnancy.
Switzerland
I. Operative rules
The Swiss Federal Court has not yet dealt with a case such as this one.
In the current state of the law, the Federal Court would probably reject
the mother’s claim against the doctor for non-economic loss.

The issues surrounding the birth of an unwanted child, whether disa-
bled or healthy, are numerous and sensitive. Other than in a contractual
context, they all involve a discussion of personality rights. The question
of whether the parents suffer compensable economic loss on the one
hand, and whether they may be awarded damages for non-economic
loss on the other hand, are disputed. These problems specifically arise
in cases of failed sterilisation or failed abortion. They also surface in
cases where the foetus’ state of health is misdiagnosed, as in this case,
which led the mother to have a baby born physically impaired.94
Public Hospital of Valencia that had made a mistake in their prenatal tests
(‘amniocentesis’) and told the mother that the child was perfectly normal, when
after the birth it was clear that child was severely ill. The mother alleged that if
she had known about the disability before the twenty-two week gestation period
that the Spanish Criminal Code (Art. 417) sets as a limit to have an abortion in the
case of a malformation of the foetus, she would have had an abortion. The claimant
took this particular test twice, and on both occasions the test was unsuccessful
and the medical team did not say to her that it was better to repeat it. When the
foetal abnormality was fi nally detected, the legal term for an abortion had already
expired. The case was finally resolved by the Spanish Supreme Court decision
6 Jun. 1997, which ordered the medical team, the hospital and the Spanish Public
Health Service to pay damages to the claimant. See P. Salvador Coderch, ‘Aborto y
síndrome de Down’ (19 Jun. 1997) La Vanguardia. See also J. M. Bustos Pueche, ‘Un
caso de voluntarismo judicial, la sentencia del Tribunal Supremo de 6 de junio de
1997’ (19 Jun. 1997) Revista La Ley, and G. Díez-Picazo Giménez, ‘La imposibilidad de
abortar: un Nuevo caso de responsabilidad civil’ (15 Jun. 1998) Revista Jurídica La Ley.
93
See STS, 5 Jun. 1998 (RJ 4276).
94
On this subject, see T. M. Mannsdorfer, Pränatale Schädigung, Ausservertragliche
Ansprüche pränatal geschädigter Personen (Fribourg: 2000).
1. The state of case law

The judgments rendered by the courts to date deal with this hypoth-
esis, yet none of them have identical facts to those of the case at hand.
At a local level, in a case involving a failed sterilisation, the District
Court of Arbon awarded the mother both compensatory damages (for
lost income as she was prevented from working) and damages for pain
and suffering resulting from her pregnancy and the second sterilisa-
tion operation that she had to undergo.95 By contrast, the Civil Court
and the Court of Appeal of the region of Basel-Stadt rejected the award
of any compensation in a case concerning a failed abortion.96 Recently,
the administrative court of Berne left a similar issue undecided by
focusing on the absence of wrongdoing on the doctor’s part.97
In the current leading case, the Federal Court clarified the issue
surrounding expenses incurred by the parents of an unwanted – but
healthy – child: the doctor who omitted to perform a contractually stip-
ulated sterilisation was held liable for the costs arising from the birth
of the child (costs of education). The Federal Court stressed that the
damages must be awarded regardless of the parent’s economic situa-
tion and whether the child is born healthy or not.98 Unfortunately, the
Federal Court was not requested to rule on the issue of non-economic
loss. The regional court had awarded the mother 5,000 CHF under this
heading, but the doctor did not appeal this part of the judgment.99
2. Solutions suggested by authors and our suggestions

Authors are divided on the question of whether and under what cir-
cumstances damages should be awarded to a child’s parents.100 As far
as economic loss is concerned, these debates are now largely obsolete
as the Federal Court discussed most of the issues in its recent judgment
and rejected all of the authors’ objections directed against a parents’
95
Judgment of the Bezirksgericht of Arbon, in RJ n. 379.
96
BJM 1998, p. 131 and BJM 2000, p. 306.
97
BVR 2004, p. 289.
98
ATF/BGE 132 III 359, c. 4.6 and 4.8. 99 Ibid. at p. 361.
100
K. Oftinger and E. W. Stark, Schweizerisches Haftpflichtrecht, Allgemeiner Teil, Vol. I
(5th edn., Zurich: 1995) § 2 n. 54; W. Fellmann, ‘Schadenersatzforderung für den
Unterhalt eines unerwünschten Kindes’ (1987) Zeitschrift des Bernischen Juristenvereins
383; Mannsdorfer, Pränatale Schädigung, n. 977 and n. 1051; ibid., ‘Haftung für
pränatale Schädigung des Kindes – Grundzüge, Wrongful Life und Tendenzen’
(2001) Zeitschrift des Bernischen Juristenvereins 621 et seq.; R. Vito, Schweizerisches
Haftpflichtrecht (Zurich: 2002) n. 112 and n. 773; R. Thür, Schadenersatz bei
durchkreuzter Familienplanung: unter Berücksichtigung der Rechtsprechung in Deutschland,
England und den USA (Zurich: 1996) 67 et seq.
claim for damages.101 In turn, the question remains open as to whether

compensation for non-economic loss should be awarded. In fact, some
regional courts have expressly refused to award damages for pain and
suffering, while others recognise the existence of a claim.102
Damages for pain and suffering according to Art. 49 CO are subject to
several conditions: infringement of a personality interest, fault, pain
and a causal link between pain and fault. In the case at hand, it would
have to be proved that the doctor was at fault, in other words that
a ‘reasonable’ doctor placed in the same circumstances would have
noticed the foetal anomaly and informed the mother. The doctor’s
omission would be considered as the cause of the birth of a disabled
child. In our opinion, the infringement of a personality interest would
be seen in the fact that the mother was deprived of the right to choose
an abortion. Since Swiss law recognises the mother’s right to self-de-
termination during the first three months and even after that period
under certain circumstances, only she can decide whether she wishes
to undergo an abortion or to give birth to and take care of a disabled
child. As already mentioned before, damages could also be seen as an
award for the bodily and mental harm suffered by the mother in the
case of a psychological shock based on Art. 47 CO.103
According to Art. 49 CO, ‘when the injury and the omission are par-
ticularly grave’ the judge will allow ‘general pecuniary compensation’.
In the case at hand, the disabled child’s mother may undoubtedly
suffer a grave and serious injury. This could equally apply to cases of
failed sterilisation. Here again, no a priori distinction should be made
between a disabled child and a healthy but unwanted child.
However, given how difficult it is to evaluate a proper award, the
courts may be tempted to consider that the existence of the child
makes up for the pain of the unwanted birth. Regarding economic loss,
the Federal Court has refused to balance the parents’ educational costs
against the ‘joys of parenthood’, with the argument that an economic
loss cannot be compensated by immaterial advantages.104 This argument
does not apply to damages for pain and suffering. Therefore, one could
very well imagine that the judge might consider the positive impact of
the child’s existence for the parents, at the very least to evaluate the
101
ATF/BGE 132 III 359.
102
Court of Appeal of the region of Basel-Stadt, in BJM 2000, p. 306 c. 3. District Court
of Arbon, in RJ n. 379; ATF/BGE 132 III 359, p. 361.
103
F. Werro, La responsabilité civile (Berne: 2005) n. 72.
104
ATF/BGE 132 III 359, c. 4.8.
amount of compensation. This could even lead to the exclusion of any

damages depending on the circumstances of the case.
Comparative remarks
Right from the outset it is important to properly define the subject
of this case, which belongs to the broader context of medical law. It
deals with medical treatment undertaken in a doctor-patient relation-
ship. However, the focus is on a narrow aspect of this type of medical
law: the right to self-determination of the patient.
This case is embedded in the widely discussed subjects of wrong-
ful conception (pregnancy), wrongful birth and wrongful life. All
these problems have been engaged in most of the national reports.
Nevertheless, this case does not cover these problems. It is not a wrong-
ful conception case, i.e. parents claiming maintenance costs for an
unwanted child. For this type of case the terms ‘right not to have chil-
dren’ or ‘right to family planning’ are also used. It is not a wrongful
birth case, i.e. where parents claim costs for raising a disabled child
which would have been aborted if the doctor had provided the infor-
mation. Some legal systems such as Germany grant monetary compen-
sation in both types of cases. In most countries, damages are awarded
in the second case to a different extent. Finally, it is definitely not a
wrongful life case, i.e. the disabled child suing him- or herself for spe-
cial and general damages.
This case only raises the question whether a pregnant woman has a
legally protected right to decide whether to undergo a (legal) abortion
or not; and whether the violation of this right to self-determination
by negligently not disclosing the relevant information (here: genetic
foetal anomaly) to make such a decision demands monetary compensa-
tion (general damages).

Most national legal systems do not (yet) identify the pregnant wom-
an’s right to self-determination as an independent issue in the wrong-
ful birth case scenarios. The monetary costs of raising the disabled
child are put first; in addition compensation for the pain and suf-
fering caused by the unwanted birth of a disabled child may be
awarded. That is the law in Austria, Finland, Germany, Ireland, Italy
and Spain.
II. Legal systems allowing the woman’s claim

There are four remarkable national exceptions to the predominant
rule of non-acknowledgment of the woman’s interest in self-determi-
nation: Belgium, France, the Netherlands and Portugal.
The personality right aspect of this case has been precisely worked
out in the famous Kelly case by the Dutch Hoge Raad in 2005.105 The
court ruled that both parents had been harmed by an infringement of
their right to self-determination and were therefore entitled to general
damages.
In the 1980s, in cases of this kind, Belgian scholars already recog-
nised the parents’ claim for compensation of non-economic loss on the
basis of a violation of their right to family planning. This has now
become the prevalent opinion in Belgium.
In France, after a judgment of the Cour de cassation in 2001 a preg-
nant woman can now recover non-economic damages for having been
deprived of the chance to undergo a legal abortion ( perte d’une chance).
This claim is based on breach of contract. It leads to regular contrac-
tual liability; questions of autonomy rights are not raised.
In Portugal, the doctor’s failure to disclose the information is per-
ceived as a kind of moral injury and violates the woman’s rights to
dignity and personality (honour, reputation, and conscious maternity).
The woman’s claim is based in tort.
In all four countries where the deprivation of the chance to deter-
mine family planning is acknowledged as a cause of action for gen-
eral damages, the economic costs for raising the disabled child are also
recoverable provided Bridget proves that she would have decided in
favour of an abortion.
III. Legal systems where the woman’s claim could possibly be

successful
In England and especially in Scotland, a court would possibly allow
Bridget’s claim on the basis of an infringement of her interest in fam-
ily planning, acknowledged in Rees v. Darlington Memorial Hospital NHS
Trust.106 In the Rees case, a disabled woman was awarded compensation
for not being able to have the family life she had planned, since a failed
sterilisation led her to having a baby. However, the factual differences
105
HR, 18 Mar. 2005, RvdW 2005, 42.
106
Rees v. Darlington Memorial Hospital NHS Trust.
between Rees and the present case make the likelihood of Bridget’s
claim being successful uncertain.
In Greece and Switzerland there is neither case law nor established
doctrine on this issue. However, both the Greek and the Swiss reports
plead for the acknowledgment of Bridget’s claim on the basis of the
protection of personality rights by the law of delict. In Greece, the legal
basis would be Art. 57 of the Civil Code: a particular aspect of the right
of free development of personality is freedom of choice, which might
include the right to an abortion. According to the Swiss report, the
present case clearly falls under Art. 28 ZGB (infringement of person-
ality), since Bridget was deprived of her right to choose an abortion.
Swiss law recognises the mother’s right to self-determination during
the first three months of pregnancy and even after that period under
certain circumstances.
20 Case 17: WAF – A gang of
incompetents?
Case
In an interview about environmental protection, Howard, the presi-
dent of a chemical company, accused the association ‘World Animal
Fund’ (WAF) of being a ‘gang of incompetents who were taking advan-
tage of people’s credulity and using member contributions for mysteri-
ous purposes’. Can the WAF sue Howard for damages?
Discussions
Austria
I. Operative rules
The legal entity WAF has the legal standing to sue. Compensation
would only be awarded for economic loss.

The crucial point in this case is the question whether a legal entity can
be defamed in the sense of § 1330 ABGB, subs. 1. According to the OGH
and to some legal writers,1 the ‘insultability’ (‘Beleidigungsfähigkeit’),
and thus the right of action, stems from § 26 ABGB which sets out
that legal persons have the same rights as natural ones. Comparable
things should be dealt with comparably; consequently, a legal person
unjustly labelled a ‘gang of incompetents’ suffers harm to its reputa-
tion since its social standing is tarnished by such an ‘attack’.2 Korn and
1
See OGH MR 1988, 194 (‘Camel’); MR 1997, 83; MR 2000, 22 et al.; R. Reischauer in
P. Rummel, Kommentar zum ABGB II/2b (3rd edn., Vienna: 2004) § 1330 no. 23b.
2
See OGH MR 1997, 83.
543
Neumayer3 are the foremost critics of such a right, but fail to state a
basis for their opinion.
If, on the other hand, the claim is based on § 1330, subs. 2 ABGB –
under which ‘economic reputation’4 (reflected in one’s creditworthi-
ness, earnings and advancement in profession) is protected against
the dissemination of facts which do not correspond to the truth – the
standing to sue is not questioned as the business reputation of legal
entities must be protected in any event.
The WAF is an association according to § 1 Vereinsgesetz5 (law govern-
ing associations) and thereby a legal person with corresponding legal
rights. The ‘WAF’ is not established for profit, however in order to real-
ise the goals of its charter it has to act like a profit-minded business
enterprise. Therefore, the WAF may suffer economic loss, either result-
ing from the loss of its creditworthiness or resulting from the reduc-
tion of its earning potential.
Beyond that, it is conceivable that legal persons can also suffer non-
economic loss. Of course, one cannot speak of ‘emotional distress’ in
this case, but of non-economic harm, e.g. the impairment of ‘social
esteem’, of ‘good will’ (commercial value, ‘Marktwert’) or of competi-
tiveness.6 Yet, even this damage will materialise in the end – a prob-
lem which leads to the fundamentally blurred distinction between
economic and non-economic loss. However, under § 1330 ABGB only
economic loss can be compensated.
Since Howard makes his accusation in the course of an interview, § 6
MedienG is likely to apply. Nevertheless, this regulation cannot provide
a basis for a claim as only natural persons have legal standing to sue
under its provisions.
§ 7 and § 16 UWG (Gesetz gegen den unlauteren Wettbewerb, Unfair
Competition Act) are not implicated because the present case does not
raise the question of market competition.
3
G. Korn and H. Neumayer, Persönlichkeitsschutz im Zivil- und Wettbewerbsrecht
(Vienna: 1991) 50 et seq.
4
See Case 1.
5
Cf. T. Höhne, G. Jöchl and A. Lummersdorfer, Das Recht der Vereine (Vienna: 1997).
6
Compare the discussion surrounding § 16 UWG (Unfair Competition Act,
UWG): the Supreme Court awards damages for non-economic loss under § 16
subs. 2 UWG, not only to natural persons but also legal persons. Thus, the Court
accepts the existence of non-pecuniary loss even if legal persons are concerned.
This point of view is rejected within legal scholarship to a great extent. See OGH
MR 1996, 74 = ÖBl 1996, 134; F. Mahr, ‘Der immaterielle Schaden der juristischen
Person im Wettbewerbsrecht’ (1994) WBL 69; P. Rummel, ‘Zur Verbesserung des
schadenersatzrechtlichen Schutzes gegen unlauteren Wettbewerb’ (1971) JBl 385.
c a se 17: wa f – a ga ng of incompet en ts? 545
Belgium
I. Operative rules
The WAF can bring an action against Howard.

The president (or another competent organ) of the WAF can sue for
damages on behalf of the association. In that sense, legal bodies are
holders of rights and duties. Consequently, they are protected by per-
sonality rights.7
In the context of a legal body’s ‘right to standing and reputation’,
Howard tarnishes the prestige and credibility of the WAF. The presi-
dent can sue for damages for the resulting economic loss which may
consist of a loss of members and membership fees. The president can
also sue for emotional damages on the ground of defamation.8
England
I. Operative rules
The WAF may have a claim against Howard in defamation if a class of
persons can be identified.

Generally speaking, the defamation of a class of persons is not action-
able as the words cannot be said to be published of a particular claim-
ant.9 However, much depends upon the size of the class, the generality
of the charge and the excessiveness of the accusation. The claim here
seems to refer to the central management of the WAF and as this is
a limited group probably comprised of trustees and directors or man-
agers it may be taken to refer to every member of this group and thus
these members might be able to sue.10 The very vagueness of the accus-
ation (testified by the difficulty in associating the statements made to
the persons they are made about) may help Howard avoid liability if
the persons he is accusing cannot be defined. It is not the members he
7
In general see G. L. Ballon, ‘De persoonlijkheidsrechten van de rechtspersoon’, in
Liber amicorum Jan Ronse (Brussels: 1986) 127–46.
8
E. Guldix, ‘Algemene systematische beschouwingen over het persoonlijkheidsrecht
op de eigen afbeelding’ (1980–81) RW 1161–1192 n° 121.
9
Knupffer v. London Express Newspaper Ltd [1944] AC 116, at 124 (per Lord Porter).
10
See Foxcroft v. Lacey (1613) Hob 89; Browne v. D.C. Thomson & Co (1912) SC 359; Aspro
Travel Ltd v. Owners Abroad Group plc [1995] 4 All ER 728.
is accusing as he says they are being taken advantage of, but can the
actual persons he is blaming be identified? Howard seems to be tar-
ring them all with the same brush, thus if they can be identified as a
class then there would possibly be a claim.
Finland
I. Operative rules
The WAF might be able to sue for damages.

The reform of the Finnish Penal Code on 1 October 2000 ensured impor-
tant changes in the legal landscape.11 The honour and reputation of a
legal person is not protected by the same provisions as the honour and
reputation of natural persons. The scope of Ch. 24, s. 9 of the Finnish
Penal Code does not extend to legal persons.12 As such, the defamation
provisions in the Finnish Penal Code are not applicable.
However, to some extent the WAF can be considered a trader and the
statement made by the president of the chemical company can be con-
sidered part of the business activity of that company. Therefore, it is
not impossible that the Finnish Act on Unfair Business Practices could
be applicable and the statement considered as unfair business prac-
tice. If this is the situation, the Market Court can grant an injunction
against the chemical company which expressed discrediting informa-
tion about the WAF.
As was described in Case 7, the violation of the provisions of the Act
on Unfair Business Practices can constitute grounds for compensation
if the act is considered to fulfil the criterion of especially weighty rea-
sons for compensation. Therefore, the WAF could also sue for damages
for pure economic loss at a local court. It is not possible for the WAF to
obtain damages for non-economic loss.
France
I. Operative rules
The WAF can, in principle, bring an action for defamation against
Howard, but it is not certain that its claim for damages will succeed.
11
See Tiilikka, Päätoimittajan vahingonkorvausvastuu, unpublished licentiate (master’s)
thesis (Helsinki: 2000) 237–9.
12
Government Bill 184/1999 p. 35 and Tiilikka, Sananvapaus ja yksilön suoja –
LehtiArtikkelin aiheuttaman kärsimyksen korvaaminen (Vantaa: 2007) 534.

Although the notion of honour, due to its moral connotation, does not
really correspond to legal persons, nevertheless the latter have a repu-
tation to protect.13 Thus, it is admitted that an entity enjoying legal
capacity, whether for profit or not, enjoys the same rights as a natural
person to defend their reputation and to obtain recovery of any loss
suffered. Accordingly, half a century ago the Cour de cassation held that
legal persons can bring an action for defamation14 and may exercise the
right of reply.15 The French courts have since had the opportunity to
sanction ‘injuries to the professional reputation of a company which by
their nature question the respectability of the company’.16 Once defa-
mation has been found, the case law requires the instigator thereof ‘to
repair the commercial and moral damage of the defamed merchant’.17
In relation to legal persons exercising a commercial activity, such as
corporations, the loss suffered from the damage to reputation is usually
economic, essentially that of a loss of clients.18 In cases involving non-
profit organisations having legal personality, for example associations,
the loss is purely non-economic in principle. However, one may argue
that the injury to their reputation and their credibility has, as a conse-
quence, a reduction in the number of donations and memberships (and
membership fees), and thus constitutes economic loss. Therefore, in
this case the WAF could argue that Howard’s statements have caused
both economic and non-economic loss to the association.
Thus, if the principle of protection of the reputation of legal persons
is well established in French law, it remains to be examined whether
Howard’s statements in fact constitute the criminal offence of defam-
ation. The Cour de cassation has in fact held in quite an old decision
that ‘if a commercial enterprise can (…) obtain reparation of the injury
to its professional reputation, which might be caused by defamatory
13
Petit, ‘Les droits de la personnalité confrontés au particularisme des personnes
morales’ (1998) 117 Dalloz Affaires 828; Wester-Ouisse, ‘Le préjudice moral des
personnes morales’ (2003) I JCP 145.
14
Cass. crim 12 Jun. 1956, D. 1956, jur., 577: the legal text which punishes defamation
‘specifies that the allegation or imputation must concern a person or body and is
applicable to natural persons as well as to entities’.
15
Cass. crim. 6 Nov. 1956, JCP 1957, II, 9723: ‘A natural or legal person mentioned in
a press article is entitled to decide whether to make use of his/her/its right of reply,
and the form in which he/she/it intends to exercise the latter’.
16
CA Paris 3 Nov. 1983, Gaz. Pal. 1983, 2, somm., 425.
17
CA Paris 12 Oct. 1989, D. 1989, IR, 292.
18
Beignier, L’honneur et le droit (Paris: 1995) 244.
imputations or allegations, it is necessary that (these) concern facts suf-

ficiently precise to be susceptible of legal proof’.19 In the instant case,
the statement ‘a gang of incompetents’ is more of an insult than def-
amation in so far as it is not a question of the imputation of a definite
fact. On the other hand, the allegation of the donors’ abuse of confi-
dence and the misuse of contributions for mysterious purposes may be
held to be defamatory.
The WAF can thus bring an action before a criminal court to have
Howard convicted. In addition, in the framework of the ‘civil action’
they can bring an action to obtain damages recovering both the non-
economic and the economic loss suffered by the association. Such an
action, however, presupposes that the conditions set out by the Freedom
of the Press Act 1881 for the validity of procedures, notably the extremely
brief prescription period of only three months and the respect of a very
strict formalism (see Case 1) be fulfilled. Even if these preconditions are
fulfilled, the claim for damages brought by the WAF against Howard
could still fail on the ground that the injury to reputation thus perpetu-
ated is justified by Howard’s interest to inform the public about the mis-
use of funds by a group appealing to the public’s generosity.
In relation to the action for reparation before the civil court on the
basis of the rules of tort liability, such an action is now denied to victims
of the ‘abuse of the freedom of expression provided for and punished by
the Act of 29 July 1881’.20 Consequently, the WAF cannot claim before
the civil courts under the conditions of general private law in order to
escape from the procedural restrictions encompassed in the 1881 Act.
Germany
I. Operative rules
The WAF may claim damages for economic loss, if there is any. However,
damages for non-economic loss cannot be claimed by the WAF.

This case raises the question of whether organisations such as the WAF
have a right to honour and reputation. The general view is that organi-
sations do enjoy the protection of all interests required by them in
order to fulfil their organisational aims and functions. Some scholars
speak in this sense of a non-economic right to social acknowledgment
19
Cass. crim. 22 Mar. 1966, JCP 1967, II, 15067.
20
Cass. Ass. Plen. 12 Jul. 2000, D. 2000, somm., 463. See above Case 1.
(‘Sozialgeltung’).21 This right is given to commercial companies,22 as well

as to non-profit organisations.23 Therefore, the WAF has a valid interest
in protecting its reputation.
Courts regularly assume that the right falls under § 823(1) BGB.
However, organisations do not enjoy the same intensive protection
as natural persons do. As organisations act in public and try to reach
their aims in publicly recognised ways, they have to show greater toler-
ance towards criticism than natural persons.24 What they do not have
to accept, however, is the false allegation of facts, as well as humili-
ating critique (‘Schmähkritik’). Therefore, both the allegation of using
contributions for mysterious purposes and the harsh criticism in being
termed ‘a gang of incompetents’ are prima facie unlawful.
The accusations may be legitimated by the right to free expres-
sion (Art. 5(1) GG). However, this would require that Howard wishes
to communicate a matter of public interest. A merely humiliating
critique is prima facie unlawful in two ways. First of all, the allega-
tion of unproven and possibly false facts is not legitimate if public
concern is not at the basis of the defendant’s allegation. Secondly,
unmotivated disparagements are not an exercise of the right to free
expression per se. Therefore, Howard will have to prove that he is
motivated by a substantial concern regarding the activities of the
WAF. Usually, when the comment addresses a non-profit organisa-
tion’s core social and political activities, such a public concern can
be presumed. Therefore, the accusation of being a ‘gang of incompe-
tents’ will be a legitimate opinion, along with the comment that the
organisation is taking advantage of people’s credulity. If the allega-
tion consists of facts, courts are more restrictive. Howard will have to
make a minimum effort to research whether his allegation is based
on some substance.25 The amount of effort expected varies according
21
G. Wronka, Das Persönlichkeitsrecht juristischer Personen (Dissertation, Bonn: 1972) 97.
22
BGHZ 78, 24 – Medizin-Syndikat I (partnership); BGHZ 98, 94 – BMW (public corporation);
BGH NJW 1994, 1281 – Heberger Bau (close corporation); OLG Hamburg ZUM-RD 2009,
200 (movie on pharmaceutical company which distributed the Countergan drug in the
1960s).
23
BGH NJW 1971, 1655 (trade union); BGH NJW 1974, 1762 (political association); OLG
München NJW-RR 1997, 724 (scientific organisation).
24
BVerfG NJW 1999, 2358, 2359 (Greenpeace accusations against the CEO of a
chemical company), BGH NJW 1994, 124 (Greenpeace case); BGH NJW 1987, 2225,
2227 (press allegations against a chemical company); OLG München ZUM 1995, 42,
47 (fierce criticism among television broadcasting companies).
25
BGHZ 68, 331 = NJW 1977, 1288, 1289; BGHZ 132, 13 = NJW 1996, 1131, 1134; BGH
NJW 1997, 1148, 1149.
to the interest concerned.26 While the press has to show professional

care, individuals will be treated with more generosity. This is also
because individuals often act on behalf of their own interests, lack
impartiality and will be treated with less credulity than press allega-
tions. Nevertheless, this changes if the individual speaks on behalf of
a company or another organisation.27
The core of the allegation in this case refers to a form of corrup-
tion. For a non-profit organisation this is a strong reproach and thus
this mere allegation, without any given or proven facts, will not be
considered as legitimate under the right to freedom of expression and
§ 193 StGB. Therefore, the WAF will have grounds for an injunction
with respect to this allegation.
The WAF may also sue for the compensation of any economic loss
which they have suffered as a result of the allegation. However, prov-
ing loss will be difficult as it entails proving the defendant’s behav-
iour caused that exact amount of loss. Courts are generally unwilling
to accept a claim for compensation of non-economic loss with respect
to companies and organisations.28 Damages for non- economic loss
are generally limited to natural persons and to situations in which
the damage done cannot be repaired in any other way other than
through a sum of money. In respect of non-profit organisations, how-
ever, the BGH has made an exception to this rule, provided the loss
cannot be remedied in any other form.29 Nevertheless, the WAF has
plenty of opportunities to disseminate the news of an injunction
obtained in a court trial so that additional relief for non-monetary
loss is not necessary. Therefore, the WAF will have no claim in this
respect.
Greece
I. Operative rules
The WAF has a claim against Howard for the compensation of non-
economic loss.
26
BGHZ 31, 308, 313; BGHZ 68, 331= NJW 1977, 1288, 1289.
27
BGH NJW 1997, 3302 (head of an association to protect the record industry against
bootleg copies criticises a coffee house chain for distributing unlicensed CDs).
28
BGHZ 78, 24, 28 (private partnership); OLG Stuttgart MDR 1979, 671 f.; D. Klippel,
‘Der zivilrechtliche Persönlichkeitsschutz in Verbänden’ (1988) JZ 625, 635. But see
BGHZ 78, 274, 280 = NJW 1981, 675, 676 – scientology: non-pecuniary damages not
generally excluded; OLG Stuttgart, NJW-RR 1993, 733.
29
BGH NJW 1981, 675, 676 (for a religious organisation).

The personality right (Arts. 57, 59 CC) grants protection to both natu-
ral and legal persons. Legal persons can also be unlawfully injured
in their personality in relation to faith, reputation and professional
activity.30 A legal person has the right to claim compensation for non-
economic loss, which is freely determined by the discretionary power
of the court, taking the type and gravity of the insult, the conditions
in which the injury took place, the wrongdoer’s degree of fault and the
financial state of both the injured party and wrongdoer into account.
Freedom of opinion is a recognised principle in Greek law. Still, when
an opinion has an objectively strong defamatory character, bearing in
mind the whole content of the interview, and is knowingly expressed
in public in order to offend someone’s honour and reputation, it is an
act of defamation within the meaning of Art. 361 PC.
Ireland
I. Operative rules
It is possible that both the WAF and individual members of the organi-
sation could bring an action in defamation against Howard.

Defamation not only offers protection to natural persons but also to
legal persons including friendly societies.31 However, the WAF would
have to be considered a distinct legal personality if it is to bring an
action in its own right. Thus, if the WAF is an unincorporated associa-
tion it could not bring an action.32 As outlined in the English report,
individual members of the association could bring an action in defa-
mation but it might be difficult for them to establish that they had
been sufficiently identified by the offending statement. If the group
which forms the association is considered small enough then an action
may exist.33
Italy
I. Operative rules
The WAF can recover damages from Howard.
30
See Court of Athens Decision 3058/2003, Supreme Court (Areopag) 75/1998.
31
Irish People’s Assurance Society v. City of Dublin Assurance Co Ltd [1929] IR 25.
32
London Association for the Protection of Trade v. Greenlands Ltd [1916] AC 15.
33
Duffy v. News Group Newspapers Ltd [1994] 3 IR 63.

Undisputedly, under Italian law not only individuals, but also non-profit
organisations and corporations have personality rights. Many decisions
are reported concerning the rights of groups to name, personal iden-
tity, or reputation.34 Since the enactment of the Data Protection Code,
organisations also have recourse to remedies aimed at the protection
of privacy and personal data (see Art. 4(1), b, i DPC).35 Scholars agree
that personality rights can be extended to groups, but the theoretical
foundation of this solution is strongly debated.36
It is quite clear from the facts of the case that Howard committed a
tort (and a crime37) of defamation against the WAF. The association’s
interest in reputation has been violated.38 In addition, one could argue
that not only the association, but also the members of its executive
board have been defamed (the purpose of member contributions usu-
ally depends on the decisions of the board: one would need to know
more about the exact content of the interview).39
The association can sue Howard for damages. According to Art. 2043
CC, the WAF can recover economic losses (foregone funds and contribu-
tions, suspended projects, etc.). The association can also recover non-
economic losses (Art. 2059 CC). Many Italian Supreme Court decisions
have recognised the possibility for associations, States and even cor-
porations to recover non-pecuniary damages.40 The theoretical basis
of this solution is the distinction between pain and suffering and the
34
See for an accurate analysis of the most important decisions, A. Fusaro, I diritti della
personalità dei soggetti collettivi (Padova: 2002).
35
See G. Alpa, ‘Aspetti della disciplina sui dati personali riguardanti gli enti e
l’attività economica’ (1998) Riv. trim. dir. proc. civ., 713 et seq.; A. Fici and G. Resta, ‘La
tutela dei dati degli enti collettivi: aspetti problematici’, in R. Pardolesi (ed.), Diritto
alla riservatezza e circolazione dei dati personali, Vol. II (Milan: 2003) 375 et seq.
36
See A. Zoppini, ‘I diritti della personalità delle persone giuridiche (e dei gruppi
organizzati)’ (2002) Riv. dir. civ. I, 851 et seq.; V. Zeno-Zencovich, ‘Personalità (diritti
della)’, in Dig. disc. priv., sez. civ. XIII (Turin: 1995) 440.
37
See Art. 594 et seq. CP.
38
See on the right to honour and reputation of groups, A. Fusaro, I diritti della
personalità dei soggetti collettivi at 62 et seq.
39
See on this point A. Fusaro, I diritti della personalità dei soggetti collettivi at 92.
40
See Cass. 8 Jun. 2005 no. 12015; Cass. 30 Aug. 2005 no. 17500, Danno e resp. 2006,
153; Cass. 16 Jul. 2004 no. 13163; Cass. 21 Jul. 2004 no. 13504, Dir. prat. soc. 2004,
60; Cass. 2 Aug. 2002 no. 11573, Giust. civ. 2002, I, 3063; Cass. 2 Aug. 2002 no. 11592;
Cass. 2 Aug. 2002 no. 11600, Foro it. 2003, I, 838; Cass. 3 Mar. 2000 no. 2367, Danno
e resp. 2000, 490; Cass. 5 Dec. 1992, no. 12951, Dir. inf. 1993, 373; Cass. 10 May 1991
no. 7642, Giust. civ. 1991, I, 1955. See, on this issue M. V. De Giorgi, ‘Risarcimento
general category of non-pecuniary loss. Even though an association

cannot suffer, it can recover compensation for damage arising from
the violation of a ‘non patrimonial’ right, such as the right to reputa-
tion or personal identity.41
The judge has a discretionary power in assessing this kind of loss
(Arts. 1226–2056 CC).
The Netherlands
I. Operative rules
If Howard’s allegations against the WAF are unlawful, the WAF can
claim damages for economic and non-economic loss.

In the first place we have to answer the question whether or not the
WAF has its own right to personality or privacy. According to Dutch
law, it is not impossible for a legal person to have a right to privacy.42
Nevertheless, there is hardly any case law on a legal person’s right of
personality.
Assuming that, in principle, the WAF is entitled to invoke its right to
privacy, this right has to be balanced against Howard’s right to freedom
of expression. The commercial character of the interview is among the
many circumstances that can be involved (see Case 1). If Howard used
his right to free speech for his own (financial/commercial) interest43
and/or if his statements coincide with the commercial interest of the
WAF,44 the interest of the WAF in its personality right can outweigh
Howard’s interest to free speech. If this is the case, the allegations by
Howard are damaging to the WAF. The WAF can claim damages for
economic and non-economic loss. Loss of income due to loss of mem-
bers and a reduction in donations can be included under economic
damages. Non-economic harm can be the result of injury to the honour
or reputation of the WAF or another affliction of its person.
del danno morale ex legge Pinto alle persone giuridiche per le sofferenze patite dai
componenti’ (2006) Resp. civ. 281.
41
See Cass. 3 Mar. 2000 no. 2367, Danno e resp. 2000, 490; Cass. 5 Dec. 1992 no. 12951,
Dir. inf. 1993, 373.
42
Parlementaire Geschiedenis Boek 6, p. 380; ECJ 23 Sept. 1986, NJ 1988, 380; HR
15 Dec. 1992, NJ 1993, 550; Schuijt, Losbladige Onrechtmatige Daad, Hoofdstuk VII,
(Deventer: 2000) no. 102; Lindenbergh, Losbladige Schadevergoeding, aant. 11 bij art.
6:106 BW (Deventer: 2005).
43 44
Schuijt, Losbladige Onrechtmatige Daad no. 91. Ibid. no. 31.
Portugal
I. Operative rules
The WAF can sue Howard for damages.

All considerations regarding the right to honour and the crime of def-
amation explained in Case 1 are, mutatis mutandis, applicable to the
present case. The main differences between these two cases are:
– the characteristics of the wrongdoer (in Case 1 it is a journalist and
in this case a president of a company);
– the characteristics of the offended (in Case 1 it is an individual and
in this case a moral person).
The offence itself remains the same: wrongful damage caused to the
honour and reputation of a person (be they natural or legal) and the
criminal offence of defamation. The specific considerations regard-
ing the journalist’s duties and rights are not applicable to Howard of
course.
Being termed ‘a gang of incompetents who were taking advantage
of people’s credulity and using member contributions for mysterious
purposes’ is objectively offensive regardless of the circumstances. The
WAF is a legal person (‘pessoa colectiva’), but that does not represent any
obstacle under Portuguese law, which has long recognised that legal
persons can avail of all the rights and duties necessary or convenient
for the accomplishment of their aims, only excluding those which
are forbidden by law or inseparable from individuals (Art. 160 CC). In
addition, although Art. 70 CC expressly restricts personality rights to
individuals, Art. 484 CC extends compensation for offences to the repu-
tation of legal persons. In addition, for a long period of time, Portuguese
courts and doctrine have been unanimous in declaring that legal per-
sons hold all personality rights which are compatible with their condi-
tion, i.e. all personality rights which are not necessarily connected to
individuals.45 Thus, the WAF is entitled to compensation.
45
As far as civil wrongful acts are concerned, STJ 15.06.1994 declares as undisputed
that legal persons are holders of at least some personality rights, such as the
right to name and honour; as far as criminal offences are concerned, one can
mention decisions STJ 24.02.1960 (which concerns a crime of defamation and
states that moral persons have the right to name, honourific distinctions, honour
and reputation) and STJ 16.11.1989 (which declares that moral persons hold all
personality rights, except those inherent to individuals, therefore moral persons
can be the object of a crime of insult).
According to Art. 180(2) CP, as a defence Howard shall have to prove

that what he said is true (exceptio veritatis), and that it is of relevant pub-
lic interest.46 His liability will also be excluded if he proves that he had
good, solid reasons to believe, bona fides, that what he said was true.47 If
he succeeds in proving this, he will escape liability.
Scotland
I. Operative rules
The organisation may have a claim.

A case of corporate defamation is traditionally seen as impossible,
given that corporations have no method of demonstrating feelings that
they cannot measure. They do, however, have trading reputations that
can be easily lost. Technically, if it can be shown that WAF (through
its director) has lost its trading reputation, then a claim could be con-
sidered. Reference is made here to the case of two individuals who
were found liable to McDonalds for defamation48 before the English
courts. After distributing leaflets designed to inform the public of the
culinary and nutritional content of McDonald’s food, both individuals
were, on proof of damage to McDonald’s reputation, ordered to pay
compensation.
The success of such a claim will be based solely on the question of
whether the WAF can establish a loss in subscription to its projects as
a result of Howard’s comments. The fact that the WAF is not a corpo-
ration, but rather a trust (or charity) and primarily non-commercial
reduces the chances of a successful claim.
Spain
I. Operative rules
The WAF can claim damages from Howard.

As a matter of principle, only information that is true can be pro-
tected by LO 1/1982. Art. 7.7 of LO 1/1982 declares that it is always an
46
STJ 26.09.2000: save when a public interest is at stake and takes precedence over
the right to good name and reputation, provided that it is always done in such a
manner as not to go beyond what is required for the disclosure.
47
For more extensive considerations on the exceptio veritatis defence, please see Case 1.
48
McDonalds v. Steel, Independent, 10 May 1999.
unlawful interference: ‘to impute facts or spread value judgments

through actions or expressions damaging the dignity of a person, less-
ening their reputation or attempting to lessen respect for them.’
The problems of distinguishing deliberately false information from
that which could be true have forced the Spanish Courts to distinguish
between true information and truthful information.
Art. 7.7 reveals the difficulty in drawing the line between the free-
dom of speech and the right of information and the protection of hon-
our, reputation and privacy to a greater extent. Freedom of speech will
never be able to justify the attribution of facts to a person, which imply
that he or she is unworthy of his or her reputation. There are a lot of
Spanish Supreme Court decisions which relate to this.49 Organic Law
and the Spanish Supreme Court have not hesitated to affirm the ille-
gitimacy of untruthful information.
In the same way, the doctrine of the Spanish Constitutional Court
requires a distinction between true information and truthful infor-
mation. The Spanish Constitutional Court does not demand reality,
i.e. the scientific and empirically true, in the news or in public state-
ments; however, the truthful is always required. STC 6/1988 of 21
January50 affi rms that erroneous statements are unavoidable in a free
debate and if the truth were demanded as a condition for the exercise
of the right to free speech and the right to information, the applica-
tion of these two rights would then be meaningless in a democratic
society.
If law requires the guarantee of truth in all public statements, then,
as stated by the Spanish Constitutional Court, the only constitutional
guarantee would be silence. If an investigation is undertaken on the
part of the informant and the facts and the investigatory task and the
differences between the two are confirmed, the information is truth-
ful, although it cannot reflect the material truth.
When the Spanish Constitution requires the information to be
truthful it is not depriving protection to information that can be
erroneous, or simply not tested, but rather it is establishing a specific
duty of diligence on the informant who has the obligation to contrast
the facts that he or she presents as information with objective data.
Whoever acts with contempt concerning the way in which to discover
49
Among the more recent, see STS, 26 Apr. 1990 (RJ 3434); STS, 25 Mar. 1991 (RJ 2441)
and STS, 4 Nov. 1992 (RJ 9199).
50
RTC 6.
the truth shall not have any constitutional protection. The Spanish
Constitution does not protect a negligent informant. The error, not
the false information, is protected. The Constitution does not offer
protection to negligent behaviour, even less so to mere gossip or spec-
ulation. Nevertheless, this classification aids correct and general infor-
mation, even in the cases where the facts are not completely exact.
According to these principles, the responsibility of the informant, or
in a more general form, of the communicator is responsibility for fault
and blameworthiness.
However, we must remark on two aspects:
(1) Truthfulness constitutes a limitation to the freedom of information,
but not to the freedom of speech which has a greater scope since
opinions or ideas must not be true or false, it is enough that its own
nature concerns opinions and implications that could not be verified
by any objective test.
(2) Information which is objectively false but diligently obtained cannot
provide the injured person with a right to compensation, but it can
cause other judicial measures of protection for the right to honour
or privacy like, for example, an injunction.
With these principles, the Organic Law and the Spanish Courts,
mainly the Constitutional Court, have established the basis that allows
distinguishing information from critics or public debate. Therefore,
the courts pretend to distinguish the protection granted to the jour-
nalistic information from that which is dispensed to mere opinions.

Due to the problems in applying the principles of responsibility for
fault to the task of obtaining and disseminating the information, some
authors have proposed the application of the strict liability to this task.
In this way, Pantaleón intends to apply the principles of liability for
defective products and the test of the standing of the law defence to all
journalists who provide truthful information.51 In Spain, and mainly
in the United States, the purpose has the obstacle of the doctrine estab-
lished by New York Times v. Sullivan in 1964.52
However, the distinction between truthful information and true
information does not allow the protection of mere insult. The Spanish
51
F. Pantaleón, ‘La constitución, el derecho al honor y unos abrigos’ (1996) Revista
Derecho Privado y Constitución 10.
52
376 US 254 (1964).
Constitution protects what is said and how it is said. There is an appli-

cable limit to the freedom of information and to the freedom of speech.
If the information is truthful and is obtained with diligence and care
it is acceptable. If there are insults accompanying it this can result
in an unlawful interference with the information. A right to insult
neighbours does not exist in the Spanish Constitution. The general
rule is that although the information is truthful (even objectively and
absolute true), its presentation as an attack to dignity causes the right
to honour to prevail over freedom of information and, naturally, over
freedom of speech.53
All of the related principles are applied to the professional prestige
or reputation of persons. In numerous cases, jurisprudence has under-
stood professional prestige to be part of honour protected by Organic
Law.54 This statement allows the examination of the second of the
questions related to this case: the Act legitimating an association, a
non-governmental organisation in this case, to protect its own honour
and, of concern here, its professional prestige.
The constitutional doctrine that extends the protection of the right
to honour to associations has its origin in Spanish case law in the fam-
ous case of Violeta Friedman v. León D. Mrs Friedman was a survivor of
the Nazi extermination camp in Auschwitz, where most of her family
members were killed. León D., who had commanded the SS troops in
Belgium, declared in an interview in a Spanish journal that Jews were
a plague and he questioned the real existence of the Holocaust. Mrs
Friedman’s claim against León D. was denied by civil judges and by
the Spanish Supreme Court. Finally, the Spanish Constitutional Court
considered the claim and ordered León D. to pay a huge sum of money
to Mrs Friedman. The Constitutional Court decided the case in the STC
214/1991 of November 11,55 and it ordered Mr León D. and the journal
that had published its statements to compensate Mrs Friedman and to
rectify the published information. In the case, the Tribunal affirmed
that it is also possible to appreciate that there is damage to the honour
of the plaintiff when, even the information is related to a collection
or a group, the group does not have any personality, and therefore, it
cannot fight in order to achieve the protection of the interest related
to the group itself.
53
See, paradigmatically, STS, 17 Mar. 2000 (RJ 2017).
54
STS, 11 Feb. 1992 (RJ 975), and STS, 5 Feb. 2000 (RJ 251).
55
RTC 214.
Switzerland
I. Operative rules
Howard’s words constitute an unlawful infringement of the WAF’s
right to its reputation, more specifically its economic, social, and pro-
fessional esteem. The WAF may claim damages for economic loss as
well as for pain and suffering.

Whether Howard’s declaration infringes on the rights of the entity tar-
geted depends on whether an organisation like the WAF benefits from
the protection of Art. 28 et seq. CC. Under Swiss law, it is recognised that
a legal person may possess some personality rights, to the extent that
these do not extend to the natural attributes of human individuals.56
Only the rights protecting social personality, traditionally including
the right to one’s reputation,57 are likely to come into play. This cat-
egory includes the social, economic, and professional reputation of the
natural or legal person concerned.
The average citizen’s point of view and other objective criteria must
be considered to determine whether Howard’s accusation is likely to
diminish the esteem of the WAF. According to case law, the esteem
enjoyed by a (legal) person is more easily affected by an infringement
where an individual’s private or professional behaviour is called into
question, rather than through the revelation or criticism of his or her
(or its) political opinions.58 One may also consider the fact that, in the
present case, the accusation comes from the president of a chemical
company and that very often such organisations have opposing inter-
ests to those of environmentalist organisations. Thus, Howard’s declar-
ation must be taken with a pinch of salt.
The WAF’s interest in respect of its professional and economic repu-
tation must be balanced against Howard’s freedom of opinion, as well
as the interest of the public in being informed. Declarations of this
kind, which amount to accusing the WAF of fraud, are likely to dis-
credit the WAF and discourage citizens from giving donations. An ana-
lysis of competing interests suggests that the accusation is sufficiently
56
ATF/BGE 121 III 168 c. 3a, JdT 1996 I 52; ATF/BGE 108 II 242 c. 6, JdT 1984 I 66.
P. Tercier, Le nouveau droit de la personnalité (Zurich: 1984) n. 520 et seq.
57
H. Deschenaux and P. -H. Steinauer, Personnes physiques et tutelle (4th edn.,
Berne: 2001) 163, n. 523.
58
ATF/BGE 105 II 161 c.2.
serious to be considered an unlawful infringement of the social, eco-

nomic, and professional reputation of the WAF. It is not, in fact, insig-
nificant to accuse a legal person of profiting from the naivety or the
credulity of its members in order to take their money, which will then
be used for mysterious purposes. The Federal Court has held that an
article entitled ‘These profits without work must cease’, implying that
some architects were making money by speculating on real estate and
transferring the cost to future tenants, infringed their reputations.59 In
that case, the article had created the impression that these two profes-
sionals were exploiting weak people in order to unduly increase their
profits. The Federal Court has also held that an article severely criticis-
ing the Raelian sect and presenting its leader as a crook violated per-
sonality rights.60 As the term ‘crook’ may be understood by the average
reader in its criminal sense, the infringement was considered as need-
lessly hurtful and thus unlawful.
In the present case, the WAF has several claims available (Art. 28a
CC). It may demand a declaratory judgment recognising the unlawful
infringement of its reputation (Art. 28a, para. 1(3) CC) and claim dam-
ages (Art. 28a, para. 3 CC and Art. 41 et seq. CO), to the extent that the
WAF can prove the existence of loss. Loss may consist of losing contri-
butions following Howard’s accusation. The WAF will have the burden
of proving the causal link between the accusation and the resulting
harm.
Can the WAF recover for pain and suffering? This question is the
subject of controversy. Some authors deny the ability of legal persons
to claim for pain and suffering because they cannot feel pain.61 Thus,
they do not see how awarding such damages could ease any suffering.
Legal persons do not, according to these authors, have access to the
subjective dimension of pain and suffering necessary to know physical
or psychological pain.
The Federal Court comes to the opposite conclusion.62 Thus, it holds
that awarding damages for pain and suffering is justified ‘even if the
59
ATF/BGE 103 II 161 c.1, SJ 1978, p. 222.
60
Judgment of the Swiss Federal Court, 5C.252/2001 c. 2.
61
F. Riklin, Der Schutz der Persönlichkeit gegenüber Eingriffen durch Radio und Fernsehen nach
schweizerischem Privatrecht (Fribourg: 1968) 298; H. -R. Staiger, Genugtuungsansprüche
gegen Massenmedien (Zurich: 1971), p. 82; P. Tercier, Le nouveau droit de la personnalité
n. 2041.
62
H. Oser and W. Schönenberger, Zürcher Kommentar, Art. 1–429 OR, Vol. V 1 (2nd edn.,
Zurich: 1929) ad Art. 49 CO n. 17; R. Schumacher, Die Presseäusserung als Verletzung der
victim is absolutely incapable of being conscious of its state and of

affording any importance to the money’,63 which is the case for a legal
person, since it cannot subjectively perceive an infringement or its
remedy. The Federal Court even goes as far as to say that ‘it matters
little that this goal [namely, compensating pain suffered with a sum of
money] cannot be attained where the victim is incapable of appreciat-
ing the value of the money. However, the judge fixes the sum awarded
by taking into account the subjective consequences of the harm and
specifically the intensity of the suffering and the pain experienced.64
This last remark explains why legal persons are satisfied to settle on
a symbolic award of damages or damages granted to a third party.65
In conclusion, the WAF has the right to claim damages for pain and
suffering.

Although the protection of the economic, social, and professional
reputation of a legal person is fully justified, redress for its pain and
suffering is open to criticism. How can a legal person, without sen-
sory perception of the world around it other than through its mem-
bers, feel a deterioration in its well-being, its enjoyment of life in
general, or any physical or psychological suffering? Art. 49, para. 1
CO demands that the harm be particularly serious for damages for
pain and suffering to be awarded. In other words, the intensity of
the suffering must be such that it cries out for judicial intervention.
Thus, when a court awards a sum of money for pain and suffering
to a legal person which by defi nition is not able to feel anything
or to realise that it is receiving damages, the principal goal of the
remedy.
However, if one finds that it is appropriate to ease the self-styled
non-economic harm suffered by a legal person, other forms of com-
pensation are preferable to a monetary award. One may consider the
publication of the judgment, a correction, or some other gesture.
persönlichen Verhältnisse (Fribourg: 1960) 229; F. Dessemontet, ‘La presse et les sociétés
commerciales’, in Die Verantwortlichkeit im Recht (Zurich: 1981) 205 is hesitant.
63
ATF/BGE 108 II 422 c. 4a, JdT 1983 I 104.
64
ATF/BGE 108 II 422 c. 4c., JdT 1983 I 104.
65
ATF/BGE 95 II 489, JdT 1971 I 226. In this case, the Club Mediterrannée had
demanded that the Federal Court oblige the defendant to pay the sum of 1,000
Swiss Francs to the International Committee of the Red Cross.
Comparative remarks
The central consideration in this case is whether or not organisations
or corporations can hold personality rights. Traditionally, such rights
were regarded as only being inherent in an individual human being.
Nevertheless, some legal systems have witnessed a departure from
this traditional viewpoint in certain circumstances. One example is
where the reputation of an organisation is at stake. In many coun-
tries, the same legal principles that govern the protection of a natu-
ral person’s reputation also apply to a legal person’s reputation. The
approaches of the different legal systems can be divided under three
broad headings.
I. Claimant is entitled to damages for both economic

and non-economic loss
The claimant will be successful in suing for both economic and non-
economic loss in Belgium, France, Greece, Italy, the Netherlands,
Portugal, Spain and Switzerland. In most of these countries, the legal
framework for the protection of reputation is the same in respect of
both natural and legal persons.
Case law in France may be interpreted in the sense that organisations
which exercise a commercial activity can mainly recover economic
loss, while non-profit organisations can mainly recover non-economic
loss. Nevertheless, in the present case, the WAF could arguably also
recover the economic damage consisting in the loss of gifts and mem-
bership fees caused by the harmed reputation of the association.
Italian courts see a distinction between pain and suffering and the
general category of non-economic loss, recoverable in case of violation
of personality rights. In this sense, the claimant can sue for non-eco-
nomic damage to reputation within the general category.
In Switzerland, the question whether a legal person can recover dam-
ages for pain and suffering is subject to much dispute amongst schol-
ars, despite a ruling from the Federal Court affirming the principle.
II. Claimant is entitled to damages for economic loss only

In Finland, there are different provisions for the protection of the
reputation of natural and legal persons. In the case of damage to an
organisation’s reputation, the crime of defamation under the Penal
Code is not applicable. However, the disparaging statements could be
considered an unfair business practice: in this case, the association
would be entitled to the same remedies as in Case 10. Only economic

losses would be recoverable.
In Austria, the WAF could bring an action under the defamation law
of the Civil Code (§ 1330 ABGB), which only allows the compensation
of economic loss.
In Germany, although non-profit organisations can claim for both
economic and non-economic loss, in this particular case the WAF will
not be successful in an action for the latter. Damages for non-economic
loss are only awarded if the injury cannot be remedied in any other
form. In this case, the award of an injunction will seemingly offer suf-
ficient relief to the claimant. Therefore, the WAF will only have a claim
in damages for economic loss.
III. Plaintiff does not have a claim

In the common law and in Scots law, the organisation may take an
action in defamation. However, actual reference must be made to
an individual or a class of persons if the statement is to be deemed
defamatory. With regard to a class of persons, the general rule is that
the larger the class, the more difficult it is to show that the statement
referred to the individual members of the class. In this case, the WAF
is a large organisation and a successful action in defamation is thus
unlikely.
PA R T I I I A C O M M O N C O R E O F
PER SON A L I T Y PRO T EC T ION
21 A common core of personality
protection
Gert Brüggemeier, Aurelia Colombi Ciacchi &
Both the introductory essays and the national reports with their
accompanying comparative remarks have made it clear that the pro-
tection of personality in European private law is a diverse field. The
legal bases – constitutions, codes, statutes, case law, codes of conduct –
as well as the perimeter of the scope of protection and the remedies
are each exhibited very differently. However, the project has shown
that there are still commonalities in all of this legal diversity. It must
be stressed again that we are not concerned with one (general) person-
ality right or one comprehensive aspect of personality such as privacy.
Such expressions merely serve as umbrella terms. They have no spe-
cific content; they constitute the parameters of law-making through
the courts. Instead, there is an array of personality interests, which
have been developed at different times in certain social contexts and
which are legally protected nowadays. Their borders cannot be defined
exactly. Moreover, their legal treatment can differ within an individual
legal system. Due to the limited space available to us, we were unable
to include all relevant personality interests in the questionnaire. Yet,
within this plurality of legally protected personality interests we dis-
play six representative aspects here, and will examine whether and
how much there is agreement in respect of their legal protection. The
six aspects are: (1) dignity and honour/reputation; (2) privacy; (3) the
right to one’s image; (4) the commercial appropriation of personality;
(5) the right to personal identity; and (6) self-determination. In addi-
tion, we will briefly address two particular issues: (7) the personality
protection of legal persons; and (8) personality violations through the
internet.
567
1. Dignity and honour

Dignity and honour are core elements of the civil protection of per-
sonality. In Roman law, they were already recognised as the legally
protected interests of dignitas and fama. Legal orders, which have con-
tinued the Roman law actio iniuriarum, guarantee extensive protection
in this sphere (Scotland included, but with restrictions). We can distin-
guish two main types of injury: (i) disparaging remarks; and (ii) degrad-
ing treatment.
Disparaging remarks form the classical cases. They are the subject
matter in Case 1. In particular, Case 1 concerns the important area of
injuries to personality interests through media reports.1 We find sev-
eral special rules in the media laws of the countries surveyed aimed
at the protection of honour. In modern private law orders, almost
without exception, honour is understood in an objective sense. This
concerns honour in its socio-factual dimension – prestige, reputation,
repute. Honour is a societal medium of distinguishing and differen-
tiation. Private laws in Europe unanimously protect against disparag-
ing statements of fact. Remedies include compensation of economic
and non-economic loss and, occasionally, a right of reply. In respect
of statements of opinion, to the extent that a differentiation between
statements of fact and value judgements can be made, it boils down to
a balancing process in most legal systems, whereby freedom of expres-
sion or freedom of the press and the protection of honour are balanced
against one another. In contrast to the US, where the First Amendment
laws take priority,2 in continental Europe this balancing is mostly an
open-ended process in so far as its outcome has not been predeter-
mined by the legislator.
The legal situation in respect of degrading treatment, which is not
the subject of a hypothetical case in the questionnaire, is more diffuse.
Examples include body searches, where persons are seen naked by
third parties in inspection rooms,3 or degrading treatment and accom-
modation of detainees in prison.4 Dignity is something which exists by
1
For a comparative perspective see H. Koziol and A. Warzilek (eds.), The Protection of
Personality Rights against Invasions by Mass Media (Vienna/ New York: 2005).
2
See New York Times v. Sullivan, 376 US 254 (1964) and Time, Inc. v. Hill, 385 US 374 (1967);
cf. J. Page, ‘American tort law and the right to privacy’ (in this volume).
3
Wainwright v. Home Office [2003] 4 All ER 969.
4
See BGH, 4 Nov. 2004, BGHZ 161, 33; BVerfG, 27 Dec. 2005, NJW 2006, 1580 on one
hand; and BVerfG, 5 Mar. 2008, 1 BvR 1807/07 on the other.
a common cor e of per sona li t y prot ect ion 569
virtue of being human. In contrast to honour, dignity cannot simply be

lost through error. There is also no gradation in the term itself. Dignity
is not relative, but absolute.
The common law of England, and also perhaps Scotland, has a clear
gap in protection here as the law of defamation is limited to dispar-
agement through (permanent or transient) statements.5 This gap will
not be filled by jurisprudence relating to breach of confidence. Legal
orders with the natural law general clauses of neminem laedere, such as
the Roman law traditions, along with Austria and Switzerland, grant
compensation of non-economic loss for violations of human dignity.
German law is difficult to reconcile with this, although its Constitution
is universally acknowledged as a model for the protection of human
dignity (Art. 1(1) GG). However, not every intrusion into human dignity
should give rise to a claim for civil law compensation.6
2. Privacy
The protection of privacy (‘right to be let alone’) is another core area of
personality protection in tort law. Since the famous article of Warren
and Brandeis in 1890,7 privacy has become a synonym in Anglo-
American law for many aspects of personality. In Europe, Art. 8(1)
ECHR8 lends a constitutional quality to this personality interest. In
France and Portugal, the civil codes expressly provide for protection
(Art. 9 French Civil Code, Art. 79 Portuguese Civil Code and Art. 26,
para. 1 Portuguese Constitution). In most civil law orders, written or
unwritten rules of general tort law function as legal bases for the pro-
tection of privacy. In the English law, the equitable remedy of ‘breach
of confidence’ serves to protect privacy under Art. 8 ECHR.
European private laws often correspondingly defi ne the private
sphere to be protected through the use of spatial metaphors. We
are dealing with the protection of private and intimate spheres. The
law recognises protection to quasi-spatial areas, which other private
5
See Wainwright v. Home Office above. For the corresponding gaps in American privacy
law see E. J. Bloustein, ‘Privacy as an Aspect of Human Dignity’ (1964) 39 New York
University Law Review 962, criticising Prosser’s concept of privacy; see also J. Page,
‘American tort law and the right to privacy’ (in this volume).
6
Cf. n. 4.
7
S. D. Warren and L. D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review
193.
8
Art. 8(1) ECHR: ‘Everyone has the right to respect for his private and family life, his
home and his correspondence.’
persons (third parties), the media and the State may not intrude
upon without consent. Such unauthorised ‘intrusion’ can take place
in various forms: especially through secret tapping with technical
equipment (Case 14); through photographing and fi lming with a tele-
photo lens, video cameras or night vision equipment; through the
reading and publishing of private diaries (Case 13) or private cor-
respondence (Case 12); through the publication of details from the
private and family lives of famous people (Case 5); and through the
online search of private electronic information systems.9 The so-
called ‘right to protection of one’s image’ originally belonged to this
sphere of privacy protection. However, in the meantime the ‘right
to one’s image’ has become independent and created its own cat-
egory, which is considered under the next section. A sub-category of
privacy includes interests in anonymity. Some legal systems have a
recognised right not to be commented on, i.e. not to be thrust into
the public light and especially not to be severely criticised (Case 2). A
variant of these interests in anonymity is the droit à l’oubli – right to
be forgotten (Case 3).
Nowadays, this protection of the private sphere is, in effect, guar-
anteed in all private law orders, but is, as always, justified in differ-
ent ways. This protection is not infinite. Where the line can be drawn
depends on the concrete circumstances in the individual case. When
the protection of paramount legal interests or state institutions is in
concrete danger, the protection of the private sphere must always give
way. Whether there is an absolute protected core area of privacy, as is
frequently suggested, seems questionable.
3. Right to one’s image and likeness

The advent of photography at the end of the nineteenth century
brought with it a new potential for danger: the image of an individual
would be available to every person through the taking and dissemin-
ation of a photograph of that person. In a manner of speaking, one had
the depicted person ‘in one’s hands’. The argument surrounding the
protection against the secret taking and dissemination of photographs
of persons became an exemplary showcase for the development of the
civil law protection of personality. It was partly left to the courts, such
9
See BVerfG, 27 Feb. 2008. NJW 2008, 822 introducing ‘a fundamental right to the
guarantee of the confidentiality and integrity of technical information systems’.
as in France, to develop the law in the context of the general liability

law for the protection of personality, and it was partly left to the legis-
lator, as in Germany and Spain for instance, to provide the courts with
special legislation as a suitable basis to create the necessary legal pro-
tection. In the civil law systems of both Italy and Switzerland and in
the common law systems of both England and Scotland, the dissemin-
ation of photographs portraying individuals is now regulated by both
general tort/delict law and data protection law. The basic principle is
largely identical in the individual private law regimes: the taking and
publishing of a photograph depicting a person is only acceptable with
that person’s consent. To this extent, a ‘right to one’s image’ is predom-
inantly recognised. English law and the law of the Nordic states are
special exceptions. This image protection applies without restrictions
in respect of persons in private areas, regardless of whether they are
famous or unknown. The uniformity of this legal protection dimin-
ishes as soon as one is dealing with persons in the workplace, in public
places (streets, squares, etc. – Case 7) or the image of a ‘famous’ person
(Case 8). In the latter case, Belgian and French law on the one hand,
and German law on the other, took especially controversial positions.
In the case of a ‘figure publique’, Belgian and French law also adhere
to the basic principle of the necessity of consent, yet permit excep-
tions. German law regarded famous persons from the opposite point
of view: as a matter of principle, the secret taking and dissemination of
photographs by the press was allowed but there were some recognised
exceptions. The frequently cited (unanimous) decision of the ECtHR
in 200410 was required to make it clear, from the perspective of the
ECHR, that the Belgian-French position alone is compatible with Art.
8(1). Using this opportunity, the ECtHR specified the conditions under
which celebrities can be photographed without their consent. With
these, a controversial legal issue in Europe was replaced by a much
observed standard in one foul swoop.
However, the remedies remain controversial. Most legal systems
allow compensation for economic and non-economic loss. This is par-
ticularly the case in respect of private laws which do not differentiate
between the two forms of loss but settle damages in a lump sum, such
as in Italy for instance. Others, such as the German legal system, limit
10
Von Hannover v. Germany (2005) 40 EHRR 1; on this and on ‘post-von Hannover’
jurisprudence in Germany, see G. Brüggemeier, ‘Protection of personality rights in
the law of delict/torts in Europe: mapping out paradigms’ (in this volume).
damages to the equitable compensation of non-economic loss in such

cases where there has been the unauthorised taking and publishing of
photos. Just as varied is the possibility to demand the profit that the
media company has made through the publication of the photographs
of celebrities. In cases involving the ‘forced commercialisation’ of per-
sonalities the penalty of general damages is partially made available.
4. Commercial appropriation of personality

Since the emergence of the photographic era, the commercial value of
photographs of persons used for advertising purposes has constituted
the second aspect of the civil law protection of image. This important
fact pattern is the subject matter of Case 10. The use of a photograph
is only pars pro toto the commercial use of other aspects of a (famous)
person such as voice (Case 11) or general affectations.
The paradigm is the unauthorised use of photographs of famous
persons11 in the advertising of products or services.12 The problem
issue which arises in this scenario is whether and to what extent the
respective private laws allow for a transition from a non-economic
right (‘privacy right’) to a property right (‘publicity right’). The non-
economic right is connected to the person and is both non-transferable
and non-inheritable. By comparison, property rights are not connected
to the person and are transferable and inheritable. The principles of
intellectual property law apply. This means that economic loss can
be recovered, which regularly involves the payment of a licence fee
and the handing-over of the profit made from the violation. The legal
bases for this are unjust enrichment and the general law of delict/tort.
Because the ‘publicity right’ is inheritable, this means that in the event
of death, the heirs of the famous person can assert a claim for com-
pensation. The majority of the legal systems considered by this project
appear to have adopted this standpoint by now.
11
The use of photographs of an unknown person for advertising purposes would fall
under the basic principles of the general protection of image (see above ‘Right to
one’s image and likeness’). Cf. the early American cases: Roberson v. Rochester Folding
Box Co., 64 N.E. 442 (NY 1902); Pavesich v. New England Life Insurance Co., 50 S.E. 68
(Ga. 1905); and the well-known German Herrenreiter case: BGH, 14 Feb. 1958, BGHZ
26, 349.
12
For a comparative account, see H. Beverly-Smith, A. Ohly and A. Lucas-Schloetter,
Privacy, Property and Personality. Civil Law Perspectives on Commercial Appropriation
(Cambridge: 2005).
To the extent that the private law regimes do indeed allow a division
between ‘privacy right’ and ‘publicity right’, there appears to be a fur-
ther intricate problem: when does the transition from one to the other
take place? Which requirements must be fulfilled here? Is the mere
fact that the person is famous sufficient? Must the concerned person
have already taken part in advertisements voluntarily? The legal sys-
tems surveyed do not yet have any clear answers to such questions.
5. Right to personal identity

An important area regarding the protection of personality is the
claim for authentic representation in public. This aspect extends
to the very core of what amounts to personality: the right to freely
represent and defi ne oneself. This justifies a legitimate need for pro-
tection against being painted in a false light in public. The crucial
issue is the false, non-authentic portrayal of the person. The represen-
tation must not be defamatory. This is precisely where this group
of cases differs to injuries to honour. Prominent cases here concern
false citations: where words are put into a person’s mouth which they
have actually not expressed and which amount to, for example, a pol-
itical opinion, which that person does not actually hold.13 Here, we
can include the invented ‘exclusive interviews’, which are much loved
by tabloids, with princesses and other celebrities from the showbiz
world, in which they talk about their private and intimate spheres. In
Italy, the church campaign to abolish divorce law at the beginning of
the 1970s provides us with an interesting example. Across the coun-
try, a photograph was used for this campaign depicting a man and a
woman working in a field. The picture was intended to be associated
with the ‘holy world’ of the catholic family in the countryside. The
problem was that the persons in the photograph were neither mar-
ried nor in agreement with the campaign to abolish divorce law. The
Court of First Instance in Rome recognised compensation because of
the injury to the right to image14 and the right to personal identity.15
13
See, in Germany, BVerfG, 3 Jun. 1980, BVerfGE 54, 208 – Böll/Walden; BVerfG, 3 Jun.
1980, BVerfGE 54, 148 – Eppler.
14
The photograph was also taken without the consent of the depicted persons. Cf.
Section 3 and n. 11 above.
15
Pretura Roma, 6 May 1974, Giurisprudenza It. 1975, I, 2, pp. 514; see also G. Pino,
‘The Right to Personal Identity in Italian Private Law: Constitutional Interpretation
and Judge-Made-Rights’, in M. van Hoecke and F. Ost (eds.), The Harmonisation of
European Private Law (Oxford: 2000), p. 225.
In this context, there are also cases concerning the ‘alteration’ or

falsification of a person’s life story through so-called ‘key-novels’
(Schlüsselromane) (Case 4) or television or cinema films. Here, complex
issues involving the balancing of freedom of art with the protection
of personality arise.
In the questionnaire, the issue of the right to personal identity
mainly constitutes a theme in Case 15. This case contains a citation. It
does not concern an inaccuracy, but a quote that can be attributed to
an individual, which is used in a different context without his consent.
Through the misuse of this quote, a doctor who campaigns against
smoking effectively becomes a spokesperson for light cigarettes. All
legal systems allow for compensation in this case. However, the con-
crete determination of the respective protected interests or personal-
ity interests often remains diffuse.
6. Self-determination
Self-determination, for its part, is a type of super-category within
the law of personality protection. The self-determination of an indi-
vidual person has many aspects. It begins with self-determination
over one’s own body and affects the entire area relating to medical
treatment and patient education. Traditionally, such cases have been
treated unchanged under the heading ‘unlawfulness of bodily injury’.
Self-determination consists of the right to know ones descendants, as
well as the right not to know, for example, not to be informed of one’s
genetic origins. Finally, the vast area of informational self-determina-
tion comes into play, i.e. the power to dispose of one’s own personal
data. In most European states, this complex area is now regulated by
EC directives and national data protection laws.
One of the most pertinent problems in the questionnaire surrounds
the doctor-patient relationship (Case 16). How do the legal systems sur-
veyed deal with a case where a pregnant woman is negligently misin-
formed about the possible disability of her foetus and thus deprived of
the decision to undergo a legal abortion or to proceed with the preg-
nancy knowing there is a risk that her child will be born disabled?
Only a few private law regimes have reached the advanced stage where
the serious problem of personal self-determination is recognised, an
injury to which is to be sanctioned with compensation. This is the case
in the Netherlands, for instance, where courts allow equitable compen-
sation for an interference with the freedom of choice of the pregnant
woman or both parents,16 and in France, where the courts apply the
doctrine of perte d’une chance.17
7. Protection of personality of legal persons?

In contrast to civil law in general, where undertakings, companies
and businesses are both judicially and extra-judicially the main actors
as product manufacturers or providers of services, as buyers and sell-
ers or as environmental polluters, the civil protection of personality
is focused on the individual. However, a modified form of what the
German Constitution generally expresses in respect of fundamental
rights also applies here: personality rights protection also applies to
legal persons, ‘to the extent that the nature of such rights permit’
(Art. 19(3) GG).
Often a dividing line is drawn in this respect between commercial,
profit-oriented undertakings and non-profit organisations. The criti-
cism of commercial performances and the activities of undertakings
is qualified instead as an interference or intrusion into business. This
can lead to compensation for economic loss under certain limited cir-
cumstances. By comparison, in relation to non-profit organisations,
the protection of honour and reputation is considered possible for the
most part, which is justified by compensation for non-economic loss in
injury cases. It is still questionable whether other personality interests,
for instance the right to identity, can be extended to commercial or
non-commercial organisations.
8. Personality violations through the internet

The complexity of the problems arising from personality violations
through the internet – anonymity, transnationality and technicali-
ties – and its comparative examination would require a separate
Common Core volume. We have devoted two cases in our question-
naire to these issues: Case 9 and Case 12. Both cases arguably show
how the use of the internet increases the risk of personality rights
being underprotected. With regard to Case 12, only a few legal sys-
tems accord some protection to the privacy of politicians’ emails on
political issues. Private emails are better protected in theory; how-
ever the private or public nature of a topic discussed via email only
16
Hoge Raad, 18 Mar. 2005, RvdW 2005, 42 (Kelly).
17
Cass. civ., 16 Jun. 1991, JCP 1991, IV, 336.
becomes clear after the email has been read. Moreover, in practice it
is technically very easy to spy into and copy another person’s emails
without this person’s awareness.
In relation to Case 9, the offended ‘naked little girl’ can theoreti-
cally recover damages in most legal systems but only from the content
provider, i.e. the person who set up the individual website (Kevin). This
person’s identity will usually remain unknown. In practice, the victim
can only sue the internet provider, but the remedies against the latter
are very limited in scope.
9. Conclusion
A common core of personality protection exists in the laws of delict/
torts of the considered European countries. This common core has two
dimensions: on the one hand rights and interests, and on the other,
remedies. Some of the rights, interests and remedies mentioned in this
chapter are common to all legal systems, others are common to the
continental European and Nordic countries, others in turn seem to be
of concern on the European continent only.
(1) Honour and reputation are protected in all countries. In this

regard, in continental European discourse human dignity has
been developed into an overarching category. The common core of
remedies in defamation cases includes damages (in all countries),
injunction (in the common law and in most continental legal
systems), and a right of reply (in the continental and Nordic
countries). In principle, these remedies apply to both natural
persons and legal entities or groups. However, in the common law
countries the reputation of groups seems to be protected under
stricter requirements than in the continental and Nordic countries.
(2) Privacy is now protected in all countries as a common European
fundamental right enshrined in the ECHR. Damages are a
conventional remedy against privacy violations (which falls within
the scope of breach of confidence in the common law systems). An
injunction is granted in most countries under certain conditions.
(3) Beyond privacy and defamation cases, only in continental Europe
are the name, image, voice and other aspects of one’s personal
identity specifically protected as non-economic rights and interests
through damages and injunction claims.
(4) Economic rights and interests in the use of personal features such as
one’s name, image and voice are protected through damages and
injunction claims in the continental European and Nordic countries,
and partly, under certain conditions, in the common law countries
as well.
(5) Outside of defamation cases, only a few continental legal systems

expressly acknowledge and protect a right to personal identity as a
whole, i.e. a person’s right not to be portrayed in a false light.
(6) In addition, self-determination is protected as a separate right to
autonomy which constitutes the basis for damages claims in some
continental legal systems.
In all countries considered, the scope of protection of both non-

economic and economic aspects of personality interests has been con-
tinuously expanding over time. The comparative legal method and
mutual learning processes between divergent legal cultures will prob-
ably help reach an ever greater consciousness for the central role of the
human personality in all legal systems.
Index
abortion see doctor’s non-disclosure of internet photographs (naked.little.girl.

foetal disease com) 348
account of profits 346–7 invented life story 206–8
Austria 319, 376 light cigarettes reducing risk of cancer
England 460 492–4, 508
France 389 paedophile case 178–9
Germany 325, 326, 392, 411 paparazzo’s telephoto lens 317–19
Greece 393 popular TV presenter 413–16
Ireland 240, 329 satirical magazine 257–8
Italy 331, 397 snapshot case 275, 313
Netherlands 334, 400 tape recording of committee meeting
Portugal 335 476–8, 490
Scotland 468 tennis player 375–80, 411
Spain 339 unjust enrichment 375, 379, 411, 413,
Switzerland 340, 342, 406, 506 415
advertising see light cigarettes reducing
risk of cancer Belgium
amends, offer of convicted law professor 151
England 83 copied emails 436–7, 456
American Law Institute copyright 459, 494, 509
Restatement of Torts 51, 54, 55, 56, corrupt politician 78–80
66, 71 diaries 459
artistic freedom see invented life story doctor’s non-disclosure of foetal disease
Australia 469 515–16, 541
Austria environmental protection group (WAF)
breach of contract 512 545
convicted law professor 149 former statesman’s family life 230–1,
copied emails 433–6 256
copyright 474 freedom of expression 254
corrupt politician 75–8 internet photographs (naked.little.girl.
defamation 543 com) 350–1
diaries 457–8, 474, 475 invented life story 208–9
doctor’s non-disclosure of foetal disease light cigarettes reducing risk of cancer
511–14 494–5
environmental protection group (WAF) paedophile case 179–80
543–4, 563 paparazzo’s telephoto lens 319–20
former statesman’s family life 228–30, popular TV presenter 416
255 satirical magazine 258
freedom of expression 254 snapshot case 278–80, 312
578
index 579
tape recording of committee meeting Belgium 151

478 comparative remarks 175
tennis player 380–2 Greek and Swiss solutions 176–7
wrongful birth/life actions 515 no claim 175–6
Bernhard, Thomas 207 England 151–7
biographies see former statesman’s family Finland 157–9
life France 159–60
Bloustein, Edward J. 57 Germany 160–2
Brandeis, Louis D. 41–4, 45, 46, 48, 50, 51, Greece 162–3, 176–7
57, 569 Ireland 163
Brusselmans, Herman 209 Italy 163–5
Netherlands 165–6
Canada 469 Portugal 166–7
rights of individuals to images 301 Scotland 167–71
caricatures see satirical magazine Spain 171–2
celebrities see paparazzo’s telephoto lens; Switzerland 172–5, 176–7
tennis player copied emails (case 12) 433
children Austria 433–6
criminals 169 Belgium 436–7, 456
non-disclosure of foetal disease comparative remarks 453–4
see doctor’s non-disclosure of foetal entitlement to injunction 454–5
disease not entitled to injunction 455–6
photographs of see internet; internet England 437–8, 455, 456
photographs Finland 438, 455
cigarettes see light cigarettes reducing risk France 439–41, 456
of cancer Germany 441–3, 456
commercial appropriation of personality Greece 443, 455
572–3 Ireland 443–5, 455
committee meetings see tape recording of Italy 445–7, 454
committee meeting Netherlands 447–8, 455, 456
Common Core project 3 Portugal 448–9, 454
Descriptive formants 4 Scotland 449–51, 456
Metalegal formants 4 Spain 451
Operative rules 4 Switzerland 451–3, 455
compensation see damages and copyright 473–4
compensation Austria 474
confidence, breach of 351 Belgium 459, 494, 509
England 26, 152–4, 181–4, 231, 254, England 352, 383, 438, 459
280, 281, 321, 437–8, 459, 479, 569 Finland 460, 475
France 480 France 13, 461
Ireland 192, 254, 269 Germany 463, 474
Scotland 246–7, 254, 468, 470, 491, 535 Greece 464
United States of America 42 Ireland 291, 360, 394, 465
see also copied emails Italy 292, 293, 465, 474
conflict of rights 120 Portugal 467
constitutionalism 9 Scotland 366 , 468, 487
European Convention on Human Rights Spain 306, 473
and 31 Switzerland 471
France 15–17 see also moral rights
Germany 22–5 corporate legal personality 575
Sweden 29 see also environmental protection group
United States of America 59 (WAF)
contract, breach of correspondence see copied
Austria 512 emails
United States of America 42 corrupt politician (case 1)
convicted law professor (case 2) 149 Austria 75–8
Austria 149 Belgium 78–80
580 index
corrupt politician (cont.) Austria 511, 512

addressees of liability 147–8 Belgium 515
comparative remarks 140 Germany 520
damages 145–6 Greece 522
foundations of liability 141–3 Ireland 523
infringement of honour and Italy 525, 526
reputation 141, 143–4 Netherlands 527, 528–30
injunctions 146 Portugal 531
right of reply or rectification 146–7 Spain 536, 537
England 81–8, 141 Switzerland 538–40
Finland 88–92 environmental protection group (WAF)
France 92–6, 142 562–3
Germany 96–100 Austria 543, 563
Greece 100–13 Finland 545, 546, 562
Ireland 103–5, 141 France 546, 548, 562
Italy 107–9 Germany 548, 550, 563
Netherlands 114–19 Greece 550
Portugal 119–28 Italy 551, 552, 562
Scotland 128–33, 141 Netherlands 553
Spain 134–6 Portugal 554
Switzerland 136–40 Spain 555
Craxi, Bettino 112 Switzerland 559, 560, 562
criminal offences former statesman’s family life 256
privacy rights and 50–1, 61, 65 Austria 228, 229
Belgium 230, 231
damages and compensation 58 England 233
convicted law professor Finland 233
Austria 149 France 234, 236
copied emails Greece 239
Portugal 449 Ireland 239
corrupt politician 145–6 Italy 241, 242
Austria 75, 77, 145 Netherlands 243, 244
Belgium 78, 79, 80 Scotland 246
England 81, 85–6, 145 Spain 251
Finland 88, 89–91 Switzerland 252
France 92, 94, 145 internet photographs
Germany 96, 98–9, 145 (naked.little.girl.com)
Greece 100, 101, 103–13, 145, 146 (case 9) 373
Italy 107, 109, 146 Austria 350
Netherlands 114, 116–18, 145 Belgium 350
Portugal 119, 125, 126 Finland 353–4
Scotland 128, 131–2, 133 France 354
Spain 134, 145 Germany 357
Switzerland 136, 139 Greece 359
defamation 25 Italy 361
diaries 475 Netherlands 362, 363
Austria 457, 458 Portugal 364
Belgium 459 Scotland 366
Finland 460 Spain 368
France 461, 462 Switzerland 369, 371
Germany 462, 463 invented life story
Italy 465, 466 Belgium 208, 209
Netherlands 466 Finland 210
Portugal 467 France 212
Scotland 468 Italy 218, 219
Switzerland 471 Netherlands 221
doctor’s non-disclosure of foetal disease Portugal 222
index 581
light cigarettes reducing risk of Netherlands 297

cancer 509 Spain 305
Austria 492 tape recording of committee
Belgium 494, 495 meeting
Finland 495, 496 Austria 478, 490
France 496 Germany 490
Germany 497 tennis player 410–11
Greece 498 Austria 376
Italy 499, 500 Belgium 380, 381
Netherlands 501 England 382, 385, 386
Portugal 501, 502 Finland 387, 410
Spain 505 France 388
Switzerland 506 Germany 391, 392, 411
mental distress and 56 Greece 393
paedophile case 205 Ireland 394
Belgium 179, 180 Italy 396, 397
Finland 185 Netherlands 399, 411
France 186 Portugal 400, 401
Germany 188, 190 Spain 403
Greece 190 Switzerland 405, 406
Ireland 191 data protection
Italy 192, 194 England 154, 184
Netherlands 194, 196 Italy 218, 241, 243, 292, 293, 446, 483
Switzerland 202 Scotland 367
paparazzo’s telephoto lens 346–7 dead people
Austria 317, 318, 319 images of see tennis player
Belgium 319, 320 post-mortem personality rights see diaries;
England 321 tennis player
Finland 323 debtors
France 324, 346 naming of 50
Germany 346 defamation 6
Greece 328, 346 Austria 543
Italy 329, 332 England 25, 152, 181, 210, 352, 382,
Netherlands 333 385, 386, 417, 479, 495, 507
Scotland 336, 338 Finland 211, 282
popular TV presenter France 12, 546
Austria 413, 415 Greece 216
England 416 Ireland 191, 217, 394, 422, 498, 507, 551
Finland 417, 418 Italy 552
France 418, 419 Scotland 223, 269, 402, 428, 502, 503,
Germany 420, 421, 422 507, 555
Greece 422 Sweden 29
Ireland 423 United States of America 42, 59
Italy 423 degrading treatment 568
Netherlands 425 delict, law of 5, 6, 7, 8
Portugal 426 diaries (case 13) 457
Scotland 427 Austria 457–8, 474, 475
Spain 429 Belgium 459
Switzerland 430 comparative remarks 473
satirical magazine due care 474–5
Belgium 258 foundations of liability 473–4
Italy 265 remedies 475
Portugal 267 England 459–60
snapshot case 316 Finland 460–1, 475
Austria 275–8 France 461–2
Finland 283 Germany 462–3
Greece 289 Greece 464
582 index
diaries (cont.) light cigarettes reducing risk of cancer

Ireland 464–5 495
Italy 465–6 paedophile case 180–5
Netherlands 466–7, 474 paparazzo’s telephoto lens 320–2, 344,
Portugal 467 346, 347
Scotland 468–70 passing-off 352, 382, 383–5, 386, 387,
Spain 471 417
Switzerland 471–2 personality right 8, 25–8
dignity see honour and reputation, right to popular TV presenter 416–17
doctor’s non-disclosure of foetal disease privacy right 25, 27–8, 156, 569
(case 16) 511 rehabilitation of offenders 181, 203
Austria 511–14 rights of individuals to images 26, 27,
Belgium 515–16, 541 571
comparative remarks 540 satirical magazine 259–60
legal systems allowing woman’s claim snapshot case 280–1, 311, 314, 315, 316
541 tape recording of committee meeting
legal systems where woman’s claim 479
could be successful 541–2 tennis player 382–7, 409
no claim 540 trespass 320
England 516–17, 541 Enlightenment 7
Finland 517–18, 541 environmental protection group (WAF)
France 518–20 (case 17) 543
Germany 520–2 Austria 543–4, 563
Greece 522–3, 542 Belgium 545
Ireland 523–5 comparative remarks 562
Italy 525–6 damages 562–3
Netherlands 527, 541 no claim 563
Portugal 531–2, 541 England 545
Scotland 532–6, 541 Finland 546, 562
Spain 536–7 France 546–8, 562
Switzerland 537–40, 542 Germany 548–50, 563
dramatisation of events 60 Greece 550–1
see also invented life story Ireland 551
Italy 551–3, 562
emails see copied emails Netherlands 553
England Portugal 554–5
breach of confidence 26, 152–4, 181–4, Scotland 555
231, 254, 280, 281, 321, 437–8, 459, Spain 555–8
479, 569 Switzerland 559–61, 562
convicted law professor 151–7 Epstein, Richard 68
copied emails 437–8, 455, 456 European Union 32
copyright 352, 383, 438, 459
corrupt politician 81–8, 141 false-light privacy tort 55, 68, 71
data protection 154, 184 fictional characters see invented life story
defamation 25, 152, 181, 210, 352, 382, Finland
385, 386, 417, 479, 495, 507 convicted law professor 157–9
diaries 459–60 copied emails 438, 455
doctor’s non-disclosure of foetal disease copyright 460, 475
516–17, 541 corrupt politician 88–92
environmental protection group defamation 211, 282
(WAF) 545 diaries 460–1, 475
former statesman’s family life 231–3, doctor’s non-disclosure of foetal disease
256 517–18, 541
freedom of expression 254 environmental protection group (WAF)
internet photographs (naked.little.girl. 546, 562
com) 351–3 former statesman’s family life 233–4,
invented life story 210, 227 256
libel 81, 85–6, 152, 210 freedom of expression 254
index 583
internet photographs (naked.little.girl. paedophile case 186, 204, 205

com) 353–4, 373 paparazzo’s telephoto lens 324–5, 346
invented life story 210–12, 227 personality right 7, 8, 10–17
light cigarettes reducing risk of cancer popular TV presenter 418–19
495–6, 510 presumption of innocence 159
paedophile case 185–6 privacy right 12–13, 14, 16, 43, 45, 569
paparazzo’s telephoto lens 323–4, 344, right to publicity 17
347 rights of individuals to images 11–12,
popular TV presenter 417–18 17, 571
satirical magazine 260 satirical magazine 261
snapshot case 281–4, 309, 310, 314, 315, self-determination 575
316 snapshot case 284–6, 312
tape recording of committee meeting tape recording of committee meeting
479–80 480–1
tennis player 387–8, 408, 410 tennis player 388–91
forgetting wrongful birth/life actions 516, 518, 520
right to be forgotten see paedophile case fundamental rights 5
former statesman’s family life (case 5) 228
Austria 228–30 Gaius
Belgium 230–1 Institutes 7
comparative remarks 253 Germany 7
balancing privacy against freedom of constitutionalism 22–5
expression and information 254–5 convicted law professor 160–2
legal bases of privacy right 253–4 copied emails 441–3, 456
remedies 256 copyright 463, 474
England 231–3 corrupt politician 96–100
Finland 233–4 diaries 462–3, 475
France 234–6 doctor’s non-disclosure of foetal disease
Germany 236–9 520–2
Greece 239 environmental protection group (WAF)
Ireland 239–41 548–50, 563
Italy 241–3 former statesman’s family life 236–9,
Netherlands 243–5 255
Portugal 245–6 freedom of expression 254
Scotland 246–51 internet photographs (naked.little.girl.
Spain 251 com) 357–9, 373
Switzerland 251–3 invented life story 214–16, 226
France 7 light cigarettes reducing risk of cancer
breach of confidence 480 497–8
constitutionalism 15–17 moral rights 21
convicted law professor 159–60 paedophile case 188–90, 204
copied emails 439–41, 456 paparazzo’s telephoto lens 325–8, 344,
copyright 13, 461 346, 347
corrupt politician 92–6, 142 personality right 7, 8, 18
defamation 12, 546 popular TV presenter 420–2
diaries 461–2 privacy right 24
doctor’s non-disclosure of foetal disease rights of individuals to images 21, 34–7,
518–20 571
environmental protection group (WAF) satirical magazine 262–3
546–8, 562 snapshot case 286–9, 313, 314, 315
former statesman’s family life 234–6, tape recording of committee meeting
256 481–2, 490
internet photographs (naked.little.girl. tennis player 391–3, 411
com) 354–7 unification 19
invented life story 212–14, 227 wrongful birth/life actions 521
light cigarettes reducing risk of cancer Greece
496–7, 509 convicted law professor 162–3,
moral rights 13 176–7
584 index
Greece (cont.) Switzerland 571

copied emails 443, 455 United States of America 46–8, 49,
copyright 464 51, 64
corrupt politician 100–13 impersonation see popular TV presenter
defamation 216 information
diaries 464 right to be informed see doctor’s non-
doctor’s non-disclosure of foetal disease disclosure of foetal disease
522–3, 542 injunctions
environmental protection group (WAF) convicted law professor
550–1 Belgium 151
former statesman’s family life 239, 256 copied emails 454–5
internet photographs (naked.little.girl. England 438, 455
com) 359 Germany 441
invented life story 216 Ireland 444
light cigarettes reducing risk of cancer Italy 454
498 Portugal 448, 449, 454
moral rights 464 Switzerland 451, 453
paedophile case 190, 205 corrupt politician 146
paparazzo’s telephoto lens 328, 346 Austria 75
popular TV presenter 416 Belgium 80, 146
satirical magazine 263 England 81, 84, 146
snapshot case 289–90, 313, 316 Finland 88, 89, 92
tape recording of committee meeting France 92, 95
482–3 Germany 96
tennis player 393–4, 411 Greece 100, 146
Ireland 106
honour and reputation, right to 568–9, 576 Italy 107, 108
convicted law professor Netherlands 114, 118
Germany 160 Portugal 120, 127, 146
Greece 163 Scotland 128, 133
corrupt politician 141, 143–4 Spain 134
Austria 76, 77 Switzerland 136
Finland 90 diaries 475
France 142 Finland 460, 461
Germany 96, 99, 143 France 461
Greece 101 Germany 462, 463
Italy 108, 110 Netherlands 466
Portugal 120, 123 Portugal 467
Spain 135 Switzerland 471, 472
Switzerland 136–7, 144 former statesman’s family life 256
human rights 3 Austria 229
England 232–3
identification of fictional characters France 234, 236
see invented life story Greece 239
identity, right to 573–4 Ireland 239, 240
images, rights of individuals to 570–2 Italy 241
Canada 301 Netherlands 243
case studies see internet; internet Scotland 246
photographs; paedophile case; Spain 251
paparazzo’s telephoto lens; Switzerland 251
snapshot case; tennis player internet photographs (naked.little.girl.
England 26, 27, 571 com)
France 11–12, 17, 571 Austria 348, 350
Germany 21, 34–7, 571 Belgium 350
Italy 571 France 354, 356
Scotland 571 Germany 357, 358
Spain 571 Netherlands 363
index 585
Portugal 365 Portugal 400

Spain 368 Spain 403
Switzerland 369 , 371 Switzerland 404, 406
invented life story (case 4) innocence, presumption of
Germany 214, 215 France 159
Italy 218 innocent dissemination defence
Netherlands 220 corrupt politician
Switzerland 224, 225 England 83
light cigarettes reducing risk of Scotland 131
cancer 509 innuendo
Belgium 494, 495 Ireland 498
Finland 495, 510 insulting behaviour
France 496 Sweden 29
Germany 497, 498 internet 575
Greece 498 emails see copied emails
Italy 499 photographs (naked.little.girl.com) 348
Netherlands 501 Austria 348
Portugal 501, 502 Belgium 350–1
paparazzo’s telephoto lens comparative remarks 372–4
Netherlands 334 England 351–3
Scotland 336, 338 Finland 353–4, 373
popular TV presenter France 354–7
Austria 414 Germany 357–9, 373
England 416 Greece 359
Finland 417, 418 Ireland 360–2, 373
France 418 Italy 361–3
Germany 420, 421 Netherlands 362–4
Greece 422 Portugal 364–6
Ireland 422 Scotland 366–9
Netherlands 425 Spain 368–70
Portugal 426 Switzerland 369–2
Scotland 427 intrusion privacy tort 65, 71
Spain 429 invented life story 206
Switzerland 430 Austria 206–8
satirical magazine Belgium 208–9
Italy 265 comparative remarks 225–7
Portugal 267 England 210, 227
snapshot case 316 Finland 210–12, 227
Finland 283 France 212–14, 227
Germany 286 Germany 214–16, 226
Italy 291 Greece 216
Netherlands 295 Ireland 216–17, 227
Portugal 298 Italy 218–19
Spain 305 Netherlands 220–1
tape recording of committee Portugal 222
meeting Scotland 223, 227
Austria 490 Spain 224, 226
Germany 490 Switzerland 224–5
Italy 490 Ireland
tennis player breach of confidence 192, 254, 269
Belgium 380, 381 convicted law professor 163
Finland 387 copied emails 443–5, 455
France 388 copyright 291, 360, 394, 465
Germany 391 corrupt politician 103–5, 141
Greece 393 defamation 191, 217, 394, 422,
Ireland 394 498, 507, 551
Italy 396 diaries 464–5
586 index
Ireland (cont.) judiciary 45

doctor’s non-disclosure of foetal disease justification defence 82
523–5 Justinian
environmental protection group (WAF) Institutiones 7
551
former statesman’s family life 239–41 Kalven, Harry 57
freedom of expression 254
innuendo 498 law professors see convicted law
internet photographs (naked.little.girl. professor
com) 360–2, 373 legal personality 575
invented life story 216–17, 227 see also environmental protection group
libel 105 (WAF)
light cigarettes reducing risk of cancer liability
498–9 corrupt politician
paedophile case 191–2 Austria 76, 147
paparazzo’s telephoto lens 328–9 Belgium 78, 79, 147
passing-off 394, 422 England 82
popular TV presenter 422–3 Finland 91, 147
satirical magazine 264–5 France 147
snapshot case 290–1, 311, 316 Germany 147
tape recording of committee meeting Greece 101, 103 147
483 Ireland 105
telephone tapping 291 Italy 147
tennis player 394–6, 409 Portugal 121, 147
Italy Scotland 129
convicted law professor Spain 135, 147
163–5 libel
copied emails 445–7, 454 England 81, 85–6, 152, 210
copyright 292, 293, 465, 474 Ireland 105
corrupt politician 107–9 Scotland 128
data protection 218, 241, 243, 292, 293, light cigarettes reducing risk of cancer
446, 483 (case 15) 492
defamation 552 Austria 492–4, 508
diaries 465–6 Belgium 494–5
doctor’s non-disclosure of foetal disease comparative remarks 507
525–6 legal bases 507–9
environmental protection group remedies 509–10
(WAF) 551–3, 562 England 495
former statesman’s family life 241–3 Finland 495–6, 510
freedom of expression 254 France 496–7, 509
internet photographs (naked.little.girl. Germany 497–8
com) 361–3 Greece 498
invented life story 218–19 Ireland 498–9
light cigarettes reducing risk of cancer Italy 499–500, 508
499–500, 508 Netherlands 501, 509
paedophile case 192–4 Portugal 501–2
paparazzo’s telephoto lens 329–33, 344, Scotland 502–5
346 Spain 505
popular TV presenter 423–5 Switzerland 506–7
right to personal identity 573
rights of individuals to images 571 malicious falsehood 26, 129
satirical magazine 265–6, 273 convicted law professor 152
snapshot case 291–5, 311, 313, 315 corrupt politician 81
tape recording of committee meeting Mann, Klaus 215
483–4, 490 media
tennis player 396–9 freedom of 253–4
wrongful birth/life actions 525 Austria 150
index 587
balancing privacy against freedom of light cigarettes reducing risk of cancer

expression and information 254–5 501, 509
Belgium 78, 258 paedophile case 194–6
England 84, 88 paparazzo’s telephoto lens 333–5, 344,
France 142 346
Greece 100 popular TV presenter 425–6
Netherlands 114, 165 rehabilitation of offenders 194
Portugal 120, 124 satirical magazine 266–7
privacy right and self-determination 574
England 26 snapshot case 295–8, 309, 311, 312, 313,
France 12 315, 316
United States of America 43, tape recording of committee meeting
50–1, 52, 59, 60, 61, 62, 484–5
64, 68 tennis player 399–400, 411
regulation 143 wrongful birth/life actions 527
Belgium 79 Nordic legal systems
England 321, 385 personality right 9, 28–30
Scotland 250, 302 novels see invented life story
Sweden 30
Switzerland 453 O’Brien, Denis 70
see also individual case studies outrage, tort of 63
medical conditions see doctor’s non-
disclosure of foetal disease paedophile case (case 3)178
mental distress Austria 178–9
damages and 56 Belgium 179–80
misappropriation privacy tort 53, 69–70, comparative remarks 203–5
71 England 180–5
misinformation, communication of 55 Finland 185–6
moral rights France 186, 204, 205
France 13 Germany 188–90, 204
Germany 21 Greece 190, 205
Greece 464 Ireland 191–2
Scotland 402, 403 Italy 192–4
Netherlands 194–6
natural law 7, 8 Portugal 196–8
negligence Scotland 199–200
convicted law professor 152 Spain 200–1, 205
doctor’s non-disclosure of foetal disease Switzerland 201–3
516, 535 see also internet, internet
light cigarettes reducing risk of cancer photographs
494 paparazzo’s telephoto lens (case 8) 317
neminem laedere principle 5, 8 Austria 317–19
Netherlands Belgium 319–20
convicted law professor 165–6 comparative remarks 343
copied emails 447–8, 455, 456 privacy protection of celebrities in
corrupt politician 114–19 semi-public places 344–5
diaries 466–7, 474 privacy protection of celebrities
doctor’s non-disclosure of foetal disease inside their home 343–4
527, 541 rights after von Hannover judgment
environmental protection group (WAF) 345–6
553 damages and account of profits
former statesman’s family life 243–5, 346–7
255 England 320–2, 344, 346, 347
Germany 411 Finland 323–4, 344, 347
internet photographs (naked.little.girl. France 324–5, 346
com) 362–4 Germany 325–8, 344, 346, 347
invented life story 220–1 Greece 328, 346
588 index
paparazzo’s telephoto lens (cont.) diaries 467

Ireland 328–9 doctor’s non-disclosure of foetal disease
Italy 329–33, 344, 346 531–2, 541
Netherlands 333–5, 344, 346 environmental protection group (WAF)
Portugal 335–6 554–5
Scotland 336–8, 347 former statesman’s family life 245–6
Spain 339–40, 346, 347 internet photographs (naked.little.girl.
Switzerland 340–3, 344 com) 364–6
passing-off 26 invented life story 222
England 352, 382, 383–5, 386, 387, 417 light cigarettes reducing risk of cancer
Ireland 394, 422 501–2
Scotland 402, 403, 469, 502, 503, 505 paedophile case 196–8
persona, concept of 7 paparazzo’s telephoto lens 335–6
personality right 3, 5–6, 567, 576–7 popular TV presenter 426–7
commercial appropriation of privacy right 569
personality 572–3 satirical magazine 267–8
constitutionalism and 9 snapshot case 298–300, 311, 313, 315
England 8, 25–8 tape recording of committee meeting
European Convention on Human Rights 485–6
and 30–7 tennis player 400–2
France 7, 8, 10–17 Posner, Richard 58
Germany 7, 8, 18 post-mortem personality rights see diaries;
Nordic legal systems 9, 28–30 tennis player
Roman law 18 Pound, Roscoe 43
see also individual case studies precedent 45
photographs see images, rights of privacy right 569–70, 576
individuals to; internet; internet balancing privacy against freedom of
photographs; paparazzo’s telephoto expression and information 254–5
lens; snapshot case; tennis player England 25, 27–8, 156
politicians European Convention on Human Rights
caricatures see satirical magazine and 34
committee meetings see tape recording France 12–13, 14, 16, 43, 45
of committee meeting Germany 24
copied emails see copied emails legal bases 253–4
corrupt see corrupt politician United States of America 38–40, 70–2
family life see former statesman’s family academic backlash 57–8
life additional protection for peace of
popular TV presenter (case 11) 413 mind 56–7
Austria 413–16 birth of tort 41–5
Belgium 416 evolution of tort 48–55
comparative remarks 431–2 false-light privacy tort 55, 68, 71
England 416–17 first steps 45–8
Finland 417–18 intrusion privacy tort 65, 71
France 418–19 misappropriation privacy tort 53,
Germany 420–2 69–70, 71
Greece 416 Supreme Court intervenes 59–61
Ireland 422–3 unwarranted-disclosure privacy tort
Italy 423–5 61–6
Netherlands 425–6 see also individual case studies
Portugal 426–7 private law
Scotland 427–9 rights in 5
Spain 429 privilege
Switzerland 430–1 convicted law professor
Portugal Ireland 163
convicted law professor 166–7 Scotland 170
copied emails 448–9, 454 corrupt politician
copyright 467 England 82
corrupt politician 119–28 Germany 97, 98
index 589
Ireland 105 , 106 Spain 134, 147

Italy 113 Switzerland 139, 147
Scotland 128, 130 light cigarettes reducing risk of
former statesman’s family life cancer 510
Scotland 250 Greece 498
profits see account of profits Italy 499
Prosser, William L. 54, 55, 56, 57 Netherlands 501
public interest 226 rehabilitation of offenders
convicted law professor England 181, 203
Austria 150 Netherlands 194
Finland 157–8 Scotland 168, 171, 199
Germany 161 reputation see environmental protection
Greece 162, 177 group (WAF); honour and
Italy 164 reputation, right to; light
Netherlands 165, 166 cigarettes reducing risk
Spain 171 of cancer
Switzerland 172, 177 Roman law
copied emails convicium 129
Scotland 450 personality right 18
Switzerland 452
corrupt politician Sacco, R. 4
Austria 76 satirical magazine (case 6) 257
England 82 Austria 257–8
former statesman’s family life 254 Belgium 258
Scotland 249–50 comparative remarks 272–4
paedophile case England 259–60
England 185 Finland 260
Italy 192 France 261
Portugal 197 Germany 262–3
Scotland 199 Greece 263
satirical magazine Ireland 264–5
Portugal 267 Italy 265–6, 273
snapshot case Netherlands 266–7
Italy 294 Portugal 267–8
public law Spain 270
rights in 5 Switzerland 270–2
public meetings see tape recording of Scotland 9
committee meeting breach of confidence 246–7, 254, 468,
public officials, protection of 59 470, 491, 535
publicity, right to convicted law professor 167–71
France 17 copied emails 449–51, 456
United States of America 53 copyright 366 , 468, 487
corrupt politician 128–33, 141
recording see tape recording of committee data protection 367
meeting defamation 223, 269, 402, 428, 502, 503,
rectification or reply, right of 507, 555
convicted law professor diaries 468–70
Belgium 151 doctor’s non-disclosure of foetal disease
corrupt politician 146–7 532–6, 541
Austria 75, 147 environmental protection group (WAF)
Belgium 80 555
England 81, 86 former statesman’s family life 246–51,
Finland 147 256
France 92, 96 freedom of expression 254
Germany 96, 98 internet photographs (naked.little.girl.
Italy 109 147 com) 366–9
Netherlands 114 invented life story 223, 227
Portugal 125 libel 128
590 index
Scotland (cont.) copied emails 451

light cigarettes reducing risk of cancer copyright 306, 473
502–5 corrupt politician 134–6
moral rights 402, 403 diaries 471
paedophile case 199–200 doctor’s non-disclosure of foetal disease
paparazzo’s telephoto lens 336–8, 347 536–7
passing-off 402, 403, 469, 502, 503, 505 environmental protection group (WAF)
popular TV presenter 427–9 555–8
rehabilitation of offenders 168, 171, 199 former statesman’s family life 251
rights of individuals to images 571 internet photographs (naked.little.girl.
satirical magazine 269–70 com) 368–70
slander 128 invented life story 224, 226
snapshot case 300–4, 311, 314, 316 light cigarettes reducing risk of cancer
tape recording of committee meeting 505
486–8, 491 paedophile case 200–1, 205
telephone tapping 449 paparazzo’s telephoto lens 339–40, 346,
tennis player 402–3, 409 347
wrongful birth/life actions 532, 533–5 popular TV presenter 429
self-determination 574–5, 577 rights of individuals to images 571
sexual offences 155 satirical magazine 270
images of children see internet; internet snapshot case 304–6, 309, 313, 315
photographs tape recording of committee meeting
paedophiles see paedophile case 488
register of offenders 200 tennis player 403–4
slander 105 wrongful birth/life actions 536
Scotland 128 Squillante, Renato 112
smoking see light cigarettes reducing risk subjective rights 5
of cancer suicide 19
snapshot case (case 7) 275 Sweden
Austria 275, 313 constitutionalism 29
Belgium 278–80, 312 defamation 29
comparative remarks 308 insulting behaviour 29
legal bases 309–10 personality right 28–30
no taking of photographs without Switzerland
consent 310 convicted law professor 172–5, 176–7
notoriety of photographed persons copied emails 451–3, 455
314–15 copyright 471
persons photographed at work or corrupt politician 136–40
attending private affairs 315–16 diaries 471–2
photographs can be taken in public doctor’s non-disclosure of foetal disease
without consent 310–11 537–40, 542
publication of photographs 312–14 environmental protection group (WAF)
remedies 316 559–61, 562
England 280–1, 311, 314, 315, 316 former statesman’s family life 251–3,
Finland 281–4, 309, 310, 314, 315, 316 256
France 284–6, 312 internet photographs (naked.little.girl.
Germany 286–9, 313, 314, 315 com) 369–2
Greece 289–90, 313, 316 invented life story 224–5
Ireland 290–1, 311, 316 light cigarettes reducing risk of cancer
Italy 291–5, 311, 313, 315 506–7
Netherlands 295–8, 309, 311, 312, 313, paedophile case 201–3
315, 316 paparazzo’s telephoto lens 340–3, 344
Portugal 298–300, 311, 313, 315 popular TV presenter 430–1
Scotland 300–4, 311, 314, 316 rights of individuals to images 571
Spain 304–6, 309, 313, 315 satirical magazine 270–2
Switzerland 306–8, 313, 315 snapshot case 306–8, 313, 315
Spain tape recording of committee meeting
convicted law professor 171–2 488–9
index 591
tennis player 404–8 United States of America 9

wrongful birth/life actions 537 breach of confidence 42
breach of contract 42
tape recording of committee meeting communication of misinformation 55
(case 14) 476 constitutionalism 59
Austria 476–8, 490 defamation 42, 59
Belgium 478 privacy right 38–40, 70–2
comparative remarks 489–90 academic backlash 57–8
no claim 490 additional protection for peace of
possible claim 490–1 mind 56–7
England 479 birth of tort 41–5
Finland 479–80 evolution of tort 48–55
France 480–1 false-light privacy tort 55, 68, 71
Germany 481–2, 490 first steps 45–8
Greece 482–3 intrusion privacy tort 65, 71
Ireland 483 misappropriation privacy tort 53,
Italy 483–4, 490 69–70, 71
Netherlands 484–5 Supreme Court intervenes 59–61
Portugal 485–6 unwarranted-disclosure privacy tort
Scotland 486–8, 491 61–6
Spain 488 protection of public officials 59
Switzerland 488–9 right to publicity 53
telephone tapping rights of individuals to images 46–8, 49,
Ireland 291 51, 64
Scotland 449 telephone tapping 54
United States of America 54 tort of outrage 63
telephoto lenses see paparazzo’s telephoto unjust enrichment
lens Austria 375, 379, 411, 413, 415
television see popular TV presenter unwarranted-disclosure privacy
tennis player (case 10) 375 tort
Austria 375–80, 411 United States of America 61–6
Belgium 380–2
comparative remarks 408 voice
claimant’s claim 408–9 right to see popular TV presenter
damages awarded 410–11
post-mortem appropriation of WAF see environmental protection group
personality 411–12 (WAF)
England 382–7, 409 Warren, Samuel D. 41–4, 45, 46, 48, 50,
Finland 387–8, 408, 410 51, 57, 569
France 388–91 White, Edward G. 55
Germany 391–3, 411 Whitman, James Q. 44
Greece 393–4, 411 wrongful birth/life actions
Ireland 394–6, 409 Belgium 515
Italy 396–9 France 516, 518, 520
Netherlands 399–400, 411 Germany 521
Portugal 400–2 Italy 525
Scotland 402–3, 409 Netherlands 527
Spain 403–4 Scotland 532, 533–5
Switzerland 404–8 Spain 536
trespass Switzerland 537
England 320

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Personality Rights in European Tort Law

This volume provides a comprehensive analysis of civil liability

G E R T B R Ü G G E M E I E R is Professor (Emeritus) of Civil Law,

is Senior Researcher in Private Law

PA T R I C K O ’C A L L A G H A N is Lecturer in Law at Newcastle

Mauro Bussani, University of Trieste

Books in the series

Gert Brüggemeier, Aurelia Colombi Ciacchi and

© Cambridge University Press 2010

This publication is in copyright. Subject to statutory exception

First published 2010

Printed in the United Kingdom at the University Press, Cambridge

Library of Congress Cataloguing in Publication data

ISBN 978-0-521-19491-4 Hardback

Cambridge University Press has no responsibility for the persistence or

Part I Mapping the legal landscape 1

2 Protection of personality rights in the law of delict/torts in

3 American tort law and the right to privacy 38

Part II Case studies 73

5 Case 2: Convicted law professor 149

6 Case 3: The paedophile case 178

7 Case 4: An invented life story? 206

8 Case 5: A former statesman’s family life 228

9 Case 6: A satirical magazine 257

10 Case 7: A snapshot of a person 275

11 Case 8: A paparazzo’s telephoto lens 317

12 Case 9: Naked.Little.Girl.Com 348

13 Case 10: The late famous tennis player 375

14 Case 11: The popular TV presenter 413

15 Case 12: Copied emails 433

16 Case 13: Brigitte’s diaries 457

17 Case 14: Tape recordings of a committee meeting 476

18 Case 15: ‘Light cigarettes reduce the risk of cancer’ 492

19 Case 16: Doctor’s non-disclosure of a foetal disease 511

20 Case 17: WAF – A gang of incompetents? 543

Part III A common core of personality

1 Dignity and honour 568

JOH A N BÄ R LU N D , LLD , MSC ,

AUSTRIA: Ute Hammerschall, Bernd Schilcher, Peter

recognised it as a ‘research of national interest’. The International

Late Honorary Editor

Comparative legal studies performed by a large network of academ-

to Jodie Barnes, Sinéad Moloney and Finola O’Sullivan at Cambridge

But perhaps the most extensive changes have occurred in Ireland.

narrow and could be practically unworkable. Furthermore, the introduction

Once again we would like to express our gratitude to the individual

ICCPR International Convenant on Civil and

C.civ. Code civil

C. civ. Code civil

NJW-RR Neue Juristische

CC/ZGB Code Civil/Zivilgesetzbuch

N.Y.S. New York Supplement

‘Personality rights’ is not an obvious topic of comparative legal research.

which qualify as ‘rights’ in some legal systems are protected in the

(absolute) property rights in corporeal things or intellectual achieve-

The notion ‘persona’, personnalité or persönlichkeit appeared in the legal

European Court of Human Rights (ECtHR) since 1998.16 The human

2. Two distinct paths of civil law of delict

beings, especially liberty.20 Art. 11 guarantees freedom of expression.21