Events in Cambridge 2005 - 2006
Privacy and Personality Rights in Comparative Perspective. 11 February 2006
Chairman and main speakers:
Professor Ansgar Ohly, Dr Pascal Kamina, Mr Gavin Phillipson, Rt. Hon. Professor David Vaver, Sir Robin Jacob,
Professor Michael Maddow, Dr Huw Beverley-Smith.
This conference took place at the Faculty of Law under the aegis of CIPIL. It was chaired by Rt. Hon. Sir Robin Jacob, Lord Justice of Appeal and presentations covered developments in the common law of privacy, personality rights under German and French Law, rights of personality in the British Commonwealth, European convergence in the context of personality rights and personality, privacy rights and freedom of expression.
The UK position was addressed by Gavin Phillipson of King’s College, London. He asked whether the changes introduced by the House of Lords in the decision in Campbell v. Mirror Group Newspapers brought English law into line with the requirements of Article 8 of the European Convention on Human Rights. In exploring this question, Mr Phillipson offered two readings of the European Court of Human Right’s decision in Von Hannover. The first reading, an “absolutist” reading, required recognition that all activities of daily life are “activities of a purely private nature”, and this would require further extension of English law beyond Campbell. Phillipson’s alternative reading of Von Hannover emphasised that decision reflected peculiar facts of the case, in particular the persistent harassment of the Princess, and would not necessarily require further modification of English law.
Dr Pascal Kamina, Professor at the University of Poitiers and Attorney at Law of the Paris Bar, analysed the development of the rights of personality under French law, in particular focusing on a recent decision of the Court of Appeal of Versaille. Dr Kamina suggested that France was developing a “dualist” regime for the protection of dignitary and economic aspects of a person’s personality, by analogy with the patrimonial and moral rights granted to authors by French droit d’auteur.
Professor Ansgar Ohly, Professor of Intellectual Property and Civil Law, University of Bayreuth and counsel for the German Government in von Hannover v. Germany (ECHR), offered a very thorough examination of the development of the protection of privacy and personality in Germany, variously through the Civil Code (art. 823, art. 12 – recognising the right to one’s name), article 22 of the Copyright in Works of Art Act 1907 (recognising the right to one’s image) and judicially from the Basic law of 1947. Like Dr Kamina before him, Professor Ohly acknowledged the way in which the development of German law was being modelled on German copyright law, particularly in its “monistic theory”.
Professor Ansgar Ohly and Dr Huw Beverley-Smith, a solicitor with Field, Fisher Waterhouse, presented a paper entitled "Privacy and Personality under the European Convention on Human Rights", concluding with an examination of the Von Hannover judgement. Ohly emphasised the German history of the litigation arguing that a reasoned judgement of a national supreme court in a delicately balanced question should have been paid more respect. Ohly also argued that the Strasbourg Court had adopted too broad a concept of privacy, and one which was likely to constrain unduly legitimate expression. More specifically, he doubted the sustainability of the dichotomy the Court had adopted between “politicians exercising their function” and “private persons”. In his view, this dichotomy reflects an elitist view of what judges think should be of public interest and fails to recognise the range of different attitudes towards the role of the press prevailing in Europe.
Professor David Vaver, Director of the Oxford Intellectual Property Research Centre, St Peter’s College, Oxford, addressed the Commonwealth position, dealing with commercial appropriation of personality and intrusion on private life. His talk was entitled Protecting privacy and personality in the Commonwealth: “good sense and social desirability” or “judicial censorship”? Professor Vaver provided an overview of the range of positions offered by different countries in the Commonwealth before examining the whether protecting privacy and personality in the Commonwealth equates to “good sense and social desirability” or “judicial censorship”.
Professor Michael Madow, Professor of Law, Brooklyn Law School examined privacy, publicity and free expression in the US. His account of recent developments emphasised the persistent problems US law had faced in relation to the right of publicity, in particular, its doctrinal uncertainty. According to Professor Madow, Britain and Europe should think very carefully before going down the path towards recognition of such right, which not only inhibit freedom of speech, but lack any persuasive underlying rationale.
Rounding off the comparative analysis of the various legal regimes, Dr Huw Beverley-Smith’s paper, entitled "Common features and points of convergence" examined the extent to which the legal approaches and solutions of different jurisdictions are converging. He argued that there are three basic models of protection : defensive protection, right of publicity and a hybrid right as applied in Germany based on an analogy to copyright law. He noted that the primacy of property rights is a common feature of these developments, adding that, in Europe, there is a higher level of protection for privacy, there are tentative signs of a gradual convergence in privacy protection, there is a nuanced and context-specific approach to public and private life and privacy has a spatial scope.
Finally, Mr Keith Schilling, Senior Partner, at Schillings, London, and Ms Siobhain Butterworth, Legal Director, Guardian Newspapers Limited, considered whether the interests of celebrities were adequately protected under English law. Mr Schilling pointed to a number of failings in English law, at least as far as celebrities were concerned: one important problem being that, as a result of the need to differentiate between privacy claims and defamation, celebrities were forced to reveal confidential information in order to pursue claims at all. Ms Butterworth argued that the legal system had perhaps been too eager to protect confidentiality, and, in particular, had failed to give due consideration to the need for court proceedings to be reported in full, including references to the identities of those involved. She argued that the crucial public interest in justice being seen to be done, was being compromised by protection of the privacy of those involved.
Symposium on the Use of Health Information in Medical Research, 24 June 2006
Following the publication of the Academy of Medical Sciences report, ‘Personal data for Public Good’, CIPIL joined forces with several organisations including the Academy to host a symposium drawing out strengths and limits of the arguments presented in the report and to anticipate future developments where legislative or regulatory change may be required.
The Report argues that despite efforts to balance the benefits of research with the protection of privacy, the current English regulatory framework is failing to support satisfactorily secondary data research—that is, research based on data originally collected for a purpose other than medical research which does not involve interaction with the patient—in part because of a failure to distinguish such research from more interventionist experimentation (e.g. clinical trials). Several examples are highlighted where research based solely on existing records was rejected or effectively blocked by too many delays, costs, and restrictions, despite the negligible risks entailed. The Academy attributed the problems not to prohibitions entrenched in laws but to confusing and overly complex regulation, excessive bureaucracy, legal defensiveness, and a disproportionate focus on individual autonomy and privacy by those who interpret and apply the laws. It called not for an outright exemption for all secondary medical research but for a more stream-lined and nuanced interpretation of the public interest defence where it is clearly impractical to seek consent from each individual or to anonymise data; better processes for securing data from misuse; and efforts to raise awareness of secondary research with the public.
The Symposium offered an opportunity to discuss and challenge the legal arguments described in the Report in greater depth. Despite the beckoning weather, some 50 senior members of the legal profession arrived on the allotted Saturday morning in June to participate in the proceedings. The discussion ranged broadly and energetically over topics including recent trends in the common law of confidence, evidence and procedures for ascertaining whether records-based research fell within the Article 8(2) exemption of the Human Rights Act 1998, the views of the Office of the Information Commission, comparisons with exemptions for tabloid newspapers, the history of the principle of fair processing in the Data Protection Act 1998, the remit intended by Parliament for the Patient Information Advisory Group and legal definitions of consent. In many places speakers reiterated and endorsed points made in the Report. Some differences of opinion were also voiced. Some urged medical researchers to be less timid about regulatory requirements and to press on notwithstanding legal uncertainties. Others urged more careful use of language when lobbying for regulation to be simplified; language that recognises the importance of privacy in democratic society and that avoids sweeping statements suggestive of a general exception for ‘medical research’. Interesting points were also made about the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Treaty 108), the practice of case-by-case review at PIAG, analogous debates in other fields of intellectual property (e.g. scientific/creative commons v. private rights holders) and the likelihood that the judiciary would hold the concept of consent to a demanding standard (but be generous with the scope of the public interest defence).
Special thanks are extended to the principal organiser, the Academy of Medicine,, the Public Health Genetics Unit, speakers and delegates, other members of the Faculty who participated and Mills and Reeve which generously provided additional sponsorship.
See the following links for further information:
· Academy of Medical Sciences Report [3.99mb] Personal Data for Public Good: Using Health Information in Medical Research
· Briefing Paper for the Symposium
Une chose publique: history and rhetoric of the copyright public domain in France, Great Britain and the United States(First Annual International Intellectual Property Lecture at Emmanuel College)
Queen's Lecture Theatre, Emmanuel College
11th May 2006, 5.30 pm - 7.30 pm
Speaker: Professor Jane Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia Law School. Professor Ginsburg has taught French and U.S. copyright law and U.S. legal methods and contracts law at the University of Paris and other French universities. In 2004-05 she held the Arthur L. Goodhart Visiting Chair of Legal Science and returned to Cambridge as a Herbert Smith Fellow during Michaelmas Term 2008. She is an Honorary Fellow of Emmanuel College.
The lecture was published in the Cambridge Law Journal and is available to download here.
Trademarks Workshop, 3 July 2006
In July, CIPIL and Emmanuel College hosted the second Interdisciplinary Trade Marks Workshop. Following last year’s preliminary investigation as to whether different disciplines had anything interest to say about trade marks, this year’s event saw speakers from different disciplines paired up so as to provide insights into the same topic using different methodologies. Papers and commentators included Jennifer Davis(Law)/Jenny Thomas (Linguistics), James Leach (Anthropology)/Megan Richardson(Law), Alan Durant (Linguistics)/Graeme Dinwoodie (Law), Jonathan Schroeder (Marketing)/David Vaver (Law), Andrew Griffiths (Law and Economics)/Tim Ambler(Economics), Lionel Bently (Legal History - "The Making of Modern Trade Marks Law: The Construction of the Legal Concept of Trade Mark (1860-80)")/David Higgins(Economic History), Celia Lury (Sociology)/Catherine Ng (Law), Bronwyn Parry (Geography)/Dev Gangjee (Law). The master of ceremonies was Professor Jane Ginsburg (Law). Neither Dominic Scott (Philosophy) nor his respondent Michael Spence (Jurisprudence) were available, but both plan to contribute to the collected papers, which will appear in a volume published by CUP in 2007.