CIPIL spring conference 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.