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3 - Privacy and personality in the common law systems

Published online by Cambridge University Press:  04 July 2009

Huw Beverley-Smith
Affiliation:
Field Fisher Waterhouse, London
Ansgar Ohly
Affiliation:
Universität Bayreuth, Germany
Agnes Lucas-Schloetter
Affiliation:
Ludwig-Maximilians-Universität Munchen
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Summary

Introduction

Four predominant approaches to problems of invasions of privacy may be identified. First, the adjustment of existing causes of action to cover invasions of privacy. The traditional common law approach has involved stretching statutory provisions and well-established torts such as defamation, trespass and the action for breach of confidence to embrace interests in privacy. Second, the piecemeal addition of new causes of action, either by reference to the circumstances in which liability is imposed (e.g., harassment or appropriation of personality) or by explicitly labelling them as invasions of privacy. A number of common law jurisdictions have adopted this piecemeal approach. Property and reputation remain the primary protected interest, and protection for other interests is parasitic. Third, a general remedy declaring that, in principle, every invasion of privacy is actionable, subject to necessary qualifications limiting recovery: this might be non-exhaustive, leaving the terms and scope open-ended or exhaustive, defining the terms and circumstances for recovery comprehensively. Fourth, the declaration that every person has a right to privacy in a general and open-ended way, without specifying the circumstances in which privacy can be invaded. English law has traditionally been reluctant to develop beyond the first two approaches. In the United States, the casuistic approach was abandoned in favour of a general remedy for invasion of privacy, cast rather unusually in rights based terminology. This is an approach which other common law systems have, thus far, refused to adopt.

Type
Chapter
Information
Privacy, Property and Personality
Civil Law Perspectives on Commercial Appropriation
, pp. 47 - 93
Publisher: Cambridge University Press
Print publication year: 2005

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