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The Doctrinal History of Privacy Protection in Europe Unity and Complexity

History 1: Reinhard Zimmermann Law of Obligations Roman Foundations of the Civilian Tradition (1990). 1062: [The Roman] actio injuriarum afforded a strong and efficient protection against injuries to immaterial interests" [in the medieval period] [it] was adopted from the Romans in order to

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The Doctrinal History of Privacy Protection in Europe Unity and Complexity

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    1. The Doctrinal History of Privacy Protection in Europe Unity and Complexity Professor John Blackie, University of Strathclyde

    2. History 1: Reinhard Zimmermann Law of Obligations – Roman Foundations of the Civilian Tradition (1990) 1062: “[The Roman] actio injuriarum afforded a strong and efficient protection against injuries to immaterial interests” … [in the medieval period] … [it] was adopted from the Romans in order to provide protection against interference with man’s (non-material interest) in his dignity and honour”

    3. Distinction between it and aquilian liability Remedy of palinode (amende honorable) - i.e. apology Financial compensation according to what was bonum et aequum

    4. Distinction between it and criminal charge [1071] – jurists who thought as the civil action was “penal” should not have that and criminal out of the same event.

    5. C17 Dutch and German Jurists - injuria [1064] Distinction – between real and verbal [JB – distinction by “mechanism used”) - + libellus famosus Defined e.g. Voet 47.10.1:delictum in contemptum hominis liberi admissum, quo ejus corpus, vel dignitas, vel fama laeditur dolo malo”. (“A wrongdoing committed in contempt of a free human being, and by which his person or dignity or reputation is injured with evil intent” (Gane trans)).

    6. Decline in c19 Germany – shift to criminal law > Renaissance in c 20 [1092] “Thrown out by the front door, the actio injuriarum has managed to sneak in through the back window” - General right of personality in German law (das allgemeine Persönlichketsrecht).

    7. History 2: James Gordley Foundations of Private Law (2006) “Honour and reputation” Insult – dignity Other rights to Privacy and Persönlichkeit Intrusion into Seclusion “In Roman law, the plaintiff could recover against someone who entered his house without permission. It is not clear why .. According to Molina, the person whose letter are opened is entitled to redress if, as a result, he loses honour or reputation … Modern civil law systems … ask whether the plaintiff's image or information about him has been used without his consent”

    8. “A systematic theory was first developed by the late scholastics then borrowed, in part by the northern natural law lawyers” “one can see a remarkable degree of continuity in the civil law. Rights to dignity and reputation have always been protected. The late scholastics developed a theory of what these rights were and why they should be protected”

    9. (James Gordley pp 219-220) Aristotle – Aquinas – allocation of honour a matter of distributive justice Dignitas – fama –which can be impaired by “detraction” (in secret) affects reputation; “insult” (in public) impairs honour C16 scholastics either focussed on the interest, or on the secret /in public distinction or (De Lugo) both criteria.

    10. “the late scholastic analysis of why dignity and reputation should be protected was largely ignored by… northern natural law [and] 17th and 18th century commentators on Roman law” (221) [230 “difference from c19 other than the abolition of the remedies of apology and retraction, while dignity and reputation are protected, injury to these rights is now described in larger and vaguer terms”

    11. “Their infringement is considered an instance of dommage morale or ian intrusion into ‘private life’ in France. It is considered an instance of the violation of personality or Persönlichkeit in Germany

    12. History 3 – Blackie Neither History 1 or History 2 are incorrect. But through their concentration on particular jurists reduce the complexity and make more strongly and to an extent, artifically systematic, what was pursued in courts, and by other writers through many diverse sub-categories and sub-categories.

    13. Source of material Scottish court records courts from 1500 – c 1850 The jurists actually used in those courts. The names who matter are: Giuglio Claro (Juilius Clarus) (2nd Half of c16) Prospero Farinacci (Prosper Farinacius) (Rome c 1600) Others include Matthaeues (Dutch c 1600) c17 Saxons – Berlich + Carpzov + loads of others from Savoy, France Naples etc. + conctemporary continential European case law A Molina and Grotius free zone.

    14. The sub-categories Functionally they protected different personality rights, but they were not part of a theory of personality rights protection Only very, very rarely was a distinction between actio injuriarum and aquilian liability mentioned Only very, very rarely was the second level subcategory “real injury” referred to.

    15. Why? Criminal law and civil law are one In Scotland and some other European jurisdictions the civil type remedies are sought by a “private pursuer” (partie civile) in a criminal process or (in all jurisdiction) for defamation etc ,“verbal injuries” in a quasi criminal process (in ecclesiastical courts in Roman Catholic jurisdictions, in their successor courts in protestant jurisdictions) The only reason for distinguishing real and verbal was for questions of jurisdiction (though it was also sometime as useful way of explaining why sometimes there was a presumption of animus, particularly with certain types of verbal representation) – eg calling someone a cheat. The sub-categories come haphazardly from c16 and c17 developments of specific Roman texts

    16. Those functionally protecting bodily integrity By seriousness of impact – mutilation (resulting in loss of function from injury to a distinct functioning part of the body – eg finger: different from wounding. Functional reasons for – evidential difficulties given the court infrastructure, and relative lack of reliable forensic evidence.

    17. Those functionally protecting bodily physical liberty Abductio Crimen privati carceris Plagium (including of an adult male) Raptus – carrying off libidinis causa (distinguish from “deforcement of women” and stuprum (“Seduxit et defloravit”))

    18. Those functionally protecting moral sexual relations Stuprum (later) Breach of Promise of marriage Adultery

    19. Those functionally protecting privacy – in the narrower sense 2 Hamesucken (Heimsuchen) or (Farinacius) Injuria ad domum.

    20. The protecting privacy (1) Entrusted information privacy –”secrets” By far the most important area of privacy protection law in Europe before at least the middle of the nineteenth century, with a legacy today in French “secret professionel”. (Not mentioned at all in History 1 and 2).

    21. Why was the law so extensively developed? Typical of the situations where in fact in the context of western European society at that period private information was passed by its subject to another person There were paradigm situations – medical – lawyers – confessors (in Catholic jurisdictions) – judicial secret (in inquisitorial procedure) –- mediators (developed by canonists) – deliberations of governing bodies – apprentice knowledge of master’s (an his clients’) affairs - conjugal relations – friendship relations Relevant to admissibility of evidence, not just crime/delict (Full Scottish discussion, based entirely on European until now lost from sight for 200 years, since a long digression in a commentary on a piece of c17 insolvency legislation)

    22. The legal requirements for a “secret” It must be entrusted to the person liable It is based on the “faithfulness” the party entrusting is objectively seen as having in the person entrusted Liability is on the part of the person entrusted for divulging it. The rationale is – (a) the honour of the person entrusted and (b) it is necessary so that men “can manage their, affairs, and private business, and so it is “the interest of the Commonwealth .. Not to unseal the secrets of private persons and thereby to render all Trust and Commerce suspect”

    23. The Basis Decreteum Gratiani, Causa 2 questio 2, canon 38 Various disparate texts in the Digest – loosely connected with injuria Practice of courts throughout Europe Confirmed in much documentation e.g. Apprentices’ contracts with their masters.

    24. The limits? Were lawyers ever able to divulge the “secrets” of their clients? Could they be compelled to, for example if the client committed fraud. Case law in different countries took different views. What about others?

    25. The weakness Would not cover someone getting hold of a secret, if he/she had not had it entrusted to him/her by the subject of the secret. But was that ever likely to happen in early modern Europe?

    26. Privacy 2 – Intruding on privacy Sub-category: Hamesucken (Scots) Heimsuchen (German) Injuria ad domum (Latin of Farinacius). Dead bodies – a favourite ghoulish topic from c16 to c 18 – all sorts of sub-categories floated - e.g. violation of seulchres – sacrilege – demembration of bits of a body

    27. Priavacy 3 Could the law protect where neither the conditions of (1) (as it was not information that was divulged by a person to whom it was “entrusted”) nor (2) (as it was not physical intrusion) were satisfied. Did that sort of situation, though, ever occur in the different cultural and social context before at least the c19?

    28. Adapting in c19 “Secrets”, protection could easily slide into the English law equity idea of “confidentiality”- though it was analytically different Intrusion privacy – comes back off and on from about 1900 – law has no idea how to deal with it – new general theory has to be made up – dead bodies reappear – in late c 20 bits of dead children – new general theory has to be made up.

    29. Actio injuriarum and aquilian liability Did the distinction matter on the ground? Generally not: Monetary compensation, judges “modified” a sum, including for patrimonial consequences – so routine no need to have theory – and anyhow it was based on a perception of the nature of the human (funamentally theological and philosophical – the concept of intrinisc and extrinsic damage) No need to refer to second or first level categories if a well rehearsed sub-category does the business. E.g. stuprum – some jurisdictions at least till end c18 gave the defender an option – set her up a sum to use as dowry to secure a husband of the right sort, or marry her yourself.

    30. BUT Occasional references to aquilian liability were usually opportunistic – e.g. to try to argue for a particular method of valuing financial consequential loss Some things could be brought under injuria by implying it as a category – e.g. spitting at someone where the spit failed to land – later in Scotland brought under “assault”

    31. Final Thoughts Things like torts are neither just an English law phenomenon, nor are just a c20/c21 one Do top level categories act as “residual” sources of doctrine? And/or are can they be dynamic? Privacy etc law will always have to adapt to new sorts of paradigm situation Doctrinal legal history is too complex, to study solely what certain jurists say at certain moments.

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