Institute of Foreign and Comparative Law
Personality rights: a comparative overview
Author(s): Johann Neethling
Source: The Comparative and International Law Journal of Southern Africa, Vol. 38, No. 2
(JULY 2005), pp. 210-245
Published by: Institute of Foreign and Comparative Law
Stable URL: https://www.jstor.org/stable/23252295
Accessed: 25-02-2019 10:39 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Institute of Foreign and Comparative Law is collaborating with JSTOR to digitize, preserve
and extend access to The Comparative and International Law Journal of Southern Africa
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative
overview
Johann Neethling*
Professor: School of Law, University of South Africa
Abstract
This contribution entails a comparative review or synopsis of the present state
of the protection of personality rights. Realistically, this can only be a snapshot
of the status quo in various legal systems and is not intended to give a detailed
exposition. The aim is to summarise, systemise and to an extent critically
reflect on the available literature, as well as to identify particular dogmatic and
practical problems. The research results may also stimulate in-depth
examination of particular aspects of personality protection. The topics dealt
with are the recognition and basis of protection of personality rights, the
scope of their protection, the relationship between the general right to
personality and specific personality rights, the nature of personality rights and
personality harm, the classification of specific personality rights, the
distinction between personality rights and certain patrimonial rights,
personality rights as human rights, post-mortem personality protection, and
the personality rights of juristic persons.
HISTORICAL BACKGROUND
Personality rights, which recognise a person as a physical and s
being1 and guarantee his enjoyment of his own sense of existen
protected in various countries to a greater or lesser degree. Bu
of personality rights is not new. In particular classical natural
notion of innate, inalienable human rights which included va
relating to personality, forms the background to the modern
1877 Gareis, and after him Gierke and Kohler, postulated the idea
*BA LLB (UOFS); LLM (McGill); LLD (Unisa).
'WA Joubert Grondslae van die persoonlikheidsreg (1953) at 130-1; J N
Potgieter & PJ Visser Neethling's law of personality (2005) at 24.
2C von Bar The common European law of torts vol 2 (2000) at 61.
3Joubert n 1 above at 13ff\ D Leuze Die Entwicklung des Personlichke
Jahrhundert: zugleich ein Beitrag zum Verhaltnis allgemeine Persdnl
Rechtsfahigkeit (1962) at l\ff 21ff H Hubmann Das Persdnlichkeits
85ff\ M Herrmann Der Schutz der Persdnlichkeit in der Rechtslehre
Jahrhunderts (1968) at I9ff 29ff; M-T Frick Personlichkeitsrechte.
Rechtsvergleichende Studie iiberden Stand des Persdnlichkeitsschutzes in Ostereich,
Deutschland, der Schweiz und Liechtenstein (1991) at 44; Neethling, Potgieter &
Visser n 1 above at 6.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 211
right to personality4 from which particular rights or interests of personality
may develop, such as (the rights to) physical integrity, freedom, and dignity.5
Gierke even enumerated the characteristics which distinguish personality
rights from other rights, they are private rights, of a non-patrimonial nature
and highly personal in the sense that they are connected to the personality of
their holder and terminate with his death (in other words, they are non
transferable and unhereditable).6 However, whereas Gareis and Gierke
considered the products of the human mind as part of the general right of
personality, Kohler distinguished between such intellectual property and
personality rights,7 demonstrating that a person's intellectual creations exist
independently of his personality, and form a separate category of legal objects,
namely immaterial or intellectual property. Today the idea of personality rights
as a separate group of private rights is firmly established on the European
continent, and has also made its appearance elsewhere (for example, in South
Africa and the USA). The different legal systems nevertheless do not share the
same views on the recognition and scope of protection of these rights.8
RECOGNITION AND BASIS OF PROTECTION OF PERSONALITY RIGHTS
Since as a rule individuals attach considerable significance to face
personality — so much so that most personality rights have also been
entrenched as human rights9 — and are accordingly sensitive to infringements
thereof,10 it can as premise be accepted that all legal systems strive towards,
and indeed have an obligation, because of their human rights connotation,11
to provide for comprehensive personality protection. In this regard a
differentiated approach has been followed.
First of all, there are those systems, of which German law is the best example,
that recognise a general right to personality as a basis for comprehensive
personality protection. Although such a basis existed in the common law of
that country under the actio iniuriarum, it was not included in the BGB,
mainly because the protection by criminal sanctions of dignity alone was
considered sufficient. Specific personality rights were nevertheless statutorily
recognised, namely the rights to a name, image, dignity, reputation, body, life,
4Leuze n 3 above at 93#; Joubert n 1 above at 18\ff\ S Stromholm Right of privacy and
rights of the personality: a comparative survey (1967) at 29; R Nehmelman Het
algemeen persoonlijkheidsrecht. Een rechtsvergelijkende studie naar het algemeen
persoonlijkheidsrecht in Duitsland en Nederland (2002) at Iff Neethling, Potgieter
& Visser n 1 above at 6-7; BS Markesinis & H Unberath The German law of torts:
a comparative treatise (2002) at 74.
5Leuze n 3 above at 114-5; Joubert n 1 above at 20; Neethling, Potgieter & Visser n
1 above at 8-9.
'Neethling, Potgieter & Visser n 1 above at 8.
'joubert n 1 above at 21ff Leuze n 3 above at 103#; Nehmelman n 4 above at 7-8.
8Von Bar n 2 above at 61.
'See below under Personality rights as human rights.
'"Neethling, Potgieter & Visser n 1 above at 12.
uVon Bar n 2 above at 61.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
212 XXXVIII CILSA 2005
freedom and health.12 However, the paramount significance attached to
human dignity and the free development of personality in the Constitution
brought about a radical change in 1954 when the BGH recognised a general
right to personality — a development confirmed by the BverfG13 and
considered by Larenz and Canaris14 to be the most important change in
German tort law since the enactment of the BGB.15 The basis of the
protection of personality is thus the general right to personality which
comprises all aspects of personality and can be regarded as the fountain
(Mutterrecht) from which all concrete or specific rights of personality flow.16
These rights are either embodied in legislation as indicated, or they may b
recognised by the courts, for example, the rights to privacy and identity.1
The general right can thus be regarded as a general clause on which expansio
of personality protection can be based.18
At the opposite pole are those systems which have and see no need for th
recognition of a general right to personality because their law possesses a
different foundation for comprehensive personality protection.19 French la
provides a clear example. Here the courts developed an extensive protection
of personality interests on the basis of the general delictual provisions of the
12J Helle Besondere Persdnlichkeitsrechte im Privatrecht (1991) at 3-5; Leuze n 3
above at 67#; E von Caemmerer 'Wandlungen des Deliktsrechts' in E von
Caemmerer, E Friesenhahn & R Lange (eds) Hundert Jahre deutsches Rechtsleben
vol 2 (1960) at 102\ff\ C von Bar Gemeineuropaisches Deliktsrecht vol 1 (1996) at
42-3; Markesinis & Unberath n 4 above at 26-7, 43, 74-5; W-S Son Schutz gegen
Ebrverletzungen im deutschen und koreanischen Recht (1996) at 52\ff\ Nehmelman
n 4 above at 10ff H Walter Actio Iniuriarum: der Scbutz der Persdnlicbkeit im
siidafrikanischen Privatrecht (1996) at 24-6.
"H Neumann-Duesberg 'Zum allgemeinen Personlichkeitsrecht und zu den
besonderen Personlichkeitsrechten im Privatrecht' (1991) 42 VersR 957 at 957-8;
Nehmelman n 4 above at 22'ff.
14K Larenz & C-W Canaris Lebrbuch des Schuldrechts vol II/2 (1994) at 491; W van
Gerven et al Tort law (2000) at 142.
15Von Bar n 12 above at 583-4; Von Caemmerer n 12 above at 105-6; Helle n 12
above at 6-7; Van Gerven et al n 14 above at 63# 142# 165-6; JM Smits
'Constitutionalisering van het vermogensrecht' in JM Smits et al (eds) Preadviezen
uitgebracht voor de Nederlandse Vereniging voor Rectsvergelijking (2003) 121-3;
Walter n 12 at 26-7; E Guldix & A Wylleman 'De positie en de handhaving van
persoonlijkheidsrechten in het Belgisch privaatrecht' (1999) 36 TPR 1589 at
1620-1621; Nehmelman n 4 above at 16# Neumann-Duesberg n 13 above at 957.
I6Helle n 12 above at 11.
"Hubmann n 3 above at 220ff 27Iff, 52}ff H Hubmann 'Inhalt und Abgrenzung des
zivilrechtlichen allgemeinen Personlichkeitsrechts' in W Waldner & R Kiinzl (eds)
Erlangen Festschrift fur Karl Heinz Schwab (1990) at 4-5; O-F van Gamm
Persdnlickheits- und Ebrverletzungen durcb Massenmedien (1969) at 28, 39-42; Son
n 12 above at 32-5, 52-4; K Lemmens 'The protection of privacy between a rights
based and a freedom-based approach: what the Swiss example can teach us' (2003)
10 MJ 381 at 385-387; Nehmelman n 4 above at 3Qff\ U Kerpcn Das Internationale
Privatrecht der Persdnlichkeitsrechtsverletzungen (2003) at 5-8, 11; cf Helle n 12
above at 11#, 27% 45iff, 229#
lsCf Larenz & Canaris n 14 above at 518-9.
l9Von Bar n 2 above at 94 n 508.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 213
CC, and especially by extending the concept of damage to personality harm.20
Some of these interests are physical integrity, dignity, good name, feelings
{sentiments d'affectiori), privacy and identity (including name and image),
and may be identified by the courts as objects of personality rights.21 A few
of these interests have furthermore been granted legislative protection, the
most prominent of which is the express recognition of privacy in the CC.22
As a result of the all-embracing protection of especially the principles of delict,
there is no need for the recognition of a general right of personality — as in
German law. Besides, the practical significance of such a right is questioned
by French jurists since a concretisation of specific rights of personality is in
any case still necessary.23 24South African law can also be mentioned here.
Since the actio iniuriarum provides all-embracing protection of personality,
there is no need for the recognition of a general right to personality. Separate
personality rights are recognised and protected, including the rights to corpus
(physical-mental integrity), libertas (physical freedom) andfama (reputation),
as well as the rights relating to dignitas, which is regarded as a collective term
tor all other personality rights, inter alia the rights to dignity, privacy and, to
a lesser extent, feelings and identity. The concept of dignitas accordingly
serves as a basis for the recognition of further rights of personality and
therefore the extension of personality protection in so far as this may be
necessary.25
Thirdly, there are those systems which, although they have another basis for
comprehensive personality protection, nevertheless in addition also recognise
a general right to personality. This is for instance the case in the Netherlands
20Kerpen n 17 above at 44/7; Van Gerven et al n 14 above at 57/7; WVH Rogers (ed)
el al Damages for non-pecuniary loss in a comparative perspective (2001) at 87-9;
Hubmann n 3 above at 104-6; I Schmitz I Persdnlichkeitsrechte und zivilrechtliche
Deliktshaftung imfranzdsischen und deutschen Recht (1967) at 4-6; Gutachten des
Max-Planck-Instituts ffir auslandisches und internationales Privatrecht Der
zivilrechtliche Persdnlichkeits- und Ehrenschutz in Franckreich, der Schweiz,
England und den vereinigten Staaten (1960) at 34/7; L-J Constantinesco 'Die
Persdnlichkeitsrechte und ihr Schutz im Franzosischen Recht' (1960) 159 AcP 320
at 320ff
21Kerpen n 17 above at 44, 46, 47ff, Van Gerven et al n 14 above at 110, 152, 166;
Schmitz n 20 above at 30ff 39ff Hubmann n 3 above at 105; Max-Planck Gutachten
n 20 above at 4:1ff, Joubert n 1 above at 53ff
22Kerpen n 17 above at 44, 52ff; Van Gerven et al n 14 above at 53, 156-7; Lemmens
n 17 above at 385.
23Kerpen n 17 above at 46; Hubmann n 3 above at 105; Schmitz n 20 above at 18\ff
Smits n 15 above at 126.
24In Belgium the concept of personality rights was imported from France and is today
still influenced by French literature (Guldix & Wylleman n 15 above at 1589-94).
Belgium therefore, also does not know or need a general right to personality, but
recognises only separate personality rights which include the rights to privacy,
image, life, body, name, dignity and good name (Guldix & Wylleman n 15 above at
1620-1, 1624/7).
25Neethling, Potgieter & Visser n 1 above at 39-59; Joubert n 1 above at ISff, Walter
n 12 above at 42\ff 64ff, 144-8; JM Burchell Personality rights and freedom of
expression. The modern actio iniuriarum (1998) at 133, 327ff, JM Burchell 'The
protection of personality rights' in R Zimmermann & D Visser (eds) Southern cross:
civil law and common law in South Africa (1996) 639 at 639jff
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
214 XXXVIII CILSA 2005
and Austria. In Austria the basis for a comprehensive recognition and
protection of personality rights is provided not only in the ABGB which
expressly emphasises personality rights, but also in the general delictual
provisions.26 However, for a long time the courts had an inhibiting influence
on the realisation of the full potential of these provisions, 7 refusing {contra
legem) to extend personality protection beyond cases expressly recognised by
legislation;28 and this may perhaps be the reason why the general right to
personality was recently adopted by the Austrian courts.29 Specific
personality rights (such as the rights to life, physical integrity, image, privacy
and dignity) are also recognised. In the Netherlands, in spite of the general
delictual clause of the BW, and the provision catering for awarding non
pecuniary loss in instances of infringement of the physical person, dignity,
reputation, or any other infringement of the person, which entails, inter alia,
non-physical personal injury (such as psychiatric illness), invasion of privacy
and interference with freedom of movement,30 the Hoge Raad recognised the
existence of the general right to personality in 1994. This right is said to
underpin other fundamental rights such as the right to privacy, although its
juridical nature remains uncertain.32 Although Dutch law recognises rights
of personality (such as the rights to life, physical and psychological integrity,
freedom of movement, dignity, good name, identity, autonomy, and
privacy),33 the most striking difference between the German and Dutch
concepts of the general right to personality is that the former gave rise to the
creation of various specific personality rights, while the latter has been very
slow to do so.34 35
26Frick n 3 above at 56.
27E Kamer & H Koziol Der Ersatz ideellen Scbadens im osterreichischen Recht und
seine Reform: Verhandlungen des Fiinfzehnten Osterreichischen Juristentages
Innsbruck 2003 vol II/l (2003) at 17-22; Frick n 3 above at 44-8.
28Frick n 3 above at 59-61.
29Von Bar n 2 above at 94 n 508; cf Karner & Koziol n 27 above at 17-22.
^SD Lindenbergh 'De positie en de handhaving van persoonlijkheidsrechten in het
Nederlandse privaatrecht' (1999) 36 TPR 1665 at 1692-3; Rogers et al n 20 above
at 155.
31 Cf Nehmelman n 4 above at 268.
32Smits n 15 above at 124; Nehmelmann n 4 above at 115; Lindenbergh n 30 above
at 1672-3.
33Smits n 15 above at 124; Lindenbergh n 30 above at 1667-9,1673-5; cf Nehmelmam
n 4 above at 165#
34Lemmens n 17 above at 387-8; Nehmelman n 4 above at 215-6.
35Italian law can also be mentioned under this group where, notwithstanding the fact
that the provisions for delictual liability are similar to French law, a right to the free
self-determination of personality development was recognised by the judicature,
based on the constitution, followed by the acceptance of the rights to privacy and
identity (including the right to a name) as separate personality rights. This also
seems to be the position in Greece: a general right to personality (dignity and
autonomy) was recognised as a legally protected interest within the meaning of its
general delictual clause (see Von Bar n 2 above at 93; Von Bar n 12 above at 18-9,
22Jf, 584). Von Bar (n 12 above at 24) remarks that the Greek courts have indeed
extended the application of the general right far beyond any length to which other
European countries have gone.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 215
The fourth group lies between the French and Austrian models. Switzerlan
was the first country in which the modern theory of personality rights w
implemented, providing comprehensive statutory protection against any
interference with legal subjectivity or the wrongful infringement of th
personality (previously personal relations). This protection was made eve
more comprehensive in 1983, particularly as far as the mass media were
concerned.36 However, there is no concensus on the general right o
personality. Some jurists accept Gierke's wide concept, which encompass
not only true personality rights but also the legal personality itself, including
freedom of economic activity,37 while others recognise only specific rights of
personality.38 In order to facilitate the practical handling of the protectio
of personality, the approach in practice is to recognise specific rights o
personality (in addition to the general right). Personality rights recognised in
this manner are the rights to life, physical integrity, freedom of movement,
feelings (or sentiments), a good name, dignity, privacy and identity (including
the name and image).39 However, like Gareis and Gierke, Swiss law al
protects patrimonial (economic) interests such as the business enterprise
(against unlawful competition), and immaterial property (trade marks and
trade names) as aspects of personality.40
It may be concluded that notwithstanding the divergent approaches to th
recognition of a general right of personality, in all of the above systems specific
personality rights are recognised by either statute or the courts. They int
alia include the rights to life, physical integrity, bodily freedom, reputation,
dignity, privacy, identity (including name and image), and feelings (sentiment
d 'affection).
In contradistinction to the previous systems, in English law, as with mos
common law countries, the doctrine and recognition of personality rights are
virtually non-existent. As a result of historical development protection
personality is based on tort law. A wide range of torts are applicable here
inter alia, assault, battery, false imprisonment, defamation (libel, slander),
malicious falsehood, malicious prosecution, intentional infliction of menta
suffering, and breach of confidence.41 The personality interests protected by
these torts, which can be identified as physical-psychological integrity, liberty
36Rogers et al n 20 above at 301-4; Frick n 3 above at 286; Hubmann n 3 above at
100-1; Guldix & Wylleman n 15 above at 1621; Joubert n 1 above at biff
37Joubert n 1 above at 37-8; Frick n 3 above at 28, 209-14, 227-30, 285.
38A Bucher Naturliche Personen und Persdnlichkeitsschutz (1995) at 148^; Frick n
above at 27-8.
39Frick n 3 above at 214ff\ Bucher n 38 above at 149ff, Joubert n 1 above at 42-3;
Hubmann n 3 above at 100-1; Max-Planck Gutachten n 20 above at 4ff, Lemmens
n 17 above at 399.
^Frick n 3 above at 227-30; Joubert n 1 above at 42, 43-4.
41RFV Hueston & RA Buckley Salmond and Hueston on the law of torts (1996) at
120ff 138ff, WVH Rogers Winfield & Jolowicz on tort (2002) at 68ff, 8lff 403ff, Van
Gerven et al n 14 above at 44ff 90ff 159ff\ Kerpen n 3 above at 82\ff Walter n 12
above at 115^; Joubert n 1 above at 63; Hubmann n 3 above at 106-7; Max-Planck
Gutachten n 20 above at 100#; JG Fleming The law of torts (1998) at 21ff 580ff as
to Australia.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
216 XXXVIII CILSA 2005
reputation42 and to a lesser extent privacy43 and dignity, receive very
little attention. However, none of these torts is suitable to serve as basis for a
comprehensive protection of personality. Moreover, English common law
manifestly lacks the ability to recognise and protect interests of personality
which do not fall under one of the existing torts but are nevertheless worthy
of protection. A clear example is the failure of English law to recognise the
rights to privacy and identity, although (more and more expanded) incidental
relief for certain instances of infringement of privacy (particularly for breach
of confidence) is provided by other remedies.45 The argument that the right
to privacy would be too uncertain and restrict freedom of the press too much,
has not prevented most other countries from recognising this right.46 There
is also only scant incidental protection of human dignity in England.47 48
Unlike in most other common law countries, for various reasons the idea of
personality rights gained acceptance in the USA.49 A significant factor was the
focus in jurisprudence50 on the different interests of personality,51 as well
as the attention directed in theory and practice at the creation of a broader
basis for the extention of personality protection. In this regard Warren and
Brandeis52 laid the foundation for the recognition of the right to privacy as
an aspect of the more general right to personality.53 However, the right to
privacy in the USA does not only protect privacy but extends much wider, so
much so that this right to be left alone portrays surprising similarities to the
42P Milmo & WVH Rogers (eds) Gatley on libel and slander (2004) at 17-21.
43C Herth Personlichkeitsschutz im englischen Recht (1989) at 29-53.
"^Walter n 12 above at 28; Fleming n 41 above at 5-6, 664-6.
45Milmo & Rogers n 42 above at 606-9; Rogers n 41 above at 479#; Van Gerven et al
n 14 above at 159# 163-4, 166-7; Kerpen n 3 above at 142; Herth n 43 above at
29-92; Walter n 12 above at 28, 133#; R Youngs English, French and German
comparative law (1998) at 275-6.
^"Von Bar n 12 above at 286. The recognition of the right to privacy in the Human
Rights Act and under the European Convention of Human Rights may nevertheless
provide a stimulus for a wider protection of privacy (Milmo & Rogers n 42 above at
609#; Rogers n 41 above at 484-6; Von Bar n 2 above at 95).
47Von Bar n 12 above at 285.
48In New Zealand there are indications that the courts may deviate from English
common law by recognising the right to privacy (B Atkin, K Evans, G Mcloy & S
Petersson Torts in New Zealand: cases and materials (2002) 111#; SMD Todd et
al The law of torts in New Zealand (1991) 754#, 763-4; contra Fleming n 41 above
at 664# as to Australia), and in Ireland, because of its written constitution, the
common law may change in matters where constitutional (personality) rights are
involved (Von Bar n 12 above at 304-6). Also in Scotland, where delictual liability
is based on general principles and not nominate torts, extension of personality
protection and recognition of, for example, the right to privacy, should be possible
(Von Bar n 12 above at 307-10).
49Joubert n 1 above at 65ff.
"'Especially by R Pound 'Interests of personality' (1915) 28 Harv LR 343, 445 at 343#,
445#
51SW Halpern The law of defamation, privacy, publicity, and moral right (2000) at
vii-viii.
«S Warren & L Brandeis 'The right to privacy' (1890) 4 Harv LR 193 at 193.#
"Halpern n 51 above at 410-2; Joubert n 1 above at 64—5; Walter n 12 above at
134-5; Kerpen n 17 above at 109-11.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 217
general right of personality in Germany.5 But there is no certainty as to the
personality interests involved. Prosser,55 whose viewpoint found genera
support in the courts and with jurists, classifies the right to privacy into four
distinct torts (intrusion, publication, false light and appropiation) invadin
different interests {viz, a mental interest, reputation, and a patrimonial
interest), while Bloustein56 considers human dignity to be the object of
protection.57 The Supreme Court also protects autonomy under the right t
privacy.58
GENERAL RIGHT TO PERSONALITY AND SPECIFIC PERSONALITY
RIGHTS
The concept of a general right to personality and its relation to sp
personality rights require scrutiny. The object of the general right
personality manifestly is the complete human being or personality. B
concept is dogmatically flawed, mainly because the human being is
functioning simutaneously as subject as well as object of a (subjective)
right.59 However, this does not imply that particular facets of personality
cannot function as legal objects. On the contrary, it is apparant from the above
that even in countries which adopt the general right to personality, this
approach is followed regarding bodily integrity, reputation, privacy and similar
interests of personality,60 and this notwithstanding the view that the concept
of the general right to personality does not really allow for the segmentation
of the personality of the individual.61 Secondly, the concept of a general right
to personality is too abstract to be of any practical value62 — a concretisation
of specific rights of personality is therefore still necessary. The identification
and delimitation of these rights facilitates their protection by rendering them
dogmatically and practically manageable and promotes legal certainty.63 The
precise description of those interests of personality which the law protects, is
very important for, inter alia, the law of delict, since it increases the courts'
(or the legislature's) ability to articulate, develop and apply principles of legal
protection. This approach assists in determining how a personality interest,
like privacy, differs from what has already been recognised or refused
54Stromholm n 4 above at 43-4; Joubert n 1 above at 69-70; Kerpen n 17 above at
139.
35WL Prosser 'Privacy' (1960) 48 Cal LR 383 at 383#; WP Keeton et al Prosser and
Keeton on the law of torts (1984) at 852#; Fleming n 41 above at 664# as to
Australia).
56EJ Bloustein 'Privacy as an aspect of human dignity: an answer to Dean Prosser'
(1964) 39 NYULR 962 at 962ff.
57Halpern n 51 above at 412-3
58Keeton et al n 55 above at 866-7.
"joubert n 1 above 124# Neethling, Potgieter & Visser n 1 above at 14-5; Lemmens
n 17 above at 390.
mCf Guldix & Wylleman n 15 above at 1589-94.
61Von Bar n 2 above at 95.
62Guldix & Wylleman n 15 above at 1621.
63Frick n 3 above at 24-5; S Ulrich Das Recht auf Identitdt im zivilrechtlichen
Persdnlichkeitsscbutz (1995) 19-20; Helle n 12 above at 37-40.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
218 XXXVIII CILSA 2005
recognition under established legal theory, as well as which measures are
necessary for its protection.64 Therefore one cannot agree with Larenz and
Canaris63 where they doubt the usefulness of the recognition of specific
rights of personality.66 Moreover, it would be a negation of the significance
attached to the personality rights entrenched as human rights, to ignore their
substantive existence in the private law of delict.67
Notwithstanding the above criticism, a general right to personality has a
utilitarian function in some systems, that is, because it is not concrete it may
provide the basis for the recognition of new personality rights when the need
arises.68 Thus it may both complement and extend the protection which the
particular legal system provides.69 However, this observation is valid only
with regard to legal systems which have no general (delictual) basis for the
comprehensive protection of personality rights in practice (such as German
law). In other jurisdictions, like France, Belgium and South Africa, where this
basis does exist in positive law, the recognition of a general right to personality
is superfluous.70 It does not make sense to incorporate a general clause (the
general right to personality) into another general clause (general delictual
liability).71
SCOPE OF PROTECTION OF PERSONALITY RIGHTS
Although the focus here is on the law of delict or tort law, crim
particularly constitutional law (human rights)73 also play an im
in the protection of personality rights in various legal systems.
In many systems wrongfulness is the most important requirement
liability in instances of personality harm.74 German law regards
rights recognised by legislation, such as the rights to identity (n
body, life, freedom, health, reputation and dignity, as absolute r
seem to be best protected in the sense that any infringement
indicative of wrongfulness or, in other words, is in the absence of a
justification, wrongful.75 But this is not the case with the gene
personality which is often in conflict with opposing rights of
MJ Neethling 'Tort law in South Africa — the mixing of the gen
particular' in J Smits (ed) The contribution of mixed legal systems t
private law (2001) 81 at 86; Neethling, Potgieter & Visser n 1 above a
65Larenz & Canaris n 14 above at 519-20.
Mcy Kerpen n 17 above at 12-3; Joubert n 1 above at 115ff.
67Von Bar n 2 above at 61.
^Frick n 3 above at 24-5; Ulrich n 63 above at 19-20.
69Von Bar n 2 above at 93
70Neethling, Potgieter & Visser n 1 above at 14-5; Karner & Koziol n
33-4; Lemmens n 17 above at Kerpen n 17 above at 139-40.
71Von Bar n 2 above at 94.
72Von Bar n 12 above at 597ff.
73See below under Personality rights as human rights.
74Von Bar n 2 above at 255ff
75Van Gerven et al n 14 above at 63; Von Bar n 2 above at 235-6; Von Bar n 12
above at 1-22; Larenz & Canaris n 14 above at 373#, 500, 501, 518.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 219
example the right to privacy and the right to freedom of expression, so that
wrongfulnes can be determined only by a weighing up or balancing of th
conflicting rights.76 In this process the degree of fault of the perpetrator, th
nature (seriousness), and intensity (expected consequences) of the
infringement, and the motive of the perpetrator, play an important part.77 If
the other right or interest is regarded as socially more important, the
personality right will not be protected 78 In the Netherlands wrongfulness
is also determined by a weighing up of opposing rights79 and the same factors
as in Germany are taken into consideration.80 81 In Swiss law any
infringement of a personality right is wrongful in the absence of a ground of
justification. To ascertain whether such justification exists, apart from consent,
the interest of the victim has to be weighed up against the opposing private or
public interest. Where the perpetrator acted to maintain or further a legitimate
interest, the wrongfulness of his act is excluded.82 Under South African law
wrongfulness is also a general delictual requirement for the actionability of
personality harm (iniuria). A factual infringement of a protected personality
interest contra bonos mores is prima facie wrongful. The perpetrator may
then prove justification, if any, for his conduct. Both stages of the
wrongfulness inquiry involve a balancing of opposing interests.83 Although
particular wrongs (such as seduction, adultery, defamation, insult, and
malicious prosecution) have developed their own rules primarily to promote
the practical utility of, inter alia, the wrongfulness requirement and legal
certainty, each of these delicts remains a species of the general concept of
iniuria.84 It may therefore be concluded that a similar approach is followed
in these systems as wrongfulness is generally determined by weighing up
conflicting rights or interests.
In contradistinction to the previous systems, French law does not know the
requirement of wrongfulness.85 If the general delictual requirements of fault
(intention or negligence), damage (including personality harm or domage
76Larenz & Canaris n 14 above at 498-9; Markesinis & Unberath n 4 above at 76-8,
81-2; Hubmann n 17 above at 5jff, Neumann-Duesberg n 13 above at 957.
77Neumann-Duesberg n 13 above at 958; Van Gerven et al n 14 above at 142jff, 168;
Smits n 15 above at 123; Rogers et al n 20 above at 120-2; Hubmann n 3 above at
159ff.
78Van Gerven et al n 14 above at 167.
79Lindenbergh n 30 above at 1677ff.
80Smits n 15 above at 123, 124ff, Lindenbergh n 30 above at 1694-5.
81The Austrian approach is similar to German law, making a distinction between so
called absolute personality rights, such as the rights to life, physical integrity and
freedom, which is considered to be the most valuable and where any infringement
is indicative of wrongfulness, and other personality rights, such as those to image,
privacy and dignity, where wrongfulness is established by weighing up the
conflicting interests (Kamer & Koziol n 27 above at 34-5, 40ff).
82Bucher n 38 above at 162ff, Frick n 3 above at 232'ff, Hubmann n 3 above at 101.
83Neethling, Potgieter & Visser n 1 above at 54-6.
84Neethling, Potgieter & Visser n 1 above at 60-1; Walter n 12 above at 151.
85Von Bar n 2 above at 214.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
220 XXXVIII CILSA 2005
moral) and causation are present, delictual liability is established.86
However, where personality rights have been recognised by the courts (fo
example, the right to bodily integrity) or the legislature (such as the right to
pricacy in the CC) — elevating these rights to the status of autonomous rights
in relation to the general law of delict — a presumption of fault and dama
arises. The mere infringement of such a right, without in addition requirin
prove of fault and damage, therefore founds liability.87 This is in contrast to
German law where a claim for infringement of personality still has to comply
with all the requirements for delictual liability.88 Belan law has a similar
approach to French law, but this does not mean that the general delictua
clause has become superfluous as infringement of personality rights may still
be based on it.89
In English law, and in other common law countries such as the USA and
Australia, the scope of protection of the personality interests (physical
psychological integrity, liberty, reputation and to a lesser extent privacy and
dignity) safeguarded by the relevant torts, inter alia, assault, battery, false
imprisonment, libel, slander, malicious prosecution, intentional infliction of
mental suffering, and breach of confidence, is entirely dependent upon the
rules applicable to each specific tort.90 91This also applies in respect of the
right to privacy in the USA where the act complained of has to comply with the
requirements of, as the case may be, the tort of intrusion, publication, false
light or appropriation.92
The legal consequences of a tortious personality infringement are to a large
degree similar in different countries. First of all, in some systems the victim
may approach the court to determine the (threatened) wrongfulness of a
personality infringement.93 Secondly, since injunctive relief (prohibitory or
mandatory) is often sought in instances of a threatened or continuous
infringement of personality rights, such relief is provided for in all legal
systems.94 Since the interdict is directed at the prevention of a wrongful act,
86Kerpen n 17 above at 47, 65-8; Van Gerven et al n 14 above at 57ff
87Van Gerven et al n 14 above at 110ff, 140.
88Van Gerven et al n 14 above at 140, 153, 156-7.
89Guldix & Wylleman n 15 above at 1625#", 1634#
'"Hueston & Buckley n 41 above at 120#, 138I#; Rogers n 41 above at 68jff 81ff 403jf
Van Gerven et al n 14 above at 45ff, 90ff 159ff-, Walter n 12 above atll5ff, Max
Planck Gutachten n 20 above at 100#; Keeton et al n 55 above at 39ff, 771#; Kerpen
n 17 above at 125, 130#; Fleming n 41 above at 21# 580#.
9>Eg, trespass to the person creates liability per se, placing the burden of proof of one
of the recognised defences on the defendant (Rogers n 41 above at 69; Hueston &
Buckley n 41 above at 120-3, 127ff, Youngs n 45 above at 224-5; Rogers et al n 20
above at 54#; Fleming n 41 above at 21ff, 41, 83# as to Australia).
wKeeton et al n 55 above at 851#
93Eg Belgian, Dutch and Swiss law, in contrast to eg Germany and South Africa
(Guldix & Wylleman n 15 above at 1664-5; Lindenbergh n 30 above at 1683-5; Frick
n 3 above at 238-9).
MVan Gerven et al n 14 above at 168; Guldix & Wylleman n 15 above at 1645#;
Lindenbergh n 30 above at 1685-9; Frick n 3 above at 58-9, 237-8; Kerpen n 17
above at 33ff 68-70, 141; Neethling, Potgieter & Visser n 1 above at 260-1.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 221
and not at retribution for wrongfulness already committed, it is generall
accepted that fault is not a requirement.95 Apart from this remedy, whe
relevant, other relief which may also be claimed includes a retraction or
correction,96 publication of the court's decision, publication of an apology
and the right to reply.97 Important is that these remedies are probably much
more effective for natural restitution purposes — for example to restore
vindicate a person's good name — than a sum of money.98 These forms
relief — especially the right to reply — are, however, unknown in Ang
American systems.99 There is for example no general power in England f
a court to order the defendant to publish a correction or an apology eve
though some relief is provided for by statute.100 Although a right to rep
was recognised earlier in the USA, it has now been prohibited as it conflic
with the freedom of the press.101
All systems, in a varying degree, also make provision for a monetary award (as
compensation, satisfaction or even punitive damages) for personality harm
where the infringement was accompanied by fault. In Germany satisfactio
which is partially punitive,102 may be claimed for an intentional or negligent
personality infringement provided that the disturbance was serious.103
Dutch law compensates serious104 immaterial damage in three instances:
intentional infringement of personality, personal injuries, and, under certain
conditions, defamation of a deceased person.105 In Austria the gener
delictual clause provides for full compensation for personality infringeme
accompanied by serious fault, but no satisfaction or punitive damages may
claimed.106 Under Swiss law a sum of money (as satisfaction) for personali
infringement may be claimed in instances warranted by the gravity of the harm
"Kerpen n 17 above at 26; Neethling, Potgieter & Visser n 1 above at 261.
''Of, eg, an untrue defamatory statement.
^Rogers et al n 20 above at 125-6, 281, 302-4; Kerpen n 17 above at 8-9, 37-8, 68f
Lindenbergh n 39 above at 1685-9; Guldix & Wylleman n 15 above at 1648-9,
1655-6; Frick n 3 above at 239jff, Karner & Koziol n 27 above at 44-5; Max-Planck
Gutachten n 20 above at 24ff; Bucher n 38 above at 205ff.
98Neethling, Potgieter & Visser n 1 at 171; contra Rogers (n 41 above at 472-3) who
doubts the effectiveness of these remedies and opines that large sums of
compensation, coupled with criminal sanctions, will be more effective to protect the
personality interests involved.
"Kerpen n 17 at 141; Rogers n 41 at 471-3.
100Milmo & Rogers n 42 above at 229; Hueston & Buckley n 41 above at 138iff, Youngs
n 45 above at 265-8; Walter n 12 above at 119ff, 161ff\ Rogers n 41 above at
471-473; Rogers et al n 20 above at 73-4, 281; Max-Planck Gutachten n 20 above
at 103#
101Kerpen n 17 above at 134.
102Kerpen n 17 above at 141-2.
103Larenz & Canaris n 14 above at 375-6, 494-5, 497; Markesinis & Unberath n 4
above at 78; Neumann-Duesberg n 13 above at 958-9; Kerpen n 17 above at 24-5,
29-32; Van Gerven et al n 14 above at 146-7, 203; Von Caemmerer n 12 above at
105-7; Walter n 12 above at 26-7. This also applies to personal injuries (Rogers et
al n 20 above at 252).
104Lindenbergh n 30 above at 1693-4.
105Smits n 15 above at 135.
106Kamer & Koziol n 27 above at 24-7.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
222 XXXVIII CILSA 2005
and to the extent that the wrongdoer has not otherwise given satisfaction to
the victim.107 If the general delictual requirements of fault (intention or
negligence), damage, and causation are present, a claim for compensation for
non-patrimonial {domage moral) loss will lie in France.108 In South Africa
satisfaction (which has a punitive element) is awarded for an intentional
infringement of a personality interest, while compensation may be claimed for
personal injuries caused negligently.109 However, intention is not an
absolute requirement for an iniuria. Negligence has been accepted as
sufficient for liability for certain forms of defamation and malicious
prosecution, while strict liability applies to wrongful deprivation of liberty and
wrongful attachment of property.110 No monetary awards will be made for
insignificant personality harm: de minimis non curat lex.111 Under English
law compensation may be claimed for a tort causing non-patrimonial loss, the
fault element depending on the requirements of the specific tort. In addition,
in instances of, for example, trespass to the person and defamation, aggravated
and even exemplary (punitive) damages may be awarded.112 In most
European countries liability of personal injuries as a result of road accidents
is strict.113114
From the above it can be concluded that in most countries the object of a
monetary award for personality harm is compensation. Clear exceptions to this
approach are Germany and South Africa where an award of satisfaction also
has a penal function, as well as England where aggravated and exemplary
damages may be claimed under certain circumstances. It has been argued that
punitive damages are not justifiable in a modern system of law since the basic
purpose of a civil action in delict is to compensate the victim for the actual
harm done, and that it is for criminal law to punish and thereby discourage
such conduct.115 On the other hand, punitive damages for intentional or
grossly negligent violations of personality may act as a deterrent and thus
promote the preventive function of tort law. In this regard there is indeed a
107Frick n 3 above at 239#; Rogers et al n 20 at 302-4; Karner & Koziol n 27 at 44-5;
Max-Planck Gutachten n 20 above at 2Aff.
108Kerpen n 17 above at 47, 65-8; Van Gerven et al n 14 above at 57ff This also
applies to Belgian law but punitive or exemplary damages may not be awarded
(Guldix & Wylleman n 15 above at 1651-5).
109J Neethling, JM Potgieter & PJ Visser Law of delict (2002) at 5-6, 13ff, 17-8.
noNeethling, Potgieter & Visser n 1 above at 49-58, 119-20, 166-8, 182,185; Burchell
(1998) n 25 above at 133-5; Walter n 12 above at 144-8, 158-9.
'"Neethling, Potgieter & Visser n 1 above at 85, 87, 93, 112, 113, 201.
112Von Bar n 12 above at 271-2, 283ff Milmo & Rogers n 42 above at 228ff-, Kerpen
n 17 above at 102ff; Herth n 43 above at 125ff- The position in the USA and
Australia is similar (Keeton et al n 55 above at 39ff 771#; Kerpen n 17 above at 125,
130ff Fleming n 41 above at 21ff, 580ff).
113Youngs n 45 above at 259ff Rogers et al n 40 above at 250-1.
U4The assessment of the quantum of compensation or damages will not be discussed
in this contribution (see Neethling, Potgieter & Visser n 1 above at 59-60; Karner
& Koziol n 27 above at 119# as to the position in South Africa and Austria). See
generally also BA Koch & H Koziol (eds) et al Compensation for personal injury in
a comparative perspective (2003) passim.
U5Neethling, Potgieter & Visser n 1 above at 58 n 218.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 223
tendency in Europe for courts to revive civil punishment for grave violations
of the personality. This is particularly evident from decisions that profits mad
by newspapers from scandalous publications should be taken into account
assessing the quantum of damages.116
It is also clear from the above that not every instance of personality harm
compensable. Many systems (such as Germany, The Netherlands and Sout
Africa) require in addition that the infringement of the personality interests
should be serious or have a particular gravity. On the other hand, there a
systems (like Spain) which rebuttably presume personality harm if a
personality interest like privacy or dignity has been violated. This means that
such harm is compensable irrespective of its seriousness.117 However, the
danger is that courts may then be swamped with trivial claims for personality
harm, a situation that should be avoided.
Finally, it should be noted that instances of personality infringement
increasingly involve an international dimension. This is particularly so with
mass-media publications, the Internet and inter-state freedom of movement for
whatever purpose. Therefore, where transborder personality harm occurred
and conflict of laws is present, it will have to be ascertained which legal system
is applicable. Although international provision was made in 1999, its
applicability is not without problems.118
NATURE OF PERSONALITY RIGHTS AND PERSONALITY HARM
There is general consensus that personality rights are private law (
rights which are by nature non-patrimonial and highly personal in
that they cannot exist independently of a person since they are i
bound up with his personality.119 From the highly personal
patrimonial nature of personality rights it is possible to deduce their
characteristics: they are non-transferable; unhereditable; incapabl
relinquished or attached; they cannot prescribe; and they come int
with the birth and are terminated by the death of a human being.120
personality rights form a separate category of rights, distinguishable
personal and immaterial property rights121 which are patrimonial rig
can exist independently of the personality.122 In this regard Vo
n6Von Bar n 12 above at 604ff Karner & Koziol n 27 above at 27'ff.
U7Von Bar n 2 above at 20-1. Von Bar (n 2 above at 27-9) supports this
propagates that every violation of a personality right should constitut
compensable with non-patrimonial damages.
u8Kerpen n 17 above passim.
'"joubert n 1 above at 121, 129; Neethling, Potgieter & Visser n 1 ab
Frick n 3 above at 28-30; Schmitz n 20 above at 10ff.
120Joubert n 1 above at 146-7; Neethling, Potgieter & Visser n 1 above
Gamm n 17 above at 39; Frick n 3 above at 28'ff-, Bucher n 38 above at 1
& Wylleman n 15 above at 1594-5; Lindenbergh n 30 above at 1667-9, 1
mGuldix & Wylleman n 15 above at 1594-5; Lindenbergh n 30 above
1675.
122Neethling, Potgieter & Visser n 1 above at 13.
123Von Bar n 2 above at 94.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
224 XXXVIII CILSA 2005
remark that the supporters of specific personality rights hold the view that
they are 'simply an aspect of life protected by the law of delict', does not deny
the unique character of these rights. But the fact that Swiss law also protects
patrimonial (economic) interests, such as the business enterprise (against
unlawful competition), and immaterial property (trade marks and trade
names), as aspects of personality,124 is unacceptable. The concept of
personality rights as subjective rights has been criticised, especially by Belgian
and French jurists. According to them personality rights are merely private
freedoms, especially freedom of privacy, of which the law takes note only
where a person enters into relations with others or where conflict arises.123
However, this criticism lacks dogmatic support and has had no impact on the
protection of personality rights by the courts in Belgium and France.126
From this it follows that the infringement of a personality right primarily results
in personality harm, non-pecuniary (non-patrimonial) loss or ideal damage,
which is any damage or harm to (that is, any diminution in the quality of) a
personality (non-patrimonial) interest that does not affect (lead to a
diminution of) a person's patrimony per se and which can therefore not be
rationally calculated in money by reference to a market value.127 It has been
propagated128 that although the infringement of a personality right may also
result in patrimonial loss, the personality right concerned does not thereby
acquire a patrimonial character. This view raises theoretical problems. If a
right to personality only has a specified (non-patrimonial) personality interest
as its object, then, logically speaking, only non-patrimonial loss (personality
harm) can be present if an impairment of a personality interest has occurred.
Instances where infringement of personality also results in patrimonial loss,
can accordingly only mean that apart from such infringement, a (as yet
unidentified) patrimonial interest connected to the personality has also been
damaged. It is an enigma how patrimonial loss can exist without an element
of patrimony being involved. This premise can be based on the acceptance of
the theory that personality interests may include certain patrimonial
elements.129 or that130 there are oatrimonial riehts containing asoects of
personality which fall outside the sphere of personality rights stricto
sensu.m The recognition of a patrimonial right related to the human body
where personal injuries result in medical expenses, should, for example, be
124Frick n 3 above at 227-30; Joubert n 1 above at 42, 43-4.
125Guldix & Wylleman n 15 above at 1595ff.
l26Id at 1603-4.
127Karner & Koziol n 27 above at 11, 119-20; Rogers et al n 20 above at 246;
Neethling, Potgieter & Visser n 109 above at 242.
mInter alia by Joubert n 1 above at 121; Frick n 3 above at 30; Bucher n 38 above
at 160; Schmitz n 20 above at 13.
129As is accepted in Germany with regard to the post-mortem right to identity (see
below under Right to publicity or advertising (market) value of personality
interests).
130As in the case of the right to personal immaterial property or copyright (see below
under Personality rights to creditworthiness and earning capacity and Author's
personality right).
131Neethling, Potgieter & Visser n 1 above at 64.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 225
considered in this regard. Whether the object of the patrimonial right with
regard to the body should be regarded as personal immaterial property (like
earning capacity), or even as personal material (patrimonial) property, is
controversial.132
A question with important theoretical and practical implications is the role of
human consciousness with regard to personality harm. In this regard a
distinction must be made between the objective and subjective elements of
such harm.133 The objective element refers to the external, generally
recognisable and concrete manifestation of personality harm of which the
victim need not be aware, and is possible in instances of assault, deprivation
of liberty, defamation, violation of privacy and identity, loss of the amenities
of life, shortened life expectancy and disfigurement. In such cases
consciousness is thus not a requirement for the existence of harm. On the
other hand, the subjective element of harm exists only in a person's
consciousness. Such harm is usually formed by his reaction to a concrete
infringement of his personality (for example, physical pain in the case of
assault or affective suffering after defamation), but it can also constitute the
complete personality harm (as with insult). In these cases personality harm
can naturally not exist in the absence of affective loss.134 The distinction
between the objective and subjective elements of harm is of practical
importance in cases of comatose victims,135 juristic persons136 and even
infants where harm may concretely exist even in the absence of any affective
loss or suffering, and the question as to the compensability of the harm is
raised. As far as infantes and small children are concerned, damages should
be awarded for concrete personality harm although the child may not have
undergone any mental suffering.137 In such cases the objective function of
satisfaction under German and Swiss law138 makes sense, meaning a
symbolic redress of the harm by effecting retribution for the injustice the
child-victim has suffered. This view is supported by Roman law where infantes
could succeed with the actio iniuriarum even though they were unaware that
their personality had been violated.139
SPECIFIC PERSONALITY RIGHTS
The classification of personality rights is an issue on which there are
(sometimes vast) differences of opinion in jurisprudence and practice. It is
indeed a topic where everything has possibly already been said but not
everyone has said it. So this is an addition to this clamour of voices. This
132Neethling, Potgieter & Visser n 1 above at 13
133Neethling, Potgieter & Visser n 109 above at 242-3; Karner & Koziol n 27 above
at 122-3.
134Neethling, Potgieter & Visser n 1 above at 51-3
135See below under Right to physical-psychological integrity.
136See below under Personality rights of juristic persons.
l31Cf Von Bar n 2 above at 22.
138Frick n 3 above at 31-2.
I39Neethling, Potgieter & Visser n 1 above at 52 n 161.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
226 XXXVIII CILSA 2005
classification takes account of factual reality,140 the personality rights or
interests identified and delimited by jurists, the courts and legislatures, as well
as typical examples of infringements of personality sanctioned by different
legal systems.141
Right to life
It is clear that every natural person has a right to life, his most valuable
asset.142 Life is protected by law in all countries. If a person's life is threat
ened he may, for example, ward off the threat in defence or necessity, or, if
needs be, he may apply for injunctive relief to prevent the threat from being
carried out. Also, a tortious reduction of a person's life expectancy through
personal injuries (infringement of his right to physical integrity), is in many
countries considered to be a form of harm for which damages may be
awarded.143 Furthermore, in the case of the birth of a deformed child, his
mere existence or life is not regarded as damage — no person has a right to
non-existence (not to live).144 The right to life may be classified as a
personality right, closely connected to the right to physical integrity — in the
sense of a person's right to keep his body alive — because it displays most of
the characteristics of that right.145 But it appears that the right to life differs
in certain respects from personality rights: first, the object of this right, human
life, is a conditio sine aua non for all other personality rights; and second, an
infringement of the right to life (that is death)146 does not bring about any
legally recognised personality harm for the deceased, and can therefore not
found a claim for satisfaction or compensation — his legal capacity ends at his
death and he may therefore nootlaim on own behalf.147 However, seen
in the light of the fact that comatose victims are awarded damages,148 the
question arises whether the tortious infringement of the right to life (death),
should not be regarded as harm for which damages should be awarded.
As Karner and Koziol150 argue, death is the most serious personality
infringement a person can suffer and should therefore be subject to tortious
liability. Although the victim cannot be compensated, the objective function
of satisfaction (meaning a symbolic redress of the death by effecting
retribution for the injustice the victim has suffered), should, as in the case of
140Neethling, Potgieter & Visser n 1 above at 24.
141 Von Bar n 2 above at 95.
142Von Bar n 2 above at 63.
143Neethling, Potgieter & Visser n 1 above at 16; Van Gerven et al n 14 above at 165;
Karner & Koziol n 27 above at 63; Rogers et al n 20 above at 11, 97, 114, 161,
202.
144Von Bar n 2 aboye at 64.
145Neethling, Potgieter & Visser n 1 above at 15-6, 26; Karner & Koziol n 27 above
at 60.
l46Larenz & Canaris n 14 above at 377; Markesinis & Unberath n 4 above at 44-5.
147Von Bar n 2 above at 62.
148See below under Right to physical-psychological integrity.
149As is the case in Portugal (Von Bar n 2 above at 62).
150Karner & Koziol n 27 above at 61ff.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 227
comatose victims, also be employed here.131 The preventive function of
delictual damages also play a role in promoting such damages.
Right to physical-psychological integrity
This personality right concerns the human body which comprehends
physical and a mental element (although an attempt to divide these elemen
into watertight compartments, would be forced and artificial) and include
both physical and mental well-being and health.132 All legal systems giv
prominent status to the protection of psyco-physical integrity. Accordingl
generally any conduct which has a detrimental effect on the physique, psyche
or even sensory feelings153 can be regarded as an infringement of bodi
integrity.154 Specific forms of physical-psychological harm include pain an
(affective) suffering, emotional shock or other psychological lesions,155
disfigurement or physical lesions, loss of amenities of life and shortened li
expectancy, but neither pain nor disfigurement appears to be a requiremen
for infringement. In most systems only medically recognisable psychologic
injury or illness qualify as harm and not mere sorrow, sadness, grief, fright o
anxiety.156 157
In England the intentional torts of battery (direct application of force) an
assault (reasonable apprehension of battery), as well as the tort of negligently
inflicted injury (including recognisable psychiatric illness in certain cases
protect the physical-psychological integrity.158 The so-called right to sexu
151See again below under Right to physical-psychological integrity.
152Neethling, Potgieter & Visser n 1 above at 25-6.
153By, eg, noise, smoke, smells and telephone calls — so-called 'Belastigung'
Germany or nuisance (and harassment) in England and South Africa (Larenz &
Canaris n 14 above at 516-7; Rogers n 41 above at 101-2, 503#; H Ehmann 'D
allgemeine Personlichkeitsrecht' in CW Canaris & A Heldrich (eds) 50 Jahre
Bundesgerichtshofi Festgabe aus der Wissenschaft vol 1 (2000) 669# W Timm 'Das
"Allgemeine Personlichkeitsrecht" im Wettbewerbs- und Markenrecht'in U-H
Erichsen, H Kollhosser & J Welp (eds) Recht der Persdnlichkeit (1996) 358 at 360#
Von Bar n 2 above at 86-8 (noise); Youngs n 45 above at 245; Neethling, Potgieter
& Visser n 1 above at 25, 87).
154Von Bar n 2 above at 69-71; Neethling, Potgieter & Visser n 1 above at 25-6.
'"including (pre-death) fright or anxiety (Rogers et al n 20 above at 39# 97, 114,
161, 202, 261-2; Kamer & Koziol n 27 above at 64-7).
156Neethling, Potgieter & Visser n 1 above at 25-6, 90-3; Walter n 12 above at 151-5;
Neethling, Potgieter & Visser n 109 above at 17-8, 245# 290# 332-5; J Neethling
'Troosgeld en kompensasie vir persoonlikheidsnadeel in Suid-Afrika' in G van
Maanen (ed) De rol van bet aansprakelijkheidsrecht bij de verwerking van
persoonlijk leed (2003) 163 at 165-6; Karner & Koziol n 27 above at 40-4, 48# 74#
Rogers et al n 20 above at 1# 28# 39# 87# 109# 135# 155# 301# 260-6, 283-4;
Frick n 3 above at 88-93, 214-5; Larenz & Canaris n 14 at 377# 516-7; Van Gerven
et al n 14 above at 78# 110# 140, 129-30, 136-9; Von Bar n 12 above at 571-7;
Von Bar n 2 above at 69-71, 73-86; Markesinis & Unberath n 4 above at 45-8, 115#
Karner & Koziol n 27 above at 89-91; Guldix & Wylleman n 15 above at 1626; Koch
& Koziol et al n 114 above at 424-6, 428-9.
157In Holland it is required that the psychological trauma must be serious enough to
qualify as mental injury — a psychiatric illness in medical terms is not decisive
(Rogers et al n 20 above at 155#.
I58Rogers n 41 above at 68# 98-102, 176# 762# Van Gerven et al n 14 above at 90#
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
228 XXXVIII CILSA 2005
self-determination, which is for example infringed by sexual abuse, 9 is
really not a separate personality right but fits comfortably under the right to
bodily integrity. In this regard a person clearly has a power of self
determination or autonomy over the inviolability of his body,160 which
naturally applies to organ transplant, blood donation, abortion, medical
operation, sexual intercourse, hair cut, and the like.161
The question arises whether the personality right to physical integrity
continues to exist in regard to parts of the body which have been separated
from the body itself, such as hair, a tooth, a transplanted kidney, a severed
hand, or even sperm. One view is that the separated parts no longer form part
of the body as an interest of personality, but exist independently as res
(things) — albeit not things in the ordinary sense — outside the body.162 In
the Netherlands, on the other hand, it is accepted that a personality right
continues to exist with regard to the separated parts.163 In German law an
acceptable midway is followed. A distinction is made between body parts
permanently separated from the body where ordinary personal property rules
apply, parts destined to be reintegrated which remain part of the body, and
parts destined to perform a typical bodily function, such as sperm for
procreation, which are also treated as part of body.164 The destruction of
sperm is therefore regarded as interference with bodily integrity (or the
general right to personality).165
A particular problem is whether comatose victims should be able to claim
compensation or satisfaction for infringement of their physical-psychological
integrity. This is in fact allowed in some countries,166 while in others,167
the position is unclear.168 Arguments against awarding damages are that the
victim suffers no harm because he experiences no pain and (affective)
suffering, that the money cannot be used for the benefit of the victim and also
offers him no consolation — it merely provides a delayed inheritance to
dependants. On the other hand it cannot be denied that, objectively viewed,
concrete personality harm is not dependent on the consciousness of the
159Kamer & Koziol n 27 above at 92ff\ Frick n 3 above at 93-4; cf Larenz & Canaris
n 14 above at 515.
160Rogers n 41 above at 75.
161Guldix & Wylleman n 15 above at 1604-7, 1626; Neethling, Potgieter & Visser n 1
above at 26 n 278.
162i\"eethling, Potgieter & Visser n 1 above at 24 n 262, 86 n 37.
163Lindenbergh n 30 above at 1675-6.
164Van Gerven et al n 14 above at 137, 147-9; Karner & Koziol n 27 above at 111-2;
Larenz & Canaris n 14 above at 514-5.
165JTM Labuschagne 'Deliktuele aanspreeklikheid weens liggaamskending as gevo
van spermavernietiging: 'n Verreikende uitspraak van die Duitse Bundesgerichtsh
(1995) 58 THRHR I48ff.
166Eg, Germany, Austria, France, Italy, England, Belgium and Switzerland.
l67Such as the Netherlands, Greece and South Africa.
168Rogers et al n 29 above at 257-9; Koch & Koziol el al n 114 above at 425; Karne
& Koziol n 27 above at 58-60; Von Bar n 2 above at 22-3, cf 23-7; Van Gerven et
al n 14 above at 137-8; Neethling, Potgieter & Visser n 1 above at 24Sff.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 229
victim. 9 However, from a comparative law analysis it is clear that no on
believes that such personality harm suffered by a comatose victim can real
be compensated. Accordingly, in such cases the objective function of
satisfaction under German and Swiss law170 makes sense, meaning a
symbolic redress of the harm by effecting retribution for the injustice the
victim has suffered, thereby enabling the law to express society's symphathy
for the victim and its sense of outrage at his grievous loss.171
Since the mid 1960s actions for wrongful conception (an action for damages
by the parents of a normal child born as a result of a failed sterilization or
abortion performed by a medical doctor), wrongful birth (an action by the
parents on similar grounds but where the child is born handicapped), and
wrongful life (an action by a deformed child who was born as a result of a
negligent diagnosis or other act by a doctor) have troubled courts in various
countries. The first two actions are mainly concerned with the patrimonial loss
of the parents (cost of pregnancy, child-birth and of raising the child). It is
generally accepted that the mere existence of a child cannot be regarded as
harming the personality of the parents, although it is conceivable that the birth
of a deformed child may, for example, cause a parent serious psychological
harm.172 The question also arises whether the personality right to dignity of
such a child is not (unfairly) infringed by the fact that the doctor, and not the
parents, are paying for his upbringing. This question is controversial,173 but
the fact that many countries allow such damages against the doctor, is perhaps
a clear sign that the child's dignity does not play a decisive role in this regard.
As regards the action for wrongful life, the following. If a foetus which is
injured or deformed dies in utero, it has no legal personality, no right to
physical integrity and therefore cannot claim non-patrimonial damages. Yet,
if a deformed or injured child is born alive, although his mere existence is not
regarded as damage — no person has a right to non-existence — he should be
able to claim damages for the infringement of his physical integrity.174
Right to physical liberty
This personality right is not concerned with the body itself, but with bodily
freedom, and is infringed not only by total deprivation of liberty (such as
detention or imprisonment), but also by any interference with an individual's
liberty to move freely. Consciousness is not an element of the personality harm
mEg, loss of amenities of life (see above under NATURE OF PERSONALITY RIGHTS
AND PERSONALITY HARM)
I70Frick n 3 above at 31-2.
171PQR Boberg The law of delict I: aquilian liability (1984) at 570; Neethling,
Potgieter & Visser n 109 above at 248-53, 251 n 339.
172Karner & Koziol n 27 above at 116-9.
173Smits n 15 above at 130#".
™Van Gerven et al n 14 above at 138; E Engelhard, T Hartlief & G van Maanen (eds)
et al Aansprakelijkheid in gezinsverband (2004) 21ff, 221ff\ Karner & Koziol n 27
above at 72-3; Von Bar n 12 above at 576ff\ Von Bar n 2 above at 71-3; Neethling,
Potgieter & Visser n 109 above at 37, 281; Markesinis & Unberath n 4 above at 48-9,
144#, 156#.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
230 XXXVIII CILSA 2005
involved since a person can be deprived of liberty without being aware of
it.175 The right to bodily freedom is protected in all legal systems.176 In
England this protection is under the umbrella of the tort of false
imprisonment, that is, the infliction of bodily restraint unauthorised by the
law, as well as the tort of malicious prosecution where applicable.177 Bodily
freedom should be distinguished from the general freedom to act (especially
in the economic sphere) or the freedom to develop the personality.178
Freedom to act in this sense does not relate to a specific interest of
personality, the infringement of which causes personality harm, but is rather
an aspect of human self-determination in society and therefore of legal
subjectivity itself.179
Right to dignity
Dignity embraces a person's subjective feelings of dignity or self-respect: his
personal sense of self-worth or innere Ehre.1S0 Infringing a person's dignity
means insulting that person. It stands to reason that because of its complete
subjectivity, a person cannot be protected against every insult. Therefore, in
all systems where the right to dignity is recognised, protection is directed at
serious insults only, which can be difficult to determine in borderline
cases.181 In South Africa, for example, actionability requires not only that the
victim feels insulted, but also that a reasonable person in his position would
have felt insulted.182 The Austrian and English protection of dignity is
unjustifiably scant.183 It should be noted that dignity is sometimes used in
175Neethling, Potgieter & Visser n 1 above at 26, 113; Von Bar n 2 above at 92; see
also above under Nature of personality rights and personality harm.
176Neethling, Potgieter & Visser n 1 above at 16, 26, 111#; Walter n 12 above at
155-60; Karner & Koziol n 27 above at 97-8; Frick n 3 above at 94-8; Van Gerven
et al n 14 above at 78, 139; Larenz & Canaris n 14 above at 385-6, 513; Von Bar n
2 above at 89-93; Von Bar n 12 above at 567-8; Rogers et al n 20 above at 122-3,
168, 284-5; Youngs n 45 above at 245; Markesinis & Unberath n 4 above at 49.
"'Rogers n 41 above at 81/7; Heuston & Buckley n 41 above at 123-7; Von Bar n 2
above at 92; Youngs n 45 above at 245; Rogers et al n 20 above at 75-6; Van Gerven
et al n 14 above at 90; Walter n 12 above at 118-9, 131-3; Fleming n 41 above at
33# as to Australia.
178This distinction is not always made in, eg, Austrian, German and Swiss law (Bucher
n 38 above at 139#; Ehmann n 153 above at 613-4; Ulrich n 63 above at 29; Frick
n 3 above at 94, 96-8, 259-60).
179Joubert n 1 above at 123, 127; Neethling, Potgieter & Visser n 1 above at 15, 16;
cf Von Bar n 2 above at 90.
180Kerpen n 17 above at 13, 47-8; Son n 12 above at 38-41; Neethling, Potgieter &
Visser n 1 above at 28.
181Youngs n 45 above at 270-1; Kerpen n 17 above at 13# 47-8; Guldix & Wyllem
n 15 above at 1629-30; Larenz & Canaris n 14 above at 500-1; Van Gamm n 17
above at 36; Son n 12 above at 75# In the USA serious insults are protected under
the tort of intentional infliction of mental suffering (Keeton et al n 55 above at
57-60; Rogers n 41 above at 100).
182Neethling, Potgieter & Visser n 1 above at 28, 194-6.
183Karner & Koziol n 27 above at 98-101; Frick n 3 above at 99-100; Heuston &
Buckley n 41 above at 120-1; Rogers n 41 above at 69; Von Bar n 12 above at 285.
In Austria protection of dignity is dependent on the presence of patrimonial loss.
Violation of dignity by the mass media, or by assaulting the victim, or by publishing
his image, is nevertheless in principle wrongful (Karner & Koziol n 27 above at
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 231
the much broader sense of embracing the whole human personality. A clear
example is the recognition of the general right to personality in Germany
which primarily emanated from the significance attached to human dignity in
the constitution.184 The right to dignity as a human right probably also
connotes this broad context, which should be distinguised from dignity in the
narrower sense of a substantive personality interest.183
Right to reputation
A person's reputation or good name is the opinion, regard or esteem which
he enjoys in society; his aussereEhre, in contradistinction to self-esteem in the
case of dignity.186 Any words or conduct which tarnishes or lowers his
reputation within the community infringes his good name.187 The right to
reputation is protected in all European systems.188 Although true words may
be defamatory, the truth is in principle a defence against an action for
defamation.189 This is also the position in England.190 Whether the truth
should in all circumstances be a defence is controversial — for instance, where
facts about physical deformaties or long forgotten scandals are published
merely to satisfy the salacious appetite of the public — and the law has been
changed in a few common law countries191 to limit the defence to th
publication of true facts which are also in the public interest.192 This also
reflects the law in South Africa.193 In general a flexible weighing up of the
rights to reputation and freedom of expression (of the mass media) must be
undertaken by the courts.194 Under certain circumstances even the
publication of untruth may be justified. In Germany, for example, although the
intentional publication of untruth cannot be lawful, innocent or negligent
untruth may be justified where the publication concerns a matter of publi
98-101; Frick n 3 above at 99-100). In England the right to dignity is not
recognised or directly protected by any tort (cf however Fleming n 41 above at 41),
but damages may be recovered for insults due to interference with the person that
has done no physical harm at all (Heuston & Buckley n 41 at 120-1; Rogers n 41
above at 69).
184See above under Recognition and basis of protection of personality rights.
mCf Neethling, Potgieter & Visser n 1 above at 28.
186Son n 12 above at 38-41; Kerpen n 17 above at 47-8.
187Neethling, Potgieter & Visser n 1 above at 27; Halpern n 51 above at vii-viii, 5;
Milmo & Rogers n 42 above at 8; Rogers n 41 above at 404; Frick n 3 above at 225;
Ehmann n 153 above at 636. Even true words may therefore be defamatory (Milmo
& Rogers n 42 above at 8; Neethling, Potgieter & Visser n 1 above at 38, 131).
188Von Bar n 1 above at 100-4; Rogers et al n 20 above at 150, 280-1; Van Gamm n
17 above at 37, 39; Youngs n 45 above at 271-4; Kerpen n 17 above at 48\ff Frick
n 3 above at 102-3, 225-6.
189Van Gamm n 17 above at 37; Youngs n 45 above at 269-70; Kerpen n 17 above at
21-2, 24, 61-2.
l90Milmo & Rogers n 42 above passim.
mEg, Australia.
192Milmo & Rogers n 42 above at 267-8.
193Neethling, Potgieter & Visser n 1 above at 153-5; Burchell n 25 above at 272ff
l94Von Bar n 1 above at 100-6; Von Bar n 12 above at 588-99; Guldix & Wylleman n
15 above at 1629; Kerpen n 17 above at 20-1, 24, 63-4; Neethling, Potgieter &
Visser n 1 above at 129ff.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
232 XXXVIII CILSA 2005
interest and no insult is involved, 93 and in the Netherlands liability for a
untrue statement was excluded where the reporters carried out diligent
research.196 In this regard a defence of media privilege, that is the fair o
reasonable publication of (even untrue) defamatory statements about matte
of public interest (including political speech), has recently been accepted i
common law countries (like England and Australia) and also in South Afric
underlining modern conceptions of democracy as to freedom of expressio
and the role of the media in this regard.197
The protection of reputation is of course the field of libel (as a rule writte
defamation) and slander (generally oral defamation) in English common law
and many other common law countries which remain close to the Englis
model.198 The law of defamation in South Africa law has also benefitted from
adopting much of the detail of English common law.199 The requirements for
libel and slander, which is the outcome of the balancing process between
reputation and freedom of expression, are the publication (disclosure to a
third person) of defamatory matter (tendency to lower the victim in the
estimation of right-thinking members of society) about the victim. The most
important defences, apart from truth (justification), are privilege and fair
comment.200 Except for a few instances where negligence is required for
liability,201 liability is strict.202 In this regard the courts in the USA
developed constitutional privilege as an additional defence that requires at
least negligence,203 and in the case of public officials and figures, intent or
actual malice204 for liability. The strict liability of English law for defamation
generally was never imposed on innocent defamers.205 Since strict liability
tilt the scale unfairly in favour of the victim,206 while vice versa, liability
based on intent tends to benefit the defendant,207 liability basedT on
negligence seems to position the scale in a proper and fair balance. Liability
based on negligence has in fact long been established in many European
systems and has also been accepted, for example, in South Africa, for liability
of the mass media for defamation.208
195Kerpen n 17 above at 20-1, 24.
196Von Bar n 2 above at 103
197Milmo & Rogers n 42 above at 451-82; Rogers n 41 above at 459-63; Neethling,
Potgieter & Visser n 1 above at 155-7.
198Milmo & Rogers n 42 above at 4-7; Von Bar n 12 above at 283-4; Kerpen n 17
above at 112#
'"Neethling n 64 above at 93
200Milmo & Rogers n 42 above passim; Kerpen n 17 above at 99ff, 123#.
201The press may, for example, prove absence of fault.
202Milmo & Rogers n 42 above at 8-10.
203Halpem n 51 above at 5.
2MThat is, defamatory falsehood published with knowledge of its falsity, or recklessly.
205Keeton et al n 55 above at 802#; Rogers n 41 above at 460.
206As generally in England and previously in South Africa with regard to the press.
207Especially the mass media, as in the USA.
208Neethling, Potgieter & Visser n 1 above at 167.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 233
Right to privacy
Privacy is a personal condition of life characterised by seclusion from, and
therefore absence of acquaintance by, the public. A person himself determines
or controls the scope of his privacy.209 Seen thus, privacy can only be
infringed by an unauthorised acquaintance by outsiders with a person or his
private affairs, which acquaintance can occur in two ways. Firstly, by intrusion
into the private sphere (that is, where an outsider himself becomes acquainted
with a person or his personal affairs). Secondly, by disclosure or publication
of private facts (that is, where a third party acquaints outsiders with a person
or his personal affairs which, although known to that party, remain
private).210 Examples of prima facie wrongful invasions of privacy are
entering a private residence, observing a person in closed quarters, reading
private documents, eavesdropping on private conversations, shadowing a
person, taking blood tests, and the police interrogation of a person. Examples
of violation of the right to privacy by disclosure, are the disclosure of private
facts that have been acquired by a wrongful act of intrusion, the disclosure of
private facts in breach of a confidential relationship (for example, between
doctor-patient, legal advisor-client, bank-client, priest-penitant, police
informant, etcetera), and the publication of private facts by the mass
media.211 The fixing or recording of private facts (for example, by
photography, photocopying and tape recording), whether by outsiders or
insiders, should per se also be wrongful in principle because such an act, by
exposing privacy to the danger or risk of intrusion or disclosure, constitutes
a threat to the right to privacy.212 The right to privacy is recognised in
numerous systems/13 the most notable exception being English common
law,214 and other common law countries which follow the English model
closely.215 As with other personality rights, the right to privacy is often in
mCf Lemmers n 17 above at 383-4.
210Neethling, Potgieter & Visser n 1 above at 30-3- In the USA, the torts of 'intrusion
upon the plaintiffs seclusion or solitude, or into his private affairs', and 'the public
disclosure of embarrassing private facts about the plaintiff represent these two ways
of infringing privacy (see above under Recognition and basis of protection of
personality rights; Prosser n 55 above at 383ff, Keeton et al n 55 above at 852\ff).
2uNeethling, Potgieter & Visser n 1 above at 222-5, 226-36; Kamer & Koziol n 27
above at 101-3; W van Gerven et al Tort law (1998) 183-90; Larenz & Canaris n 14
above at 503ff, 508ff; Van Bar n 2 above at 106-19.
212Neethling, Potgieter & Visser n 1 above at 236-40. This is the position in Germany
with regard to the clandestine taking of photo's (Larenz & Canaris n 14 above at
506-7; Youngs n 45 above at 278).
213Kamer & Koziol n 27 above at 101jff\ Rogers n 20 above at 17-18, 50, 74-5, 104,
120-122, 168, 183, 220, 281-283; Von Bar n 12 above at 28, 31, 43 n 157; Von Bar
n 2 above at 94-5, 106-18; Neethling, Potgieter & Visser n 1 above at 217-20;
Halpern n 51 above at 410-2; Walter n 12 above at 134-5; Kerpen n 17 above at
109-11; Keeton et al n 55 above at 852\ff Van Gerven et al n 211 above at 171ff
201-2, 203; Lemmers n 17 above at 381ff Guldix & Wylleman n 15 above at 1625-6;
Lindenbergh n 30 above at 1674; BS Markesinis The German law of torts: a
comparative introduction (1990) at 294ff; Youngs n 45 above at 277, 278; see also
as to Germany, France, Belgium, South Africa, Austria, the Netherlands, Switzerland,
and the USA, above under Recognition and basis of protection of personality rights.
214See above under Recognition and basis of protection of personality rights.
mCf n 48 above.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
234 XXXVIII CILSA 2005
conflict with opposing private rights and the public interest, requiring a fair
balancing outcome. The most important public interest, and simultaneously
the most difficult to delimit vis-a-vis the right to privacy, is the public interest
in (true) information about people (maintained especially by the freedom of
expression of the mass media).216
Various kinds of conduct are often regarded as infringements of privacy while
other personality interests and even patrimonial interests are at stake. They are
physical-psychological integrity (including sensory feelings), dignity, identity,
autonomy, self-realisation, and trade secrets.217 As has been argued,218
such an equation of dissimilar interests is unacceptable, and should, for
purposes of conceptual clarity, dogmatic and practical manageability and legal
certainty, be avoided.
An important aspect of the right to privacy in most countries is data
protection, which entails the protection of a person (data subject) with regard
to the processing of his personal data by another person or the state.219
There is general agreement on the core data protection principles220 which
should be embodied in any effective data protection regime,221 and many
countries222 have adopted data protection legislation reflecting these
principles.223 It is submitted that all countries will in future have to adopt
such legislation to ensure adequate protection of privacy and the continuous
free cross-border flow of personal information.224
Right to identity
Identity as an interest of personality can be defined as a person's uniqueness
or individuality which identifies or individualises him as a particular person
and thus distinguishes him from others.225 Identity is manifested in various
indicia by which a person can be recognised; in other words, facets of his
personality which are characteristic of or unique to him, such as his name,
2l6Neethling, Potgieter & Visser n 1 above at 240/7", 245-9; see also idem 246 n 238,
247 n 239 as to Germany and the USA.
217Neethling, Potgieter & Visser n 1 above at 33-6.
2l8See above under General right to personality and particular personality rights.
219Neethling, Potgieter & Visser n 1 above at 267//; LA Bygrave Data protection law:
approaching its rationale, logic amd limit (2002) passim; A Roos The law of data
(privacy) protection: a comparative and theoretical study (2003) passim-, CJ
Bennett Regulating privacy: data protection and public policy in Europe and the
United States (1992) passim; Electronic Privacy Information Centre (EPIC) Privacy
and human rights: an international survey of privacy laws and developments
(2002) passim; Karner & Koziol n 27 above at 102.
220Cf Roos n 219 above at 650-2.
221Roos n 219 above at 480ff\ Bygrave n 219 above at 57//".
222More than forty by the end of 2002.
223Roos n 219 above at 480ff identifies the following principles: fair and lawful
processing; purpose specification; minimality; data quality; disclosure limitation; data
subject participation; openness; sensitivity; security and confidentiality; and
accountability.
224Neethling, Potgieter & Visser n 1 above at 281.
225Hubmann n 3 above at 271; PPJ Coetser Die Reg op Identiteit (1986) 140-8;
Neethling, Potgieter & Visser n 1 above at 36; Ulrich n 63 above at 52, 131-2.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 235
physical image (or likeness), voice, life history, creditworthiness, handwriting,
character, etcetera. A person's identity is infringed if any of these indicia are
used in ways which cannot be reconciled with his true identity; in other
words, where his identity has been falsified, or a wrong image of his
personality has been communicated.226 Where a person's name, image or
any other indicium, identifies him with true personal facts, they merely have
an identification function and are relevant with regard to the protection of
privacy, forming part of the private facts to which they relate.227 Indicia of
identity may serve as the object of a specific right to personality. In various
countries228 this has happened with regard to, for example, the right to a
name and the right to image.229 The right to one's own voice is also
recognised in a few systems.230
The right to identity has been recognised eo nomine in countries such as Italy,
France, Swit2erland and South Africa.231 In the USA, the torts of putting a
person in a false light in the public eye, and appropriation, for the defendant's
advantage, of the plaintiffs name or likeness,232 are thus rather examples of
protection of identity than of privacy.233 This naturally also applies to the
German sanctioning of the falsification or distortion of the personality image,
as well as the economic misappropriation of the name or image,234 but the
right to identity still needs general recognition by the courts.235 In England
identity is not directly protected but such protection may take place
incidentally under other torts, for example, malicious falsehood and passing
off.236 Although the publication of untruth is in principle wrongful,
226Hubmann n 3 above at 273-4; Neethling, Potgieter & Visser n 1 above at 36-7;
Ehmann n 153 above at 628, 643; Ulrich n 63 above at 29, 133#, 183#; Von Bar n
2 above at 105-6.
227Hubmann n 3 above at 272 n 10; Neethling, Potgieter & Visser n 1 above at 37;
Halpern n 51 above at 413-4; Frick n 3 above at 82# 105# 159#
228Such as Germany, France, Switzerland, Liechtenstein, Italy, Austria and Belgium.
22Von Bar n 12 above at 584; Von Bar n 2 above at 96-8, 107-8; Hubmann n 3 above
at 271; Helle n 12 above at 21-2, 45# Van Gamm n 14 above at 39, 40-1; Coetser
n 225 above at 26# 37# Neethling, Potgieter & Visser n 1 above at 36-8, 255#
Rogers et al n 20 above at 150; Youngs n 45 above at 275-8; Guldix & Wylleman n
15 above at 1625, 1627; Frick n 3 above at 62# 105# 230# 260# Bucher n 38
above at 243#
mEg, Belgium, Austria, Germany and Liechtenstein (Guldix & Wylleman n 15 above
at 1626; Frick n 3 above at 151# 264; Kerpen n 17 above at 17-8).
231Ulrich n 63 above at 129-30; Neethling, Potgieter & Visser n 1 above at 255.
232But only in so far such use of the name or likeness creates the false impression that
plaintiff has given consent to such conduct, or has received financial remuneration
therefor, or supports the advertised product, service or business (Neethling,
Potgieter & Visser n 1 above at 37).
233Neethling, Potgieter & Visser n 1 above at 37; cf Halpern n 51 above at 428-9;
Ehmann n 153 above at 643; Ulrich n 63 above at 130; Kerpen n 17 above at 118#
Keeton et al n 55 above at 852#
234Larenz & Canaris n 14 above at 499-500, 502, 517; Van Gamm n 17 above at 39;
Youngs n 45 above at 277-8; Ulrich n 63 above at 53# 150# Kerpen n 17 above at
17# cf Won Bar n 2 above at 98-100.
235Ulrich n 63 above at 104# 112#
236Rogers n 41 above at 476# 674# Herth n 43 above at 88-91; Von Bar n 2 above
at 107.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
236 XXXVIII CILSA 2005
infringement of identity may be justified by freedom of expression, as with
defamation.237
It should be noted that although, in for example Germany or France, the rights
to a name, image, written and spoken word are regarded as separate
personality rights,238 conduct which is considered to be infringements of
these rights may also be relevant with regard to other interests of personality
(such as identity, privacy and reputation) and even the so-called patrimonial
components of personality.239 For the sake of jurisprudential clarity and
legal certainty, it is suggested that those personality infringements should
rather be accommodated and classified under the rights to identity
(falsification), privacy (intrusion into the private sphere and the publication
of private facts), reputation (lowering of esteem), and dignity (insult).
Other personality rights
Apart from feelings of dignity (Ehrgefuhl, which are the most prominent
feelings protected by law),240 a person has a wide variety of other spiritual
moral feelings or inherent perceptions on matters such as love, faith (religion),
sentiment and chastity.241 Disregard for his or her feelings — where insult
or infringement of dignity need not be present — causes (intense) moral
suffering. However, as with insult, not every affective infliction can be
actionable; the infringement should be of a serious nature. Under South
African law the actio iniuriarum protects inter alia the right to feelings of
engaged couples and spouses in instances of breach of promise and adultery,
abduction, enticement and harbouring.242 Interference with parental care
(for example, the abduction of a child) can probably also be accommodated
under this right.243 A number of systems244 grant damages for bereavement
(pretium affectionis) to certain relatives or to other persons having a firm
relationship or ties of affection with a dead victim, but others245 reject such
claims altogether. Although France — which has an almost overly generous
approach in this regard246 — Belgium and Switzerland also award damages
to others in the case of non-fatal injury of the victim, other countries have not
237See above under Right to reputation; Ehmann n 153 above at 645-6; Neethling,
Potgieter & Visser n 1 above at 261-2.
238Helle n 12 above passim.
mCf Kerpen n 17 above at 140; see also below under Right to publicity or advertising
(market) value of personality interests.
240See above under Right to dignity.
241Neethling, Potgieter & Visser n 1 above at 28-9, 199#; cf Larenz & Canaris n 14
above at 516-7 as to feelings of chastity.
^Neethling, Potgieter & Visser n 1 above at 204# Von Bar n 2 above at 124-9 as to
Europe; Frick n 3 above at 215-6.
mCf Von Bar n 2 above at 121# Neethling, Potgieter & Visser n 1 above at 193, 200.
luEg, England, France, Switzerland, Belgium, Spain, Greece and Italy.
"'Such as Germany, the Netherlands and South Africa.
246Van Gerven et al n 14 above at 139.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 237
followed, probably because of substantial arguments the other way.247 In
France feelings (sentiments d'affection) are even protected where an animal
has been killed, and in Switzerland where an organ was transplanted without
the consent of relatives.248 Belgium and France furthermore recognise a
right to family memories.249
The rights to informational self-determination, self-realisation, freedom from
utterances not made, concerning sexuality and marriage, and the right to
resocialising are also identified as specific personality rights.250 However, it
seems that the fields of application of these rights can quite comfortably be
accommodated under legal subjectivity, as well as the rights to privacy,
identity, reputation and dignity.251
In Germany a person's right to know his own descent or parentage has been
deduced from the general right to personality, and it has also been imbedded
in Dutch law, but it is controversial whether such a right is recognised in
Switzerland.232 This right must of course be weighed against the parent's
right to privacy not to have the information disclosed — a process in which
various factors may play a role.253 However, it seems that the right to know
one's own descent is not a specific independent right of personality, but
rather an aspect of a person's right to privacy (in the sense of his right of
access to and therefore control over his own personal information: his right
to informational self-determination),254 or of his right to identity (which
should include the power to know one's own real identity). Smits253
considers knowledge as to one's own descent as part of human dignity.
PERSONALITY RIGHTS AND PATRIMONIAL RIGHTS
Personality rights, with their highly personal and non-patrimonial nature f
a separate category of rights, distinguishable from patrimonial rights that
exist independently of the personality.256 This distinction is problemat
the following instances:
247Rogers et al n 20 above at 87ff, 262-5; Koch & Koziol et al n 114 above at 25
64, 140, 203, 273-4, 349-50, 429-30; AJ Verheij 'Compensation of pretium
affectionis — A constitutional necessity' (2004) 67 THRHR 394 at 394ff\ Smits n 15
above atl35<ff\ Van Maanen n 156 above passim-, Frick n 3 above at 216-7.
248Neethling, Potgieter & Visser n 1 above at 201 n 26.
249Guldix & Wylleman n 15 above at 1628-9.
250Nehmelman n 4 above at 128ff, 145ff, 186ff, 196ff.
251Neethling, Potgieter & Visser n 1 above at 34-5, see also above under the
discussion of these personality rights.
252Frick n 3 above at 216, 285.
253Smits n 15 above at 126ff, Hubmann n 17 above at \8ff; Nehmelman n 4 above at
206ff.
254Smits n 15 above at 127 n 347; see also above under Right to privacy.
255Smits n 15 above at 128.
256See above under Nature of personality rights and personality harm.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
238 XXXVIII CILSA 2005
Author's personality right
It is generally accepted in many European countries257 that apart from his
immaterial property right, an author also has a personality right (droit moral)
which protects his spiritual relationship with his work. In mostly common law
systems258 this right has not been expressly recognised although they arrive
at comparable results as regards protection. 9 The essential characteristic
of the author's moral right is that it flows from the creation of his work and
exists in conjunction with his immaterial property right.260 It particularly
encompasses an author's power to keep his work secret until he decides to
publish it; his power to recall the work because of change of opinion; his
power to the recognition of his authorship; his power (to the exclusion of
others) to effect changes to the work and thus to secure the integrity of his
creation; and his power to gain admission to his work. In this regard some
countries (such as France) and writers support a so-called dualistic doctrine,
maintaining that copyright is not a single right but a dual right consisting of an
immaterial property right as well as a personality right. Others (such as
Germany) propagate a monistic theory, in terms of which copyright is a unitary
right which comprises both patrimonial and personality elements. Thus
copyright includes an author's personality right.2 It is submitted that the
monistic approach is dogmatically sound since the personality elements are
directed at the work and not the personality of the author.263 However, the
two theories do not differ much from a practical point of view, the only
differences being that in terms of the monistic theory copyright as a whole is
heritable and limited in time, while in terms of the dualistic theory this applies
only to the immaterial property right.264
In order to avoid confusion with the substantive personality rights, the term
author's personality right should be avoided since the protected interest
remains the immaterial property of the author and not his personality.263
Hence, personality rights and the author's personality right are not treated
157Eg, Germany, France, the Netherlands, Austria and Italy.
258Such as England, Ireland, South Africa and the USA.
259A Dietz Copyright law in the European Community (1978) at 66, 77; Neethling,
Potgieter & Visser n 1 above at 22 n 230; Halpern n 51 above at 639-40.
260Joubert n 1 above at 22, 58, 133, 139 n 72; Neethling, Potgieter & Visser n 1 above
at 20ff\ H Hubmann & M Rehbinder Urheber- und Verlagsrecht (1995) at 154/7;
Karner & Koziol n 27 above at 107-8; Frick n 3 above at 168ff\ ST Schacht Die
Einschriinkungen des Urheberpersdnlichkeitsrechts im Arbeitsverhaltnis (2004) at
56-9; Nehmelman n 4 above at 58ff.
261Dietz n 259 above at 69-77; Joubert n 1 above at 22, 133; Neethling, Potgieter &
Visser n 1 above at 22; Hubmann & Rehbinder n 260 above at 154ff\ Halpern n 51
above at 635-40; Guldix & Wylleman n 15 above at 1627-8; Frick n 3 above at 168;
A Gregoritza Die kommerzialisierung von Persdnlichkeitsrechten Verstorbener
(2003) at 29-30; Schacht n 260 above at 59, 162/7; Nehmelman n 4 above at 67-70.
262Dietz n 259 above at 67-8; Joubert n 1 above at 139 n 72; Neethling, Potgieter &
Visser n 1 above at 21-2; Frick n 3 above at 168.
263Dietz n 259 above at 67; Gregoritza n 261 above at 31-2; Neethling, Potgieter &
Visser n 1 above at 21-2.
264Dietz n 259 above at 67-8; Gregoritza n 261 above at 32-4.
265i\'eethling, Potgietr & Visser n 1 above at 22.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 239
alike as far as, for example, transferability (heritability and cedability) is
concerned: unlike personality rights, copyright is transferable,266 but it
nevertheless controversial to what extent the legal successor of the autho
whether inter vivos or mortis causa, may exercise the personality powers
copyright.267 Therefore, it is preferable to use the concepts patrimonial a
non-patrimonial powers of an author with regard to his creation. This do
not imply that an author's personality rights may not be infringed by th
appropriation or denial of his powers in respect of his creation. For instan
an author's privacy may be infringed by an unauthorised publication of h
work, while unauthorised amendments to his work, or denial of authorsh
may lead to an infringement of his identity, his reputation, or his dignity.268
Personality rights to creditworthiness and earning capacity
Since aspects of the human personality play an important role in the creation
of a person's earning capacity and his creditworthiness, it has long been
thought that these interests are personality interests.269 However, althou
these interests display similarities to personality interests — they are high
personal270 in the sense that they cannot exist separately from human
personality (and are consequently incapable of being ceded, inherited an
attached) and can exist only during the lifetime of a person (although they do
not necessarily originate at his birth and may be terminated before his death)
— they are immaterial patrimonial assets of a person's estate. Earning capacity
and creditworthiness are thus neither solely aspects of personality nor pu
immaterial property (which can exist separately from the personality) bu
contain elements of both. They can therefore be described as personal
immaterial property. Personal immaterial property is accordingly immaterial
patrimonial property which is inseparably linked to the human
personality.271
Right to publicity or advertising (market) value of personality interests
In this regard the American view that the right to privacy (identity) protects
not only personality interests, but also patrimonial interests, should be
considered.272 Such protection is given in the case of persons (for example,
well-known actors or sports personalities) whose identities have a definite
market or advertising value and who suffer patrimonial loss as a result of the
unauthorised use or appropriation (for example, for advertising purposes) of
particular aspects of their personality, such as their name or likeness, or even
266Frick n 3 above at 170-2; Hubmann n 3 above at 342-3; A Fisher Die Entwicklung
des postmortalen Persdnlichkeitsschutzes (2004) at 50-2.
267Gregoritza n 261 above at 34-6; Shacht n 260 above at 123#; cf Halpern n 51 above
at 639.
268Neethling, Potgieter & Visser n 1 above at 22-3; cf Halpern n 51 above at 638.
269Neethling, Potgieter & Visser n 1 above at 17 n 183
270See above under Nature of personality rights and personality harm.
271Neethling, Potgieter & Visser n 1 above at 17-20; Neethling, Potgieter & Visser n
109 above at 52-3 n 70.
272Halpern n 51 above at 52Aff.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
240 XXXVIII CILSA 2005
their life history.273 The explanation for this position is evidently — as has
been accepted in the USA274 and by implication in countries such as
Germany and France275 where it is recognised that the personality interests
mentioned may also have patrimonial value — that a separate, independent
patrimonial (immaterial property) right may, in addition to the personality
right to identity, also be infringed through the act of appropriation. In England
this patrimonial interest is not directly protected but only incidentally through
other traditional torts, such as passing off.276 This right has been described
by South African writers as the right to the advertising image, or the right to
individual marketing power, while in American law it has been labelled the
right to publicity.277 It has also been suggested that the right to a name
should in this respect be recognised as an immaterial property right in
Germany.278
In so far as this right or interest is patrimonial, it should be transmissible inter
vivos and fall into the owner's estate when he dies, to be at the disposal of his
heirs for their commercial exploitation to the exclusion of third parties.279
This is indeed the position in the USA.280 Fischer281 opines that this
protection also covers the potential commercial value of indicia of identity —
in German law known as the patrimonial elements or components of the right
to personality which, unlike the personality elements, can be inherited282 —
which could at the time of their concrete commercial value then be utilised by
the heirs.283 However, it is submitted that although one may agree with the
outcome of the German position, it seems better not to consider the potential
commercial value as an element of a personality right, which in essence has a
non-patrimonial character,284 but rather as part of the immaterial property
right to the advertising image (of the deceased). This viewpoint is supported
by the fact that only the patrimonial components of the personality right are
heritable. Accordingly, a dualistic model which recognises two separate
rights (personality and patrimonial) in this regard, different from the monistic
copyright model in Germany,286 is accepted.287
273Kerpen n 17 above at 60-1.
274Halpern n 51 above at 525/7"; Ehmannn n 153 above at 667; Timm n 152 above at
357-8; H-P Gotting Persdnlichkeitsrechte als Vermogensrechte (1995) at 168ff;
Neethling, Potgieter & Visser n 1 above at 37 n 386; Kerpen n 17 above at 121—3;
contra Gregoritza n 261 above at 101-3
275Kerpen n 17 above at 17-20, 58-61, 142.
216Id at 142.
2T7Neethling, Potgieter & Visser n 1 above at 37 n 386; Halpern n 51 above at 524-5;
Gregoritza n 261 above at 100-1; Kerpen n 17 above at 121-3, 142.
278S Koos 'Der Name als Immaterialgut' (2004) 106 GRUR 808 at 808\ff.
279Fischer n 266 above at 199ff, 266-71; cf Kerpen n 17 above at 43.
280Kerpen n 17 above at 123
281Fischer n 266 above at 2$8Jf, 267.
282Gregoritza n 261 above at 82ff.
mId at 109#
284See above under Nature of personality rights and personality harm.
^'Gregoritza n 261 above at 133'ff
286See above under Author's personality right.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 241
Right to family name (identity) as trade name
When an entrepreneur uses his own name to distinguish his business (or
products), it falls outside his personality sphere. This is clearly evident fro
the facts that after the death of the entrepreneur the trade name continues to
exist, and that after transfer of the undertaking the new owner may continue
to use the old name. Consequently the trade name is no longer an indicium
of the identity of the entrepreneur, but in fact individualises his business and
accordingly serves as the object of an immaterial property right.288 Although
the same word (family name) may therefore individualise a person as well
his business, two different rights are involved.289 The fact that Swiss law
protects immaterial property (such as trade names) as aspects of
personality,290 is thus subject to criticism.
Breach of contract or damage to property and personality harm
It is a moot question whether violation of a patrimonial right, in particular
breach of contract and damage to another's property, gives rise to actionable
personality harm in addition to patrimonial damage. Most legal systems are
against or very strict in awarding damages for mere sentimental loss in cases
of property damage, while the position as regards breach of contract is not
clear.291 This also applies to breach of promise.292 It is submitted that
while it is true that, broadly speaking, all rights serve as a means whereby a
person develops and asserts his personality in the legal order, the human
personality is not directly protected by every private law right. That is the
function of personality rights only — patrimonial rights protect the personality
only indirectly or incidentally. For this reason a distinction between the two
classes of rights is essential. A claim for non-patrimonial damages can therefore
only lie where breach of contract or damage to another's property also
infringes a personality right of the victim. This will for example be the case
where damage to property is insulting and infringes the right to dignity, or
breach of contract serious hysical inconvenience or discomfort and
therefore violates the right to bodily integrity. 93
PERSONALITY RIGHTS AS HUMAN RIGHTS
Many human rights which are constitutionally enshrined as fundamental
relate to rights of personality. A survey of different charters or bills of
rights reveals that the following personality rights or interests are so prot
life, security of the person, (physical-psychological integrity) freedom
freedom of movement) of the person, dignity and privacy.294 However, t
287Gregoritza n 261 above at 117-23
mCf Koos n 278 above at 808^.
289Neethling, Potgieter & Visser n 1 above at 38.
290Frick n 3 above at 227-30.
291Rogers et al n 20 above at 285-7; Karner & Koziol n 27 above at 108^.
292Neethling, Potgieter & Visser n 1 above at 204-5; cf Von Bar n 2 above at
293Neethling, Potgieter & Visser n 1 above at 63-5; Karner & Koziol n 27 abov
^Youngs n 45 above at 107-25, 155-68; Neethling, Potgieter & Visser n 1 abo
16-7.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
242 XXXVIII CILSA 2005
rights do not for this reason change their juridical form. They remain
personality rights as described previously,295 but receive, apart from
delictual (and criminal) protection, first of all also vertical constitutional
protection in that the state may not take any action which arbitrarily infringes
or limits these rights. If a bill of human rights has horizontal operation
(Drittwirkung), the protection of the relevant personality rights between
individuals is naturally also enhanced.296 Such constitutionalisation of
private law297 is occurring in varying degrees in most systems.298
In Europe and South Africa the following fundamental personality rights are
intensively influencing the development of private law: the rights to bodily
freedom (of movement), life, bodily integrity (particularly with regard to the
duty of the state to prevent the death or injury of its citizens),299 dignity,
reputation and privacy.300 The fundamental right to an environment that is
not harmful to health or well-being, an aspect of the right to physical integrity,
also enhances this personality right.301 Viewed from the side of the
perpetrator and not the victim, situations will inevitably occur where an
entrenched personality right is in conflict with another fundamental right, for
example, the right to reputation (dignity) or the right to privacy on the one
hand, and the right to freedom of expression on the other; or the right to
privacy versus the right to life;302 or the right to identity or dignity versus the
right to freedom of art and science.303 In such situations a careful and
proper balancing or weighing up of the opposing rights should take place. In
this regard the right to freedom of the press has already had a marked
influence on the law of defamation in England and South Africa,304 as well
as in other European countries where the relevant personality right(s) are
295See above under Nature of personality rights and personality harm; cf Guldix &
Wylleman n 15 above at 1609-11; Lindenbergh n 30 above at 1669-71.
296Neethling, Potgieter & Visser n 1 above at 16-7.
297Markesinis & Unberath n 4 above at 28-32; Kerpen n 17 above at 143-4.
mEg, Germany (where the recognition of the general right of personality was based
on the constitution: Van Gerven et al n 14 above at 142-3, 146, 152; Kerpen n 17
above at 39/7; Smits n 15 above at 119# Son n 12 above at 42-4); Austria (Frick n
3 above at 52-8); Ireland (Von Bar n 12 above at 304-6); Italy (Von Bar n 12 above
at 567-71); the Netherlands (where developments are still in their early stages: Smits
n 15 above at 119#; Lindenbergh n 39 above at 1669-71; Nehmelman n 4 above at
175-9); Belgium (by implication in some cases but in others expressly rejected:
Guldix & Wylleman n 15 above at 1612#); France (Kerpen n 17 above at 73#);
Switzerland (after initial resistance: Frick n 3 above at 249-51); and South Africa
(where the Bill of Rights expressly binds the state as well as natural and juristic
persons: Neethling, Potgieter & Visser n 1 above at 55-6, 73# Neethling, Potgieter
and Visser n 109 above at 18-23).
299Smits n 15 above at 139# Neethling, Potgieter & Visser n 1 above at 94 n 127.
300Von Bar n 12 above at 567# Ehmann n 153 above at 638-40; Neethling, Potgieter
& Visser n 1 above at 74-8.
301Von Bar n 12 above at 581-3
mEg, where a medical practitioner wants to disclose his patient's HIV/AIDS status to
the latter's sexual partner (Neethling, Potgieter & Visser n 1 above at 75).
303Larertz & Canaris n 14 above at 522#
304Von Bar n 12 above at 588-9; Neethling, Potgieter & Visser n 1 above at 129#
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 243
often found to weigh less than the right to freedom of expression.305 Th
also applies to the USA, where freedom of expression is highly valued an
constitutional privilege was, for example, introduced as a defence to
defamation.306 In England the debate furthermore is to what extent their
Human Rights Act will have horizontal application in that country and may, for
example, lead to the recognition of a right to privacy in tort law.307
POST-MORTEM PERSONALITY PROTECTION
There is general concensus that (at least some of) the personality rig
as the rights to bodily integrity, privacy, identity and reputation)
person possessed during his lifetime, should be afforded protection
death.308 In this regard two main schools of thought can be identi
The traditional school, which is accepted in France and Switzer
asserts that since all personality rights are terminated by the dea
person,311 the idea of post-mortem personality rights is rejected. A
person's body, privacy or reputation can according to them only be pro
in the context of the personality rights of his (close) relatives (for exam
right to their feelings of regard and piety for the deceased).312 Th
school, recognised for example in Germany and Austria, propagates
personality rights of a person — particularly his human dignity —
after his death and are maintained by his relatives as fiduciaries
(Treuhander)313 — dogmatically thus the continuation of subjective rights
without a subject.3 4 However, according to this school the only remedies
are the interdict and a claim for retraction or a reply315 since immaterial
damages with the aim of salving the injured feelings of the deceased, cannot
serve this purpose.316 Some systems, like the Dutch, nevertheless allow non
patrimonial damages if it would have been granted to the deceased had he
been alive.317 Such damages can simultaneously also serve to salve the
injured feelings of relatives. The above also applies to the commercial
exploitation of the deceased's identity although patrimonial damages may in
305Von Bar n 12 above at 589-90.
306Keeton et al n 55 above at 804//"; Kerpen n 17 above at 134ff 136-7.
307Smits n 15 above at 45-9; Kerpen n 17 above at 106ff
308Von Bar n 2 above at 129-30.
3MJMT Labuschagne 'Regsubjektiwiteit na die dood? Opmerkinge oor die
regsteoretiese implikasies van die ontplooiing van die postmortale
persoonlikheidsreg' (2003) 66 THRHR 185 at 185^.
310Youngs n 45 above at 271; Frick n 3 above at 34-5, 217-8.
3USee above under Nature of personality rights and personality harm.
312Fischer n 266 above at 52\ff Gregoritza n 261 above at 16ff.
313Fischer n 266 above at 129ff Gregoritza n 261 above at 51ff
314Fischer n 266 above at 65-7.
315See above under SCOPE OF PROTECTION OF PERSONALITY RIGHTS.
316Larenz & Canaris n 14 above at 531ff AW Bender 'Das postmortale allgemeine
Personlichkeitsrecht: Dogmatik und Schutzbereich' (2001) 52 VersR 815 at 815ff
Hubmann n 3 above at 340ff Labuschagne n 309 above at 190ff\ Karner & Koziol
n 27 above at 106-7; Frick n 3 above at 32-4, 36-8; Fischer n 266 above at 21 ff
166ff Gregoritza n 261 above at 67ff
317Von Bar n 2 above at 131 n 779.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
244 XXXVIII CILSA 2005
addition be claimed by heirs if his identity had commercial value.318
Fisher319 proposes that post mortal personality protection should be limited
to the same period after death as that applicable to copyright (70 years in
Germany). Understandably, an author's right of personality is also protected
after his death since society has a need to maintain the integrity of its cultural
heritage.320 In addition, because the author's right of personality is part of
his copyright, it is heritable and may be exercised by his heirs.321 The
English common law knows no post-mortem protection of the
personality.322
PERSONALITY RIGHTS OF JURISTIC PERSONS
One the one hand, it can be argued that juristic persons do not possess
personality rights since the personal suffering which normally results from
violation of a personality interest is something which an abstract legal entity
such as a universitas cannot experience.323 On the other hand, it is
submitted that since personality harm can exist objectively without the victim
subjectively experiencing injured feelings,324 and since juristic persons have
a legitimate interest in the protection of certain personality interests such as
their reputation, it is not only theoretically feasible, but also realistic and fair
from a policy point of view to recognise that juristic persons possess certain
personality rights. Of course, juristic persons can possess only those rights
which are compatible with their nature or naturally apply to them.325 These
personality rights are the rights to reputation, privacy and identity,326 the
objects of which may be infringed without the victim being aware of it. Not so
in the case of the rights to dignity and feelings since a violation of these
personality interests exists only when there is actual mental suffering.327
Therefore, juristic persons should not be able to claim for the death of a
natural person, as happened in for example Italy.328 It also stands to reason
that juristic persons do not have a physical body and therefore cannot possess
the rights to physical-psychological integrity and physical freedom.329 In
318Fischer n 266 above at 19S>ff, 266-71; Gregoritza n 261 above at 81ff 191 ff.
319Fischer n 266 above at 188^, 195-7.
320Halpern n 51 above at 639.
321Frick n 3 above at 170; Hubmann n 3 above at 342-3; Fisher n 266 above at 50-2;
see also above under Author's right of personality.
322Von Bar n 2 above at 130.
323Neethling, Potgieter & Visser n 1 above at 68; Walter n 12 above at 149.
324See above under Nature of personality rights and personality harm.
325Hubmann n 3 above at 334; Von Bar n 2 above at 133. This viewpoint is endorsed
by the South African Constitution (Neethling, Potgieter & Visser n 1 above at 68 n
334, 68ff Walter n 12 above at 149-50).
326Frick n 3 above at 40, cf 255-6; Hubmann n 3 above at 336-7; Neethling, Potgieter
& Visser n 1 above at 68ff.
327See above under Nature of personality rights and personality harm.
328Von Bar n 2 above at 132.
329Neethling, Potgieter & Visser n 1 above at 68\ff Frick n 3 above at 40; Hubmann n
3 above at 335.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms
Personality rights: a comparative overview 245
Germany the name, dignity330 and privacy of juristic persons are protecte
but they may not claim satisfaction331 since they cannot experienc
satisfaction.332 This is also the position in England as regards the defamati
of juristic persons.333 However, in various other countries334 the court
allow a juristic person (and in Belgium even the state) to claim compensatio
for non-patrimonial harm as a result of infringement of its reputation.3
Although a claim for non-patrimonial damages by juristic persons is not
unknown in Austria, its field of application is very limited.336
330Probably in the sense of 'aussere Ehre' and not 'innere Ehre' which a juristic
person cannot possess.
331Larenz & Canaris n 14 above at 520-1; Youngs n 45 above at 272; Nehmelman n
4 above at 51-2.
332Frick n 3 above at 41.
333Von Bar n 2 above at 132.
334Like Belgium, Italy, the Netherlands, France, Switzerland and South Africa.
335Von Bar n 2 above at 132 n 783; Youngs n 45 above at 267, 271; Frick n 3 abov
at 41, 227; Neethling, Potgieter & Visser n 1 above at 68-9.
336Frick n 3 above at 42.
This content downloaded from 147.251.160.150 on Mon, 25 Feb 2019 10:39:52 UTC
All use subject to https://about.jstor.org/terms