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Right of Privacy and Rights of the Personality

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Right of Privacy and Rights of the Personality AGTA Instituti Upsaliensis Iurisprudentiae Gomparativae VIII RIGHT OF PRIVACY AND RIGHTS OF THE PERSONALITY A COMPARATIVE SURVEY Working paper prepared for the Nordic Conferen.ee on privacy organized by the International Commission of Jurists, Stockholm M ay 1967 BY STIG STRÜMHOLM STOCKHOLM P. A. NORSTEDT & SÜNERS FÜRLAG ACTA Institut! Upsaliensis Iurisprudentiae Oomparativae AGTA Instituti Upsaliensis Iurisprudentiae Comjmrativae Edidit ÂKE MALMSTROM VIII RIGHT OF PRIVACY AND RIGHTS OF THE PERSONALITY A COMPARATIVE SURVEY (Working Paper prepared for the Nordic Conférence on Privacy organized by the International Commission of Jurists, Stockholm May 1967) By STIG STRÜMHOLM S T O C K H O L M P. A. N O RSTEDT & S ONE R S FÜRLAG © P. A. Norstedt & Sôners fôrlag 1967 Boktryckeri AB Thule, Stockholm 1967 PREFACE One of the author’s most eminent teachers in private law in the Uppsala Faculty of Law once claimed that an action in tort ought to lie against those légal writers who take up a subject to treat it broadly enough to deter others from writing about it but not deeply enough to give any final answers to the questions discussed. Were the law so severe, the present author would undoubtedly have to face a lawsuit for venturing to publish this short study on a topic which demands lengthy and careful considération on almost every point and which has already given rise to an extensive body of case law and of légal writing. This préfacé can be considered as the au­ thor’s plaidoyer in that action, fortunately imaginary. The present study was prepared at the request, and with the most active personal and material support, of the International Commis­ sion of Jurists as a working paper for the Nordic Conférence of Jurists, organized by the Commission in Stockholm in May, 1967. The initiative of the Conférence, the work of which was devoted to the law of privacy, was taken by the Secretary General of the Commission, Mr. Seân MacBride, and the author is happy to ac- knowledge his indebtedness to that eminent jurist not only for this initiative and for the support given by the Commission, but also for personal encouragement and many valuable suggestions. The author is also most grateful to Mr. V. M. Kabes, Executive Secretary of the Commission, for much help and kindness in connection with the préparation of the report. The study was prepared in close collaboration with the légal staff of the Commission, headed by Mr. L. G. Weeramantry. Without the numerous suggestions given by Mr. Weeramantry and his col- leagues, and the material they put at the author’s disposai, this book would never have been written. The author wants to thank, in par- ticular. Miss Hilary Cartwright, M. Daniel Marchand, Mme A. J. 6 Pouyat, Dr. Toth and Mr. Dominick Devlin, ail of the légal staff of the Commission, for their precious collaboration. Many distinguished lawyers, who are members of the Commis­ sion, have provided important material and valuable suggestions. Mention should be made, here, of Mr. A. J. M. Van Dal, Professor K. Takayanagi, Mr. J. T. Nabuco, Mr. P. Trikamdas and Chief Justice T. Wold, to whom the author extends his thanks for interest- ing contributions. Thanks are also due to Judge G. Petrén, of the Swedish Section of the Commission, for his encouragement and col­ laboration. Material has been graciously communicated by several Swedish and other organizations and private persons; the author has to thank these contributors without naming them ail. The present study served as the basis of the discussion at the Nordic Conférence of Jurists referred to above. The conclusions adopted on that occasion, and intended to lay down such prin- ciples in this field of the law as could and ought to be adopted throughout the world, are printed as Appendix IV to the study. The interest shown by the eminent lawyers present at the Stock­ holm Conférence, and the need for a comparative survey on priv- acy, are the author’s defences for publishing this hasty and inevit- ably superficial sketch of a field of law which develops rapidly in a great number of countries. The Swedish State Council for Social Research— Statens rad for samhàllsforskning— has granted a generous support for the printing of this volume. Thanks are also due to Dean Âke Malmstrôm, of the U ppsala Faculty of La,w, who has kindly accepted to have the book printed as a number in his sériés Acta Instituti Upsaliensis Iurisprudentiae Comparativae. A few technical remarks shall conclude the author’s plaidoyer. As ail comparative lawyers know, it is extremely difficult to keep up with the rapid publication of new éditions of standard works if several countries and fields of law must be covered. The author has had to quote, in a number of cases, old éditions of textbooks which have recently been reedited. Considering the heterogeneity of the case material presented in this volume—and the shortness with which cases are usually dealt with—the author has felt that the making of a table of cases would create grcater difficulties than 7 would be justified by its usefulness. Instead, a fairly detailed alpha- betical index has been added. The author finally allows himself to hope that the present study will serve as a modest contribution to the protection of privacy in the spirit in which the International Commission of Jurists took the initiative of its préparation. Uppsala, May 1967 S t ig S trô m h o lm TABLE OF CONTENTS Pr é f a c é .................................................................................................................... 5 T able of c o n t e n t s ......................................................................................... 9 Abbreviations .................................................................................................... 12 I ntroduction..........................................................................................................15 I. T he General Problems of the R ight of Pr iv a c y ...........................23 A. The Origins of the Right of Privacy and of the Concept of “ Rights of the Personality” ............................................................. 25 B. Attempts to Define the Notion of Privacy and to Classify its Différent Eléments ....................................... .......................................45 1. Common Law C o u n t r ie s ............................................................. 45 2. F r a n c e ...............................................................................................49 3. G e r m a n y .........................................................................................54 4. Other C o u n t r ie s ..............................................................................59 5. Conclusions.........................................................................................59 C. The Distinction between “Private” and “Public” ..... 65 1. General R e m a rk s..............................................................................65 2. “ Public” and “ Private” D ocum ents.............................................66 3. “ Public” and “ Private” P e r so n s..................................................68 4. “Public” and “Private” Premises .............................................71 5. “ Public” and “ Private” A c t iv it ie s ............................................ 72 6. Conclusions......................................................................................... 74 D. Légal Rules Protecting P r iv a c y ........................................................76 1. General Considérations...................................................................76 2. International Conventions.............................................................77 3. Constitutional R u le s........................................................................ 79 4. Statutory and Other Rules Applicable to Invasions of P r iv a c y ...............................................................................................85 (a) General Provisions...................................................................85 (b) Unauthorized Entry on and Search of Premises and Other P ro p e rty ........................................................................ 88 (c) Unauthorized Search of the Pe r s o n ...................................95 (d) Compulsory Médical Examination, Tests, etc.................. 97 (e) Intrusion upon a Person’s Solitude, Séclusion or P r i v a c y ................................. .............................................103 10 (f) Importuning by the Press or by Agents of Other Mass M e d i a ......................................................................................... 110 (g) Unauthorized Tape Recordirig, Photographing or F i l m i n g ................................................................................... 110 (h) Interception of C o rresp o n d en ce.......................................113 (i) Téléphoné T a p p i n g ............................................................. 115 (j) Use of Bugging D e v ic e s........................................................117 (k) Disclosure of Information Given to Public Authorities or Professional A d v ic e rs........................................................119 (1) Unwarranted Public Disclosure of Private Facts . 121 (m) Misuse of a Person’s Words or Other Expressions . 124 (n) Unauthorized Use of a Person’s Name, Identity, or L i k e n e s s ....................................................................................125 (o) D
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