+(,121/,1(

Citation: 47 L. Q. Rev. 203 1931

Content downloaded/printed from

HeinOnline (http://heinonline.org)
Sun Jul 26 20:02:43 2015
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0023-933X

THE COMPARATIVE LAW OF THE RIGHT

TO PRIVACY.'

I.
THE LAW OF GERMANY AND

SWITZERLAND..

F we adopt Professor Winfield's definition of an infringement of the right to privacy as being 'any unauthorized
interference with a person's seclusion of himself or his property
from the public,' 2 it would seem that ample protection
against such interference is afforded by the Swiss Civil Code
and Code of Obligations, but that German law, owing to the
somewhat narrow construction which has been placed on the
relevant articles of the Civil Code, appears to stop short of
complete protection; though, as we shall see, it is considerably
more effective in this respect than either English or American
law.
The question is one which centres both in German and in
Swiss law round the so-called theory of a general law of personality (allgemeines Personlichkeitsrecht). According to this
theory the law must be such as to protect the individual to the
fullest extent in the exercise of his faculties in every conceivable
direction. The individual is therefore entitled to complain of
any unauthorized interference, not merely with his person or
I have responded, though not without some diffidence, to the invitation
contained in my friend Professor Winfield's monograph on the' law of privacy
(L. Q. R. vol. 47, at p. 42). I have confined myself to the discussion of the laws
of Germany and Switzerland, and of those countries which follow German or
Swiss law, because the law of France will be dealt with in these pages by the far
more competent hands of Dr. F. P. Walton. Since the publication of Professor
Winfield's article in the L. Q. R. the obstacles which have hampered comparative
The principal French and
lawyers in England are gradually disappearing.
German text-books and legal periodicals and collections of decisions are now
available in the Squire Law Library at Cambridge, and this will probably also be
true of Swiss and Italian books of a similar character when this article is in print.
This change has been brought about by the farseeing and generous action of tb
Cambridge Law Faculty. I must also express my deep sense of gratitude to the
Staff of the Institut ffir auslindisches Privatrecht of Berlin. Without their help
I should have been in serious difficulties as regards the collation of the available
material in the abort time at my disposal.
2L. Q. R. XLVII, p. 24. This definition might perhaps be amplified by the
inclusion of interference with the privacy of an individual's family, as well as
with "his own privacy.

The Law Quarterly Review.

[No. CLXXXVI.

his property or his reputation, but also with the social, intellectual and economic activities, opportunities and amenities,
In
which combine to form the sum total of his existence.
short, any wilful and unauthorized incursion by others into
the private life of an individual is prima facie to be regarded
as an actionable wrong. The theory owes its origin to Gierke,'
but it 'has been insisted upon and elaborated by other German
It may, perhaps, be regarded as a development of
writers.'
certain aspects of eighteenth century individualistic philosophy,
but it is essentially modern in its origin and in its implications.
It finds no counterpart in Roman law, though some of its
features were, perhaps, adumbrated in the 'actio aestimatoria
iniuriarum,' which afforded wide relief as regards any act
which 'showed contempt of the personality of the victim.'"
The conception of an insult was, 'however, essential to this
form of action, and this appears to have narrowed its application to a very considerable extent.' An attempt which was
made by Ihering and other German civilians to revive this
form of remedy in the nineteenth century was abortive, and
it seems clear that it is elsewhere than to the law of Rome that
we must look for the origins of the theory of a general law
of personality.7
This theory of a general law of personality is, of course, open
to obvious criticism. It is impossible to define the limits within
which its application is permissible, and its unrestricted
employment might well lead to a flood of litigation, both
trumpery and vexatious in character. Gierke himself was fully
alive to this aspect of the matter, when he stated that the extent
to which the theory can be regarded as operative must depend
on the stage of development reached by the law taken as a
whole.' To use the phraseology of the German jurists, the
theory furnishes at most the basis of an objective law, from
which subjective rights can be deduced as occasion arises.'
3 See Gierke, Deutsches Privatrecht, I, 203.
' See Kohler; Persinlicbkeitsrecht in Holzendorif's Encyklopaedie der Recbtswiseenschaft, vol. i, p. 587; Dernburg, Blirgerliches Recbt, vol. 2, 883, Ifl.
Huber and Regelsberger were, amongst others, also supporters of the theory.
' Buckland, Textbook of Roman Law, p. 585.
6 Ibid.
Ihering, Jahrbficher ffir Dogmatik, XX1II, 155; Mainzer, Die aestimatorieche
Iniurienklage; Lenen, Edictum Perpetuum, Stier-Somlo und Elster, Handwarterbuch der Rechtswissenschaft, I, 273.
' Deutsches Privatrecht, loc. cit. 'Wie weit &us dem allgemeinen Reehte der
Pers6nlicbkeit besondere Recbte (die einzelnen Persenlichkeitsrecbte) hernus
wachsen oder in ibm der Stof zu solchen Rechten unausgeschieden bleibt,
dariber entscheidet die rechtegeechichtliche Entwicklung.'
* In German law the term ' Recht ' is ambiguous. It may mean the law which
declares the existence of a right in general (Objectives Recbt) or a specific rule

April,1931]

Comparative Law of the Right to Privacy.

205

As we shall see, hereafter, the theory has not met with

general acceptance in its country of origin. On the other hand,
it has found its way into the Swiss Codes, and into the codes
of those countries which have adopted Swiss law as the basis
of their legislation." Its force is by no means spent, and it
must be regarded as a factor which may still exercise a
potent influence on the future deliberations of Continental law
makers. "
Owing to their divergence on this important question, the
most convenient method would appear to be to consider the
relevant provisions of the German and the Swiss Codes
independently of one another.
(I) The German Law.-The theory of an 'allgemeines Personlichkeitsrecht' only plays a subsidiary part in the German law
of obligations-at least, this would appear to be what is
sometimes termed 'the better opinion.' The Reichsgericht has
disapproved of it so often that there is a 'jurisprudence
constante' which must be regarded as fatal to the application
of the theory to concrete instances. The leading decision was
that in an action brought by Nietzsche's next-of-kin, after his
death, to restrain the publication of certain letters which he had
written to one of his friends."2 The current of doctrinal exposition has also set somewhat strongly against the adoption of
the theory, which must therefore be regarded as more or less
3
discredited in Germany.'
But the matter may, perhaps, still be regarded as controverof law which is created by virtue of such declaration to meet particular cases
(Subjectives Becht). Cf. Allen, Law in the Making (lst ed.), p. 332.
" The Swiss Civil Code and Code of Obligations with certain modifications
have been in force in Turkey since 1926.
The law of the Principality of
Liechtenstein follows Swiss law, but in a more highly developed form (see post).
The Swiss Civil Code has also exercised a strong influence on the framing of the
Codes of Czechoslovakia and Poland (Journal of the Society of Comparative
Legislation, Third Series, vol. ix, p. 202).
" The question cropped up, for instance, at the Rome Copyright Conference of
1928 when the right of an author to restrain any unauthorized alteration of his
work (droit moral) was under discussion. It was contended, though without
success, that this right was not an integral part of copyright but was an implication from the theory of a general law of personality. See E. Piola Caselli in
II diritto di autore,' 1930, at p. 180.
32 Entscheidungen
des Reichsgericht in Zivilsachen (referred to hereafter as
R.G.E.), vol. 69, p. 401. The plaintiffs were successful, but on another ground,
viz. breach of copyright in the letters. There are many other decisions to the
like effect; e.g. R.G.E. vol. 79, p. 398; vol. 113, p. 413. The controversy as to
the existence of a general law of personality was fanned into flame by an
impudent attempt to photograph Bismarck on his death-bed, carried out by press
agents who forced their way into the room by means of a ladder. See Kohler,
op. cit.
P; See Von Tuhr, Der allgemeine Teil des Deutschen Bfirgerlichen Rechts;
Staudinger, Kommentar zum Bfirgerlichen Gesetzbuch, I, pp. 30 et seq.;
Enndccerus, Kipp und Wolff, Lehrbuch des Blirgerlichen Rechts.

206

The Law Quarterly Review.

[No. CLXXXVi.

sial, though only indirectly, in so far as it arises in connexion

with the much debated question of the proper construction to be
placed on Art. 823 of the German Civil Code (Biirgerliches
Gesetz Buch) 1" which constitutes the foundation of the German
law of torts. The point at issue is whether Art. 823 (1) lays
down a principle establishing a general duty to refrain from
harming other persons or whether its policy is that of 'Konkretisierung,' i.e. of enumerating the specific instances in which
an individual is protected by the law against -harm-a view of
the matter which has been described as the 'pigeon hole'
theory of the law of torts. 5
It would seem that actionable wrongs according to German
law are to be found in pigeon holes, and the lines along which
the pigeon holes have been built up are the following :(A) Art. 823, sub-section 1,1" declares to be unlawful any
act done wilfully or negligently whereby certain rights are
infringed. These rights are enumerated as follows: the right
to personal safety, the right to health, the right to liberty, the
right of property and any other similar right. There is a
notable omission from this catalogue of personal rights, namely,
the right to reputation, and it is this omission which forms
the subject-matter of the controversy to which reference has
just been made. The advocates of the view that Art. 823 (1)
provides a remedy against all invasions of personal rights rely
on the words 'any other similar right' (ein sonstiges Recht)
as extending the scope of the article so as to bring in every
kind of interference with the personality of the individual.
Their opponents point out that these words must be construed
in accordance with the doctrine of 'eiusdem generis,' and as
referring solely to the rights in the nature of proprietary rights
which immediately precede these words in the phraseology of
the article. This latter view-which is supported by the fact
that specific rights are dealt with elsewhere in the B.G.B.-is
the one which appears to have prevailed 17 with the result that
, Hereinafter referred to as the B.G.B.
Cf. Pollock on the Law of Torts (13th ed.), chap. i, and Winfield in 27
Columbia Law Review, p. 1.
Is The original text must be referred to as its phraseology, which is important,
runs as. follows: 'Wer vorsatzhch oder fahrlissig das Leben, den K~rper, die
Gesundheit, die Freiheit, das Eigentum oder ein sonstiges Recht eines anderen
widerrechtlich verletzt ist dem anderen zum Ersatze des daras entstehenden
Schadens verpflichtet.' The word vorsitzlich ' is perhaps ambiguous. According
to the so-called 'Willens Theorie' it imports an element of volition. The rival
theory, the 'Vorstellungs Theorie,' merely implies that an act has been done
with consequences which could have been foreseen. These theories are discussed
in Enneccerus, Kipp und Wolff, op. cit., vol. i, at p. 547. See also Schuster,
Principles of German Civil Law, at p. 339, and R.G.E., vol. 57, at p. 241.
" See Von Tuhr, op. cit., I, 6, 66; Staudinger, op. cit., vol. ii (3), notes to
"

April,19311

Comparative Law of the Right to Privacy.

207

it is elsewhere than to Art. 823 (1) of the B.G.B. that we must

look for the protection of the right to privacy.

(B) The second sub-section of Art. 823 of the B.G.B. carries
the matter somewhat further. It enacts that a person is guilty
of a civil wrong if he does any act either wilfully or negligently, whereby an express provision of the law intended for
the protection of others is infringed.' 8 The civil action of
defamation in German law rests very largely on the provisions
of this article, as defamatory statements are primarily crimes
punishable under the German Criminal Code. This is not the
place for a discussion of the German law of defamation; it will
be enough for our present purposes to state that defamation is
an attack on the honour of a person, and may consist in the
written or spoken word or may take a pictorial form, and that
any act showing contempt for an individual may also be
sufficient to constitute the offence.'" Damages are, however,
only recoverable in a civil action on proof of actual pecuniary
loss resulting from the defamation. 2 0 It is interesting to note
that the draft of the reformed German Criminal Code proposed
to create a new offence, i.e. the so-called ' Indiskretionsdelikt,'
designed to put a stop to offensive gossip about a person's family
life and his private affairs. Where statements of this kind are
disseminated from motives of gain or from any other improper
motive, it was proposed that the truth of the statement shall be
no answer to proceedings based on defamation. 2 ' But it does
not appear from the present state of the law, that the German
Civil and Criminal Codes afford any greater protection by virtue
of the law of defamation against invasions of privacy than the
English or the American law. It is perhaps possible that the
victim of such an invasion might be able to resort to the provisions of Art. 823 (2) apart from any question of libel or slander,
but I have not been able to discover any instances in which the
Article 823 (1). See also R.G.E., vol. 69, p. 403: 'A general subjective right
of personality is unknown in modern law. There are only certain specific rights
See also R.G.E., vol. 51, p. 373. Contra, see
which are protected by law.'
Gierke, op. cit., 211, II, 2 (a); Liszt, Deliktsobligationen, p. 26.
" Art. 823 (2) : ' Die gleiche Verpflichtung trifft denjenigen, welcher gegen
ein in den Schutz eines anderen bezweckendes Gesstz verstbsst. Ist nach dem
Inhalte des Gesetzes ein Verstoss gegen dieses such ohne Verschulden m6glich,
so tritt die Ersatzpflicht nur im Falle des Verschuldens ein.'
19 See Arts. 185-187 of the German Criminal Code. Defamation may take
several forms (Beleidigung, Vble Nachrede, Verleumdung, or Kreditgefihrdung),
and these offences are punishable with varying degrees of severity. Art. 824 of

the B.G.B. gives a civil remedy expressly in a particular case, i.e. defamation
calculated to cause damage to a person's business reputation (Kredit) or to injure
him otherwise in the conduct of his business affairs.
See post, p. 211, n. 32.
Amtliche Entwurf, 1925, para. 288 (3). See Stier-Somlo und Elster, op.
cit., jol. i, p. 697.

208

The Law Quarterly Review.

[No.

CLXXXVI.

right of privacy has been protected in this way except in obvious

cases of defamation.
(C) Although Art. 823 of the B.G.B. furnishes the basis of
the German law of torts, there are certain other provisions of
German law which might conceivably operate to protect the
privacy of an individual. In the first place there is the so-called
'Schikaneverbot' contained in Art. 226 of the B.G.B. which
gives a remedy in a case where a right has been exercised for no
other purpose than to inflict harm on some other person. The
object of this rule is clear, but in practice it does not seem to be
2
invoked very often except in protection of proprietary rights.
One reason for this seems to be the obvious difficulty of showing
that the act complained of had as its sole object the infliction
of injury on the complainant, but an even stronger reason is
that the remedy given by this article, so far as infringements of
personal rights are concerned, overlaps " the more extensive
relief given by Art. 826 which must now be examined.
(D) Art. 826 of the B.G.B.2 ' declares any act to be unlawful
which results in the infliction of damage on some other person
contra bonos mores. This is the omnibus section of the German
law of torts, and it is frequently used, owing to its elasticity,
for the purpose of filling up the gaps in the law. The cardinal
feature of this rule is that it can be invoked in certain cases
where the act complained of is declared by the law to be lawful,
as well as in cases where the act is what a German lawyer would
call an ' indifferent ' act, i.c. one not expressly forbidden by the
law. A fortiori it is applicable where the act is one forbidden
by the law. 25 It follows therefore that it covers a great deal
of the ground which is dealt with by Art. 226 of the B.G.B. (the
Schikaneverbot) because in most, if not all, cases an abuse of a
right is also an offence contra bonos mores.
German case law arising out of Art. 826 is voluminous, but
relates chiefly to such matters as sharp practices in business, and
oppressive measures adopted by the parties to labour disputes.
There are surprisingly few decisions on the applicability of the
article to acts which result in the invasion of the private life of
individuals. The definition of boni mores may perhaps account
for this. An act is said to be contra bonos mores if it is one
which is repugnant to the general national conscience (' Allgez The R.G.E. reports contain very few decisions on this article, and such as I
have been able to trace seem to be irrelevant to the present point.
Kipp und Wolff, op. cit., vol. i, p. 616.
28 Enneccerus,
" The text of this article is as follows : ' Wer in einer gegen die guten Bitten
verstossenden Weise einem anderem vorsitzlich Schaden zuffigt, ist dem anderem
zu Ersatze des Schadens verpflichtet.'
Kipp und Wolff, op. cit., vol. iv, p. 735.
28 Enneccerue,

April,1931]

Comparative Law of the Right to Privacy.

209

meiner Volksbewusstsein') which would seem to be a somewhat

formidable epithet to attach to a great many invasions of
personal privacy. The article however has a very wide scope,
and in the hands of courageous judges would seem to be well
adapted to afford protection to the amenities of private life. The
tendency to resort to it for this purpose appears to be on the
increase."
The 'nuisance ' articles of the B.G.B. 27 might also be available
where the invasion of privacy is connected with some interference
with a proprietary right. This remedy was utilised in one case
to restrain a person from taking a photograph of a house without the owner's consent,
but the correctness of this decision has
28
been challenged.
It would seem, therefore, that the German law of obligations
affords very little more protection to privacy than the English
law of tort. It is in other directions that a remedy must often
be sought. The situation which arose in Tolley's Case could
have been dealt with in a German Court of law either under
Art. 12 of the B.G.B., which protects the right of a person to
his name, or under the law of copyright, which forbids the
publication of a person's portrait without his consent. Both
these remedies were applied by the Reichsgericht in a case in
which Count Zeppelin objected to the registration of his portrait
and his name as a trademark for a certain brand of cigars and
cigarettes. The decision of the Court 21 was in his favour, and
was expressly based on the two provisions of German law which
have just been mentioned. Stress was laid on the fact that the
utilization of Count Zeppelin's name in this way was calculated
to injure his reputation, as it was to be presumed that a man
in his position ought not, unless for some special reason, to
" Von Tuhr, op. cit., stresses the importance of the application of Art. 826.
In the Nietzsche Case (R.G.E., vol. 69, at p. 403) it was pointed out that
failing all else this article might give protection against the unauthorized publication of private correspondence. it was also relied on in the judgment in the
recent Donner case where an injunction was obtained restraining the display of
a film representing a domestic tragedy in the family of the complainants (Juristische Wochenschrift, 1930, p. 71. Cf. an Austrian case, 0. L. G. Wien,
Nov. 17, 1928). See also Enneccerus, Kipp und Wolff, op. cit., vol. iv, p. 737.
It is conceivable that a German Court would, have held the publication of the
advertisement in Tolley's Case to be contra bonos mores.
Ut Arts. 90
and 1004 of the B.G.B. which afford a remedy in the nature of
the ' actio negatoria ' of Roman law.
" Oberlandsgerichts Entscheidungen, vol. 20, p. 402.
See the criticism of this
decision by Professor Wolff in Enneccerus, Kipp und Wolff, op. cit., vol. iii,
p. 98, n. 3.
2, R.G.E., vol. 74, p. 311. The judgment vimtaine the following statement
as to the circumstances in which Art. 12 of the B.G.B. is applicable: 'Das
Interesse im Sinne des 12 begreift nicht blos ein Familien oder Verma
Cn Sreebtliche Interesse, sondern ein jedes fiberhaupt des Rechtschfitzes wilrdige
t.esse fillt darunter, also such ein ideales und selbet ein Affektions Int.-esse.'

The Law Quarterly Review.

[No. CLXXXVI.

consent to the use of his name for advertising purposes. He

had therefore been damaged morally (moralisch beschadigt).
This decision is important as it shows that the unauthorized use
of a person's name will be enjoined by a German Court even
though no material damage has resulted. Art. 12 of the B.G.B.
requires proof either of the fact that the unauthorized use of
the name is such as to challenge the right to it of the complainant, or of some injury to the complainant's lawful interests,
and it seems clear from the above decision that an affront to a
person's dignity will be sufficient to constitute an injury for
this purpose. The use of Count Zeppelin's portrait was also
restrained as being in breach of the law of copyright. An
individual may object to the publication of his portrait without
his consent, by virtue of Arts. 22-24 of the German copyright
law (Kunst Urheber Gesetz). These articles cover not only
portraiture in the ordinary sense, but also any reproduction
taking the form of tableaux vivanta, stage characterization, waxworks and the like. An exception is made as regards the
portrayal of incidents of historical interest, landscapes which
accidentally include portraits of individuals, and groups of
clubs, societies or excursion parties. But even in these excepted
cases the person portrayed is entitled to object to publication,
if any injury will be caused thereby to his lawful interests.3 0
It was by virtue of these provisions of the law of copyright that
the ex-Emperor William recently succeeded in restraining the
performance of a scene in a revue in which he was caricatured.
The decision was that of the Kammergericht in Berlin, and it is
important as establishing the right of an individual to object
to an unauthorized portrayal of his personality, whatever the
means may be which are adopted."
To sum up: the piecemeal nature of German legislation, and
the cautious attitude of the German judges, resultihg in the
'Konkretiaierung' or the stereotyping of categories of personal
rights, has created considerable uncertainty as to the extent to
which German law protects the right of an individual to privacy.
The law of defamation affords inadequate protection, chiefly
because it is primarily penal in character, but partly also because
in the majority of cases it only grants a civil remedy by way of
injunction, and this object is equally well obtained by the
" The protection afforded by the law survives for a period of ten years after
the death of the de cuius.
11 See the report of this case in the Juristische Wochenschrift, 1928, p. 863. It
appears from the daily press that the well-known author Ludwig succeeded a few
weeks ago in restraining the publication of his portrait on the cover of the
Germsn edition of Upton Sinclair's 'Money Writes' as typifying plutocracy.
Though this is not stated, the decision was presumably based on the law of
copyright.

April,1931]

Comparative Law of the Right to Privacy.

211

prosecution of the offender under the criminal law. But

criminal proceedings involve strict proof and also a presumption
in favour of the innocence of the accused. Hence the inclination
to resort to the law protecting the name of an individual, or, in
case of portraiture, to the law of copyright. This attitude
towards the matter is strengthened by the fact that German
lawyers think in such cases rather in terms of an injunction than
in terms of money compensation," so that there is no ' pull ' in
the direction of civil proceedings for defamation as in England.
It would seem, however, that German law is, on the whole,
considerably in advance of Anglo-American law on this question.
The.tendency of the German judges is, moreover, in the direction
of the amplification of the rights of personality, and in practice
the protection of these rights is probably more effective than
would appear from the written law. This result has been arrived
at by the widening of the scope of Art. 826, which relates to
transactions which are contra bonos wwres, and also by the
extension of the positively enacted tort sections of the B.G.B.
to cases which can fairly be said to be analogous."3
(II) The Swiss Law. " In contrast to German law the Swiss
law of obligations has been built up on the basis of the existence
of a general law of personal rights, and the 'pigeon hole ' theory
A
finds no place in the interpretation of the Swiss Codes. 5
distinguished Swiss jurist enumerates the personal rights which
are protected by Swiss law inter alia as follows: Life, health,
3t
physical and moral safety, personal freedom, honour, privacy,
name, portrait (Bild), family life, matrimonial relationships,
It is significant that these
commercial and economic freedom.1
" Art. 253 of the B.G.B. confines the award of damages to cases in which actual
pecuniary loss can be proved. There are certain exceptions, i.e. (a) Personal
injuries; (b) Unlawful imprisonment; (c) Certain wrongs of a sexual character.
See Schuster, op. cit., p. 186, and Arts. 847 and 1800 of the Civil Code.
11 Communicated by the Institut ffir auslindisches Privatrecht of Berlin. To
the same effect : Egger, Kommentar zum Shweizeriachen GesetzbuTch (Personenrechte), p. 233.
" The Swiss Civil Code (Zivilgesetzbuch) will hereafter be referred to as
Z.G.B.; the Swiss Code of Obligations (Obligationenrecht) as O.R.
" Von Tuhr, Allgemeiner Teil des Schweizerischen Obligationenrechts, vol. i,
p. 328. It is true that Art. 28, Z.G.B., and Art. 49, O.R., only speak of
personal relations' and pot of 'personality ' in general, but that an all-embacing
astem is contemplated by these articles appears, as Von Tuhr points out, from
the phraseology of Art. 28, Z.G.B. See also Rossel et Mentha, Droit Civil
Suisse, vol. i, p. 99.
See Giesker, Das Recht der
86 The
term employed is -Geheimssphlire.'
Privaten an der eigenen Geheimasphare.
Das Schweizerische Obligationenrecht, p. 289. This enumeration is
" Oser,
not intended to be exhaustive. Cf. the notes by Egger to Art. 28, th op. cit.,
also Rossel et Menths, op. cit., vol. i, p. 90. The Liechtenstein Code (Art. 39)
also enumerates certain rights, but only by way of examples, i.e. : ' bodily and
mental integrity, honour, credit, peace in home life (Hausfrieden), liberty, name,
coat 6f arms, house name and similar tokens, personal dignity.' The protection

VOL. XLVII.

15

The Law Quarterly Review.

(No. GLXXXVI.

rights are not for the most part referred to specifically in the
Codes, and that their protection depends to a very large extent
on Art. 28 of the Z.G.B. as amplified by Art. 49 of the O.R. It
is in fact on these two provisions of the Swiss Codes, reinforced
by the conception of 'Personlichkeitsrecht' that the most complete protection afforded by any European law to the rights of
the individual, has been based.
Art. 28 of the Z.G.B. 3 ' is to the following effect: 'Where
anyone is injured in his personal relations by the unauthorized
act of some other person, he is entitled to demand that the
continuance of the act should be restrained.'
'A claim for compensation for pecuniary loss (Schadenersatz)
or for the payment of a sum of money as moral damages
(Ge ugtuung), is only admissible in the cases which are
specified by the law.'O
The second paragraph of this article calls for explanation.
It was an afterthought, and was inserted by the Swiss Legislature at the instance of the newspapers animated by a fear that
a full recognition of 'Personlichkeitsrecht ' carrying with it a
right to damages, might expose the press to a great deal of
oppressive litigation." The result was to diminish very considerably the protection afforded by the Civil Code against
tortious acts in general, and, when this was realized, the
necessary amendments were carried out by the insertion in the
Code of Obligations of Art. 49, which supplements Z.G.B.
Art. 28, and restores the law of personality to the position which
afforded to these 'rechtsgfiter' is qualified by confining it to cases where such
protection is compatible with the interests of others, and is also limited to cases
not otherwise provided for by special laws. See Wyler, Journal of the Society
of Comparative Legislation, 3rd series, vol. viii, p. 206.
" The German text runs as follows : Wer in semen personlichen Verhiltniseen
unbefugter Weise verletzt wird, kann auf Beseitigung der Starung klagen. Eiue
Klage auf Schadenersatz oder auf Leistung einer Geldsumme als Genugtuung
ist nur in dem vom Gesetze vorgesehenen Fillen zulissig. It is with some
regret that I have felt compelled to depart from the translation in Dr. Williams's
English version of the Swiss Civil Code which confines the operation of the
article to injuries to person or reputation. This is obviously too narrow, though
I admit that the words 'pers~nliche Verhiltnisse' are extremely difficult to
translate. They appear as ' interats personnels ' and 'relazioni personali '
respectively in the official French and Italian texts of the Code. Wyler translates
the words as 'personal standing.' See Journal of the Society of Comparative
Legislation, 3rd series, vol. viii, p. 206. The word 'unbefugt' also presents
difficulties. In the French text it is translated as 'illicite,' a rendering which
appears to be incorrect. See Rossel et Mentha, op. cit. vol. i, p. 99.
" 'Genugtuung'
is translated in the official French version of the Code as
'r pration morale.' The term is used to denote moral damages, e.g. for ain
and suffering, as opposed to Schadenersatz, i.e. compensation for a material
' These cases are dealt with in Z.G.B. Arts. 92, 93, 134 (2), 151 (2), 153 and
318; also in Arts. 47 and 49 of the O.R.
" Von Tuhr, op. cit., regards the second paragraph of Z.G.B. Art. 29, as a
'Redaktionsfehler,' i.e. a draftsman's error, but the alteration appears to have
been deliberate; see Egger, op. cit.

loss.

Comparative Law of the Right to Privacy.

April,1931]

213

it was originally contemplated that it should occupy.

The
article runs as follows:Where anyone is injured in his personal relations .owing to
the wilful or negligent act of some other person he is entitled to
compensation in respect of pecuniary loss, and, where this is
justified by the exceptional gravity of the injury or of the
wilfvl or negligent act, he may also claim payment of a sum of
money by way of moral damages.
The judge may, however,
decree some other kind of reparation to be made either in place
of or in addition to the award of money by way of moral
damages.",
This unfortunate dispersal of the rules of Swiss law regulating
personal rights over the area occupied by two distinct codes,
renders a process of consolidation necessary, if we are to gain a
true appreciation of the precise state of the Swiss law. A fusion
of Z.G.B. Art. 28 and of O.R. Art. 49 yields the following

results

:2
__

(i) Any unauthorized interference with the personal relations

of an individual" is a wrong entitling him to an order
restraining the continuance of such interference (Z.O.B. Art. 28,
para. 1).
N.B.-It would seem that the individual affected must be
harmed either materially or morally, but in order to entitle him
to the remedy it is not necessary for him to prove that the
harmful act or omission was either wilful or negligent.
(ii) If the act or omission complained of is either wilful or
negligent the individual affected may also claim compensation
in respect of any pecuniary loss which he has sustained (O.R.
Art. 49, para. 1).
(iii) The individual affected is also entitled to moral damages,
if the act or omission of which he complains was wilful or
negligent and the injury which he has sustained and the nature
of the act or omission causing the injury are of a sufficiently
serious character. The judge may, in this event, supplement
the iemedies which have already been mentioned by additional
relief of a non-pecuniary nature 5 (O.R. Art. 49, para.. 2).
4' The original German text is as follows : Wer in seinen personlichen Verhltnissen verletzt wird, hat bei Verachulden Anspruch ant Ersatz des Schadens
und, wo die besondere Schwere der Verletzung und des Verschuldens es rechtfertigt Anspruch auf Leistung einer Geldsumme als Genugtuung. Anstatt oder
neben dieser Leistung kann der Richter such ant eine andere Art. der Genugtuung
erkennen.
"1 See Oser, op. cit. p. 346, where these provisions of the two codes are
consolidated.
" Including, of course, his right to privacy.
E.g. the payment by the respondent of a sum of money to charity; the
insertion, at the expense of the respondent, of an apology in the newspapers, or

The Law Quarterly Review.

(No. OLXXXVI.

(iv) Apart from the circumstances already referred to, an

individual is only entitled to claim reimbursement of pecuniary
loss, and. moral damages, if the law specifically so provides
(Z.G.B. Art. 28, para. 2).
The graduation of the relief, which the party affected may
claim, is a feature of Swiss law which demands attention. It
is in strong contrast to the policy of English law which regards
an award of damages as the normal remedy, and relegates relief
The restricby way of an injunction to a secondary position.
tion of the award of exemplary damages to cases of an unusually
serious character has much to commend it, in so far as it may,
possibly, act as a check on litigation of a speculative character.
It should be noted that the provisions of Z.G.B. Art. 28 and
O.R. Art. 49 are not exhaustive. Acts contra bonos mores are
declared by O.R. Art. 41 (2) to be tortious, and the party
affected is entitled to the reimbursement of any pecuniary loss
which he may have sustained by reason of such act, provided
that the act was intentional (absichtlich)." For our present
purposes this rule is of little or no importance because any
invasion of privacy which can be. regarded as contra bonos mores
will also be actionable under Z.G.B. Art. 28 and O.R. Art. 49.
Similarly, Z.G.B. Art. 29, which protects an individual against
the unauthorized use of his name, does not carry the matter very
much further, as the right of an individual to object is clearly
within the periphery of the law of personality. The same line
of reasoning would also seem to apply to the right of an individual to object to the unauthorized publication of his portrait,
and .the provisions of the Swiss copyright law do not, for this
reason, seem to be relevant to the present discussion. It may
be observed that all the provisions of Swiss law which protect
personality are complementary, and there does not appear to
be anything which compels a complainant to rest his case on
any particular provision of the Codes."
The protection afforded by Swiss law against offensive
invasions of privacy appears to be complete, but the further
question arises as to the adequacy of this protection when it
is applied in practice to concrete cases. This, after all, is the
some other form of public retractation.

The judge may also make a declaration

It
affirming the honourable character of the complainant (Ehrenerklirung).
should be mentioned that the Swiss Courts have construed O.R. Art. 49 in

such a way as to limit the award of these additional remedies to cases of a

serious character. Oser, op. cit. p. 348.
He points out
' Von Tuhr, op. cit., criticizes the use of the word 'absichtlich.'
(wilful) and . absichtlich'
that the 0. B. uses both the terms ' vorsitzlich'
arent reason. The connotation is not the same in both
(intentional) for no

.
cases. See ants, p.
4? Egger, op. cit. at p. 270. Cf. Art. 89 of the Liechtenstein law, Wyler, op. cit.

April,1931]

Comparative Law of the Right to Privacy.

215

crucial iest. Unfortunately the Swiss law reports are not

accessible in this country at the time of writing, but the trend
of Swiss 'jurisprudence' is summed up in the Commentaries to
the Codes.' 8 It appears that the Swiss judges are proceeding
Not only does the shadow of the vexatious
with caution.
litigant lurk in the background of cases of this description; but,
even where the complainant is suing in good faith, the judges
are faced with the difficulty of defining the precise limits within
which effect should be given to the law of personality. It is
impossible to fix any standards; an act which may, for instance,
be an invasion of the privacy of a woman, can often
be dismissed as unimportant in the case of a man. Reliance
on precedents may be dangerous. Much depends on the circumstances of any particular case and on the race, social standing,
religion, and other characteristics of the parties concerned. Due
regard must also be had to the legitimate activities of other
persons. It would seem, however, that the Swiss judges have
not shrunk from the application of Z.G.B. Art. 28 and O.R.
Art. 49, and that these provisions of Swiss law have worked well
It is significant that there is apparently no
on the whole.
movement in the direction of doing away with the application
of ' Persidnlichkeitsrecht.'
We have now reached the final, and perhaps the most
important question of all. What can we learn from the rules
of continental law which have been under discussionP There
is one thing which is obvious, namely, that English law is much
less effective than Swiss law in protecting the individual against
offensive invasions of privacy. Even Germzan law with its
cautious outlook on the theory of personal rights is much in
advance of our law. To endeavour to import into our system
rules based on 'Personlichkeitsrecht ' such as are to be found in
the Swiss Codes can hardly be described as practical politics,
and the same difficulty would arise as regards the adoption of
the German conception of offences contra bonos mares. But
there are certain well-tried remedies afforded by the German and
Swiss Codes which stand on a different footing, and these could
without much difficulty be adapted to fill some, at all events,
of the gaps, without encroaching in any way on any fundamental principles of the common law. The Copyright Act
of 1911 could be amended so as to grant relief against the
unauthorized use of a person's portrait, subject to some such
safeguards as those which are found in the case of the
" See Egger, op. cit. at pp. 236 et seq.; Oser, op. cit. p. 348.

216

The Law Quarterly Review.

(No. CLXXIVI.

This would also afford an opportunity

German Urhebergesetz."
of amending the Copyright Act so as to protect artists and
authors against the 'bowdlerizing' or other mutilation of their
work without their consent 10 This would be a relatively simple
matter, but the question of the protection of an individual
against the unauthorized use of his name presents rather more
difficulty. Any rule which would have the effect of creating a
proprietary right in a name would be highly objectionable from
several points of view. But there seems to be no reason why
protection should not be given against any unauthorized use of
a person's name by way of public advertisement or display.
The German rule covers ground which is partly within the
English law of 'passing off,' ' and for this reason it would seem
to be preferable to confine any future legislation to the case of
public advertisement or display.
These two changes in the existing law would go far to remove
the hardships which have been referred to by Professor Winfield
as arising from the inadequacy of the law of libel and slander
to deal with questions of this nature,2 but there would still be
a considerable area of the domain of privacy which would be
left without protection. This could, to some extent, be covered
by increasing the powers of the Police Courts to deal with cases
in which some course of conduct amounts to molestation of
individuals, e.g , spying, but we should still be left with the
difficulty of dealing with those offensive statements whether
written or oral which are outside the law of defamation; It
would seem to be most desirable to check this particular type
of offence against privacy, and this could be done by framing a
measure along the lines of the suggestion contained in the
proposed new German Criminal Code which is aimed at the
Any unauthorized disclosure of the
'Indikretiondelikt.''
details of a person's private life or of the private life of his
family, could be declared to be actionable subject to proper
safeguards in certain cases, e.g. where the matter is one of
historical interest, or where the disclosure was necessary for
other good cause. Justification should be declared to be inadmissible as a defence. If this were to be done tile individual would
Bee ante, p. 210.
Cf. The International Copyright Convention of 1928, where this point is dealt
with.
B.G.B. Art. 12, and see Enneccerus, Kipp und Wolff, op. cit. vol. i,p. 224.
See, for instance, Tolley'a Case [1930] 1 K. B. 46; Corelli v. Ward, 22
T. L. R. 532; Palmer v. National Sporting Club, Macgillivray, Copyright
Cases 55.
8 Cf. Winfield in L. Q. R. XLVII, at p. 40.
See ante, p. 207.

April,19311

Comparative Law of the Right to Privacy.

217

be amply protected against idle chatter and mischievous

gossip.
These changes in the law would seem to be immediately
practicable as well as useful, but it does not appear to
be either feasible or desirable to transplant any of the
specific doctrines of German or Swiss law which we have
been considering into the English law of torts. The theory
of 'Personlichkeitsrecht ' in particular is ill-suited to a
It is pregnant with danger.
common law environment.
It protects, it is true, but it also interferes, and may
thus reproduce the very evils which it is designed to prevent.
The choice would, in many cases, lie between two acts of interference, the one affecting the plaintiff, and the other the
defendant to an action. The principle of 'de minimis non curat
lex' would no doubt operate in many instances in assisting to
place a reasonable limit on the application of the theory. Thus
I cannot, on any showing, be allowed to crave it in aid in order
to obtain an injunction to restrain the club bore from violating
my privacy by buttonholing me in the smoking room. But there
are other cases. Is it, for instance, permissible for me, when
I am not actuated by any improper motive, to erect a summerhouse in my garden which will overlook my neighbour's bathing
pool? Am I to be entitled to interfere with his privacy, or is
he to have the right to insist that I should erect a screen and
so destroy the amenities of my garden? The answer to such
questions is hard to find. Why should it not be my neighbour's
duty to screen his bathing pool? He may object that this would
destroy the amenities of his garden, and so we go round and
round in a ' circulus inextricabtlis.' It is noteworthy that legal
opinion in Germany has, for the most part, rejected the doctrine
of a law of personality on the ground of its extravagance
(Ujerlosigkeit).
There seems to be room in English law for some ruie
corresponding to the 'Schikaneverbot,' - but German experience
would seem to show that, however useful the rule may be in
other respects, its scope in protecting privacy is limited. As
regards the rule of German and Swiss law which declares acts
contra bonos mores to be wrongful, it is clear that it would not
be possible to dovetail an abstraction of this type into our
system without producing extraordinary results. What would
be the English conception of boni mores ? In some cases it
might be the so-called ' public school standard '; in others what
Sea Goodhart, Essays in Jurisprudence and the Common Law, p. 37. The
movement in French law is in this direction. See Josserand, L'Esprit des Droits
and ltipert, La Rigle Morale.

The Law Quarterly Review.

[No. CLIXXVI.

is vaguely termed 'sportsmanship.'

The disciplined and
orderly German mind no doubt appreciates the meaning of
' Unsittlichkeit,' but what will be the result if the criterion has
to be fixed by the verdict of a British jury? If the majority of
the twelve good men and true are bookmakers, the verdict will
probably be a very different one from that which would be
arrived at by a jury on which the nonconformist conscience
enjoys a preponderating influence. The rule might, perhaps,
be workable if applied by a judge sitting alone, but even then
one can envisage a much-harassed Court of Appeal trying to
reconcile the views of Mr. Justice X as to the nature of boni
mores with those of Mr. Justice Y.
German law, it is true, teaches us one lesson, namely, that
a law of torts which is confined to certain specified wrongs, will
often hamper the Courts in their desire to do justice, but we
can learn this lesson from the history of our own law.' If it
should ever be a question of the codification of the law of torts,
which, as Dean Pound has indicated, is an expedient which has
never really been successful, it is to French rather than to
German or Swiss law that we should turn.' This should, however, be unnecessary if we are ready to accept the view of Sir
Frederick Pollock and Professor Winfield that the wilful or
negligent infliction of harm on an individual always connotes a
remedy of which he can avail himself.
H. C. GuTrERiDwo.
* See the remarks of Scrutton L.J. in Oakley v. Lyater [1931] 1 K. B. at
p. 151.
' See Arts. 1382 and 1383 of the Code Civil Frangais and Art. 1058 of the
Quebec Civil Code.