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Conflicts on the Rights of Personality and Its New Aspects: A Study from the Perspective of Japanese Private International Law [Volume 4 – 2014]

10 September 2014

Introduction

According to the contemporary theory, a person has rights unto himself, that is, his personality. These rights (rights of personality, personal rights, or rights to personality – hereinafter referred to as “rights of personality”) are recognized in the legislation of many countries, specifically under the context of torts. Article 28 of the Swiss Civil Code, for example, provides that a person whose personality was illegally infringed can claim the protection from the court (“celui qui subit une atteinte illicite à sa personnalité peut agir en justice pour sa protection contre toute personne qui y participle”)[i].

The concept of the rights of personality, however, is not same around the world. It differs from country to country. Furthermore, even a concept in one country is not always the same. This fact leads that the difference in the concept can lead to legal conflicts.

What conflicts can occur? How can we treat the conflicts relating to the rights of personality? In this paper, the issue of conflict in the rights of personality will be examined. First, we will define what is the right of personality (1). The question on the possible problems will follow and we will analyze what solution can be taken (2). Some problems on the right of personality, which emerge today due to the change of society, will be pointed out (3).

1. Concept of “right of personality”

The right of personality is not a single concept. This term includes several rights concerning the personality of a person. In this chapter, we will confirm the concept of the right of personality to have the basis of the discussion.

The scope of the right of personality has been expanding. Existing legislations share some traditional concepts, but some newly-born concepts in one country are sometimes totally unknown in another country.

In this chapter, we will have an overview of the traditional concept of the right of personality. Then, the newly-emerged concepts concerning personality will be examined.

(i) Traditional concept

The first question is that, what rights do we have to our personality? This discussion has a long history[ii] and developed in Europe, specifically in Germany, within the context of natural right. To summarize, a person has rights which are not alienable and are connected his existence as a human being.

The concept of rights of personality is distinguished from the concept of human rights. While the latter shows the right to be object to States’ power (that is, it has been discussed in the field of the constitutional law), the former is the concept developed within the domain of private law[iii].

The catalog of the right of personality is not totally the same around the world, but modern countries share some common ideas. Here, some traditional “rights of personality” will be introduced[iv]: Right to life, body and health, right to freedom, right to name, right to honour, and right of privacy. These rights can be considered as traditional type of the right of personality and are more or less embedded in the legislation of many countries.

The right to life, body and health is fundamental and there are little objection, because it is inevitable to being human. For example, the article 832 of the German Civil Code, BGB, clearly mentions that the infringement to the life or body of others is illegal and must be compensated[v]. Nobody can apply euthanasia to a sick person who is suffering from pain or can boycott to threaten the life of others, or mistreat someone physically or mentally[vi]. Today, this right is considered to also apply to the aspect of the environment or of the milieu and the right of personality can be the basis of the claim against air, water, or noise pollution or food contamination[vii].

The right to freedom is also one of the stereotypes of the right of personality[viii]. This “freedom” is understood as physical freedom, that is, a person can decide freely when he moves and where he moves to. If another person, for example, prevents his movement, it can be an infringement of his right of personality[ix].

The right to name is more complicated. It has several dimensions: Firstly, a person can have the right to decide his name. This is considered as one of the aspects of the self-determination because the name is the symbol of the personality. This can be problematic when a person demands to change his name according to his proper will. Whether it can, or should be admitted or not.

The second dimension is the right to object to the misuse of the name[x]. If someone assumes the name of another person as his own, it can be an infringement of the other’s right. If, for another example, someone uses another’s name without permission or authorization, it can also be an infringement of that right.

The third is the right to demand the correct pronunciation or writing of the name. It is not the question of the name itself, but of how to present that name. This covers the dilemma, for example, when a foreign name is transformed into another language or a different spelling[xi].

The scope of the right is also to be examined. Does the right to name cover only the real name or does it cover also the pseudonym? The attitude to this question varies from country to country[xii].

The right of honour is considered as one of the oldest categories of the right of personality. This right is protected in many legislation under the provision of the tort (defamation)[xiii] and sometimes also in the criminal code[xiv].

Here, one question arises: what is the honour of a person? Generally speaking, the honour of a person is understood to be his reputation in society. If then, for example, a person feels to have been defamed because of a word or an act of another, but does not damage his social reputation, can the act still be considered illegal? It must be pointed out that it differs country to country. It must be objective in some countries, but on the other hand, only subjective damage is enough to claim the defamation[xv].

The right of privacy has a difficult question as well. The concept of the privacy was born in 19th century and it was originally understood as the “right to be let alone”[xvi]. It was developed in the middle of 20th century[xvii] and finally reaches today’s concept, “the right to control one’s own information”[xviii].

The scope of the privacy is not yet totally defined. Therefore, it is not clear as to what extent, information can be protected based on the theory of privacy. If the right is understood in the limited meaning, one can claim his right only when his private area is invaded. If, on the contrary, it is understood under a broad meaning, he may be able to claim even when the information in question is not very private, but concerns his personality.

As is mentioned previously, in summary, the terminology of “right of personality” traditionally includes several concepts[xix]. It covers many aspect of a human being.

(ii) Newly-born concept

The catalogue of the rights of personality is ever increasing: New concepts of the right of personality are developed even today. Here, some of new concepts are introduced.

One of the examples is the right to be forgotten, which is sometimes called “right of oblivion”[xx]. This concept is newly born upon the arrival of the information society. In today’s society, a great deal of information is in digital form. Information about individuals is, sometimes without us noticing, collected in governmental or municipal database, stocked in companies’ caches or floated on social network services.

The right to be forgotten has been proposed under this backdrop[xxi]. Standing on the right to be forgotten, it is possible to claim to have information deleted (text or pictures for example) if he does not wish for that information to be kept in the cloud.

This right, while not yet accepted in legislation of many countries with the exception of the European Union[xxii], is actively discussed today[xxiii].

Another example is the right to personal identity[xxiv]. This right is to protect the image of a person from the public misunderstanding arising out of the misinformation or misleading report of media. This concept, however, has not yet been clearly demarcated, even in France where the right is being argued. The content of this right can overlap with the right of privacy, the right to name or sometimes the right of publicity[xxv]. So far, there is no clear rule or jurisprudence, but the concept is getting recognized.

Due to the development in technology and changes within society, many new concepts aimed to the protection of personality are proposed. It is still, however, quite difficult to define the new concept concerning personality for the reason of the difficulty in the boundary decision.

2. Possible problems

In the last chapter, traditional and newly-born concepts of the right of personality were briefly illustrated. Based on that, in this chapter, potential problems will be examined.

(i) Intertemporal conflict

One of the problems is the conflict arising from differences of the concept in a timeline. A stereotypical example is as follows:

The concept of privacy is recognized as one of the rights of personality. It is considered as “the right to be let alone”[xxvi] at the initial stage. In this stage, one could claim infringement if the information, which he wants to hide, is revealed. After years, the extension of the right has been changed and it is now considered as “the right to control one’s own information”[xxvii]. Here, the factor of whether the information is private or not is of less importance. For the consequence, one can claim, standing on his right of personality, the injunction or compensation against the revelation of the information, which is not purely private but he does not want to put in public[xxviii].

If, then, one asks for the remedy against the violation of the information concerning him, when the violation itself has occurred in the period that the narrower concept of the privacy is recognized but the claim is made after the acceptance of the broader one, should the claim be admitted? This question, arising from the change of the concept, is the question of the intertemporal conflict of law[xxix]. How should it be treated?

The easiest case is that a legal rule, such as law, decree or order, has a clear provision on the temporal boundary. In many cases, when the legislature makes a new rule, provisions on the question of temporal boundaries (such as limit of the temporal scope or retroactivity) should be prepared[xxx].

Jurisprudences sometimes play the role to decide the temporal limit. The court may show the boundary of the concept which has been change, whether it has been expanded or decreased[xxxi].

If it still remains unclear, it should depend on the interpretation of the legal rules, consulting any references such as the discussions during the law-making process.

It can be considered that some way to resolve the intertemporal conflict should normally be prepared or can be found in the legal rule or its vicinity.

(ii) Interterritorial conflict

The more complicated question is the conflict of the concept between (or often among) the countries, that is, a concept right of personality in a country is different from that of another country in the same period.

More concretely, two types of conflict can be in question. One is the difference of the conflict; two or more countries have the same concept but the scope is different. Another is the lack of the concept; a concept of a right of personality that is admitted in one country does not exist in another.

This question falls under the scope of the question of the private international law (PIL). The PIL rule has not yet been unified yet globally in spite of the many efforts of scholars and organizations. The analysis in this chapter will generally be based on the theory of Japanese PIL with reference to the theory of Europe and of the US, taking some example cases.

(a) difference of the concept

First question revolves on how to resolve the conflict-of-laws question when two (or more) countries have the same concept but its extension does not. The right of privacy, for example, shows the typical situation. The following example will be examined:

X, a rich entrepreneur and a citizen of country A, donates money to orphan houses in the countries A and B. The fact of his contributions is not public because he does not want to be widely known for his activity, but can be known through the financial documents of X’s company. However, a newspaper company Y, operating in country B, publishes an article in its newspaper about X’s benefaction simply as a positive article for X. The article is distributed in countries A and B. X, who wants to hide his act of charity, is not happy with Y’s article. He asks therefore for the injunction of the publication of the article in question and for compensation, standing on his right of privacy. In the country A, the right of privacy is considered as the right to control his own information. On the other hand, in country B, the right of privacy can be claimed only when it is a private information that the holder of the information wants to keep in secret. In this case, how should X’s claim be dealt with?

In this case, the question of what law will govern the case[xxxii] decides the resolution. If the law of the country A is applied, X will be able to have the injunction and compensation. If the law of country B, the claim of the injunction and the compensation cannot be admitted. Therefore, the determination of the applicable law becomes very important.

The Japanese PIL rule, Act on General Rules for Application of Laws (Tsusoku-ho)[xxxiii], has no clear rule about the infringement of privacy. In the academia though, there are two dominant ideas. One is the law applicable to torts, and another is the law applicable to the defamation[xxxiv].

According to the former approach, the article 17 on the issue of the tort[xxxv] will be applied and the law of the place where the result of the wrongful act occurred (the place of the publication and the distribution of the article), will be the applicable law. In the example case, the law of country A and the law of country B will be dividedly applied to each act of the publication and the distribution in those countries[xxxvi].

On the other hand, according to the latter approach, another article, article 19 on the issue of the defamation[xxxvii], will be applied. Standing on this provision, the applicable law is the law of the country of the victim’s habitual residence. In the case, the victim is X, whose information is revealed against his intention, and the applicable law shall be the law of country A. In conclusion, X may be able to have the injunction and the compensation for the whole case.

The US has a clear rule on this matter[xxxviii], shown in the articles 152 and 153 of the Restatement (Second) of Conflict of Laws[xxxix], which is similar to the two dominant ideas proposed in Japan.

In the EU, there is no clear rule on the conflict of laws issue on privacy. There is however the discussion on the introduction of the rule on the law applicable to the infringement of privacy into the Rome II Regulation[xl]. The proposal takes plural approaches[xli] and its content is similar to that of Japan or of the US.

This example is a little complicated because sometimes the legislation does not show the clear rule to determine the applicable law. However, the point is, the question of the difference of the concept can be resolved using the general PIL approach.

If the infringement of the name occurs, it can be considered as the tort. Almost all PIL rules prepare the choice-of-law rule on the tort[xlii], the judge has only to refer the clause and select the applicable law.

For the defamation as well, the legislation prepares the rule[xliii]. Therefore, if the honour of someone is infringed over the border, the court just refers to the PIL rule to choose the applicable law to the question.

In summary, the question of interterritorial conflict of the right of personality is not, when the concept is shared between (or among) the countries and when its infringement is in question, too difficult to resolve because the solution is already prepared.

(b) lack of the concept

More complicated question is when one concept is already recognized in a country but it is not admitted in another country. The concept of the right to be forgotten will be taken as example to analyze this question.

X, of nationality of country A, notices that his friends put many pictures with his face on the page of a social network service (SNS). X does not like to be “published” online and he wants to have the pictures deleted. Therefore, X requests Y, a company of country B which manages the SNS, to delete all the data of the pictures in which his face is shown. The server of the SNS is situated in country B. Country A admits the concept of right to be forgotten and standing on the right, people can ask to have their data deleted. However, country B does not recognize that new concept.

In this case, the resolution cannot be easily found. The reason is that in country B, the right itself is not recognized, that is, it does not exist. In this case, how should this question be resolved?

One possible approach is to take the PIL theory of the preliminary question. It means that, before tackling the main question of the infringement, the preliminary question on applicable law of the existence of the right, should be decided.

How then should the applicable law to the existence of the right of personality be determined? According to the general theory of PIL, the applicable law of the right of personality is the law of the person (lex personalis). The rationale is that the personality is strongly tied with the person and that it is reasonable to be governed by the law upon which that person belongs to. This law is considered as the law of the nationality.

Standing on this thought, the example case will be resolved as follows:

Firstly, the existence of the right should be decided. The applicable law is the law of the nationality of X, that is, the law of country A. According to that law, the right to be forgotten should be recognized.

Then, as the right exists, the infringement of the right can be considered. In this case, it is qualified as torts. Therefore, the choice-of-law rule on the torts should be referred. Normally, the rule designates the law of the place where the infringing act has occurred, the law of country B may be the applicable law in this example.

This approach seems logical but it might lead a difficult situation. Consider the case that X is a citizen of country B, and the “infringement” occurs in country A. In this situation, according to the law of country A, the existence of the right will be denied. However, according to the law of country B, where the right is recognized, the infringement can be admitted. To use several applicable laws leads to such a contradiction.

This type of question is called adaptation[xliv]. This question is the conflict between (or among) the applicable laws designated by the choice-of-law rule of the forum. This question was not really analyzed standing on the opinion that the role of the PIL is to determine the applicable law(s)[xlv]. According to this opinion, the question of the adaptation does not, strictly speaking, fall in the scope of the PIL because this question arises at the stage of the application of the law(s). However, this question arises out of the function of the PIL[xlvi] and it needs to be settled for the resolution of the existing problem.

One option to avoid this contradiction is to apply one only law to the case even when there are several legal questions. Generally speaking, the system of the laws of one country is harmonically-structured so that there is no contradiction between the laws which constitute that system. If the law of one only country is designated as applicable law, therefore, there should not be any contradiction. This technic is taken on a case-by-case basis, that is only when it is necessary, to avoid the unjust result and there is no clear general rule.

However, the selection of one only law to avoid this contradiction may lead to a shopping of the court and the law. Plaintiffs may seek for the court which the rule is favorable for them, that is, the rule which will designate the law that admits to the existence of the right (it means that the infringement is also admitted).

So far it is the decision of each court of each country that is relied upon and there is no unified opinion on this topic.

3. Today’s problems on the right of personality

(i) Roots of the “new” interterritorial conflict

As mentioned in the previous chapter, today a new phenomenon is found in the field of interterritorial conflict on the right of personality, which was not seen in the previous century: Today the existence itself of the right becomes in question, although traditionally, the interterritorial conflict focused only on its infringement.

Why? Because in past days countries shared the concept of the right(s) of personality. They had common concept such as right to name, of honour or of privacy. In this situation, the existence of the right was a given and there was no need to take it in consideration.

However, today countries do not. As is shown in the example of the right to be forgotten, one country has a concept of right of personality which is unknown to another. Here, there is the necessity to examine the existence of the right at the first step to resolve the conflict.

As this situation was not considered in the past days, little legislation prepares the way to resolve and the discussion in academia is inactive. As mentioned already, however, this question cannot be left unsolved and is an urgent task for the PIL field[xlvii]. All the problems such as the question of adaptation should be taken in consideration to establish the rule.

(ii) Other questions

Along with the augmentation of the rights of personality, other problems begin to emerge. Although it is considered that the rights of personality belong only to one person, himself, the possibility of the transfer or the waiver of the right, or the post-mortem exercise of the right is also pointed out.

Traditionally, the right of personality is considered inalienable and non-waivable. However, if the right can be transferred or be waived, the right-holder can be different from the person of that right (question of waivability or of transferability). The succession should also even more be problematic if that right is inherited (question of inheritability).

Consider the following example:

X, a citizen of country A, notices that his friends put many pictures in which his face is shown on the pages of a social network service (SNS). X did not like to be “published” online but he died without being able to protest. Knowing his feeling, X’s heir requests Y, the company of country B which manages the SNS, to delete all the data of the pictures in which X can be seen. The server of the SNS is situated in country B. Country A admits the concept of right to be forgotten and standing on this right, people can ask to have any data which relates them, be deleted. However, country B does not recognize this new concept.

In this example, there are three questions. The first question is whether the right to be forgotten exists; the second is whether that right can be inherited; and the third is whether infringement is admitted. The applicable law should be determined in each of these questions.

The traditional PIL theory does not have the clear answer for this question, because it is considered absolutely natural that the right of personality belongs to that person and is not transferred. Traditionally it is considered that there is no meaning to build the theory of the law applicable to the existence or ownership of the right of personality[xlviii].

Additionally, the general PIL theory itself should be reexamined. The actual theory considers the law of the nationality of a person as the applicable law to that person (lex personalis)[xlix]. However, is it really appropriate?

One of the general principles of the PIL to determine an applicable law is “the closest connection”: The applicable law should connect the most closely to the question. The lex personalis should be therefore the law of the country that is concerned with that person the most.

Indeed the nationality is one of the clearest factors to find the connection between a person and a certain place. The traditional and existing discussion considers that a person ties strongly with the country of his or her nationality. However, is it the case today? In days past, a person lived in the country of his nationality and normally spent there whole lifetime. In this situation, there is no doubt to consider the country of the nationality as the place where that person is most closely connected. However, in today’s world where the cross-border move is easy, the nationality does not necessarily “the closest connection” with the person. For example, suppose that a person has Japanese nationality, holds the green-card of the US at the same time and works in France: In this case, which of the three countries is the most closely connected to this person? Is Japan, the country of his or her nationality, the closest?

It is necessary, therefore, to reexamine the general theory of PIL itself as well as particular questions on the right of personality, to find the resolution to the conflict of the right of personality.

Conclusion

This paper has pointed out the possible “conflicts” which could arise from the extension of the concept of the rights of personality: Intertemporal conflict and interterritorial conflict.

The former has, in many cases, the resolution (or at least a clue to the resolution) in the law or from the discussion during the drafting of the law, or through jurisprudence. In this instance, the conflict can easily arise but it is not too difficult to deal with.

On the contrary, the latter shows more difficulties. These questions seem to arise from the insufficient discussion of the PIL theory.

In the actual theory on the PIL, only the resolution for the infringement of the right of personality, of which the concept has already been shared between or among the countries, is prepared. The theory does not prepare the question of the infringement of unknown right of personality or the question of the existence or of the ownership.

Interterritoral conflicts on the right of personality should be increasing with the development in technology. To fill up the lack of theory, some topics in PIL field need to be more deeply developed.

Of course, in addition, the extension of the rights of personality leads to other “conflict”, such as conflict between the right of personality and human rights or public interest[l]. It is not in the scope of this paper, but such a tropic should be taken in consideration when law-making is prepared.