Protecting personality rights : a comparative perspective

Abstract

Personality rights are a vast category of rights which include the individual's right to life, physical integrity, privacy, honour, moral integrity, image and name. This thesis involves a comparative study focused on the protection offered to the individual's personality rights in his relations with private parties, with a view to the possibility of offering a more comprehensive protection of these rights in Maltese law. Under the German legal system, the individual's personality rights in the relations with private parties are offered a thorough protection. This is because following a landmark case in 1954, the German courts have interpreted the tort law provisions in the light of Articles 1 and 2 of the German Constitution of 1949 which protect the inviolability of human dignity and the development of the individual's personality respectively. Following this case, the German courts have consistently recognised the existence of a general right of personality in German private law, the violation of which gives rise to liability in tort. In the Italian Civil Code, as in the German Civil Code, there is no provision catering for a general protection of the individual's personality. However the Italian courts, on the same lines as the German courts, have relied on their constitutional provisions to develop a general right of personality, the invasion of which is held to give rise to liability under the general tort law provisions in the Italian Civil Code. The French legal system threw a different light on the protection of personality rights. This is because in 1970, the general protection of personality rights was formally recognised though the inclusion of Article 9 in the French Civil Code which provides specifically for the protection of the individual's private life. On the other hand in England, to this day a general right of personality has not been recognised. However the Human Rights Act 1998 has paved the way for a more complete protection of personality rights through a wider interpretation given by the courts of the existing tort of breach of confidence. Under the Maltese legal system, the category of personality rights is not recognised and protected as a unitary category but is protected through a framework of ad hoe legislation, such as the Data Protection Act and the Press Act. A review of the existing legislation led to the conclusion that the fragmentary protection available to personality rights within the private law sphere is inadequate, especially when compared to the protection offered in other countries. The best solution to ensure a complete protection of the individual's personality rights in the relations .between private parties is to amend both our Constitution and our Civil Code so as to include in both a general provision offering protection to personality rights.