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Old Laws, New Tricks What lessons can be learned from traditional and established principles of Scots Law in addressing contemporary issues in the regulation of Revenge Pornography, Personality Rights, and Data Protection? By Chris Miller, Advocate LL.B (Hons); LL.M; PG Dip
Overview
• Section 1
• Working definitions of contemporary legal issues:
• Revenge pornography
• Personality/image rights
• Data protection
2Overview (continued)
• Section 2
• Case Studies in Contemporary Legal Actions:
• (i) Misappropriation of personality or image;
• (ii) Dissemination of revenge pornography; and
• (iii) Misuse of personal data
3Overview (continued)
• Section 3
• One Step Back, Two Steps Forward:
• Scots Legal History: A Brief Overview
• The delict of iniuria in Roman Law
• Components of an actio iniuriarum in Scots Law
• The actio iniuriarum as an established principle of Scots Law
4Overview (continued)
• Section 4
• “Romantic Romanism or Tool For Today?” – K. Norrie
• Lessons from the actio iniuriarum in the regulation of:
• (i) revenge pornography;
• (ii) personality/image Rights; and
• (iii) data protection
• Old Laws, New Tricks?: Towards more effective regulation?
5What are Personality/Image Rights?
• Working Definition
• Technically there is no such thing as a personality or image “right”
under Scots or English Law.
• However, a person’s image, personality, signature, voice, likeness,
attributes etc are capable of carrying both personal (emotional) value,
as well as commercial (financial) value, and should arguably therefore
be a legally protectable interest.
• Regulation by Civil Law
• Passing Off (Scotland/England);
• Publicity Right (United States)
• Registered Image Right (Guernsey)
6What is Revenge Pornography?
• Working Definition
• The dissemination of intimate or sexually explicit photographs, videos, or
indeed other media depicting a person, typically by a former spouse or partner
against that person’s will.
• An example of an act which has always been possible, but there is now
increased potential for “communication” due to new technologies such as social
media (YouTube/Facebook/Instagram/SnapChat/Twitter)
• (See A. Murray, Symbiotic Regulation, 26 J. Marshall J. Computer & Info. L.
207, (2008)).
• Regulation by Criminal Law
• S.33 Criminal Justice & Courts Act 2015 (England);
• S.2 Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (Scotland)
• Regulation by Civil Law
• Breach of Confidence/Breach of Contract/Distress Claims & The Right To Be
Forgotten (Data Protection Act 2018/GDPR) (Scotland/England)
7What is Data Protection?
• Working Definition
• Data Protection is the legal protection of information which relates to
an identified or identifiable individual (i.e. written records/digital
records/photographs/videos etc).
• Regulation by Civil Law
• Package of Principles/Rights/Remedies/Sanctions (Data Protection
Act 2018/GDPR) (Scotland/England)
• Right of Erasure (To Be Forgotten) (Section 47 of the DPA
2018/GDPR)
• Compliance Orders (Section 167 of the DPA 2018/GDPR)
• Distress Claims (Sections 168 and 169 of the DPA 2018/GDPR)
8Case Studies (Personality/Image Rights)
• Fenty v Arcadia Group Brands Ltd (t/a Topshop) [2013] EWHC
2310 (Ch); [2015] EWCA Civ 3
• Case Facts
• Topshop is a well known fashion retailer.
• Rihanna is a well known pop star with her own merchandising and
endorsement operation.
• Topshop were selling products bearing pop singer Rihanna’s image.
• Topshop had obtained relevant IP license from the photographer who
owned copyright in the image.
• Rihanna contended that the sale of the products by Topshop infringed
her rights.
9Case Studies (Personality/Image Rights)
(Continued)
• The Law
• It was confirmed that there is no personality/image right in English
Law.
• The protection of personality/image and the values therein required
to be protected through claims founded on passing off/breach of
confidence/breach of contract/infringement of recognised IP rights
such as copyright etc.
• Rihanna had a remedy under the tort of “passing off”.
• The tripartite test from Reckitt & Colman v Borden [1990] 1 AII E.
R. 873 was applied. It had previously been applied in relation to false
endorsement in Irvine v Talksport [2003] EWCA Civ 423.
• The three elements which required to be established were:
• (i) goodwill; (ii) misrepresentation; and (iii) damage.
10Case Studies (Personality/Image Rights)
(Continued)
• Criticisms
• The approach adopted neglects the possibility that image/personality
may be misappropriated in circumstances where the constituent
elements of claims for passing off (i.e. goodwill, misrepresentation and
damage), or indeed breach of contract, breach of confidence or
infringement of IP rights are not present.
• Does not fully consider the distinction between “commercial” and
“emotional/moral” values in image/personality, or indeed the
distinction between patrimonial and non-patrimonial loss arising from
the misappropriation of image/personality.
11Case Studies (Revenge Pornography)
• Alexander Aristides Reid v Katie Price [2020] EWHC 594 (QB)
• Case Facts
• Katie Price and Alex Reid were married between 2010 and 2012.
• During the marriage Price obtained video footage/photographs of Reid
engaging in sexual activity.
• As a result of initial disclosures of this material, an undertaking of non-
disclosure was sought by Reid and given by Price.
• Damages were sought for breach of confidence, misuse of private
information, breach of contract, as well as distress under the Data
Protection Act 1998 in relation to the disclosure of information
prohibited by the undertaking.
12Case Studies (Revenge Pornography)
(Continued)
• The Law
• The case did not go to probation and the defences were struck out at a
procedural level.
• It did however proceed to an Assessment of Damages for breach of
confidence, misuse of private information, breach of contract, and
compensation under Section 13 of the Data Protection Act 1998.
• The case illustrates that concurrently with the criminal law, civil law
remedies under the law of obligations and other equitable doctrines can
be utilised by complainers to seek redress. Such remedies are not
however free of criticism. (Note the plurality of grounds of action in
this case)
13Case Studies (Revenge Pornography)
(Continued)
• Criticisms (Breach of Confidence)
• It is possible that dissemination of revenge pornography can occur in
circumstances where:
• (i) the constituent elements of breach of confidence or misuse of private
information have not been satisfied (i.e. necessary quality of
confidence/imparted in circumstances importing obligation of
confidence/unauthorised use to detriment of party who communicated
it) as per Coco v Clark [1968] F.S.R. 415; and Lord Advocate v Scotsman
Publications [990] 1 A.C. 821;
• (ii) the case would not succeed by virtue of limiting principles such as
those identified in Attorney General v Observer Limited [1990] 1 AC 109
(Spycatcher)) (i.e. public domain/triviality/public interest)
14Case Studies (Revenge Pornography)
(Continued)
• Criticisms (Breach of Contract/Undertaking)
• In most circumstances it is unlikely that parties will have entered into
express contractual agreements not to disclose material which
constitutes revenge pornography.
• Even when parties have entered into such agreements or given
undertakings of a defined scope (Alexander Aristides Reid v Katie Price
[2020] EWHC 594 (QB)), it results in ambiguity as to what does and
does not constitute lawful dissemination.
• Is it correct that an inherently social problem is reduced to a question
of whether something constitutes a breach of contract/undertaking
rather than whether it is right or wrong in itself?
15Case Studies (Revenge Pornography)
(Continued)
• Criticisms (Misuse of Private Information)
• Arguably this is an effective gateway to remedies for victims of revenge
pornography following its recognition as a tort.
• If it can be established that there is (i) a reasonable expectation of
privacy; and (ii) any competing interests engaged are outweighed by
the invasion of privacy (Campbell v Mirror Group Newspapers Limited
[2004] UKHL 22), civil remedies can be sought.
• Remedies can include injunctions (England) or interdicts (Scotland),
together with a sum to reflect the wrongfulness of the invasion, while
compensating the victim for the distress caused by it.
• However, again the same limiting principles in Attorney General v
Observer Limited [1990] 1 AC 109 (Spycatcher) could defeat potential
remedies.
16Case Studies (Revenge Pornography) (Continued)
• Criticisms (Data Protection Act 1998/2018/GDPR)
• Data Protection Legislation arguably serves as an effective gateway to
some remedies for victims of revenge pornography in certain
circumstances. But can revenge pornography fall within definitional gaps
in the Data Protection Legislation?
• The Right to be Forgotten (Erasure) under Section 47 of the Data
Protection Act 2018/GDPR – removal of links to revenge pornography
could be more in line with what victims want rather than prosecution/civil
claims – L. Edwards, Why the Right to Be Forgotten is the right remedy, 2014,
The Guardian
• However, the ease of “communication” made possible by new technologies
could limit the effectiveness of this approach. There are also accountability
concerns regarding intermediaries.
• Distress Claims under Section 168 of the Data Protection Act
2018/GDPR – no requirement to show patrimonial loss, distress is
sufficient (Google v Vidal-Hall [2015] EWCA Civ 311) (Floodgates
Argument/Vexatious Claims?)
17Case Studies (Data Protection)
• Anthony Wooley & Deborah Wooley v Nahid Akbar or Akram
[2017] SC EDIN 7
• Case Facts
• Two neighbours resided in semi-detached adjacent properties and the
relationship between them broke down.
• Both installed CCTV/audio surveillance equipment, but the defender’s
covered both their own and the pursuer’s property.
• After several attempts by the pursuer to put limitations on the
surveillance, proceedings were raised by the pursuer seeking
compensation under Section 13 of the Data Protection Act 1998
18Case Studies (Data Protection)
(Continued)
• The Law
• Following Google v Vidal-Hall [2015] EWCA Civ 311, damages were
awarded for distress alone in circumstances where there was no factual
averments or evidence led of pecuniary loss.
• The sum awarded was calculated on the basis of a notional figure of
£10.00 per day for each pursuer, multiplied by the number of days
which processing had taken place (with a subtraction of one month per
year to account for time when the pursuer would not have been present
in their property) from the date the surveillance equipment was
installed until the date proceedings were raised.
• Furthermore the basis of this calculation was deemed to be “logical”.
19Case Studies (Data Protection)
(Continued)
• Criticism
• Generally it would seem that this is a legally sound remedy in
instances where personal data has been misused/misappropriated. It
achieves the result of both recognising the wrongfulness of the misuse
of data, and compensating the victim for their distress.
• There is an argument that the interpretation of the Data Protection
Act 1998 as allowing claims for distress alone would open the
floodgates for distress claims in the courts.
• However there is little evidence that this has happened, and in any case
(i) legal fees; (ii) unwillingness to claim/go to court; and (iii) the
burden/standard of proof would likely safeguard against any real risks
of the courts being flooded with distress claims.
20The Scottish Legal System: A Brief
History
• A Hybrid Legal System - containing features of both civilian law and
common law. The following are some key milestones in the development of
Scots Law.
• Regiam Majestatem – 14th Century – an amalgamation of Glanvill’s English
Law Treatise with elements of civil law, feudal law, canon law, customary law,
and native Scots Law Statutes.
• Roman Law – 15th Century - influenced the development of Scots Law, with
the civilian ius commune being applied in the courts/endorsed by the
institutional writers.
• Acts of Union – 18th Century – Scotland and England share a legislature
despite historical/structural differences in each of the legal systems.
• Treaties of the European Union – 20th Century – Supremacy of EU Law.
• Scotland Act 1998 – 20th Century – Devolution (Scottish Parliament).
• European Convention on Human Rights – 20th Century – Rights-based
Jurisprudence.
21One Step Back, Two Steps Forward:
What have the Romans ever done for
us?
• The Roman Jurist Gaius identified four core delicts (G. 3.182-225) in
his works, which were referred to by Justinian as the “main delicts” (J
4.1-4). These were as follows:
• Furtum – unlawful interference with the property of another.
• Rapina – furtum coupled with violence.
• Damnum Iniuria Datum – loss wrongfully caused (to property).
• Iniuria – personal affront caused by intentional contumelious action.
• (See J. Sampson, The Historical Foundations of Grotius’ Analysis of
Delict for further reading)
22One Step Back, Two Steps Forward: The
Delict of Iniuria in Roman Law
• (See K. Norrie – “The actio iniuriarum in Scots Law: Romantic Romanism
or Tool for Today? in Iniuria and the Common Law, 2013, Bloomsbury”)
• Roman Law
• The principles of the delict of iniuria were as follows:
• The protected interest was “dignitas” or honour.
• The loss suffered was a contumelious “affront”.
• Scots Law
• “Injury, according to Stair, Bankton, Erskine, and other writers on the Law
of Scotland, who in that respect adopt the language of the civil law, “is an
offence maliciously committed to the reproach and grievance of another,
whereby his fame, dignity, or reputation is hurt”” – Newton v Fleming (1846)
8 D. 677 per Lord Murray at Page 694.
23One Step Back, Two Steps Forward:
Characteristics of the actio iniuriarum (I)
• The first defining characteristic of the actio iniuriarum is that
damages under it arise from emotional disturbance rather than
physical injury or corporeal loss.
• The remedy is solatium which serves the two-fold purpose of
providing monetary redress as solace for the victim of the affront and
an acknowledgement of the wrongfulness thereof.
• (See J. Blackie; Defamation, in A History of Private Law in Scotland:
Volume 2, 2000, Oxford University Press)
• Example:
• Ewing v Earl of Mar (1851) 14D 314 – a person being affronted by
someone riding a horse at them.
• Stuart Campbell v Kezia Dugdale [2020] CSIH 27 – a person being
affronted by being written about in a newspaper article in a manner
which contained an innuendo that he was homophobic.
24One Step Back, Two Steps Forward:
Characteristics of the actio iniuriarum (II)
• The second defining characteristic of the actio iniuriarum (at least
insofar as it has been subsumed into Scots Law) is that it concerns an
intentional act which is carried out by someone when there is no
lawful authority or justification for doing so.
• The corollary of this is that liability arises irrespective and
regardless of whether the harmful result of the act was intended.
• Example:
• Stevens v Yorkhill NHS Trust & Others [2006] CSOH 143 – the
parent of a deceased child being affronted at disclosure of the fact
that the child’s organs had been removed and retained post-mortem.
25One Step Back, Two Steps Forward:
Characteristics of the actio iniuriarum (III)
• The third defining characteristic of the actio iniuriarum is that it is
predicated on a structural distinction between real injuries and
verbal injuries which both fell within the remit of the delict of iniuria
under Roman Law.
• The distinction however is not in the losses suffered (i.e. affront is
the common loss to both forms of injury) but rather the means by
which the loss has been caused (i.e. physical acts or verbal acts).
• A Distinction without a Difference in Modern Scots Law?
• Traditionally a jurisdictional difference existed between:
• The Commissary Court – Verbal Injuries (Defamation etc); and
• The Justiciary Court – Physical Acts (Assault etc)
26One Step Back, Two Steps Forward:
The actio iniuriarum: Forgotten But Not
Gone?
• There are various reasons as to why the actio iniuriarum has, and is continuing
to become somewhat lost to modern day legal practitioners. Three of the most
significant are as follows:
• The influx of claims in the 20th Century founded upon wrongful negligence
(damnum iniuria datum) as opposed to intentional affront (iniuria).
• A misunderstanding of the term “iniuria” due to the term “injury” being used in
the context of claims for physical loss wrongfully caused by negligence
(damnum iniuria datum), the most obvious example being personal injury claims
(In other words the expansion of damnum iniuria datum).
• The tendency to anglicise Scots Law, and example being the proposed
collapsing of common law delicts of verbal injury (i.e. convicium or
injurious/malicious falsehood) into a singular action of defamation which fails
to consider the distinction between iniuria and damnum iniuria datum (See J.
Brown, The Defamation and Malicious Publications (Scotland) Bill: an
undignified approach to law reform? 2020 S.L.T. 21 131-136).
27One Step Back, Two Steps Forward: The actio
iniuriarum: Forgotten But Not Gone? (Continued)
• Some argue it is no more than a “high-level principle” which should not be a
driver in the development of Scots Law. (See Wainwright v Home Office [2003]
UKHL 53).
• Some argue that rights-based jurisprudence is perhaps a better driver in the
development of Scots Law (See Campbell v Mirror Group Newspapers Ltd
[2004] UKHL 22; and Elspeth Reid, Personality, Confidentiality and Privacy
in Scots Law, SULI, 2010).
• However it is difficult to deny the existence of the Actio Iniuriarum in terms of
(i) historical significance in the development of Scots Law; and (ii) that it
remains a dormant feature of Scots Law which has attracted both judicial and
academic attention in recent years (See K. Norrie, Supra; and Stevens v Yorkhill
NHS Trust & Others [2006] CSOH 143)
• The real questions which should be asked are (i) whether it should be utilised
as a legal driver in further developing Scots Law?; and (ii) if so, how it could be
utilised in doing so?
28Revenge Pornography: The actio iniuriarum
• Advantages:
• An approach based on the actio iniuriarum:
• (i) avoids the structural limitations of equitable doctrines (i.e. breach of
confidence); or torts (i.e. misuse of private information) in terms of both
pleading and what evidence is required to be led;
• (ii) avoids the practical difficulties/inconveniences of pleading cases
based on multiple alternatives in attempting to find a means of legal
recourse; and
• (iii) together with other means of regulation (i.e. the right to be
forgotten; criminal action; take-down requests) it also provides solace
to victims while recognising the wrongfulness of the affront (thereby
contributing to addressing the social problem of the unlawful
dissemination of revenge pornography).
29Personality/Image Rights: The actio iniuriarum
• Advantages:
• An approach based on the actio iniuriarum:
• (i) acknowledges the distinction between commercial (patrimonial)
and non-commercial (emotional/moral) interests in image/personality.
• (ii) overcomes the structural limitations of the tort of (i.e. passing off)
in terms of what is required to be pled, and what evidence is required
to be led in order to obtain a remedy in the courts; and
• (iii) avoids the preclusion of a legal remedy where claims based on
other actionable wrongs are unavailable as a means of obtaining legal
recourse (i.e. IP Infringement/Breach of Contract).
30Data Protection: The actio iniuriarum
• Has the GDPR implicitly created a “hybrid” remedy utilising both “iniuria”
and “damnum iniuria datum”?
• Article 82(1) GDPR – “Any person who has suffered material or non-material
damage as a result of an infringement of this Regulation shall have the right to
receive compensation from the controller or processor for the damage suffered”
• “Personal Data” (dignitas or economic value?)
• “Infringement” (intentional contumelious affront (iniuria) or negligent act
(damnum iniuria datum)?)
• “Data Protection Principles” (lawful authority/legal justification or duties of
care?)
• Advantages:
• Codified in manner which separates legal recourse based on iniuria from legal
recourse based on damnum iniuria datum. Both grounds of action are available
but not mutually exclusive.
31Criticisms of the actio iniuriarum as a means of addressing
contemporary issues in the regulation of Revenge Pornography,
Personality Rights and Data Protection?
• What constitutes “lawful authority” or “legal justification” may change over
time based on social/political circumstances. This gives rise to
uncertainty/unpredictability in applying the theory of the actio iniuriarum in
it’s purest form to contemporary issues.
• Rights-based jurisprudence achieves a similar result in determining whether an
act is carried out with “lawful authority” or “legal justification” (i.e. Article 8
ECHR v Article 10 ECHR in cases such as Campbell v Mirror Group Newspapers
Ltd [2004] UKHL 22).
• “Dignitas” is perhaps too broad a concept to be recognised as attracting
universal legal protection in a modern society (i.e. Floodgates
Argument/Vexatious Claims).
• Is it even possible to have a universally recognised concept of what “dignitas” is
when honour/feelings are inherently subjective? Or would this require to be
defined by either (i) case law; or (ii) legislation?
• Practical difficulties in baldly pleading an actio iniuriarum.
32Old Laws, New Tricks?:
Towards More Effective “Hybrid” Regulation
(I)
• Codified affront based delicts based on “iniuria” to protect prescribed
forms of “dignitas”?
• Codified delictual remedies based on/or structurally in line with the actio
iniuriarum rather than stretching existing torts/delicts to their breaking point
(i.e. Article 82(1) GDPR).
• Clarification of Requirements of Pleading (Relevance & Specification);
Evidence; Presumptions.
• Explicit distinctions between “iniuria” and “damnum iniuria datum” in
codified delicts where both grounds of action exist?
• Where concurrent/simultaneous claims can arise under “iniuria” and “damnum
iniuria datum”, remedies should not be foreclosed through taking a “copycat”
approach to legislative reform.
• (See J. Brown, The Defamation and Malicious Publications (Scotland) Bill: an
undignified approach to law reform? 2020 S.L.T. 21 131-136).
33Old Laws, New Tricks?:
Towards More Effective “Hybrid” Regulation
(II)
• Tools for assessing “lawful authority” and “legal justification”
• Where “lawful authority” or “legal justification” cannot be clearly defined in
codified form (i.e. where there are competing interests), rights-based
jurisprudence can be used to determine this on a case to case basis (i.e. ECHR
Rights (as per Campbell v Mirror Group News Ltd [2004] UKHL 22); and the
precedent of the ECtHR).
• Over time this would contribute to a line of precedent regarding the balancing
of competing interests within the confines of specific recognised affronts (i.e.
dissemination of revenge pornography), avoiding the risk of misapplying
policy considerations applicable to one sub-category of iniura to another
(Norrie, Supra).
• Mechanism for quantifying loss
• Is the basis identified in Anthony Wooley & Deborah Wooley v Nahid Akbar or
Akram [2017] SC EDIN 7 sufficient (i.e. notional sum multiplied by period of
affront subject to a discount for time when not affronted)? Or is a fixed tariff
based system perhaps more suitable?
34Old Laws, New Tricks?:
Towards More Effective “Hybrid” Regulation
(III)
• Appreciation of the bigger picture
• Recognition that Law is not the only form of Regulation.
• Architecture, Norms, Markets, and pertinently the subject of a regulatory
intervention can also play a part in the efficiency and effectiveness of
regulation in a given area.
• Technological measures (code/architecture) may have a role to play (i.e.
notice/takedown measures on websites; the right to be forgotten).
• Deterrence through social-conditioning (i.e. the true nature of Solatium as both
recognising the wrongfulness of conduct and providing solace in delicts
derived from iniuria).
• (See L. Lessig, Code and Other Laws of Cyberspace, 1999, Basic Books; A.
Murray, Symbiotic Regulation, 26 J. Marshall J. Computer & Info. L. 207,
(2008)).
35Old Laws, New Tricks What lessons can be learned from traditional and established principles of Scots Law in addressing contemporary issues in the regulation of Revenge Pornography, Personality Rights, and Data Protection? By Chris Miller, Advocate LL.B (Hons); LL.M; PG Dip chris.miller@advocates.org.uk www.themis-advocates.co.uk/
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