Rights of Personality in Scots Law: Issues and Options
Rights of Personality in Scots Law, A Comparative Perspective, pp. 1 - 29, Niall R. Whitty, Reinhard Zimmermann, eds., Dundee University Press, 2009
Posted: 17 Sep 2010 Last revised: 21 Aug 2012
Date Written: 2009
This is the introductory chapter to a book that aims to consider how best to develop a right of privacy and other rights of personality in Scots private law.
Though personality rights - such as rights to bodily integrity, reputation and dignity - have been well established since Roman law, the expression “rights of personality” is relatively modern and has only recently begun to be used in writing on Scots private law. The incorporation of the European Convention on Human Rights (ECHR) into United Kingdom domestic law in 2000 has created an urgent need to fill the gaps in the protection of Convention rights left by shortcomings in Scots private law. At present the most important and well-known gap is the right to privacy conferred by ECHR, Art 8. There are issues as to whether this gap-filling is best achieved by developing a systematic and comprehensive doctrine of personality rights; or by recognising new delictual causes of action (such as breach of privacy); or by relying on the historic action of real and verbal injury (actio iniuriarum); or by some other approach. At stake is the capacity of Scots law, as an autonomous mixed system of private law, to renew itself in order to be able to respond adequately to the new challenges presented by the 21st century; and it is hoped that an extended look into the mirror of comparative law will assist in the development of this branch of Scots private law.
Keywords: actio iniuriarum, breach of confidence, defamation, European Convention on Human Rights, Human Rights Act, Iniuria, ius commune, passing off, personality rights, privacy, right of personality, right of publicity, right to privacy, Scots private law
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