18th Congress of Comparative Law: Georgetown day
Yesterday I attended three meetings and the Georgetown reception. I was able to observe both a lively panel as well the more businesslike meetings in which more of the national reporters issue their reports in one of the comparative law areas. I have to apologize in advance that I needed to stay with areas in which I write guides. Even so, it was not possible to stay for all of two concurrent meetings.
In the morning I attended an interesting special session on Protection of Privacy Against the Media with a focus on privacy in Europe but including strong and valuable contrasts with United States law and policy. Chaired by Georgetown Law's Franz Werro, the meeting began with a superb and amazingly complete "nutshell" on privacy law history in Europe, given by Prof. Gert Bruggemeier, University of Bremen, Germany (once again, diacritical marks are a challenge in this program). He divided his remarks into coverage of two time periods: before 1950 and after 1950, and he distilled the comparison further by speaking only of France and Germany.
Before 1950, in France, under delict in code civil art. 1383, there was an action for infringement of personal honor by the media. In 1881 the Press Act was in force and required that infringement be intentional. But while there were both criminal and civil penalties possible, the statute of limitations was very short: three months. In Germany, there was an action of injury which included moral damages for injury to honor and dignity,but the 1871 unification abolished this. Honor per se was deleted from the BGB leaving only damage to business reputation.
After 1950, in France there was a time of "harmonization by constitutionalization," that is, in public law a flourishing of case law; art. 9 of the code civil introduced this harm to honor and the cour de cassassion developed the liability. In Germany, delict was realigned in the 1950's with fundamental rights and there was incorporation by the courts of a general personality right with monetary compensation possible. Interesting to note, he pointed out, that this was by case law and not by statute. In general in civil law countries, there are these personality rights of dignity, privacy, and right to control of one's image as well as rights to autonomy, data protection and privacy. The indirect horizontal effect of fundamental rights is acknowledged, but it is a complex balance of oppposing constitutional values that establishes a violation. In the U.S., it was noted, there is by contrast a strong presumption of constitutional rights on behalf of the media, evidenced by our free speech principles.
In the next post, I will present the other speakers and their topics related to Google, data protection and terrorism, and the lively discussion.
In the morning I attended an interesting special session on Protection of Privacy Against the Media with a focus on privacy in Europe but including strong and valuable contrasts with United States law and policy. Chaired by Georgetown Law's Franz Werro, the meeting began with a superb and amazingly complete "nutshell" on privacy law history in Europe, given by Prof. Gert Bruggemeier, University of Bremen, Germany (once again, diacritical marks are a challenge in this program). He divided his remarks into coverage of two time periods: before 1950 and after 1950, and he distilled the comparison further by speaking only of France and Germany.
Before 1950, in France, under delict in code civil art. 1383, there was an action for infringement of personal honor by the media. In 1881 the Press Act was in force and required that infringement be intentional. But while there were both criminal and civil penalties possible, the statute of limitations was very short: three months. In Germany, there was an action of injury which included moral damages for injury to honor and dignity,but the 1871 unification abolished this. Honor per se was deleted from the BGB leaving only damage to business reputation.
After 1950, in France there was a time of "harmonization by constitutionalization," that is, in public law a flourishing of case law; art. 9 of the code civil introduced this harm to honor and the cour de cassassion developed the liability. In Germany, delict was realigned in the 1950's with fundamental rights and there was incorporation by the courts of a general personality right with monetary compensation possible. Interesting to note, he pointed out, that this was by case law and not by statute. In general in civil law countries, there are these personality rights of dignity, privacy, and right to control of one's image as well as rights to autonomy, data protection and privacy. The indirect horizontal effect of fundamental rights is acknowledged, but it is a complex balance of oppposing constitutional values that establishes a violation. In the U.S., it was noted, there is by contrast a strong presumption of constitutional rights on behalf of the media, evidenced by our free speech principles.
In the next post, I will present the other speakers and their topics related to Google, data protection and terrorism, and the lively discussion.
posted by Marylin Johnson Raisch at 1:36 PM
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