This document discusses the development of personality rights and breach of confidence in the United Kingdom. It defines personality rights as protecting an individual's name, image, and likeness from commercial exploitation without permission. Breach of confidence refers to the unauthorized disclosure of private information. The document traces how personality rights emerged in European law and discusses recent UK cases where celebrities' claims over the use of their image or private information were rejected due to the lack of clear personality rights laws. It argues that UK law does not consistently protect celebrities and that a clear tort is needed to address personality rights and privacy issues.
1) Electronic contracts are standard form contracts with non-negotiable terms formulated by one party like a manufacturer or service provider. The Information Technology Act, 2000 recognizes the validity of e-contracts.
2) E-contracts can be formed via email exchanges or through websites using clickwrap, browsewrap, or shrinkwrap agreements. However, e-contracts raise issues around jurisdiction, capacity to contract, consent, and meeting of minds.
3) The Information Technology Act and Indian Evidence Act provide for the validity and evidentiary value of e-contracts in India if they meet requirements for identification of parties, subject matter, signatures. However, the laws do not address all aspects of online contracts.
The document discusses fundamental rights under the Indian Constitution. It begins by noting that fundamental rights are the basic values cherished by citizens and limitations on government power, available against the state. It then lists the objectives of establishing fundamental rights like rule of law and protection of minorities. Next, it outlines the specific fundamental rights guaranteed by the Constitution under categories like right to equality, freedom of religion, and right to constitutional remedies. It defines "state" broadly as government authorities at all levels. Finally, it discusses two court cases that interpreted "other authorities" in the definition of state to include statutory bodies exercising public functions or rule-making powers.
An offer is made when one party indicates a willingness to be bound if the other party accepts. An offer is different from an invitation to treat, which merely invites further negotiations. Displays of goods and advertisements are usually invitations to treat rather than offers, allowing either party to back out. However, an advertisement can be an offer if the wording and context show a clear intent to be bound if accepted. An offer can generally be withdrawn at any time before acceptance.
This document provides a summary of several case law examples relevant to NEBOSH health and safety qualifications. It includes summaries of landmark cases that helped define concepts like "absolute duty", "reasonably practicable", and employers' liability for equipment. Examples cover topics such as duty of care to trespassers and vulnerable employees, liability for rescue attempts, and retrospective liability for environmental contamination. The document is intended as a study guide for NEBOSH exam preparation.
This chapter discusses the concept of age discrimination and the status of age as a protected characteristic. While age discrimination was included in EU legislation through Directive 2000/78, Article 6(1) allows member states to justify direct age discrimination if it is objectively and reasonably justified. This reflects the contested nature of age discrimination and view that it is less serious than other forms of discrimination. Additionally, age is seen as a temporary characteristic that affects everyone rather than a discrete group, and discrimination is sometimes viewed as rational. As a result, age has a lower status among protected characteristics and the Directive took a minimal approach, prioritizing economic objectives over anti-discrimination goals. This has led to a perception that age equality is mainly a labor
Decree and Order: The Code of Civil Procedure, 1908 for Bar council & Judicia...Mahamud Wazed (Wazii)
The document discusses the definitions and types of decrees and orders according to the Code of Civil Procedure, 1908. It defines a decree as the formal expression of an adjudication by a court determining the rights of parties regarding matters in controversy in a suit. A decree must be conclusive in nature. There are two types of decrees: preliminary and final. An order is defined as a formal expression of a court's decision that is not a decree. Key differences between decrees and orders are that decrees determine rights conclusively, there can only be one decree per suit, and all decrees are appealable unless expressly barred.
This lecture is a part of the lecture series intended to help advocates from Tamil Nadu write the All India Bar Exam. This lecture is on that part of the Evidence Act, 1872 which deals with relevancy of admissions and confessions (Sections 17-31). The video of the lecture is at: https://youtu.be/_Pe23A0LMKA. The audio of this lecture can be downloaded from this SounCloud link: https://goo.gl/Kh8ZW8. Hasta la vista amigos!
1) Electronic contracts are standard form contracts with non-negotiable terms formulated by one party like a manufacturer or service provider. The Information Technology Act, 2000 recognizes the validity of e-contracts.
2) E-contracts can be formed via email exchanges or through websites using clickwrap, browsewrap, or shrinkwrap agreements. However, e-contracts raise issues around jurisdiction, capacity to contract, consent, and meeting of minds.
3) The Information Technology Act and Indian Evidence Act provide for the validity and evidentiary value of e-contracts in India if they meet requirements for identification of parties, subject matter, signatures. However, the laws do not address all aspects of online contracts.
The document discusses fundamental rights under the Indian Constitution. It begins by noting that fundamental rights are the basic values cherished by citizens and limitations on government power, available against the state. It then lists the objectives of establishing fundamental rights like rule of law and protection of minorities. Next, it outlines the specific fundamental rights guaranteed by the Constitution under categories like right to equality, freedom of religion, and right to constitutional remedies. It defines "state" broadly as government authorities at all levels. Finally, it discusses two court cases that interpreted "other authorities" in the definition of state to include statutory bodies exercising public functions or rule-making powers.
An offer is made when one party indicates a willingness to be bound if the other party accepts. An offer is different from an invitation to treat, which merely invites further negotiations. Displays of goods and advertisements are usually invitations to treat rather than offers, allowing either party to back out. However, an advertisement can be an offer if the wording and context show a clear intent to be bound if accepted. An offer can generally be withdrawn at any time before acceptance.
This document provides a summary of several case law examples relevant to NEBOSH health and safety qualifications. It includes summaries of landmark cases that helped define concepts like "absolute duty", "reasonably practicable", and employers' liability for equipment. Examples cover topics such as duty of care to trespassers and vulnerable employees, liability for rescue attempts, and retrospective liability for environmental contamination. The document is intended as a study guide for NEBOSH exam preparation.
This chapter discusses the concept of age discrimination and the status of age as a protected characteristic. While age discrimination was included in EU legislation through Directive 2000/78, Article 6(1) allows member states to justify direct age discrimination if it is objectively and reasonably justified. This reflects the contested nature of age discrimination and view that it is less serious than other forms of discrimination. Additionally, age is seen as a temporary characteristic that affects everyone rather than a discrete group, and discrimination is sometimes viewed as rational. As a result, age has a lower status among protected characteristics and the Directive took a minimal approach, prioritizing economic objectives over anti-discrimination goals. This has led to a perception that age equality is mainly a labor
Decree and Order: The Code of Civil Procedure, 1908 for Bar council & Judicia...Mahamud Wazed (Wazii)
The document discusses the definitions and types of decrees and orders according to the Code of Civil Procedure, 1908. It defines a decree as the formal expression of an adjudication by a court determining the rights of parties regarding matters in controversy in a suit. A decree must be conclusive in nature. There are two types of decrees: preliminary and final. An order is defined as a formal expression of a court's decision that is not a decree. Key differences between decrees and orders are that decrees determine rights conclusively, there can only be one decree per suit, and all decrees are appealable unless expressly barred.
This lecture is a part of the lecture series intended to help advocates from Tamil Nadu write the All India Bar Exam. This lecture is on that part of the Evidence Act, 1872 which deals with relevancy of admissions and confessions (Sections 17-31). The video of the lecture is at: https://youtu.be/_Pe23A0LMKA. The audio of this lecture can be downloaded from this SounCloud link: https://goo.gl/Kh8ZW8. Hasta la vista amigos!
1) Mrs. Carlill saw an advertisement from Carbolic Smoke Ball Company offering £100 to anyone who got sick with influenza after using its product as directed.
2) Mrs. Carlill purchased and used the product until she contracted influenza, then claimed the £100 as offered. The company refused to pay.
3) The Court of Appeal ruled that the advertisement constituted a binding unilateral contract, with Mrs. Carlill's purchase and use of the product representing acceptance of the offer and consideration for the promise of £100. This established that advertisements can represent offers capable of being accepted.
This document discusses the concept of consideration in contracts. It defines consideration as something of legal value that is bargained for and given in exchange for an act or promise. Consideration must flow from both parties to a contract and can take several forms, like a promise to do or not do something. The document outlines several rules for consideration, like that it must move at the desire of the promisor. It also discusses exceptions to the rule that without consideration there is no contract, like natural love and affection in some cases. Privity of contract, or strangers to a contract, are also addressed, along with exceptions where a third party can sue.
Section 13 of the Transfer of Property Act deals with transfers of property for the benefit of unborn persons. It states that for a transfer creating an interest in a person not in existence at the time of transfer, subject to a prior interest, the interest created for the unborn person will not take effect unless it extends to the whole of the remaining interest of the transferor in the property. The section provides an exception to the general scope of the Act, which deals only with inter vivos transfers, by allowing indirect transfers to unborn persons through the mechanism of first creating a prior interest for someone living.
Williams Electronics Inc. v. Arctic International Inc. Mohammed Haroon
66 A.L.R.Fed. 476, 215 U.S.P.Q. 405,1982 Copr.L.Dec. P 25,432, US Court of Appeals, Video Games (DEFENDER), Copyright, Unfair Competition, The Idea/Expression Dichotomy, original work of authorship, Whether the audiovisual aspects of a video game were sufficiently "fixed" to receive copyright protection under the 1976 Copyright Act ?, ROM an is not an fixed medium, Computer Games, Midway Manufacturing Co. v. Arctic International Inc. (547 F.Supp. 999 (1982),
This document provides an introduction to referencing and the OSCOLA referencing style. It discusses why referencing is important, including to acknowledge the work of others and avoid plagiarism. The document outlines what plagiarism is and how to avoid it through practices like taking effective notes and paraphrasing sources properly. It then explains key aspects of the OSCOLA style such as using footnotes and reference lists and provides examples of citing different source types like cases, legislation, books, and journal articles. Further help resources on referencing are also mentioned.
The document is a notice of intention to sue from a legal officer. It notifies the recipient that they have 14 days to address claims made by the legal officer's client or a case will be filed against them in court. It involves a dispute over [facts redacted] that have aggrieved the client. Justice Centres Uganda, a government legal aid project, is providing representation.
Principles of Trust: Beneficiaries and TrusteesPreeti Sikder
Learning outcome:
Students will
- learn about the reason why trustees take up trusts
- be informed about rights of beneficiaries
- be informed about the nature of duties that trustees carry out
1. The document discusses the legal concept of bailment, where a person (the bailor) delivers goods to another person (the bailee) for a specific purpose.
2. It provides details on various bailment cases, including lost baggage by an airline, goods lost by a dry cleaner, and goods damaged while being repaired.
3. The key principles are that the bailee is responsible for returning the bailed goods or compensating for any loss or damage, unless there is a special contract stating otherwise or the bailee exercised the level of care a reasonable person would for their own goods.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
Tata Press Limited vs Mahanagar Telephone-Nigam.pptxHarsh Kumar
This appeal has arisen from a civil suit instituted before the Bombay by the Mahanagar Telephone Nigam Limited (the Nigam) and the Union of India for a declaration that they alone have the right to print/publish the list of telephone subscribers and that the same cannot be printed or published by any other person without express permission of the Nigam/Union of India. A further declaration was sought that the Tata Press Limited (Tatas) have no right whatsoever to print, publish and circulate the compilation called "Tata Press Yellow Pages" (Tata- pages). A permanent injunction restraining the Tatas, their agents and servants from printing and/or publishing and/or circulating the "Tata - Pages" being violative of the Indian Telegraph Act, 1885 (the Act) and the Indian Telegraph Rules, 1951 (the rules) - was also sought from the Court. The City Civil Court, Bombay by its judgment dated August 7, 1993 dismissed the suit. First appeal filed by the Nigam and the Union of India was heard by a learned single judge of the Bombay High Court and the learned judge by the judgment dated April 27, 1994 allowed the appeal, set aside the judgment of the trial court and decreed the suit. Letters Patent Appeal filed by the Tatas was dismissed by a Division Bench of the Bombay High Court by the impugned judgment dated September 8, 1994. This appeal, by way of special leave, is against the judgment of the Division Bench of the High Court upholding the learned single judge.
"Tata Press yellow pages" comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press yellow pages" any entries similar to those which are printed in the 'white Pages' of the "telephone directory" published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the telephone number, the initials, the surname and the address of the businessmen, trader or professional concerned.
This document provides an overview of key concepts related to the analysis of evidence in civil and criminal cases under Indian law. It discusses topics such as the definition of evidence, relevance of evidence, admissibility of evidence, direct and indirect evidence, oral and documentary evidence, presumptions related to documents, and basic principles for appreciating evidence in criminal cases. The document is an educational resource that examines important evidentiary rules and guidelines for evaluating different types of evidence in legal proceedings.
The document discusses perspectives on live-in relationships from India and other countries around the world. In India, live-in relationships are recognized and protected under domestic violence laws, though children are not entitled to inheritance rights. Other countries like Scotland, France, Canada and Australia also recognize cohabitating couples legally to various degrees, providing rights around property, taxation, child custody and maintenance. Laws governing live-in relationships continue to evolve internationally as social acceptance of such unions grows.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document summarizes equitable remedies available under equity law, including injunctions and specific performance. It discusses the circumstances in which these remedies may be granted or refused by courts. Equitable remedies are designed to supplement common law remedies and are granted at the court's discretion to redress wrongs. Specific performance allows a court to order a party to carry out contractual obligations, while injunctions can be prohibitory (to refrain from an act) or mandatory (to perform an act). Courts will consider factors like adequacy of damages, claimant's conduct, readiness to perform contractual obligations, and delay or acquiescence when deciding whether to grant equitable remedies.
This document provides a summary of a lecture on fatal offences, including murder and manslaughter. It recaps the elements of a crime as actus reus (guilty act) and mens rea (guilty mind). It then defines fatal offences as those involving killing the victim, specifically murder and manslaughter. Murder requires an unlawful killing with malice aforethought, defined as intention to kill or cause grievous bodily harm. Manslaughter is unlawful killing without malice aforethought. Voluntary manslaughter is a partial defense to murder where there is provocation or diminished responsibility. Involuntary manslaughter involves death caused without intent.
The plaintiff sought details of insurance policies from the defendant Life Insurance Corporation. After obtaining details, the plaintiff proposed framework outlines for the policies, but the defendant rejected them for not meeting statutory requirements and laid down its own guidelines. The plaintiff filed a writ petition alleging the defendant's actions were arbitrary and opposed to public policy. The High Court partially struck down the guidelines. On appeal, the Supreme Court held that when the state interacts with the public, its actions must satisfy the test of reasonableness under the Constitution. As the defendant's policy terms were unconscionable and opposed to public policy, they were constitutionally void and liable to be set aside.
This case review summarizes the Supreme Court case B.R. Kapur v. State of Tamil Nadu regarding the appointment of J. Jayalalitha as Chief Minister of Tamil Nadu. The key issues were: 1) Whether a disqualified person can be appointed CM, 2) Whether a CM's appointment is judicially reviewable, and 3) Whether the invalidation of the appointment nullifies other acts. The Court held that a disqualified person cannot be CM, the Governor's appointment is reviewable but not the Governor, and other acts would remain valid to avoid administrative chaos. The Court affirmed that the Constitution prevails over popular mandate.
Section 34 of the Arbitrationand Conciliation Act. Scope of interference. Po...Legal
Scope of Interference under Section 34 of the Arbitration and Conciliation Act. Under which circumstances Court can interfere with an award passed by the arbitral tribunal.
has undergone extensive developments over the years.pdfbkbk37
- Privacy law in the UK has developed extensively over the years to protect individuals' confidential information and data.
- While early common law did not recognize a right to privacy, the tort of breach of confidence emerged to protect confidential information, and gradually related this duty to individuals' privacy rights.
- Through important court cases like Douglas v Hello! Ltd., the courts have expanded individuals' privacy rights under common law and linked them to the duty of confidence.
The document discusses the development of privacy law and the tort of invasion of privacy under English common law. It outlines how:
1) English courts initially did not recognize a common law right to privacy, as seen in cases like Kaye v Robertson, but the law has since developed to protect privacy.
2) The tort of breach of confidence emerged to protect private information, and courts began relating it to an individual's right to privacy.
3) Landmark cases like Douglas v Hello! Ltd expanded the doctrine of confidentiality and recognized individuals' privacy rights over unauthorized photographs.
4) English privacy tort law has been guided by both domestic precedents and the European Convention on Human Rights, balancing privacy rights
1) Mrs. Carlill saw an advertisement from Carbolic Smoke Ball Company offering £100 to anyone who got sick with influenza after using its product as directed.
2) Mrs. Carlill purchased and used the product until she contracted influenza, then claimed the £100 as offered. The company refused to pay.
3) The Court of Appeal ruled that the advertisement constituted a binding unilateral contract, with Mrs. Carlill's purchase and use of the product representing acceptance of the offer and consideration for the promise of £100. This established that advertisements can represent offers capable of being accepted.
This document discusses the concept of consideration in contracts. It defines consideration as something of legal value that is bargained for and given in exchange for an act or promise. Consideration must flow from both parties to a contract and can take several forms, like a promise to do or not do something. The document outlines several rules for consideration, like that it must move at the desire of the promisor. It also discusses exceptions to the rule that without consideration there is no contract, like natural love and affection in some cases. Privity of contract, or strangers to a contract, are also addressed, along with exceptions where a third party can sue.
Section 13 of the Transfer of Property Act deals with transfers of property for the benefit of unborn persons. It states that for a transfer creating an interest in a person not in existence at the time of transfer, subject to a prior interest, the interest created for the unborn person will not take effect unless it extends to the whole of the remaining interest of the transferor in the property. The section provides an exception to the general scope of the Act, which deals only with inter vivos transfers, by allowing indirect transfers to unborn persons through the mechanism of first creating a prior interest for someone living.
Williams Electronics Inc. v. Arctic International Inc. Mohammed Haroon
66 A.L.R.Fed. 476, 215 U.S.P.Q. 405,1982 Copr.L.Dec. P 25,432, US Court of Appeals, Video Games (DEFENDER), Copyright, Unfair Competition, The Idea/Expression Dichotomy, original work of authorship, Whether the audiovisual aspects of a video game were sufficiently "fixed" to receive copyright protection under the 1976 Copyright Act ?, ROM an is not an fixed medium, Computer Games, Midway Manufacturing Co. v. Arctic International Inc. (547 F.Supp. 999 (1982),
This document provides an introduction to referencing and the OSCOLA referencing style. It discusses why referencing is important, including to acknowledge the work of others and avoid plagiarism. The document outlines what plagiarism is and how to avoid it through practices like taking effective notes and paraphrasing sources properly. It then explains key aspects of the OSCOLA style such as using footnotes and reference lists and provides examples of citing different source types like cases, legislation, books, and journal articles. Further help resources on referencing are also mentioned.
The document is a notice of intention to sue from a legal officer. It notifies the recipient that they have 14 days to address claims made by the legal officer's client or a case will be filed against them in court. It involves a dispute over [facts redacted] that have aggrieved the client. Justice Centres Uganda, a government legal aid project, is providing representation.
Principles of Trust: Beneficiaries and TrusteesPreeti Sikder
Learning outcome:
Students will
- learn about the reason why trustees take up trusts
- be informed about rights of beneficiaries
- be informed about the nature of duties that trustees carry out
1. The document discusses the legal concept of bailment, where a person (the bailor) delivers goods to another person (the bailee) for a specific purpose.
2. It provides details on various bailment cases, including lost baggage by an airline, goods lost by a dry cleaner, and goods damaged while being repaired.
3. The key principles are that the bailee is responsible for returning the bailed goods or compensating for any loss or damage, unless there is a special contract stating otherwise or the bailee exercised the level of care a reasonable person would for their own goods.
The document discusses various types of jurisdiction of courts in Pakistan. It explains that civil courts have the jurisdiction to try all civil suits unless expressly barred. It classifies jurisdiction into four types - subject matter jurisdiction, pecuniary jurisdiction, territorial jurisdiction, and personal jurisdiction. It provides details on each type of jurisdiction and the rules regulating them. The document also discusses various absolute bars, conditional bars, and special bars upon the jurisdiction of civil courts in Pakistan.
Tata Press Limited vs Mahanagar Telephone-Nigam.pptxHarsh Kumar
This appeal has arisen from a civil suit instituted before the Bombay by the Mahanagar Telephone Nigam Limited (the Nigam) and the Union of India for a declaration that they alone have the right to print/publish the list of telephone subscribers and that the same cannot be printed or published by any other person without express permission of the Nigam/Union of India. A further declaration was sought that the Tata Press Limited (Tatas) have no right whatsoever to print, publish and circulate the compilation called "Tata Press Yellow Pages" (Tata- pages). A permanent injunction restraining the Tatas, their agents and servants from printing and/or publishing and/or circulating the "Tata - Pages" being violative of the Indian Telegraph Act, 1885 (the Act) and the Indian Telegraph Rules, 1951 (the rules) - was also sought from the Court. The City Civil Court, Bombay by its judgment dated August 7, 1993 dismissed the suit. First appeal filed by the Nigam and the Union of India was heard by a learned single judge of the Bombay High Court and the learned judge by the judgment dated April 27, 1994 allowed the appeal, set aside the judgment of the trial court and decreed the suit. Letters Patent Appeal filed by the Tatas was dismissed by a Division Bench of the Bombay High Court by the impugned judgment dated September 8, 1994. This appeal, by way of special leave, is against the judgment of the Division Bench of the High Court upholding the learned single judge.
"Tata Press yellow pages" comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press yellow pages" any entries similar to those which are printed in the 'white Pages' of the "telephone directory" published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the telephone number, the initials, the surname and the address of the businessmen, trader or professional concerned.
This document provides an overview of key concepts related to the analysis of evidence in civil and criminal cases under Indian law. It discusses topics such as the definition of evidence, relevance of evidence, admissibility of evidence, direct and indirect evidence, oral and documentary evidence, presumptions related to documents, and basic principles for appreciating evidence in criminal cases. The document is an educational resource that examines important evidentiary rules and guidelines for evaluating different types of evidence in legal proceedings.
The document discusses perspectives on live-in relationships from India and other countries around the world. In India, live-in relationships are recognized and protected under domestic violence laws, though children are not entitled to inheritance rights. Other countries like Scotland, France, Canada and Australia also recognize cohabitating couples legally to various degrees, providing rights around property, taxation, child custody and maintenance. Laws governing live-in relationships continue to evolve internationally as social acceptance of such unions grows.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document summarizes equitable remedies available under equity law, including injunctions and specific performance. It discusses the circumstances in which these remedies may be granted or refused by courts. Equitable remedies are designed to supplement common law remedies and are granted at the court's discretion to redress wrongs. Specific performance allows a court to order a party to carry out contractual obligations, while injunctions can be prohibitory (to refrain from an act) or mandatory (to perform an act). Courts will consider factors like adequacy of damages, claimant's conduct, readiness to perform contractual obligations, and delay or acquiescence when deciding whether to grant equitable remedies.
This document provides a summary of a lecture on fatal offences, including murder and manslaughter. It recaps the elements of a crime as actus reus (guilty act) and mens rea (guilty mind). It then defines fatal offences as those involving killing the victim, specifically murder and manslaughter. Murder requires an unlawful killing with malice aforethought, defined as intention to kill or cause grievous bodily harm. Manslaughter is unlawful killing without malice aforethought. Voluntary manslaughter is a partial defense to murder where there is provocation or diminished responsibility. Involuntary manslaughter involves death caused without intent.
The plaintiff sought details of insurance policies from the defendant Life Insurance Corporation. After obtaining details, the plaintiff proposed framework outlines for the policies, but the defendant rejected them for not meeting statutory requirements and laid down its own guidelines. The plaintiff filed a writ petition alleging the defendant's actions were arbitrary and opposed to public policy. The High Court partially struck down the guidelines. On appeal, the Supreme Court held that when the state interacts with the public, its actions must satisfy the test of reasonableness under the Constitution. As the defendant's policy terms were unconscionable and opposed to public policy, they were constitutionally void and liable to be set aside.
This case review summarizes the Supreme Court case B.R. Kapur v. State of Tamil Nadu regarding the appointment of J. Jayalalitha as Chief Minister of Tamil Nadu. The key issues were: 1) Whether a disqualified person can be appointed CM, 2) Whether a CM's appointment is judicially reviewable, and 3) Whether the invalidation of the appointment nullifies other acts. The Court held that a disqualified person cannot be CM, the Governor's appointment is reviewable but not the Governor, and other acts would remain valid to avoid administrative chaos. The Court affirmed that the Constitution prevails over popular mandate.
Section 34 of the Arbitrationand Conciliation Act. Scope of interference. Po...Legal
Scope of Interference under Section 34 of the Arbitration and Conciliation Act. Under which circumstances Court can interfere with an award passed by the arbitral tribunal.
has undergone extensive developments over the years.pdfbkbk37
- Privacy law in the UK has developed extensively over the years to protect individuals' confidential information and data.
- While early common law did not recognize a right to privacy, the tort of breach of confidence emerged to protect confidential information, and gradually related this duty to individuals' privacy rights.
- Through important court cases like Douglas v Hello! Ltd., the courts have expanded individuals' privacy rights under common law and linked them to the duty of confidence.
The document discusses the development of privacy law and the tort of invasion of privacy under English common law. It outlines how:
1) English courts initially did not recognize a common law right to privacy, as seen in cases like Kaye v Robertson, but the law has since developed to protect privacy.
2) The tort of breach of confidence emerged to protect private information, and courts began relating it to an individual's right to privacy.
3) Landmark cases like Douglas v Hello! Ltd expanded the doctrine of confidentiality and recognized individuals' privacy rights over unauthorized photographs.
4) English privacy tort law has been guided by both domestic precedents and the European Convention on Human Rights, balancing privacy rights
The document discusses the tort of privacy in English law. It provides background on how privacy has been protected through the traditional tort of breach of confidence. It then summarizes the current law, which uses a two-part test to determine if there was a reasonable expectation of privacy that outweighs freedom of expression rights. Remedies for violations include injunctions to prevent publication or damages awards.
The right to be forgotten allows individuals to request that certain personal information about themselves be removed from internet search results or records. Specifically, it gives people the ability to have embarrassing, outdated, or irrelevant information deleted so that others cannot access it through search engines. The right developed in the EU through legislation and a 2014 court ruling requiring Google to comply with removal requests. However, critics argue it could infringe on freedom of speech and expression in other jurisdictions like the US.
The document provides an overview of various legal issues related to reputation management and attacks on brands, including defamation, malicious falsehood, breach of confidence, and intellectual property laws. It then discusses the tort of malicious falsehood in more detail, outlining what must be proven in a claim for malicious falsehood. It provides an example case regarding misleading product labeling.
The document discusses two approaches to privacy law: a rights-based approach and a harms-based approach. Under a rights-based approach, infringing on privacy is illegal regardless of harm, making cases easier to prove but potentially over-protective. The U.S. takes a harms-based approach, requiring plaintiffs to prove actual harm. This approach has drawbacks but considers purpose and nature of information collection. It is also more adaptable to technological changes.
Landmark Cases 1
Landmark Cases 5
Landmark Cases
Shawnette Howard
SNHU
2/13/2022
Landmark cases have been able to shape the development of freedoms in the idea that freedom of speech has continuously been put in check to ascertain whether there is a need for improvement or not. If so, they outline the steps to be lawfully followed to ensure these freedoms are not manipulated to undermine their importance within a legal bracket. Some of the landmark cases that impacted digital communication in a significant manner are New York Times v Sullivan, Reno v. ACLU, and Brandenburg v Ohio.
Reno v. ACLU
The Reno v. ACLU case involved an assessment of the Communications Decency Act of 1996. This case provided the needed criminal course of action against any individual that used the internet to transfer obscene messages, which are general messages that are indecent (Marano, 2017). This was explicitly when the transferor the message itself involved a minor (A person under 18 years). Therefore, Congress came up with an agreeable vote to pass the Communications Decency Act to curb the issue of pornography. CLU, however, argued that the act contained elements of unconstitutionality (Djavaherian, 1998). And it was based on this argument the supreme court ruled the act as a violation of the First Amendment right to speech. The idea behind this argument was that it was a content-based restriction.
The case brought changes in the communication industry. One of the major supreme court cases directly linked the past of communication, especially in the digital platform, to the future. Arguably, any court ruling may have an upside as well as a downside, especially if it involves opening the doors to freedoms but limiting some notions of morality. The case made a solid ground from which the law recognized the freedom of speech; from this case, the freedom was further given a broader scope to work on. It is also worth considering that this case ushered in the idea of self-expression without limiting oneself to what others find as right. The case allowed people to act in their capacity; this was the basic foundation of freedom of speech for future generations.
New York Times v Sullivan
The case was mainly a prominent aspect of promoting freedom of speech. The case created a platform from which newspapers could go in-depth and chase a story irrespective of where it took them. Sullivan sued the New York Times for defamation in an ad by the Newspaper. However, the Newspaper argued that they did not desire to tarnish Sullivan's identity when the ad was posted. An Alabama court awarded Mr. Sullivan $500,000 worth of damages to be paid in good time by the New York Times (Wasserman, 2012). The Newspaper, however, made an appeal in the supreme court, in which case the supreme court declared that the case would favor the Newspaper. This was because for the suit to stand, Mr. Sullivan would have to prove that the Newspaper intentionally used information that ...
This document is a memorandum from the American Civil Liberties Union of Virginia and the Thomas Jefferson Center for the Protection of Free Expression opposing a motion by Hargrave Military Academy seeking a preliminary injunction against Jerry and Melissa Guyles. The Guyles criticized Hargrave and its leadership on a website after their son was expelled. The memorandum argues that the requested injunction would be an unconstitutional prior restraint on speech that is overly broad and vague in violation of the First Amendment and federal rules. It maintains that the Guyles speech is mostly opinion and statements of undisputed fact that are protected, and an injunction of the scope Hargrave seeks would fail to distinguish protected from unprotected speech.
329093.docxby Karen WittFILET IME SUBMIT T ED 13- NO.docxlorainedeserre
This document summarizes the history and legal status of advertising in the United States. It discusses how advertising evolved from small notices to mass marketing campaigns in the late 19th/early 20th century. Concerns over truth in advertising led to self-regulation and some state laws banning false advertising. The Supreme Court initially did not grant constitutional protection to commercial advertising but began recognizing limited First Amendment rights for commercial speech in the 1970s. However, advertising still has lower constitutional status than political or other forms of speech.
This document discusses unfair competition and related intellectual property issues. It covers trade secrets, misappropriation, the right of publicity, and false advertising. Specifically, it defines unfair competition and outlines forms such as passing off, misappropriation, infringement of publicity rights, and false advertising. It provides examples and details about these concepts, defenses, and relevant laws such as the Lanham Act.
Privacy law developed in the late 19th/early 20th century in response to the growing media. Four forms of privacy invasion were identified: appropriation, disclosure of private facts, false light, and intrusion. Appropriation involves the unauthorized use of a person's identity for commercial purposes, violating their right of publicity. Disclosure of private facts involves publicizing private information that is highly offensive. False light involves misrepresenting someone in a highly offensive manner. Intrusion involves invading someone's physical privacy or private affairs. However, privacy torts must be balanced with First Amendment rights and considerations of newsworthiness. Consent is also important to avoid privacy issues.
The document discusses the right to privacy in tort law in India. It provides a brief history of privacy rights in India, covering important court cases like Kharak Singh v. Union of India and Govind v. State of M.P. that established privacy as a fundamental right. It also discusses the tort of breach of privacy and how privacy is encompassed in torts like nuisance, trespass, and defamation. Further, it summarizes key cases like Prince Albert v. Strange and Others and Moore v. City of East Cleveland that helped shape the concept of privacy rights.
Ray dowd copyright, ethics & social media- what the connected lawyer needs t...Raymond Dowd
This document summarizes key ethical and legal issues attorneys need to consider regarding social media and copyright. It discusses how attorneys have become publishers through social media and need to understand rules of defamation, ethics, and copyright law. The document also analyzes several court cases where attorneys or clients have faced sanctions or lawsuits due to improper social media use, such as revealing privileged information or using copyrighted materials without permission.
The document summarizes a defamation case between Biomatrix, a medical company, and Raymond Costanzo, Ehpraim Morris, and Richard Costanzo, who posted over 16,000 critical messages about Biomatrix on an online forum under pseudonyms. The posts made unsubstantiated claims about Biomatrix's products and management and caused the company's stock price to drop. Biomatrix sued for defamation and the court ordered the identities of the posters to be revealed, finding them guilty of libel.
This document provides an overview of various topics related to intellectual property protection including trade secrets, unfair competition, and rights of publicity. It discusses how trade secrets can be protected from misappropriation through litigation and non-disclosure agreements. It also defines different types of unfair competition such as passing off, misappropriation, false advertising, and right of publicity violations. Key aspects and defenses for claims of trade secret misappropriation, false advertising, and right of publicity infringement are summarized.
Short Answer 5 points each 100 words each1) Elton.docxLynellBull52
Short Answer 5 points each 100 words each
1) Elton is a limited partner in Destiny Tours, a limited partnership. Collection Credit Company, a Destiny creditor, claims that Eton is subject to personal liability for Destiny's debts because Elton is subject to personal liability for Destiny's debts because Elton has the right, as a limited partner to take control of the firm. Is Collection Credit correct? Explain your answer.
2) Evan Smith experienced a heart attack in the emergency room of Baptist Memorial Hospital after being given a dose of penicillin for a sore throat. Smith sued the attending physician as well as the hospital. The hospital called itself a full-service hospital with emergency room facilities. Baptist Memorial did not consider the doctors to be its agents. For tax and accounting purpose the doctors were not treated as employees of the hospital. Based on this information, discuss whether the doctors who treated patients in the emergency room were agents of the hospital.
3) Justin Jones suffered from genital herpes and sought treatment from Dr. Steven Baisch of Region West Pediatric Services. A nurse assistant, Jennifer Hallgren, who was a Region West employee, told her friends and some of Jones’s friends about Jones’s condition. This was a violation of the Region West employee handbook, which required employees to maintain the confidentiality of patients’ records. Jones filed suit in a federal district court against Region West, among others, alleging that Region West should be held liable for its employee’s actions on the basis of Respondeat Superior. On what basis might the court hold that Region West was not liable for Hallgren’s acts? Discuss fully.
4) California Consumers Co. purchased from S.L.Coker an ice distributing business in the city of Santa Monica. In the purchase agreement, Coker agreed that he would not engage in the business of selling or distributing ice either directly or indirectly in Santa Monica, so long as the purchasers or any later purchasers remained in the business. Imperial Ice Co. acquired the ice distributing business from California Consumers. Coker subsequently began selling ice in the same territory. The ice was supplied to him by a company owned by Rosner and Matheson on very attractive terms, because they wanted to break into the territory. Imperial Ice sued to obtain an injunction to restrain Coker from violating his original contract. Did Rosner induce Coker to violate his contract and were they therefore liable for the tort of wrongful interference with contractual relations? Explain.
5) As a beginning songwriter and performer, you are convinced that a certain model of guitar is what you need to turn the musical world on its ear. Chick's Music store advertises the item but because the store is sold out when you get there, you accept a rain check signed by Daria, one of the employees. You return to the store one month later, but Chuck refuses to ho.
This presentation was provided by Racquel Jemison, Ph.D., Christina MacLaughlin, Ph.D., and Paulomi Majumder. Ph.D., all of the American Chemical Society, for the second session of NISO's 2024 Training Series "DEIA in the Scholarly Landscape." Session Two: 'Expanding Pathways to Publishing Careers,' was held June 13, 2024.
How to Setup Warehouse & Location in Odoo 17 InventoryCeline George
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The chapter Lifelines of National Economy in Class 10 Geography focuses on the various modes of transportation and communication that play a vital role in the economic development of a country. These lifelines are crucial for the movement of goods, services, and people, thereby connecting different regions and promoting economic activities.
Philippine Edukasyong Pantahanan at Pangkabuhayan (EPP) CurriculumMJDuyan
(𝐓𝐋𝐄 𝟏𝟎𝟎) (𝐋𝐞𝐬𝐬𝐨𝐧 𝟏)-𝐏𝐫𝐞𝐥𝐢𝐦𝐬
𝐃𝐢𝐬𝐜𝐮𝐬𝐬 𝐭𝐡𝐞 𝐄𝐏𝐏 𝐂𝐮𝐫𝐫𝐢𝐜𝐮𝐥𝐮𝐦 𝐢𝐧 𝐭𝐡𝐞 𝐏𝐡𝐢𝐥𝐢𝐩𝐩𝐢𝐧𝐞𝐬:
- Understand the goals and objectives of the Edukasyong Pantahanan at Pangkabuhayan (EPP) curriculum, recognizing its importance in fostering practical life skills and values among students. Students will also be able to identify the key components and subjects covered, such as agriculture, home economics, industrial arts, and information and communication technology.
𝐄𝐱𝐩𝐥𝐚𝐢𝐧 𝐭𝐡𝐞 𝐍𝐚𝐭𝐮𝐫𝐞 𝐚𝐧𝐝 𝐒𝐜𝐨𝐩𝐞 𝐨𝐟 𝐚𝐧 𝐄𝐧𝐭𝐫𝐞𝐩𝐫𝐞𝐧𝐞𝐮𝐫:
-Define entrepreneurship, distinguishing it from general business activities by emphasizing its focus on innovation, risk-taking, and value creation. Students will describe the characteristics and traits of successful entrepreneurs, including their roles and responsibilities, and discuss the broader economic and social impacts of entrepreneurial activities on both local and global scales.
Beyond Degrees - Empowering the Workforce in the Context of Skills-First.pptxEduSkills OECD
Iván Bornacelly, Policy Analyst at the OECD Centre for Skills, OECD, presents at the webinar 'Tackling job market gaps with a skills-first approach' on 12 June 2024
LAND USE LAND COVER AND NDVI OF MIRZAPUR DISTRICT, UPRAHUL
This Dissertation explores the particular circumstances of Mirzapur, a region located in the
core of India. Mirzapur, with its varied terrains and abundant biodiversity, offers an optimal
environment for investigating the changes in vegetation cover dynamics. Our study utilizes
advanced technologies such as GIS (Geographic Information Systems) and Remote sensing to
analyze the transformations that have taken place over the course of a decade.
The complex relationship between human activities and the environment has been the focus
of extensive research and worry. As the global community grapples with swift urbanization,
population expansion, and economic progress, the effects on natural ecosystems are becoming
more evident. A crucial element of this impact is the alteration of vegetation cover, which plays a
significant role in maintaining the ecological equilibrium of our planet.Land serves as the foundation for all human activities and provides the necessary materials for
these activities. As the most crucial natural resource, its utilization by humans results in different
'Land uses,' which are determined by both human activities and the physical characteristics of the
land.
The utilization of land is impacted by human needs and environmental factors. In countries
like India, rapid population growth and the emphasis on extensive resource exploitation can lead
to significant land degradation, adversely affecting the region's land cover.
Therefore, human intervention has significantly influenced land use patterns over many
centuries, evolving its structure over time and space. In the present era, these changes have
accelerated due to factors such as agriculture and urbanization. Information regarding land use and
cover is essential for various planning and management tasks related to the Earth's surface,
providing crucial environmental data for scientific, resource management, policy purposes, and
diverse human activities.
Accurate understanding of land use and cover is imperative for the development planning
of any area. Consequently, a wide range of professionals, including earth system scientists, land
and water managers, and urban planners, are interested in obtaining data on land use and cover
changes, conversion trends, and other related patterns. The spatial dimensions of land use and
cover support policymakers and scientists in making well-informed decisions, as alterations in
these patterns indicate shifts in economic and social conditions. Monitoring such changes with the
help of Advanced technologies like Remote Sensing and Geographic Information Systems is
crucial for coordinated efforts across different administrative levels. Advanced technologies like
Remote Sensing and Geographic Information Systems
9
Changes in vegetation cover refer to variations in the distribution, composition, and overall
structure of plant communities across different temporal and spatial scales. These changes can
occur natural.
1. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 1
THE CONUNDRUM RELATING TO PERSONALITY RIGHTS AND THE ROLE OF
BREACH OF CONFIDENCE IN ITS DEVELOPMENT IN THE UNITED KINGDOM
Name
Tutor
Institution
Course
Date
Street
2. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 2
CHAPTER 1: INTRODUCTION
1.0 Definition of personal rights and breach of confidence concepts
Personality right or the right of publicity is generally described as the ability to regulate
the use of an individual’s name, image, likeness, voice or other unequivocal of one’s identity1.
This implies that an individual has the right of publicity that deters their image and likeness from
commercial exploitation without their permission; in this relation, the privacy rights protect the
individual’s personality from public representation without their consent. Washington State
Legislature under Chapter 63.60 RCW asserts that every individual or personality has the
property right in the use of their name, voice, signature, photograph, or likeness2. According to
the German law, personality rights represent the sundry of regulations that protects an
individual from an authorized public exposure.
Actually, the Higher Regional Court of Hamburg (5 U 51/11) categorized these rights
into three domains; core, private, and social. The “core” provisions under the German Law
protects all aspects of an individual’s intimate life while the “private” sphere includes other
aspects of private life such as family life; and “social” sphere includes social and business life.
The Canadian Law under the Civil Code of Quebec 1994 asserts that right to privacy is equated
to right to life and every person is obligated to respecting the reputation and the privacy of the
other person3. In fact, in Greece taking a photo or video even without necessary reproducing
1
McCarthy The Rights of Publicity and Privacy s 7:22 at 7-46 2d ed 2002
2
"Washington Statute 63.60.Personality Rights". Rightofpublicity.com. 1998-01-01.
3
Conroy, Amy M. (2012). "Protecting Your Personality Rights in Canada: A Matter of Property or
Privacy?". Western Journal of Legal Studies (University of Western Ontario) 1 (1)
3. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 3
them, or sculpturing individuals in paintings, results to an illegal act under the Article 57 of the
Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας).
Breach of confidence on the other hand represents the common law tort that protects
individual’s private information that should be confidential4. Consequently, when such
information is disclosed, an individual has the legal liability to make claimants under the breach
of confidence. This law applies when the plaintiff provides evidence that the information is not
in public domain, it is confidential, and that it was disclosed without authorization. The English
law allows individuals to make claims when their confidentiality has been breached if they can
ascertain that the information had the magnitude of confidence, that it was provided under the
obligation of confidence, and that it was disclosed without individual’s authorization.
Information that is regarded as “not being in the public domain” means that it is essentially
inaccessible to the public5. Leaking of “some information” is still considered a breach of
confidence and it can be sued in a court of law. Personally rights and breach of confident are in
most instances intertwined and aim at protecting an individual’s right to privacy. Generally,
personality rights and breach of confidence regulations are recognized in various countries
around the Globe including the People’s Republic of China, South Africa, Jamaica, and France
among others. Therefore, personality rights are integral provisions especially in the regulations
of celebrity endorsements and commercial dealings.
4
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64.
5
Ibid
4. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 4
In this connection, this study exploits the extent or the recognition of personality rights in the
United Kingdom. This implies that the study will conduct critical analysis in determining
whether these rights are exclusively established in the English law and how they can be
significantly improved to benefit the society at large. Personality rights are fundamental in the
commercialization of products and services especially where public figures endorse companies6.
The essay begins with delineating the definition of personality rights and breach of confidence.
The study continues to elaborate the emergence of personality rights and how they affect the
legal system. The paper then elaborates the research problem or the gap witnessed in how
personality rights are handled in the United Kingdom in comparison with other jurisdictions.
This will enable the investigator in finding out whether personality rights are beneficial in
protecting commercialization of personality and provide coherent recommendations to the UK
legal system.
1.1 ResearchProblem
It has already been identified that the image of any individual is a powerful tool in conveying
cultural experience, political commitment, raising awareness on social aspects, and even
promoting products and services. Basically, trading with one’s personality commands hefty
prices making it a strong market tool. David Beckham is purported to have received $20 million
for his advertising deal with Emporio Armani in 2007 while it is estimated that Tiger Woods
earned $99,737,626 in 2009 deals alone. Based on the huge sums of money and the seriousness
of the business involved in publicity practice, there is a desire for strong legal regulations
controlling the use of image and individual’s personality? However, courts and legal
6 6
Kontopoulous M., The Right of Publicity, Morality and Free Speech: An ‘Uneasy’ Relationship,2002
5. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 5
stakeholders in the United Kingdom are quite reluctant to identify and land on a common legal
response on publicity7. Despite the provisions set in the personality rights act in other countries,
UK courts do not seem to side with public figures when they are seeking compensations for the
breach of their confidence.
In Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 628, the renowned
pop group made claims over the production of T-shirts and badges bearing their name and
photograph of the group. The plaintiff based their argument on the provisions of passing off
since personality rights are not fully-fledged in the UK law; however, the pop group had not
begun the business prior to the suit. The court rejected the plaintiff’s sort for relief and protection
of their property rights citing Henderson/Radio Corp. Pty. Ltd [1969] RPC 218 and Totalisator
Agency Board/Turf News Pty. Ltd [1972] RPC 5989 in which there was proof of a common field
of activity in the claim. Similarly, in the case of McCullouch v Lewis A. May Ltd10, the court
decided that there was nothing like commercial protection right to a personality, rejecting his
claims over exploitation.
The flawed personality rights cases are endless that have faced unhappy ending in English
courts. These included Byron v Johnston11 – use of the poet Byron’s name on a publication of
poems (allegedly) written by another poet; Wilkie v McCulloch. In a similar case of David
Beckham v In Touch Magazine, the plaintiff lost the case against the tabloid in connection with
an article claiming he had an affair with a woman described as a former prostitute. The court
7
Weber O,“Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan
Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178
8
Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 62
9
Henderson/Radio Corp. Pty. Ltd [1969]RPC 218 and Totalisator Agency Board/Turf News Pty. Ltd
[1972] RPC 598
10
McCulloch v Lewis A May [1947] 2 All E.R. 84
11
1822-1824 2S (SC) 413
6. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 6
rejected case on the grounds that the claimant did not prove enough the magazine acted
recklessly after being noted that Beckham had won a similar case in Germany.
In Naomi Campbell v Mirror Group Newspapers, MS Campbell sort court interpretation on
breach of confidence by the magazine publishing information about her and photographs without
her consent. In this case, the court found out that there is a possibility of breach of privacy for an
entity to publish personal information without their approval. However, the court had to
exclusively determine if the information was confidential. In the similar breadth, the case of
Irvine & ors v TalkSport ltd [2003] EWCA Civ. 42312, Eddie Irvine, a popular formula one
driver, raised claims against Talksport over damages in passing off. The defendant had exclusive
rights to broadcast the championship where the driver was participating. However, the company
embarked on a promotional campaign where they reproduced brochures with the driver’s image
on the front page. The court in this case sided with the claimant and sort for compensation over
damages of passing off13.
Arguably, the United Kingdom legal system has not settled on how to handle cases involving
personality and breach of privacy14. Some courts have held that an individual is not entitled to
commercial rights while others have found out there was a breach of confidence such as in Irvine
& ors v TalkSport ltd [2003] case15. Various scholars have found out that the UK Law does not
provide a coherent or consistent protection of a celebrity’s personality or image. The courts are
observed to be reluctant in giving individual’s monopoly rights in nebulous concepts such as
12
Irvine v Talksport Ltd [2003] 2 All ER 881
13
Carty H., 2004, “Advertising, publicity rights and English law”, I.P.Q. 2004, 3, 209
14
Weber O, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan
Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178
15
Irvine v Talksport Ltd [2003] 2 All ER 881
7. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 7
names, likeness or popularity. There are various laws that exist in UK protecting intellectual
property rights and individuals against defamation; consequently, these provisions do not
exclusively protect celebrities from commercial exploitation16. There is also confusion in the
English Law on various aspects such as right of publicity, law of passing off, right to privacy,
property rights; hence, celebrities are in a quagmire as they do not know the specific law that is
protecting them. As a matter of fact, the English jurists should formulate a concrete and reliable
law that can be followed in protecting celebrities from commercial exploitation and from their
private information being disclosed to the public without their authorization.
1.2 Tracing the development of personality rights
1.1.1 Historiography of the Personality Rights in Europe
The legal doctrine surrounding personality rights can be dated back to the sixteenth
century during the codifications of European jurisdictions. Most of law scholars believe that
personality rights are an ancient concept that has only gained popularity in the late 20th century.
Reinhard Zimmermann asserts that the doctrine was initiated during the mediaeval period under
the actio injuriarum in Roman Empire that protected individuals against non-material interests
that included dignity and honor17. Johannes Voet says that Dutch jurists assimilated the concept
from the Romans in seventeenth century that distinguished between real and verbal
16
Boyd S., 2002, “Does English law recognise the concept of an image or personality right?”, Ent. L.R.
2002, 13(1), 1-7
17
Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)
8. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 8
representation18. In France, an individual was entitled to compensation as a remedy for what was
known as amende honorable aequum.
Personality rights were later witnessed in the German law during the shift from civil law
to criminal law in the nineteenth century. Zimmerman asserts that the German Civil Code made
it a crime to disclose individual’s information through the famous phrase “thrown out by the
front door…has managed to sneak in through the window19.” The Scottish law also realized
personality rights through the case of retention of dead babies’ organs. This emerged after an
argument on whether privacy rights were violated when scientist used dead babies’ organs in
research.
The English law relied more on Aristotle findings that allocation of honor depends on
distributive justice. Traditionally, claimants against honor were dependent on behaviors that
affected a person’s reputation such as insult in the public among others20. Detraction also meant
that something done in secret was not supposed to be reviled without the stakeholders’ consent.
This implied that the personality rights were more of distinguishing whether interests were in
secret or in public domain. In 19th century Germany, scholars were more focused on
degenerating the original sources of Roman law not alienated by canon and natural law. This
meant that they focused on freedom of contract, economic rights and compensation of pecuniary
loss and protection of honour submitted to criminal law. Austria, Greece, and Italy adopted the
German’s decision in 20th century21. The English common law of torts the protection of
18
t p1064; Voet, Commentarii ad Pandectas 47.10.1
19
Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)
20
G. Samuel, ‘“Le Droit Subjectif” and English Law’ (1987) 46 Cambridge Law Journal 264.
21
F.G. Jacobs and R.C.A. White, The European Convention on Human Rights (4th edn., Oxford: 2002)
9. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 9
individual’s honor and reputation has been traditionally protected by the defamation law. By the
end of 19th century, most of the European countries could distinguish the personality rights in
terms of bodily integrity, physical liberty, and rights in family life and sexual relations. However,
despite the tremendous evolution of personality rights, the English Law has not formally
embraced a tort of breach of privacy even though the Human Rights Act (1998) has played a
significant role in creating awareness22.
1.1.2 Recent development of personality rights
Personality rights have gradually gained popularity and have made impeccable impact in
today’s world. The emergence of celebrities endorsing businesses gave the rights of publicity
huge popularity and recognition around the globe. Arguably, celebrities and public figures work
extra hard to create a reputation and build an appealing image to their audience. As a result, they
are sort for endorsement in order to increase the sales of a product or create awareness of a new
product in the market. The audience associates the product endorsed with the character and the
personality of the celebrity and any misuse of their name, image or style may adversely affect the
impression they create about the product. For this purposes, celebrities invoke personality rights
as property rights that protects them from such exploitations and misuse of their persona. In
many cases, celebrities register their personality and gain exclusive rights to exploit their image.
Any act creating a likelihood of association with the registered image or their distinct
characteristic would amount to infringement of right to personality. In a recent case, The Court
22
J. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64.
10. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 10
of Appeal of Paris made a famous ruling on the football player Eric Cantona case that “the right
to privacy enables any person, regardless of reputation and profession, to oppose the
circulation, without express consent, of his image as part of his personality.”
The protection of individual’s right to privacy is viewed on a continental approach through
the European Convention on Human Rights (ECHR), European Court of Justice (ECJ), and
European Court of Human Rights (ECtHR). This collaborative effort came into existence after
the discovery that various countries viewed personality rights differently where others offer
protection in distinct fashion. In similar vein, the historical chronology of personality rights also
shows that “new” human interests are slowly crawling into the legal systems. There are some
emerging issues in the social life that need to be addressed in their legal aspects. For instance,
issues such as personality merchandising are quite current but very popular in the socio-cultural
context. Personality merchandising is a marketing aspect where “real” characters are used in
commercial activities.
This concept has increasingly become the 21st century strategy of marketing products and
services based on its ease in capturing the attention of potential customers. This situation allows
eventualities such as commercial exploitation or revealing of too much information that is
sometimes considered private. It is a concept that has been generally accepted as an international
tort. This implies that personality rights have evolved from the traditional concept that involved
insulting or disregarding an individual’s honor and dignity to a more commercialized aspect
where people sell their personalities. It is undisputable that personality rights and breach of
confidence are fundamentals in personality merchandising and legal systems need to develop
coherent structures and procedures to protect the involved entities.
11. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 11
CHAPTER 2: THE SITUATION OF PERSONALITY RIGHTS IN UK AND THE ROLE
OF PASSING OFF
2.0 Introduction
As observed earlier, the legal doctrine protecting person’s from the exploitation of their
confidentiality and publicity has been existence for many decades. A sundry of provisions have
been set up in order to regulate how people use each other’s information and private information.
Since the 20th century, the society has been obsessed with fame and celebrity status as they have
become icons and fashion setters23. They have immense influence in the society and they use
they status to influence individuals regarding their behavioral patterns. Business entities realized
this aspect and decided to use it for the purposes of gaining more sales or popularity within their
market boundaries. This strategy did not frustrate and it has become a norm for celebrities to
23
Barnett The American Right of Publicity and Visual Art: Solutions for the Growing Conflict Paper
Prepared for Congress of International Association for the Advancement of Teaching and Research in
Intellectual Property (ATRIP) New Delhi6-8 October 2002
12. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 12
become brand ambassadors and they are paid for it. This is attributed to the similarity in price
and quality of commodities and the inclusion of celebrities make consumers differentiate the
products or have a special attachment with the product being advertised. A celebrity who has
endorsed a business entity presents a distinguishable rapport with the media from her normal life
as established by Lord Hoffman in Campell v. MGN Limited; “what she sell is herself, her
appearance and her personality24. In fact, advertising agents use celebrities as a competitive
advantage in order to gain a commercial advantage.
Unfortunately, business entities find themselves misusing the personality of a celebrity or
even using their images or likeness without their consent. In cases where all the organizations are
utilizing the endorsement strategy for their business objectives, legal systems must be structured
to protect the entities. In various instances, celebrities rely on the personality rights in protection
of their rights in case of breach of agreement. Some countries such as the United States of
America streamlined such laws in mid-20th century. Conversely, the English law has distanced
itself from embracing commercial reality in the realm of personality rights. The United Kingdom
to be specific has remained skeptical in creating monopoly rights that protects an individual’s
personality25.
Celebrities in UK have been subdued to exploitation due to lack of stringy rules for
commercial exploitation against names, likeness, images, and even voice. Since 1869 U.K.
copyright law has not been effective in protecting an individual’s name. The court maintained
that it did not recognize the absolute right of a person to a particular name in the case Du Boulay
24
Campbell (Appellant) v. MGN Limited (Respondents) [2004] UKHL 22
25
H Beverley-Smith et al, Privacy, Property and Personality, 2005
13. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 13
v. Du Boulay 186926. A century later, English courts denied Elvis Presley Trademarks, Inc.27 an
application for trademark registration arguing that there is nothing like copyrighting a name. The
English law has continuously differed with other nationalities in how it treats personality rights.
2.1 Current laws protecting personality features in United Kingdom
Unlike various jurisdictions around the world, the United Kingdom justice system has
vehemently failed to intervene with the exploitation of image or other attributes of an individual;
whether living or dead. In 1931, the case of Tolley v. JS Fry & Sons LTD opened the discussion
regarding person’s right of publicity in United Kingdom. It was found out that most of the
frameworks protecting rights of publicity are patched from various existing laws which include
the following.
2.1.1 Trade Marks Act 1994
UK Trade Mark Act 1994 Section 1(1) provides that any sign with the ability to distinguish
products and services of a person’s undertaking from another, including word, design, numeral
and shape of goods, can be registered by a distinctive character28. Trademark laws serve the
purposes of protecting the originality or the source. However, trademarks become invalid when it
involves famous people as the personality of the public figure is much considered to the identity
of the origin rendering the law inapplicable. A good example is tourists visit the city of London
26
2 L.R.-P.C. 430 (1869). Du Boulay v. Du Boulay
27
Elvis Presley Trade Mark [1997] R.P.C. 543 at 556
28
Trade Marks Act 1994, s.3(1)(b)
14. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 14
and buy a magazine bearing the image of the royal family they are buying the likeness of the
image and pay little regard to the particular source29.
Similarly, trade mark rights are given on a first-come-first served basis; in case of identical
names they may receive no protection. Trade mark act under section 11(2) (b) indicates that use
of a mark as an “indication concerning…characteristics of Ent. L.R. 166 the goods or services
will not infringe.” This implies that if the name is registered for one purpose such as singing, the
same name can be registered for other purposes such as acting by a different entity. This was
illustrated in the case of Bravado Merchandising Services Ltd v Mainstream Publishing
(Edinburgh) Ltd `2588; the pop group “Wet Wet Wet” had protected the trademark of their books.
They were unable to prevent their name to appear on other book covers as their own book would
not protect the “other characteristics of the book.”
2.1.2 Copyright Designs and Patents Act 1988
Law scholars argue that copyright law appeared to be the perfect law protecting people
against personality rights. The law was subsequently rejected by the English Law in various
instances such as the Corp v. Exxon Insurance Consultants International Ltd case in 1982 with
the jury denouncing the existence of copyright protection over names, voice, likeness or other
aspects of persona. In 1988, the Copy Design and Patents Act (CDPA) sort to offer protection to
photographs, drawings, films, and sculptures of celebrities30. However, the exclusive rights are
29
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64.
30
The Report on the Law of Copyright and Designs. HMSO, 1977. Cmnd.6732.
15. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 15
provided to the creator of the works and not the owner of the image or the voice represented as
illustrated in section 9(1) of the CPDA 1988. The celebrity only gains the copyright after the
works have been commissioned to him or her as stipulated in section 85 of CPDA 1988.
2.1.3 Passing off
This is the most commonly sort law by the celebrities in the United Kingdom when they need
personality rights exploitation. Passing off is viewed as the closest provisions that has grounds
for protecting right of a personality. It prevents an individual from passing off goods and services
as somebody else’s for financial gains31. This law is made up of three building blocks that
include goodwill or reputation, misrepresentation, and damages. The House of Lords made it
clear in the Jiff Lemon case that:
“The goodwill or reputation must be incorporated to the goods or services of the claimant,
the misrepresentation must lead to the confusion as to the source of goods and services, and that
confusion must cause damage to the claimant.”
This explanation however implicates that an individual cannot prevent exploitation without a
commercially valuable reputation or goodwill. This means that people who do not have status in
the society are not protected in this law; hence, it does not achieve the aspect of equity.
Secondly, a celebrity will find it challenging to proof the existence of a common field of activity
between the parties for them to establish there was misrepresentation and confusion created
which would eventually lead to the case’s failure. The issue of “common field of activity” was
borrowed from the case of McCulloch v. Lewis A May (Produce Distributors) Ltd after the
plaintiff sort to protect the use of his radio’s name “Uncle Mac” from being used by the produce
31
H Beverley-Smith et al, Privacy, Property and Personality, 2005
16. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 16
distributors to promote their cereals32. The judge ruled that there was no common field where the
two activities could interfere with each other; hence, the plaintiff lost the case. It becomes a huge
challenge to express whether there was a common field of activity especially when seeking
compensation from commercial exploitation33. This law is observed as protecting individuals
with goodwill or reputation subsists in their trading of products or services and not within the
persona.
Davies and colleagues finds it challenging for scholars to determine the legal relationship
between property and personality34. English courts have persistently argued that commercializing
memorabilia by third parties without the celebrity’s permission is permissible and cannot be
equated to passing-off35. They have argued that celebrities do not contribute to the quality of the
goods or content being sold, only that people buy because they know the image; hence, credits
should go to the produces and not the celebrity image depicted. Nonetheless, courts seem to
change their position such as in the case of Irvine v. Talksport Ltd. Irvine was able to protect his
image from being used by the entity in their promotion as the contract was only to broadcast the
championship. The judge in this particular case did not go further to establish a common field of
activity but ruled in favor of the plaintiff.
2.1.4 Defamation
In relation to the right of privacy, defamation was constituted in 1931 after the case of Tolley
v. Js Fry Ltd. The defendant had published a story that indicated the plaintiff had pad for the use
32
Davies, G., The Cult of Celebrity and Trade Marks: the next instalment (2004)
33
JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 2000
34
Davies, Margaret Jane & Naffine,Ngaire (2001) Are persons property?: legal debates about property
and personality, Ashgate p. 16
35
Gary Scanlan, “Personality, Endorsement and everything: The Modern Law of Passing Off and the
myth of the Personality Right” [2003[ E.I.P.R. 563
17. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 17
of his image in an advertisement which was alleged to diminishing his amateur status in golfing.
More recently, celebrity Paul Mckenna sort compensation for damages after the Daily Mirror
claimed that his PhD was bogus and purchased from an American University36. Unfortunately,
this law only protects people after tarnishing their name and status by incorrect representation. It
is not suitable for protecting people against the appropriation and exploitation of one’s
personality.
2.2 Personality rights in the United Kingdom: Current situation
Historically, since the case of Boulay v du Boulay37 English law has considered the use of
another person’s name is a situation that it cannot redress. There is no piece of evidence that
shows that the English law has made efforts in drafting laws that warrant rights to personalities
such as voice and image since various claims such as Elvis Presley Enterprises Inc. v Sid Shaw
Elvisly Yours cases38 in 1999. When the world welcomed the 21st century, there was much hope
that the English legal system will change its mind and embrace personality laws. On a turn of
events, the case by David Bedford claiming a public offence by the directory enquiries just left
many disappointed39. The most cited cases regarding tort on personality, Irvine v Talksport and
Douglas v Hello, seems not to fulfill the heralding of image rights in the UK. Irvine decision is
more of a passing-off ruling than the warrant of personality rights since the presiding magistrate
Laddie J mentioned “The sort of cases which come within the scope of a passing off action has
not remained stationary over the years ... Passing off is closely connected to and dependent upon
36
Michael Horsnell, “McKenna sues over claim he bought PhD”,The Times July 11, 2006. Available at
www.times.co.uk
37
1869) L.R. 2 430 PC
38
[1999] R.P.C. 567
39
R. Penfold, A. Batteson,J. Dickerson ‘How to defend image rights’ M.I.P. 2005,148 Supp (Brand
Management Focus 2005), 19-21
18. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 18
what is happening in the market place.”40 This implies that the role of passing off has been quite
effective in making claims against image rights and false endorsement in the country as in Irvine
case. This has prompted British celebrities to seek redress using this provision in instances where
they feel their personality rights have been infringed. Unluckily, passing-off lacks the ability to
provide a cause of action for unauthorised merchandise and right to privacy.
The privacy aspect of personality rights is also on the rock bend in the United Kingdom
despite various efforts to recognize the law41. The case of Kaye v Robertson42 illuminated this
concern in 1990 when it was decided; there was little protection of privacy in UK. There were no
torts available for protection against privacy infringement and if they were the freedom of
expression outweighed them. For instance, in David Beckham v In Touch Magazine case, the
plaintiff lost the case against the tabloid in connection with an article claiming he had an affair
with a woman described as a former prostitute. The court rejected case on the grounds that the
claimant did not prove enough the magazine acted recklessly and that the defendant had
exclusive freedom of expression. The plaintiff lawyers noted that Beckham had won a similar
case in Germany Even after the development of Human Rights Act of 1998, there is no clear
regulation that seems to protect the invasion of privacy. Notably, personality rights can be
viewed from a two perspective dimension; privacy and publicity43. The case of Douglas v
Hello44 seems to be a combination of privacy and publicity spheres of personality rights. This is
one of the issues that have affected the appropriation of personality rights in the UK. There is no
40
David Rose and Emily Shaw ‘Misappropriation without misrepresentation’ NLJ 154.7119(386)
41
R. Penfold, A. Batteson,J. Dickerson ‘How to defend image rights’ M.I.P. 2005,148 Supp (Brand
Management Focus 2005), 19-21
42
[1991] FSR 62
43
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004 at
p.212.
44
Douglasv Hello!Ltd (No. 5) [2003] E.M.L.R. 31, 642, 720, 721
19. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 19
a clear distinction of privacy and publicity practice when it comes to protecting an individual’s
persona. On the contrary, the American law clearly defines the privacy and publicity rights and
links them in personality rights.
Modern UK judges are bearing the ancient mentality in regards to the right of privacy.
Lord Justice Mummery in his decision on R v Wainright in the Court of Appeal stated that he
predicts serious definition and conceptual problems if the judicial system allows the inclusion of
a new tort that incorporates such wide range of situations45. He continued to add that he is
guaranteed that nobody, the public, parliament, the press, wants a creation of a new tort that
would be challenging to solve. On the same matter of privacy, Lord Hoffmann raised his
contribution on this matter asserting that common law cannot be deduced specific definitions and
the witnessed gap can be filled by the judicious development without necessary having to create
a general tort in privacy. Wainwright sort compensation for damages for strip-searches by prison
warders which he argued that it interfered with his personal privacy. The county court had found
the prison staff guilty of interference with the plaintiff’s privacy and did constitute a tort of tress;
however, this decision was lifted by the court of appeal. The presiding judge is said to have been
quick to reject any tort quoted by Wainwright in his complain.
In a similar situation, Gordon Kaye v. Andrew Robertson and Sport Newspapers Ltd46, a
renowned actor Kaye wanted the court to stop the sport newspaper from publishing photographs
of injuries he had sustained in an accident. The plaintiff wanted the court to redress the
application of various torts including libel, trespass, and nuisance. Resultantly, the court only
found out the defendant was guilty of malicious falsehood but the other torts were rejected. The
45
[2001] EWCA Civ. 2081, at para. 42
46
[1991] FSR 62
20. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 20
jury argued that no tort of privacy existed in English law; hence, the actor only received a limited
remedy47. In this case, justice was not adequately served as the plaintiff only received a limited
compensation. The several cases looked at clearly illustrate that the recognized torts failed to
give adequate protection to the plaintiff despite numerous efforts to realize the privacy issues48.
More importantly to note, there is no distinctive differentiation of publicity practice and privacy
rights in the UK law49. Whereas courts try to embrace the realization of privacy violation such as
in Naomi Campbell and Irvine case, the lack of laws continuously frustrate their efforts. As a
result, the courts have chosen the narrow path of giving inadequate protection rather than going
ahead to develop a tort of privacy and that of personality rights.
Individuals in the UK are turning on to other laws with the aim of image and other
elements protections. This is because the issue of commercial exploitation is still rampant and
celebrities have to protect their hard earned reputation that brings them food on the table. For
example, a recent case involving Rihanna v Topshop where the latter was sued for selling T-
shirts with Rihanna’s image without authorization was stopped in 2012. Based on her evidence,
she was able to stop the sale following the passing-off and breach of confidence arguments50.
People are also turning into trade mark registration but as observed earlier, it has numerous
limitations; hence, it cannot cover all the aspects of commercial exploitation. Celebrities who are
registered in groups such as musician bands are also in the receiving end when they vulnerable to
47
McCarthy, The Rights of Publicity and Privacy, para 1:3
48
J. Beatson and Y. Cripps (eds.) The Freedom of Expression and Freedom of Information, (Oxford:
OUP,2000), p. 272
49
A. Morgan, “Privacy, Confidence and Horizontal Effect:“Hello” Trouble” (2003) 62 (2) Cambridge
Law Journal 444
50
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004
21. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 21
dispute or break-up. There are no laws defining who will bear the group name, logos, and
signature in case of such an eventuality.
In this context, a British band named One Direction was in a dilemma when it had a US
tour and found another local band in California registered under the same name. In light of this,
there are few cases where claimants have won when seeking compensation on damages to their
image rights using the passing-off law or other related provisions in the UK51. It is discernable
that the UK response to publicity rights is of questionable nature and somewhat opportunistic. In
most instances, business entities have ended up triumphant even after clear cases of exploiting
the celebrity. The current laws are not a remedy enough to the prevailing situation since the only
cases that have been ruled in celebrity’s favor are countable52. Therefore, it is still unclear if the
UK courts will be able to address the conundrum surrounding the aspect of personality in the
near future.
CHAPTER 3: THE ROLE OF BREACH OF CONFIDENCE IN ITS DEVELOPMENT
3.1 Breach of confidence
This law recognizes that when an individual or a group conveys information in confidence
they expect it to remain private. If a person realizes that there is a potential breach, they can have
an injunction to prevent the disclosure. Consequently, if the act has already happened the
individual can go to court for compensation. In the absence of tort of privacy in UK, breach of
confidence remains as the equitable remedy53. The English law stipulates that breach of
confidence occurs when confidential information surfaces in circumstances that would be viewed
51
Frazer “Appropriation of Personality – a New Tort?” (1983) 99 LQR 281 at 281.
52
Beverley-Smith, The Commercial Appropriation of Personality, (2002 ) at 3
53
A v. B plc [2003] Q.B. 195
22. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 22
as unfair it was disclosed to others. Breach of confidence is observed as a violation of duty that
would constitute a civil claim54. It is mostly connected with the disclosure of information that has
commercial value but can also incorporate personal information about individuals. Some
scholars argue that breach of confidence is adjunct to intellectual property and can give
additional protection where copyrights are incapacitated.
Breach of confidence is increasingly be embraced in protecting tort involving privacy as
witnessed in Wainwright v Home office55 and Campbell v MGN cases. There are various
interpretations that have resulted from cases established in breach of confidence approach. For
example, even where the recipient acquires information from a legit source, it is paramount for
the recipient to know that the information is reasonably regarded as private. In Australia, the tort
of breach of confidence is more profound in protecting the invasion of privacy. in case of
Saltman Engineering v Campbell engineering56, the plaintiff complained a breach of confidence
by the defendant who went ahead to subsequently modify a design developed by the plaintiff and
sold it on its own account. Closer home in the United Kingdom, Coco v Clark57, Coco had
designed a motor-scooter engine and requested Clarke to license the design on their behalf. After
the negotiations failed, Clarke proceeded to manufacturing a scooter engine and Coco made
claims over breach of confidence.
3.2 Necessities of a breach of confidence
54
Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as
“[the imposition] of a duty of confidence whenever a person receives information he knows or ought to
know is fairly and reasonably to be regarded as confidential
55
Wainwright & Anor (Appellants –v- The Home Office (Respondents) : [2003] UKHL 53
56
Saltman Engineering v Campbell Engineering (1948) 65 RPC 203; [1963] 3 All ER 413
57
Coco –v- A N Clark (Engineers) Limited : 1969 [RPC 41,47]
23. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 23
There are four main pillars that constitute a case on breach of confidence. The plaintiff
has to prove that the information had quality of confidence, secondly there should existence of
obligation to confidence, and the complainant must show the breach of the obligation58.
3.2.1 Quality of confidence
This implies that the information must be clearly defined before seeking protection for
the court to determine if it was confidential. The jury requires sufficient evidence that the actions
are not speculative and an abuse of the process as in the case of Suhner v Transradio. There are
various elements that substantiate the quality of confidence.
i) Relative secrecy
This element is built on the aspects of novelty and originality. It simply means that a
combination of information will count in providing evidence. Basically, information that has
been built in public domain may be difficult to remain secretive; however, if there is sufficient
employment of human brain in conferring to the confidential nature upon the information, then
the information may be considered private59. It requires combination of facts and occurrences to
avoid the information being vague. Relative secrecy argues that information that seems to be or
is considered to a certain level to be confidential will not be protected under this provision. In
case of De Maudsley v Palumbo, the complainant revealed an idea for a nightclub to the
defendant at a party. The defendant quickly approached the Ministry of Sound and registered a
58
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64
59
A. Morgan, “Privacy, Confidence and Horizontal Effect:“Hello” Trouble” (2003) 62 (2) Cambridge
Law Journal 444
24. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 24
nightclub with the same characteristics they had discussed with the plaintiff. The case was
rejected on the basis that it was vague and it did not have sufficient novelty to prove it was
confidential60. Another case of Fraser v Thames TV, the plaintiff had an idea of a TV show and
they shared it with a scriptwriter who later disclosed it to a producer who made it. The court
found it to be a breach of confidence as there was sufficient evidence showing that it was
original.
The concept of relative secrecy gives a room for disclosing information to a number of
people without it losing the aspect of confidentiality. Like in the case of Douglas v Hello, the
information was confidential even though some people had the knowledge and there was an
intention to publish it. The problem arises when another unathourised entity publishes the
information even if the information was under relative secrecy61. This means that the information
loses taste and it would be somehow meaningless to the authorized party. This means that partial
disclosure may make the information loose part of its confidentiality and this would harm the
patent.
ii) Springboard doctrine
This element stipulates that an individual can take advantage of public domain
information by obtaining it in confidence and springboard themselves against competitors. This
incidence is mostly common in business entities that are trying to a have a competitive advantage
over the others. Competitors are obligated to enhancing integrity and confidential relationship
and it applies to issues like customer lists where public information is treated in confidentiality.
60
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64
61
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004
25. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 25
For instance, Terrapin made an agreement with Builders on supplying pre-fabs in case of
Terrapin v Builders Supply. Builders supply used similar supply methods after the completion of
the contract in competing with Terrapin. The court found the defendant guilty of using
confidential information, even though it was in public domain, for competitive purposes and the
plaintiff was given a limited injunctive relief62. This simply means that public information can be
relatively become secret and be protected under the breach of confidence.
iii) Private information
After the inclination of Human Rights Act 1998 in the UK justice system, the aspect of
private information was included in the breach of confidence clause63. This implies that in
instances where there is reasonable expectation of privacy then the information in question is
protected. It also indicates that information can be private despite the fact that it is widely
disclosed to an extent it is not considered as confidential such as Campbell v MGN. Similarly, the
element of private information protects public figure in public places. The element of private
information however relies on various factors such as nature and purpose of intrusion, if the
observer was aware of the lack of consent, and how the information was leaked before it is
treated as quality of confidence64.
3.2.2 Obligation of confidence
62
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64
63
H Beverley-Smith et al, Privacy, Property and Personality, 2005
64
A. Morgan, “Privacy, Confidence and Horizontal Effect:“Hello” Trouble” (2003) 62 (2) Cambridge
Law Journal 444
26. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 26
Obligation of confidence illustrates the agreement between the information holder and the
subject. It answers the question how was information confidentiality supposed to be handled in
the initial contract.
i) Direct obligations
This represents the relationship between the subject and the defendant such as contractual
terms. An express contract is the one an individual entered at the beginning of the transaction
such as an employment contract. An implied contract refers to the relationship is treated as of
“right type” such as professional adviser and client. Information leaked in such contractual terms
is claimed under the law of confidence as opposed to the law of contract65. The nature of the
relationship plays a significant role in determining if there was an obligation of confidence.
Personal relationship or even fiduciary relationship determines the confidentiality that the parties
share. It is also important to note that the manner of communication is quite important in making
the recipient understand that the information was actually given to them in confidence66.
ii) Third party recipients
If the contracting parties do not have a direct or intrinsic relationship and they were not in the
initial relationship of confidence then the recipient is a third party. In any instance that the
information is bound to reach a third-party, there should be a clear knowledge of confidential
65
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives,Media, and the Law (Oxford
University Press,2010
66
JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 2000
27. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 27
status. This is because if a third-party maintains that he or she made the confidentiality status at a
later date, then they can argue that the disclosure of the information was unconscious67.
iii) Strangers
Parties in the contract may not have any relationship or agreement between the two. They are
basically strangers.
CHAPTER 4: PERSONALITY RIGHTS POSITIONS IN DIFFERENT JURISDICTIONS
4.0 Introduction
67
A. Morgan, “Privacy, Confidence and Horizontal Effect:“Hello” Trouble” (2003) 62 (2) Cambridge
Law Journal 444
28. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 28
This chapter focuses on how personality rights are treated in other countries around the world
other than the United Kingdom. As mentioned in the introductory part, various countries have
realized and embraced the personality rights provisions to protect their public figures from
exploitation and unauthorized disclosure of their private information. Similarly, the study has
found out that the breach of confidence act is more profound in the United Kingdom as a
provision that protects most of the public figures against exploitation. Therefore, this chapter
wishes to highlight how these two provisions are treated in India and the USA as compared to
the UK.
4.1 Personality rights and breach of confidence position in India
The emergence of personality rights in the Indian law has abolished the dominance of
intellectual property rights in protection of patents, designs, trademarks, and copyright. Although
the intellectual property remains the most significant law in regulating intangible aspects of the
media, the current advent of public figures being used in media commercials brought another
line of thought in the jurisdiction. The Indian system understands the role played by the media in
influencing public opinion; hence, laws governing the media commercialization are enshrined in
the constitution68. Collectively, India refers to the provision protecting public figures as celebrity
rights. However, Nidhi Kumari believes that the Indian legal system is still milestone behind in
properly governing the celebrity rights even though they have been established into the system69.
The main challenge is experienced in handling the modern phenomena of celebrity’s integrity
68
Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime,
7 NALSAR STU L. RW 86 (2011)
69
Nidhi Kumari, Moral Rights Of Author, Academike (Apr. 6, 2015),
http://www.lawctopus.com/academike/moral-rights-author/ (
29. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 29
rights. Nonetheless, the courts have in numerous instances upheld claims of personality rights70.
In light of this, the Indian Celebrity Rights are envisaged in three perspectives.
i) Moral/Personality rights
The Legal Service India describes the personality as the characteristics that position’s an
individual’s identity in the society. It is an outward representation that a person creates in the
eyes of the others in the way he is expected to behave in the society71. Based on a person’s
personality, they can utilize their talents in making contribution to the society. This clause clearly
indicates that an individual’s property is an extension of their personality.
ii) Privacy rights
Significantly, celebrities have a popular image in the society and the public tends to
personalize their characters; that is, they become fond of their every aspect and move they make
in life. It goes to an extent that their dress code, make-up, lifestyle, and even family is in the
public domain. This happens despite the fact that the celebrities have not disclosed that
information to the public; hence, there is a need for a regulation to control the exchange of
private information with the public. The right to privacy under the Article 21 of the Indian
constitution asserts that all the individuals are protected from invasion of private sphere even by
the government72. A person whose privacy has been violated is obligated to compensation
through a tort action under the India law73. Notably, the Indian Right to privacy applies to the
70
Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws,16 J. OF INTELL.
PROP. RTS. 7-16 (2011)
71
Anurag K. Agarwal& S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 3
72
Anurag K. Agarwal& S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 3
73
Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws,16 J. OF INTELL.
PROP. RTS. 7-16 (2011)
30. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 30
invasion of privacy and not the use of an individual’s likeness. This provision can be compared
with the UK’s set of rules that protects celebrities from false misrepresentation. The major
difference is that in UK privacy issues are not enshrined in a policy but depends on the judicial
judgments based on the case. As observed here, the Indian law has a well-established provision
that protects individuals on privacy matters specifically.
In 2014, Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Productions, the plaintiff filled a
suit against the defendant for an alleged violation of celebrity rights. In the case, the popular fim
actor Rajinikanth approached the Madras High Court to stop the release of a Bollywood movie
titled “Main Hoon Rajinikanth.’ To begin with, the actor argued that the producer of the film
infringed his personality rights by using his name as the title of the film. He goes on to argue that
his characteristics, nature and style of acting were all copied by the defendant; hence, there was
infringement of personality rights74. Secondly, the plaintiff sort compensation for the violation of
his rights to publicity as the defendant was purported to be gaining economically by gross
commercialization of his name and reputation. The third argument which touches the rights of
privacy was that the actor believed that the film contains scenes of immoral nature that were not
only defamatory but also breached his privacy issues. The court found the defendant guilty of
violating all the three accusations and damaging the reputation and goodwill of the plaintiff.
iii) Publicity/Merchandising rights
74
Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime,
7 NALSAR STU L. RW 86 (2011)
31. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 31
The right to publicity in India is described as violation of economic value associated with the
name and fame of a person. For this right to be acknowledged, the individual must prove that his
or her fame was in form of merchandise or in that it was intended to promote a product or an
activity75. In simpler terms, the defendant must have used the image or likeness of the plaintiff
for economic gains. In the case of Zeta Zones v Hello Ltd, the presiding magistrate clarified that
the right to publicity is “an exclusive right of a celebrity to the profits to be made through the
exploitation of his fame and popularity for commercial purposes.”
Under Article 21 of the Indian Constitution, an individual can access the right to publicity by
merely registering to two laws. Firstly, an individual can acquire trademark rights where they
may apply for the protection of their name, likeness, nicknames, among other identification
unequivocal with the trademark registry in order to safeguard their misuse76. The defendant in
the case of DM Entertainemnt v Jhaveri was stopped from using the trademark “Daler Mahendi”
by the Delhi High Court meaning that the trademark law is applicable. Secondly, an individual
may apply for a copyright law to protect a specific image in the name of a photograph, painting,
and sculpture. However, the challenge arises where the celebrity has allowed his photograph to
be taken then finds out t being used later77. A similar case involving rights to publicity
infringement was witnessed in Titan Industries v M/S Ramkumar Jewelries78. Generally, the
right to publicity comprises of both laws in order to secure the celebrity from financial
misappropriation.
75
Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime,
7 NALSAR STU L. RW 86 (2011)
76
PaulM. Schwartz, Beyond Lessig's Code for Internet Privacy: Cyberspace Filters, Privacy-control and
Fair Information Practices,[2000]WIS. L. REV. 743, 751.
77
Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws,16 J. OF INTELL.
PROP. RTS. 7-16 (2011)
78
Titan Industries Ltd. vs M/S Ramkumar Jewellelrs on 26 April, 2012
32. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 32
In the case of ICC Development (International) Ltd v Arvee Enterprsies79, Delhi High Court
found out that publicity rights are the facet of privacy rights which are enshrined under Articles
19 and 21 of the Indian constitution. Drawing from the previous cases such as DM Entertainment
Pvt. Ltd. v. Infant Gift House and Ali v. Playgirl Inc.80, the court believed that unauthorized
appropriation of an individual’s persona which results to an unearned commercial gain to another
was against the constitution and is against the rights to publicity.
Basically, in India the situation regarding personality rights cannot be defined as adequate or
inadequate. The jurisdiction is observed as deficient in dealing with modern issues regarding
endorsements. However, what can be observed is that the personality rights, rights to privacy and
publicity are all referred to as celebrity rights. As defined in the case of ICC Development
(International) Ltd v Arvee Enterprsies81, the right of publicity has evolved from right of privacy
as the jurists tried to obtain a veil between privacy and exploitation based on economic matters.
In comparison to the UK law, the Indian system is quite advanced in acknowledging the
difference between privacy and commercial exploitation. The UK law also deals with private
matters under the breach of confidence provision which is not present in the Indian jurisdiction.
Conversely, the Indian law takes a double-standard approach by extending to say that no persona
can be monopolized. This argument contradicts with the provision that restricts the utilization of
an individual’s image or likeness stipulated in Article 19 and 21 of the constitution82. It can be
79
ICC Development (International) Ltd. v. Arvee Enterprises and Anr., 2003 (26) PTC 245;
80
447 F Supp 723
81
2003 (26) PTC 245 (Del)
82
Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158: (2015) 1 LW 701 : (2015) 2
CTC 113 (hereinafter Shivaji).
33. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 33
concluded that personality rights in India are subject to two major facets which are privacy and
publicity.
4.2 Personality Rights position in USA
The United States of America is consistently cited among the jurisdictions that have embraced
the personality rights effectively83. It is described as the use of someone else’s name, likeness, or
other attributes exploitative purposes. Personality rights in the United States are recognized in
two perspectives and they are realized in most of the states.
i) Privacy laws of the United States
This provision exclusively deals with the legal concepts surrounding the invasion of privacy. The
tort of common law is based on aggrieved individuals for the violation of their private spheres. It
is broadly defined as the “right to be let alone.” It incorporates a sundry of regulations such as
right to unwarranted search or seizure, right to free assembly, or right to family life84. Currently,
the law has evolved to accommodate public figures due to the disclosure of their private life
which at times is considered as too much. Most of the legal articles base this concept on Brandeis
and Warren article85 that stated that the media was overstepping its mandate by failing to observe
the limitations of propriety and decency86. In the modern tort law, the right to privacy is placed
into four major categories.
Intrusion of solitude and seclusion
83
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives,Media, and the Law (Oxford
University Press,2010)
84
Restatement 2d of Torts § 652E (1977), The American Law Institute
85
Warren and Brandeis, “The Right to Privacy” (1890) Harv.L.Rev. 193
86
Mason, Alpheus Thomas (1946), Brandeis: A Free Man's Life,Viking Press,p. 70.
34. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 34
This element protects individuals from intrusions upon their private space either physically,
electronically, or in any other means. This includes privately conducted investigations or
mounting electronic devices that will tap private information is considered an offence. These
restrictions are also subject to journalist and other media persons. In the case of Barber v Times
Inc.87, the defendant took pictures of celebrity Dorthy Barber giving a pregnancy delivery to a
baby boy. The plaintiff filled a suit for privacy invasion asserting that the photographer infringed
her right to privacy by unauthorized entry into the hospital and the defendant was found guilty.
The complainant was awarded damages amounting to 3000$ for publicizing confidential matters
even though the media published accurate truth, it was not authorized for the same88. In this
particular case, the journalist was guilty of unauthorized entry and forcefully photographing
which entirely violates the solitude and seclusion of a hospital environment.
Appropriation of name or likeness
Most of the American states have established statutes that prohibit the use of person’s images
and likeness without their consent as an invasion of privacy. It is important to note that this
action can be found in both the right of privacy and right to publicity. For instance, the case of
Cohen v Concepts Inc.89, the claimant’s image and her daughter were used on cosmetic products
packaging without their authorization. Even though the defendant argued that the images were
not identifiable, the court awarded the plaintiff damages due to disclosure of private family life
by the defendant. The right to privacy generally seeks to protect the subject in most cases
87
Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). 7
88
William Prosser (1960), "Privacy", California Law Review (Vol48, No. 3, pages 383-423)
89
Cohen v HerbalConcepts Inc. (1984) 63 NY.2d 379
35. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 35
celebrities from disclosure of information that may put them in an embarrassing or humiliating
situation that may lead to the feeling of insecurity90.
False light
False light is a legal phrase in relation to privacy and it can be equated to defamation. It is
mostly concerned in protecting an individual from mental and emotional well-being when placed
in publicity. In most cases, this statute favors non-public figures who are subjected to false
publicity91. This applies when the presented information is incorrect or made with actual malice
such as New York Times v. Sullivan. The information can also be embarrassing or highly
offensive and for these reasons damages may be recovered.
Public disclosure
This element protects individual from the event where information that is not of public
concern is revealed. In this concept, the fact that the reveled information was accurate does not
matter as long as the defendant disclosed confidential information to the public domain.
ii) US right of publicity law
The right of publicity in the U.S was first witnessed in Haelan Laboratories Inc. v Topps
Chewing Gum Inc92. Both the plaintiff and the defendant were chewing gum manufacturers
where Haelan had contacted a baseball athlete for an endorsement with the assurance that he
would not grant similar rights to another entity. Since the athlete had not given Haelen the rights
90
Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime,
7 NALSAR STU L. RW 86 (2011)
91
oey Senat (2000), "4 Common Law Privacy Torts"
92
Haelan Laboratories v Topps chewing gum (1953) 202 F.2d.866(2d cir)
36. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 36
to sue on their behalf, it was quite difficult to employ the concept of right to privacy. Resultantly,
the court gave the plaintiff relief by coining the right to publicity since Haelen had exclusive
rights to publish the image of the athlete. The plaintiff is only required to prove that the image
used by the defendant resembles the one registered and it does not have to be formal or full name
even a nickname is well applicable93. For instance, in Faegre & Benson, LLP v Purdy94, the court
ruled out that the defendant had misappropriated the claimants name by the use of his
pseudonym in the domain of the website.
The American law interprets likeness as the visual image of an individual whether in a
photograph, drawing, caricature, or through any other representation. In the USA laws, the right
of publicity is usually intertwined with the trademark issues95. For instance in the case of
McFarland v Miller96, the plaintiff was complaining over the use of the label SPANKY
MCFARLAND as a restaurant name by the defendant. The court followed the issues of right of
publicity and trademarks as stipulated section 43(a) of the constitution on the aspects of names or
other registered trademarks. The American federal law on publicity rights is disseminated into
various principles.
The principle of descendible, transferrable, and fixed term argues whether the right of
publicity survives after the death of the holder with states such as New York limiting it to
lifetime while others still feel that the rights extends even after a person’s death. The grandfather
clause also looks at trademark rights that were acquired a long time ago before enactment of a
93
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives,Media, and the Law (Oxford
University Press,2010
94
Faegre & Benson, LLP v Purdy, 367 F. Supp. 2d 1238 (D. Minn, 2005)
95
JOHN G. FLEMING, LAW OF TORTS 741 (9th ed. 1998); R. M. Williamson, Actio Personalis
moritur cum Persona in the Law of Scotland, 10 L. Q.
96
McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)
37. The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 37
similar use in current situation. A good example is the use of the word Winston Churchill.
Exemptions from liability are the clause that separates the violation of rights to publicity from
the freedom of speech granted by the constitution. The rights to publicity for instance would not
be awarded in news items, biography, history, fiction, commentary, and parody. To claim right to
publicity, it is paramount for the plaintiff to show that the defendant used an aspect of his
personality that is already protected by the law for an exploitative purpose and that there was no
prior consent or authorization given97. Consequently, the USA personalities rights are ailing from
disconnect among various states; hence, the stakeholders are working on harmonizing the law.
97
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives, Media, and the Law (Oxford
University Press,2010)