In Roman law, what we call a right to privacy can be somehow recognized, but without a speciﬁc legal deﬁnionor a characteristic content. This is a consequence of the needs of the time. The protection provided was the result of the existence of certain actions, mainly the actio iniuriarum , as the means to protect individual personality. The starting point for this is the polical structure of the civitas romana , in which the citizen exists prior to the State and is diﬀerent from it. As a historical comparast exercise, this study aﬃrms that English law lacks the kind of targeted acon against invasions of privacy that a modern society, individual-based, needs. The Roman example shows the strength of speciﬁc private-law acons in preference to vague public-law controls.
The Problem of Privacy as a Legal Value
On March 13, 1961, the House of Lords approved the first Right of Privacy Bill. At that time, the problem was the conflict betweeni ndividual freedom and freedom of the press. On that occasion, Lord Mancroft, presenting the proposal of a Private Member’s Bill, pronounced these words: “I hope to prove that protection is nowadays not enough. I suggest that privacy and human dignity are all too frequently invaded, and that this causes great hardship and suffering—more hardship and suffering than most of us who are in public life are ready to admit; and I believe that to be wrong.” In my opinion, despite the well-known development of privacy as a legal value in Europe from the end of World War II until now, this statement still holds true. Of course, the situation would be much worse without all the national and international instruments to protect privacy, but the daily experience after the invasion of new technologies shows that there is still very much to do in this field.
It can be said that privacy, like freedom, is a natural feeling of every human being. Otherwise, we would live in a prehistoric collectivism in which individuals have lost their self-awareness. It must be said that the development of personality of each individual claims an area of privacy, decision making, and critical thought. Individual identity and personality are mainly based on privacy, as the most intimate part of everyone that renders anyone unique.
On the other hand, holders of privacy need not be only natural persons, because like these, artificial persons such as companies can have a private ambit related, for example, to business practice and know-how. As with the right to honour in the field of legal per-sons, privacy shows its economic or patrimonial side above all. In this sense, an extended definition of privacy could be cited: “The claim of individuals, groups or institutions to determine for them-selves when, how and to what extent, information about them is communicated to others.” Meanwhile, when considering the privacy of individuals, the economic aspect—which obviously exists—is obscured by the importance of it as a reflection of the personality. This was suggested by Warren and Brandeis in 1890 in their famous article “The Right to Privacy.” This article is attributed as the origin of privacy as a legal value in the United States.
When we talk about persons, privacy and identity go together. This can be demonstrated in individual experience. In our world, situations of high limitation of privacy are exceptional and have to be justified by public reasons, like the necessity of an army to de-fend ourselves or the requirements of security in a prison. Even in such an environment the persons affected by the restrictions retain areas of privacy that show to others and to themselves their own individuality. It is to be noted that when the restrictions to identity and privacy cease, the persons concerned recover their previous status as unique and different human beings. This includes image, data and communications. In private law it could be said that privacy is like property, in the sense of its elasticity, because it recovers its plenitude when the limits imposed on it have ceased. But privacy has not always been a legal value, in the sense of having a specific protection against others’ unauthorised intervention.
It is obvious that, today, privacy is not restricted or attacked only for governmental interest reasons only. New technologies and media are constantly threatening our privacy. This is the real reason for our current interest in this subject. In some extreme cases, even the will of a person can be directed to a specific commercial trans-action after studying his or her consumer habits through the use, for example, of a credit card. From a point of view influenced by the Will Theory, we could ask ourselves if these contracts are valid because the will has been so strongly conditioned by euphemistic Customer Relationship Management. In other cases, it is not possible to claim back anything because we do not have control of our data in a social network, for example. It is like being naked in the village square. In these circumstances, to exercise the ius prohibendi to protect privacy is almost impossible.
In the EU, for example, Member States reacted to the new problems with Data Protection Acts as a result of the EU Directives, but the sensation of insecurity is still very common. In general, to be optimistic, there is a common core of personality protection in Europe, which includes privacy. In modern democracies, the problem does not arise mainly from governmental intervention because this is checked by the judiciary, and the origin of the intervention is clear. Today, in our countries the real problem is mainly caused by private initiatives related to the free market and new technologies. When the wrongdoer is a private person we could say that we have gone from being spied on by a gossipy neighbour fond of eaves-dropping to falling under threat of an invisible enemy, sometimes even an undetectable one.
Thus, in our times and in the western world, the problem of privacy aggressions has moved from a public to a private aggressor. In these circumstances, legal solutions are needed and superficial solutions to the problem of privacy are visibly inadequate. For in-stance, it is absurd to think that the free market or new technologies could be abolished because of privacy: we cannot change the political and legal system just for this reason. Nearer to reality, but equally extreme, is to hope that the persons concerned with conflict of interests would find solutions by themselves, under the principle of freedom of contract. Of course, this last option is an illusion because the two parties in a relation of this nature are clearly in an unequal relationship. In my opinion, these two solutions are equally absurd and the present situation is the result of intrusions of unexpected magnitude for which modern democracies and law were not pre-pared. I think that the first step in this field should be a reflection on the importance of privacy as a legal value in western democracies. Only if we are conscious of its importance can a proper legal solution be found to preserve our model of coexistence.
For this purpose, the content of the so-called “right to privacy ”should be clarified. Such content itself is the result of the protection of privacy as a legal value. The subjective perception of privacy we all have is legally shaped by legislation and judicial decisions into a general and objective model of privacy. This model is not stable and it depends on the social values in force in a concrete society, namely on the circumstances of time and space. Also for this reason, the standard of privacy can be legally modified by changes of these social values. In this sense, privacy could be considered a vague legal concept. Thus, we cannot expect to have a fixed content of privacy, but we could try to draft a basic concept of privacy. In this regard, privacy could be identified with the core of private life; that part of life in which a person is entitled to reject any intrusion. It is also the part of private life where the public administration needs permission by the judge or by the law to intrude. It could be said that beyond privacy there is nothing left or, in other words, that privacy represents the most intimate and inner sphere of any individual. Then not only personal data or image—including voice—will be part of this right, but also intimacy and honour, religious, philosophical or political ideas, financial, health or familiar situations, sexual orientation, communications and private residence or place of work.
The core of these aspects of privacy may be found in the 1950European Convention on Human Rights and Fundamental Freedoms. In article 8, privacy is protected against private persons’ or corporations’ offences and not only against public authorities’ interferences, as a restrictive interpretation would suggest. As is well-known, the same Convention requires national authorities to pro-vide an effective remedy to protect rights and freedoms, which affects privacy. The early date of this Convention explains the gaps of the regulation in this field, in which judicial decisions have re-cognized new contents. Among these, England could be mentioned for example: protection from excessive noise, protection from being photographed in circumstances where the individual has a reasonable expectation of privacy, or protection from bad smells affecting one’s private and family life and one’s home.
Today, it is even possible to talk about a “right to publicity,” as an evolution of the right to privacy related to the raising of “an action either to prevent or to seek subsequent compensation for, the wrongful appropriation for commercial purposes of another’s person.” On the other hand, the right to privacy is not an absolute right, but a qualified one. As is well known, this right not only clashes with freedom of expression and freedom of the press, but also with “the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, or for the protection of health or morals.” These could be exceptions to the right of privacy to be established according to law.
In the contemporary world, the recognition of privacy as a legal value is quite recent and it is related to the new political and social principles arising out of the French Revolution. In this field, the key concept is the new relationship between the citizen and the modern State and the acknowledgment of the individual as a whole, not only as an owner, as a part in a contract, or as a pater familias, but as the holder of a personal sphere of life which should be legally protected. Likewise, it could be affirmed that the individual as a legal person, the citizen, is recognized as the holder of corpus and animus. On the other hand, the relationship between property and privacy is very close because private property can be seen as a means to support privacy. This is commonly perceived as one of the consequences of the change in economic structures after the end of Ancien Régime and the development of the urban bourgeoisie.
Nonetheless, the roots of modern privacy rights are not here, and are not so recent. Like the roots of the concept of citizen, to which privacy is very closely related, the origin of this legal construction lies in ancient Rome, often neglected in favour of ancient Greece as the origin of our democratic systems. In this sense, it is paradoxical that privacy—which could be considered together with property to be the core of private law—is so close to citizenship—which could be regarded as the base of public law. There are only three ways to undo this knot: first, to consider that privacy is a matter of public law; second, to ascribe citizenship to private law; or, third, to abolish the distinction.
In sum, it could be said that the problem of privacy is related to the problem of freedom and to the recognition of personal individuality by a political system, because only on that basis can privacy be considered a legal value. Thus, it is necessary to have the provision of legal protection of privacy in substantive statutes. Also, it is indispensable that there exists a real possibility of exercising the appropriate actions to protect privacy within the judicial system togrant statutory protection of privacy and to be able to enforce such protection. The person as a holder of a true right to privacy must have the choice to allow others into this personal ambit. If he or she decides not to, a ius prohibendi can be invoked. Finally, in case the prohibition is not taken into account by the addressee, the holder of privacy should have the right to exercise an actio. Vacuous statements are not enough to create a legal value. On the contrary, the existence of that value depends on the right to take suitable actions to protect it.
The Roots of Modern Privacy and Ancient Rome
This is precisely what we find in Roman law, the existence of what we call today a right to privacy but without a specific legal declaration. There is no legal concept to identify the idea of an intimate sphere of private individuals that should be legally protected. The same could be said about some other concepts, like personality, which is closely related to privacy. As Ibbetson says: “Legal ideas are not natural facts waiting to be uncovered, and even the lawyers who use them rarely take the trouble to formulate them explicitly.” Thus, we will not find in any Roman law source the words privacitas or personalitas, or their modern equivalents, but from a contemporary point of view, we can deduce the existence of these legal values from the shape of classical Roman law. In this legal system, the main means to protect what we identify as the origin of privacy was the actio iniuriarum, which had two basic functions: the first is to redress physical injuries; the second is to redress aggressions against “non-physical aspects of the personality.” Again corpus and animus are both considered. The legal evolution begins from the XII tables, which provided protection just for physical assaults, and arrives at the praetor’s edict, the instrument to modernize the old civil delicts. In both groups of injuries, physical or not, only a Roman citizen could be affected and, originally only a pater familias could exercise the action. This is a consequence of the role of citizenship in the foundation of ius civile—based on the Acts and customary Law—and ius honorarium—based on the edict of praetors—and of the identification of patres familias as the only full individual persons.
Another thing to take into account in relation to the actio iniuriarum is its penal nature. This is different from a criminal accusation, and its procedural field is the ordo iudiciorum privatorum. This means that the offence is regarded as a private or personal attack. In these cases, the only person who can exercise the actio is the person who was—directly or indirectly—injured, excluding others. This is, as is well known, the main difference between delicts and crimes in Roman law. On the other hand, we can also say that the reaction to this kind of wrongs is not the same as the reply to a debtor who does not pay. In this case, the condemnation was not based on the idea of compensation but on the idea of punishment and involves infamia for the offender. As any other condemnation in the Roman ordo iudiciorum privatorum, it had a financial nature, so it was necessary to evaluate the offence in terms of money. It represents mainly a reply to the wrongdoer for his acts. To avoid the condemnation, a transactional agreement can be reached in this case because iniuria it is a private aggression, a tort. It is also necessary to underline that, as a delict, iniuria postulates dolus as the mental element: therefore, dolus will be necessary to be found guilty of “outrageous behaviour” against another’s personality. Like today, personality and privacy are closely related in Rome.
Not only is the legal mechanism of the actio iniuriarum very specific in Roman law, but also the behaviours censored as aggressions to the intimate sphere of a person are characteristic of a particular time and space. These factors are especially relevant in the field of privacy because they are connected to social values; however, the idea of privacy as the inner area of any individual is also present. Here, we are focusing our attention on the actio iniuriarum as the main means to protect this inner area. It is the legal reaction to moral offences related to honour.
For example, the actio iniuriarum is applied in cases of defamation, and to situations directly related to the idea of protecting the private sphere of the individuals. Among these are the cases of offences against decency, especially regarding women and young Romans, male or female. From these aggressions, this part of Roman population was protected by the so-called edictum de adtemptata pudicitia. It is striking, for instance, that one of the behaviours considered objectionable in Roman classical law was chasing a respectful woman in the street (adsectari), or leaving her unprotected by removing her escort (comitem abducere), or uttering compliments on her way in order to persuade her (appellare blanda oratione). All these aspects, in my view, help to define the existing social values of that time and place. It is to be noted that the protection favours only the matronae romanae and respectable young citizens, who cannot be treated as prostitutes or riff-raff, respectively. In these cases, attacks adversus bonos mores have consequences for the public image of the person and therefore, personality is concerned.
We can say that the social value of honour is particularly relevantin the conception of Roman personality. This concept could be crystallized indignitas and fama, as the values offended by non-physical aggressions. As Ulpianus says, dignitas would be affected, for example, when a matrona’s escort is removed and fama when virtue is challenged. From our point of view, there is a connection between dignitas and fama(honour), which are Roman social values, and personality, which is a modern legal concept. Social values may have changed, but the basis of the idea of individual personality, which the basis for modern privacy, is already present in Rome.
Maybe closer to today’s mentality about privacy would be the right to a private residence, also sanctioned by the actio iniuriarum. The idea of domicilium goes back to the second century BC and it is configured as the element that identifies the person with the territory, to which the individual is legally bound as the center of his or her activities. Obviously, the word comes from domus, which is the seat of the family and therefore a separate entity from the civitas, presided by the pater familias, as Pietro Bonfante would say. Moreover, if the breaking into a private residence is violent, the act is not just a delict but a public crime, as a result of the lex Cornelia de iniuriis. This does not mean that we are talking about an absolute right or saying that a private residence could be a safe-haven for wrongful acts. This is shown, for example, in the regulation of house search (the famous quaestio lance licioque) in the XII Tables, and by the possibility of taking the reus out of his house. In the same way, the pater familias could take his filii with him from wherever they were, the power of the father overriding any other legal value.
The same actio iniuriarum can be used against any attack on private property directed at preventing its owner from using it. It is to be noted that this is a personal action and not a real action like the rei vindicatio. Consequently, what is being protected is not the integrity of the property but the right of the owner to be respected. This is to say, his honour. The same response is given when the use of things open to everyone (res communis onmium) or property of the State (res publicae) is prohibited to a Roman citizen because his legal status has not been considered.
Special mention should be given to secrecy of correspondence, which is not a right but it is socially perceived as a value. In this sense, the reaction of Cicero after the publication of one of his let-ters by Mark Antony in the conflict between them after Caesar’s death can be remembered. These were Cicero’s words to Antony before the Senate: “Behaving as a man ignorant of the conventions of civilized life, and regardless of good manners, Antony read aloud a letter which he said I had sent him. Who ever heard of anyone with the slightest pretension of the courtesy prevailing among gentlemen, on the pretext of some offence or other, producing and reading in public a letter written him by a friend? What is this but to vanish social life from life, to abolish all intercourse between absent friends?” Surely, this courtesy mentioned by Cicero was enough for a long time to protect the privacy of correspondence. In this respect, we should not overlook that written communications were less common in Rome than today because only a small part of the Roman society could read and write. In any case, the actio furti, a penal action related to a patrimonial offence, could be used against a person who took another person’s letter animo furandi, which is a different problem from privacy.
Until now, we have tried to demonstrate that Roman law can be somehow measured as a starting point to consider privacy as a legal value even if the Roman jurists did not create the concept and this value has a different concrete content. Fortunately, we are not alone in emphasizing the connection between Roman actio iniuriarum and modern Law of privacy. As Zimmermann says, “the disregarding of another person’s personality was common to all the situations examined above,” which could be said about any offence to privacy today.
For us, the relationship between legal protection of private life in Rome and the political structure of the civitas is perhaps an essential reference point for the current understanding of the problem. Therefore, this is examined next. It is essential here to understand the concrete conception of persona in Roman law, of its individuality against the civitas and against other private individuals. Thus, our goal is to address the idea of individual persons as holders of a particular sphere that can be legally defended by themselves from external aggressions.
As is well known, the word used to designate the State in Rome is civitas, but this is the final result of an evolution. Philology has proved that the word originally meant the condition of citizen, later the group of citizens and, finally, the State, if we can talk about “State” before Montesquieu. In other words, civitas originally meant citizenship, then the whole of holders of Roman citizenship and now the legal person built by the citizens to administrate common matters in Rome. If we accept this, we could say that the citizen is preexisting to the civitas, and that the construction of the civitas as a legal person separated from individuals is the result of the citizens’ decision. In legal personality we have another example of a Roman construction without a legal theory background, but one that can be inferred by its results.
On the other hand, if we compare the Roman civitas to the ancient Greek pòlis, we can see that a pòlisis the whole of politēs; therefore, Greek citizens are not different from the Greek State, and their individuality is not legally recognized as it was in Rome for Roman citizens. In other words, the Greek pòlis is in the second step of the development Roman civitas and it does not reach the conception of a different legal person from the individuals’ personality. This may lead us to understand why the basis of the right to privacy is present in Rome but not before. It is also necessary tosay that this is the result of an evolution because in Rome there was a transition from agentes-based social structure to a family-based social structure, in which patres familias were the only full legal persons. In this field, it could be said that political and cultural reasons prevented the complete transition to a real individual-based social structure in Rome because women and filii familias were not full legal persons.
In Rome, the individual has a high political value. We could say that from the beginning, as pater gentis or pater familias, he bases his claim to legal protection by resorting to the application of self-defence. In this sense, if we observe the evolution of Roman civil procedure, we can see that it starts from some general legis actiones to avoid the feud as a means to solve disputes between private individuals. This is consistent with the conceptualization of the civitas as distinct from the cives, as a structure created by the citizens but different from them. In Duff’s words, “the oldest, largest and more powerful corporation known to Roman Law was the sovereign populus romanus itself.” Even from a patrimonial point of view, it is possible to talk about a different legal person to make reference to the public funds included in the Aerarium populi romani.
Consequently, there is a relationship between individual personality and citizenship in Rome, in the sense that the political structure of Rome as a community is the field in which personal rights grow up. It could be said that this way of considering citizenship is crucial, from a legal-historic point of view, to think about the existence of a true right to privacy. In some way, it could be said that privacy, as an element of personality, precedes the civitas and will be legally recognized as a consequence of the development of law. On the other hand, only from the moment we have an actio can we identify a true right. Also, the necessity of legal intervention when the limits of mutual respect are not adequate is a premise to trans-form a claim into an action and, in turn, to understand that a new right is born. As we have already seen in the case of secrecy of cor-respondence, a social use can be enough to protect a social value, but when it is not enough, law is needed.
Without leaving Rome, we can see the difference between the mechanism of the actio iniuriarum, characteristic of Roman classical law and Republican sources system, and other measures related to personality in Roman law. A good example of this is the recognition of religious freedom by the Edict of Milan, of 313. In this case, there is not a claim which is transformed into a right as a consequence of the praetor’s protection, but a concession from the power, the emperors Constantinus and Licinius, to the people. The reasons for this concession are mainly based in the emperors’ will and the citizens, now subordinates to the Domini , just receive a new right. The protection of religious freedom is absolutely new in Antiquity and very important in modern times, but it is very far from the idea of privacy as shown by the use of the actio iniuriarum. Furthermore, it is also very interesting that Constantine prohibited the public accusation of adulterium, leaving this possibility in the hands of close relatives. This is another example, even clearer than the former, of a concession from the authorities, which can be understood from today’s perspective as a measure to enforce the protection of private life.
In the Middle Ages, privacy is recognized through the right to a private residence and the right to honour. In any case, it is difficult to talk about rights in a modern meaning at that time. First, because the idea of individual rights in medieval times, as in the late Roman Empire and in the Ancien Régime, is founded on a concession from the ruling power. Thus, it is very far from the Roman and current idea of citizenship. Second, rights like honour are reserved to a small segment of society and are not attributable to every person. We can still say that privacy is a natural feeling, and it will be defended by different means if there is not an adequate instrument legally established to do so. This is the reason, in my opinion, for the existence of duels from the Middle Ages to the nineteenth century as a social way of solving honour disputes. In Rome, however, duels are unknown even if we can see that the sense of honour is very present in Roman society. What makes the difference in Roman society is the existence of the actio iniuriarum and, in particular, its proper functioning in accordance with social requirements. For example, in England the existence of a law of defamation from the beginning of the sixteenth century or even before is well known, which “can hardly be credited with the virtues of clarity and simplicity either,” in the words of Zimmermann.
A Diachronical Comparison: Some Final Remarks
To conclude this reflection on what could be called “Roman law of privacy,” we can affirm that the vision of the legal problems that provides a historical perspective can be very useful when trying to discover the reason of things and their purpose in the present legal order. Moreover, if we find valuable legal institutions that support freedom of individual, we can protect their future on the basis of an adequate knowledge of their past. In other cases, understanding legal values, like privacy, in their historical background and evolution, we could even imagine future political changes by observing the legal regulations of such subjects. It is also possible to predict the blooming of democratic values when these institutions’ roots are strengthened in those parts of the world where they are too weak. In respect to the right to privacy, we could say that the threats are new but the past responses to them by private law system of actions are useful, at least for the legal reflection.
From a natural law perspective, the right to privacy could be counted with property and others among the rights pre-existing law. On the contrary, from a point of view closely connected to the Roman legal experience, it is not possible to talk about rights with-out actions. In old Rome, the development of the classical legal system—under the influence of Iuris prudentia—and the social requirement of protection of individuality as a legal value were the basis of this new right. This is the same scheme we find for every single right in ius honorarium and in ius gentium, from delicts to contracts. In these cases the praetor’s edict was the cradle for new legal values to be born and developed, from the very first time they were protected. Thus, it is the civil procedure that is the ambit of creation of rights and, before that, the social claim and the jurisdictional response by the edict. The consequence of the edict is the action, and the action is the reason to recognize a new right and, finally, a new value as legal. The key element in this system was Iuris prudentia, that is to say, the part played by the whole of the jurists as the element which connected social requirements and legal values. As is well known, jurists were not only mainly advisers of the people, but also of magistrates. Their double position as citizens and as specialists in the legal technique or art created by them is the reason for the connection between society and law. In other words, for the success of Roman law.
This could sound familiar to a modern lawyer and perhaps these are two elements to be taken into account when thinking of rights of personality, like privacy: in the present time, the social necessity of legal protection is very clear when we talk about private aggressions, but do we have sufficient legal development to respond to this necessity? If we see how the problem of governmental actors’ attacks on privacy have been solved, we can be half hopeful. In this case, legal regulations and judicial control of administrative acts have redesigned privacy. Generally speaking, we could say that jurisdictional guarantees tend to give enough security to privacy, even if problems will always come before solutions.
In any case, there is a very effective control in Europe: the European Court of Human Rights (ECtHR), the last instance to protect citizens from attacks against Article 8 of the European Convention on Human Rights (ECHR). For example, this Court has recently censored the practice of indefinitely retaining fingerprints and DNA samples and profiles of unconvicted persons without consent, a widespread governmental activity before 2008 in England, Wales and Northern Ireland.
Today, privacy can be considered as a social and political achievement connected to an ambit of individual control, accessible only by choice. Apparently, the technological factor is secondary with respect to space and time, that is to say, to current social values. This is because it has no impact on the definition of the term “aggression,” since there is no conceptual difference between spying through the keyhole of a lock or through a camcorder. However, the emergence of new technologies of information and communication provides greater ease for the invasion of another’s privacy. This re-presents an increase in possible aggressions and is surely a source of concern for citizens and lawyers. Nevertheless, it is not only a problem of quantity but also of quality if we consider the use of the information obtained by wrongdoers.
In short, in every different historical circumstance, political and legal conditions explain, first, whether it is possible to speak of individual personality and privacy as legal values; and second, what is the content of this right. At the same time, the existence of the right to privacy contributes to define a political and a legal system. Thus, what is at stake is not only the problem of a group of individuals with a certain purchasing power, but also a model of political coexistence based on the consideration of public administration as a respectful guardian of individual liberties. If citizens do not have true legal means to protect their personality or their identity from attacks against their privacy, we may be sliding toward the construction of a parallel power to the civitas, immune and out of control. In the Western world there is a long history of struggles against political totalitarianism. However, just when we all thought that we were safe, new technologies have appeared to make us think, again, about the importance and the origin of personal freedom.
Maybe the next step in English Law could be the creation of a specific tort action for invasion of privacy, even if, in England, the action for breach of confidence has extended the protection to this field since the Human Rights Act 1998. This solution would make privacy more visible as a legal value, and would be the first response to the new situation derived from invasions by new technologies.