Iniuria in Modern Law
Of the treatments of this area by the Scots institutional writers, those by Stair and Bankton are of the greatest interest.[2543] Stair[2544] gives an account of delict based on reparation for wrongful damage to certain identified interests.
These are:• ‘Life, members and health', seeming to be concerned specifically with financial loss;[2545]
• liberty;
• ‘fame, reputation, and honour';[2546]
• ‘our content, delight, or satisfaction' in our property;
• ‘goods and possession', concerned with the actual value of property.
The second and third of these seem closest to iniuria, and to some extent the first.
Bankton takes a different approach. For the most part, he presents the law of delict as a series of more or less specific wrongs. However, as far as the subÂject matter of this chapter is concerned, he describes a single, broad delict, called ‘injury'.[2547] The influence of Roman law is clear, as this is largely based on Roman texts and covers very much the same range of wrongful acts as iniuria.[2548] For example, Bankton’s delict of ‘injury’ includes assaults as well as words woundÂing a person’s character, and also ‘composing infamous libels and satires to one’s disgrace’.[2549] Also falling within the scope of this delict is the ‘writing, printing or publishing Pamphlets or Satires, to another’s dishonour’, with ‘the truth of the things objected’ no excuse.[2550] This is significantly broader than the modern law of defamation, which is specifically concerned with untrue assertions that are harmÂful to someone’s character.
From the eighteenth century onwards, under the influence of English law, the Scots law of delict moved away from this kind of general principle of liability.
Instead, the modern law in this area is characterised by a series of narrower, more specific delicts, such as defamation or assault, each with rules of its own dealing with a particular kind of wrongful conduct.[2551]The problem with this is that the range of ways in which a person can be insulted has certainly not shrunk since the days of the Roman jurists, never mind since the eighteenth century. If anything, modern technology has increased the ways in which a person’s dignity or reputation can be damaged or affronted. The major shortcoming of a law of specific delicts is that, from time to time, a case comes up in which justice demands a remedy but which does not readily fit into an established category. Sometimes, Parliament can fill a gap, an example being the introduction by statute of a delict of harassment.[2552] Even then, though, legÂislation is not normally retrospective, and so cannot help anyone harmed by the conduct in question before the legislation comes into force. In such cases, there is benefit in having a general principle of liability to fall back on. It is noticeable that the Romans, with a general principle of liability, did not have any trouble fitting harassment-type behaviours within its scope.[2553]
The difficulty that the modern law has had in dealing with harassment can be seen in Cowan v Bennett.[2554] In that case, the pursuer and defender were both memÂbers of a business networking club. The pursuer was a painter and decorator, the defender a designer and printer. At club meetings, the defender persistently referred to the pursuer as ‘the gay painter’, acted in an exaggeratedly ‘camp’ manner when the pursuer was mentioned, printed the pursuer’s business cards on pink card, and said and did various other things intended to suggest that the pursuer was a homosexual (which he was not). This was done with the intention of embarrassing and humiliating the pursuer, for supposedly humorous purposes.
The case was not argued as one of harassment.[2555] Instead, in the absence of a clear common law principle of liability for affronts to a person's dignity, the case was argued on the basis of defamation. This case could never have succeeded, for two reasons.[2556] First, an allegation is only considered defamatory if it lowers the person referred to ‘in the estimation of right-thinking members of society'. While an allegation of homosexuality would once have been considered to do so, this is no longer the case. Second, none of the other members of the club took the defender to be seriously suggesting that the pursuer was homosexual. In any case, though, to categorise this as defamation (which means loss offama, or repuÂtation) seems to miss the point. The pursuer was not upset because his reputation had been harmed, because it had not.[2557] Instead, he was upset by a persistent course of conduct designed to embarrass and humiliate him. The effect would have been the same if he had in fact been homosexual.[2558] [2559] [2560]With a law of specific delicts, rather than a law based on broad, general principles, the courts have two options: either refuse the injured party any remÂedy, or stretch an existing ground of liability so that it will fit. Consider, for example, the English case of Tolley v J S Fry & Sons Ltd.60 In this case, a picture of a well-known amateur golfer was used, without his consent, in an advertiseÂment for a chocolate bar. The golfer sued for defamation, on the grounds that anyone seeing the advertisement would assume that he had been paid for the use of his image. This would be inconsistent with his amateur status, and so it would (he argued) lower him in the estimation of right-minded people. He was successful in this argument. We must ask ourselves, though: is this really what he was most offended by? Perhaps it was — a sportsman's amateur status was more jealously guarded then than it is now — but it is probably fair to susÂpect that a professional golfer would have been just as annoyed by his image being used without his consent. It is interesting to compare the very similar South African case of O’Keeffe v Argus Printing and Publishing Co Ltd.61 In that case, a photograph of a well-known broadcaster — not an amateur, and so unlike Mr Tolley — was used in an advertisement without her consent.
She sued successfully. Because South African law has retained a much greater sense of iniuria as a general ground of liability, the court was able to give its decision a much more realistic basis (expressly based on the actio iniuriarum), that this was an offence against Ms O’Keeffe’s dignity rather than her reputation.[2561] This may also be the case with other situations where upsetting words or images appear, even where the words are in fact true. An example might be where a person is exposed without warning to insensitive or sensationalist television coverage of the murder of a close relation.[2562]Privacy is an area that has raised particular concerns in recent decades, probÂably because modern technology makes it much easier to invade someone’s priÂvacy. Roman law did not have any specific right to privacy,[2563] though we have seen some ways in which iniuria could operate to protect privacy. There have been suggestions that iniuria could provide the basis for a modern law of privacy.[2564] For example, it has been suggested that iniuria could provide a basis for liability for the release of ‘revenge porn’ images, normally by a former romantic partner.[2565]
It is interesting here to compare the South African case of Le Roux v Dey [2566] In that case, a teenage school pupil downloaded a sexually explicit image of two naked men, and crudely altered the image so that the men’s heads were replaced with those of the principal and deputy principal of the school. The image was then circulated among the boy’s friends, and a copy appeared on a school notice board. After the boys involved received only minor punishment from the school, the deputy principal sued the boys for damages. He was successful. The case raises a number of difficult issues, and it has been criticised on a number of grounds with which we are not concerned here.[2567] [2568] For present purposes, what the case boils down to is this: if A creates and circulates pornographic images of B, albeit they are crudely and obviously faked, is this actionable? For the South African Constitutional Court, the answer was ‘yes’, and it was in part said to be so expressly on the basis of iniuria.69 The effect of the boys’ actions was to ‘belittle and humiliate’ the deputy principal, and ‘to represent him as unworthy — or at least less worthy — of respect by the learners of the school’. In other words, the creation and circulation of the image offended against the dignity of the deputy principal. Viewed this way, it can be seen as very similar to the creation and circulation of revenge porn. In its current state of development, Scots law gives clear protection to two of the interests covered by iniuria, namely body and reputation. Protection for the broad interest called dignity is less clear. There are, though, at least some hints that Scots law may include a general principle protecting dignity, includÂing a person's right to privacy and freedom from interference. Henderson v Chief Constable, Fife Police[2569] [2570] seems to be an example of this, even though iniuria was not referred to by name. In that case, a laboratory technician was arrested during an industrial dispute. When being put in a cell, she was required to remove her bra. In the circumstances, this was held to have been unnecessary. She was awarded damages for ‘invasion of privacy and liberty'. More recently, in the Outer House decision in C v Chief Constable of the Police Service of Scotland01 a right to privacy was expressly recognised as forming part of Scots law. Perhaps surprisingly, though, there was no direct reference to Roman or ius commune sources. In the Inner House, it was doubted whether there was in fact such a right to privacy, though it was not necessary in the circumstances for the court to decide the point.[2571] [2572] [2573] [2574] There have been some cases also where iniuria has been directly referred to. For example, in Stevens v YorkhillNHS Trust00 the mother of a baby who had died agedjust over one month sued when she discovered that some of the baby's organs had been removed and retained without her consent. It was held that Scots law recognises as a legal wrong the unauthorised removal and retention of organs from a dead body, and this was said expressly to be based on the actio iniuÂriarum.04 The issue was also raised in Martin v McGuiness00 This was an action for damages for injuries arising from a road accident.