Lex personalitatis & technology-driven law

Abstract

The Reidenberg approach was both profound and practical: it took the trans-jurisdictional needs of medieval Europe which led to the birth of Lex Mercatoria and argued that the Internet requires as broad a sweep with the deliberate creation of a Lex Informatica. Without necessarily disagreeing with much of what Reidenberg and his followers have proposed, I would like, in this short contribution, to go one step further, and invite attention to an emerging field of law which I shall, for the sake of convenience, dub Lex Personalitatis. By this I mean the “Law of Personality” relating to personality rights in a much wider way than that understood by most common law-based commentators. The latter tend to divide personality rights into two broad camps: that of rights over commercial exploitation of image, name etc. and privacy rights….By proposing a composite concept of Lex Personalitatis I am seeking to go deeper and also encompass the underlying reasons for both image/identity-related rights and privacy-related rights. In essence, I am suggesting that we should be looking to a supreme value, the individual’s fundamental right to unhindered (or free) development of his/her own personality. In this sense Lex Personalitatis is closer in conceptual definition to the German Persönlichkeitsrecht, and can be viewed as both a fundamental right (ius personalitatis) underpinning much of, and an integral component of, Lex Informatica. I would also suggest that legal cultural and language barriers have prevented much of the world from understanding the depth and value of German legal thinking on the matter over the past 50 years. The primary raison d’être of such complex legal provision is not however to permit the use of informatics for trade or leisure. The latter is more likely to be an intended by-product. Certainly “informatica” is important, indeed essential for “commercium” and hence Lex informatica is certainly very important, but I submit that the raison d’etre of the hierarchical structure in Romania just outlined above goes beyond Lex Informatica. It is the realisation that the supreme value at law is that of the right of dignity and free development of personality, i.e. the ius personalitatis that inspires and underpins such law. It is not unnatural for the post-communist countries to use their experience of systemic abuse of personal information in 50 years of pre-digital communism to nurture a more profound appreciation of why the flow of information in society is so important and consequently why its regulation must be subservient to the individual’s right to the unhindered development of one’s personality. In doing so in the Information Age, they are helping to develop a Lex Personalitatis the scope of which is broader than that encapsulated by the term “personality rights” in the Anglo-Saxon legal world.