Volume 10, Issue 1

The paper discusses post-mortal protection of the right to reputation, with the aim of detecting similarities and differences in the legal treatment of this issue in European countries, and understanding the position of the European Court of Human Rights. The current theoretical standpoints as well as legislative approaches are quite diverse. Common law countries do not recognise a cause of action for posthumous defamation at all, and civil law jurisdictions regulate it quite differently. In this paper the authors attempt to provide a comprehensive overview and elaborate in detail the practical and theoretical aspects of the post-mortal protection of the right to reputation in order to answer some of the existing dilemmas. The authors also suggest the optimal method of post-mortal protection of reputational interests in modern society, bearing in mind the difficulty of achieving a balance between the exercise of freedom of expression and the right to reputation.

This article explores the specific question of protection which tort law in England and Wales affords to individuals who are victims of ethical spiking (consumption of food contaminated by malicious third parties which is physically harmless, but repugnant to their religion or beliefs), and moves on to analyse the wider implications for the possible evolution of trespass to the person, and the relationship between tort and human rights law in the UK. Although not a comparative piece, it draws on some features of the Spanish paradigm which illustrate significant benefits of developing the law in the English context in the manner suggested.

Scholarly debates in a number of Latin American and European countries have recently focused on the legal institution of punitive damages. These debates have been primarily influenced by the Anglo-American experience with the institution. The dominance of an outcome-driven, interpretive approach to an inherently complex and contradictory practice in the prevailing Anglo-American scholarship on punitive damages, however, has seriously affected and likely distorted the comparative and normative scholarly debates over the introduction of the institution in countries that follow the civil law tradition. In this article, I argue that, in order to participate more meaningfully in the punitive damages debate, civil law scholars should, on one hand, refrain from attempts to improve the understanding of the Anglo-American practice while offering country-specific assessments of the authors’ own legal system’s (in)compatibilities with the institution; and, on the other hand, actively engage in thorough discussions regarding the fundamental theoretical grounding of the place of punishment in modern private law. The novelty of this scholarly approach will require private law scholars to acknowledge both the punitive elements currently hidden yet nonetheless patent in domestic private law practices of awarding damages and the constraining effect of the pervasively proclaimed yet easily disputable clear-cut line between private and public law.