PROTECTION OF PERSONAL RIGHTS IN NEW CIVIL CODE – Act. n. 89/2012 Coll.
The Czech New Civil Code (Act n. 89/2012 Coll.) entered into force on 1.1.2014. The scope of the protection of personal rights has been increased and sanctions for an infringement of the rights became stricter. In the following there is a comprehensive overview of the new legislation regulating new provisions on privacy, defamation, image rights and remedy for an infringement. There is still no official translation of the Code but I am providing with the English translation of the Personal related Sections New Civil Code – Personal Rights – Translation of the Act and the PP presentation Protection of personal rights in NCC CZ prepared for the International conference on New Civil Codes in the Czech Republic and in Hungary held on 20th June 2014 in Prague.
New Civil Code structure
The protection of personal rights is regulated in General provisions Art. 81 – 117 NCC
• General protection 81 – 83
• Image and privacy 84 – 90
• Name 77 – 80
• Right to mental and physical integrity 91- 103
• The rights of an individual admitted to a health care facility without his consent 104 – 110
• Disposing of human body parts 111 – 112
• Protection of human body after the death 113 – 117
The remedies are regulated in the Part IV. – Relative rights; Division III Obligations arising out from the delict:
• Non – material harm in S. 2951
• Harm done to natural personal rights in S. 2957 – 2971
• Pecuniary damages
• Moral damages
• Secondary victims
• Aggravated damages
General Clause with demonstrative listing of rights – Art. 81 NCC
The human personality including all his natural rights is protected. Everyone is obliged to respect the free decision of man to live on his own. Life and dignity, health and right to life in a convenient environment, esteem, honour, privacy and expressions of personal nature are mainly protected.
Right to name Art. 77-79 NCC
– right to use own name, protect own name
– newly awarded protection of pseudonym under the condition that the pseudonym is widely known in the society
– newly stated protection of a person who cannot defend due to incapability, lack of legal capability or missing, close relatives are able to bring a claim instead
– in case of an infringement of the family name and the family interest, husband or other close relative is legitimate to bring a claim
– in case of an infringement related to the person connected with some company, the company might be able to bring a claim with the consent of the natural person
Right to own image Art. 84-85, 87-90 NCC
– the concept is based on an autonomy of will and freedom to decide whether one allows to take a picture and distributes the image
– the ban of illegal depiction of a person and its distribution
– the image right is protected even outside the intimate sphere
Newly stated is that with the consent of taking the image one consents with the distribution to the public in a manner that is ordinary in a situation and time
– the consent is revocable at any time
Right to privacy Art. 86, 90 NCC
– ban of the infringement of the privacy without legal reason
– demonstrative listing of possible infringement:
• disturb private places (premises) of a person without his or her consent
• intrude into the private life
• take an audio or video recording of the private life
• use of such a private recording or other recording of the intimate life by third person or distribute such a personal recording to public
– all written expression of the person is protected in the scope
– the legal reason to interference into the private life has to be proportionate and not in contrary to legitimate interest of the person
Image right and exemptions from the required consent Art. 88 – 89 NCC
The consent shall not be required if the documents of personal nature, pictures and image and sound records are to be used for official purposes on the basis of an act. The official purpose is also the situation when a person acts in a public interest matter.
Image, pictures and sound records may be taken or used without the consent of the individual adequately also for purposes of science or art and for the purposes of press, motion picture, radio, television or other similar news services (Internet).
However, such use must not be in accordance with lawful interests of the person and must be proportionate.
NCC creates a new legal license for the purpose of use or defence of the rights and lawful interest. Especially for court hearings.
All written expression of the person is protected in the same scope.
Post-mortem protection of personal rights
Extension to close relatives(§ 22 NCC – not only husband and children, parents, but also siblings and others who suffer the damage done to the person as their own)
The close relatives are able to bring a claim with the requirement of moral and pecuniary damages.
Unjust enrichment Art. 3004 NCC
Perpetrator acts in a bad faith to infringe personal rights for the purpose to gain a financial advantage without consent.
• Copyright concept:
– Double price of the remuneration usually acquired with consent
– judges´ discretion to award higher remuneration
Remedy Art. 2951 – 2971 NCC
S. 2951/ 2 Non-material harm
– primary moral satisfaction, pecuniary satisfaction is awarded if moral is not satisfactory
S. 2956 Mental suffering is considered as a non – material harm
S. 2957 Conditions to consider for assessing adequate damages:
– Aggravated damages:
• intention to harm
• causing harm using deceit, threats, abuse victim
• multiplying the effects by making it public
• discrimination with regard to the victim’s sex, health, ethnic origin, faith or other similarly compelling reasons.
• victim’s fear of loss of life or serious injury, if any, threat or fear caused by another cause
S. 2971 Secondary victims
Under special circumstances of unlawful act, gross negligence, breach of important legal obligation, damage caused intentionally from a desire to destroy, the perpetrator is obliged to pay pecuniary damages to any person who suffers due to the infringement of the right close person.
The Civil Procedure Code (Act. n. 99/1963 Coll.) amendment due to the enactment of the NCC
The Court of first instance in cases dealing with protection of personal rights are the lower Courts instead of the regional courts which are now the Courts of appeal.