Jonathan Brown: What have the Romans ever done for us?

Jonathan Brown

Jonathan Brown looks at how Roman concepts in Scots law accommodate modern offences. 

‘Revenge porn’ has captured a lot of media attention in recent years – small wonder, as smartphones now allow anyone to create and share such content quickly and easily.

As with many matters connected to the rise of new technology, it is generally thought that the law needs to play catch-up and that Parliament must pass new laws to make sharing intimate images, without the consent of the subject, unlawful.

Indeed, in 2016, the Scottish Parliament did so, by passing the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Now, those convicted of the crime of “disclosing, or threatening to disclose, an intimate photograph or film” face anywhere between 12 months and five years in prison.

Disclosing, or threatening to disclose, intimate photographs or films was already essentially criminal prior to the 2016 act. The legislation effectively serves to spell out the letter of the law, making it easier for the police and prosecutors to recognise, and work to stamp out, such conduct. The conduct itself was already illegal.

In addition to being criminal, the sharing of revenge-porn material also amounts to a clear civil wrong, meaning that victims of such conduct may sue the perpetrator in the civil courts. This possibility has received far less attention than the criminal dimension of revenge porn, which is unfortunate, since Scots law has long recognised the existence of a legal remedy that helps those affected by this and other similar wrongs.

Revenge porn, in almost all instances, can be said to amount to the delict (civil wrong) ‘iniuria’ and so anyone who is wronged by such may raise an ‘actio iniuriarum’ to obtain ‘solatium’ in respect of the harm that they have suffered. Iniuria, solatium and actio iniuriarum are, of course, Latin terms, betraying the Roman roots of these legal concepts.

Many aspects of Scots law remain fundamentally connected to Roman law and Roman ideas continue to inform legal practice and scholarship in this jurisdiction. How, though, can legal ideas that were first conceived over 2,000 years ago be used to deal with a decidedly 21st century problem?

First, a little bit about what each of these Latin words mean. The first, iniuria, is a complex term which continues to possess at least two distinct meanings in Scots law. Commonly, it refers to the wrongdoing which a legal claimant must point to in court in order to justify a claim of loss, whether that loss was caused intentionally or negligently.

Less commonly, it can also be used to refer to any form of intentional or reckless wrongdoing which affronts a person’s dignity. Victims of revenge porn may suffer loss – they may lose income, or be psychologically injured by the ordeal – but such is not guaranteed. What is clear, though, is that any victim of revenge porn is likely to feel emotionally hurt or affronted by the situation. Even in the absence of any monetary loss, this hurt is enough to justify a claim for iniuria in Scots law; the means of raising such a claim is through an actio iniuriarum.

The remedy that a pursuer claims by means of an actio iniuriarum is called solatium. This word is etymologically tied to the English terms ‘solace’ and ‘to soothe’, since the monetary compensation that forms the remedy is designed to afford comfort to any victim who has suffered an affront to their dignity.

The word solatium is familiar to Scottish lawyers, who often encounter it in claims based on loss. Within the context of an actio iniuriarum, however, the threshold for a claim of solatium is lower than in a claim of personal injury or damage to property. The pursuer does not need to show that they have suffered any lasting physical or psychological damage, it is sufficient for them to prove that they were affronted by the conduct – no more, no less.

The act of sharing an intimate image or video against the will of one depicted in it is unquestionably an affront to the person’s dignity. By raising an actio iniuriarum, that person should, therefore, be eligible to claim solatium, compensation, for the affront.

Indeed, looking beyond the specific example of revenge porn, it is clear that, properly engaged, the actio iniuriarum could serve to afford compensation to victims of other novel, yet clearly wrongful, conduct; to use but one example, ‘upskirting’, as a flagrant invasion of privacy, is obviously likely to affront the victim’s dignity so justifying an actio iniuriarum.

The means by which dignity might be affronted are innumerable; human beings possess a perverse ingenuity when it comes to finding new ways to hurt others. It is only reasonable that the law should be used to afford compensation to those who are wronged by new means.

Although the remedy for intentional or reckless affronts to dignity clearly forms a part of modern Scots law, it has not been utilised to its full extent by Scottish lawyers. Perhaps this is because the means of pursuing claims based on affront remain clothed in archaic Latin terminology. Perhaps it is because English law does not recognise ‘dignity’ as a protected legal interest and busy practitioners tend to look south rather than to the distant past when dealing with a novel problem.

Whatever the case, the neglect that the actio iniuriarum has suffered, in Scotland, is to be mourned. One only has to look to South Africa – which, by a quirk of history, is Scotland’s closest legal neighbour – to see the potential. Scottish lawyers, like their South African brethren, could use the legal system’s connection to Roman law to a greater extent in order to help those who are harmed by malevolence in myriad forms. The tools are there and the potential benefits are manifest. All that is required now is the will to make use of an old law to solve new problems.

Jonathan Brown is a law lecturer at Robert Gordon University. This article first appeared in The Scotsman.