Abstract
[Extract]
In a Sydney Morning Herald piece yesterday, the new Freedom Commissioner Tim Wilson claimed that reputation was 'essentially a property right'.
With the greatest respect, this is not correct as a matter of law.
Property
Property is considered by the law to be a relationship between a person and a thing. (See eg the decision in Yanner v Eaton.) This is not much help however as to the content of the rights contained in what we regard as property.
In this respect, there are considered to be only two essential characteristics of property. First, that it is an enforceable right, and secondly, that it relates to a thing outside of ourselves.
A property right is enforceable against the whole world. It does not depend on your having a relationship with a particular person. For example, the right to sue someone for breach of contract is not a property right because it is limited to enforcement against only that one person. However a 'right' held in common with everyone, such as a 'right' to clean air, is not a property right. There is no way to enforce this as a question of property, although rights may exist under the law of nuisance or pollution laws.
The foundation of this idea of enforceability is that if we have property in a thing, we can exclude others from it.
Some may suggest that to be property a thing must have value. However this is not the case. I can have property in a disposable pen that has no ink, even though it may have no value at all. Likewise, some may suggest that it to be property means that a thing can be alienated ie sold, or given away. However this is not an essential element of property. An easement (right of way) is property, but it cannot be sold or given away without also selling the entire block of land with it. Leases, which are property, can stipulate that they are not to be transferred. So this is often a right associated with property, but it is not essential.
In a Sydney Morning Herald piece yesterday, the new Freedom Commissioner Tim Wilson claimed that reputation was 'essentially a property right'.
With the greatest respect, this is not correct as a matter of law.
Property
Property is considered by the law to be a relationship between a person and a thing. (See eg the decision in Yanner v Eaton.) This is not much help however as to the content of the rights contained in what we regard as property.
In this respect, there are considered to be only two essential characteristics of property. First, that it is an enforceable right, and secondly, that it relates to a thing outside of ourselves.
A property right is enforceable against the whole world. It does not depend on your having a relationship with a particular person. For example, the right to sue someone for breach of contract is not a property right because it is limited to enforcement against only that one person. However a 'right' held in common with everyone, such as a 'right' to clean air, is not a property right. There is no way to enforce this as a question of property, although rights may exist under the law of nuisance or pollution laws.
The foundation of this idea of enforceability is that if we have property in a thing, we can exclude others from it.
Some may suggest that to be property a thing must have value. However this is not the case. I can have property in a disposable pen that has no ink, even though it may have no value at all. Likewise, some may suggest that it to be property means that a thing can be alienated ie sold, or given away. However this is not an essential element of property. An easement (right of way) is property, but it cannot be sold or given away without also selling the entire block of land with it. Leases, which are property, can stipulate that they are not to be transferred. So this is often a right associated with property, but it is not essential.
| Original language | English |
|---|---|
| Journal | Curl: Property law, women and law, contemporary legal issues |
| Publication status | Published - 20 Dec 2013 |
| Externally published | Yes |