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The right to a name: Back to the future

https://doi.org/10.38044/2686-9136-2020-1-3-40-50

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Abstract

This article focuses on the right to a name, which in private law doctrine is traditionally considered a basic human right. The meaning of this right is indisputable and holds a fundamental value for everyone, since a name individualizes each person. However, the purpose of this article is not to tell the history of this right, but to study its nature. The development of the internet and digital technologies has made it possible to take a fresh look at the right to a name; when registering on social media, a person also uses his or her name, and in some cases acquires a pseudonym (nickname). In this study, the author aims at answering the question of what, in the era of the internet, is truly meant by the right to a name.
Methodologically, there are two general approaches to understand the right to a name: the first one is AngloAmerican and the second one is European. While it is typical for common-law countries to consider a name as an element of privacy, in continental legal tradition the right to a name is considered as a type of personal right, as well as one of the conditions of legal capacity. Both approaches are re-examined in this study.
Having started with the right to a name, in the final paragraph of the article the author reaches the issue of the right to a pseudonym. This topic is illustrated with the case of “the fight against rootless cosmopolitism”, when many representatives of the Jewish intelligentsia in the Soviet Union became victims of discrimination, at a time when it public authorities assumed that the use of a pseudonym was dangerous as they could lose control over the people; ironically, many modern states have declared the same criticism of the right to a nickname regarding the internet. This example clearly shows that, throughout history, non-democratic regimes have systematically attacked and diminished the right to a name.
It is concluded that the advent of new technologies has not changed the essence of a name. Therefore, any unreasonable limitation of the right to a name and the right to a pseudonym should be defined as a violation of the basic principles of democracy and the rule of law.

Introduction

In a civilized society, a name is an attribute of any free person. Recognizing the natural right of a human being to have their an own name, regardless of gender, race, origin, social status, ethnic, or religious affiliation, the legal order ensures the equality of citizens (van Bueren, 1998). Today in Russia, as well as in Western countries, the right to a name is more and more frequently attracting the attention of scholars, politicians, and ordinary citizens.

There are many examples in history when the governments de jure or de facto restricted the right to a name. Exempli gratia, the collapse of the tsarist Russia and the victory of Bolshevism led to the situation in which carrying noble surnames became a sign of belonging to the “social class of exploiters”. Former nobles who had not left the country after the revolution were forced to change their names to ones that were more “appropriate”. These processes turned out to be especially dramatic for those national minorities that became victims of forced “integration” into the Soviet society and consequently were deprived of their own ethnic and religious identity.

However, the most devastating blow to the right to a name took place in Nazi Germany (1933–1945). Thousands of people, not belonging to the so-called Aryan race, were sent to concentration camps; there they were deprived of their names, instead being assigned numerical designations. By justifying this policy through the need for “accounting” and “control” over the “special contingent”, the ideologists of fascism were actually attempting to achieve their main goal: to diminish the human dignity of prisoners and to deprive citizens of their own identity.

Being a natural right — in other words, existing not by the “grace of the sovereign”, but by virtue of the causa naturalis — the right to a name has long been, and remains, a field for political battles. Only since the 19th–20th centuries did the right to a name (Namensrecht, droit au nom) gain formal recognition in the legislation of European countries. Despite the fact that the first private law codification that formalized the right to a name was the German BGB (1896), even earlier it was possible to see how an independent concept of the right to a name began its germination in the judicial practice of continental Europe.

Today, the European legal doctrine has defined the concept of a “name” as an element or condition of legal capacity, while the right to a name is considered as a traditional kind of personal right (Persönlichkeitsrecht, droits de la personnalité).

Paradoxically, the foundation and formation of the right to a name initially occurred in the field of trade. In the past, the name by itself attested the merchant’s professional and business qualities;
the name was a guarantee of the merchant’s solvency (Sedano & Doskow, 2001); thus, the name was perceived as an independent merchant’s proprietary benefit sui generis. As a result, development of the economic relations regarding names inevitably stimulated legislators and the courts all over the world to improve the legal framework of these relations. Many decades and even centuries later, the right to a name became considered to be a universal right for each person.

Currently, almost any legal order excludes a situation where their citizens could be “nameless”. Parents are responsible for giving a name to their child (Article 58 of the Russian Family Code). What is the reason for such “concern” of the sovereign about the citizens?

At first glance, the state always has a pragmatic interest in registering the population (for tax and statistical purposes, military recruitment, etc.); it is clear that names are primary tools for such a policy (Simon, 1981). Much evidence across history can justify this statement. For example, at the end of the 18th century, after the division of the Polish-Lithuanian Commonwealth (Rzeczpospolita) and the annexation of these territories with a Jewish population to the Russian Empire, a large-scale policy was launched to forcibly endow Jews with surnames with the purpose of imposing military conscription and taxation upon the Jews (Agranovsky & Kopilevich, 1995)1.

Thus, the significance of a name for the purposes of public regulation is beyond doubt. For this reason, in France and later in many other European countries, the right to a name was considered as an institution or a tool of civil policy (une institution de police civil) that has the goal to individualize the citizens in, according to Planiol, an “administrative way” (Planiol, 1920).

However, this approach to the right to a name ignores the private and personal nature of a name. Taking this approach, this right may seem to exist only to the extent it is necessary for society and the state, with the interests of the individual being secondary. Understanding this contradiction, the European doctrine developed a new approach to a name being a specific private right of a citizen.

Over the last decades, the rapid development of the internet has expanded human capabilities. Indeed, regarding this right, people are able to change their account names every single day and hide their identities. This presents a challenging question for legal orders around the world, regarding how to deal with these new steps.

Methodology

This study was conducted with two basic methods: comparatively and historically. The combination of these approaches helps to reveal the evolution of the right to a name in various Western countries.

In addition, author provides his own methodology, distinguishing between the right to a name and the rights from the name.

The right to a name is mentioned in Article 7 of the Convention on the Rights of the Child (November 20, 1989), which establishes that a child shall be registered immediately after birth and shall also have the right to a name from that moment. The fact that the right to a name is placed in the Convention — on a par with the right to citizenship — confirms that a name, as well as citizenship, is considered as the most integral element of general law.

There are many definitions of the right to a name. For instance, Marina N. Maleina (2000) understands the content of the right to a name as “constituting the powers to possess, use, and dispose the name” (Maleina, 2000). Thus, this requires taking a step back, as it actually offers the 19th-century “proprietary” concept of the right to a name.

In turn, Alexander M. Erdelevsky (1999) sees the right to a name as represented through other powers, determining their composition more substantively: the right to receive a name, the right to use a name, the right to the inviolability of a name, the right to change a name, the right to protect a name (Erdelevsky, 1999).

Nevertheless, it seems that neither definition is quite perfect. On the one hand, the right to a name is more or less equal to the right to receive a name (the last one has mostly the public/administrative law origin and meaning). On the other hand, the right to a name, classifying as a private subjective right, can be confused with its legal capacity alone. Consequently, it is possible to come to an erroneous conclusion that the right to a name is a “private-public hybrid”.

Indeed, the “pure” right to a name exists only in public law (primarily as the fundamental human right to receive a name). At the same time, private law regulation requires speaking about the rights from the name, i.e. those subjective rights that are affected and engendered by the private life (privacy) of a citizen, including the right to use a name, the right to inviolability of the name, the right to change a name, the right to protection of the name, etc. The rights from the name always have a secondary nature from the right to a name (“there are no rights from the name without the right to a name”, in other words, “the rights from the name follow the right to a name”).

Results & Discussion

When using nicknames on the internet, a person does not lose their right to a name. On the contrary, they exercise this right. Moreover, recognizing that the internet is a part of private life, the state should treat it with the utmost respect.

The use of a nickname does not contain anything illegal. It can be compared to wearing a burqa. Although the pseudonym “covers the personality”, it does not replace the name (just as the veil, hiding the face of a woman, does not literally depersonalize her). The pseudonym, just like the wearing of a burqa, is a free choice by a free person.

General Notes

“The name is not only sound and smoke”(Götting, 1995); it also enables the identification of
every human being in society, and to some extent serves the purpose of personal representation (Unterscheidungskennzeichen) (Götting, 1995). At the same time, most authors are unanimous in the opinion that, as an element of legal capacity, the name provides an abstract opportunity to realize legal rights and duties (Fleishitz, 2009). Thereby Aude Bertrand-Mirkovic (2004) refers to the name as an element of legal capacity (le nom constitue un des éléments de la personne) along with age, gender, marital status, citizenship, and place of residence (Bertrand-Mirkovic, 2004).

It would seem that the Russian legislator adheres to a similar approach. Provisions on the name (Article 19 of the Civil Code) are included in Chapter 3 of the Code, placed immediately after the general rules on legal capacity (Articles 17–18 of the Civil Code). There is an explanation for this legislative decision: in the absence of a name, the legal capacity of a citizen is purely nominal. On the one hand, the legal capacity is recognized from the moment of birth (Article 17 of the Civil Code), but on the other hand, it is impossible to realize this without a name. A person commits any legally significant actions with an indication of a name and its confirmation with ID (like passports). There are practically no situations that would allow a person to use social benefits without a name (Pirogova, 2017).

In general, courts do not deny that names are an element of legal capacity. It was stated in one of the acts of the Constitutional Court of the Russian Federation that “the provision of the first paragraph of Article 19 of the Civil Code of the Russian Federation establishes that a citizen acquires and exercises rights and obligations under their own name, including the surname, name, and patronymic, unless otherwise follows from the law or national custom, [...] it ensures that a citizen realizes the legal capacity3”.

However, in Article 150 of the Civil Code, the legislator mentions the name among other such intangible goods, while not disclosing the content of this term. Is it possible to consider that the term “name” as used in Articles 19 and 150 of the Civil Code has identical content in both norms? If the answer is “yes”, then another question arises: can the name be an object of personal rights (the so-called “right to a name”) as well as an element of the legal capacity at the same time?

Certainly, the name (including surname, first name, and patronymic) by itself presents a designation of a human being and serves as a means of the individualization of a citizen in private law relations (Korneev, 2012). A name is considered as a necessary condition for the participation of an individual in legal relations. This fact already characterizes the name as an element of legal capacity that traditionally means the ability to be a carrier of the rights and obligations.

The Supreme Court of the Russian Federation sees the problem of identification by names, too. In one case, a citizen appealed to the court, demanding that the regulation on a passport be declared invalid because it did not allow an accent mark (word stress) to be put in the last name of the man. The plaintiff insisted that the lack of special rules on the use of accent marks violated the right to a name. The Supreme Court did not agree with this statement, and found that “the main purpose of the passport is personal identification and it is based on the letter designation of the name; [...] putting the accent mark has no legal significance and does not deprive the applicant’s right to a name”. In other words, the Supreme Court follows Planiol’s concept of une institution de police civil (Planiol, 1920).

However, the question of whether the name acts as an independent and intangible good remains relevant. Traditionally, private law doctrine defines intangible goods as external forms of personal interests (Fleishitz, 2015). Nevertheless, the name itself does not reflect personal interests. In this sense, the name of a person provides their individualization. A person can exercise personal interests by changing his/her name, using a pseudonym, giving a name to his/her child, etc.

Not the name per se but its integrity can be considered as an intangible good (in the sense of Article 150 of the Civil Code). It means that the law protects not the name but the possibility of its free and autonomous usage. This can be explained by a classic example. Article 19 (4) of the Civil Code establishes an imperative ban on the acquisition of rights and obligations under the name of another person. Such a restriction is traditional for European law, and was decisively explained by the famous Russian scholar Mikhail M. Agarkov (2012): the law does not prohibit changing the name, but prohibits abusing its right, deceiving people, and impersonating someone (Agarkov, 2012).

In Article 1265 of the Russian Civil Code, the legislator defines and differentiates the right of authorship and the right of the author to a name: the first idea is understood as the right to be recognized as the author of a work, whilst the second one is defined as the right to use or authorize the use of the work under either the given name (pseudonym) or something unspecified (anonymously). In both cases, the object of the legal protection is not a “bare name”, but the inviolable, free, and autonomous use of the name.

This explains why in § 823 BGB the German legislator does not mention the name amongst other intangible goods (along with life, health, freedom, etc.); on the contrary, § 12 BGB, proclaiming the right to a name, only prohibits the unlawful use of the name of another person and determines the way to protect the rights to a name. The object of private law protection (and therefore, the object of personal rights) is not the name itself, but the legal possibility of its owner to use their own name freely and autonomously, as well as to require third parties to respect the inviolability of the name.

Name and Public Interests

Starting in the 1950s, a notable discussion began in Soviet jurisprudence on the regulatory impact of the state (more precisely, of the socialist government) on the so-called “non-economic” relations and “pure” personal rights in the civil legislation; then, there was a widespread opinion that the legal order did not regulate, but merely protected, personal rights, including the right to a name (Bratus, 1963; Ioffe, 1966).

Usually, the supporters of this idea provided only one example: “honor and dignity are not able to be considered as objects of any legal regulation; law in general, including civil law, is intended only to ensure protection (but not regulate) these rights” (Ioffe, 1962). Later, Yekaterina A. Fleishitz and Alexander L. Makovsky (1963) showed that it was impossible to protect something legally without regulating it (Fleishitz & Makovsky, 1963). The right to a name is a good case: the legislator guarantees the inviolability and integrity of a name, and at the same time sets the system of norms which clarify how to use and protect this name.

Thus, this scholastic play on words ended, and a more serious question arose: to what extent should the state (public authority) regulate private rights? How to avoid violation of privacy? To answer these questions, it is necessary to look closely at one particular right, that being the right to a name.

Historically, there were two fundamentally different approaches to regulating the right to a name. The first model might be called the Anglo-American approach; it provided extremely liberal regulation of choosing, changing, and using a name. Contrarily, the European approach proceeded from the idea that, as an element of private life or privacy, a name is a very limited aspect thereof; that is why the state had legitimate grounds to regulate the right to a name, setting strict rules on this right.

Today, these two approaches are undergoing serious transformations and convergences.

For a long time, this area of regulation was not in the field of interests of the Russian legislator. However, in May 2017, Article 58 of the Russian Family Code was amended by a norm which restricted parents’ right in choosing a child’s name: according to the new provisions, the use of numbers, alphanumeric designations, and non-letter characters, as well as indications of ranks and titles, is prohibited.

It should be noted that even before 2017 officials and courts refused to register “unusual” names, indicating that “according to the rules of the Russian language, the person’s first name is grammatically a noun. Names are written with a capital letter; two capital letters in the spelling of the name cannot be used. The standards of the Russian language do not allow to use numbers in the name”. Moreover, this was practiced not only in cases of choosing a name for a child, but also in disputes arising in connection with refusals by registry offices to register name changes by adult citizens. Thus, if before it was the decision of the courts, now the legislator has enshrined this attitude in the Family Code.

The Russian legislator is not the first to begin regulating the right to a name so specifically. However, restrictions of this kind should always be balanced, considering differing private and public interests and not interfering with privacy (Griffith, 2016).

Today, Russia is only at the beginning of its path to an effective and justified regulation of the right to a name. In this sense, it should take into account the well-worn Western experience, even
though sometimes such foreign experience is not always perfect. For example, a Californian court refused to register the name Lucía, referring to the fact that the letter í (as well as other designations containing pictograms, ideograms, and diacritical marks) are not provided for by English grammar; at the same time, the court did not find anything illegal and antisocial in the fact that the Campbell couple from New Jersey called their child Adolf Hitler (Larson, 2011).

There is no doubt that any civilized legal order should protect children from parental tyranny, since an “unusual” name can cause serious traumas and difficulties to a child in their future. However, extending such restrictive rules to the names of adults, who have full legal capacity, requires special justification. When restricting any human right, the legislator must provide clear and coherent political and legal arguments for the validity of such a restriction (otherwise, the scope of such prohibitions may be unreasonably extended, for example, by prohibiting the use of local, national, religious and other rare names, etc.) (Kushner, 2009).

The Right to a Name in the Era on the Internet

Public authorities in many countries seek to tighten control over citizens and their correspondence on the internet, as well as to limit their right to the anonymous use of social media (e.g. the Great Firewall of China). It seems that the use of pseudonyms (nicknames) are perceived as a threat to public order.

At the same time, social media themselves are trying to establish self-regulation, finding a balance between the protection of users’ personal data and cooperation with the state on security matters.

In the 2000s, the Russian courts faced the problem of how to legally qualify reposting, i.e. when one user of information (material) copies that of another user and places this it their own account. The Moscow city court concluded that it is a type of citation, and therefore the relevant norms of civil legislation on citation were applied to this case6. Similarly, the Intellectual Property Court of the Russian Federation equated nicknames and pseudonyms7.

Such examples prove that, at first glance, many “new” phenomena are actually well known, although they are “disguised” in a new form. Consequently, regulation arising from such “new” objects of rights in most cases can be ensured by classical legal norms and constructions.

More specifically, an idea of anonymity in the virtual space is new only in form, as in substance it is a modification of the right to a pseudonym. Therefore today, to see the patterns and contradictions in the development of this right, it is necessary to turn to the history of the right to a pseudonym.

The Right to a Pseudonym

In the system of subjective civil rights, the right to a pseudonym is the younger sibling of the right to a name. The right to a pseudonym as a personal right to use a fictitious name is mentioned several times in Russian civil legislation (articles 19, 1265 of the Civil Code, etc.). Historically, the right to a pseudonym was considered as an “attribute” or, more precisely, a variation on the more general right to a name.

Legislators all over the world recognize pseudonyms: although a pseudonym does not formally replace the actual name, in Germany, for instance, it may be used even in official documents and certificates (Pass or Personalausweis) as so-called Deckname. This mechanism allows not only “raising” the status of a pseudonym, but also ensures due legal protection of the pseudonym along with the name (Köhler, 2016).

It is known that the use of a pseudonym has historically been widespread in the area of arts. Therefore, in textbooks on civil law, issues around using a pseudonym were specifically addressed in sections on intellectual property. There was a belief that the use of a pseudonym may not be peculiar in the arts, yet could even be considered unacceptable in “ordinary” life, being the exclusive feature of the world of literature and arts: “real life resists the fantasy of disguising” (das reale Leben sträubt sich gegen die Phantastik des Verkleidens) (Köhler, 2016).

In Russian literature, each person’s ability to use an assumed name is not prohibited. This possibility is based on the principle of personal freedom (using the words of Joseph A. Pokrovsky, it is considered as an “eccentric right”). In other words, a person can use a pseudonym in any case when it is considered necessary.

Nevertheless, the idea that the right to a pseudonym is sacrosanct was not always recognized in Russia, and it is almost forgotten today. In 1951, the famous Soviet writer Orest Maltsev published a book called “The Yugoslav Tragedy” (“Jugoslavskaja tragedija”). It might have had no effect on the development of Soviet civil law, but for the fact that the author published his novel using the double name “Maltsev (Rovinsky)”. In turn, this fact caused Stalin’s anger: “Why [the last name] Rovinsky is in brackets? What’s the matter? [...] Apparently, it is pleasant for someone to emphasize ... that he is a Jew?” (Simonov, 1988).

In February 1951, With a “feeling” for the current Stalinist policy, the editorial board of the newspaper Komsomolskaya Pravda published an article by Mikhail Bubennov, “Do we need literary pseudonyms now?” on “rootless cosmopolitans.” Its main idea was that there was no intrinsic need to use a pseudonym in the “new” socialist society. According to the article, in tsarist Russia and capitalist countries, authors took pseudonyms to avoid possible persecution. Instead, in “the Soviet society of universal equality and true democracy” such problems did not exist (“socialism, built in our country, finally eliminated all the reasons that prompted people to take pseudonyms”).

To understand the context of this story, it is necessary to clarify that in the late 1940s and early 1950s Stalin’s government expanded huge anti-Semitic campaigns (“Doctors‘ plot”, the murder of Solomon (Shloyme) Mikhoels, etc.), inspired personally by Stalin and therefore maintained at the highest state and party level.

It thus becomes clear that Bubennov’s article, despite at first glance being devoted only to the problem of pseudonyms in Soviet literature, was in fact frankly anti-Semitic in nature; the article criticized mostly Jewish writers such as Y. Kagan, S. Feinberg, N. Rambach, amongst others.

Bubennov’s article could have unleashed another round of anti-Semitic campaign (as, for example, another emblematic article of that era, “On one anti-patriotic group of theater critics”, did), had the outstanding Russian writer Konstantin Simonov not spoken in favor of owners of pseudonyms (“About one article” in “Literaturnaya Gazeta” of March 3, 1951). It is important to note that Simonov himself directly referred to the norms of Soviet civil legislation on intellectual property, showing that only the author had the right to decide whether the work would be published under their real name, a pseudonym, or anonymously. Simonov’s article brought this discussion into the “pure” legal field, and possibly saved hundreds of Jewish writers8.

In this sense, it is significant to look how understanding of rights to names and pseudonyms changed in Russian literature.

In 1917, Pokrovsky (2013) justified the right to a name through the prism of “the interests of the human person that insistently demands recognition and protection” (Pokrovsky, 2013). Such ideas fit well alongside Western liberal ideas on the role of private law in human rights protection.

Later, in the 1930s, this point of view was supported and developed by Fleischitz (2015): “in Soviet civil law, the name appears in its true function that is a designation, individualizing a citizen as a carrier of rights and obligations” (Fleishitz, 2015).

During the “heyday” of Stalinism, no serious research was undertaken on the right to a name or the right to a pseudonym.

Analyzing the right to a name and the right to a pseudonym, an impartial researcher may wonder what the role of a pseudonym in society is. As an answer, the right to a pseudonym breaks all traditional dogmatic views on its “elder brother” of the right to a name. The right to a pseudonym allows a person to “hide” from society. Consequently, there is no reason to argue that this right exists for society and the state; on the contrary, it serves only the owner of that name. This is why one of the classic textbooks on civil law (1950) had no mention of the right to a pseudonym (Genkin (ed.), 1950).

The new stage in the development of the right to a pseudonym began right after Stalin’s death. In this sense, the most notable event was the publication in 1957 of Fleischitz and Antimonov’s book “Copyright”. Only one page in this book was devoted to the questions of using a pseudonym; however, this turned out to be enough to elevate the right to a pseudonym again to the status of an independent human right.

 

1. The problem of registrering the Jewish population in Russia persisted until the Russian revolution in 1917 and was mentioned in few Sholem Aleichem’s stories (e.g., “Railroad Stories”, in Yiddish “Ayznban-geshikhtes”).

2. This is a paraphrase of the famous words of Faust: “Name ist Schall und Rauch”.

3. Opredeleniye Konstitutsionnogo Suda of the Russian Federation No 1667-О [Ruling of the Constitutional Court of the Russian Federation 1667-О] (2015).

4. Opredeleniye Verkhovnogo Suda of the Russian Federation Nо APL13-136 [Ruling of the Supreme Court of the Russian Federation No APL13-136] (2013).

5. Opredeleniye suda apellyatsionnoy instantsii po delu No 33a-1700/2016 [Appeal ruling of the Altai area court No 33a1700/2016] (2016).

6. Opredeleniye suda apellyatsionnoy instantsii po delu No 33-44177/2018 [Appeal ruling of the Moscow City Court No 33-44177/2018] (2018).

7. Postanovleniye Suda po intellektual’nym pravam No S01-940/2018 [Ruling of the Intellectual Property Court No С01-940/2018] (2019).

8. Simonov, K. (1988). Diskussiya o psevdonimakh. Fragment knigi “Glasami cheloveka moego pokoleniya” [The dispute on pseudonyms. Fragment of the book “Through the eyes of the man of my generation”]. Znamya, (4), 49–121. Retrieved from Vivos Coco website: http://vivovoco.astronet.ru/VV/PAPERS/LITRA/SIMONOV.HTM

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About the Author

Alim K. Ulbashev
French University College in Moscow
Russian Federation

Alim K. Ulbashev — PhD in Law, lecturer

1, Leninskie Gory, Moscow, Russia, 119991



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