In Scots law, whatever the liabilities in delict or nuisance may be in this kind of case, there would perhaps be an enrichment liability on the projector if making the projection for purposes of gain, e.g. to advertise the availability of products or services. There are a number of cases where unauthorised use of another's property in circumstances where ordinarily such use would have to be paid for has been held to entail liability based on what the user would otherwise have had to pay (see MacQueen, Unjustified Enrichment 3rd edn, pp 11-13, for short summaries of the main cases). But none of these cases involves the projector doing it simply in order to annoy the victim, or have a laugh at the victim's expense, or intrude on the victim's privacy. I wonder if these would be instances for the actio iniuriam in Scotland, i.e. delictual and based upon the wrong of affront or insult.

Hector L MacQueen FBA FRSE

Professor of Private Law

University of Edinburgh Law School

Old College

South Bridge

Edinburgh EH8 9 YL

Currently working at the Scottish Law Commission tel (0)131-662-5222

From: Jason Neyers <jneyers@uwo.ca>
Sent: 04 November 2015 11:42
To: Volokh, Eugene; obligations@uwo.ca
Subject: Re: Projecting message onto side of another's building: trespass, nuisance, something else?

Dear Colleagues:

What a wonderful discussion!

It would seem to me that there is an important difference between using your rights/land in a way that has collateral effects on the land of others (the drive-in movie case) and a situation of using the land of others (the projection case). This distinction is usually captured by the law with its divide between the harm torts and those actionable per se but it appears given technical limitations trespass is unavailable. My guess, following on what Neil suggests, is that the Commonwealth courts would treat this type of nuisance as similar to the tree branch cases and would not focus very closely on the harm or its significance but rather would treat the use of the claimant's property as a substantial interference in and of itself.

Sincerely,

On 11/03/15, "Volokh, Eugene" <VOLOKH@law.ucla.edu> wrote:

Thanks very much – very interesting. Under American law, it appears that a nuisance claim requires a “significant harm,” and it’s not clear that the projection (especially if it happens just one evening) would qualify – or would it?

Eugene

From: Neil Foster [mailto:neil.foster@newcastle.edu.au]
Sent: Tuesday, November 03, 2015 3:06 PM
To: Jason Neyers; obligations@uwo.ca
Subject: Re: ODG: Is projecting a message onto the side of another's building a trespass?

Dear Jason;

Back in the day before privacy law was developed, there was a nuisance case decided by Young J in the SC of NSW, Raciti v Hughes (1995) 7 BPR 14,837; BC9501706 where his Honour reviewed a number of cases about strong lights and held they could amount to a nuisance. (This bizarre case involved the defendants having apparently set up a system of floodlights and video cameras angled into the plaintiff’s property, so that whenever their neighbours entered their back yard, the bright light and cameras came on to record what happened in the back yard!)

I have sometimes wondered whether the reason that the lights cases succeed, whereas we know that “view” cases fail in nuisance, is that in lights cases “something” (physicists can tell me if it is photons or waves or whatever) crosses the boundary into the plaintiff’s land (just as it is a nuisance to cause smoke or smells or noise to “cross the boundary”.) That rationale was not given in Raciti but it does provide an interesting review of light cases.

I guess the interesting issue is the nature of the harm caused by the projection. If it is a protest and you object to your building being used as a poster for a message you disagree with, then there is “annoyance” and “upset”, which it seems is regularly protected in “amenity” nuisance cases. There may even be some argument about “autonomy” and the right to use one’s land as one chooses? All in all nuisance may sound like a more plausible action in the Commonwealth sphere than trespass.

Regards

Neil

neil foster

Associate Professor

Newcastle Law School
Faculty of Business and Law

T: +61 2 49217430
E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.wordpress.com

MC177 (McMullin Building)
The University of Newcastle (UON)
University Drive
Callaghan NSW 2308
Australia

CRICOS Provider 00109J

From: "jneyers@uwo.ca" <jneyers@uwo.ca>
Date: Wednesday, 4 November 2015 5:16 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: ODG: Is projecting a message onto the side of another's building a trespass?

Dear Colleagues:

A poster on the American Torts Prof listserve asked the question of

whether projecting a message onto the side of another's building is a

trespass (or nuisance).  Apparently this is becoming a popular protest

technique in the US.  Does anyone know of any Commonwealth authority

dealing with this issue?  I can think of nuisances case where the

reflecting or throwing of light has been at issue but nothing directly

on point.

Sincerely,

--

Jason Neyers

Professor of Law

Faculty of Law

Western University

N6A 3K7

(519) 661-2111 x. 88435

--
--
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435

From:	MACQUEEN Hector <Hector.MacQueen@ed.ac.uk>
To:	Jason Neyers <jneyers@uwo.ca>
	Volokh, Eugene <VOLOKH@law.ucla.edu>
	obligations@uwo.ca
Date:	04/11/2015 12:46:13 UTC
Subject:	Re: Projecting message onto side of another's building: trespass, nuisance, something else?
Attachments:	Edinburgh University charitable status