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Case Name: Philippe v France Editions Publications Key Words: Authority of the President of the Tribunal de Grande Instance to order seizure; taking photographs of a child of well-known parents in a private hospital room. Court: Cour d’Appel de Paris Country: France Citation: Sémaine Juridique 1965, No. 14223 Date: 13.3.1965 Importance: President of the Tribunal de Grande Instance can order seizure of magazines in extreme cases. The intrusion into a hospital room to take photographs is not permitted. Facts: Madame Philippe, the widow of Gerard Philippe, brought action against a weekly magazine “France Dimanche” which had reported on their son, Olivier, being taken to hospital. Reporters of the magazine had entered the hospital room and taken photographs of Olivier. The photograph and the accompanying story, which included speculation about the health status of the minor, had been published on the front and subsequent pages of the magazine. The intrusion into the hospital room had traumatised the young patient. The President of the Tribunal de Grande Instance granted interlocutory relief by means of seizure of all magazines on sale. Decision and Reasoning: The Cour d’Appel in Paris was asked to determine both the scope of the competence of the President and the merits of the case. The paper invoked the popularity of the claimants and pointed to the fact that the story and some of the pictures had previously been printed in other publications. They also argued that seizure was an extraordinary remedy that endangered the freedom of the press. The Court of Appeals considered the behaviour of the paper as “immediate and exceptional” causing damage to both mother and child. They found that the intrusion was such as to harm the physical or at least the health status of Olivier. For that reason, the Court of Appeals concurred with the President of the Tribunal de Grande Instance on the merits of the case. The Court also held the President competent to order a seizure. Justifying this aspect of the ruling, the Court of Appeals agreed that seizure was a harsh remedy, but at the end of the day amounted to financial loss only which could be compensated in due course. Conversely, the immediate damage done to child by publication could not be remedied. In these circumstances, the Court upheld the ruling of the lower court in toto. Case Name: Brigitte Bardot / Beaverbrook Ltd. Key Words: Long lens photography, privacy and consent Court: Tribunal Grand Instance Seine Country: France Citation: Sémaine Juridique 1966, No. 14521 Date: 24.11.1965 Case No.: Importance: The decision qualifies the necessary quality of consent. Facts: The Daily Express, a British paper edited by Beaverbrook Ltd. had printed a picture showing a family reunion of Brigitte Bardot and her son. The meeting had taken place on Bardot’s private ground. Earlier, Bardot had explained in public that her life was “an open book”. She had never previously complained about the press photographing her. Decision and Reasoning: The Tribunal asserted jurisdiction over the Daily Express (a British paper) as it was sold in the Seine (Paris / Ile de France) area. The Court found that the picture as such infringed the private life clause of Article 9 French Civil Code. The court did not rely on the fact that long lens photography had been used, or that the persons photographed were on private ground. The court stated that photographs taken of individuals require authorisation. The defendant claimed consent as a defence. The court qualified the necessary consent as a specific and explicit one. In the case, it lacked, despite earlier general statements of Bardot that she had nothing to hide and her life was an “open book”. Also the fact that Bardot had tolerated similar pictures in the past did not help the defendant. The judgment, hence, restricted the possibilities to defend an intrusion into private life. Case Name: Rosa Biasini (Romy Schneider) / Societé Union des Editions modernes and Daniel Angeli Keywords: Long lens photography Court: Cour d’appel de Paris Country: France Citation: Sémaine Juridique 1980, No. 19343 Date: 5.6.1979 Case No.: Importance: Reporting using long lens photographs Facts: A photographer, Daniel Angeli, had taken long lens photographs of the actress Romy Schneider. She was sunbathing in the nude on a ship on the Mediterranean close to St. Tropez. A company used the photographs to accompany an article in “Photo” magazine. Schneider sued both the photographer and the magazine. Decision and Reasoning: The Court categorised the action as an invasion of privacy and awarded damages to Schneider. The court did not consider symbolic damages of 1 FF as sufficient and awarded 20.000 FF. They emphasized the exclusive right of every person to decide on the publication of her personal image. Case Name: Chambre Civile 1, 3 décembre 1980 Rambla, l’affaire du« pull-over rouge »/ The red jumper case Country:France Key words:Movie, true story but added facts, privacy Citation ::Dalloz, 1981, p. 221, Date:03.12.1980 Case Number:79-16454 Court:French Supreme Court/ Cour de Cassation, Civil 1 President : M. Charliac Importance: Right of privacy can only prevent the movie industry to use true facts to a limited extend. True story in general but fictitious added scenes do not violate right of privacy. Facts: The facts of the true criminal story of “the red jumper”, involving the murder of a 9 year-old girl, were used in a book called “the Ranucci case”, from the name of the murderer convicted to death in the 1970’s. A movie was made, based on the book and entitled “the red jumper”. Eventhough the names of the victim and her family were changed into Garcia, the real story was highly recognisable. The victim’s parents brought an action for violation of privacy. I. Movies can be inspired by true stories A. The Court of Appeal: inspiration does not mean reproduction in violation of privacy It was acknowledged that in general, true stories can be a source of inspiration for movie writers. However, four scenes in particular were considered: - where the family, in their flat, behaved and reacted when they realized the child went missing, - where the mother, in the building stairs and with some neighbours, is told the child was found dead, - where the father is brought by the inspectors to the police vehicle to identify the corpse, and where he subsequently faints, - finally, the entire scene in the criminal court where the father tells about her daughter and his memories of her playing in a public playground. The Court of Appeal eventually considered that those scenes were a violation of intimacy and of the victim’s family right of privacy and had to be deleted from the film. B. The Cour de Cassation: fictitious scenes are not reproduction The Court was not so convinced. It considered that even if privacy could be violated, such violation had to be demonstrated first. The Court of Appeal had only based its decision on the fact that this story was recent and that those four scenes did nothing but revived the suffering of the family, hence finding that the conduct of producers and director was tortuous. However, the Court of cassation stated that in the present case, those scenes might be purely fictitious, added for dramatic purposes. It was therefore for the Court of Appeal judges to verify whether those scenes were a true reproduction of what really happened in the private sphere and constituted a violation of intimacy. Result The Court dismissed the Paris Court of Appeal decision and sent the parties before the Versailles Court of Appeal II. The red jumper case, from private to public sphere It may be important to bear in mind that the “red jumper story” had been in France a very famous criminal story, reported in many media. Maybe, the Court of Appeal would not have concluded in the same way if another story had been at stake. More than a criminal case, this whole story involved a lot of legal proceedings, most of them related to privacy. Most recently, in 2003, the cour de cassation had again to rule about this story in another context: (Civ 1,13 novembre 2003, case number 00-19403): A newspaper “Paris Match” published a special edition about this century famous French criminal cases, including the “red jumper case”. It reproduced, inter alia, some pictures of the 1974 reconstitution of the murder scene during the criminal proceedings. At the time, the media were authorized into the reconstitution scene. One picture reproduced the father crying and hiding his face behind a tissue with the comments “the father cannot bear no more, he has to be evacuated”, another was a portrait of the 9 year old girl. The family brought an action for violation of right to their image. Here, the Court stated that the article only showed the legitimate suffering of the father and did not violate his dignity, nor the one of his daughter, whose portrait was smiling and was not irreverent to her memory nor the moaning of the family. The whole article, even if it doubted the guilt of the convicted man, did not offend the victim nor the family in their honour or reputation. Finally, the court stated that nowadays, the whole case was now part of the story of the big criminal cases in France, and could not be reduced to a mere sphere of private interests any more. Therefore, so long as the parties’dignity was respected, claims for violation of right of privacy or to image for facts and pictures of this time would fail. Case Name: Chambre Civile 1, 8 janvier 1980, Jacqueline H. Key words: Drawings, real person, fictitious situation, privacy Citation: Revue trimestrielle de droit civil, 1983, n. 1, p. 116 Date: 08.01.1980 Case Number: 78-14218 Court: French Supreme Court/ Cour de Cassation, Civil 1 President : M. Charliac Importance: Drawings can violate right to a celebrity’s image, even if the scene is totally fictitious, so long as the celebrity is recognisable. Facts: A magazine published a series of colour drawings, representing some famous TV presenters. One of them was Jacqueline H. The drawing showed her lying partially naked on a sofa with a champaign flute in one hand. She brought an action against the editor for damages for violation of her right to her image and right of privacy. The Court of Appeal found no violation of privacy but convicted the editor to damages for violation of her right to her image. Decision and Reasoning: Drawings: fiction or reality? The argument at stake in Cassation was challenging a double qualification of the drawing made by the Appeal Court. On one hand, it had stated that the drawings were works of imagination, on the other hand, it concluded that they showed appearance of reality, therefore violated the plaintiff’s right to her image. The Cour de Cassation had a two-times answer:
First, the Court stated that such drawings were works of imagination, as original literary works. In that respect, they could not violate privacy as they did not reproduce any real situation. The Appeal Court was therefore right on this first qualification.
Secondly, it had to be acknowledged that although the situation was fictitious, the drawings clearly and purposefully represented a real person. It was not a caricature, and any reader of the magazine, if he did no pay proper attention to it could have thought the drawing to be a real photograph. In that respect, drawn without the consent of the model, it constituted a violation of her right to her image. Result: The Court of Appeal decision was upheld. Case Name: Chambre Civile 1, 13 avril 1988, Farah Diba Key words: Law applicable to violation of personality rights Citation: Bulletin 1988 I N° 98 p. 67 Date: 13.04.1988 Case Number: 86-15524 Court: French Supreme Court/ Cour de Cassation, Civil 1 President : M. Ponsard Importance: Although attached to the person, violation of privacy is not to be dealt with the “personal law” but with the law of the country where the facts of the violation took place. Although his life has public aspects, a monarch is entitled to the same protection of privacy as anyone else. Facts: In 1983, the magazine “Jours de France” published two photographs of Mrs Farah Diba, former empress of Iran, in bathing costume. On the first one, she was in a garden, on the second she was sitting on some rocks preparing to do some fishing. She brought an action for violation of right of privacy and right to her image. The Court of Appeal convicted both the publisher and the photo agency which sold the picture; they appeal to the Cour de Cassation. Decision and Reasoning: I. What is the law applicable to the protection of a foreign celebrity?
The publisher argued that, according to article 3 of the French Civil Code, matters related to privacy and right to her image had to be dealt with the “personal law” of the plaintiff, which means either law of her country of citizenship, or law of the country of residence if she is found stateless. The question was therefore whether French law had been legitimately applied. The answer of the Court was that the reasoning that right of privacy, because attached to the person, had to be dealt with law of the nationality could not stand. The consequences of a violation of privacy were such as to be directly connected to the country where the violation arose. Therefore, when an unauthorized picture was taken in France, French law applied, regardless of the nationality of the plaintiff.
The publisher also argued that the Appeal Court was wrong in finding a breach of article 9 of the French Civil Code, in that the pictures were “not connected to the plaintiff’s public life”. They tried to argue that the extent of a celebrity’s public life only depended on the functions this personality usually fulfilled. However, the Court thought that a monarch had a right to his or her privacy exactly like anybody else, therefore, she could prevent any broadcasting of her image as soon as the picture did not represent her in her public functions. Therefore, the Court of Appeal was right in finding from the nature of those pictures that they did show some moments of her private life. II. Who is responsible: photo agency or publisher? The publisher finally questioned the conviction of both the publisher and the photo agency which sold them the picture, both convicted for a half of the damages as, he argued, the merchant who sells pictures to a publisher has to produce him with pictures whose use can be legal. In that situation, the court of Appeal did not correctly apply article 1147 of the French Civil Code, the basis for contractual liability. The question was therefore whether the publisher had had a wrongful conduct under contract law by using the pictures without checking that the model had consented to them. However, the court found that the publisher had had per se a wrongful conduct: the mere fact that they published such pictures without any prior checking of the model’s consent, be it by asking her directly or the agency, was a tortuous act, which lead to liability per se under tort law, so the liability under contract law was not even to be considered. Result: The Court upheld the Appeal decision. Case Name: Miss X
/ Atlas Country: France Key words: Advertisements Citation: Bulletin 1990 I N° 72 p. 52 Date: 27.03.1990 Case Number: 88-18396 Court: French Supreme Court/ Cour de Cassation, Civil 1. President : M. Jouhaud Importance: A 20 year-old professional model cannot, without the consent of her parent or legal representative, enter into a contract related to her personality rights when at the time of the facts, the legal majority was established at 21. Facts: In 1970, Miss X, a professional model had posed for a series of photograph intended to appear on dairy products packaging. She authorised in writing any reproduction, ‘in whatever form and for any duration” of the photograph. About 15 years after, she discovered in Atlas, an Air France magazine that a picture of the package of one product bearing her photograph had been published. She brought an action for unlawful reproduction of her image. Decision and Reasoning: The Court of Appeal found for the Atlas company, as the authorisation prevented the plaintiff from bringing an action. However, the Cour de Cassation noticed that at the time of the authorisation, full legal rights were only given to people over 21. As the model was at this time aged 20, her consent was void. Without the consent of one of her parents or a legal representative, she could not lawfully enter into a contract so as to waive her personality rights such as her right to her image. Result: The Court of Appeal dismissed the Appeal. Case Name: Chambre Civile 1, 12 juin 1990, Michel Leeb Key words: Publicity, necessary conduct linked to the consented act, name, image Citation: Bulletin 1990 I N° 164 p. 116 Date: 12.06.1990 Case Number: 89-11485 Court: French Supreme Court/ Cour de Cassation, Civil 1 President: M. Jouhaud Importance: An actor cannot prevent publicity when it is necessary to an event to which he consented. However, unlike his name, his image must always be published with his consent. Facts: Michel Leeb is a famous comedy actor. He agreed with the Xodo society to come in two of the society bookshops to autograph his last book. Xodo wanted some wide coverage of the event; it launched a large publicity campaign, inter alia by issuing leaflets and having some big notice printed in three national newspapers. Both the leaflets and the notice reported the event and showed some pictures of the actor. He claimed that he did not agree for this wide commercial exploitation of his name or image and surely not for the publication of his picture. He therefore refused to attend the events. Both parties brought an action against the other for damages. I. Does the consent extend to the advertising of the event?
The Court of appeal convicted M. Leeb to pay damages. It considered that to be successful, the autograph sessions had to be known and reported. Therefore, it was necessary for Xodo to announce the event, such acts were connected to the consented event in general and included launching a nationally wide publicity campaign. Moreover, under contract law, it had to be borne in mind that M.Leeb did not take any caution to define narrowly the way the event could be announced. Therefore, as related acts, the advertisement of the event had to be considered as consented to.
The Cour de Cassation did not contradict the reasoning under contract law. However, it seemed to have a distinct opinion as to the publication of the picture. II. The distinction between name and image The court focused on article 9 of the Civil Code, but surprisingly, only as to the picture. It reminded that Xodo was under a legal obligation to ask for and obtain permission before publishing any picture of the actor. As consent to this specific aim had not been secured, then Xodo was liable for damages. Therefore, a distinction has to be made between the use of the name, authorised when such use is made for necessary advertisements of a consented event, and the use of the image, which requires a distinct consent. Result: The Court dismissed the Versailles Court of Appeal decision and sent the parties on appeal before the Paris Court. Case Name: MM. X v Société Groupe
Expansion Country: France Keywords: Personal data, salaries, assets and patrimony, privacy Citation: Bulletin 1990 I N° 257 p. 182 Date: 20.11.1990 Case Number: 89-13049 Court: French Supreme Court/ Cour de Cassation, Civil 1. President : M. Camille Bernard Importance: Violation of privacy means only an intrusion into someone’s intimacy. Salaries, assets or patrimony are not attributes of personality. Publication of such information is therefore no violation of privacy. Facts: In 1986, the defendant, a publishing company, decided to investigate and classify the salaries and personal assets of some of the directors of big French companies or leaders in the world of business or economics. The company contacted many of those personalities for their consent and to obtain directly from them such information as their salaries, personal assets, estimation of their patrimony… The plaintiffs, two of those personalities answered by letter, stating that they did not want such information to be disclosed. However, when publishing the article, the magazine mentioned their name and the relevant information, which had been obtained lawfully. They brought an action for FF 1 million compensating damages. Their claim was dismissed both on trial and appeal. Decision and Reasoning: The Cour de Cassation dismissed their claim, focusing on two points
The appellants contested the decision of the Court of Appeal that those facts did not amount to a violation of privacy. * First, they argued that a statement of the wealth of an individual whoever that was, (except for political leaders for other legal reasons) was in France an essential attribute of the private sphere. Therefore no account should be taken of the fact that those persons remained emblematic personalities in the world of business and economics, even after they retired. If the publication was about their financial assets and personal wealth through participation in or shares owned in the societies they had created that amounted to a breach of article 9 of the Civil Code. * Secondly, they argued that a disclosure of the wealth and financial situation of a personality in the world of economics was a reprehensible act when such statement came with comments about the person or his family. The Court of Appeal acknowledged that in one of the articles, comments were made about a transfer of shares and how consequently the family had to manage such assets. Therefore, they contended that the Court of Appeal did not recognise the consequences of the facts they had agreed.
The Cour de Cassation did not follow the appellants’ argument. It considered that “the respect for privacy is not violated when the disclosure is only about information related to purely patrimonial assets” and excludes any allusion to the life or the personality of the individual. It was for the Court of Appeal to declare whether the articles contained only indications as to the individuals financial situation and shares in their previously owned societies without any additional comments about the individual, his family or lifestyle. As the Court had stated that the relevant article did not mention any of these factors, the conclusion that the appellants right of privacy had not been infringed was correct.
The Court of Appeal considered that because the information was licit and authorised, in the context of article 9 of the Civil Code, it did not have to judge the alleged breach of article 1382. Article 1382 is a general provision in French civil law, which allows compensation when a defendant is found to have committed “a wrong which caused the plaintiff’s loss”. The appellants therefore tried to argue that the disclosure without their consent constituted such a wrong. Moreover, they affirmed that the company was fully aware that they were against such publication as the letters they sent to answer clearly affirmed that they did not want their name or information to appear in the article; therefore no defence such as implied consent could be argued. The Cour de Cassation disagreed: because all the information was lawfully obtained, without abuse or malice and for the only purposes of informing the public about some important aspects of the business world. As the Court of Appeal had clearly established this in its decision, then it had already constituted a clear reply to the appellants arguments.
This case was also the opportunity for the Cour to definitely confirm the reasoning of some previous cases, taking into account the social interest of the publication. * The “Nouvel Observateur du Monde” case: In 1987, the magazine Nouvel Observateur published an article entitled “the 100 richest French businessmen”. A reporter contacted one of them, intending to verify the truthfulness of the information he managed to collect about this businessman’s financial assets. Despite the clear refusal, the magazine published a fictitious phone conversation between the plaintiff and the reporter, in which all those information were revealed. In its decision (Civ. 1, 4 octobre 1989, Bulletin 1989 I N° 307 p. 204), the Cour de Cassation had already mentioned that: · there was no breach of privacy so long as the information revealed only concerned the patrimonial assets of the individual, and did not make any comments as to his lifestyle, · as the information had a social interest, in the fact that the public would be accurately informed of those businessmen power, the publication was not a “manifest illicit trouble”. With this case, the French Supreme Court has taken to opportunity to settle the way the law is to be applied. Result: The decision of the Court of Appeal was upheld. Case Name: Chambre civile 1, 13 janvier 1998 Country: France Keywords: Caricature, support, article 9 Citation: Bulletin 1998 I N° 14 p. 9 Date: 13.01.1998 Case Number: 95-13694 Court: French Supreme Court/ Cour de Cassation, Civil 1. President : M. Lemontey Importance: Freedom of expression only allows parody when this is done according to “the laws of the art”, which does not include marketing of someone’s face on pins. Facts: The plaintiff, X, brought an action to restrain the defendant from marketing some “pins” depicting his caricatured image. Decision and Reasoning: 1. The Court of Appeal decision Colmar Court of Appeal held that the right to parody and caricature had to be allowed whatever basis or material used. Therefore, pins had to be considered as a means of parody. That also meant right to market and to sell them. 2. The Cour de Cassation decision A. Article 9 of French Civil Code The Court considered closely article 9 of the French Civil Code. This article had to be read as meaning than any individual had a right to oppose the reproduction of his own image. B. The limits to the right to parody and caricature Freedom of expression allowed others to criticise in different ways. Those included parody and caricature. However the Court affirmed that such acts were lawful so long as they were done “according to the laws of the art”. In those circumstances, marketing pins depicting someone’s face was not justified and constituted a breach of article 9. Result: The decision of the Court of Appeal was reversed. Case Name: B Sa. C. Key Words: scope of consent; burden of proof; goal of publication Court: Cour D’Appel Bordeaux Country: France Citation: La Sèmaine Juridique 1999, No. 1641 Date: 23.9.1998 Case No.: Importance: The party publishing a personal image bears the burden of proof that consent has been given for publication. Such authorisation has to be based on informed consent; the goal and scope of publication is decisive. Facts: A company had used the picture of a „maitre de chai“, a wine master, in a large-scale commercial campaign which was included in 5 million copies of magazines and on 3500 billboards. The picture showed the employee of a wine selling company in the performance of his tasks. The campaign supported not only the maitre’s employer, but also other commercial operators and their activities. The way the photograph had been used implied that the maitre had consented to the taking of the picture. The content of the picture also gave the impression that it was most likely to be used in an advertisement. At the start of the campaign, the maitre remained silent; he rejected an offer for a license ex post facto and claimed infringement of his private life. Decision and Reasoning: The Cour d’appel de Bordeaux awarded 60.000 FF to the maitre holding that the clause relating to ‘private life’ was violated. The court re-stated the rule that in France, the person publishing a picture bears the burden of proof of showing that authorisation has been given by the subject. In the instant case it was clear from the content of the photograph that the maitre had agreed to the picture being taken. Since he was employed by a wine firm, it was also apparent that the picture would be used for commercial ends. However, no written contract existed. It was obvious from the later offer of payment to the maitre that he had not been paid for the campaign. The court decided that only informed consent is valid. The minimum requirements of such informed consent include the scope and purpose of publication. The maitre had been informed of the general commercial goal of the publication, but not about the large scale of the campaign. In addition the maitre had not known that firms other than his employer would benefit from the publication. Thus he was awarded damages. Case Name: S (“Johnny Halliday”) / Soc. Hachette Filipachi Key Words: Publication of photographs of merchandise in a journalistic context; re-use of information made public at an earlier stage Court: Court de Cassation Country: France Citation: La Sémaine Juridique Édition Générale 2001, p. 937 No. 10524 Date: 30.5.2000 Case No.: Arrêt No. 979 P Importance: Authorisation for commercial use of the personal image does not include a right for the press to publish photographs of items on which the image is displayed; Even if financial information of a person is made public in an autobiography, the press cannot subsequently use this information without restriction. Facts: The defendants publish the weekly “Ici Paris”. In a 1996 issue, they reported on singer Johnny Halliday’s trip to Las Vegas. The article critically assessed his financial state saying that even if he sung until the age of 110 he would not be able to re-pay his debts. Halliday had made similar information public in his autobiography. The paper further criticised the lifestyle of the singer, especially the extensive exploitation of his image on commercial products. The article was illustrated with photographs of some of these items. Halliday claimed infringement of his private life based on two prongs: a) the report on his financial status; b) the reproduction of his photograph in the article. The first and of second instance courts rejected the claim in toto. Decision and Reasoning: The Court of Appeal reversed the ruling of the lower courts. 1. The illustration of the article Concerning the illustration of the article reproducing the Halliday memorabilia, the first two instances had held that Halliday had consented into the sale of these products. The magazine, hence, was seen entitled to use pictures of these products for journalistic reasons. The Cour de Cassation disagreed. They found that the holder of portrait rights under Art. 9 CC can also decide about the goal of the publication. This “finalité”, the judges held, was not respected when commercial items were depicted in a magazine. Illustrating the story on Halliday with pictures of authorised commercial products bearing his image hence was held a violation of Art. 9 CC. 2. The same applied to the speculations about Halliday’s financial situation. Even if the basis of the article was Halliday’s authorised autobiography, the Court found that the picking of certain facts was out of context. Especially the connection made in the magazine between Halliday’s lifestyle and his financial situation went beyond what he had published himself at an earlier point. That publication therefore also was held to infringe the private life clause. 3. The judgment of the Cour de Cassation is very restrictive towards the freedom of the press. France, amongst the jurisdictions scrutinized, protects personality rights in the most eager way – on cost of the freedom of the press. Case Name: Astier / Julien Key Words: image of a child; individual portraits of participants in an event Court: Cour de Cassation Country: France Citation: La Sèmaine Juridique 2001, No. 1255 Date: 12.12.2000 Case No.: Importance: Publication of isolated images of individuals participating in an event prohibited Facts: A child had participated in a folklore event along with many other individuals. A paper published an image of the child in isolation from other participants. The parents had not authorised this publication. Decision and Reasoning: The court held that the publication of an image showing a child participating in such an event requires authorisation by the parents. If consent is not given the publication violates Article 9 French Civil Code. Case Name:
Isabelle X v Entrevue/
Conception de presse Country:France Key words :Nude photographs, magazine Citation:Not published Date:17.09.2003 Case Number:00-16849 Court:French Supreme Court/ Cour de Cassation, Civil 1 President : M. Lemontey Importance: Facts: The French Magazine “Entrevue” published an article about Isabelle X. a fashion model, married to Y, accompanied by some photographs of her wholly or partially naked. The nude photographs had already been published the previous year in a Canadian magazine. The article was entitled “Entrevue-exclusive, Mrs Y, naked” with some irreverent comments about the recent wedding and the “charms” of the 19 year-old bride. One of the nude photographs was reproduced on the cover of the magazine and on separate posters to promote the magazine. She sued the publisher for violation of her right of privacy and right to her own image. Decision and Reasoning: 1. The previous decisions The “juge des référés”, i.e. judge concerned with emergency matters, held for the defendant and allowed 50 000francs damages, granted an injunction against the posters and ordered that a judicial note was published in the next issue of the magazine. The Paris Court of Appeal upheld this decision. 2. The theory of the defendant on appeal In addition to some criticism of the emergency procedure, in that there had been no “manifest illicit trouble”, the necessary prerequisite to give the French emergency judge competence, the defendants mainly argued two points. * Freedom of expression First, they argued that the court of appeal did not look at whether the withdrawal of the promoting posters would amount to a prohibition on the magazine or an obstacle to its broadcasting, or even more broadly a restraint on freedom of speech which was not necessary to protect someone else’s rights. * Personality rights Secondly, they challenged whether the court correctly identified a violation of a right to her own image and found a corresponding damage, in breach of articles 9 and 1382 of the Civil Code and article 10, al.2 of the European Convention of Human Rights. 3. The decision of the Cour de Cassation A. Personality rights violation justifies emergency trials The Court replied by analysing separately the different photographs. As for the photographs depicting her on her own: the unauthorised reproduction did constitute a violation of both her right of privacy and her right to her image. As such, that was sufficient to give competence to the emergency judge. The judge then had the power to take any measure to anticipate, stop or make good the violation. As for the photograph of the couple, the Court considered the fact that one year before the facts of this case, the claimants had already summoned the publisher not to display any comment or photograph about them. In those circumstances, the Court of Appeal was right to conclude that there had been a breach of article 9 of the Civil Code. B. The plaintiff is a fashion model and posed for those pictures: consequence? The Court stated that the fact that the claimant was a professional fashion model had not to be taken into account for the case. Moreover, the prior publication of the same photograph and the fact that the model voluntarily sat for the taking of those pictures were also factors to be set aside. First, on the face of the case, it was not even proved that the first Canadian publication had been consented to, either by her or through one representative. Secondly, even if there had been such approval, that did not amount to any consent to further publication: “the circumstance that she might have given consent, in the past and in accordance with her professional activity as a fashion model, to some publications of her image is inoperative.” C. Withdrawal of posters and freedom of expression The Court thought that an order to withdraw all the posters and advertisements for the magazine bearing the cover photograph was only intended to neutralise the obvious will of the defendant to draw the public attention onto the claimant in “spectacular dimensions” by means of an eye-catching picture of the bride. The order to insert a judicial notice in the next issue of the magazine was a good way for the public to know that the so-called exclusive interview of the plaintiff had been wholly created without her consent. Such considerations showed that the Court of Appeal seriously try to reach an adequate balance between protection of personality and freedom of expression. The Cour de cassation thought that the sentence was adapted to the facts of the case and enabled appropriate compensation without going as far as ordering the withdrawal of all the copies of this issue of the magazine. D. The evaluation of damages Moreover, the defendant was not allowed to contest the amount of the damages, given the clear violation of personality rights; especially because the financial daily penalty to which the defendant was subject could be modified depending on whether the defendant showed a willingness to co-operate. Finally, it was reaffirmed that even a simple statement of a single violation of the right of privacy would have been sufficient to allow a financial compensation, the amount of which would be left to the judge’s discretion. Result: The decision of the Court of Appeal was upheld.
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