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French Legislation on Privacy

Published on December 2, 2007
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In France, as in many other countries, invasions of privacy have become widespread, aided by advances in science and technology as well as abetted by the claim that "the public has a right to know" and justified by the principle of freedom of expression. Freedom of expression is enshrined in article 11 of the Declaration of the Rights of Man and of the Citizen - part of the corpus of constitutional law - and in the European Convention on Human Rights.

The value to society of information on the private life of public figures is obviously undeniable where it has the potential for public enlightenment. But a just balance needs to be found between what can be publicized, in deference to the principles of freedom of expression and of information, and what has to be safeguarded from excessive public curiosity, so as to avoid infringing the individual’s right to privacy and right to his or her picture (photograph or drawing), both of them rights of personality.

In this respect the French legal system is among the most protective that exists: privacy is safeguarded, not only by provisions of civil law (I), as in a number of other countries, but also by the existence of specific criminal offences (II). In addition, although not mandatory, certain rules of professional ethics may apply (III).

I. Article 9 of the Civil Code and the formulation of the right to privacy in general

Respect for privacy is guaranteed by the general principles of civil liability as set forth in article 1382 of the Civil Code.

More specifically, article 9 of the Civil Code, inserted by Act of Parliament of 17 July 1970, provides that "everyone has the right to respect for his or her private life". Protection for "the intimacy of private life" is strengthened by the article’s second paragraph, which provides in addition that a court can make an interlocutory order directing whatever steps may be necessary to put a stop to violations of this right.

In the absence of a precise legal definition of "private life" the notion has been spelled out by the courts, which have held that a person’s private life includes his or her love life, friendships, family circumstances, leisure activities, political opinions, trade union or religious affiliation and state of health. In general, the right to privacy entitles anyone, irrespective of rank, birth, fortune or present or future office, to oppose the dissemination of his or her picture - an attribute of personality - without the express permission of the person concerned. One example is a photograph of a monarch which shows him otherwise than in the conduct of his public life (Judgment of the Court of Cassation, 13 April 1988).

A breach of privacy can arise not only from the dissemination to the public of indiscretions, but also from certain ways of obtaining or gathering information, even if the information is not subsequently published.

It should be borne in mind that the protection of privacy afforded by article 9 of the Civil Code is quite wide, since it operates both in a public and in a private place, unlike certain provisions of criminal law.

Article 9, paragraph 2, of the Civil Code provides that the court can take the necessary measures to prevent or put a stop to an invasion of privacy which is linked to an act of publication. Various steps such as embargo, confiscation of a publication and others can be directed by the court after trying the action on its merits, and in urgent situations they can be the subject of an interlocutory order. In interlocutory proceedings a judge can also take an immediate decision in advance to suspend publication, prohibit circulation or order the total or partial suppression of a publication; these latter measures are limited to the more serious infringements.

In regard to civil liability, the damages awarded to the victim by the courts depend not on the degree of fault (as is the case with punitive damages in Anglo-Saxon law) but on the extent of the harm which the victim has suffered. Reparation can be made in kind, by the compulsory insertion in the offending publication of the text of the judicial decision which declared the offending publication harmful; it can also be an equivalent value in the form of damages, i.e. the award of a specific sum of money to the victim. The courts will, moreover, take different views of the infringement of privacy according to whether or not the victim had previously divulged facts about his or her private life.

A civil action can be brought not only in the civil courts but also in the criminal courts, since conduct capable of giving rise to civil liability for the publication by reason of a violation of the right of privacy can be classified as a criminal offence, which is not the case under the common law system.

II. Criminal offences relating to violations of privacy.

The offences which relate to violations of privacy derive from the Act of Parliament of 17 July 1970; as amended in 1994, they now constitute articles 226-1 to 226-9 of the new Penal Code. Under article 226-1 of the Penal Code it is an offence, intentionally and by means of any process whatsoever, to infringe another’s privacy:

- 1. By receiving, recording or transmitting, without the consent of their author, words uttered in private or confidentially;

- 2. By taking, recording or transmitting, without his or her consent, the picture of a person who is in a private place.

In both cases, therefore, the offence requires the absence of the person’s consent, and such consent is presumed where the recording or the taking of the picture takes place in a meeting and openly and publicly. The purpose of article 226-1 is to curb the behavior of the paparazzi.

By virtue of article 226-1.2, privacy is not protected where the violation is committed in a public place. According to the definition developed by the courts, a private place is deemed to be a place which is not open to anyone without the permission of the person who occupies it in a permanent or temporary manner. Conversely, a place is classified as public if it is accessible to everyone, without specific permission from any person whatsoever, whether access to it is permanent and unconditional or subject to certain conditions.

In addition, taking a person’s picture whether the person is living or dead is prohibited without the prior permission of those persons who are entitled to give it, since the protection of privacy extends beyond death.

Furthermore, under article 226-2 of the Penal Code it is an offence to make use of recordings and documents obtained by means of conduct which is an offence under article 226-1, with penalties for anyone who has knowingly preserved them, or intentionally brought them to the notice of a third party, or used them publicly. This article, then, aims at penalizing newspapers and magazines which publish paparazzi photos. The rule is that a press concern must satisfy itself about the consent of the person photographed when buying photographs from a journalist or through a press agency.

Articles 226-5 and 226-6 of the Penal Code lay down further rules governing offences against privacy; for example, as with defamation, prosecution can only take place as a result of a complaint by the victim or his or her legal representative or successors.

As far as the (maximum) penalties are concerned, a violation of privacy is punishable by one year’s imprisonment and a fine of 300,000 francs; penalties for criminal offences depend on the status of the offender and the degree of culpability.

It must be emphasized that article 226-1 does not concern a "press offence" and therefore its operation is not subject to the procedural rules which are specific to the press (three-month limitation period, summons, etc.), but there is an express reference to the provisions of press law governing the determination of the persons liable in the case of a privacy offence committed through the press.

Thus the determination of the perpetrator of the offence will vary according to whether or not the breach of privacy was made public. Before publication, the general law will indicate who is liable (in most cases the journalist). Once publication has taken place, liability devolves step by step as provided in article 42 of the Freedom of the Press Act of 29 July 1881, whereby the principal perpetrator is the periodical’s "editorial director"; as a result, the journalist’s liability cannot arise unless there is no such director or the journalist is an accomplice.

For persons guilty of these offences there are no accessory penalties such as disqualification from following one’s occupation. In any case, article 131-6.12 of the Penal Code provides that disqualification from following an occupation is not applicable to press offences.

A further point is that since 1994, by virtue of article 226-7 of the Penal Code, corporate bodies can be found criminally liable for offences against privacy and are subject to a fine five times greater than that prescribed for individuals under article 131-8 of the Penal Code. Despite this possibility, in practice no proceedings seem to have been brought against corporate bodies for breaches of privacy.

Although the protection afforded by article 226-1 is confined to violations of privacy occurring in a non-public place, certain breaches committed in a public place are punishable under another provision, namely article 38 of the Act of 29 July 1881; this prohibits the publication, by any means, of photographs, prints, drawings or portraits which reproduce all or part of the circumstances of a crime or other serious offence provided for in Book II, Title II, Chapters I, II and VII, of the Penal Code (murder, intentional or unintentional wounding, etc.).

Article 38 was in fact brought into play in connection with instances of publication of photos of the terrorist attack at the RER Saint-Michel station in July 1995. The Paris Court of Major Jurisdiction held that the article contravened the provisions of Article 10 of the European Convention on Human Rights, dealing with freedom of expression, by being too broadly drawn and insufficiently precise for the description of an offence. The court’s decision to acquit was the subject of an appeal by the Public Prosecutor.

Additionally, an Act of Parliament of 10 July 1991 lays down the principle that correspondence transmitted by means of radio waves, optical signals, etc. is confidential. This makes it an offence to intercept or divert correspondence once it has been transmitted and to use or divulge its contents. Exceptionally, interception may take place where ordered by a court or for security reasons.

III. Ethics

There is a code of conduct in France dating from 1918 which is common to the press as a whole, and several publications have drawn up their own individual ones, but none of these documents stipulate penalties for transgressing the principles which they lay down.

France has no equivalent to a professional association of the Italian kind, or even to a Press Complaints Commission as in the United Kingdom (or a Press Council in Germany) which ensures compliance with rules of professional conduct.

Furthermore, journalism is an open profession and its practitioners do not need a press card. Press cards are issued by a joint board of journalists and editors on which the government is not represented. The sole purpose of the card is to facilitate the journalist’s work and its issue merely requires evidence that the applicant properly meets the definition of a professional journalist for the purposes of article L. 761-2 of the Labour Code; this provides that a professional journalist is a person whose principal and regular occupation is the practice of his/her profession for remuneration in a press concern.

Nor does the Conseil Supérieur de l’Audiovisuel (Higher Council for the Audiovisual Sector - CSA) have any particular powers in this area, apart from a general regulatory power in regard to audiovisual media which enables it to warn audiovisual communication services against repeated invasions of privacy./.

Source : PRIME MINISTER / Legal and Technical Office of Information and Communication

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