17 Sep 2012 | 08:30
There is little doubt about the legal position: the publication of topless photographs of the Duchess of Cambridge by Closer magazine in France was illegal. The taking and publishing of the photographs constituted a criminal offence and a civil wrong. But the editor of the magazine, owned by Mondadori France, made a cynical calculation that the likely penalties were going to be much less than the financial rewards. Weighing worldwide publicity against potential penalties of a few tens of thousands of euros, it was no contest.
French privacy law is often described as the toughest in the world. British newspaper editors tell terrifying stories about how, as a result of privacy protection, villains walk the streets unexposed. We previously exposed the errors of this account in relation to Dominique Strauss Kahn.
But French law does contain substantial privacy protections. First, it criminalises invasions of privacy. By Article 226-1 of the French Criminal Code:
“A penalty of one year’s imprisonment and a fine of €45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:
1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;
2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.
Where the offences referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed”.
By Article 226-7, a company can incur criminal liability under this provision and may be fined up to €225,000. However, in practice, corporate bodies are not prosecuted and prison sentences are not imposed. The likely fine appears to be of the order of €30,000.
There is also civil liability under Article 9 of the French Civil Code which provides that:
"Everyone has the right to respect for his private life."
In regard to civil liability, the damages awarded to the victim by the courts are usually modest. 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.
Cases similar to that of the Duchess of Cambridge have been brought before the French Courts in the past. 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. Their appeal to the Cour de Cassation was dismissed (Chambre Civile 1, 13 avril 1988, Farah Diba).
It has been reported that the Duchess is bringing legal action in France. Closer is likely to be convicted, to pay the modest fine and to continue as before. In recent years the French press have realised that such a course is not only possible but makes commercial sense. The tough privacy laws are not sufficient to protect against trespassing photographers with long range lenses.
What about media regulation? France does not have a system of statutory regulation. Furthermore, as Lara Fielden points out in her recent study Regulating the Press: A comparative study of international press councils France does not have a press council. There is a code of conduct for the press as a whole, but it contains no means of enforcement or penalties. It could be argued that, even against the backdrop of strong and clear privacy laws, cynical media manipulation means that a comprehensive and effective system of media regulation is also required.
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