On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit. France may have a liberal attitude towards female nudity and half-naked women are routinely seen sunbathing on its beaches, but it also has strong privacy laws, including the court-created droit à l’image -- the right to the privacy in one’s image.
French Law Protects the Privacy of Public Figures, including Princesses
Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life.” This is not merely an aspirational statement, but an enforceable right, as Article 9 gives courts the power to prescribe any measures appropriate to prevent or to end an invasion of personal privacy. In case of emergency, those measures may even be provided for by interim order.
Even though Article 9 does not specifically mention a right over one’s image, the French courts have interpreted it as giving individuals a droit à l’image. What is protected is not the image itself, but a person’s right not be photographed without her consent. Article 9 provides protection regardless of whether the person is famous, or even royalty.
Indeed, in a 1988 case somewhat similar to the present case, pictures of the former Empress of Iran wearing a bathing suit were published in a French magazine. France’s highest civil and criminal Court, the Cour de Cassation, held that “a monarch has, like anyone else, a right to privacy and can oppose any dissemination of his image since it does not represent the performance of his public life.”
Ruling of the French Court in the Mountbatten-Windsor Case
In the case of the pictures taken in September, the Tribunal de Grande Instance of Nanterre, ruling in emergency, found that the privacy of the royal couple had been violated:
“It follows from Article 8 of the European Convention on Human Rights and Article 9 of the civil Code, which guarantee to every person, whatever his reputation, fortune, functions present or future, the respect for his private life and his image, and from Article 10 of the same Convention, which protects the right for the press to inform in accordance with the rights of third parties, that the right of the public to be informed is limited, on the one hand, to the elements relating to the official life of public figures, and on the other hand, to information and images voluntarily supplied by the interested parties or which publication is justified because of a news event or a debate of general interest.
The Article in question clearly shows photographs taken obviously without the knowledge of Mr. and Mrs. Mountbatten-Windsor during a private holiday in the South of France, showing them on the terrace of a private property in moments of relaxation and in outfits reserved for the beach or for tanning, and therefore in their intimacy. As these moments are without any connection with their official or public activities, or with those of the British royal family, these moments cannot be considered of general interest justifying information to the public.
The invasion of privacy of Mr. and Mrs. Mountbatten-Windsor is therefore considered to have taken place.
Published without their authorization, these photographs also violate the rights that Mr. and Mrs. Mountbatten-Windsor have in their image, as Mondadori France does not claim to have obtained their permission before publishing them.”
The Court prohibited the publisher to sell or distribute, by any means and in any medium whatsoever, the pictures at stake, and also ordered the publisher to deliver to the plaintiffs, within 24 hours of being served the decision, and under penalty of €10,000 per day of delay, all the digital media in their possession containing these photographs.
The European Convention of Human Rights and the Privacy of Princesses
The case struck a particular chord with the public, as the Duke of Cambridge is the son of Princess Diana, who died in 1997 as she was being chased by photographers. Following this tragic event, the Parliamentary Assembly of the Council of Europe adopted Resolution 1165 (1998) on the right to privacy.
The Assembly did not believe that it was necessary to reinforce the protection of the privacy of public figures at the European level, as it was sufficiently protected by Article 8 of the European Convention of Human Rights, which protects the right to respect for private and family life. However, it pointed out that Article 8 also protects an individual against interference by mass media (at 12). There is indeed a tension between Article 8 and Article 10, which protects the right to freedom of expression. These rights, however, are “of equal value” (at 11). And it was up to the Member States to pass legislation that would render journalists liable for invasions of privacy, and would provide for economic penalties “for publishing groups which systematically invade people’s privacy.”
Resolution 1165 was quoted by the European Court of Human Rights (ECHR) in the 1994 Von Hannover v. Germany case. In this case, the applicant, Princess Caroline of Monaco, was trying to prevent the publication of photos about her private life in the German tabloid press. The law under scrutiny in this case was the Kunsturhebergesetz, the German Copyright Act (KUG). The KUG has given individuals the right to their own image since 1907, following a case brought before the Reichsgericht, the German Imperial Court, where journalists who had taken photographs of Chancellor Bismarck on his death bed were convicted of criminal trespass.
The KUG’s section 22(1) requires an individual’s express consent before publication of his image. Section 23(1) of the KUG provides for an exception to consent if the image relates to contemporary history (Bildnisse aus dem Bereiche der Zeitgeschichte), but section 23(2) provides that this exception does not apply if the publication would interfere with a legitimate interest of the individual represented.
The German courts had taken the position that Princess Caroline was a figure of contemporary society “par excellence,” meaning that she was a person “whose image is deemed by the public to be worthy of respect out of consideration for the people concerned” (Von Hannover, p. 9). She therefore had to tolerate pictures being taken of her as she was carrying out her daily activities, even when not exercising official functions, as the public had a legitimate interest to know what she is doing.
Princess Caroline had argued in front of the German Federal Constitutional Court in 1999 that the photos taken of her were not informing the public, but merely entertaining them. The Court reasoned however that “[t]he formation of opinions and entertainment are not opposites” (Von Hannover, p.7), and that “[t]he public has a legitimate interest in being allowed to judge whether the personal behavior of the individual in question, who are often regarded as idols or role models, convincingly tallies with their behavior on their official engagements“ (Von Hannover, p.9).
The ECHR, however, held that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest” (Von Hannover, at 76). In this case, the ECHR found that the public did not have a legitimate interest to know where Princess Caroline was, as the photographs related to private matters.
How the European Court of Human Resolves the Tension between Privacy and Freedom of Expression
Following this case, the German courts recognized that public figures have a right in the privacy of their own images unless there is a public interest in publishing them. Subsequently, Princess Caroline brought a similar case against Germany in front of the ECHR, and in February 2012, in the second Von Hannover v. Germany judgment, the court in Strasbourg took the opportunity to lay out five criteria relevant for balancing freedom of expression and privacy (Von Hannover 2 at 108). They are:
1) Does the publication contribute to a debate of general interest?
2) How well known is the person concerned, and what is the subject of the report?
3) Is there relevant prior conduct of the person concerned?
4) What are the content, form and consequences of the publication?
5) What are the circumstances in which the photos were taken?
Tension between the Right to Privacy and the Protection of Journalists' Sources
The right to privacy is also protected by French criminal law. Article 226-1 2° of the French penal Code punishes by one year of imprisonment and a €45000 fine "the fact, by any method, to deliberately undermine the intimacy of the private life of others… by setting, recording or transmitting, without the consent of the latter, the image of a person in a private place."
A criminal enquiry has been opened in France following a complaint of the Duke and Duchess of Cambridge for invasion of privacy, and the prosecution is now seeking to identify the person who took the pictures. On September 19, a day after the Nanterre Court ruling, the French police reportedly searched the offices of Closer for clues about the identity of the photographer, even examining journalist’s computers, although another source said that there was no search.
For the sake of this discussion, let’s say that there has been a search. Christophe Bigot, a prominent French media attorney not involved in the case, pointed out in an interview that seeking to find out the name(s) of the photographer(s) is a question of confidentiality of sources.
In Goodwin v. the United Kingdom, the ECHR held in 1996 that requiring a journalist to reveal his source was not necessary in a democratic society, as it constituted a violation of Article 10 of the European Convention of Human Rights, which protects the right to freedom of expression. However, restrictions to this freedom may be permissible if they are (1) prescribed by law, (2) necessary in a democratic society for (3) one of the legitimate aims set out in Article 10 § 2 of the Convention.
One of these restrictions may be a criminal investigation. However, the ECHR reiterated firmly in 2010, in Sanoma Uitgevers B.V. v. The Netherlands, that the right of journalists to protect their sources is the “cornerstone of freedom of the press,” and is protected by Article 10 of the Convention (Sanoma Uitgevers at 51). In that case, the ECHR held that the quality of the Dutch law was deficient, as it did not provide a procedure allowing for an independent assessment as to whether the protection of journalistic sources would be improperly eroded in the pursuit of a criminal investigation.
A law enacted in France on January 4, 2010, also protects the secret of a journalist’s sources. Article 1 of this law takes inspiration from the ECHR’s jurisprudence as it provides that “one cannot infringe directly or indirectly on the secret of sources unless there is an overriding requirement in the public interest and only if the measures are strictly necessary and proportionate to the legitimate aim pursued.”
In Ressiot and Others v. France, which was first filed before the enactment of the 2010 law, the ECHR held unanimously in June 2012 that the French Government had not proven that a fair balance had been struck between the different interests at stake. In this case, police investigations had been carried out at two newspapers and at the home of French journalists. The journalists were accused of breaching the confidentiality of a judicial investigation. The Court stated that “the right of journalists to conceal their sources should not be considered a mere privilege which may be granted or removed depending on the legality or illegality of the sources, but a real attribute of the right to inform” (Ressiot at 124).
Therefore, even if the privacy of princes, princesses, and commoners may be very well protected in Republican France, it may be still more difficult for them to find out who took the controversial photographs.
Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.