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Living with Privacy Law

Delphine Bazin
Avocat - Paris

1. One morning, Mr. DUPONT glances through his mail while drinking his coffee ; he is quite surprised to discover his own cottage on a post card send by a relative. He is flattered to see that his house is attractive enough to be reproduced on a post card available to the public. His name is not mentioned on the back of the card, therefore no one can know that he is the owner of the house.

However, he does not remember having given any consent to an agency or a publisher for such a reproduction.

2. He leaves his house to go to a job interview; Mr. DUPONT is actually looking for a job in a travel agency. On his way, he brakes the speed limit and is flashed by the police control radars.

Mr. DUPONT is rather annoyed because he has picked up a young and charming hitch-hiker and that she is seated next to him : little event which his legitimate wife will certainly not appreciate. The police arrests him, checks his identity documents, and shows him the radar photograph, which leaves no doubts …

3.                  During his job interview, he is confronted with a questionnaire which includes the specific following questions :
                        ·        what is your religion? / are you practicing?
                        ·        are you about to get married (in the next 3 following months)?
                        ·        are you in good health ?

Rather surprised by the implications of the questions, he interrogates the person in charge ; he is told that these answers are necessary for a job such as a guide in conducted tours : practicing certain religions may prevent him from accompanying tourists in certain countries ; being married restricts availability, so does poor health …

4. As he comes out of the interview, he runs into a gay demonstration in the street. Journalists and photographs are there to review the event. Mr. DUPONT has his picture taken by a journalist from the daily paper LE MONDE, who tells him that the picture « will be on the first page of tonight’issue ». Mr. DUPONT wonders if his future employer reads LE MONDE.

5. As he steps in his bank to cash a cheque, he notices that at the entrance door, a camera films everybody coming in and out.

6. During his discussion with his banker, Mr. DUPONT is told that the bank has received from the Judge for Family Affairs a demand for the bank statement of all his accounts, due to a divorce procedure started by Mr.s DUPONT.

7. When he arrives back home, his daughter tells him that, at the CHANEL shop where she works, the management has decided to impose upon staff a uniform dress ; it also announced that inspections will take place in the changing rooms. She wonders whether this is legal.

8. In the evening, Mr. DUPONT turns on the news on TV : he is puzzled to see that Mr. DUMAS, former Minister for Foreign Affairs, and President of the Conseil Constitutionnel has such a public « private life »!

I am sure that you will have pointed out, in this fictitious example, the number of intrusions to private life; the solution will be given in the following part.

According to French law, the protection of privacy is ensured at present by civil law (1) and penal law (2).

(1) In civil law, article 9 of the Civil Code provides that « everybody is entitled to respect for their private life. Judges may, (…), order all measures such as sequestration, seizure, and others, appropriate to prevent or to put a stop to a breach of privacy ; these measures may be ordered, in case of emergency, by provisional order ».

(2) In penal law, 3 articles of the Penal Code sanction :

·        « a breach of privacy by any kind of mean, such as:
            -         pick up, record, convey, without the consent of author, words said in private or confidentially;
            -         fix, record, convey, without the consent of a person, his (her) image while being in a private place » article 226-1

· « the fact of keeping, bringing to public’s knowledge, or to let public know, or of using by any kind of mean, any recording or document obtained thanks to acts mentioned in article 226-1 » article 226-2

· « the making, import, holding, exhibition, offer, renting, or sale of machines » which allow the commitment of the infringement provided in article 226-1 (article 226-3).

(3) Besides, beyond these texts –civil and penal- 2 other texts exist :

· the European Convention on Human Rights, which, in article 8 provides a « right to respect for private and family life, home and correspondance »;

· the Universal Declaration on Human Rights (article 12).

In France, both provisions (European and International) are directly applicable by French Tribunals : a French judge, who discovers a contradiction between the European Convention and the domestic law, must consider that the international law prevails (Cass crim. 3.06.1975 ; 26.03.1990 ; CE 20.10.1989).

Article 9 is the transcription of a bill dated July 17, 1970. Before, protection of private life already existed, through law case.

As far back as 1858, a decision of the civil Tribunal « de la Seine » reads as follow : « no one may, without family’s consent, reproduce or present to public the features of a person at the moment of death, whatever was the celebrity of that person » ( 16.06.1858).

Generally speaking, what you must remember from French law is a wide comprehensive approach of the notions of « private life » and « protection ».

· private life does not cover only family life, housing and correspondence. No definition of the terms is given by French law;

· what is protected is not only what is secret, intimate to a person, but also a part of its autonomy and freedom.

Thus, any individual has a right to have a so-called « reservation » field, in which third party cannot intervene, and a duty of no interference in other people’s business, for due deference.

The present talk will be limited to the study of article 9 of the Civil Code, penal law being set aside.

I will develop first the extend of the protection (A), then its limits (B), and thirdly its implementation at the judiciary level (C).

A – EXTENT OF THE PROTECTION

We will deal, one after the other, with the protected interests (1), and the protected persons (2).

1 – The protected interests

It is appropriate to examine what these interests are (1.1), before explaining how they can be interfered with (1.2).

1.1 – Definition of interest

Private life means altogether freedom (a) and secrecy (b).

(a) Freedom

Under the principle of the respect due to private life, certain offences to liberty of mariage are condemned.

For example :

· the right has been recognized for a transsexual to have his civil status indicating his new gender resulting from his appearance (Cass.11.12.1992) ;

· being homosexual for an employee is not a real or serious ground for being fired (Cass.17.04.1991).

The freedom of private life also covers :

- freedom of contraception and abortion

- freedom of family relations

- freedom of sexual relations

- freedom of setting up a family, even when jailed

- freedom of living or not living together under the same roof

- freedom of separation

- right of familial gathering, especially for foreigners expelled

- right of visiting for the father or mother who was not granted the custody of the child

- freedom to express one’s belief

- freedom of moving about

- inviolacy of correspondence, particularly for a jailed person.

(b) Secret

Everyone has the right of opposing himself to the fact that his private life is investigated or revealed.

b.1 – Examples of privacy

· address and phone number

The Court of Paris considered that revealing the name, the adress with street number and floor, and the town where is located the country house of an artist having a pseudonym constitutes an interference with his private life (Jean FERRAT case 15.05.1970).

This principle has to be applied, to officials, since they express by the mere fact of buying a private residence, their intention to occasionally escape from public curiosity that their activities necessarily attract, and whereas such a disclosure would put them against their will, at risk of indiscretion, solicitation or even ill-will actions (TGI Paris 2.06.1976 Princess of MONACO).

The protection relates to the date and place of birth and the bank account number (CA Paris 4.11.1983).

· state of health

An employer displaying a notice which reveals that one of his employees is affected with AIDS is attempting to his private life (CA Paris 24.09.1990).

· mortal remains

The reproduction of mortal remains has led to many court decisions.

- remains of actor Jean GABIN (TGI Paris 11.01.1977 ; Cass.21.10.1980)

- remains of actor/singer Jacques BREL (CA Paris 9.07.1980)

- remains of the President of French Republic François MITTERAND (Paris 13.01.1997).

This case law has settled that the protection of privacy does not come to an end with death.

· Maternity

In the same way, the secrecy of motherhood (Cass Civ 11.07.1985 SHEILA), of pregnancy (CA Paris 27.02.1981 I. ADJANI), of contraception (CA Aix en Provence 19.12.1968) is protected.

· family life

There is also secrecy on affiliation, as well as on sentimental, married and family life of any person.

Judgments have been passed, considering that these are attempts to private life :

- revealing a project of divorce (J. HALLIDAY – S. VARTAN CA Paris 7.10.1981);

- indicating the conditions of breaking-off for a couple (CA Paris 3.10.1986) ; this case is interesting because unknown persons were concerned for a TV show on divorced parents.

- Ups and downs in married or out of marriage life (CA Paris 17.03.1966 TRINTIGNANT/ BARDOT).

Protection of intimacy can be extended to social life ; for example, the Court of Appeal of Paris considered that a person, who was present in a demonstration of homosexuals in the street, can oppose himself to the reproduction of his image : « he has the right to claim secrecy towards his family and professional circle » (14.06.1985).

Coming back to Mr. DUPONT, we see that he could sue LE MONDE newspaper.

· religion / belief aspects

- See CA Paris 11.02.1987 about the unauthorized reproduction of the image of a person in a synagogue, without its name being mentioned. In that case, there is no more opposition between private life and public life, but a distinction between an obligation of secrecy and a more general one of discretion.

- An employer must not verify whether the person he is hiring is a worker priest (Cass soc.17.10.1973). A December 1992 bill regulates the content of the hiring questionnaire, which solely admits questions related to the proposed job.

The case of Mr. DUPONT is rather tricky : on one hand, it could be considered that the issues asked are indiscrete. But, on the other, one must realize that an employee who signed a contract for a job, while knowing that it could cause him problems concerning his convictions, cannot then try to impose to his employer such or such restriction, due to his religion.

Thus, a moslum worker, hired for the meat department of a food store cannot, after 2 years, ask to be transferred on the ground that he handles pork meat. It was judged that the employer was free to accept or not such a query, because there was no precise provision in the written contract that the worker would not be in contact with pork meat.

· professional life

In principle, professional life is not part of privacy. The Court of Appeal of Paris has judged that a professional activity is « situated on a public scene » (17.03.1966), and is a « public participation to the life of a city ».

Accordingly, the certificate of a firm certifying that it had employed a business agent does not come within the provisions of article 9 of the Civil Code.

On the other hand, it has been judged that « the publication of the picture of a lawyer (avocat) in the exercise of her duties, without her consent, in a non professional magazine, represents a breach of privacy » (TGI Paris 27.03.1981) ; same decision for a doctor (TGI Paris 14.11.1980).

Finally, the profession does not seem to be part of privacy ; however, it may be an occasion for several breaches of privacy (such as job questionnaire).

- The new uniform imposed on miss DUPONT is , in this precise situation, legal, because justified by professional reasons, linked to the distinction of the brand (CHANEL). It would be the same for security or health reasons.

For instance, a pharmacist may require from his chemist’s assistant with long hair to keep it tied during the working period, for health reasons ; however, it cannot be enforced to wear tee-shirts with different colors each day, just for esthetic reasons.

- About the clothing inspection, the internal settlement of the firm has to provided it. It must be justified by health or security reasons. For example, in the case of a firm using explosives, where robbery may lead to very dangerous consequences. (CE 12.11.1990).

Such an inspection, in the case of Miss DUPONT and CHANEL, may not be justified.

- About the « living a single life » clause : even if an employee has accepted such a clause in his working agreement, according which the wedding is prohibited during the agreement, such a clause is not valid (Cass.ch.mixtes 17.10.1975).

see Court of Appeal of Paris 30.11.1963 about the invalidity of a clause prohibiting a wedding while employed (air hostess).

However, for very exceptional and pressing reasons, the employer may justify that the wedding of his employee may be prejudicial to the interest of the firm. See the case of a private and catholic school, which had dismissed a teacher, because he had married again, after divorcing. The Court has decided that the dismissal was valid, because the school was taking particular care over the principle of indissolubility of mariage ( 19.05.1978).

· patrimony

In France, patrimony is part of privacy.

M. DUPONT’ summer house may be photographed ; however, it is prohibited to disclose (or reveal) it, if M. DUPONT did not give his agreement, whatever the medium is: news papers, advertising documents, posters, postcards …..

It has been judged that the fact that a magazine publishes a list of « the 100 richest French people » is not a breach of privacy, because the data is only financial, without data about privacy of involved parties (Cass.20.10.1993).

However :

- the leasor who’s providing to his lodger’s employer the amount of unpaid rent comes within the provisions of article 9 of the French Civil Code (Cass 12.10.1976);

- The financial difficulties of an employee does not affect his employer (CA Paris 29.01.1991);

- The fact of being into debt, or a seizure of wage is not a warant of a dismissal (CA GRENOBLE 03.04.1991. CA PARIS 9.04.1993);

- The data about the extent of a legacy (portion) which may be inheritated are private (CA Paris 12.01.1987).

b.2 - Protection of image and voice

A right of image is protected by law case, since 1858, each time a person has been photographed in privacy.

If lack of identification, the right of image cannot be called upon ; in other words, « the likeness (resemblance) between an actor playing the role of a lawyer (avocat) and a practising lawyer does not allowed to appeal to the protection of the right of image, as long as the movie never refers to the personal image of the involved lawyer » (CA Paris 6.06.1984).

Caution : do not merge « public life » and « professional life » : the professional life of an actor is not necessarily a public life (DELON case TGI Paris 4.07.1984).

As a matter of fact, Judges decide as the case comes, and weigh the pros and cons of interests at variance. These interests are, obviously, on the one hand the right of privacy , and on the other hand the right of information of the public.

Accordingly, it has been judged that the private life of an actress may occured in a public place (see CA Paris 27.02.1981 about the pregnancy of Isabelle ADJANI) ; in this particular case, the journalits had met the actress in a public place ; however, the Court has considered that the actress was there « for private reason ». Moreover, the Court has taken into account the will of the actress.

To conclude, the concept of privacy of an actor is personal ; in this particular case, the Court stressed the fact that Isabelle ADJANI wanted a complete absence of publicity about her pregnancy, and had watched over its non disclosure, as part of her professional life.

Moreover, the reporters were conscious of the fact that she did not want her pregnancy to be known.

Finally, one can say that, even in a public place, the agreement of the person has to be granted, in a number of cases.

1.2 – Types of transgression

A breach of privacy differs from defamation or slander (allegation of a fact which undermines someone’s honor or respect).

The publication of « a picture of a person in a society gathering with an article claiming (maintaining) that she has negotiated some stollen jewelleries » is a defamation.

A breach of privacy may be also a defamation ; however, both breaches do not have the same aim.

There are a lot of breaches of privacy, such as :

- the using of someone’s image for political or ideological aims without his agreement (R. BARRE’s case TGI Lyon 8.03.1985) ;

- the using of someone’s image for advertising reasons (NOAH case TGI Paris 21.12.1983 ; DEPARDIEU/Suchard chocolat TGI Paris 17.10.1984) ;

- the confusion between the image of an elected representative and the image of a public enemy (LE PEN / Hitler CA Paris 22.11.1984).

(a) disclosure

« Disclosure » means communication to an undetermined number of persons.

French law penalizes any kind of disclosure : notice board, public exhibition of a portrait, disclosure in a newspaper, in a book, on TV, the internet …

Ex : the Court of Appeal of Rioms has condemned a travel agency which had brought forward, at the request of a wife in the course of a divorce procedure, some invoices relating to her husband’s stay, because the agency had disclosed his rest place, and the identity of his traveling companions.

(b) interference

Interference means intrusion, investigation.

b.1 – private interference

The following are examples of breaches of privacy by private authorities :

the employer who has dismissed his employee because he (she) is involved in a divorce procedure, because she is pregnant, or had an abortion, or for religious beliefs, or because of his (her) membership to a sect, or because of his (her) way of dressing.

There are various types of interferences : opening of a letter ; using of telephoto lens ; in labour law matters, a request relative to one’s family life made to a candidate for a job may be a breach of privacy if it does not fall short of prescriptions of article L.121-6 of the French Labour Law Code : (i) sole aim to estimate one’s qualifications to the job offered, and (ii) have a direct and required link with the job.

b.2 – public interference

In principle, the government may solely interfere in privacy in exceptional circumstances, in order to protect superior values. Several bills reconcile public order and protection of privacy.

Ex : 21.01.1995 bill relative to safety (article 10-II deals with video monitor) ; 10.08.1993 bill relative to identity control ; 10.07.1991 bill relative to secret of correspondence sent by telecommunication means ; 6.01.1978 bill relative to computer, files and liberties.

The National Committee Computer and Liberties (NCCL, CNIL in French) is a typical French institution ; I have to say a few words about it.

It was set up in order to protect French people from dangers linked to computer files (excessive use or bringing together). It is an independent authority of independent and irremovable members, appointed for 5 years. It is in charge of defining the conditions of setting up of computer files.

The Committee has to be previously aware of any setting up of computer nominal file, and checks that it is in accordance with the bill’s prescriptions.

It gives a considered opinion [advice stating the reasons on which it is based] on the setting up of computer files by a public authority. It is very difficult to ignore a negative opinion.

Computer files set up by a private authority have to be registered ; this notification has to state the aim of the file, the type of information (data) treated, the duration of keeping, who are the users, the kind of bringing together etc…

The NCCL is also in charge of dealing with claims, and trying to find amicable settlement.

Examples :

* a national computer file, relative to genetic prints of sexual delinquents is about to be set up ; it will include the genetic prints of persons condemned for a sexual infringement. This draft shall be submitted to the NCCL for its advice.

* the Home Office is about to set up a computer file including the name, nationality and picture of any person who has been involved in investigations linked to crimes and offenses. People who have been solely suspected of having committed an offence shall be registered in this computer file. This is quite shocking, in a French point of view.

However, the NCCL has given its agreement, with some reserves. For example, in case of release, the recorded data shall be modified ; this implies that the person concerned exercises his right of access, in order to check that the modification has been done ; and a checking authority shall be also set up.

The State has a duty of abstention (see case of telephone listening table by « l’Elysée » CA Paris 30.09.1996).

France has been twice condemned by the European Court of Strasbourg for illegal telephone listening. Accordingly, a July 1991 bill provides the conditions of such telephone listening : they are prohibited in principle. However, the public authority may do them in very precise cases.

- It can be judicial listening only ordered by the Examining Judge, when it appears to be necessary for the investigation, and solely for inquiry relative to crime or offence with punishment of more than 2 years of prison. The order of the Judge must be written, and state the duration of the listening (no more than 4 months). The records have to be destroyed after 3 years for an offence, and after 10 years for a crime.

- It can also be administrative listening, under very exceptional circumstances (for national security reasons, prevention from terrorism..), because no offence or crime has been committed. The Prime Minister himself has to give his consent, only at the request of the Ministry of Defense, of Home Office, or of customs.

They are done under the control of a National Commission called « big ears Commission » ( !).

Besides, the State has a duty to protect privacy. Accordingly, it has to abrogate bills which would be against the principle of privacy.

2. Protected people

2.1. Physical persons

The protection of article 9 of the French Civil Code applies to any person, whatever is his (her) notoriety, or capacity.

(a) You don’t have to be famous to appeal to article 9 ; and even if you are an artist, a politician, an actor, you also have a right to privacy.

The protection provided by article 9 is personal, and covers breaches suffered solely by a person (exceptions below).

Don’t get muddled up with an analogy of situations (see advertising of BENETTON about AIDS TGI Paris 01.02.1995).

I attract your attention on the fact that a previous concession is not a justification ; moreover, in case of previous consent, it does not mean that an agreement to a new disclosure has been given.

It is not possible to renounce to the right provided by article 9.

(b) The legally incapables are also protected.

Ex : article 435 of the New Code of Civil Procedure provides that hearings relative to civil status and to capacity are not public.

- Husband/wife and relatives :

In case of publication of a picture of a husband, without consent of his wife, she may join the proceedings, even if she does not appear on the picture .

It has been judged that breaches of privacy of a reigning Prince’s daughter affect not only the princess herself and her parents, but also the sovereign family (case of Caroline of MONACO TGI Paris 2.06.1976).

- Heirs :

The right of privacy solely belongs to the livings, and is not transferable to heirs (case relative to a press article about the suicide of a lawyer, and the claim for damages of his widowed CA Paris 6.05.1997).

2.2. Legal entities

It has been judged that a legal entity has, concurrently to its public life, a private life in its own buildings. An individual who is not part of it cannot, without the agreement of the entity, breach it (Cass. 23.05.1995, about a car manufacturer).

About a tribe, see CA Paris 20.12.1976.

B – LIMITS

A person cannot claim for a breach he had agreed to (1).

Rightful interest of information may lessen the sphere of protection (2).

1. A formal consent

It can be a mere authorization (a) or a formal contract (b).

(a) Authorization

The defendant (journalist) has the burden of the proof of the authorization (of the plaintiff) .

The authorization has to be real, unequivocal, and particular. It is not necessarily explicit, and may be followed from circumstances.

The tacit consent to a publication cannot be presumed.

The consent is personal : « the authorization given by a penitentiary office to producers of a TV reporting to enter a prison does not absolve them from asking for the consent of the prisoner himself, who is alone entitled to give it » (TGI Paris 13.04.1998).

The consent has to be strictly interpreted : « the fact that a shopkeeper accepted to be photographed by tourists for their own trip souvenirs does not mean that she had given her consent to have a postcard printed with a image ».

Besides, « the authorization has to be used within a reasonable delay » ; otherwise, it is not valid anymore.

Silence does not mean consent (CA Paris 3.03.1985).

(b) Formal agreement

ex : for a portrait made by a professional photographer, subject to payment;
for the spreading of a model’s image, subject to payment;
for an interview.

A third party to the contract cannot put forward the consent of a person: an actress gave her consent for a publication of herself naked, to such magazine (Sunday Mirror) ; even if the Sunday Mirror sells the picture to another magazine (Paris Match) the second one cannot consider that the actress gave her consent ; Paris Match is not entitled to publish it (case DORLEAC Cass 17.03.1977).

The consent is revocable, without any obligation to explain the reasons for its revocation. However, an excessive revocability may be penalized.

2. Rightful interest of information

Privacy may be in disagreement with the freedom of information.

(a) Present-day needs

The right of privacy is not unrestricted. It has been judged that « the limits to the right of information of the public are not exceeded, and there is no breach of privacy when a newspaper gives the address and publish a picture of the house of artist who had been assaulted, because such publishing is directly linked up with a present-day event of a public interest ; moreover, the artists had showed no particular will of discretion in order to keep their home secret » (CA Paris 5.03.1986).

The event which has no public interest, or which is not a present-day event, cannot be published.

Ex : when the tennis player Y. NOAH’s grand-father died in 1984, a newspaper published an article about it with pictures of the funeral. Y. NOAH sued the editor of the newspaper, claiming for damages, based upon a breach of privacy and his right of image.

The first instance court accepted to the request. It considered that even a public person has a right to privacy. The Tribunal also focuses on the fact that the pictures of the funeral had been taken during a family ceremony.

However, the Court of Appeal decide that:

-         the funeral had taken place in a public place;
-         the grand-father was famous in Cameroon ; his death had occurred after being wounded during a « coup d’Etat » in his country ; accordingly, the publishing of the funeral was covered by the right of information ;
-         Y. NOAH was a notorious person, and his pictures were constantly in newspaper (CA Paris 13.03.1986).

(b) Rights of History

In the name of History, specialized historians have the right to examine closely and to comment on privacy of deceased people, for a more precise knowledge of their acts.

Under these circumstances, there is no breach of privacy.

However, there are some limits : when the person is part of a recent past, and still has heirs alive, the historian has to pay attention.

(b) Research of Truth

In order to set up a « memory alive », a July 1985 bill provides the authorization of recording the trials’ hearings which have an interest for historical archives of Justice (see case of BARBY Cass.16.03.1994).

Article 259-2 of the Civil Code provides that affidavit made by a process-server at the request of a husband (in case of a divorce procedure) must be turned down if there has been an illegal entry, or a breach of privacy.

In order to be legal, such affidavit (stating an adultery or a concubinage) has to be previously authorized by a judge’s order (President of the first Instance civil Tribunal) ; the process-server has also to establish it in a regular way.

The request made by the Judge to Mr. DUPONT’s banker, to provide his banking accounts is authorized by the Civil Code (article 259-3), in order to determine an allowance for board.

The professional classified and secret bank information cannot be set against it.

(c) Public Order

· the picture taken when Mr. DUPONT broke the speed limit is legal. It has been judged that such picture taken by exercising policeman in order to state an infringement to the Highway Code is not a breach of privacy.

The interest to protect is the road security.

· regarding the control of identity documents, the French Penal Procedure Code authorizes it when there is a sign that an individual « has committed or has tried to commit an infringement », or « in order to avoid a breach of peace, specially with individuals and assets security » (article 78.2).

· regarding the camera located in Mr. DUPONT’s bank, a 1995 bill authorized such set up of videos in public places, and in private places opened to public.

In the first case (public place) the sole public authorities have the right to set up it in order to preserve peace (buildings, road traffic control, safety of National Defense’s buildings …)

In the second case (private places opened to the public) an authorization has to be requested to the « préfet » (administrator of a region) after the advice of a Commission presided over by a judge.

Besides, one must prove that the place is exposed to a risk of robbery or attack (bank, corridors of underground …) .

The tapes have to be destroyed within a delay of 1 month (except in case of inquiries). A right of access to the tapes is provided for the persons concerned.

Finally, the public has to be awarded of the existence of the video.

C – IMPLEMENTING THE PROTECTION

1. The means at the disposal of the « juge des référés » :

Two provisions can be decided on: one to put a stop to the interference (1.1), the other is complementary in order to make sure that the decision is cessied out (1.2).

1.1. The provisions aimed at putting a stop to interference

The Judge may prohibit the publishing of a book, or the distribution of a movie, as long as the extract or the shortcut have not been removed.

The Judge may order the seizure or the sequestration.

In the case so-called « cannibal Japanese case », the judge ordered to the editor :

· a prohibition to deliver the magazine which showed the cut-up corpse of a Dutch student (killed by the Japanese),

· and an obligation to take and bring back to his offices all copies already distributed.

In that case, it concerned 243 000 copies already printed, with a 10 FF fine for each unreturned copy.

At this point, speaking of the fine means that we are going to deal with the so-called complementary provisions.

1.2. Complementary provisions

They are aimed at implementing the decision.

In the above mentioned case, the Judge ordered 3 provisions :

- designation of an authorized agent (bailiff)

- fine

- summons to all parties for a further hearing

« The « juge des référés » must ascertain and check the effectiveness of the provisions that he decided for » (TGI Paris 30.11.1983).

(a) designation of a bailiff

His duties are laid down by the order : he must establish, with parties, the magazine printed number, how many copies have been withdrawn and how many have not been withdrawn. He has to report to the Judge at the fixed time.

(b) summons of parties to a further hearing

In his first order, the Judge summons parties for a fixed date, in order to ascertain that his decision has been implemented.

In our case, at that date (13.12.1983), the Judge acknowledged that the copies under dispute had not been fully returned; accordingly, he asked the bailiff to carry on his duty and fixed a third appointment to the parties.

Furthermore, the parties were asked to supply any evidence of the exact importance of the damages and, thus, allowing for an appreciation of the financial compensation.

A third hearing took place on January 1984 ; the Judge checked what had been done and decided that, due to a lack of action from the defender, 160 000 copies out of the 243 000 distributed had not been returned.

He reduced the fine from 10 to 3 FF « due to run across difficulties » . However, the amount of the final fine was still high : 480 000 FF.

(d) granting a provision

Its amount may be limited to a 1 franc piece.

If the plaintiff is satisfied with such a provision, he will not have to refer to the Tribunal « au fond ».

2. The means at the disposal of the « juge du fond »

More than often, when a plaintiff finds out that his image has been, for example, printed in a paper without his consent, he immediately refers the case to the « Juge des référés », because it is a swift procedure, and allows, as we have seen, for the seizure of the paper before it is distributed.

Once the interference has come to an end, the plaintiff may refer to the regular Tribunal, in order to obtain compensation for prejudice suffered (obviously, this action takes place when he did not obtain a provision from the « juge des référés », or if he considers that the compensation granted is not sufficient).

The plaintiff must (2.1) give evidence of a fault, and (2.2) ask for compensation for the prejudice suffered.

2.1. Evidence of the fault

(a) The fault as a breach of contract

The singer M. SARDOU had given an interview to a journalist and asked that it be published on the first page. The paper published it on last page.

The Court of Paris condemned the paper on the grounds that it was « neither illegal nor abusive from the artist to require from a periodical to appear on such heading or such a page » (26.03.1987).

In fact , in this case, the reference to article 9 may be questioned as the artist did not complain on the grounds of an interference with his private life, but of an inadequacy to his public.

(b) The fault may also be an offence.

2.2 Redressing the prejudice

It can be a lost financial opportunity : the person could have required payment for the use of his (her) image.

Most of the time, the prejudice is « moral » : the victim is wounded in his (her) intimacy, honour or freedom.

The more the prejudice is important, the higher is the amount of damages.

Ex : C. CHAPLIN got £ 4 500 in 1973 ;

S. VARTAN and J. HALLIDAY £ 5 000 each in 1974

RAINIER family of MONACO £ 11 500 in 1976

The 2 actors who had played in a movie relative to a frivolous comedy, and who became aware that several erotic scenes had been added were granted £ 10 000 each in 1977.

Finally, the victim may ask for a reparation in kind : for example, the publishing of the Court decision of condemnation.

CONCLUSION

It is difficult to reconcile both rights (to information and to secret).

I would advise to refer to European law cases, and particularly to the WINGROVE / United Kingdon case 25.11.1996. The main issue is to know if the interference is necessary in a democratic society.

I hope that you will have the opportunity to get the precedents soon, thanks to your Human Rights Act, which will contribute to the development of the debate.

Law Society of Scotland - 1998