Selfie, Privacy, and Freedom of Speech Collide in France

February 19, 2016 · by ·

On December 12, 2015, Brahim Zaibat, a dancer and choreographer, posted on social media a selfie he had taken two years ago, showing him in an airplane, just a seat behind the one where Jean-Marie Le Pen, the honorary president of the French National Front, had fallen asleep.

Mr. Zaibat wrote under the selfie: “Put them KO tomorrow by going to vote. To preserve our fraternal France !!! ” Mr. Zaibat was referring to the second round of France’s regional elections, which were to take place the next day, on December 13, 2015, as the National Front, a party on the far right, was leading in the first round of the election in six of the thirteen French regions.17431042963_bd7983b82d_o

Mr. Le Pen took umbrage at this photograph as he considered it to be an infringement of his privacy and of his right to his image (droit à l’image). He sued Mr. Zaibat on December 31, 2015, and asked the Tribunal de Grande Instance (TGI) of Paris, sitting in emergency, to order the selfie to be taken down from the social media site, to order the publication in several magazines of a message informing the public about this judicial measure, and to order Mr. Zaibat to pay a provisional fine of 50,000 euros.

Mr. Zaibat argued in defense that ordering his selfie to be removed would undermine his freedom of expression as protected by article 10 of the European Convention on Human Rights (ECHR). According to Mr. Zaibat, he had “not overstepped the limits of freedom of expression, in a humorous way, in the context of a political debate on a topic of general interest.” For Mr. Zaibat, the selfie was a photograph taken in public, which represented, in a humorous way, a politician whose party was then in the spotlight.

But the judge, quoting both article 9 of the French civil Code, and article 8 of the ECHR, both protecting privacy, considered that the selfie indeed had violated Mr. Le Pen’s privacy and the right to his image. But she considered that since the selfie was “neither degrading nor malicious,” it was appropriate to award the politician only one euro compensation. However, the judge forbade Mr. Zaibat to republish the photograph under penalty of 1,000 euros per infringement.

Mr. Zaibat has appealed the interim order.

No legal definition of privacy

Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life” but it does not define what privacy is. Similarly, article 8 of the ECHR guarantees the right to respect for private life, without defining that concept. In 1970, the Parliamentary Assembly of the Council of Europe defined the right to respect for privacy in its declaration on mass communication media and human rights, Resolution 428, as “consist[ing] essentially in the right to live one’s own life with a minimum of interference” which includes “non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs.”

Freedom of expression

Article 10 of the ECHR protects freedom of expression, which may nevertheless, under Article 10-2 of the Convention, “be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.” The Court interpreted this text in 1979, in Sunday Times v. The United Kingdom, as requiring that such measures necessary in a democratic society must correspond to a pressing social need, which must be proportionate to the legitimate aim pursued. Furthermore, the reasons given by the national authorities to justify such measures must be relevant and sufficient (see Sunday Times v. The United Kingdom § 62).

The difficult balance between freedom of expression and protection of privacy

The selfie violates the privacy of Mr. Le Pen. But does his right to privacy necessarily prevail over the right of Mr. Zaibat to express himself and over the public’s right to be informed?

It can be argued that a public person has the right to fall sleep on an airplane without having his picture taken and the photo published. Mr. Le Pen had argued in court that Mr. Zaibat was not a political debater or a comedian, but a dancer, and thus could not avail himself of free political expression, but that he had “in fact expressed himself as a private citizen and had simply taken advantage of the political agenda to create some “buzz ” by broadcasting a stolen photograph taken two years before.” But freedom of opinion belongs to everyone, dancers, politicians, and media.

In a recent judgment, Couderc and Hachette Filipacchi Associés v. France, the Grand Chamber of the European Court of Human Rights unanimously held that France had violated Article 10 of the ECHR when interfering in 2005 with the right of weekly magazine Paris Match to publish photos of the then secret son of Prince Albert of Monaco.

In Couderc, the Court observed that “[t]he right to the protection of one’s image is… one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof” (Couderc § 85).

The Court added:

“In determining whether or not the publication of a photograph interferes with an applicant’s right to respect for his or her private life, the Court takes account of the manner in which the information or photograph was obtained. In particular, it stresses the importance of obtaining the consent of the persons concerned, and the more or less strong sense of intrusion caused by a photograph… In this connection, the Court has had occasion to note that photographs appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public’s curiosity regarding the details of a person’s strictly private life… are often obtained in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution” (Couderc § 86).

What about the picture taken by Mr. Zaibat? Does it represent Mr. Le Pen in his private life or in his public life? Mr. Le Pen is a public person. The photo was taken in a public place, an airplane, without the subject of photography being harassed. All persons in the aircraft could see Mr. Le Pen asleep in his seat, if passing by him in the aisle. But does the public have the right to know that he was asleep in this plane?

The judge took the position to subjectively define privacy as the sphere that the person herself defines when determining what can be disclosed by the press.

“In accordance with Article 9 of the Civil Code and Article 8 of the [ECHR] every person, regardless of his reputation, has a right to privacy and is entitled to get protection by setting herself what may be disclosed by the press. ”

But this is an “extreme” conception of privacy according to three law professors (Traité du Droit de la Presse et des Medias, Bernard Beignier, Bertrand De Lamy, and Emmanuel Dreyer, paragraph 1589). The authors note that this conception allows an individual to “oppose any publication even in the presence of a legitimate public interest.” According to the authors, this conception of privacy is “not viable.”

In a case with facts somewhat similar to ours, François Hollande, then First Secretary of the French Socialist Party, was photographed in 2006 while on vacation, in a market in the South of France. The photos were published in a weekly magazine which illustrated them with humorous comments referring to current events. Mr. Hollande sued the magazine for invasion of privacy. The Cour de Cassation, France’s highest civil court, ruled on October22, 2007, that the photos indeed had interfered with the privacy of Mr. Holland:

“Whereas the limits of the protection afforded by article 9 of the civil Code can be interpreted more widely in respect of persons performing official and public functions, the information revealed in this case are not directly related to the political functions exercised by the applicant as the photographs were taken on the occasion of a private activity carried out during his vacation; these elements are therefore not within a legitimate public information, despite the humorous reference in the article to the next organization by François Hollande of a conference on the purchasing power of the French.

Did Mr. Zaibat participate in a debate of general interest by publishing the selfie? In its judgment in Von Hannover v. Germany (n. 2), the European Court of Human Rights explained that:

“an initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest… the definition of what constitutes a subject of general interest will depend on the circumstances of the case“ (Von Hannover v. Germany (n. 2) § 109).

Yet, after its Couderc case of November 2015, the European Court of Human Rights seems to tip the balance in favor of freedom of expression. However, the French courts are often more favorable to the protection of privacy. Stay tuned…

Image is courtesy of Flickr user Gautier Poupeau under a CC BY 2.0 license.

Facebooktwitterredditpinterestlinkedinmailby feather
Filed Under: Free Speech, Privacy, Right of Publicity, Uncategorized · Tagged: , , , ,

The Paris Court of Appeals Gives Freedom of Expression the Ax in Favor of Droit Moral

February 10, 2016 · by ·

The Paris Court of Appeal recognized on October 13 that the opera Le Dialogue des Carmélites, as staged by Dmitry Chernyakov for the Opera of Bavaria in 2010, had violated the moral rights of the composer and the librettist. The music for the Dialogue des Carmélites was written by Francis Poulenc and its libretto adapted the eponymous theatrical work of Georges Bernanos.

The opera tells the story of a young French aristocrat, Blanche de la Force, who is painfully shy and fearful. As the French Revolution is about to start, she decides to become a Carmelite, or rather, to seek refuge in a convent. After the Carmelites are forbidden by the revolutionaries to be nuns and are ordered to go back to their civil life, they take a vow of martyrdom. Blanche flees the convent. The nuns are later arrested and sentenced to death.
In the last scene of the opera, which is the only scene in contention in this case, the Carmelites go one by one to the scaffold, while singing Salve Regina, a choir which decreases voice by voice after the sound of the ax, repeated regularly by the orchestra, indicates that the blade of the guillotine has cut off yet another head. Blanche suddenly appears at the scene, serene, just before the last nun, the young Constance, is about to be guillotined. Constance dies knowing that Blanche has been able to overcome her fears. The opera ends with Blanche calmly climbing the steps to the scaffold while singing the Veni Creator, and dying. The orchestra then plays again the opera’s motif, first played in its opening, albeit more plaintively this time. The whole scene is chilling.nun

Dmitry Chernyakov chose to place the action of the opera in the contemporary world, not during the French revolution. There is no guillotine in the last scene, and the nuns are instead held prisoners in a shed, waiting to be gased. Blanche suddenly arrives at the scene, albeit not to share the nun’s martyrdom, but to save them one by one, each of the rescues being punctuated, rather oddly, by the sound of the guillotine. Blanche then goes back inside the shed which explodes, killing her. It is unclear whether it is an accident or a suicide.

The heirs of Poulenc and Bernanos, as holders of their moral rights, brought an action in France against the director, the editor of the DVD of the opera, published in France, and the Munich Opera in the person of the Länder of Bavaria. They argued that the staging transformed the end of the work so much that it had distorted it and thus had violated the moral rights of the authors. Under Article L. 121-1 of the French intellectual property code, authors of an original work have a moral right over it, which is perpetual and transferable upon death.
The Tribunal de Grande Instance in Paris rejected the request of the heirs in 2014, concluding that the changes made by the staging were not a distortion violating the moral rights of the authors.

On appeal, by the heirs, the Länder of Bavaria argued that neither the libretto nor the music had been changed, and that only the staging, as performed by the singers during the last scene of the opera, had been modified. The Länder further argued that Mr. Chernyakov’s staging had conferred to the work “a more universal significance and is consistent with the spirit of the original work, since it respects its essential theme, which is hope.” One of the DVD producers argued that the appellants themselves had recognized in their conclusions that neither the libretto nor the music had been modified by the staging, and, that therefore, “the debate is outside the moral right and the legal debate, but is about the interpretation of the work and the artistic and historical controversy.”

The Court of Appeal stated:

“that if some freedom can be granted to the director performing his staging, this freedom is limited by the moral rights of the author and respect for his work, his integrity and his mind, and that this should not be distorted.”

The Court of Appeals admitted that the final scene of the opera as directed by Mr. Tcherniakov does not change the dialogue which is not even spoken during the final scene, nor the music, as the orchestra dutifully played each sound of the falling guillotine even though there was no guillotine on stage. However, the Court noted that these changes are “enigmatic or incomprehensible, or imperceptible to the neophyte.”

For the Court, even if Mr. Tcherniakov’s staging respected the central themes of the opera, which are hope, martyrdom and the transfer of grace, “it profoundly changes the end of the story as intended by [the authors] (…) and is the climax of the story, magnified in Poulenc’s opera, where text and music come into perfect harmony.” The Court of Appeals concluded that the staging had distorted the spirit of the work.

The sale of the DVD is now banned in France, but the heirs have not obtained the complete prohibition of the representation on other stages. This must be welcomed, as it would be dangerous for freedom of expression, particularly freedom of artistic expression, if moral rights could thus become a universal instrument of censorship.

This post was originally published on The 1709 Blog.

Facebooktwitterredditpinterestlinkedinmailby feather
Filed Under: French Copyright · Tagged: , , ,

France: Text Messages Sent and Received on Business Phone May Be Examined by Employer

March 11, 2015 · by ·

A February 10, 2015 opinion of the Commercial Chamber of the Cour de Cassation, France’s highest civil court, should interest U.S. companies having employees in France.

According to the Cour de Cassation, employers can read text messages sent and received on electronic devices provided to their employees, if the personal nature of these messages is not indicated. As it is difficult, if not impossible, to indicate that a particular text message is personal, it seems that all text messages sent and received on a professional phone must be regarded as professional and thus may be accessed by the employer.textmessages

In this case, Newedge, a French financial company, was blaming GFI, a British financial company, of a wave of employees’ departures and even alleged it had “poached” employees, which had disrupted its activities. Newedge had obtained in November 2011 from the President of the Paris Commercial Court an emergency order authorizing a search of GFI’s premises. In support of its request, Newedge had produced text messages, and documents reproducing text messages, which had been received and sent by its former employees. GFI unsuccessfully moved to revoke the emergency order, and then appealed, but the Paris Court of Appeals upheld the emergency order on January 10, 2013. GFI then appealed in cassation.

 The principle of fairness in the administration of evidence

GFI had argued before the Court of Appeals that Newedge had produced, in support of its emergency order request, documents obtained unlawfully and unfairly, especially text messages. These messages, according to GFI, had been obtained unfairly because they violated the rights of employees, particularly their right to privacy and of secrecy of their correspondence.

Newedge had, however, argued that there was a legitimate reason to produce these documents, within the meaning of article 145 of the French Code of civil procedure, because Newedge needed to prove GFI’s alleged employee poaching and unfair competition.

GFI had argued that it was impossible to identify as “personal” text messages, as they do not have a “subject” field. Therefore, according to GFI, Newedge had procured these messages by an unfair process that made their production inadmissible as evidence. GFI further argued that the Court of Appeals had violated Articles 6 § 1 of the European Convention of Human Rights (ECHR), which protects the right to a fair trial, and Article 9 of the French Civil Code which protects privacy.

Indeed, under French law, evidence obtained by unfair means, such an invasion of privacy, is not admissible in court. According to Article 8 paragraph 1 of the ECHR, everyone has the right to the secrecy of their correspondence, and Article 9 of the French Civil Code protects the right to private life, including the right to confidentiality of correspondence.

French Employees Have a Right to Privacy in the Workplace

The Social Chamber of the Cour de Cassation had held on October, 2, 2001, in  the famous Nikon case, based on section 8 of the ECHR and article 9 of the Civil Code, that

“An employee is entitled, even at his place of work, to respect for his privacy; that this implies in particular the confidentiality of correspondence. The employer may therefore not violate this fundamental freedom by accessing the employee’s personal messages which he received on a computer made available to him for his work, and this even if the employer had  prohibited personal use of the computer.”

In addition, the Social Chamber provided a way for employees to protect the privacy of their files when it found, on October 18, 2006, that “the folders and files created by an employee on a computer made available by the employer to the employee to execute his work, are presumed to be professional in nature so that the employer can access in his absence unless the employee has identified them as personal.”

In our case, the Paris Court of Appeals had found that “the documents, folders, and files created or held by an employee at his disposal in the company office are, unless they have been identified as personal, presumed to be professional, and the employer can access them even in the absence of the employee. This includes electronic messages sent by e-mail or text messages.”

The Cour de Cassation approved the Court of Appeals because “text messages sent or received by the employee on a phone made available to her by the employer for work purposes are presumed to professional so that the employer has the right to consult them outside of the presence of the person concerned, unless they are identified as being personal. ”

The text messages produced as evidence by Newedge had not been identified as “personal” by its employees, and therefore Newedge had not obtained this evidence unfairly within the meaning of article 9 of the French Civil Code and article 6 §1 of the ECHR.

Are Text Messages Sent and Received on a Professional Electronic Device Always Professional?

Does this mean that text messages sent and received using an electronic device provided to employees by an employer are necessarily of a professional nature, since it is not technically possible to indicate their personal nature?  

The Paris Court of Appeals noted that article 4.1 on email monitoring, and article 4.3 about information collection, of Appendix 2 of Newedge’s Charter of Use of Electronic Devices, which was applicable to all employees, clearly stated that messages sent and received by employees were stored and could be searched using keywords. In addition, article 3 of the Charter stated that a message sent or received from workstations made available to the employees were of a professional nature. Furthermore, Article 11 of Newedge’s Internal Rules (Règlement Intérieur) stated that “staff members should not use the company’s communication tools for personal purposes.”

It is true that Article 3.3 of the Charter allowed for reasonable private use of professional electronic devices, but stated they were only considered as private messages with “personal” (personnel) in the subject field. The judge ruling in emergency had thus been right when he found that emails and text messages, sent and received on professional electronic devices, the personal character of which had not been stated, could be investigated by the employer for legitimate reasons.

The fact remains that it is technically impossible to identify personal text messages. Will technology eventually adapt to offer employees a way to indicate which of their text messages are private?

Meanwhile, French employees must be aware that their employer has the right to access all text messages sent and received on their business phone.

(The French version of this post can be found here).

Image is courtesy of Flickr user Kamil Porembiński under a  CC BY-SA 2.0 license. 

Facebooktwitterredditpinterestlinkedinmailby feather
Filed Under: French Internet Law · Tagged: , ,