M. Korytko - Dissertation (LLB)

7/27/2019 M. Korytko - Dissertation (LLB)

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Candidate number: NJGY7

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The balance struck between privacy interests and freedom of

expression in English and French law

For many years, French privacy law has been diametrically opposed to its

common law counterpart. This is not only because English law has never

expressly recognised a general right to privacy while French judges have been

building on the right codified in article 91 of the Code Civilforforty years, but also

because the recourse by English judges to pre-existing causes of action to

determine clear-cut infringement-of-privacy cases has proved to be an

illustration of how different the incremental judicial approach to the law has

been from the French civilian legal system. However, recent developments in the

law of privacy merit closer examination.

Prior to the application in domestic courts of the right to private life (article 8)

and the right to freedom of expression (article 10) provided for in the European

Convention on Human Rights (ECHR), loopholes and conceptual inconsistencies

were apparent in both legal systems. In England, the courts noted the practical

difficulties resulting from not having a cause of action specifically designed to

give relief to claimants whose privacy had been intruded upon (e.g. in the Kaye v

Robertson case2). In France, on the other hand, the overprotective nature of the

right to privacy and the right to ones own image, which also comes under the

article 9 of the Code Civil, led the European Court of Human Rights (ECtHR) to

condemn the manner in which French judges, in a series of cases, examined

1Everyone has a right to respect for his or her private life.2[1991] F.S.R. 62 at (66), at (70), at (71).


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defendants claims to freedom of expression when private information was at

issue.

The overall effect of these judgments has been to encourage the courts of both

countries to give equal weight to article 8 and article 10 of the Convention when

disputes as to whether the disclosure ofprima facie private information may be

justified by a countervailing public interest come to court. The study of this

balancing exercise conducted by English and French judges in recent cases is

crucial in determining the extent to which privacy law in the two countries may

be said to be converging or, at least, likely to converge in the future.

In order to analyse the manner in which French and English courts strike the

balance between privacy interests and claims under article 10 of the ECHR, we

shall firstly study the incorporation of the Convention rights in both England,

which has a dualist system of international law, and France. After discussing the

extent to which private individuals may rely on those rights in domestic courts,

we shall lay down the judicial principles used to conduct the balancing exercise

in both countries and single out their similarities and differences. Finally, we

shall focus on the criteria used by French and English judges to give prevalence

to disclosure of information when the right under article 8 of the Convention or

article 9 of the Code Civilis engaged and examine the extent to which they have

the effect of bringing together both legal systems and aligning them with the

jurisprudence derived from the Strasbourg court.


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France incorporated the ECHR into domestic law by means of its ratification in

1974. Since then, article 8 of the Convention, granting protection to individuals

right to private life, has been directly applicable in French law by virtue of article

55 of the 1958 French Constitution which, illustrating the monist nature of

French constitutional law, allows ratified international instruments to take effect

immediately within the law of the country.

The horizontal effect of the Convention right to private life, which triggered a

major debate in English law and remained a hotly disputed question3 for

several years after the enactment of the Human Rights Act 1998 (HRA), was

accepted by the courts with fewer difficulties in France, where a doctrinal

movement emerged in the 1960s in favour of enabling private individuals to rely

on Convention rights as against other private parties4.

This doctrinal idea of the Convention granting enforceable rights to individuals

materialised in the courts through two cases which recognised the primacy of

international law when conflicts between treaties and subsequent acts of

Parliament arose.

The first came in the highest civil and criminal court, the Cour de Cassation,

which, following the Constitutional Courts reasoning in an earlier case5

,

delegated the power to disapply national legislation in favour of conflicting

international undertakings to private law judges6. Fifteen years later, the highest

administrative court, after resisting the principle out of concern that it would

3Jonathan Morgan, Privacy, Confidence and Horizontal Effect: Hello Trouble, 2003 CLJ 444,452-457.4 M-A. EISSEN, La Convention et les devoirs de lindividu, dans la protection internationale des

droits de lhomme dans le cadre Europen, 1961, Dalloz, p. 167. D. Spielmann.5 C.E. 15 January 1975 n 74-54.6 Ch. Mixte 24 May 1975 n73-13556.


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erode parliamentary sovereignty7, finally accepted the idea and extended its

scope to cover French administrative law8.

One of the consequences of these cases is the wholehearted incorporation of the

ECHR into French administrative and private law, with no later acts of

Parliament being capable of circumventing its application. Moreover, it allowed

ordinary courts to put aside national legislation that conflicted with previous

international norms giving article 55 of the Constitution a wider effect and

making the values underlying the Convention unrepealable by Parliament.

Although it is widely acknowledged that the Conventions procedural clauses

were drafted in such a way as to make the provisions binding chiefly on public

authorities, French courts have explicitly cited Convention rights in disputes

involving private parties without having recourse to constitutional provisions

justifying its application.

This trend started in the 1990s with a case in which a balancing exercise

between article 10 and article 8 of the Convention was carried out in a dispute

between a prince and a journalist from the Mail9. This horizontal effect was

explained by the fact that, despite the restrictive procedural rules laid down in

the Convention which, prima facie, requires the defendant in a trial before the

ECHR to be a Member State, the national judge is bound to ensure, in private

7French Legal System 2nd edition (2006), Catherine Vernon, Eric Jeanpierre and Chatherine

Elliott, P. 59.8 C.E. 20 October 1989 Arrt NicoloN 108243. Rec. Lebon p. 190.9 Cass. Civ. 1st, 23 October 1990, n. 89-13.163, Bull civ. I, n.222.


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disputes as well as in disputes involving the state, respect of positive law, which,

since 1974, includes the European Convention10.

It may be argued that recognition of the direct effect of article 8 in disputes

between private parties in France only amounted to a minor step forward in the

protection of privacy interests, as the prior case law and the 1970 statute

enshrining article 9 in the Code Civil both created an adequate set of rules

designed to ensure everyones right to respect of his or her private life and of his

or her image. This is reflected in the significantly low number of judgments by

French courts citing article 8 as a basis for their decision. However, the

horizontal effect of the Conventions provisions can be deemed important in the

way that it resulted in French judges being required to assess private life-related

infringements in the light of article 10, thereby enhancing the binding force of

the principle of freedom of expression for which French law had arguably had

more abstract provisions before then. Indeed, although freedom of expression

was provided for in article 19 of the Universal Declaration of Human Rights and

was given constitutional status in article 11 of the Declaration of the Rights of

Man and of the Citizen of 1789, the rules restricting this freedom were

numerous, most of them coming under criminal law and being designed for

specific offences11.

10 Rep. Pr. Civ. Convention Europenne des droits de lhomme et procdure civile, n.106 Porte

pour les particuliers: la question de leffet horizontal ou non de la Convention.

11 E.g.: Professional secret infringement (art. 226-13), Propaganda and publicity for products,objects or methods capable of being used to commit suicide (art. 223-14 Penal Code), Defamation

and Slander (art. 20, Law passed on the July 29th 1881 on press freedom).


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The inability of English judges to enable private litigants to rely directly on the

Conventions provisions in the first cases heard following the entry into force of

the HRA in 200012 shows that the issue of horizontality in English law has been

inherently more complex than the French approach to the question, which has

accepted the direct effect of those provisions in the absence of constitutional law

barriers to it.

The dualist nature of the relationship between English law and international law

and section 6(1) of the HRA, which imposes an express obligation on public

authorities to act compatibly with the Convention, have both played a part in the

conceptually strained judicial development of privacy law at common law.

It is submitted that two distinct judicial trends can be observed when examining

the English position over the last ten years: while the first has incorporated the

underlying values of the articles without enabling the parties to rely on them

directly, the second has demonstrated considerable judicial activism in making

the balance between article 8 and article 10 the very core of the test to be

applied in cases of wrongful publication of private information.

In the years following the enactment of the HRA, English judges struggled to give

a clear answer as to the exact extent to which horizontal effect of article 8 could

be recognised in actions between private parties. This initial judicial reluctance

to embrace horizontality wholeheartedly probably stemmed from the fear that

recognising such an effect would have automatically led to the creation of a new

12 See Douglas v Hello! Ltd [2001] E.M.L.R. 9 at (129); Venables v News Group Newspapers Ltd and

Others [2001] 2 W.L.R. 1038 at (27).


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cause of action specifically designed to protect privacy13 which the judiciary had

been carefully avoiding for many years14.

Murray Hunt noted the merits of section 6(1) of the HRA and its effect of

imposing a duty on the courts to act compatibly with the Convention, i.e. to give

due regard to the Conventions articles even in private disputes15. Hunt adhered

to the approach advocating a strong indirect horizontal effect, meaning a general

obligation on judiciary to apply domestic law in a manner consistent with the

values embodied in the Convention16. It is submitted that this effect was

apparent in the first part of the decade in which the act came into force and was

evidenced in Campbell v MGN17in which Baroness Hale stated that:

The 1998 Act does not create any new cause of action between private persons.

But if there is a cause of action applicable, the court as a public authority must

act compatibly with both parties Convention rights.

The Court ofAppeal had an opportunity to clarify the common laws position in

the case ofA v B plc18. In this decision concerning a kiss and tell story involving

a footballer, guidelines were issued to facilitate the task of protecting privacy

through breach of confidence actions. The extent to which the Conventions

articles could be said to apply horizontally was not discussed adequately, Lord

Woolf simply stating that section 6 had the effect of absorbing the articles into

13Sir William Wade Q.C., the United Kingdoms Bill of Rights, Constitutional Reform in the

United Kingdoms Practice and Principles (Hart Publishing, Oxford, 1998) p. 63.14 See Robertson v Kaye[1991] F.S.R. 62 per Lord Bingham at (70) and per Leggatt L.J. at (71);

Malone v Metropolitan Police Comr [1979] Ch 344 per Robert Megarry V-C at (372-281);

Wainwright v Home Office [2003] UKHL 53 per Lord Hoffman at 30. Theakston v MGN Limited

[2002] EWHC 137per Ouseley J at (27).15M. Hunt The Horizontal Effect of the Human Rights Act (1998) P.L.423 at pp. 439-440.16Thomas D.C. Bennett Horizontalitys New Horizons re examining horizontal effect: privacy,

defamation and the HRA part 1 (2010) Ent. L.R. 2010, 21(4), 145-14917(2004) 2 AC 457 at (132).18 [2002] EWCA Civ 337, [2003] Q.B. 195.
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the traditional breach of confidence action19. Phillipson20 rightly argued that the

complex interpretative issues relating to horizontal effect were left untouched.

He sought to attribute this to the cases reluctance to tackle some elements of the

Convention value system.

It is obvious from the decisions given in the first part of the decade that article 8

and article 10 of the Convention were incorporated into the broad action of

breach of confidence with a substantial pressure being put on judges to consider

the private parties interests in the light of these provisions and their respective

restrictions. However, the concept of absorption put forward by Lord Woolf in

his authoritative guidelines seemed to be nothing more than a formula used to

avoid having to determine the exact extent to which the articles could be relied

upon in disputes between private individuals. Fears that an established direct

horizontal effect might represent an attack on the logic of extending breach of

confidence to cover privacy questions and a general resistance to embracing the

concept of private life as interpreted by Strasbourg may provide explanations for

the lack of judicial decisiveness on the matter.

The merit of the strong but indirect horizontal effect recognized by the English

courts lies in the fact that it granted common law judges room for manoeuvre in

reshaping the domestic cause of action used to protect privacy rights in the light

of the countrys conception of a free press. Indeed, civilian legal systems have

throughout their history showed a greater willingness to give effect to privacy

rights and, as the ECHR chose to set high standards in this area of the law, the

19 Ibid at (4).20 Phillipson, G. 2003. 'Judical Reasoning in Breach of Confidence Cases under the Human Rights

Act: not taking privacy seriously?'. European Human Rights Law Review(Special Issue): 54-72.


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partial denial of full horizontal effect demonstrated by English judges shortly

after the HRAs enactment may have had the beneficial consequence of

integrating strong article 8 and article 10 considerations into the breach of

confidence action, so as to fill the gap left by the absence of a tort of privacy

while enabling the judiciary to maintain their incremental development of the

common law and to prevent reliance on article 8 from having a very sudden and

adverse impact on numerous national newspapers and magazines.

Although conceptually the horizontality issue has proved a somewhat tenuous

issue in the past, recent cases have been giving additional weight to article 8 and

article 10, with the effect that they now represent the starting point of any

balancing exercise conducted by English courts. It is submitted that this marks a

major step forward in the development of privacy considerations in English law

and a substantial change in the way English judges rely on the ECHR in disputes

between private parties. The overall effect of this evolution has been a growing

structural similarity with the manner in which the balance between article 8 and

article 10 is struck in French jurisdictions.

The courts initial stance of favouring a strong indirect horizontal effect of the

Conventions articles has developed into a method giving a full direct effect to the

two provisions.

This is reflected in Buxton L.J.s judgment in McKennitt v Ash21, handed down six

years after the entry into force of the HRA. The Court of Appeal judge

21[2006] EWCA Civ 1714; [2008] Q.B. 73 (CA (Civ Div)).


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acknowledged the fact that the Act primarily imposes negative duties on the

state and public bodies. However, he singled out article 8, which had always

been seen as different22, and confirmed the corresponding positive obligations

that this article engenders. The crucial elements of his reasoning which

represents a significant departure from the judgments adhering to the indirect

horizontal effect discussed above, are the assertions that English judges have to

refer to the Strasbourg jurisprudence when considering an action under breach

of confidence and that article 8 and article 10 are not peripheral to the central

test to be applied but are the very content of the domestic tort that the English

court has to enforce23.

It is important not to underestimate the radical change in judicial reasoning that

this case represents. It is submitted that the shift from a strong indirect

horizontal effect to a direct horizontal effect of article 8 and article 10 originates

in this decision.

As Nicole Morehams argued, what Buxton L.J. effectively did in McKennittwas to

make common law rules secondary to the privacy action, useful only to the

extent that they provide some guidance as to how to apply the two articles24.

It is important to note that while it remains the case that the common law does

not recognize and at no point created, a general tort of privacy, the overall result

of article 8 and article 10 being given horizontal direct effect is that it greatly

reinforces private parties rights to claim for protection against intrusions of

22 Ibid at (9).

23 Ibid at (11).24 Nicole Moreham, "Privacy and Horizontality: Relegating the Common Law [2007] 123 Law

Quarterly Reviewpp 37-42.


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privacy under the breach of confidence cause of action. This is illustrated by the

test applied by the Buxton L.J., which may be said to build on the roots of the

new methodology25 as laid down in Campbell. This judicial technique was

refined in later cases and now provides the most authoritative framework for

analyzing privacy cases under English law. The most recent and comprehensive

version of this test can be found in Eady Js judgment in the Mosley v News Group

Newspapers Ltd26case.

Before proceeding to any sort of balancing exercise, it must be shown that the

claimant had a reasonable expectation of privacy with regards to the information

which he seeks to protect. This basic requirement, originating from Campbell27in

which it was described as the touchstone of private life28 now forms part of the

question as to whether article 8 is engaged or not in respect to the information

claimed to be private29. The Court of Appeal in Murray listed the factors to be

taken into account when assessing the existence of such an expectation30.

Unlike in the American legal system where Freedom of expression takes

precedence over the right of privacy by virtue of the first amendment to the

Constitution, the whole balancing exercise in English31

and French law32

is

25S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593at (23).26 [2008] E.M.L.R. 20.27Ibid. Per Lady Hale at (134); Per Lord Hope at (92): A reasonable person or ordinary

sensibilities would feel if he or she was placed in the same position as the claimant and face with

the same publicity.28 Ibid. Per Lord Nicholls at (21).29Murray v Express Newspaper Plc [2008] EWCA Civ 446 at (30) McKennitt v Ash [2006] EWCA

Civ 1714 at (11).

30[2008] EWCA Civ 446 at (26).31S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at

(17)
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conducted on the basis of the premise that both articles are of equal importance.

If article 8 is engaged and claims under article 10 put forward, the new

methodology then consists in confronting both articles on the basis of an

intense focus on the facts under scrutiny33. More specifically, the intense

focus in Mosley can be seen as an examination of the existence of any of the

limiting principles derived from Lord Goffs judgment in the Spycatcher

case34. These are: the principle of confidentiality preventing the reasonable

expectation of privacy from remaining effective where information has gone into

the public domain; the principle according to which information may only be

protected if it is of some import; and the public interest principle which allows

disclosure in circumstances where the wider benefit of the information being

disclosed outweighs individual privacy rights.

Once the competing interests are weighted against each other and the reasons

given for interfering with or restricting each right35 examined, the last part of

the analysis revolves around the question of proportionality. What Eady J calls

the ultimate balancing test36 drawing upon Sedleys assessment of the strength

of Hello newspapers claim in Douglas (No. 1)37, focuses on whether the

infringement of the claimants right under article 8 is sufficiently justified for the

purpose of serving the public interest, the basis for this exception appearing to

32 J. Ravanas, Libert dexpression et protection des droits de la personnalit, D.2000, Chron.

P.459, n. 9.33 Mosley v News Group Newspapers Ltd [2008] E.M.L.R. 20 at (10).34Attorney General v Observer Ltd [1990] 1 A.C. 109.35S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at

(14).36 Ibid at (14) .37Douglas v Hello No 1 [2001] 2 WLR 992 at (137).
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be the rights of others38 present in the Convention as a legitimate limit to freed

expression.

On the other side of the Channel, the balance between freedom of information

and the protection of private life is struck on a case-by-case basis, in accordance

with principles derived from the general manner in which conflicts of interests

are resolved39. Gny issued some abstract guidelines as to how exactly to

conduct the context-specific test. According to him, the judges are required to

identify the interests at stake and evaluate their respective strengths, the

objective being to ensure the prevalence of the most important interest on the

basis of a social criterion and then to establish between them the most desirable

balance between them40.

On a theoretical level, some elements of the process by which French judges are

required to resolve conflicting interests may be compared with the first three

stages of the English methodology. The first part of both tests consists in

identifying and characterising the respective rights of the parties. Judges are

then required to weigh up both types of interests in order to determine their

importance in a specific context. They are then invited to take into account

peripheral considerations and limitations surrounding the exercise of such

rights, which are laid down in Convention articles 8(2) and 10(2).

38 Art 10(2) of the ECHR.39 Agathe Lepage, Recueil Dalloz 2003, p. 1539.40 F. Gny, Mthode dinterpretation et sources en droit priv positif, 2nd ed, 1932, t.II, p. 167, n.

178.


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After a more detail examination of the French case law, it will be apparent that

key substantive principles still differ considerably between both judicial

approaches, but that the influence of the Strasbourg jurisprudence on both legal

systems may lead to the convergence of the criteria used to justify the prevalence

of freedom of expression over privacy.

A series of decisions taken by the Cour de Cassation at the beginning of the last

decade demonstrate the substantial change that French law has undergone in

balancing article 9 of the Code Civil with the right to receive information, which

comes under the broader right to freedom of expression. Indeed, under both

limbs of article 9 - the right to ones private life andthe right to ones own image

- the judiciary has strengthened the role played by considerations coming under

article 10 of the Convention.

Christophe Bigot saw the effects of five different rulings from the Cour de

Cassation as constituting a novel judicial trend in cases involving article 9, two of

them effectively introducing a new methodology in disputes relating to the

individuals right to private life41.

The growing influence of article 10 of the Convention in the French judicial

reasoning can be seen in three Droit limagecases brought in 2001. The first

two42, citing article 10 of the Convention alongside article 9 and 16 of the Code

Civil, established that the freedom of expression and the need to inform made the

41 Christophe Bigot Recueil Dalloz 2003, P 1854.42 Cass. 20 February 2001 Bulletin 2001 I N 43 p. 27.


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publication of photographs of persons involved in a newsworthy event

legitimate so long as such publication was not contrary to human dignity. The

criterion used in the first case to determine the potential infringement of human

dignity was whether the publication of the photograph was sensationalist and

whether it was indecent43. In the second case, a policeman who appeared in a

political tract without having given his consent to it was not able to rely on his

right under article 9 on the ground that the event remained topical days after it

occurred, and thus freedom to communicate information overrode his subjective

right to his own image.

In a decision given six months later, the Cour de Cassation, in a case concerning

the legality of publishing photographs of someone involved in criminal

proceedings, reiterated the existence of a limit on the freedom to communicate

information by the concept of human dignity44, protected by article 16 of the

Code Civil.

These three cases lay down the governing principles of the balance to be struck

between the right to ones image, the protection of which was previously

absolute under French law, and the values embodied under article 10 of the

Convention.

Moreover, it is clear that the judicial reasoning behind these decisions requires a

proportionality analysis to be made of the interests at stake, as is shown by the

two cases involving claims under the first limb of article 9 of the Code Civil

covering the right to ones private life. In a judgment handed down on 3rd of April

43 Cass. Civ. 1st20 February N 99-15.970 Bulletin 2001 I N 43 p. 27.44 Cass. Civ. 1st12 July 2001 n 98-21.337 Bulletin 2001 I N 222 p. 139; JCP 2002, II, n.10152,

note Ravanas.


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200245, the Cour de Cassation found that there was a right to information in a

dispute relating to a prima facie intrusion into an individuals private life. The

first civil chamber judges found that the break up of a famous couple could

amount to a public fact, meaning that its disclosure by the press would be

justified under freedom of communication. It was also held that some facts

relating to peoples private lives may be so trivial as not to be covered by the

application of article 9. These findings, which reflect two of Lord Goffs limiting

principles, extend the range of circumstances under which the right to privacy

will gives way to article 10 considerations, and more specifically the right for the

public to be informed (although the provisions is not mentioned in this case,

Bigot46 is convinced that it has the same conceptual logic as the three cases

discussed above) to the point that the arrtwas heralded as marking the start

of a new era of privacy law47.

The cases effect on privacy law was clarified by another ruling of the same

chamber of the Cour de Cassation a year later, which shed some light on the

balancing exercise to be conducted. Indeed, on 23 of April 200348, in a case

involving the disclosure of extra-marital relationship affecting the Princess of

Monaco, the court established that the publication of information on a

newsworthy event capable of overriding the claimants right under article 9 of

the Code Civil could nonetheless be prevented on the basis that it would not

satisfy the objective to inform the public. The criterion of whether a story

conveys information in an appropriate manner, which is used by judges to

45 Cass. Civ 1stApril 2002, Legipresse n.195, oct. 2000, III. 171.46 Christophe Bigot, Avocat au Barreau de Paris, Protection de la vie prive : la Cour de cassation

pose de nouvelles rgles, Recueil Dalloz 2002 p. 3164.47 Ibid.48 Cass. Civ. 1st23 Avril 2003. Bull 2003. I. n.98 p.75.


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establish whether article 10 of the Convention should apply, is of central

importance to balancebetween freedom of expression and ones right to have

his or her private and family life respected49.

When comparing the legal principles which the French and the English legal

systems apply when confronting the values embodied in article 8 and article 10

of the Convention, similarities may be observed in the manner in which

competing interests are balanced against each other.

French and English judges now see privacy and freedom of expression as

requiring the same level of protection, their status being equal in both states.

Both tests will ultimately be conducted on the basis of the notion of

proportionality demonstrating that both countries drew on the manner in which

Strasbourg dealt with both articles to reshape their domestic legal rules to the

issue. However, numerous rules contained in both methodologies still differ

substantially.

For instance, French claimants do not have to prove a reasonable expectation of

privacy for their claim to be balanced with a countervailing interest. A

reasonable expectation of privacy does not constitute an initial trigger 50 to a

successful claim under privacy law in France. French claimants rights not to

49 Ibid.50H. Delany and C. Murphy Towards common principles relating to the protection of privacy

rights? An analysis of recent developments in England and France and before the European Courtof Human Rights (2007) E.H.R.L.R. 5, 568-582.


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have their private life mentioned in the media or not to have their photographs

published in a newspaper, regardless of the place were they taken, is exclusive

and personal so that, save in circumstances where consent is established, an

exception to those rights will be made only if proof is provided of the existence of

a legitimate interest on the part of the public to be informed.

Furthermore, the condition whereby the publication of an image taken in a

public space need not be contrary to human dignity if it is to prevail over ones

droit limageis not present in the English balancing exercise. In French law,

the concepts of human dignity and privacy are related and come under the

broader notion of individual personality. The purpose of linking the two

together within the balancing exercise is to impose limits on freedom of

communication on both sides of the spectrum, meaning that, when an image

satisfies the criterion of relating to a current event, thereby going outside the

scope of article 9 of the Code Civil, its publication will not be allowed to go so far

as to provoke the public by being inherently offensive. The fact that French

judges will see fit to find an infringement on the grounds that a photograph is

sensationalist demonstrates the potentially wide ambit of this limitation.

IfPeck v UK51had been heard in France, the publication of a photograph showing

the applicant in a public place holding with a kitchen knife minutes before his

attempt to commit suicide might have been considered to be sensationalist. It

certainly related to an emotional subject matter (suicide) and was capable of

shocking and disturbing some readers. Nevertheless, French courts seems to

have used the limitation in order to prevent the publication of photographs of a

51(2003) 36 E.H.R.R. 41.
http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9


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more extreme nature, as can be seen in the Erignac case52,where an image of the

corpse of an assassinated public figure was found to infringe article 16 of the

Code Civil.

At first glance, it may seem that the reasons for disclosing prima facie private

material in England and France, namely the presence of a public interest and

the fact that material is newsworthy and creates a right for the public to be

told, are similar in nature. However, the French approach to the criteria

requiring the material to be disclosed only to the extent that it is necessary to do

so in the light of the objective of information is clearly more intrusive than its

English counterpart.

Before comparing the circumstances in which both legal systems allow privacy

interests to give way to a wider right for the public to be informed ofprima facie

private information and the impact of these approaches on the media, it is worth

noting that, in France, confronting privacy interests and a broader right for the

public to be informed about a given event is a relatively recent task imposed on

the courts.

Indeed, the traditional view of privacy as an individual prerogative rendered

any infringement unlawful if no consent was given for the disclosure of

information or the publication of a photograph53. Considering that the right to

respect for ones private life was originally seen as a weak penal limitation to

52 Cass. Civ. 1st20 December 2000, D.2001, p. 872, note J-P. Gridel.53Cass. Civ. 5 March 1977, JCP 1977, IV, 925.


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freedom of expression54 when it was first recognised in a law enacted more

than a century ago55, it is surprising that little could be done in the absence of

consent on the part of the claimant before French judges devised a new test at

the beginning of the twenty-first century.

The old approach adopted when the two rights came into conflict certainly had a

detrimental impact on the way the press developed in France. The requirement

of consent on the part of the person whose right to private life was affected

placed a huge burden on editors and newspapers to ensure anyone mentioned in

an article or depicted in a photograph agreed either expressly or implicitly to

publication.

The rights derived from article 9 received a quasi-systematic precedence56

over the rights covered by article 10 of the Convention, which, considering the

role of democracys watchdog57 later attributed to the press by the ECtHR, was

highly inappropriate. Going against this French judicial tendency to give

excessive weight to rights embodied in article 9 of the Code Civil, the ECtHR

handed down a series of judgments 58 encouraging French courts to afford better

protection to the right to receive and impart information in circumstances where

the contested material formed part of the public interest and where journalists

54 J,-P Gridel et A. Lacabarats, Droit la vie prive et libert dexpression: fond du droit et action

en justice, Gaz. Pal., 17-19 nov. 2002, p 4.55 Law of 11 may 1868 (art 11; abrogated by a law enacted in 1881).56 Picard, The Right to Privacy in French Law in Markesinis (ed) Protecting Privacy(Oxford:

OUP, 1999) 49 at 54.

57Von Hannover v Germany(2005) 40 E.H.R.R. 1 at (63).58 See Editions Plon v France (2006) 42 E.H.R.R; Fressoz v France (2001) 31 E.H.R.R; Societe Prisma

Presse v France (2003) App No 71612/01; Radio France v France (2005) 40 E.H.R.R 29.


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acted in good faith and in accordance with the ethics of journalism59.

It may be argued that the Strasbourg case relating to the permanent injunction

imposed by French courts on the publication of a book written by Franois

Mitterrands private doctor had a tremendous impact on the national courts

examination of claims under article 10. According to the French courts, the

books publication breached the duty of medical confidentiality and the former

Presidents right under article 9 of the Code Civil, which his relatives were able to

invoke. The Strasbourg court, in holding that the information contained in the

book raised the public interest issue of the transparency of political life60 while

taking account of the fact that the book was accessible on the internet,

significantly widened the range of circumstances under which article 10 could

trump a public figures right to privacy under French law.

Moreover, the influence of the Strasbourg jurisprudence in French law is

noticeable in the way national courts has gone from solely allowing material

covered by article 9 of the Code Civilto be disclosed when it such material was

newsworthy to adding an alternative criterion that the publication of the

material need to contribute to a debate of general interest.

In 2003, Frances highest court entitled judges to prioritise the publication of a

photograph over the right to respect for ones private life in cases where the

disclosure was justified by the involvement of the photographed person in a

59Fressoz v France (2001) 31 E.H.R.R at (54).60Editions Plon v France (2006) 42 E.H.R.R at (44).


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newsworthy event which should legitimately be made known to the public61.

The decisive factor that courts will take into account in disclosing private

information or publishing a photograph is the newsworthiness62 of the story in

which the claimant is involved in.

Moreover, the form in which the story is revealed will be relevant to the

balancing exercise. Indeed, once the newsworthiness of the published story is

established, another requirement imposed on the press is that they must ensure

that the photograph or the articles content satisfies the objective of informing

the public and does not go any further63. It can be argued that this approach is

intruding upon press freedom and the leeway that should be granted to

journalists in writing their articles.

This argument was reflected in Campbell v MGN, in which Lord Hoffmann saw

the detrimental effects of allowing judges to evaluate the underlying tone of

articles in order to determine whether the right of the public to receive

information exists in a specific context. He stated that it would be inconsistent

with the approach which has been taken by the courts in a number of recent

landmark cases for a newspaper to be held strictly liable for exceeding what a

judge considers to have been necessary64. Lord Nicholls and Lady Hale echoed

this concern about the judiciary interfering with the media by focusing on the

article rather than the interests at stake. The first suggested that a judicial

examination as to the form and content of a particular newspaper article would

61 Cass. 24 April 2003, Bull Civ II, no. 114.

62Evnementdactualit.63 Cass. Civ 1st23 April 2003, Bull 2003, I, no. 98.64 (2004) 2 AC 457at (62).


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not be needed when determining the existence of a public interest65, while the

second flatly rejected the idea that whether or not the article was sympathetic

had any relevance66.

While French judges will determine whether an article infringes the right to

private life by looking at whether the article and the headlines surrounding it are

written in such a way as to convey information relating to the newsworthy

event in an appropriate manner, English judges will assess the existence of a

public interest and, once it is established, give leeway to journalists to report it

in the manner they see fit67.

These issues are part of an extremely sensitive debate about the extent to which

the judiciary can interact with the press. Judges ability to control the content of

an article under the pretence that it does not convey information correctly or

does not appropriately portray the person whose right to private life has been

infringed seems to extend the judiciarys influence on the press to an excessive

extent. The unfairness of ordering newspapers to pay damages to celebrities and

other public figures merely on the ground that the article did not cast a

favourable light on the person affected by the privacy infringement, or that it

was notsufficiently sensitive to someones personal problems68, is obvious. What

seems to be targeted by French judges when assessing whether the article

distorts the objectif dinformation is speculation by journalists about the

persons feelings and behaviour before, during or after the newsworthy event. It

65 Ibid. at (59).66 Ibid. at (156).67Ibid. Per Lord Hoffman affirming the Court of Appeals reasoning at (65).

68 The duty to inform the public was distorted by an article stating that the Princess of Monacowas humiliatedafter the revelation that her husband was having an affair: Cass. Civ 1 st23 April

2003, Bull 2003, I, no. 98.


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may be argued that, even in cases where prima facie private facts are revealed, it

is the journalists duty to portray the story as observed through his or her own

eyes, giving his or her interpretation of the various elements of the story. In

cases where the elements of the stories are proven to be false, the tort of

defamation69 will provide a sufficient safeguard against untrue statements

affecting the honour or reputation of the person concerned. On the other hand, if

the judicial examination of the information contained in the article were to be

conducted on the basis of a more objective and specific criterion, it could be

beneficial for the judges to be able to prevent the publication of newspaper

articles which, while imparting newsworthy information, clearly deviate from

the real story to boost their sales, resulting in the readers being confused about

the true facts of a story which is of public importance.

French judges fears that the balancing of privacy rights and the right to

information may result in the press becoming increasingly sensationalist have

engendered a restrictive judicial evaluation of the substance of press articles.

That evaluation in question has been heavily criticized for being inherently

subjective, leaving national judges with broad discretionary powers in

determining whether the information provided is necessary in order to satisfy

the broad objective of informing the public. This, according to Christophe Bigot70,

will greatly affect legal certainty, as judges are entitled to base their decision on

moral criteria. Moreover, he points out, as Lord Hoffman did in Campbell, that

such an approach would result in the judiciary trespassing into the area occupied

69 Article 29 of the law on freedom of the press 29 July 1881.70 Christophe Bigot, Avocat au Barreau de Paris, Recueil Dalloz 2003, P 1854.


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by newspaper editors, while providing it with tools which are not judicial in

nature.

Although the merits of judicial scrutiny by French judges of newspaper articles

on newsworthy stories remain controversial, one criterion on the basis of which

the disclosure of private information can now be prioritized as against the rights

derived from article 9 was clarified by the Cour de Cassation in the same year

that Buxton L.J. judgment in McKennitt v Ash drastically increased the impact of

the Convention and the ECtHRs jurisprudence in English law.

Drawing on the balancing exercise conducted by the Strasbourg court in the case

of Von Hannover71, and in response to that courts concern that French courts

were not giving sufficient weight to article 10 of the Convention, the Cour de

Cassation72 chose to incorporate the concept of contribution to a debate of

general interest into the judicial equation. The dispute involved the legality of

an article disclosing the fact that several local councillors and a mayor were

freemasons and had been charged with various offences. The Cour de Cassation,

after having mentioned article 9 of the Code Civil and article 10 of the

Convention, recognized that publication of the article was legitimate in a

71Von Hannover v Germany(2005) 40 E.H.R.R. 1 at (76): [I]t considers that the decisive factor inbalancing 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.

72 Civ. 1re, 24 oct. 2006, n 04-16.706, Express-Expansion et a. c/ J. Copin et a., Bull. civ. I, n 437 ;D. 2006. IR. 2754 ; Lgipresse 2007. III. 89, note A. Lepage ; RLDI 2007/23, n 727, obs. N. Verly ;

Gaz. Pal., 5-6 oct. 2007, p. 51, note P. Guerder.


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democratic society, as it related to a current judicial event and was justified

because it informed the public as part of a debate of general interest73.

A couple of month later, this terminology was taken over by the first instance

court called upon to consider the strength of Nicolas Sarkozys claim for breach

of privacy which concerned revelations of his marital difficulties by a Swiss

newspaper. The evaluation was formulated in similar terms, the judge being

required to accommodate the rights of others and freedom of expression by

determining whether the information contributed to a debate of general interest

or whether it related exclusively to the details of the complainants private life74.

The recent reliance on this concept in French cases will undoubtedly clarify the

overall balancing exercise, as it has been authoritatively argued by Picard that on

several occasions the French interpretation of the public interest had given rise

to seemingly contradictory ratios75

. Accordingly, the incorporation of the

Strasbourg exception to article 8 of the Convention will provide French judges

with a comprehensive method for conducting the balancing exercise.

Moreover, the result of such incorporation will surely be to broaden the

circumstances under which the right to freedom of expression will prevail over

claimants rights under article 9 of the Code Civil. Indeed, the Cour de Cassation

chose not to read the criteria of newsworthiness and contribution to a debate

of general interest together by requiring both of them to apply for article 10

purposes in order for freedom of expression to trump the right to privacy, but

73 Ibid.

74Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006 at (2).75E Picard, The right to privacy in French law in B S Markesinis (ed) Protecting Privacy(Oxford

University Press, 1999) at (95).


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decided to make the two notions alternatives76. This represents a notable

difference from the approach advocated by the Strasbourg jurisprudence, which

requires the concept of public interest and contribution to a debate of general

interest to be established cumulatively77, setting a higher threshold than the

French domestic balancing exercise.

Nevertheless, it would appear that the finding of a contribution to a debate of

general interest will not necessarily result in a correspondingly lower standard

of protection for claimants under article 9. This is can be demonstrated by the

fact that, although Mr Sarkozy failed to prevent the disclosure of his separation

from his wife, the judges nevertheless found against the newspapers for

publishing the details of the separation. Furthermore, in recent cases, the Cour de

Cassation has been slow to establish the existence of a debate of general interest

in relation to certain facts which, prima facie, could have triggered the

prevalence of article 10 of the Convention. In 2007, the Cour de Cassation refused

to recognize that there was a legitimate interest in the public being informed that

the Prince of Monaco had a biological son when the prince was about to accede

to the throne78. This was surprising, given that the Cour de Cassation had allowed

the existence of the princes legitimate child to be revealed in 2004 79 and had

accepted the publication of an article informing the public about his marriage to

a famous TV presenter in the same year80. The argument according to which the

sons legitimate status was the decisive factor in the evaluation is not convincing,

76 Civ. 1re, 27 fvr. 2007, n 06-10.393, D. 2007. AJ. 804, obs. D. Delaporte-Carr ; RTD civ. 2007.

309, obs. J. Hauser.77Leempoel v Belgium (64772/01) Nov 9, 2006, at (68) and Tammer c. Estonie, no 41205/98, CEDH

2001-I, at (64).78 Civ. 1re, 27 fvr. 2007, n 06-10.393.

79 Civ. 2e, 19 fvr. 2004, D. 2004. Jur. 2596, note C. Bigot ; RTD civ. 2005. 99, obs. J. Hauser.80 Civ. 2e, 8 juill. 2004, D. 2004. IR. 2694, et 2005. Pan. 2643, et nos obs. ; RTD civ. 2005. 99, obs. J.

Hauser.


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in particular because French family law does not differentiate between

legitimate and illegitimate children81.

The manner in which English judges construe the notion of public interest has

changed dramatically in the past ten years. Lord Woolfs extremely broad views,

as expounded in A v B plc82, which equated an understandable interest for

readers to be told about private information relating to public figures with a

legitimate interest in the public being informed has been considerably restricted

in recent years. Lord Hoffman in Campbell83and Buxton L.J. in McKennitt v Ash84

have made clear that there exists a distinction between what is likely to interest

the public and the public interest. Angus McLean and Claire Mackey85 recently

submitted that the most authoritative judicial opinion on this distinction remains

Baroness Hales speech in Jameel v Wall Street Journal86

. However, the part of

her judgment that is of greatest relevance to the present discussion is her

rejection, owing to its subjective nature, of the concept of newsworthiness in

the test used to determine whether the public has a right to be given a particular

piece of information87. It is obvious that not all newspaper editors have the same

idea of what constitutes a current event and that tabloid readers will not

necessarily consider political news to be interesting. The criteria used by the

French courts may have the overall effect of introducing a degree of uncertainty

81 Ordinance of 4 July 2005 abolishing the distinction between legitimate and natural children.82[2002] EWCA Civ 337, [2003] Q.B. 195.83(2004) 2 AC 457 at (57).84[2006] EWCA Civ 1714 at (66).85 A. Mclean and C.Mackey, Mosley v News Group Newspapers Ltd: How sadomasochism changed

the face of privacy law : a consideration of the Max Mosley case and other recent developments in

privacy law in England and Wales E.I.P.R. 2010, 32(2), 77-89.86 [2007] 1 A.C. 359 at (147).87 Ibid.


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into the choices that editors are called upon to make. Nonetheless, the ability for

French judges to evaluate the content of an article in order to assess whether it

conveys the information correctly, regardless of the conceptual merits of the

rule, will have the practical effect of limiting the impact of an article or a

photograph on a public figures private life. Indeed, had the details of Nicolas

Sarkozy and the Princess of Monacos separations from their partners not been

found to distort the objectif dinformation, reliance on the notion of

newsworthiness would have seemed inappropriate, owing to its being

excessively broad in its application and liable to result in disproportionate

disclosure of private information.

The question as to whether English privacy law will fully incorporate the concept

of a contribution to a debate of general interest into its balancing exercise

remains to be settled. However, given the recent development in English privacy

law, which take increasing account of Convention rights and the Strasbourg

jurisprudence, it may well be that future cases will explicitly rely on the criteria

laid down by the ECtHR in all circumstances.

In McKennit v Ash, Buxton L.J. brushed away the authoritative character of the

findings made in A v B plc after noting that the case was inconsistent with Von

Hannover. He did so on the ground that the principles established by the Court of

Appeal in 2004 with reference to article 10 of the Convention were not

conclusive and accordingly could not be part of the new balancing test which

required article 8 and article 10 and the Strasbourg jurisprudence under those


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articles to be applied88. The judge gave primacy to the Strasbourg case, but still

analyzed the facts with reference to the guidelines issued in A v B plc in order to

demonstrate that no public interest would have been found had the case

remained authoritative under the new version of the balancing exercise89.

Giving additional weight to the precedential rule of Key v Lambeth LBC90

according to which first instance courts should apply the decision of a higher

domestic court even if it appears inconsistent with a later case from Strasbourg,

two years later,in Murray v Express Newspaper Co91, Sir Anthony Clarke M.R. did

not deem it appropriate to apply Von Hannoverand instead analyzed the public

interest from the standpoint of proportionality92, in line with Campbell93.

Nonetheless, the Court of Appeal judge underlined that his reasoning was

consistent with the Strasbourg decision and recognized the ability of English

judges to have regard to it94.

More recently, in Mosley, the judge doubted the extent to which the very high

test set by requiring a contribution to a debate of general interest will be taken

in the courts of this jurisdiction in relation to photography in public places95,

noting the impact that such an incorporation would have on the English

sensationalist press. Eady J nevertheless proceeded to apply the Strasbourg

88[2006] EWCA Civ 1714 at (63).89 Ibid at (65).90Kay v Lambeth LBC [2006] UKHL 10 Per Lord Bingham at (43-46).91[2008] EWCA Civ 446 at (20).92H. Delany and C. Murphy Towards common principles relating to the protection of privacy

rights? An analysis of recent developments in England and France and before the European Court

of Human Rights (2007) E.H.R.L.R. 5, 568-582.

93(2004) 2 AC 457 at (20).94 [2008] EWCA Civ 446 (59).95[2008] E.M.L.R. 20 at (131).


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standard to the facts of the case, thereby rejecting the argument that the

publication of images and the written description of the event, which occurred in

a private place, was justified by the public interest and contributed to a debate of

general interest.

Since McKennitt, English courts have been showed a greater willingness to

recognize the effects of Von Hannover and its requirement that, in order to be

disclosed to the public, private information must contribute to a debate of

general interest. Although the Strasbourg decision does not set the same

standard as Campbell and A v B plc in relation to the public interest exception,

the courts have been careful to conduct the balancing exercise consistently with

the ECtHR jurisprudence.

English judges have been reluctant to require photographs taken in public places

against individuals right under article 8 to satisfy the high threshold set by Von

Hannover, which itself concerned intrusive photographs taken in places to which

the public had access. Although Eady Js explicit application of the concept as

formulated by Strasbourg appears to have the effect of bringing the English

balancing exercise closer to the French one, the circumstances in which the press

is able to publish visual images that are, prima facie, covered by article 8 of the

Convention will continue to be substantially different in both countries. Indeed,

French law, which regards newsworthiness and a contribution to a debate of

general interest as alternative criteria, will prevent the publication of

photographs infringing individuals right to their own image even more

drastically than it did before the incorporation of the concept derived from the


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Strasbourg jurisprudence which requires them to be of relevance to a topical

debate and not to provoke readers by portraying public figures in an indecent

and sensationalist manner. On the other hand, the press in England will still be

able to fall back on the lower threshold provided by the common law in disputes

relating to photographs taken in public places, although the interpretation of the

public interest, as set in A v B plc, has been made considerably more restrictive

by Campbelland Murray.

The overall effect of this development is arguably to significantly increase the

level of protection afforded to celebrities and other public figures under article 8

in cases where the event giving rise to the photograph, the video or the

newspaper article occurred in a private place. It would also appear that the need

for the disclosure of private information to contribute to a debate of general

interest will be more easily satisfied in relation to politicians rather than public

figures from the entertainment business. So, while English claimants will

continue to enjoy less protection than French litigants, who can rely on the right

to their own image by virtue of article 9 when photographed in a public place,

the recent application of the exception to article 8 as interpreted by the ECtHR in

Mosley shows a certain degree of convergence between the French and the

English balancing exercises in relation to material obtained from the private

sphere. In light of the growing influence of the Strasbourg jurisprudence on

common law courts, it may be possible for the concept of contribution to a

debate of general interest to be extended to public places, although such a

development would clearly be contested by the section of the press that relies on

the publication of photographs of celebrities to make a profit.


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We have observed that, owing chiefly to the dualist system of international law

that exists in the common law and the initial desire of English judges to continue

to determine infringement-of-privacy cases on the basis of breach of confidence,

the application of the Convention rights under article 8 and article 10 to disputes

between private individuals has been more controversial in England than in

France.

In recent years, however, the recognition of the horizontal effect of the

Conventions provisions in cases like McKennitt v Ash and Mosley v News Group

Newspapers Ltd has resulted in the English balancing exercise being centred

around concepts like proportionality to the same extent as the French method

for resolving conflicts between privacy interests and article 10. It has become

clear that, although the stages in the procedure followed by French and English

judges when applying this context-specific test do demonstrate a structural

similarity between both balancing exercises, substantive legal rules and concepts

still vary from one side of the Channel to the other. The requirement that the

publication of a photograph must not be contrary to human dignity is a limitation

which is absent from the English methodology. Moreover, the condition that the

claimant must show a reasonable expectation of privacy in relation to the

material which he seeks to protect from disclosure does not exist in French

privacy law, as article 9 confers a universal and enforceable right to privacy.

The criteria used by the two legal systems in determining when the disclosure of


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prima facie private information is justified by a broader right for the public to be

told are further illustrations of the differences between French and English

privacy law. French judges have chosen to allow disclosure when such

information is newsworthy, in the sense it relates to a current event, while

adding the proviso that the content of the article or the photographs must not

distort the objective of informing the public. This gives the judiciary an intrusive

power to scrutinize the substance of newspaper articles. On the other hand, the

common law has demonstrated a more flexible and expansive perception of the

public interest, as evidenced inJameeland Campbell. The answer to the question

as to whether the influence of the Strasbourg jurisprudence has had the effect of

unifying both interpretations of what will justify article 10 trumping privacy

interests is yes. Indeed, French courts have incorporated the concept of a

contribution to a debate of general interest into the relevant balancing exercise

and made it an alternative condition to newsworthiness. This has been

beneficial to French privacy law, as the reliance on the Strasbourg concept and

the case law derived from it provides more guidance on when it is appropriate to

disclose information protected by privacy interests. On the other side of the

Channel, English judges have been increasingly willing to refer to the Strasbourg

jurisprudence and to make their judgments consistent with it. Given this judicial

trend and the fact that the concept of a contribution to a debate of general

interest was expressly applied by Eady J in the Mosley case, it may be argued

that the English and the French methodologies are converging on a central issue

of the balancing exercise. The reluctance of English judges to extend the

concepts scope to cases where the disputed photograph was taken in a public

place does, however, still demonstrate that privacy law and, by extension, the


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media are still likely to be substantially different on either side of the Channel.

Word Count: 9957


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M. Korytko - Dissertation (LLB)

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