Honni Soit… French Republic Protects the Privacy of Commoners and of Kings

On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit. France may have a liberal attitude towards female nudity and half-naked women are routinely seen sunbathing on its beaches, but it also has strong privacy laws, including the court-created droit à l’image -- the right to the privacy in one’s image.

French Law Protects the Privacy of Public Figures, including Princesses 

Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life.” This is not merely an aspirational statement, but an enforceable right, as Article 9 gives courts the power to prescribe any measures appropriate to prevent or to end an invasion of personal privacy.  In case of emergency, those measures may even be provided for by interim order. Even though Article 9 does not specifically mention a right over one’s image, the French courts have interpreted it as giving individuals a droit à l’image. What is protected is not the image itself, but a person’s right not be photographed without her consent. Article 9 provides protection regardless of whether the person is famous, or even royalty.

Indeed, in a 1988 case somewhat similar to the present case, pictures of the former Empress of Iran wearing a bathing suit were published in a French magazine. France’s highest civil and criminal Court, the Cour de Cassation, held that “a monarch has, like anyone else, a right to privacy and can oppose any dissemination of his image since it does not represent the performance of his public life.” Ruling of the French Court in the Mountbatten-Windsor Case

In the case of the pictures taken in September, the Tribunal de Grande Instance of Nanterre, ruling in emergency, found that the privacy of the royal couple had been violated:

“It follows from Article 8 of the European Convention on Human Rights and Article 9 of the civil Code, which guarantee to every person, whatever his reputation, fortune, functions present or future, the respect for his private life and his image, and from Article 10 of the same Convention, which protects the right for the press to inform in accordance with the rights of third parties, that the right of the  public to be informed is limited, on the one hand, to the elements relating to the official life of public figures, and on the other hand, to information and images voluntarily supplied by the interested parties or which publication is justified because of a news event or a debate of general interest. … The Article in question clearly shows photographs taken obviously without the knowledge of Mr. and Mrs. Mountbatten-Windsor during a private holiday in the South of France, showing them on the terrace of a private property in moments of relaxation and in outfits reserved for the beach or for tanning, and therefore in their intimacy. As these moments are without any connection with their official or public activities, or with those of the British royal family, these moments cannot be considered of general interest justifying information to the public.

The invasion of privacy of Mr. and Mrs. Mountbatten-Windsor is therefore considered to have taken place.

Published without their authorization, these photographs also violate the rights that Mr. and Mrs. Mountbatten-Windsor have in their image, as Mondadori France does not claim to have obtained their permission before publishing them.”

The Court prohibited the publisher to sell or distribute, by any means and in any medium whatsoever, the pictures at stake, and also ordered the publisher to deliver to the plaintiffs, within 24 hours of being served the decision, and under penalty of €10,000 per day of delay, all the digital media in their possession containing these photographs.

The European Convention of Human Rights and the Privacy of Princesses

The case struck a particular chord with the public, as the Duke of Cambridge is the son of Princess Diana, who died in 1997 as she was being chased by photographers. Following this tragic event, the Parliamentary Assembly of the Council of Europe adopted Resolution 1165 (1998) on the right to privacy.

The Assembly did not believe that it was necessary to reinforce the p