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False Facebook Profile – French court awards damages

A French Court has awarded €1,500 privacy damages against a person who created a false Facebook profile of a French actor and comedian.  On 24 November 2010,  the Tribunal de Grande Instance de Paris gave judgment in the case of Omar S v Alexandre P. The applicant was Omar Sy a well known television actor and comedian.   A “false profile” of him had been created on Facebook site, illustrated with a photograph of him and containing contains the comments he was supposed to have have posted and the replies to “friends” who had accessed the site.

Facebook were ordered to provide the IP address of the creator of the page and his email address.  The IP address was that of the defendant’s computer.

Omar S. argued that the placing on line of a false profile “constituted a fictional  avatar which was parasitic on his privacy” and argued that there was an interference with this private life and his “image rights”.   He argued that his right to respect for privacy meant that he was entitled to set the limits of what could be disclosed about his private life and an exclusive right to object to the reproduction of his image without his consent.

However well known a person was, he had a right to respect for private life under both Article 9 of the French Civil Code and Article 8 of the European Convention on Human Rights.    Although the applicant’s full name and date of birth were “elements of identity” which did not form part of his private life, there was no justification for information about his interests and his friends to be made public.  The defendant could not, without the consent of the applicant, publish photographs of it to illustrate a site violating his privacy.

As a result, by creating a false profile of Omar S, Alexandre P had not only violated his privacy but also his image rights.   The defendant was order to pay €500 for interference with private life and €1,000 for the violation of image rights.

There are a number of interesting features of this case.  First, although it is not discussed directly in the judgment, it appears that this was a “false privacy” case in that the information about the applicant’s likes and dislikes, friends and so on appears to have been invented by the defendant.  Second, the Court accepted the claim for violation of image rights – based on Article 8 (see our recent post here).  Third and more generally, the approach of the French courts in this area has often been adopted in Strasbourg and it seems to us that it is likely that the Court of Human Rights would take a similar approach to these issues.

The position in English law is less clear.  However, there is good argument that a claim for misuse of private information in relation to the creation of a false facebook profile would have a good prospect of success in England.  The “image right” claim would, however, be novel and involve breaking new legal ground.

2 Comments

  1. Kevin Hegarty

    Not sure about the point relating to misuse of private information. If the facebook profile is created using infor which is already public ie. name, date of birth etc. and then any other info is simply added by the creator of the facebook profile, then how are you misusing any information that is private? You are using public information and combining it with what is essentially fictitious information.

    Even though it doesn’t sit squarely with UK law, i think the image-based approach of french courts makes more sense than misuse of private info.

  2. adele pace

    It would be good to see an image rights case in England rather than being confined to privacy and/or breach of confidence.

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