The arrest of the leading French politician and Dominique Strauss-Kahn on a rape charge in the US provided the English press with a heaven sent opportunity to attack the law of privacy. A representative example was Stephen Glover’s piece in the “Daily Mail”‘ “A sexual satyr, a conspiracy of silence and why we must NEVER have privacy laws like the French“.
Mr Strauss-Kahn’s attitude to women was well known. A French journalist told Channel 4 News he was known as a “lapin chaud” – literally, hot rabbit – “an expression which means that when he sees a woman he likes to chase her“. It was suggested that this had gone unreported by the French press because of domestic privacy laws. As Stephen Glover put it
“His sexual proclivities have barely been mentioned in the French Press. Their stringent privacy laws have precluded the kind of forensic examination to which he would have been subjected had he been a leading English or American politician“.
The reality is, however, rather different: the problem is not privacy law but media restraint in the face of power. Mr Strauss-Kahn’s attitude and behaviour towards women does, indeed, appear to have been well known in French political and media circles. This was not, in general, discussed in the French media not because of “privacy laws” but because of French media culture – decisions by journalists and editors not to delve into the private lives of politicians.
Information about Mr Strauss-Kahn’s activities was published but it was not widely discussed. In 2006, for example, two French journalists, Christophe Deloire and Christophe Dubois, published an investigative book called Sexus Politicus about “the aphrodisiac character of power, and the various low blows of political life”. As Mr Deloire pointed out in an article in Le Monde, this book
“included a chapter called “the DSK affair,” dealing with Dominique Strauss-Kahn’s unconventional behavior. Not yet head of the International Monetary Fund back then, Strauss-Kahn is depicted taking unnecessary risks for a statesman in his position, and being surprisingly vulnerable. The scenes described in the book did not fall solely within the realm of seduction“.
Mr Deloire points out that the authors and publishers faced intense pressure at the time because of what was said in this chapter. But he does not suggest that privacy law was the problem. He goes on to say
“When the book was published, the media made many comments about the whole book, but they showed some discretion when dealing with the information on Dominique Strauss-Kahn. Obviously, if the need arose, the information should have been checked and more inquiries made. Again, many preferred to comment instead of digging for scoops“
An English translation of the article can be found here.
It is true that French privacy law has, in recent years, provided strong protection for public figures. The French law also protects “image rights” in a way which is presently unknown in England. For example, President Sarkozy and his wife, Carla Bruni, recovered damages from Ryanair for the unauthorised use of a photograph of them in an advertising campaign. We have discussed the outlines of the law in an earlier post. “Public interest” considerations in general do not justify the disclosure of “private misbehaviour”.
Neverthless, French privacy law is a useful source of analysis for English lawyers. A useful short introduction to French Privacy Law can be found here on the “Kings Bench” blog from the Kings College School of Law. French speaking readers can follow developments in French privacy law on the website “Legalis.net” – which deals with the French case law under 9 headings – including “Vie privée”. Some older translated Court of Cassation privacy decisions can be found on The University of Texas, Institute for Transnational Law website here.
The French courts deal with many of the same kind of issues which have recently arisen in England – anonymous emailers, abusive bloggers and intrusive photographers. Their solutions are often similar. In the field of e-commerce and data protection they are applying the same EU Directives as the English courts. More generally, they are also seeking to apply the Article 8 and 10 case law of the European Court of Human Rights.
The Strauss-Kahn affair illustrates the dangers which arise when a compliant media decides not to pursue public interest stories. Over the years there have been many well known examples of the English media deciding not to pursue the private affairs of politicians – to keep to matters historic we could mention Lloyd-George’s second family or the many indiscretions of Tom Driberg. A more contemporary example of the same phenomenon is the long silence of almost all of the press over the “News of the World” phone hacking affair. The protection of the establishment from criticism is not just a French phenomenon – and it has nothing to do with privacy law.