“It is no longer a rumour, just the truth. For the past six months, François Hollande has been meeting the actress, Julie Gayet, in her second home, nestled in a street adjacent to the Elysée.” So began the seven-page exclusive published by the notorious French tabloid Closer last Friday (10 January 2014).
The article, the online version of which has since been removed by Closer, details the alleged visits of the French President to the apartment of Ms Gayet over the course of the evening of 30 December 2013.
A sequence of accompanying photographs, dated and timed, show the arrival of Ms Gayet and two other men, one said to be the President and the other his bodyguard, within the space of an hour. The accompanying text outlines the logistics of the alleged affair and reveals the history between the actress and the President, including previous rumours, denials and consequent tensions between President Hollande and his official partner Valérie Trierweiler.
In a statement given to the news agency AFP in his personal rather then Presidential capacity, President Hollande deeply deplored the attacks on his privacy, to which he claimed he is entitled like any other citizen. He further stated he would consider seeking legal action in relation to the exclusive. The alleged affair, however, was not denied.
President Hollande will give a press conference later today in which he will no doubt face hordes of journalists with one burning question: Is it true? Less pressing to public curiosity, but of interest to more limited spheres, is the question of what will happen if President Hollande does choose to take legal action against Closer. French law provides the President with two avenues to pursue: one civil and one criminal.
Civil action
The starting point for any civil action of this type is Article 9 of the French Civil Code, which provides that “Everyone has the right to respect for his private life”. It enables judges to order remedies, such as injunctions, to prevent or put an end to breaches of this right. Although not defined by statute, the notion of private life has been defined by the courts as clearly encompassing one’s “emotional life” and “image” (Cour d’Appel de Paris, 5 décembre. 1997, D. 1998, IR 32).
It is worth mentioning at this stage that it is from this definition that the common misconception arises that French Civil Code provides both a “droit à la vie privée” and a “droit à l’image” (i.e. a right to privacy and image rights). Although French law does protect image rights in a way presently unknown in England (see previous post), French legislation does not include such a right per se. Rather, it is the judicial interpretation of “private life” in Article 9 as encompassing one’s image that gives rise to the French notion of “droit à l’image”. This “droit” extends to photographs taken in public, for stepping into the public sphere does not constitute a tacit waiver of such a protection.
President Hollande is correct when he states that he, like any other citizen, is entitled to respect for his private life. French jurisprudence affirms that “every person, whatever his or her social rank, birth, fortune, present of future functions, is entitled to the right to respect for his private life” (Cours de cassation civile 1re 23 octobre 1990). However, should the publication come before a judge, the latter will bear in mind the President’s role as a public figure. The court will give weight to the extent to which the President has previously sought the attention of the press and disclosed facts relating to his private life.
Nicolas Sarkozy’s case against the Swiss publication Le Matin in 2006 may help to shed some light on the present situation. In May 2005, Le Matin published details of the breakdown of the marriage between Mr Sarkozy, at the time Minister of the Interior, and his then wife Cécilia Sarkozy. The French courts were unequivocal: the fact that Mr Sarkozy exercised official functions did not authorize the press to reveal information relating to his private life. Although the separation constituted a “current event in light of the couple’s public nature”, the more intimate details relating to Mr Sarkozy’s alleged affair and care of their son during the separation did not. These specifics were neither common knowledge nor pertinent to a debate of general interest. Moreover, although the accompanying photographs of Mr Sarkozy said nothing new and were included by Le Matin only to “reassure the public of the veracity of their allegations”, the photographs in themselves were found to breach Mr Sarkozy’s right to privacy as well.
One might imagine President Hollande’s civil challenge running along similar lines.
Arguably, however, the security ramifications of such alleged clandestine visits by the French President – as highlighted by Closer, albeit only in one paragraph – may be an important distinguishing factor. That said, should the President mount a successful case, it is likely that Closer would have to pay damages in addition to inserting an extract of the judicial decision in – or even more damningly on the cover of – a subsequent publication.
Criminal action
Alternatively, the President could turn to the French Criminal Code. Under Article 226-1, it is only possible to be criminally liable for breach of privacy if, without consent, you have either (1) “intercepted, recorded or transmitted words uttered in confidential or private circumstances” or (2) “taken, recorded or transmitted the picture of a person who is within a private place”. In Closer’s case therefore, there appears to be no criminal offence in the publication of the text. It is only in the publication of the photographs that a criminal offence might lie. Under Article 226-7, as a company, Closer could incur a fine of up to €225,000 (although fines usually appear to be of the order of €30,000, see previous post). Three hurdles must be passed under Article 226-1 to make out the offence of “atteinte à la vie privée”. It must be shown: first, that Closer “willfully violated the intimacy of the private life” of the President by “taking, recording or transmitting” the pictures; second, that these pictures were taken whilst the President was in a “private place”; and third, that he did not consent to the taking and transmitting of these photographs.
Privacy, therefore, is not protected by Article 226-1 where the alleged violation has been committed in a public place. French jurisprudence has defined a “private place” as one which is not open to anyone without the permission of the person who occupies it in a permanent or temporary manner. Conversely, a place that is accessible to everyone, without specific permission from any one given person, will be classified as public, regardless of whether access to it is subject to certain conditions (Cours d’Appel de Besançon, 5 janvier 1978). Applied to the Closer exclusive, this suggests that the photographs claiming to show the French President exiting a building or on the back of a motorcycle in the street, would likely be considered as depicting the President in a public place. The likelihood, therefore, of mounting a successful complaint under Article 226-1 – the first step in a French criminal action for privacy – is uncertain.
Conclusion
As this article has sought to demonstrate, there are two main options open to President Hollande if he does indeed choose to navigate the complex waters of French privacy laws. It is submitted that a civil challenge, upon which the private or public location of the President has no bearing, would have greater prospects of success. In the meantime, the President might reflect that the old adage ‘keep your friends close and your enemies closer’ may be in need of some revision. For when your enemy is Closer there is always a danger in having too many ‘close’ friends.
Alexia Bedat is a barrister, and has worked with French media lawyer Christophe Bigot
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