The tribunal de Nanterre ordered yesterday that Closer pay the French actress Julie Gayet €15,000 in damages for breach of privacy. The full judgment is available here in French.
Ms Gayet’s claim arose from the seven-page exclusive published by Closer earlier this year, detailing the alleged visits of President Hollande to her apartment over the course of the evening of 30 December 2013 (see earlier posts here and here).
Whilst President Hollande chose not to sue the tabloid, Ms Gayet argued that Closer had deliberately violated her right to privacy and image rights protected under Article 9 of the French Civil Code. Me Jean Ennochi, Ms Gayet’s lawyer, explained that his client had been “hunted” by journalists as a consequence of the exclusive and had been forced to limit her outings in public. Ms Gayet further argued that she had never previously sought to confirm nor make the alleged relationship public. She added that Mondadori Magazines, the publisher of Closer, had made considerable profits from the illegal exploitation of her private life. Ms Gayet claimed €50,000 in damages for moral prejudice (“préjudice moral”).
By way of defence, Mondadori argued that the publication of the exclusive was justified. It submitted namely that the disclosure was in the public interest as it raised questions about presidential security and the transparency of President Hollande’s decisions.
The Tribunal began by reiterating the well-known principle in French law that Article 9 of the Civil Code – like Article 8 of the European Convention on Human Rights – affords protection to one’s private life and image, regardless of his or her social rank, birth, fortune, present or future functions. The right to freedom of expression under Article 10 of the ECHR had to be read in conjunction with this principle. Consequently, the public’s right to information was limited to details pertaining to a public figure’s official life (“vie officielle”) or to information and images either (1) voluntarily revealed by the public figure or (2) which relate to a topical event or debate of general interest. It followed that every person could challenge the disclosure of information falling outside such categories and define the boundaries of what could legitimately be published concerning his or her private life, as well as the circumstances in which such publications were made.
The exclusive in question, the Tribunal unequivocally held, engaged Ms Gayet’s right to privacy. It had been featured as a cover story; extended over seven pages; revealed Ms Gayet’s alleged affair with President Hollande; dwelt upon Ms Gayet’s presumed feelings for him; narrated the real or fictitious details of their evenings together; and was accompanied by photographs of Ms Gayet entering her apartment.
The Tribunal accepted that the public had a legitimate interest in being informed of the romantic involvement of any serving President of France. Such a disclosure, however, would have to be made in an article written for the purpose of discussing the relationship in the context of ongoing French politics. In contrast, the Closer exclusive had insisted instead on revealing seven pages of intimate details of the alleged relationship, dedicating only one small box to questions relating to President Hollande’s security.
In any event, the Tribunal noted, the issue of Presidential security could not of itself justify the disclosure of Ms Gayet’s identity nor the publication of photographs showing her entering her apartment. The public’s right to information had no bearing on this conclusion.
The Tribunal concluded that the article’s sole aim had been the satisfaction of public curiosity, rather than the relaying of information pertaining to a debate of general interest. Consequently, both the text and accompanying photographs breached the actress’s right to respect for her private life.
The Tribunal further held that the photographs taken without Ms Gayet’s knowledge and published without her consent constituted, amongst other things, a breach of her image rights (“droit à l’image”) under Article 9 of the French Civil Code. In light of Closer’s deliberate violation of Article 9, the Tribunal deemed it both necessary and proportionate to prohibit any further publication of such photographs.
Damages and other remedies
The Tribunal awarded Ms Gayet €15,000 by way of damages for the harm caused by the exclusive, significantly less than half of the sum claimed by Ms Gayet. In reaching this figure, the Tribunal took into account the following factors: (i) the magazine’s circulation (470,000 copies); (ii) the intrusive nature of the article; (iii) the use of long-lens photography; (iv) the information volunteered by Ms Gayet about her personal and family life in previous interviews prior to 2008; (v) Ms Gayet’s efforts to keep her personal life out of the press since 2008; (vi) the ‘paparazzi hunt’ which Ms Gayet had been the victim of since the publication of the Closer exclusive and her consequent reluctance to appear as frequently in public.
By way of further remedy, Closer will also have to publish a front-page statement of the Tribunal’s condemnation of the magazine’s breach of Ms Gayet’s privacy and image rights. The statement will have to be published within one month of the Tribunal’s judgment (i.e. by 27 April 2014), in a box, on a white background, occupying the entire bottom third of the front page. Closer will incur a fine of €1,500 for every day the publication is delayed after the cut-off point.
The decision – emanating from one of the strictest privacy law regimes in Europe – will come as little surprise to most French media lawyers, notwithstanding the strong countervailing public interest arguments advanced by the defendant tabloid. The award of damages (around £12,500), however, stands out as a heavy penalty in comparison to the lower figures awarded by the Nanterre Tribunal in recent privacy cases. The result accords with the prediction of leading French media lawyer Christophe Bigot (see previous post) that an action by Ms Gayet would be more straightforward than one brought by President Hollande as the relationship did not affect her profession.
It is worth noting that Ms Gayet has pursued both avenues available in the French courts for breach of privacy: civil and criminal. The Nanterre Tribunal’s decision relates to Ms Gayet’s civil claim only. The outcome of Ms Gayet’s criminal action against Closer, relating to photographs of her driving in her car published a week after the exclusive, remains to be seen.
Alexia Bedat is a barrister, currently working as a paralegal at 5RB.