The French Tribunal of Nanterre’s Enforcement of the Royal Family’s Right to Privacy – Julie de Lassus Saint-Geniès

On Tuesday 5 September 2017, the criminal Tribunal de Grande Instance in Nanterre, Paris, ruled that France’s Closer magazine, Laurence Pieau (its editorial director) and Ernesto Mauri (the chief executive of its publisher, the Mondadori group) had gravely infringed Prince William and Princess Catherine’s right to privacy and family life when they published topless photographs of the Duchess during their holiday in the South of France in 2012.

The sentence handed down by the criminal Tribunal of Nanterre follows the judgment in Nanterre’s civil court in 2012 – later held up by the court of appeal of Versailles in June 2013 – that injuncted the dissemination and broadcast of the offending photographs in whatever form by Closer and other French publications.

Background

In September 2012, the Duke and Duchess of Cambridge were holidaying in Provence when a paparazzo, using a long-lens camera, took a number of highly private photographs of them both on the terrace of a private chateau.

While the British media took the decision not to publish the images, France’s Closer magazine (which is owned and run by a separate company to that of its British sister) splashed the photographs across its front and inside pages under the headline: “World Exclusive; Kate and William in Provence … The Duchess of Cambridge topless on the terrace of a guest house in Luberon! Discover the incredible pictures of the future Queen of England as you’ve never seen her before … and as you will never see her again!” They were not published on the magazine’s website.

Pieau, in attempting to justify their publication, described the fallout that followed as an “over-reaction“. She went onto say that the photographs “are not in the least shocking. They show a young woman sunbathing topless, like the millions of women you see on beaches.”

St. James’s Palace responded in a statement that likened the long-lens and grainy images to “the worst excesses of the press and paparazzi during the life of Diana, Princess of Wales.” The photographs in question are arguably some of the most intrusive ever published of a member of the Royal household and the fact that France has some of the strictest privacy laws in the world, the Duke and Duchess of Cambridge took the decision to sue the French publication of Closer in Paris.

The Law

The French legal system not only opens the door to privacy actions on the basis of Article 9 of the Civil Code as well as Article 8 of the European Convention on Human Rights but, in contrast to the law in the UK, criminal proceedings may also be brought against whomever has fixed, recorded or broadcast the image of a person while in a private setting.

The French Criminal Code provides for a maximum sentence of one year imprisonment and a fine of €45,000 for voluntarily and intentionally infringing upon someone’s private life. France’s criminal law creates a ‘cascading’ liability with respect to who is responsible for the dissemination of the offending material in the following order:

1. publishing editors or directors, regardless of their professions or titles, and publishing co-directors; 
2. authors;
3. printers;
4. sellers, distributors and advertisers.

The ruling is no doubt a victory for individuals’ right to privacy. In the European Court of Human Rights’ decision in von Hanover v Germany [2004] EMLR 379, which also concerned a member of the royal family of another country, it was held that although freedom of expression does extend to the publication of photographs, this right will not extend to the publication of images containing highly personal or intimate information about an individual. The court also commented that “photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution … [and that] the context in which these photos were taken – without the applicant’s knowledge or consent – and the harassment endured by many public figures in their daily lives cannot be fully disregarded“. By doing so, the court clearly distinguished between the ‘kiss and tell’ story in the tabloid media and the more traditional broadsheet story which is generally regarded as a more informative source.

French journalists, who are supposed to follow the principles established in the 1971 Munich Declaration of the Duties and Rights of Journalists, have duties to “not use dishonest methods to obtain information, photographs, documents … [and to] respect people’s right to privacy“.

Judgment

It is on the above basis that the Royal couple sued Closer and the Tribunal handed Pieau and Mauri the maximum fine of €45,000 each for their conduct. Cyril Moreau and Dominique Jacovides, the two paparazzi suspected of taking the photographs were each fined €10,000, half of which was suspended.

While the couple had sued for €1.5 million in damages, they were awarded the much lower sum of €50,000 each by the Tribunal. While this award is generally accepted to be much higher than similar cases in France, it does raise the question of why such a high sum was demanded when there was very little (if any) possibility of that sum being awarded. Unlike some common law countries, a French Tribunal does not grant punitive damages. Such awards made are limited to repairing the damage caused rather than being castigatory. Closer‘s lawyers during the hearing had condemned the demand for €1.5 million as “an Anglo-Saxon reasoning of punitive damages” in a French court.

Given that punitive damages were not recoverable, the difficulty arose, under French law, of quantifying the moral damage caused to the couple. The €1.5 million sued for may therefore be a way for the couple to reflect the suffering caused to them and the inevitable moral distress that resulted from such private photographs being exposed on the front page of a magazine. It was also perhaps a way for them to warn off other media organisations that such conduct would not be tolerated by them in the future.

To put the judgment in context, some previous verdicts handed down against the French version of Closermagazine have included:

• a fine of €15,000 for revealing the affair between a French actress and the French President;
• a fine of €20,000 in damages paid to a far right French politician, after the magazine ‘outed’ his homosexuality;
• a fine of €15,000 for publishing a story about a non-existing pregnancy of a member of the Monaco royal family, illustrated by stolen photographs picturing her in a bathing suit, on a public beach.

The ruling is the subject of an appeal, which of course may see the judgment either diluted or, equally, strengthened (a) with respect to the paparazzi whom, it is likely, received a payment from Closer much higher than the fine they were ultimately handed; and (b) in relation to the damages awarded to the Royal couple. Finally, it is not without possibility that the magazine could be ordered to bear the cost of the web-cleaning exercise that will be necessary to remove the offending pictures as and when they appear elsewhere on the internet.

At the time of writing, it has not been possible to read a copy of the judgment.

Julie de Lassus Saint-Geniès is an Avocat à la Cour and reputation management specialist in Paris.

This post originally appeared on the Farrer & Co website and is reproduced with permission and thanks