The French Privacy Law

One Suggestion At The Leveson Inquiry

Stunned by the way the Leveson Inquiry turned on photographers, (after having set out to be about journalistic ethics and phone tapping), I was even more horrified when a suggestion was made to introduce French ‘style’ privacy laws in the UK.

The French Privacy law and it’s effects really needs to be studied. It has turned a most cultured people into a nation of court going suers. The land which brought to the world amazingly talented photographers like Henri Cartier-Bresson and Robert Doisneau has made it impossible for their modern day counterparts to work.

This could be a picture of a French actor and his female co-star at a movie premiere from their last movie. However as the current story is about their new romance, we can't publish this picture, as it is considered an illustration.

We were fortunate to have Nigel Dickinson join the NUJ London Photographers’ Branch to give a talk on the French privacy law and the difficulties faced by him and his colleagues in France:

FRENCH PRIVACY LAWS

Based on a talk given to NUJ London Photographers’ Branch
by Nigel Dickinson, February 2012

Article 10 of the European Convention affirms that there are human rights for the freedom of expression and public rights to receive information. But in FRANCE this right is not absolute and has to be conciliated with certain individual rights.

Laws about shooting and publishing photos and video

Before taking a photo of someone you are required by law to ask the individual’s permission. If you want to publish it in anyway you have to ask their permission for each specific usage. Any object that is created by or is the copyright of an artist, or designer must have permissions to be published in specific contexts. Any owner of property can assert rights of ownership of property, again the photographer needs permissions to publish, regardless of whether the image was shot from a public or private space.

This could be a beautiful shot of the Eiffel Tower at night, with it's beautiful lighting. However, without consent from the lighting designer, we could not publish the picture.

It is advisable in France to always get a signed written permission by individuals, owners of property and creators of original works, whatever the situation whether in a public or private space.

Individuals can use two different French laws to defend their rights against publication of their image:

The right of your own image (Droit d’image)

In France each individual has the exclusive right to their image and of who uses their image. Not only publishing the image but even taking the photo of someone, the photographer has to have the individuals permission under French Law. The fact that the person accepts to be photographed doesn’t mean that they accept to have their image published. A minor aged between 12 to 14 years old can be considered responsible enough to decide whether he/she gives the right to use his image.

Circumstances where the public right of information might be stronger than the individual’s right of one’s image

When someone places himself or herself is in a public place then there is already a measure of tacit consent already presumed but this is reflected in each individual case. Normally the person only has a right of complaint if he/she is a principal subject in the photo.

If someone is in a photo but not an essential element – or when the person is not recognizable – or is an accessory by chance – say in an image of a public monument, or statue, then it is generally considered that consent is not necessary, even though people have taken photographers or publishers to court over this. The same goes when the person is part of a crowd. But again each case is taken on its own merits, as to what is considered a crowd or an accessory or not.

But in all circumstances the persons dignity must be respected.

Normally public figures, when going about their public life, such as politicians, sports stars, singers etc are not required to give their consent in such situations because the right of information supercedes their right to their own image, but this only for journalistic news purposes only not commercial ones, nor for illustration (the same image which was once a news image could be considered later on as an illustration, or when taken out of its news context).

Images of public figures must not violate the Privacy law. In other words the images must only deal with the individuals public life and role and not refer to anything which is about the individual’s private life.

In other words there mustn’t be anything which invades the private life of this person even though he/she is a public figure.

And an image which was part of a news event, with a public figure at one time, may be considered less relevant later on, in which case what was once a perfectly unusable news image – can be deemed unusable later. It is not newsworthy therefore becomes an illustration – and the photographer or publisher can be prosecuted for its publication.

This could be a beautiful landscape image in France; however, under the French privacy laws, without consent of the owner of the little cottage in the image, we cannot publish this image. Do note though that if the owner at the time the photograph was taken gave consent, then sold the cottage, you would need the current owner's permission too!

Taking the picture itself will not necessarily be by itself against the law unless someone’s private life is affected or private property is invaded as a result.

In certain instances legal judgments have considered certain types of publications in exhibits and books not to require authorization:

When the research is considered artistic, cultural or sociological.

Set up pictures (studio or mis-en-scene)

In France in this situation: Anyone professional or not is considered as a model., The photographer cannot pay the model direct, the client must pay, on a salaried basis according to French law. In the case of a model working for an agency, the photographer must check the agency possess the relevant agreements. The client can be held responsible against problems with the agency.

An image needs a model release, everything has to be licenced – there are very strict rules in France. One needs an official French State licence and financial guarantee. Foreign agencies cannot place models in French soil.

If a photographer wants to put such images into a photo-library there could be 2 problems:

Authorisation and remuneration

1. Authorization might be considered too general (to put into a photo-library without a defined use) One needs explicit destination made clearly in the text contract.

2.Remuneration – a contract has to be made between the photographer and model saying not only how the image will eventually be used but what is the exact percentage of the financial remuneration.

La Loi Vie Privée (Law against making the Private Public)

The privacy law is applied when treating the personal characteristics of an individual. This concerns people themselves, not objects, unless the person is obviously or reasonably easily identified by those objects. The law doesn’t apply to a family album or a sporting event, but does when such images are used in public – press or internet etc – because they are shown to an unlimited public – therefore it is not in a private use anymore. However one can send by e-mail to the family or put images into a secured passworded website limited only to the family etc.

Application of this law is less strong when the person is part of a large group and not specifically targeted as the main person of the photo. But every image is judged on its individual merits. There is no absolute law.

Permission and consent has to be freely given by the individual and specifically for a certain use. In law it doesn’t have to be written but it has to be without doubt – so for our purposes it is almost impossible to prove without a written release. One would even need permissions for use in a school photograph, sporting event etc.

It is recommended that the model release signed by the individual should also give people information about what are their rights, that they have a choice whether to sign or not, and information about the appropriate laws.

This could be a wonderful street photograph, one that even Henri Cartier-Bresson would be proud, but it cannot be published under French privacy law, unless every one in the image signed a consent form.

Minors

It is good to get the parent’s consent but a minor aged around 12-14 who is intelligent and discerning can have the right to give permission legally for use of his/her image.

Some personal characteristics are very strictly monitored under this law and considered very personal and sensitive issues – race, sexual orientation, health, political opinions.

Interpretation

Everything is seen in its context, for example; the skin color of someone is not in itself a private item, but if a photo of someone is used to identify of class someone by the color of their skin then this could go against the privacy law; also if from an image of someone one can deduce that person’s state of health, this is different to using an image, purposely to show someone’s state of health.

So it is both the context, the use and the purpose of the photographic/video image which is important; but again, everything is judged on its individual merits and it depends a lot of the judge, the place. One judgement maybe different to another on the same photo. It can also be a matter of chance, who judges it.

Privacy laws confer certain rights to individuals

• Right to be informed about how images will or can be used.

• Subjects right to ask questions, to be informed, by what right the person has to take a picture – the photographer has to answer this.

• Subject has right to access information, at any stage they want, and get information by telephone, written etc.

• A person photographed has the right of opposition at any time, when they have a serious reason for doing so, for editorial usage.

• A person don’t need a reason to oppose its use, if the image is used for direct marketing, commercial or publicity.

This could be a picture of a demonstration on the streets of Paris. However, because the photographer couldn't get a consent form filled in by everyone recognisable in the shot, the photographer could get sued. Although unlikely that the photographer would lose, legal representation and a court case would still be needed.

Specifically in respect for Journalism – in news (not illustration)

Exceptions to privacy are when it can be proven without doubt that the treatment of sensitive information, health or past legal history is for press, artistic expression or literature. And only when any or all of these aspects of an individual have a direct rapport with their public character or news events; then they can be brought into the public domain.

In such cases the person does not have the same rights to information or access to rights of privacy as set out above.

This forms part of the ‘democratic’ rights of journalists to perform their duties as ‘watch dog’ in a democratic society.

But journalists must not abuse this privilege. Whilst a journalist or accredited magazine might have rights to perform these duties, a school journal may not be afforded the same rights, so it becomes defamation – it is all about context, purpose and end result.

Property laws (2004 onwards)

Whilst an owner of a property or object doesn’t have exclusive rights over the use of the image of that object, they always have the right to oppose the use of the image of that object or property by a third party WHEN the use of the image causes an abnormal problem to them.

The French laws are fixed on this point. And this refers to images shot from a public space.

When an image is shot inside a private space, permission must always be granted, and a model release for persons and property must be arranged.

Rights of creation

Any sculptor, architect, artist has authors rights. Rights to the image of his/her creation. In certain instances the theory of the object as an accessory can take place in public or in private, but the author must always be mentioned by name.

One has to be extremely vigilant about the restrictions brought by the authors, examples of the recent “Le Corbusier judgement” where his inheritors have made it illegal for any photo/video image of Le Corbusier’s designs to be reproduced. Also for instance the Eiffel tower which one can photograph freely during the day but only certain circumstances at night; one is not allowed to photograph at night whilst the lighting display is in operation, as the lighting display itself is considered a copyrighted artistic work in its own right. Exceptions like this are numerous across France.

One has to research the specific rights in each object before publishing the image.

The photographer has to get written permission from the author, or his/her inheritors for up to 70 years after the author’s death.

For photographing in all Private places one always needs permission.

Text © Nigel Dickinson 2012

Illustrations © Edmond Terakopian

Sources, information and translations include amongst others:

The UPP France

L’Observatoire de l’image

__________________

There will be an audio recording of the talk available on the NUJ London Photographers’ Branch.

9 responses to “The French Privacy Law

  1. Even the concept of this must be amazingly scary to someone who makes their living as a PJ, as someone who doesn’t and who enjoys their privacy I agree with the sentiment but…

    In my head I am seeing you UK terrorism picture of the man on the street and now imagining you having to pull out a model release and getting him to sign it followed by years of him dragging you through court as he wasn’t in the right mind and therefore you didn’t have permission to use it, and anyway your release didn’t have web use clauses.

    Crazy!

    • It is indeed crazy. In a situation like you described, it actually makes working with empathy impossible as you have to chase devastated people and make them read and sign contracts. Ridiculous. As Nigel’s piece explains though, it’s so far reaching that it is literally ridiculous.

  2. Like you say Edmond, this is ridiculous, and it has to be said, extremely sad. Especially coming from the country that has pioneered and produced so much brilliant photography and art. Didn’t these laws gain traction in the French legal system after a bombing at a Paris station some years ago? I seem to remember a Paris Match cover image of seriously injured people at the scene. I think it was after survivors and the families of the dead and wounded went to court to get publication stopped that the whole privacy thing swung into gear, ending up with this frankly appalling situation. And how on earth can the French reconcile this position with the fact that in 2003 the Henri Cartier-Bresson Foundation was founded and I quote from their website (probably get sued for doing this!): “…the Foundation is recognised by the French government as being of public interest…To preserve the independence and KEEP ALIVE (my capitals) the spirit of HCB’s work” etc, etc.
    No doubt French photographers have argued long and hard about this. A complete overhaul of these absurd laws is obviously what’s needed but somehow I can’t see that ever happening – too much in it for the lawyers. Allegedly.
    Utterly tragic.

    • I have heard a different story for the origins of these laws coming into power; one of the papers had done an expose, with pictures, on a Mayor of one of the cities (can’t remember which) who was having an affair. He got stung badly as a result and managed to push this law through. Selfish and tragic.

  3. That sounds entirely plausible Edmond, and perhaps the post-Paris bombing pictures just helped the somewhat tenuous justification for a privacy law. Sad that some politico’s ‘away fixtures’ have now ended up curtailing freedom of information, expression, and creativity. Selfish indeed. Thankfully not the case here but we need to be on our collective guard. Hopefully post-Leveson there will be a raised awareness of what is at stake.

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  6. Sad for the photographers who think they should be entitled to do whatever they want.

    But not so sad for ordinary people who actually value their privacy (let alone their children’s privacy) and their right not to be published all over the internet.

    Just because you don’t mind being “viewed” by millions of Facebook users etc. doesn’t mean everybody else does.

    They should be enacting similar laws in the UK.

    • I’m not sure why you hold this view Chuck and what you see has happened to ordinary people that makes you think this negatively about photographers. A few points definitely worth considering though; any free society relies on also having freedom of press. Otherwise governments and people in various public office are free to get away by doing as they wish without their work being brought up to public scrutiny and being held accountable. The important word here is PUBLIC scrutiny. Press photographers bare witness and are the eyes and the ears of society, both at home and further afield. Both at times of peace or at times of war. We have lost several colleagues to wars over the past few years; decent, moral, brilliant, caring people. Also many friends and colleagues have lost limbs and been severely hurt, both physically and emotionally. Why? Simply because they believe it’s important for these events to be covered, and for society, which includes you Chuck, has a right to get a paper or go to a newspaper website and find out what’s happening in the world. If you’re being filled by the entire celebrity circus who took over the Levison Enquiry, I’d suggest you look into the past of the people trying to change the law so their indiscretions can go unnoticed. Some of these figures do not paint a wholesome life image by their actions, so why should be follow their ideals?! Also keep in mind that when the Rolf Harris story broke, his lawyers where trying to gag the press by quoting Levison and making sure the abuse story didn’t get out. Do you think this is right? If we had no freedom of press the extent of the Saville horror story would never have been apparent. Also, keep in mind stories like the MP’s expense scandal; would you rather the press couldn’t operate and that story never got published and the MPs who were stealing tax payers money were never brought to justice or held accountable? One other thing to think about; the tragic story of Milly Dowler; the uncovering of the phone hacking issue (which is being dealt with by the courts) came to a climax when it was thought the News of the World had deleted her voice mails. In fact, it turns out that it was the Police who had accidentally done this, not the press.
      I would consider that you look at history and see the huge changes investigative journalism has brought to society, world over, for many decades. Also remember the horrible couple of months we’ve had the world over; would you rather all these atrocities weren’t reported and that governments could just sweep it all away? Keep in mind that no freedom of press means all you will hear is what the government or big business wants you to hear. I for one hate nonsense celebrity stories, the paparazzi culture and the worship of all this nonsense by the public; the issue though is that the majority of titles bought by the public in this free market are the celebrity publications. The public can choose to buy quality, analytical news titles, but the majority choose to buy this rubbish. Therefore if you want to change that, you need to change the society that these publications are catering for. Having said that, I will fight for these publications to have the freedom of press and of free speech as this is paramount to a free society. You can’t gag some press and not others. Freedom of press is essential and it’s a right that all of society should fight for, as strongly as it fights for it’s right to free speech.

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