On the second ground of the defendant’s application for review:

Given that the société X., publisher of the journal Z., criticises the judgment under attack (Paris, 15 February 1994) for holding it liable in damages to Mme Y. for invasion of her private life and denial of her right to object to the publication of her picture, arguing first that while article 9 Code civil grants the person whose privacy is invaded a personal claim to prevent or terminate such invasion, the award of compensatory damages for any harm suffered is subject to the conditions of article 1382 Code civil, and that in holding that the damages claim by Mme Y. did not require proof of the damage and a causal link with the fault of the defendant under article 1382 the Court of Appeal failed to observe the necessary connection between these two texts; given that the defendant also criticises the Court of Appeal for awarding what amounts to a civil fine, unrelated to any damage suffered, in violation of the principle that reparation must be proportionate to the harm suffered, and giving no reasons for this other than mere assertion;

But given that according to article 9 reparation is called for once an invasion of private life has been established and that the Court of Appeal, having found that by revealing her emotional life the publication in question constituted an invasion of Mme Y.’s right to respect for her private life, acted within its unreviewable powers in determining how much harm had been suffered, and consequently provided a legal basis for its decision;

For these reasons DISMISSES the application for review.

Civ 1, 5 November 1996: This judgment affirms clearly - and for the first time - the existence of an "autonomous" right of reparation based on article 9 of the Code civil alone. This principle has been subsequently repeated in the same terms by the Cour de cassation (Civ 1, 25 February 1997, Bull, 1, no 73). Although initially the courts used the law of civil liability as a basis for imposing sanctions on violations of private life which were put before them, now "the specific proof of a fault and of harm independent of the violation of private life has become unnecessary, not only for obtaining measures for the termination of illegal activity but also to justify an award of damages" (G Viney, JCP 1997, I, 4025, no 3). Not only does detriment no longer have to be proved, but the evaluation of it is a matter for the sovereign powers of appreciation of judges of the lower courts. This situation is, moreover, on this point in conformity with the droit commun of liability (cf Ass plénière, 26 March 1999, Bull no 3 and Ch mixte, 6 September 2002: "A court of appeal under its sovereign powers of appreciation determines the amount of the detriment, the existence of which it justifies by the evaluation which it makes of it, without being required to specify the different elements of it".

Translation by Raymond Youngs

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