Cour de cassation

The court:

Given that according to the conclusions of the judges below The Mail on Sunday, a British weekly distributed in France, published in its issues dated 7 and 21 September 1986 two articles over the signature of Mr. Dempster concerning Prince Y., the minor son of Prince X., that by its decision of 1 February 1989, now under attack, the Court of Appeal of Paris held both the publisher, Mail Newspapers plc, and Mr. Dempster. liable to pay Prince X. and his wife damages amounting to 50,000 francs as compensation for the harm caused to their son by this invasion of his private life, as well as 50,000 francs to Prince Y. himself as compensation for the harm he himself suffered.

…

On the first ground of the application for review: Given that the publisher and Mr. Dempster criticise the decision of the Court of Appeal as violating article 9 (1) Code civil in that, first, the original article only related an everyday occurrence which was not objectively an intrusion into the private life of the minor and his family, secondly that a prince’s education and training are traditionally part of his public life, and finally that greater coverage than for others is allowed of the conduct of those who have been placed in the public eye by their birth, political and social responsibilities or great wealth, so that the method of education chosen by the head of a religion for his son and heir and the son’s behaviour in society are not part of their private life;

But given that after stating quite correctly that everyone, regardless of rank, birth, wealth, current or future role in life, is entitled to respect for his private life, the Court of Appeal held that, without any authorisation by his legal representatives, the articles reported on the behaviour of a minor aged fourteen on a privately-owned island and the way he was brought up and educated, and spoke of “the educational methods of Prince X. as conducing to the regrettable conduct of his son” and could properly infer that these revelations intruded into the private life of the young prince and his father, thus justifying their decision in law;

From which it follows that the first ground of application for review is without foundation;

On the second ground: Given that the decision below is criticised for ignoring article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guarantees the right of free expression and for violating it in a manner which amounts to an interference by the courts with the right to free expression, especially as the public is entitled to be informed about the moral quality of the conduct of religious authorities outside the area of strictly private life;

But given that its decision that these publications failed to respect the private life of Prince X. and his minor son and that Mr. Dempster. and Mail Newspapers plc were liable to for the damage caused to the claimants by the publication was legally justified under article 9 (1) Code civil and did not misapply article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose second limb indicates that there are limits to the freedom of expression, but rather applied article 8(1) of that Convention,

For these reasons DISMISSES the application for review.

Doctrine upheld (changes are possible)
- “Each and every person, irrespective of rank, birth, wealth, current or future position, has a right to privacy”. No later judgement of the Court of Cassation - whether or not they were published, and irrespective of the Chamber – seems to have used this wording, which the Mega Civil Code of Dalloz nevertheless sets out as a doctrine which is still applicable, and adopted by the lower courts (see CA Paris, 27 May 1997, “regarding the book entitled “The Big Secret” mentioned below: “while it is true that each and every person, irrespective of rank, birth, wealth, current or future position, has a right to privacy, the power - open to all - to forbid any revelation of one’s private life under any shape or form, can only be enjoyed by the living”).
- “Having held, in a judgement well founded in law pursuant to article 9, paragraph 1, of the Civil Code, that certain publications infringed the right to privacy, a Court of Appeal which, applying Article 8-1 of the European Convention for the Protection of Human Rights and Fundamental Liberties, orders a journalist and a publisher to indemnify the party injured by the publication, does so without failing to comply with Article 10 of that same European Convention, point 2 of which provides for certain limitations to freedom of expression”.

Note: The cases seem to have evolved somewhat as regards this point, but more through “gradual erosion” than through a real change. It seems that the Court of Cassation is tending more and more to integrate the European Convention for the Protection of Human Rights and Fundamental Liberties, Article 10 of which, (whilst containing restrictions within its paragraph no. 2), protects freedom of expression. An example would be a judgement also rendered pursuant to Articles 9 and 16 of the Civil Code and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Liberties (Civ. 1, 20 Feb 2001, Bull. No. 42): “The freedom of information allows for the publication of pictures of people involved in an event, under the sole condition that their human dignity be respected. A Court of Appeal neglects this rule if it pronounces the publication of a photograph of the victim of an assault as unlawful on the sole basis of the latter’s right over his/her image, in circumstances where, having correctly held that freedom of expression and the requirements of [free] information made the reporting of the event legitimate, it found that the photographs in no way infringed the dignity of the person represented”.
In another judgement (Civ. 1, 12 July 2001), regarding, it is true, more the right over one’s image than the right to privacy, but also rendered pursuant to Article 9 of the Civil Code and Article 10 of the European Convention for the Protection of Human Rights, the Court of Cassation criticised the appeal judgement on the grounds that “freedom of information justifies the publication of the image of a person involved in a law-suit, as long as human dignity is respected”, and deems that a judgement flouts the two aforementioned articles, if, “in order to find unlawful the unauthorised publication of a photograph of Mr. C. as an illustration for an article on his being charged for an offence (…), it holds that such publication, though carried out in a way which cannot be criticised and does not infringe the interested party’s privacy, fails to observe the exclusive right of each person over his image and over the use to which it is put”. In his commentary, (Dalloz, 2002, no. 17, Jurisprudence, p. 1380 to 1383), Christophe Bigot notes that “this judgement probably marks the last stage in the transformation process which the right over one’s image has been undergoing for several years (…), and which is resulting in the gradual replacement of the absolutist concept of the right over one’s image by a more balanced approach, more commensurate with the need to keep citizens informed; this transformation “is the result of taking into consideration the constraints linked to the application of Article 10 of the European Convention for the Protection of Human Rights, which requires that in all cases when freedom of information is restricted, an approach respecting the principle of proportionality is adopted, whereby the different interests involved are balanced against each other”.

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