Case:
Civ. 2e Bull. Civ., 1975 II no 294 p. 236 JCP 1976. IV. 9 Subsequent Developments
Date:
14 November 1975
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Civ. 2e
Bull. Civ., 1975 II n¿ 294 p. 236
JCP 1976. IV. 9

Subsequent Developments

On the sole ground of the application for review, first limb and final part of the third limb:

Given that the judgment of the Court of Appeal, upholding the decision below that the defendant Presse Office was liable to pay Chaplin damages for invading his private life by means of an article which appeared in one of its journals, is criticised for drawing a distinction unknown to the law between the divulging of details of a person’s private life and their being “redivulged”, and for inconsistency in holding first that there would have been no invasion of the claimant’s private life if the article in question had been published in a scientific journal, and then that every one had the right to determine as he pleased what details of his private life could be published;

But given that Presse Office has never claimed that its journal was a scientific magazine and did not present the article in question as a historical study, as was held in a different part of the judgment, it follows that the distinction which the Court of Appeal saw fit to draw in order to protect certain kinds of publication was irrelevant to its actual decision, and that Presse Office has no interest in criticising such holding, so that this ground of application for review cannot be accepted.

On the second limb and the rest of the third limb of the same ground of application for review:

Given that the decision below, holding that a private individual has a discretion to object as he pleases to the republication of facts already disclosed with his consent, is criticised for failing to indicate the respect in which the republication contained any thing new or distorted facts already known and thus depriving the Court of Cassation of the means of control over the right to respect for one’s private life;

But given that after analysing the numerous details in the article about the private life of Chaplin and his family, the judges at first instance declared that as every one is entitled to respect for his private life it was immaterial that the same facts had already appeared in books and periodicals, and that a person who without any legitimate interest publishes such facts is liable unless he can show some special authorisation; that these reasons were adopted by the Court of Appeal which added that a person who chooses to disclose facts relating to his own private life does so in full awareness of the limits and conditions of such disclosure, and that it followed that such disclosure by Chaplin did not entitle the Presse Office to decide what facts of his private life they would reveal to their readers nor the conditions under which they could do so; that the judgment finally adds that revelations about a person’s antecedents, partners and issue are invariably part of his private life, no matter who he is;

Given that these statements and findings, which do not mean that whenever a person consents to the disclosure of facts relating to his private life he has a discretion to prevent republication of the same facts, provide the Cour de Cassation with a basis for reviewing the application of article 9 Code civil regarding the existence of an invasion of private life;

From which it follows that the judges below have given legal grounds for their decision;

For these reasons DISMISSES the application for review of the decision handed down on 17 December 1973 by the Court of Appeal (Paris).

Civ 2, 14 November 1975 : To give information to a journal on one's private life at a particular moment does not give authority for the republication of the information without the agreement of the person concerned. On this point, this case law should be compared with the judgment of the 30 May 2000 (need for a special authorisation by the person concerned for the further disclosure of facts already made public by him, and the possibility for him to decide the conditions of this further disclosure), and with the possible reversal of the case law on this point, begun by the judgment of the 3 April 2002 (no confirmatory or contradictory judgment seeming to have occurred since). It should be noted that this judgment made it clear that the person concerned does not, for all that, possess a "discretionary" power to oppose this further disclosure. It remains the case, as Jacques Ravanas notes (Jurisclasseur civil, art 9, instalment 10, no 80) that "tolerance in the past is not justification (...). A person who tolerates invasions of his private life, consents to them or seeks them, does not renounce his rights; he exercises them or decides not to exercise them".

Translation by Raymond Youngs

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