In the Eye of Leveson: Privacy Law in France

15th February, 2012

 

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.

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

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:

Authorization 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.

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

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

Sources, information and translations include amongst others: The UPP France L’Observatoire de l’image

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