Candidate number: NJGY7

The balance struck between privacy interests and freedom of expression in English and French law

For many years, French privacy law has been diametrically opposed to its common law counterpart. This is not only because English law has never expressly recognised a general right to privacy while French judges have been building on the right codified in article 91 of the Code Civil for forty years, but also because the recourse by English judges to pre-existing causes of action to determine clear-cut infringement-of-privacy cases has proved to be an illustration of how different the incremental judicial approach to the law has been from the French civilian legal system. However, recent developments in the law of privacy merit closer examination. Prior to the application in domestic courts of the right to private life (article 8) and the right to freedom of expression (article 10) provided for in the European Convention on Human Rights (ECHR), loopholes and conceptual inconsistencies were apparent in both legal systems. In England, the courts noted the practical difficulties resulting from not having a cause of action specifically designed to give relief to claimants whose privacy had been intruded upon (e.g. in the Kaye v Robertson case2). In France, on the other hand, the overprotective nature of the right to privacy and the right to ones own image, which also comes under the article 9 of the Code Civil, led the European Court of Human Rights (ECtHR) to condemn the manner in which French judges, in a series of cases, examined

1 2

Everyone has a right to respect for his or her private life. [1991] F.S.R. 62 at (66), at (70), at (71). 1

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defendants claims to freedom of expression when private information was at issue. The overall effect of these judgments has been to encourage the courts of both countries to give equal weight to article 8 and article 10 of the Convention when disputes as to whether the disclosure of prima facie private information may be justified by a countervailing public interest come to court. The study of this balancing exercise conducted by English and French judges in recent cases is crucial in determining the extent to which privacy law in the two countries may be said to be converging or, at least, likely to converge in the future. In order to analyse the manner in which French and English courts strike the balance between privacy interests and claims under article 10 of the ECHR, we shall firstly study the incorporation of the Convention rights in both England, which has a dualist system of international law, and France. After discussing the extent to which private individuals may rely on those rights in domestic courts, we shall lay down the judicial principles used to conduct the balancing exercise in both countries and single out their similarities and differences. Finally, we shall focus on the criteria used by French and English judges to give prevalence to disclosure of information when the right under article 8 of the Convention or article 9 of the Code Civil is engaged and examine the extent to which they have the effect of bringing together both legal systems and aligning them with the jurisprudence derived from the Strasbourg court.

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France incorporated the ECHR into domestic law by means of its ratification in 1974. Since then, article 8 of the Convention, granting protection to individuals right to private life, has been directly applicable in French law by virtue of article 55 of the 1958 French Constitution which, illustrating the monist nature of French constitutional law, allows ratified international instruments to take effect immediately within the law of the country. The horizontal effect of the Convention right to private life, which triggered a major debate in English law and remained a hotly disputed question3 for several years after the enactment of the Human Rights Act 1998 (HRA), was accepted by the courts with fewer difficulties in France, where a doctrinal movement emerged in the 1960s in favour of enabling private individuals to rely on Convention rights as against other private parties4. This doctrinal idea of the Convention granting enforceable rights to individuals materialised in the courts through two cases which recognised the primacy of international law when conflicts between treaties and subsequent acts of Parliament arose. The first came in the highest civil and criminal court, the Cour de Cassation, which, following the Constitutional Courts reasoning in an earlier case5, delegated the power to disapply national legislation in favour of conflicting international undertakings to private law judges6. Fifteen years later, the highest administrative court, after resisting the principle out of concern that it would
Jonathan Morgan, Privacy, Confidence and Horizontal Effect: Hello Trouble, 2003 CLJ 444, 452-457. 4 M-A. EISSEN, La Convention et les devoirs de lindividu, dans la protection internationale des droits de lhomme dans le cadre Europen, 1961, Dalloz, p. 167. D. Spielmann. 5 C.E. 15 January 1975 n 74-54. 6 Ch. Mixte 24 May 1975 n73-13556.
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erode parliamentary sovereignty7, finally accepted the idea and extended its scope to cover French administrative law8. One of the consequences of these cases is the wholehearted incorporation of the ECHR into French administrative and private law, with no later acts of Parliament being capable of circumventing its application. Moreover, it allowed ordinary courts to put aside national legislation that conflicted with previous international norms giving article 55 of the Constitution a wider effect and making the values underlying the Convention unrepealable by Parliament. Although it is widely acknowledged that the Conventions procedural clauses were drafted in such a way as to make the provisions binding chiefly on public authorities, French courts have explicitly cited Convention rights in disputes involving private parties without having recourse to constitutional provisions justifying its application. This trend started in the 1990s with a case in which a balancing exercise between article 10 and article 8 of the Convention was carried out in a dispute between a prince and a journalist from the Mail9. This horizontal effect was explained by the fact that, despite the restrictive procedural rules laid down in the Convention which, prima facie, requires the defendant in a trial before the ECHR to be a Member State, the national judge is bound to ensure, in private

French Legal System 2nd edition (2006), Catherine Vernon, Eric Jeanpierre and Chatherine Elliott, P. 59. 8 C.E. 20 October 1989 Arrt Nicolo N 108243. Rec. Lebon p. 190. 9 Cass. Civ. 1st, 23 October 1990, n. 89-13.163, Bull civ. I, n.222.
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disputes as well as in disputes involving the state, respect of positive law, which, since 1974, includes the European Convention10. It may be argued that recognition of the direct effect of article 8 in disputes between private parties in France only amounted to a minor step forward in the protection of privacy interests, as the prior case law and the 1970 statute enshrining article 9 in the Code Civil both created an adequate set of rules designed to ensure everyones right to respect of his or her private life and of his or her image. This is reflected in the significantly low number of judgments by French courts citing article 8 as a basis for their decision. However, the horizontal effect of the Conventions provisions can be deemed important in the way that it resulted in French judges being required to assess private life-related infringements in the light of article 10, thereby enhancing the binding force of the principle of freedom of expression for which French law had arguably had more abstract provisions before then. Indeed, although freedom of expression was provided for in article 19 of the Universal Declaration of Human Rights and was given constitutional status in article 11 of the Declaration of the Rights of Man and of the Citizen of 1789, the rules restricting this freedom were numerous, most of them coming under criminal law and being designed for specific offences11.

Rep. Pr. Civ. Convention Europenne des droits de lhomme et procdure civile, n.106 Porte pour les particuliers: la question de leffet horizontal ou non de la Convention. 11 E.g.: Professional secret infringement (art. 226-13), Propaganda and publicity for products, objects or methods capable of being used to commit suicide (art. 223-14 Penal Code), Defamation and Slander (art. 20, Law passed on the July 29th 1881 on press freedom).
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The inability of English judges to enable private litigants to rely directly on the Conventions provisions in the first cases heard following the entry into force of the HRA in 200012 shows that the issue of horizontality in English law has been inherently more complex than the French approach to the question, which has accepted the direct effect of those provisions in the absence of constitutional law barriers to it. The dualist nature of the relationship between English law and international law and section 6(1) of the HRA, which imposes an express obligation on public authorities to act compatibly with the Convention, have both played a part in the conceptually strained judicial development of privacy law at common law.

It is submitted that two distinct judicial trends can be observed when examining the English position over the last ten years: while the first has incorporated the underlying values of the articles without enabling the parties to rely on them directly, the second has demonstrated considerable judicial activism in making the balance between article 8 and article 10 the very core of the test to be applied in cases of wrongful publication of private information. In the years following the enactment of the HRA, English judges struggled to give a clear answer as to the exact extent to which horizontal effect of article 8 could be recognised in actions between private parties. This initial judicial reluctance to embrace horizontality wholeheartedly probably stemmed from the fear that recognising such an effect would have automatically led to the creation of a new
See Douglas v Hello! Ltd [2001] E.M.L.R. 9 at (129); Venables v News Group Newspapers Ltd and Others [2001] 2 W.L.R. 1038 at (27).
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cause of action specifically designed to protect privacy13 which the judiciary had been carefully avoiding for many years14. Murray Hunt noted the merits of section 6(1) of the HRA and its effect of imposing a duty on the courts to act compatibly with the Convention, i.e. to give due regard to the Conventions articles even in private disputes15. Hunt adhered to the approach advocating a strong indirect horizontal effect, meaning a general obligation on judiciary to apply domestic law in a manner consistent with the values embodied in the Convention16. It is submitted that this effect was apparent in the first part of the decade in which the act came into force and was evidenced in Campbell v MGN17 in which Baroness Hale stated that: The 1998 Act does not create any new cause of action between private persons. But if there is a cause of action applicable, the court as a public authority must act compatibly with both parties Convention rights. The Court of Appeal had an opportunity to clarify the common laws position in the case of A v B plc18. In this decision concerning a kiss and tell story involving a footballer, guidelines were issued to facilitate the task of protecting privacy through breach of confidence actions. The extent to which the Conventions articles could be said to apply horizontally was not discussed adequately, Lord Woolf simply stating that section 6 had the effect of absorbing the articles into
Sir William Wade Q.C., the United Kingdoms Bill of Rights, Constitutional Reform in the United Kingdoms Practice and Principles (Hart Publishing, Oxford, 1998) p. 63. 14 See Robertson v Kaye [1991] F.S.R. 62 per Lord Bingham at (70) and per Leggatt L.J. at (71) ; Malone v Metropolitan Police Comr [1979] Ch 344 per Robert Megarry V-C at (372-281); Wainwright v Home Office [2003] UKHL 53 per Lord Hoffman at 30. Theakston v MGN Limited [2002] EWHC 137 per Ouseley J at (27). 15 M. Hunt The Horizontal Effect of the Human Rights Act (1998) P.L.423 at pp. 439 -440. 16 Thomas D.C. Bennett Horizontalitys New Horizons re examining horizontal effect: privacy, defamation and the HRA part 1 (2010) Ent. L.R. 2010, 21(4), 145-149 17 (2004) 2 AC 457 at (132). 18 [2002] EWCA Civ 337, [2003] Q.B. 195.
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the traditional breach of confidence action19. Phillipson20 rightly argued that the complex interpretative issues relating to horizontal effect were left untouched. He sought to attribute this to the cases reluctance to tackle some elements of the Convention value system. It is obvious from the decisions given in the first part of the decade that article 8 and article 10 of the Convention were incorporated into the broad action of breach of confidence with a substantial pressure being put on judges to consider the private parties interests in the light of these provisions and their respective restrictions. However, the concept of absorption put forward by Lord Woolf in his authoritative guidelines seemed to be nothing more than a formula used to avoid having to determine the exact extent to which the articles could be relied upon in disputes between private individuals. Fears that an established direct horizontal effect might represent an attack on the logic of extending breach of confidence to cover privacy questions and a general resistance to embracing the concept of private life as interpreted by Strasbourg may provide explanations for the lack of judicial decisiveness on the matter. The merit of the strong but indirect horizontal effect recognized by the English courts lies in the fact that it granted common law judges room for manoeuvre in reshaping the domestic cause of action used to protect privacy rights in the light of the countrys conception of a free press. Indeed, civilian legal systems have throughout their history showed a greater willingness to give effect to privacy rights and, as the ECHR chose to set high standards in this area of the law, the

Ibid at (4). Phillipson, G. 2003. 'Judical Reasoning in Breach of Confidence Cases under the Human Rights Act: not taking privacy seriously?'. European Human Rights Law Review (Special Issue): 54-72.
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partial denial of full horizontal effect demonstrated by English judges shortly after the HRAs enactment may have had the beneficial consequence of integrating strong article 8 and article 10 considerations into the breach of confidence action, so as to fill the gap left by the absence of a tort of privacy while enabling the judiciary to maintain their incremental development of the common law and to prevent reliance on article 8 from having a very sudden and adverse impact on numerous national newspapers and magazines.

Although conceptually the horizontality issue has proved a somewhat tenuous issue in the past, recent cases have been giving additional weight to article 8 and article 10, with the effect that they now represent the starting point of any balancing exercise conducted by English courts. It is submitted that this marks a major step forward in the development of privacy considerations in English law and a substantial change in the way English judges rely on the ECHR in disputes between private parties. The overall effect of this evolution has been a growing structural similarity with the manner in which the balance between article 8 and article 10 is struck in French jurisdictions. The courts initial stance of favouring a strong indirect horizontal effect of t he Conventions articles has developed into a method giving a full direct effect to the two provisions. This is reflected in Buxton L.J.s judgment in McKennitt v Ash21, handed down six years after the entry into force of the HRA. The Court of Appeal judge

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[2006] EWCA Civ 1714; [2008] Q.B. 73 (CA (Civ Div)). 9

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acknowledged the fact that the Act primarily imposes negative duties on the state and public bodies. However, he singled out article 8, which had always been seen as different22, and confirmed the corresponding positive obligations that this article engenders. The crucial elements of his reasoning which represents a significant departure from the judgments adhering to the indirect horizontal effect discussed above, are the assertions that English judges have to refer to the Strasbourg jurisprudence when considering an action under breach of confidence and that article 8 and article 10 are not peripheral to the central test to be applied but are the very content of the domestic tort that the English court has to enforce23. It is important not to underestimate the radical change in judicial reasoning that this case represents. It is submitted that the shift from a strong indirect horizontal effect to a direct horizontal effect of article 8 and article 10 originates in this decision. As Nicole Morehams argued, what Buxton L.J. effectively did in McKennitt was to make common law rules secondary to the privacy action, useful only to the extent that they provide some guidance as to how to apply the two articles24. It is important to note that while it remains the case that the common law does not recognize and at no point created, a general tort of privacy, the overall result of article 8 and article 10 being given horizontal direct effect is that it greatly reinforces private parties rights to claim for protection against intrusions of

Ibid at (9). Ibid at (11). 24 Nicole Moreham, "Privacy and Horizontality: Relegating the Common Law [2007] 123 Law Quarterly Review pp 37-42.
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privacy under the breach of confidence cause of action. This is illustrated by the test applied by the Buxton L.J., which may be said to build on the roots of the new methodology25 as laid down in Campbell. This judicial technique was refined in later cases and now provides the most authoritative framework for analyzing privacy cases under English law. The most recent and comprehensive version of this test can be found in Eady Js judgment in the Mosley v News Group Newspapers Ltd26 case.

Before proceeding to any sort of balancing exercise, it must be shown that the claimant had a reasonable expectation of privacy with regards to the information which he seeks to protect. This basic requirement, originating from Campbell27 in which it was described as the touchstone of private life28 now forms part of the question as to whether article 8 is engaged or not in respect to the information claimed to be private29. The Court of Appeal in Murray listed the factors to be taken into account when assessing the existence of such an expectation30. Unlike in the American legal system where Freedom of expression takes precedence over the right of privacy by virtue of the first amendment to the Constitution, the whole balancing exercise in English31 and French law32 is

S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 at (23). [2008] E.M.L.R. 20. 27 Ibid. Per Lady Hale at (134); Per Lord Hope at (92): A reasonable person or ordinary sensibilities would feel if he or she was placed in the same position as the claimant and face with the same publicity. 28 Ibid. Per Lord Nicholls at (21). 29 Murray v Express Newspaper Plc [2008] EWCA Civ 446 at (30) McKennitt v Ash [2006] EWCA Civ 1714 at (11). 30 [2008] EWCA Civ 446 at (26). 31 S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at (17)
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conducted on the basis of the premise that both articles are of equal importance. If article 8 is engaged and claims under article 10 put forward, the new methodology then consists in confronting both articles on the basis of an intense focus on the facts under scrutiny33. More specifically, the intense focus in Mosley can be seen as an examination of the existence of any of the limiting principles derived from Lord Goffs judgment in the Spycatcher case34. These are: the principle of confidentiality preventing the reasonable expectation of privacy from remaining effective where information has gone into the public domain; the principle according to which information may only be protected if it is of some import; and the public interest principle which allows disclosure in circumstances where the wider benefit of the information being disclosed outweighs individual privacy rights. Once the competing interests are weighted against each other and the reasons given for interfering with or restricting each right35 examined, the last part of the analysis revolves around the question of proportionality. What Eady J calls the ultimate balancing test36 drawing upon Sedleys assessment of the strength of Hello newspapers claim in Douglas (No. 1)37, focuses on whether the infringement of the claimants right under article 8 is sufficiently justified for the purpose of serving the public interest, the basis for this exception appearing to

J. Ravanas, Libert dexpression et protection des droits de la personnalit , D.2000, Chron. P.459, n. 9. 33 Mosley v News Group Newspapers Ltd [2008] E.M.L.R. 20 at (10). 34 Attorney General v Observer Ltd [1990] 1 A.C. 109 . 35 S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at (14). 36 Ibid at (14) . 37 Douglas v Hello No 1 [2001] 2 WLR 992 at (137).
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be the rights of others38 present in the Convention as a legitimate limit to freed expression.

On the other side of the Channel, the balance between freedom of information and the protection of private life is struck on a case-by-case basis, in accordance with principles derived from the general manner in which conflicts of interests are resolved39. Gny issued some abstract guidelines as to how exactly to conduct the context-specific test. According to him, the judges are required to identify the interests at stake and evaluate their respective strengths, the objective being to ensure the prevalence of the most important interest on the basis of a social criterion and then to establish between them the most desirable balance between them40. On a theoretical level, some elements of the process by which French judges are required to resolve conflicting interests may be compared with the first three stages of the English methodology. The first part of both tests consists in identifying and characterising the respective rights of the parties. Judges are then required to weigh up both types of interests in order to determine their importance in a specific context. They are then invited to take into account peripheral considerations and limitations surrounding the exercise of such rights, which are laid down in Convention articles 8(2) and 10(2).

Art 10(2) of the ECHR. Agathe Lepage, Recueil Dalloz 2003, p. 1539. 40 F. Gny, Mthode dinterpretation et sources en droit priv positif, 2nd ed, 1932, t.II, p. 167, n. 178.
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After a more detail examination of the French case law, it will be apparent that key substantive principles still differ considerably between both judicial approaches, but that the influence of the Strasbourg jurisprudence on both legal systems may lead to the convergence of the criteria used to justify the prevalence of freedom of expression over privacy.

A series of decisions taken by the Cour de Cassation at the beginning of the last decade demonstrate the substantial change that French law has undergone in balancing article 9 of the Code Civil with the right to receive information , which comes under the broader right to freedom of expression. Indeed, under both limbs of article 9 - the right to ones private life and the right to ones own image - the judiciary has strengthened the role played by considerations coming under article 10 of the Convention. Christophe Bigot saw the effects of five different rulings from the Cour de Cassation as constituting a novel judicial trend in cases involving article 9, two of them effectively introducing a new methodology in disputes relating to the individuals right to private life41. The growing influence of article 10 of the Convention in the French judicial reasoning can be seen in three Droit limage cases brought in 2001. The first two42, citing article 10 of the Convention alongside article 9 and 16 of the Code Civil, established that the freedom of expression and the need to inform made the
41 42

Christophe Bigot Recueil Dalloz 2003, P 1854. Cass. 20 February 2001 Bulletin 2001 I N 43 p. 27. 14

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publication of photographs of persons involved in a newsworthy event legitimate so long as such publication was not contrary to human dignity. The criterion used in the first case to determine the potential infringement of human dignity was whether the publication of the photograph was sensationalist and whether it was indecent43. In the second case, a policeman who appeared in a political tract without having given his consent to it was not able to rely on his right under article 9 on the ground that the event remained topical days after it occurred, and thus freedom to communicate information overrode his subjective right to his own image. In a decision given six months later, the Cour de Cassation, in a case concerning the legality of publishing photographs of someone involved in criminal proceedings, reiterated the existence of a limit on the freedom to communicate information by the concept of human dignity44, protected by article 16 of the Code Civil. These three cases lay down the governing principles of the balance to be struck between the right to ones image, the protection of which was previously absolute under French law, and the values embodied under article 10 of the Convention. Moreover, it is clear that the judicial reasoning behind these decisions requires a proportionality analysis to be made of the interests at stake, as is shown by the two cases involving claims under the first limb of article 9 of the Code Civil covering the right to ones private life. In a judgment handed down on 3rd of April
Cass. Civ. 1st 20 February N 99-15.970 Bulletin 2001 I N 43 p. 27. Cass. Civ. 1st 12 July 2001 n 98-21.337 Bulletin 2001 I N 222 p. 139; JCP 2002, II, n.10152, note Ravanas.
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200245, the Cour de Cassation found that there was a right to information in a dispute relating to a prima facie intrusion into an individuals private life. The first civil chamber judges found that the break up of a famous couple could amount to a public fact, meaning that its disclosure by the press would be justified under freedom of communication. It was also held that some facts relating to peoples private lives may be so trivial as not to be covered by the application of article 9. These findings, which reflect two of Lord Goffs limiting principles, extend the range of circumstances under which the right to privacy will gives way to article 10 considerations, and more specifically the right for the public to be informed (although the provisions is not mentioned in this case, Bigot46 is convinced that it has the same conceptual logic as the three cases discussed above) to the point that the arrt was heralded as marking the start of a new era of privacy law47. The cases effect on privacy law was clarified by another ruling of the same chamber of the Cour de Cassation a year later, which shed some light on the balancing exercise to be conducted. Indeed, on 23 of April 2003 48, in a case involving the disclosure of extra-marital relationship affecting the Princess of Monaco, the court established that the publication of information on a newsworthy event capable of overriding the claimants right under article 9 of the Code Civil could nonetheless be prevented on the basis that it would not satisfy the objective to inform the public. The criterion of whether a story conveys information in an appropriate manner, which is used by judges to
Cass. Civ 1st April 2002, Legipresse n.195, oct. 2000, III. 171. Christophe Bigot, Avocat au Barreau de Paris, Protection de la vie prive : la Cour de cassation pose de nouvelles rgles, Recueil Dalloz 2002 p. 3164. 47 Ibid. 48 Cass. Civ. 1st 23 Avril 2003. Bull 2003. I. n.98 p.75.
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establish whether article 10 of the Convention should apply, is of central importance to balancebetween freedom of expression and ones right to have his or her private and family life respected49.

When comparing the legal principles which the French and the English legal systems apply when confronting the values embodied in article 8 and article 10 of the Convention, similarities may be observed in the manner in which competing interests are balanced against each other.

French and English judges now see privacy and freedom of expression as requiring the same level of protection, their status being equal in both states. Both tests will ultimately be conducted on the basis of the notion of proportionality demonstrating that both countries drew on the manner in which Strasbourg dealt with both articles to reshape their domestic legal rules to the issue. However, numerous rules contained in both methodologies still differ substantially. For instance, French claimants do not have to prove a reasonable expectation of privacy for their claim to be balanced with a countervailing interest. A reasonable expectation of privacy does not constitute an initial trigger 50 to a successful claim under privacy law in France. French claimants rights not to

Ibid. H. Delany and C. Murphy Towards common principles relating to the protection of privacy rights? An analysis of recent developments in England and France and before the European Court of Human Rights (2007) E.H.R.L.R. 5, 568-582.
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have their private life mentioned in the media or not to have their photographs published in a newspaper, regardless of the place were they taken, is exclusive and personal so that, save in circumstances where consent is established, an exception to those rights will be made only if proof is provided of the existence of a legitimate interest on the part of the public to be informed. Furthermore, the condition whereby the publication of an image taken in a public space need not be contrary to human dignity if it is to prevail over ones droit limage is not present in the English balancing exercise. In French law, the concepts of human dignity and privacy are related and come under the broader notion of individual personality. The purpose of linking the two together within the balancing exercise is to impose limits on freedom of communication on both sides of the spectrum, meaning that, when an image satisfies the criterion of relating to a current event, thereby going outside the scope of article 9 of the Code Civil, its publication will not be allowed to go so far as to provoke the public by being inherently offensive. The fact that French judges will see fit to find an infringement on the grounds that a photograph is sensationalist demonstrates the potentially wide ambit of this limitation. If Peck v UK51 had been heard in France, the publication of a photograph showing the applicant in a public place holding with a kitchen knife minutes before his attempt to commit suicide might have been considered to be sensationalist. It certainly related to an emotional subject matter (suicide) and was capable of shocking and disturbing some readers. Nevertheless, French courts seems to have used the limitation in order to prevent the publication of photographs of a

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(2003) 36 E.H.R.R. 41. 18

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more extreme nature, as can be seen in the Erignac case52, where an image of the corpse of an assassinated public figure was found to infringe article 16 of the Code Civil. At first glance, it may seem that the reasons for disclosing prima facie private material in England and France, namely the presence of a public interest and the fact that material is newsworthy and creates a right for the public to be told, are similar in nature. However, the French approach to the criteria requiring the material to be disclosed only to the extent that it is necessary to do so in the light of the objective of information is clearly more intrusive than its English counterpart. Before comparing the circumstances in which both legal systems allow privacy interests to give way to a wider right for the public to be informed of prima facie private information and the impact of these approaches on the media, it is worth noting that, in France, confronting privacy interests and a broader right for the public to be informed about a given event is a relatively recent task imposed on the courts.

Indeed, the traditional view of privacy as an individual prerogative rendered any infringement unlawful if no consent was given for the disclosure of information or the publication of a photograph53. Considering that the right to respect for ones private life was originally seen as a weak penal limitation to

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53Cass.

Cass. Civ. 1st 20 December 2000, D.2001, p. 872, note J-P. Gridel. Civ. 5 March 1977, JCP 1977, IV, 925. 19

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freedom of expression54 when it was first recognised in a law enacted more than a century ago55, it is surprising that little could be done in the absence of consent on the part of the claimant before French judges devised a new test at the beginning of the twenty-first century.

The old approach adopted when the two rights came into conflict certainly had a detrimental impact on the way the press developed in France. The requirement of consent on the part of the person whose right to private life was affected placed a huge burden on editors and newspapers to ensure anyone mentioned in an article or depicted in a photograph agreed either expressly or implicitly to publication.

The rights derived from article 9 received a quasi-systematic precedence56 over the rights covered by article 10 of the Convention, which, considering the role of democracys watchdog57 later attributed to the press by the ECtHR, was highly inappropriate. Going against this French judicial tendency to give excessive weight to rights embodied in article 9 of the Code Civil, the ECtHR handed down a series of judgments 58 encouraging French courts to afford better protection to the right to receive and impart information in circumstances where the contested material formed part of the public interest and where journalists

J,-P Gridel et A. Lacabarats, Droit la vie prive et libert dexpression: fond du droit et action en justice, Gaz. Pal., 17-19 nov. 2002, p 4. 55 Law of 11 may 1868 (art 11; abrogated by a law enacted in 1881). 56 Picard, The Right to Privacy in French Law in Markesinis (ed) Protecting Privacy (Oxford: OUP, 1999) 49 at 54. 57 Von Hannover v Germany (2005) 40 E.H.R.R. 1 at (63). 58 See Editions Plon v France (2006) 42 E.H.R.R; Fressoz v France (2001) 31 E.H.R.R; Societe Prisma Presse v France (2003) App No 71612/01; Radio France v France (2005) 40 E.H.R.R 29.
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acted in good faith and in accordance with the ethics of journalism59.

It may be argued that the Strasbourg case relating to the permanent injunction imposed by French courts on the publication of a book written by Franois Mitterrands private doctor had a tremendous impact on the national courts examination of claims under article 10. According to the French courts, the books publication breached the duty of medical confidentiality and the former Presidents right under article 9 of the Code Civil, which his relatives were able to invoke. The Strasbourg court, in holding that the information contained in the book raised the public interest issue of the transparency of political life60 while taking account of the fact that the book was accessible on the internet, significantly widened the range of circumstances under which article 10 could trump a public figures right to privacy under French law.

Moreover, the influence of the Strasbourg jurisprudence in French law is noticeable in the way national courts has gone from solely allowing material covered by article 9 of the Code Civil to be disclosed when it such material was newsworthy to adding an alternative criterion that the publication of the material need to contribute to a debate of general interest. In 2003, Frances highest court entitled judges to prioritise the publication of a photograph over the right to respect for ones private life in cases where the disclosure was justified by the involvement of the photographed person in a

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Fressoz v France (2001) 31 E.H.R.R at (54). Editions Plon v France (2006) 42 E.H.R.R at (44). 21

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newsworthy event which should legitimately be made known to the public61. The decisive factor that courts will take into account in disclosing private information or publishing a photograph is the newsworthiness62 of the story in which the claimant is involved in. Moreover, the form in which the story is revealed will be relevant to the balancing exercise. Indeed, once the newsworthiness of the published story is established, another requirement imposed on the press is that they must ensure that the photograph or the articles content satisfies the objective of informing the public and does not go any further63. It can be argued that this approach is intruding upon press freedom and the leeway that should be granted to journalists in writing their articles. This argument was reflected in Campbell v MGN, in which Lord Hoffmann saw the detrimental effects of allowing judges to evaluate the underlying tone of articles in order to determine whether the right of the public to receive information exists in a specific context. He stated that it would be inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary64. Lord Nicholls and Lady Hale echoed this concern about the judiciary interfering with the media by focusing on the article rather than the interests at stake. The first suggested that a judicial examination as to the form and content of a particular newspaper article would

Cass. 24 April 2003, Bull Civ II, no. 114. Evnement dactualit. 63 Cass. Civ 1st 23 April 2003, Bull 2003, I, no. 98. 64 (2004) 2 AC 457 at (62).
61 62

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not be needed when determining the existence of a public interest 65, while the second flatly rejected the idea that whether or not the article was sympathetic had any relevance66. While French judges will determine whether an article infringes the right to private life by looking at whether the article and the headlines surrounding it are written in such a way as to convey information relating to the newsworthy event in an appropriate manner, English judges will assess the existence of a public interest and, once it is established, give leeway to journalists to report it in the manner they see fit67. These issues are part of an extremely sensitive debate about the extent to which the judiciary can interact with the press. Judges ability to control the content of an article under the pretence that it does not convey information correctly or does not appropriately portray the person whose right to private life has been infringed seems to extend the judiciarys influence on the press to an excessive extent. The unfairness of ordering newspapers to pay damages to celebrities and other public figures merely on the ground that the article did not cast a favourable light on the person affected by the privacy infringement, or that it was not sufficiently sensitive to someones personal problems68, is obvious. What seems to be targeted by French judges when assessing whether the article distorts the objectif dinformation is speculation by journalists about the persons feelings and behaviour before, during or after the newsworthy event. It
Ibid. at (59). Ibid. at (156). 67 Ibid. Per Lord Hoffman affirming the Court of Appeals reasoning at (65). 68 The duty to inform the public was distorted by an article stating that the Princess of Monaco was humiliated after the revelation that her husband was having an affair: Cass. Civ 1 st 23 April 2003, Bull 2003, I, no. 98.
65 66

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may be argued that, even in cases where prima facie private facts are revealed, it is the journalists duty to portray the story as observed through his or her own eyes, giving his or her interpretation of the various elements of the story. In cases where the elements of the stories are proven to be false, the tort of defamation69 will provide a sufficient safeguard against untrue statements affecting the honour or reputation of the person concerned. On the other hand, if the judicial examination of the information contained in the article were to be conducted on the basis of a more objective and specific criterion, it could be beneficial for the judges to be able to prevent the publication of newspaper articles which, while imparting newsworthy information, clearly deviate from the real story to boost their sales, resulting in the readers being confused about the true facts of a story which is of public importance. French judges fears that the balancing of privacy rights and the right to information may result in the press becoming increasingly sensationalist have engendered a restrictive judicial evaluation of the substance of press articles. That evaluation in question has been heavily criticized for being inherently subjective, leaving national judges with broad discretionary powers in determining whether the information provided is necessary in order to satisfy the broad objective of informing the public. This, according to Christophe Bigot70, will greatly affect legal certainty, as judges are entitled to base their decision on moral criteria. Moreover, he points out, as Lord Hoffman did in Campbell, that such an approach would result in the judiciary trespassing into the area occupied

69 70

Article 29 of the law on freedom of the press 29 July 1881. Christophe Bigot, Avocat au Barreau de Paris, Recueil Dalloz 2003, P 1854.

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by newspaper editors, while providing it with tools which are not judicial in nature.

Although the merits of judicial scrutiny by French judges of newspaper articles on newsworthy stories remain controversial, one criterion on the basis of which the disclosure of private information can now be prioritized as against the rights derived from article 9 was clarified by the Cour de Cassation in the same year that Buxton L.J. judgment in McKennitt v Ash drastically increased the impact of the Convention and the ECtHRs jurisprudence in English law. Drawing on the balancing exercise conducted by the Strasbourg court in the case of Von Hannover71, and in response to that courts concern that French courts were not giving sufficient weight to article 10 of the Convention, the Cour de Cassation72 chose to incorporate the concept of contribution to a debate of general interest into the judicial equation. The dispute involved the legality of an article disclosing the fact that several local councillors and a mayor were freemasons and had been charged with various offences. The Cour de Cassation, after having mentioned article 9 of the Code Civil and article 10 of the Convention, recognized that publication of the article was legitimate in a

Von Hannover v Germany (2005) 40 E.H.R.R. 1 at (76): [I]t considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. 72 Civ. 1re, 24 oct. 2006, n 04-16.706, Express-Expansion et a. c/ J. Copin et a., Bull. civ. I, n 437 ; D. 2006. IR. 2754 ; Lgipresse 2007. III. 89, note A. Lepage ; RLDI 2007/23, n 727, obs. N. Verly ; Gaz. Pal., 5-6 oct. 2007, p. 51, note P. Guerder.
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democratic society, as it related to a current judicial event and was justified because it informed the public as part of a debate of general interest73. A couple of month later, this terminology was taken over by the first instance court called upon to consider the strength of Nicolas Sarkozys claim for breach of privacy which concerned revelations of his marital difficulties by a Swiss newspaper. The evaluation was formulated in similar terms, the judge being required to accommodate the rights of others and freedom of expression by determining whether the information contributed to a debate of general interest or whether it related exclusively to the details of the complainants private life74. The recent reliance on this concept in French cases will undoubtedly clarify the overall balancing exercise, as it has been authoritatively argued by Picard that on several occasions the French interpretation of the public interest had given rise to seemingly contradictory ratios75. Accordingly, the incorporation of the Strasbourg exception to article 8 of the Convention will provide French judges with a comprehensive method for conducting the balancing exercise. Moreover, the result of such incorporation will surely be to broaden the circumstances under which the right to freedom of expression will prevail over claimants rights under article 9 of the Code Civil. Indeed, the Cour de Cassation chose not to read the criteria of newsworthiness and contribution to a debate of general interest together by requiring both of them to apply for article 10 purposes in order for freedom of expression to trump the right to privacy, but

Ibid. Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006 at (2). 75 E Picard, The right to privacy in French law in B S Markesin is (ed) Protecting Privacy (Oxford University Press, 1999) at (95).
73 74

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decided to make the two notions alternatives76. This represents a notable difference from the approach advocated by the Strasbourg jurisprudence, which requires the concept of public interest and contribution to a debate of general interest to be established cumulatively77, setting a higher threshold than the French domestic balancing exercise. Nevertheless, it would appear that the finding of a contribution to a debate of general interest will not necessarily result in a correspondingly lower standard of protection for claimants under article 9. This is can be demonstrated by the fact that, although Mr Sarkozy failed to prevent the disclosure of his separation from his wife, the judges nevertheless found against the newspapers for publishing the details of the separation. Furthermore, in recent cases, the Cour de Cassation has been slow to establish the existence of a debate of general interest in relation to certain facts which, prima facie, could have triggered the prevalence of article 10 of the Convention. In 2007, the Cour de Cassation refused to recognize that there was a legitimate interest in the public being informed that the Prince of Monaco had a biological son when the prince was about to accede to the throne78. This was surprising, given that the Cour de Cassation had allowed the existence of the princes legitimate child to be revealed in 200479 and had accepted the publication of an article informing the public about his marriage to a famous TV presenter in the same year80. The argument according to which the sons legitimate status was the decisive factor in the evaluation is not convincing,
Civ. 1re, 27 fvr. 2007, n 06-10.393, D. 2007. AJ. 804, obs. D. Delaporte-Carr ; RTD civ. 2007. 309, obs. J. Hauser. 77 Leempoel v Belgium (64772/01) Nov 9, 2006, at (68) and Tammer c. Estonie, no 41205/98, CEDH 2001-I, at (64). 78 Civ. 1re, 27 fvr. 2007, n 06-10.393. 79 Civ. 2e, 19 fvr. 2004, D. 2004. Jur. 2596, note C. Bigot ; RTD civ. 2005. 99, obs. J. Hauser. 80 Civ. 2e, 8 juill. 2004, D. 2004. IR. 2694, et 2005. Pan. 2643, et nos obs. ; RTD civ. 2005. 99, obs. J. Hauser.
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in particular because French family law does not differentiate between legitimate and illegitimate children81.

The manner in which English judges construe the notion of public interest has changed dramatically in the past ten years. Lord Woolfs extremely broad views, as expounded in A v B plc82, which equated an understandable interest for readers to be told about private information relating to public figures with a legitimate interest in the public being informed has been considerably restricted in recent years. Lord Hoffman in Campbell83 and Buxton L.J. in McKennitt v Ash84 have made clear that there exists a distinction between what is likely to interest the public and the public interest. Angus McLean and Claire Mackey85 recently submitted that the most authoritative judicial opinion on this distinction remains Baroness Hales speech in Jameel v Wall Street Journal86. However, the part of her judgment that is of greatest relevance to the present discussion is her rejection, owing to its subjective nature, of the concept of newsworthiness in the test used to determine whether the public has a right to be given a particular piece of information87. It is obvious that not all newspaper editors have the same idea of what constitutes a current event and that tabloid readers will not necessarily consider political news to be interesting. The criteria used by the French courts may have the overall effect of introducing a degree of uncertainty
Ordinance of 4 July 2005 abolishing the distinction between legitimate and natural children. [2002] EWCA Civ 337, [2003] Q.B. 195. 83 (2004) 2 AC 457 at (57). 84 [2006] EWCA Civ 1714 at ( 66). 85 A. Mclean and C.Mackey, Mosley v News Group Newspapers Ltd : How sadomasochism changed the face of privacy law : a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales E.I.P.R. 2010, 32(2), 77-89. 86 [2007] 1 A.C. 359 at (147). 87 Ibid.
81 82

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into the choices that editors are called upon to make. Nonetheless, the ability for French judges to evaluate the content of an article in order to assess whether it conveys the information correctly, regardless of the conceptual merits of the rule, will have the practical effect of limiting the impact of an article or a photograph on a public figures private life. Indeed, had the details of Nicolas Sarkozy and the Princess of Monacos separations from their partners not been found to distort the objectif dinformation, reliance on the notion of newsworthiness would have seemed inappropriate, owing to its being excessively broad in its application and liable to result in disproportionate disclosure of private information.

The question as to whether English privacy law will fully incorporate the concept of a contribution to a debate of general interest into its balancing exercise remains to be settled. However, given the recent development in English privacy law, which take increasing account of Convention rights and the Strasbourg jurisprudence, it may well be that future cases will explicitly rely on the criteria laid down by the ECtHR in all circumstances.

In McKennit v Ash, Buxton L.J. brushed away the authoritative character of the findings made in A v B plc after noting that the case was inconsistent with Von Hannover. He did so on the ground that the principles established by the Court of Appeal in 2004 with reference to article 10 of the Convention were not conclusive and accordingly could not be part of the new balancing test which required article 8 and article 10 and the Strasbourg jurisprudence under those

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articles to be applied88. The judge gave primacy to the Strasbourg case, but still analyzed the facts with reference to the guidelines issued in A v B plc in order to demonstrate that no public interest would have been found had the case remained authoritative under the new version of the balancing exercise89.

Giving additional weight to the precedential rule of Key v Lambeth LBC90 according to which first instance courts should apply the decision of a higher domestic court even if it appears inconsistent with a later case from Strasbourg, two years later, in Murray v Express Newspaper Co91, Sir Anthony Clarke M.R. did not deem it appropriate to apply Von Hannover and instead analyzed the public interest from the standpoint of proportionality92, in line with Campbell93. Nonetheless, the Court of Appeal judge underlined that his reasoning was consistent with the Strasbourg decision and recognized the ability of English judges to have regard to it94.

More recently, in Mosley, the judge doubted the extent to which the very high test set by requiring a contribution to a debate of general interest will be taken in the courts of this jurisdiction in relation to photography in public places 95, noting the impact that such an incorporation would have on the English sensationalist press. Eady J nevertheless proceeded to apply the Strasbourg
[2006] EWCA Civ 1714 at (63). Ibid at (65). 90Kay v Lambeth LBC [2006] UKHL 10 Per Lord Bingham at (43-46). 91 [2008] EWCA Civ 446 at (20). 92 H. Delany and C. Murphy Towards common principles relating to the protection of privacy rights? An analysis of recent developments in England and France and before the European Court of Human Rights (2007) E.H.R.L.R. 5, 568-582. 93 (2004) 2 AC 457 at (20). 94 [2008] EWCA Civ 446 (59). 95 [2008] E.M.L.R. 20 at (131).
88 89

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standard to the facts of the case, thereby rejecting the argument that the publication of images and the written description of the event, which occurred in a private place, was justified by the public interest and contributed to a debate of general interest.

Since McKennitt, English courts have been showed a greater willingness to recognize the effects of Von Hannover and its requirement that, in order to be disclosed to the public, private information must contribute to a debate of general interest. Although the Strasbourg decision does not set the same standard as Campbell and A v B plc in relation to the public interest exception, the courts have been careful to conduct the balancing exercise consistently with the ECtHR jurisprudence.

English judges have been reluctant to require photographs taken in public places against individuals right under article 8 to satisfy the high threshold set by Von Hannover, which itself concerned intrusive photographs taken in places to which the public had access. Although Eady Js explicit application of the concept as formulated by Strasbourg appears to have the effect of bringing the English balancing exercise closer to the French one, the circumstances in which the press is able to publish visual images that are, prima facie, covered by article 8 of the Convention will continue to be substantially different in both countries. Indeed, French law, which regards newsworthiness and a contribution to a debate of general interest as alternative criteria, will prevent the publication of photographs infringing individuals right to their own image even more drastically than it did before the incorporation of the concept derived from the

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Strasbourg jurisprudence which requires them to be of relevance to a topical debate and not to provoke readers by portraying public figures in an indecent and sensationalist manner. On the other hand, the press in England will still be able to fall back on the lower threshold provided by the common law in disputes relating to photographs taken in public places, although the interpretation of the public interest, as set in A v B plc, has been made considerably more restrictive by Campbell and Murray.

The overall effect of this development is arguably to significantly increase the level of protection afforded to celebrities and other public figures under article 8 in cases where the event giving rise to the photograph, the video or the newspaper article occurred in a private place. It would also appear that the need for the disclosure of private information to contribute to a debate of general interest will be more easily satisfied in relation to politicians rather than public figures from the entertainment business. So, while English claimants will continue to enjoy less protection than French litigants, who can rely on the right to their own image by virtue of article 9 when photographed in a public place, the recent application of the exception to article 8 as interpreted by the ECtHR in Mosley shows a certain degree of convergence between the French and the English balancing exercises in relation to material obtained from the private sphere. In light of the growing influence of the Strasbourg jurisprudence on common law courts, it may be possible for the concept of contribution to a debate of general interest to be extended to public places, although such a development would clearly be contested by the section of the press that relies on the publication of photographs of celebrities to make a profit.

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We have observed that, owing chiefly to the dualist system of international law that exists in the common law and the initial desire of English judges to continue to determine infringement-of-privacy cases on the basis of breach of confidence, the application of the Convention rights under article 8 and article 10 to disputes between private individuals has been more controversial in England than in France.

In recent years, however, the recognition of the horizontal effect of the Conventions provisions in cases like McKennitt v Ash and Mosley v News Group Newspapers Ltd has resulted in the English balancing exercise being centred around concepts like proportionality to the same extent as the French method for resolving conflicts between privacy interests and article 10. It has become clear that, although the stages in the procedure followed by French and English judges when applying this context-specific test do demonstrate a structural similarity between both balancing exercises, substantive legal rules and concepts still vary from one side of the Channel to the other. The requirement that the publication of a photograph must not be contrary to human dignity is a limitation which is absent from the English methodology. Moreover, the condition that the claimant must show a reasonable expectation of privacy in relation to the material which he seeks to protect from disclosure does not exist in French privacy law, as article 9 confers a universal and enforceable right to privacy.

The criteria used by the two legal systems in determining when the disclosure of

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prima facie private information is justified by a broader right for the public to be told are further illustrations of the differences between French and English privacy law. French judges have chosen to allow disclosure when such information is newsworthy, in the sense it relates to a current event, while adding the proviso that the content of the article or the photographs must not distort the objective of informing the public. This gives the judiciary an intrusive power to scrutinize the substance of newspaper articles. On the other hand, the common law has demonstrated a more flexible and expansive perception of the public interest, as evidenced in Jameel and Campbell. The answer to the question as to whether the influence of the Strasbourg jurisprudence has had the effect of unifying both interpretations of what will justify article 10 trumping privacy interests is yes. Indeed, French courts have incorporated the concept of a contribution to a debate of general interest into the relevant balancing exercise and made it an alternative condition to newsworthiness. This has been

beneficial to French privacy law, as the reliance on the Strasbourg concept and the case law derived from it provides more guidance on when it is appropriate to disclose information protected by privacy interests. On the other side of the Channel, English judges have been increasingly willing to refer to the Strasbourg jurisprudence and to make their judgments consistent with it. Given this judicial trend and the fact that the concept of a contribution to a debate of general interest was expressly applied by Eady J in the Mosley case, it may be argued that the English and the French methodologies are converging on a central issue of the balancing exercise. The reluctance of English judges to extend the concepts scope to cases where the disputed photograph was taken in a public place does, however, still demonstrate that privacy law and, by extension, the

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media are still likely to be substantially different on either side of the Channel.

Word Count: 9957

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Bibliography
English Law Jonathan Morgan, Privacy, Confidence and Horizontal Effect: Hello Trouble, 2003 CLJ 444, 452-457. M. Hunt The Horizontal Effect of the Human Rights Act (1998) P.L.423 Sir William Wade Q.C., the United Kingdoms Bill of Rights, Constitutional Reform in the United Kingdoms Practice and Principles (Hart Publishing, Oxford, 1998) Thomas D.C. Bennett Horizontalitys New Horizons re examining horizontal effect: privacy, defamation and the HRA part 1 (2010) Ent. L.R. 2010, 21(4), 145-149 Phillipson, G. 2003. 'Judicial Reasoning in Breach of Confidence Cases under the Human Rights Act: not taking privacy seriously?'. European Human Rights Law Review (Special Issue): 54-72. H. Delany and C. Murphy Towards common principles relating to the protection of privacy rights? An analysis of recent developments in England and France and before the European Court of Human Rights (2007) E.H.R.L.R. 5, 568-582. French law French Legal System 2nd edition (2006), Catherine Vernon, Eric Jeanpierre and Chatherine Elliott. Picard, The Right to Privacy in French Law in Markesinis (ed) Protecting Privacy (Oxford: OUP, 1999) 49. Nicole Moreham, "Privacy and Horizontality: Relegating the Common Law [2007] 123 Law Quarterly Review pp 37-42. H. Delany and C. Murphy Towards common principles relating to the protection of privacy rights? An analysis of recent developments in England and France and before the European Court of Human Rights (2007) E.H.R.L.R. 5, 568-582. M-A. Eissen, La Convention et les devoirs de lindividu, dans la protection internationale des droits de lhomme dans le cadre Europen, 1961, Dalloz, p. 167. D. Spielmann. Rep. Pr. Civ. Convention Europenne des droits de lhomme et procdure civile, n.106 Porte pour les particuliers: la question de leffet horizontal ou non de la Convention. J. Ravanas, Libert dexpression et protection des droits de la personnalit, D.2000, Chron. P.459, n. 9.

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Agathe Lepage Condition de rvlation dun vnement dactualit, Recueil Dalloz 2003, p. 1539. F. Gny, Mthode dinterprtation et sources en droit priv positif, 2nd d, 1932, t.II, p. 167, n. 178. Christophe Bigot La poursuite de la renovation du rgime de latteinte a la vie prive Recueil Dalloz 2003, P 1854. Christophe Bigot, Protection de la vie prive : la Cour de cassation pose de nouvelles rgles, Recueil Dalloz 2002 p. 3164. J,-P Gridel et A. Lacabarats, Droit la vie prive et libert dexpression: fond du droit et action en justice, Gaz. Pal., 17-19 nov. 2002, p 4.

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