There is no definitive list about the information concerning someone’s private life that can or cannot be published. This needs to be evaluated taking into account the specific circumstances in each particular case.
Evaluation
The Court of Cassation has ruled that the rights to private life and freedom of expression have the same normative value, and therefore require the judge hearing the case to strike a balance between them and, where appropriate, to favour the solution that best protects the most legitimate interest.
To evaluate whether the information published has unjustifiably intruded into someone’s private life, it is important to take into account the content, form and result of the publication. More specifically, according to the European Court of Human Rights, it is necessary to assess:
- the contribution of the publication to a debate of general interest
- the level of celebrity of the person concerned
- the prior conduct and behaviour of the person concerned
- the circumstances in which the photographs were taken or the way in which the information was obtained and its veracity
- the content, form and consequences of the publication: this includes the level of intrusion into one’s private life, the way in which the information concerning the private life of the individual was published, the manner in which the person concerned was represented in the publication, the extent of the dissemination, the harm done to the individual as a result of the publication
- the severity of the sanction imposed on the person responsible for the publication
example Publication of basic facts on certain details of the private life of a person, like facts from their biography, might be justified by the public interest. However, there need to be very serious reasons to justify the publication of particularly private and intimate information like pictures showing a person undergoing medical treatment in a hospital.
example The Court of Cassation found that the revelation of the sexual orientation of a politician in a book contributed to a debate of general interest as it related to the evolution of his political party which had shown signs of openness towards homosexuality on the occasion of the adoption of a law authorizing same sex marriage. The Court therefore ruled that there was no violation of the politician’s private life and that the right balance had been found between the legitimate aim of the author to report information and the right to a private life.
Publication of photographs
Although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance.
Depending on the context in which they were taken and also the climate in which they are published, front page photographs revealing private details about a person may create a very strong sense of intrusion into their private life or even of persecution. Such intrusion could, for example, include the continuous harassment of celebrities by the tabloid press and the publication of pictures about their whereabouts just to satisfy the curiosity of readers.
Indeed, a person’s image constitutes one of the main attributes of their personality, as it reveals the person’s unique characteristics and distinguishes the person from their peers. The right to the protection of one’s image is thus fundamental and presupposes the right to control the use of that image. This includes the possibility for an individual to refuse publication of his or her image and also the right to object to the recording, conservation and reproduction of the image by another person. This also means that the consent of the person whose picture is taken should be obtained, and not only if the picture is published.
For example, according to French law, photographing or filming a person in a private place or transmitting his/her image without his/her consent is a criminal offence punishable by one year's imprisonment and a €45,000 fine.