Julie Gayet wins further privacy damages in France – but would she in the UK?
Actress Julie Gayet has won damages against two French magazines for breach of privacy after the magazines published photos taken with a long-lens of her and partner Francois Hollande at a private Versailles retreat. The tribunal de Nanterre ordered both magazines to pay the sum of €1,500 each to Ms Gayet. This case follows Gayet's successful privacy claim against Closer magazine last year in respect of an article detailing her relationship with President Hollande.
The judgment is unsurprising given that France has one of the strictest privacy regimes in Europe. Article 9 of the Civil Code provides that "everyone has the right to respect for his or her private life". In the absence of a precise legal definition of "private life" the principle has been interpreted broadly by the courts, which have held that a person’s private life includes his or her love life, friendships, family circumstances, leisure activities, political opinions, trade union or religious affiliation and state of health. This encompasses a person's entitlement to oppose the dissemination of his or her picture without the express permission of the person concerned ("droit d'image"), unless that picture is taken in a public place in which case consent is presumed.
In the UK, privacy rights do not extend to rights of image so would Ms Gayet have succeeded in a claim under UK law in respect of these photographs?
An applicant seeking an injunction or damages for breach of privacy under UK law will need to show that he or she has a reasonable expectation of privacy in the circumstances. If it is determined that the applicant has a reasonable expectation of privacy, the Court will then be required to balance the two competing rights in issue: the applicant’s right of respect for private and family life under Article 8 of the Human Rights Act and the publisher’s right to freedom of expression under Article 10. Neither right has precedence over the other and resolution of the conflict requires an “intense focus on the facts” as per the test set out in McKennitt v Ash.
The treatment of photographs in UK privacy cases is highly dependent on the facts of the particular case. Photographs taken in a private setting will likely be afforded a reasonable expectation of privacy (as was the case in Mosley v NGN for example). Photographs taken in a public place are something of a grey area. There is still a tension between the ruling of the House of Lords (as it then was) in Campbell v MGN and the subsequent ruling of the European Court of Human Rights in Von Hannover v Germany. Whereas the former held that "the famous and even the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed by others without their consent", the latter held more broadly that photographs taken in public places could infringe an individual's Article 8 rights (as was the case with the claimant, Princess Caroline of Monaco, in respect of photos taken outside of her Parisian home). Tension stems from the fact that lower courts are bound to follow rulings of the House of Lords (now the Supreme Court) rather than later rulings of the European Court of Human Rights. Subsequent privacy cases have not yet resolved this tension, other than in respect of unauthorised photographs of children taken in public places (as per the rulings in Murray and Weller). The Weller decision has been appealed to the Court of Appeal (and is due to be heard on 27 or 28 October) which may render further guidance.
The photographs taken of Ms Gayet were of a relativity anodyne nature, being of her and President Hollande outdoors on the grounds of the Versailles residence. However, the residence was a private retreat and not a public place. The public had no access and the photographs were acquired using a long-lens camera from a distance outside of the residence. It seems likely that there would be a reasonable expectation of privacy in these circumstances. Had Ms Gayet been outside the residence in a public street this would likely fall under the "popping out for a pint of milk" category of case and would not be afforded protection.
The publications could then be expected to argue that the photographs related to a matter of public interest, that the relationship between Ms Gayet and the President of France contributed to a debate of public interest. Therefore, the Article 10 side of the scales would outweigh the Article 8 side. This argument would certainly have some merit, but the pictures do not reveal anything of importance given that it is already public knowledge that both Ms Gayet and Mr Hollande are in a relationship and both are unmarried. Therefore, it may be more strongly argued that the pictures are unlikely to contribute to a debate of public interest.
If Ms Gayet were successful in bringing a privacy action in the UK, the damages would likely be significantly higher than those awarded by French Courts which are typically nominal.
This factual scenario would make for a fascinating judgment if such a case was brought in the UK. One can envisage a parallel universe where the actress is in a relationship with an unmarried Prime Minister and the photographs are published by UK magazines. This would provide some very interesting guidance on the application of privacy law to photographs as well as the nature of the public interest defence.