Friday, 27 July 2007

The Prince of Monaco has the right to respect for his private life

Cour de cassation, 1re civ., 27 February 2007, n° 06-10.393, Hachette Filipacchi and others v Albert Grimaldi

In 2005, Paris-Match, the French magazine owned by Hachette Filipacchi, published an interview with Mrs Coste, revealing the birth of her baby boy, fathered by Albert Grimaldi, Prince of Monaco. Several photos illustrated the text. The cover of the magazine had the title ‘Albert of Monaco: Alexandre, the secret child, Nicole, his mother, tells their long story’. Prince Albert brought the case before the High Court of First Instance arguing that the publication infringed on his privacy. The Court condemned Hachette Filipacchi, on the grounds of Article 9 of the French Civil Code, to damages and to the publication of the ruling. The Court of Appeal of Versailles confirmed the ruling. Hachette Filipacchi did not accept the ruling, and appealed before the Cour de Cassation (French Supreme Court for civil and criminal matters).

Article 9 of the Civil Code provides that ‘Everyone has the right to respect for his private life.’ These provisions are rather laconic. The judges generally try to strike a balance between the right to privacy and three forms of justifications: the consent of the person concerned, the reporting of current events and the contribution to a debate of public interest (see the commentary of A. Lepage on the ruling of 27 October 2007, Communication Commerce Electronique, n° 7-8 July-August 2007, page 41 and J.-P. Gridel, Protection de la vie privée: rupture ou continuité?, Gazette du Palais, 18-19 May 2007, p. 4 et seq). For example, a preceding case (Cour de Cassation 1re civ, 24 October 2006, n° 04-16.706) ruled that the fact that a mayor and municipal councillors were freemasons could be disclosed, since the mayor had been charged with forgery and favouritism, and that the disclosure came within the context of a judicial debate and was justified by being information for the public on a debate of general interest.

In the present case, the Cour de Cassation, on 27 February 2007, considered that the reporting of current events could not prevail over the prince’s right to respect for his privacy, and that there was no public debate on the subject.

Before the Supreme Court, Hachette Filipacchi argued that the Court of Appeal of Versailles had misapplied Articles 9 of the Civil Code and 10 of the European Convention on Human Rights, since the disclosure of Prince Albert’s paternity, Prince Albert being a reigning sovereign since April 2005, was relevant to a debate on public affairs, because of the functions of the person concerned, and was justified by the right to information of the readership.

The Supreme Court dismissed Hachette Filipacchi’s arguments, stating that any person has the right to respect for his private life, whatever his station, birth or functions may be. Moreover, the Supreme Court notes that, at the time the article was published, the public had no knowledge of the existence or filiation of the child, and that the constitution of the Principality excludes any possibility of the child acceding to the throne, since he was born out of marriage wedlock, while Hachette Filipacchi did not even argue that any public debates were being held on the subject in Monaco or France. The Court finally notes that the article digressed, writing about the relationship between Mme Coste and Prince Albert, his reaction to the announcement of the pregnancy and his subsequent behaviour towards the child.

The Supreme Court therefore approved the Court of Appeal for concluding that the absence of any current event or any debate of general interest for which the legitimate information of the public would have justified the disclosure of information at the time of the publication of the litigious article, and dismissed the appeal of Hachette Filipacchi against the ruling of the Court of Appeal.

The Supreme Court carefully verified whether the right of the public to information justified the disclosure of information on the prince’s privacy. In another case, the Supreme Court ruled that a birth in a princely family (actually the same family) meets the necessity of information and may be disclosed to the public where the birth is likely to have political or dynastical implications (Cour de Cassation 2me civ, 24 October 2006, n° 02-11.122).


Wednesday, 18 July 2007

The Tony Parker and Eva Longoria Wedding : a non happening (?)

A few days ago we all saw the “so no pictures” of the Parisian wedding of Tony Parker and Eva Longoria on television.

The crowds of curious onlookers attracted by the media hype hovered around the “non event” that has been the most publicized invisible celebrity event of the year.

Buses with heavily tinted windows and large black umbrellas made to resemble protective screens stopped any chance of a stolen glance.

And what of the metal barriers that pushed the public as far away as possible, turning a public area into a totally private place?

Was it to protect the couple’s privacy? No way!!!

It’s business, business and business as ever! And with total disregard for tradition and the laws of marriage, which is legally a public event.

And remember, these stars live off the public. They owe their fame and fortune to their devoted followers. But the public is naïve, faithful and devoid of any ulterior motive. They wait for hours in the hope of catching a glimpse. Dream on Desperate Followers.

But no, this public will get nothing. And if they want to see anything at all they will have to buy the magazine that paid such a high price for an exclusive of the wedding photos. Pictures that are said to be soaring out of sight on the internet auction.

Yes, it is actually nil/null, literally as well as figuratively.

What a nil event to deprive the Faithful of attending the traditional photo taking session that customarily takes place outside the town hall and then the church. Nil, hiding a much more serious null event – the wedding itself.

The act of being married in “huis clos” simply annuls the marriage.

Indeed, Article 165 of the French Civil Code states that a wedding must be held in public – ie in a hall with open doors allowing the public to enter freely. But what happens when the town hall is so inaccessible, that entrance is impossible irrespective of whether the doors are closed or open?

jllavoc (aka Jean-Louis LANGLOIS)

DailyMotion: a ‘hosting provider’ liable for copyright infringement

The President of the High Court of First Instance of Paris, in a summary order dated 22 June 2007, held that despite the fact that MySpace is a hosting provider, it acts as a publisher and may therefore be held liable for copyright infringement on its site (see our post here below: ‘The Buttock’ sues MySpace for copyright infringement’, also at

In a proceeding on the merits (as opposed to the summary procedure before the President of the Court), the High Court of First Instance of Paris, in a judgment dated 13 July 2007 (, ruled that DailyMotion is not a publisher. In this case, the producers of the film ‘Joyeux Noel’ sued DailyMotion on the grounds of copyright infringement for the presence of the film on the site.

DailyMotion argued, on the grounds of the French Act of 21 June 2004 on Confidence in the Digital Environment, that it is a mere hosting provider and as such was under no obligation to actively seek facts or circumstances indicating illegal activity, while the plaintiffs argued that DailyMotion is a publisher, and should therefore be held liable for copyright infringement on its site.

The judges held that DailyMotion is a hosting provider, and not a publisher, but that it must be held liable for copyright infringement, as it was aware of the presence of illegal contents on its site. The Court ruled that DailyMotion is not a publisher because the users themselves provide the contents, despite the fact that DailyMotion commercialises advertisements on the site (the President of the same Court, in its order dated 22 June 2007, held that because of the advertisements on the site, MySpace acted as a publisher).

Moreover, the Court held that the provisions of Article 6-I-2 of the French Act on Confidence in the Digital Environment do not provide for a general exemption for providers, but only for a limitation of the liability of the providers where the providers are not “aware” of the illegal nature of the activity or content.

The provisions of Article 6-I-2 come from the implementation of the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services (Directive on electronic commerce), which provides, in Article 14, that “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”

It is interesting to note that the US Digital Millenium Copyright Act (DMCA) provides that a service provider shall not be held liable if the provider: ‘does not have actual knowledge that the material or an activity using the material on the system or network is infringing; in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material’ (§ 512(c) of the US Copyright Act).

The Parisian judges held that DailyMotion was aware that illegal videos were put on line on its site, and that it must therefore be held liable for the acts of copyright infringement, since it deliberately furnished the users with the means to commit the acts of infringement. The solution could be the same before an American court, in particular in application of the provisions of § 512 of the Copyright Act.

The Court also noted that DailyMotion did not act to disable access to the litigious film, whether after receiving a formal letter from the plaintiffs (who sent the letter to DailyMotion before bringing the case to court) or after the damage occurred, whereas it is of the provider’s responsibility to carry out a prior control. The judges specified that even though the law does not provide for a general obligation for the providers to actively seek facts or circumstances indicating illegal activities, this limitation is not applicable where the said activities are created or induced by the provider himself.

DailyMotion was condemned by the Court not only for the violation of the plaintiffs’ economic rights (‘droits patrimoniaux’), but also for the violation of the plaintiff’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the film only allow a very poor quality visualisation, which is not suited to a feature film, and since the unity of the film was undermined by the fact that it was split into two parts.


Wednesday, 11 July 2007

Civil Procedure Used for Enforcement of EC Competition Law

Civil Procedure Used for Enforcement of EC Competition Law by the English, French and German Courts

KLUWER International Competition Law (Hardcover)

by Brad Spitz, George Cumming and Ruth Janal


European competition law has been increasingly subject to two complementary forces: decentralisation and harmonisation. In the course of this process, certain procedural elements have come to the fore as constituting impediments to the enforcement of Articles 81 and 82 EC in terms of actions for damages. While ECJ case law appears to establish a type of 'minimum' enforcement in this area, the far-reaching analysis presented in this book shows how an 'adequate' or even 'optimal' degree of enforcement may be achieved by effecting a choice between competing procedural solutions. Focusing on rules of civil procedure used by the ordinary courts of England, France, and Germany, the authors show how basic principles - such as protection of the rights of the defence, legal certainty, and proper conduct of the procedure - facilitate the application of the doctrines of effectiveness and non-discrimination to those elements of the national procedure which impede in some manner the effective enforcement of Articles 81 and 82 EC. Their in-depth analysis ranges over procedural aspects of such elements as rules of evidence, costs, expert testimony, injunctions, burden of proof, limitations, and forms of compensation, ultimately leading them to propose clear modifications of certain rules of national procedure that go a long way toward ensuring adequately effective enforcement. This remarkable book breaks through an impasse in European competition law. It serves to steady the balance which has been sought between the different actors of the procedure in each of the national systems studied. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide by reason of its clear presentation, its clarification of doctrine, and its analysis of national and European case law.


‘The Buttock’ sues MySpace for copyright infringement

On June 22, 2007, the President of the High Court of First Instance of Paris, in a summary order, held that MySpace acts as a publisher, and condemned the service for copyright infringement (Tribunal de grande instance de Paris, Ordonnance de référé, 22 juin 2007,

Jean-Yves L., a French comedian known by the name of “Lafesse” (literally “the buttock”!), and famous for the (very funny) filmed sketches he directs and acts in, sued MySpace for having reproduced and broadcast his works without any authorisation.

The Court first notes that the terms and conditions of MySpace define the website as “a social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends”.

The Court considered that if MySpace acts as a hosting provider, it also acts as a publisher, since it puts presentation structures at the disposal of the people who are hosted, and makes a profit by broadcasting advertisements each time a video is viewed. The Court therefore concluded that MySpace acts as a publisher and is liable for copyright infringement.

The Court condemned MySpace by application of Article L.122-4 of the French Intellectual Property Code that provides that “Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever”.

The Court ordered the deletion of the litigious page, with a 1.000 euros daily fine for delay in performance.

The Court also condemned MySpace to the payment of 50.000 euros for the commercial prejudice suffered, 3.000 euros for the infringement of the plaintiff’s moral rights, and 5.000 euros for the violation of his personal rights (use of his name and likeness). The Court allocated these amounts on a provisional basis, as this is a summary judgment for urgent matters (theoretically, the plaintiff then takes action on the merits of the case before a court that will render a final judgement). MySpace was also ordered to pay of 3.000 euros to cover the plaintiff’s legal fees.

It seems that the “Bottock”, who is also suing other sites such as Youtube and Dailymotion (, is becoming a pain in the a… for these hosting sites.


Tuesday, 10 July 2007

Whistleblowing in France

Read our article on whistleblowing "Whistleblowing : quand un rapport propose d’élargir le domaine
de l’alerte professionnelle, la CNIL siffle le hors-jeu".



Monday, 9 July 2007

Le mariage de Tony Parker et de Eva Longoria : un événement nul (?)

On a tous pu voir à la télévision, il y a quelques jours, les « non images » du mariage parisien de Tony Parker / Eva Longoria.

La foule des badauds, attirés là par le battage des médias autour de ce « non événement » le plus people mais le moins visible et le moins public de l’année.

Les autocars aux vitres fumées, les « borgnioles » opacifiantes déployées, les larges parapluies noirs en guise d’écran protecteur pour toute possibilité de prises de vue comme de tous regards indiscrets, avaient de quoi choquer.

Et que dire des barrières métalliques repoussant le plus loin possible le public, privatisant ainsi tout un espace habituellement public.

La protection de la vie privée ? Certainement pas !!!

Du commerce, du commerce, rien que du commerce ! Tout ceci au mépris des traditions et de la loi qui font des cérémonies du mariage, des choses publiques.

Il ne faut pas oublier que ces « peoples » vivent du public. Que c’est le public qui fait leurs notoriétés et leurs fortunes. Précisément ce public naïf, mais fidèle et désintéressé, qui se presse des heures durant par espoir d’une vision furtive.

Mais non, ce public n’aura droit à rien en retour. Et s’il veut voir quoi que ce soit, qu’il aille donc acheter le magazine qui s’est réservé au prix fort l’exclusivité des clichés. Clichés dont on dit aujourd’hui sur internet que les enchères montent !

Alors oui ! la nullité est là et bien là, au propre comme au figuré.

Nullité de l’événement pour priver les « afficionados » d’assister à la traditionnelle photo de sortie de la mairie puis de l’église, puisque mariage religieux il y a eu. Nullité qui pourrait bien en masquer une autre, plus conséquente, celle éventuelle du mariage lui-même.

Car en écartant par principe le public de la célébration à la mairie, en tenant pour privé un événement que la loi prévoit être public, les époux Parker, par crainte qu’on leur vole un peu de leur image, sont tombés de Charybde et Scylla.

La manière « nulle » qu’ils ont eu de gérer leur image, n’a d’égale que la nullité plus conséquente qu’ils pourraient encourir à raison du « huis clos » dans lequel ils ont tenu leur mariage: celle tout simplement de son annulation.

En effet par application de l’article 165 du code civil, la célébration du mariage doit se dérouler publiquement, c’est-à-dire dans une salle dont les portes doivent être tenues ouvertes et le public admis librement. Mais qu'en est-il lorsque la porte de la mairie est si inaccessible, qu'en toute hypothèse, ouverte ou fermée, on ne peut y accéder?

jllavoc (aka Jean-Louis LANGLOIS)

Thursday, 5 July 2007

The Olympic games infringement case, and the winner is ... Paris

On 14 March 2007, the High Court of First Instance of Paris (‘Tribunal de Grande Instance’) rendered a judgement (1) condemning a Parisian, Mr Gilbert L., for registering, in March and July 2005, the trade marks “Paris 2016”, “Paris 2020”, “Paris 2024” and “Paris 2028”, and the domain names “”, “”, “”, “”, etc…

London stealing the chance to organise the Olympic games of 2012 from Paris (“Paris 2012”) in 2005, was bad enough; this second form of theft could not be tolerated. Paris and the Comité national olympic et sportif français (“CNOSF”, the French National Olympic and Sport Comity), a French association which represents the Olympic Movement in France, took action against Mr Gilbert L. at the end of 2005, claiming the infringement of CNOSF’s trade mark “Paris 2012’”.

In its judgement, the Paris Court first explains that it is customary for cities candidate for the Olympic games to authorise the use of their names, followed by the year of the relevant games. In January 2003, the CNOSF indeed applied for the registration of the French trade mark “Paris 2012” for the products and services in the international classes 1 to 45.

The Court annulled the trade marks registered by Mr Gilbert L., on the grounds of Article L.712-6 of the French Intellectual Property Code (IPC) which provides that “Where registration has been applied for, either fraudulently with respect to the rights of another person or in violation of a statutory or contractual obligation, any person who believes he has a right to the mark may claim ownership by legal proceedings”. The Court took into consideration the fact that the press had published numerous articles over the years on the Olympic games in Paris, designating the event as “Paris 2012”. The court also highlighted that it is well known that the games are in part financed by the licensing of trade marks to companies exploiting all types of products.

Following the same reasoning, the Court ruled that the registration of the domain names was fraudulent.

The action was also based on the infringement of the trademark “Paris 2012”. As the signs at stake were not identical (“Paris 2012” / “Paris 2016”, “Paris 2020”, “Paris 2024”, “Paris 2028”), the Court examined the infringement in the light of Article L.713-3 b IPC, that provides that “shall be prohibited, unless authorized by the owner, if there is a likelihood of confusion in the mind of the public, the imitation of a mark and the use of an imitated mark for goods or services that are identical or similar to those designated in the registration”. The provisions of Article L.713-3 b IPC are very close to those of Section 10(2)(a) of the UK Trade Marks Act 1994 (2). The Court found that the signs had visual and phonetic similarities, and that they were conceptually close, since all of them evoked the organisation of the summer Olympic games in Paris, and were based on the use of the year in which these sports events would be organised.

For the same reasons, the Court ruled that the registration of the litigious domain names also constituted acts of infringement by imitation.

The Court finally held that the registration and use of the term “Paris” undermined the rights of the City of Paris to its name, image and repute. Article L.711-4 h IPC indeed provides that “Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority”.

As regards the sanctions, the Courts condemned Mr Gilbert L. to the payment of damages to the CNOSF: 5.000 euros for the fraudulent registration, and 5.000 euros for the acts of infringement. As the litigious trade marks had hardly been exploited, the Court condemned the out of line Parisian to the payment of a “symbolic euro” to the City of Paris.

In a ruling dated 27 October 2004, the Court of Appeal of Paris (3) had already rendered a judgement relating to the registration of the trade mark “Paris 2000” and of the domain name “”. The Court held that the person who registered and used the domain name “” had committed acts of unfair competition (parasitism) (4), by creating a website with no connection to Paris in general, and to the City of Paris in particular.

(1) Court of High Instance of Paris, 14 mars 2007, 4e ch.,
(2) “A person infringes a registered trade mark if he uses in the course of trade a sign where because the sign is similar to the trade mark and is used in relation to goods or services identical or similar to those for which the trade mark is registered, there exists a likelihood of confusion in the part of the public, which includes the likelihood of association with the trade mark”.
(3) Court of Appeal of Paris, 4e ch., 27 octobre 2004,
(4) French unfair competition law doctrine is close to the UK doctrine of passing off.