Thursday, 30 August 2007

The extent of the authorisation given for the use of one’s image

Cour de cassation, 1st civil chamber, 14 June 2007, n° 06-13.601

Two children suffering from a serious neuromuscular disease, appeared in a French television programme called “Téléthon”, with the authorisation of their legal representative. The aim of the programme was to enable children to reveal their suffering in order to increase public awareness and raise funds for medical research. During the television programme a photo was taken of the two children in their wheelchairs and reproduced in a school book on sciences, with the following commentary: “Each year a television programme, Téléthon, gathers children suffering from hereditary diseases”.

The legal representative took action against the photo agency and the publisher of the book on the basis of the violation of their right to privacy and image. The Court of Appeal of Nîmes dismissed the action, ruling that the voluntary participation of sick persons in the television programme implies their acceptance to serve the cause and to have their image distributed as widely as possible, and that the litigious photo was not taken out of its original context. Furthermore, the Court considered that the photo did not degrade the children nor debase their personality. Finally, the Court noted that the publication of the photo in the book followed the same aim as the one that was initially intended by the children, i.e. information on the existence of such diseases.

The Cour de Cassation (French Supreme Court for civil and criminal matters) reversed and annulled the judgement of the Court of Appeal on the grounds of Article 9 of the Civil Code (‘Everyone has the right to respect for his private life.’) and Article 8-1 of the European Convention on Human Rights (‘Everyone has the right to respect for his private and family life, his home and his correspondence.’). The Supreme Court ruled that the litigious photo was used in a different context, and therefore required a specific authorisation from the persons concerned. Moreover, the Supreme Court considered that even though a study of public interest exempts the user from having to obtain such an authorisation, it does not necessarily imply that the persons concerned may be identified.

Under French law, every person has an exclusive right to his image. The courts interpret the authorisation given for the reproduction of one’s picture very strictly. The image of a person may not be reproduced in a different context from the one that was authorised, or for a different aim.

In the present case, the photo was used in a different context: a school book, whereas the authorisation was given for a television programme to be broadcast live one evening for the raising of funds for research. However, the aim of the book seems to be very close to the one followed by the television programme (see the commentary of L. Costes (in Lamy, Journal du Droit – Actualités, 2007).