The right to the image

The jurisprudence protects the right to image based on article 9 of the Civil Code, the first paragraph of which states that “everyone has the right to respect for his private life “. According to a well-established jurisprudence, ” every person has an exclusive right to his or her image and the use made of it, and may oppose its distribution without his or her authorization ” (CA Paris, ch. 1, May 23, 1995).

Enforceable breaches

The requirements for a violation of a person’s image are as follows:

• The person must be identifiable and recognizable on the offending publication.

However, for identification to occur, the person’s face does not have to be visible, as long as another recognizable element attached to the person allows identification, such as a tattoo.

Indeed, the Court of First Instance has, for example, recalled that every person has an exclusive right on his image as well as the use that is made of it, “whose only violation characterizes the urgency, and this regardless of whether the plaintiff’s face is “blurred” or not (…), as long as the rest of his body, attribute of the right to the image, appears”. (TGI Paris, summary order, November 16, 2018).

In the absence of identification, there can be no infringement of the right to the image.

• There must be an absence of consent from the person appearing in the image.

The expression of consent must be
express
,
written
and
sufficiently precise as to the conditions of exploitation of the use (duration, media)
. Ideally, the photographs should be attached, or at least identifiable (e.g. reference to a date of shooting).

For minors, parental consent is required.

It is not possible to retract consent, however there are remedies in case of abuse of the use of the image (as an exception, we can emphasize that on the criminal level, Article 226-1 of the Penal Code punishes any ” 2° By fixing, recording or transmitting, without the consent of the person, the image of a person in a private place. “).

For example, if no time limit is mentioned on the prior authorization, or if the image is edited without this being specified or obvious.

Finally, just because a person has agreed to be photographed does not mean that their image can be used without their permission.

The limits of the owner’s exclusive right

Sometimes it is not possible to object to the use of a person’s image without their permission.

First of all, since a public use is required to constitute an infringement, the use in a restricted circle of people does not constitute an infringement of the image right.

In addition, the use of the image for information purposes may, under certain conditions, be possible. In this case, the use of the image of the person depicted must be for the purposes of current events, a debate of general interest or a historical subject, and the image must be directly related to the event. The right to information cannot be invoked if there is an invasion of privacy or if the image is used for commercial or advertising purposes, for example.

It is often difficult to balance the right to privacy against the right to information. To remedy this difficulty, judges have established criteria.

Thus, according to the Judges, the invasion of privacy must be assessed according to several criteria such as “the contribution of the published information to a debate of general interest, the notoriety of the person concerned, the content and repercussions of the publication on the private life of the interested party and the intrusion that the obtaining of the published information or snapshots required.”(Court of Cassation, Civil, Civil Chamber 1, March 21, 2018, 16-28.741).

As an example, the Court of Cassation has issued a ruling using these criteria. In this case, the magazine Paris Match had published, on its cover page, a photo of two former ministers on a trip, thus reporting their stay in love, a few weeks after their resignation from the government. The Cour de cassation then considered that the article infringed the right to privacy. right to the image of the two former ministers because ” although the joint resignation of E… and B… constituted a subject of general interest, the disputed article was devoted solely to the revelation of their love affair and their private stay in the United States, so that it was not of a nature to fuel the public debate on this subject.” (Court of Cassation, First Civil Chamber, Judgment No. 187 of March 11, 2020, Appeal No. 19-13.716).

Finally, personality rights are not transferable, so the heirs of a deceased person cannot oppose the use of his or her image based on the deceased’s right to the image.

The Court of Cassation has, in particular, very clearly recalled in a decision dated January 31, 2018, “(…) the right to the image, an attribute of the personality, is extinguished upon the death of its holder and is not transmissible to his heirs.” (Cass. Civ. 1ère, January 31, 2018 n°16-23.591).

This is what was judged in a case called ” the case of the Bataclan victim “In this case, the judges refused to prosecute the publisher of a newspaper that had published a photo of a bloodied Bataclan victim, on the grounds that only the deceased could sue the publisher for such a violation. However, there are civil lawsuits that allow the family to obtain damages for injury to the dignity of a deceased person.

Recourse to the courts

What are the recourses in case of unauthorized use of his image?

When a person’s image is infringed, he or she may bring the matter before a civil or criminal court.

Referral to a civil judge will allow the infringement to cease (the images representing the person will cease to be broadcast) and to obtain damages as compensation for the prejudice suffered as a result of the use of the image(s) without authorization.

For example, the first civil chamber of the Court of Cassation ruled that the dissemination of the image of an official of the tax administration conducting a tax audit in a video, without his consent constituted an infringement of the right to image (Cass. Ch. civ 1 15/01/2015).

A criminal action is also possible on the basis of articles 226-1, 226-2 and 226-8 of the Penal Code to engage the criminal responsibility of the author of the publication of an image without authorization, but this way is rarely used by the victims of attacks.

For example, recently in a decision of March 16, 2016, the criminal chamber of the Court of Cassation convicted the former companion of the plaintiff who had disseminated on the Internet photos of her naked and pregnant; on the grounds that consent when taking a photo does not automatically entail consent when disseminating the photo.

Finally, the CNIL allows victims of the use of their image without their consent to file a complaint online on its website. It can impose several types of sanctions: warnings, injunctions or financial penalties.

When his image is used on the Internet, the question has arisen as to whether the hosts could be responsible. However, under the Law for confidence in the digital economy of June 21, 2004, hosts are not responsible for the images stored on their sites if they are not aware of their illicit nature. It is therefore necessary to notify them in accordance with the requirements of the LCEN in order to obtain their intervention and the removal of images from the hosted sites.