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The balance struck between privacy interests and freedom of
expression in English and French law
For many years, French privacy law has been diametrically opposed to its
common law counterpart. This is not only because English law has never
expressly recognised a general right to privacy while French judges have been
building on the right codified in article 91 of the Code Civilforforty years, but also
because the recourse by English judges to pre-existing causes of action to
determine clear-cut infringement-of-privacy cases has proved to be an
illustration of how different the incremental judicial approach to the law has
been from the French civilian legal system. However, recent developments in the
law of privacy merit closer examination.
Prior to the application in domestic courts of the right to private life (article 8)
and the right to freedom of expression (article 10) provided for in the European
Convention on Human Rights (ECHR), loopholes and conceptual inconsistencies
were apparent in both legal systems. In England, the courts noted the practical
difficulties resulting from not having a cause of action specifically designed to
give relief to claimants whose privacy had been intruded upon (e.g. in the Kaye v
Robertson case2). In France, on the other hand, the overprotective nature of the
right to privacy and the right to ones own image, which also comes under the
article 9 of the Code Civil, led the European Court of Human Rights (ECtHR) to
condemn the manner in which French judges, in a series of cases, examined
1Everyone has a right to respect for his or her private life.2[1991] F.S.R. 62 at (66), at (70), at (71).
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defendants claims to freedom of expression when private information was at
issue.
The overall effect of these judgments has been to encourage the courts of both
countries to give equal weight to article 8 and article 10 of the Convention when
disputes as to whether the disclosure ofprima facie private information may be
justified by a countervailing public interest come to court. The study of this
balancing exercise conducted by English and French judges in recent cases is
crucial in determining the extent to which privacy law in the two countries may
be said to be converging or, at least, likely to converge in the future.
In order to analyse the manner in which French and English courts strike the
balance between privacy interests and claims under article 10 of the ECHR, we
shall firstly study the incorporation of the Convention rights in both England,
which has a dualist system of international law, and France. After discussing the
extent to which private individuals may rely on those rights in domestic courts,
we shall lay down the judicial principles used to conduct the balancing exercise
in both countries and single out their similarities and differences. Finally, we
shall focus on the criteria used by French and English judges to give prevalence
to disclosure of information when the right under article 8 of the Convention or
article 9 of the Code Civilis engaged and examine the extent to which they have
the effect of bringing together both legal systems and aligning them with the
jurisprudence derived from the Strasbourg court.
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France incorporated the ECHR into domestic law by means of its ratification in
1974. Since then, article 8 of the Convention, granting protection to individuals
right to private life, has been directly applicable in French law by virtue of article
55 of the 1958 French Constitution which, illustrating the monist nature of
French constitutional law, allows ratified international instruments to take effect
immediately within the law of the country.
The horizontal effect of the Convention right to private life, which triggered a
major debate in English law and remained a hotly disputed question3 for
several years after the enactment of the Human Rights Act 1998 (HRA), was
accepted by the courts with fewer difficulties in France, where a doctrinal
movement emerged in the 1960s in favour of enabling private individuals to rely
on Convention rights as against other private parties4.
This doctrinal idea of the Convention granting enforceable rights to individuals
materialised in the courts through two cases which recognised the primacy of
international law when conflicts between treaties and subsequent acts of
Parliament arose.
The first came in the highest civil and criminal court, the Cour de Cassation,
which, following the Constitutional Courts reasoning in an earlier case5
,
delegated the power to disapply national legislation in favour of conflicting
international undertakings to private law judges6. Fifteen years later, the highest
administrative court, after resisting the principle out of concern that it would
3Jonathan Morgan, Privacy, Confidence and Horizontal Effect: Hello Trouble, 2003 CLJ 444,452-457.4 M-A. EISSEN, La Convention et les devoirs de lindividu, dans la protection internationale des
droits de lhomme dans le cadre Europen, 1961, Dalloz, p. 167. D. Spielmann.5 C.E. 15 January 1975 n 74-54.6 Ch. Mixte 24 May 1975 n73-13556.
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erode parliamentary sovereignty7, finally accepted the idea and extended its
scope to cover French administrative law8.
One of the consequences of these cases is the wholehearted incorporation of the
ECHR into French administrative and private law, with no later acts of
Parliament being capable of circumventing its application. Moreover, it allowed
ordinary courts to put aside national legislation that conflicted with previous
international norms giving article 55 of the Constitution a wider effect and
making the values underlying the Convention unrepealable by Parliament.
Although it is widely acknowledged that the Conventions procedural clauses
were drafted in such a way as to make the provisions binding chiefly on public
authorities, French courts have explicitly cited Convention rights in disputes
involving private parties without having recourse to constitutional provisions
justifying its application.
This trend started in the 1990s with a case in which a balancing exercise
between article 10 and article 8 of the Convention was carried out in a dispute
between a prince and a journalist from the Mail9. This horizontal effect was
explained by the fact that, despite the restrictive procedural rules laid down in
the Convention which, prima facie, requires the defendant in a trial before the
ECHR to be a Member State, the national judge is bound to ensure, in private
7French Legal System 2nd edition (2006), Catherine Vernon, Eric Jeanpierre and Chatherine
Elliott, P. 59.8 C.E. 20 October 1989 Arrt NicoloN 108243. Rec. Lebon p. 190.9 Cass. Civ. 1st, 23 October 1990, n. 89-13.163, Bull civ. I, n.222.
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disputes as well as in disputes involving the state, respect of positive law, which,
since 1974, includes the European Convention10.
It may be argued that recognition of the direct effect of article 8 in disputes
between private parties in France only amounted to a minor step forward in the
protection of privacy interests, as the prior case law and the 1970 statute
enshrining article 9 in the Code Civil both created an adequate set of rules
designed to ensure everyones right to respect of his or her private life and of his
or her image. This is reflected in the significantly low number of judgments by
French courts citing article 8 as a basis for their decision. However, the
horizontal effect of the Conventions provisions can be deemed important in the
way that it resulted in French judges being required to assess private life-related
infringements in the light of article 10, thereby enhancing the binding force of
the principle of freedom of expression for which French law had arguably had
more abstract provisions before then. Indeed, although freedom of expression
was provided for in article 19 of the Universal Declaration of Human Rights and
was given constitutional status in article 11 of the Declaration of the Rights of
Man and of the Citizen of 1789, the rules restricting this freedom were
numerous, most of them coming under criminal law and being designed for
specific offences11.
10 Rep. Pr. Civ. Convention Europenne des droits de lhomme et procdure civile, n.106 Porte
pour les particuliers: la question de leffet horizontal ou non de la Convention.
11 E.g.: Professional secret infringement (art. 226-13), Propaganda and publicity for products,objects or methods capable of being used to commit suicide (art. 223-14 Penal Code), Defamation
and Slander (art. 20, Law passed on the July 29th 1881 on press freedom).
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The inability of English judges to enable private litigants to rely directly on the
Conventions provisions in the first cases heard following the entry into force of
the HRA in 200012 shows that the issue of horizontality in English law has been
inherently more complex than the French approach to the question, which has
accepted the direct effect of those provisions in the absence of constitutional law
barriers to it.
The dualist nature of the relationship between English law and international law
and section 6(1) of the HRA, which imposes an express obligation on public
authorities to act compatibly with the Convention, have both played a part in the
conceptually strained judicial development of privacy law at common law.
It is submitted that two distinct judicial trends can be observed when examining
the English position over the last ten years: while the first has incorporated the
underlying values of the articles without enabling the parties to rely on them
directly, the second has demonstrated considerable judicial activism in making
the balance between article 8 and article 10 the very core of the test to be
applied in cases of wrongful publication of private information.
In the years following the enactment of the HRA, English judges struggled to give
a clear answer as to the exact extent to which horizontal effect of article 8 could
be recognised in actions between private parties. This initial judicial reluctance
to embrace horizontality wholeheartedly probably stemmed from the fear that
recognising such an effect would have automatically led to the creation of a new
12 See Douglas v Hello! Ltd [2001] E.M.L.R. 9 at (129); Venables v News Group Newspapers Ltd and
Others [2001] 2 W.L.R. 1038 at (27).
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cause of action specifically designed to protect privacy13 which the judiciary had
been carefully avoiding for many years14.
Murray Hunt noted the merits of section 6(1) of the HRA and its effect of
imposing a duty on the courts to act compatibly with the Convention, i.e. to give
due regard to the Conventions articles even in private disputes15. Hunt adhered
to the approach advocating a strong indirect horizontal effect, meaning a general
obligation on judiciary to apply domestic law in a manner consistent with the
values embodied in the Convention16. It is submitted that this effect was
apparent in the first part of the decade in which the act came into force and was
evidenced in Campbell v MGN17in which Baroness Hale stated that:
The 1998 Act does not create any new cause of action between private persons.
But if there is a cause of action applicable, the court as a public authority must
act compatibly with both parties Convention rights.
The Court ofAppeal had an opportunity to clarify the common laws position in
the case ofA v B plc18. In this decision concerning a kiss and tell story involving
a footballer, guidelines were issued to facilitate the task of protecting privacy
through breach of confidence actions. The extent to which the Conventions
articles could be said to apply horizontally was not discussed adequately, Lord
Woolf simply stating that section 6 had the effect of absorbing the articles into
13Sir William Wade Q.C., the United Kingdoms Bill of Rights, Constitutional Reform in the
United Kingdoms Practice and Principles (Hart Publishing, Oxford, 1998) p. 63.14 See Robertson v Kaye[1991] F.S.R. 62 per Lord Bingham at (70) and per Leggatt L.J. at (71);
Malone v Metropolitan Police Comr [1979] Ch 344 per Robert Megarry V-C at (372-281);
Wainwright v Home Office [2003] UKHL 53 per Lord Hoffman at 30. Theakston v MGN Limited
[2002] EWHC 137per Ouseley J at (27).15M. Hunt The Horizontal Effect of the Human Rights Act (1998) P.L.423 at pp. 439-440.16Thomas D.C. Bennett Horizontalitys New Horizons re examining horizontal effect: privacy,
defamation and the HRA part 1 (2010) Ent. L.R. 2010, 21(4), 145-14917(2004) 2 AC 457 at (132).18 [2002] EWCA Civ 337, [2003] Q.B. 195.
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the traditional breach of confidence action19. Phillipson20 rightly argued that the
complex interpretative issues relating to horizontal effect were left untouched.
He sought to attribute this to the cases reluctance to tackle some elements of the
Convention value system.
It is obvious from the decisions given in the first part of the decade that article 8
and article 10 of the Convention were incorporated into the broad action of
breach of confidence with a substantial pressure being put on judges to consider
the private parties interests in the light of these provisions and their respective
restrictions. However, the concept of absorption put forward by Lord Woolf in
his authoritative guidelines seemed to be nothing more than a formula used to
avoid having to determine the exact extent to which the articles could be relied
upon in disputes between private individuals. Fears that an established direct
horizontal effect might represent an attack on the logic of extending breach of
confidence to cover privacy questions and a general resistance to embracing the
concept of private life as interpreted by Strasbourg may provide explanations for
the lack of judicial decisiveness on the matter.
The merit of the strong but indirect horizontal effect recognized by the English
courts lies in the fact that it granted common law judges room for manoeuvre in
reshaping the domestic cause of action used to protect privacy rights in the light
of the countrys conception of a free press. Indeed, civilian legal systems have
throughout their history showed a greater willingness to give effect to privacy
rights and, as the ECHR chose to set high standards in this area of the law, the
19 Ibid at (4).20 Phillipson, G. 2003. 'Judical Reasoning in Breach of Confidence Cases under the Human Rights
Act: not taking privacy seriously?'. European Human Rights Law Review(Special Issue): 54-72.
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partial denial of full horizontal effect demonstrated by English judges shortly
after the HRAs enactment may have had the beneficial consequence of
integrating strong article 8 and article 10 considerations into the breach of
confidence action, so as to fill the gap left by the absence of a tort of privacy
while enabling the judiciary to maintain their incremental development of the
common law and to prevent reliance on article 8 from having a very sudden and
adverse impact on numerous national newspapers and magazines.
Although conceptually the horizontality issue has proved a somewhat tenuous
issue in the past, recent cases have been giving additional weight to article 8 and
article 10, with the effect that they now represent the starting point of any
balancing exercise conducted by English courts. It is submitted that this marks a
major step forward in the development of privacy considerations in English law
and a substantial change in the way English judges rely on the ECHR in disputes
between private parties. The overall effect of this evolution has been a growing
structural similarity with the manner in which the balance between article 8 and
article 10 is struck in French jurisdictions.
The courts initial stance of favouring a strong indirect horizontal effect of the
Conventions articles has developed into a method giving a full direct effect to the
two provisions.
This is reflected in Buxton L.J.s judgment in McKennitt v Ash21, handed down six
years after the entry into force of the HRA. The Court of Appeal judge
21[2006] EWCA Civ 1714; [2008] Q.B. 73 (CA (Civ Div)).
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acknowledged the fact that the Act primarily imposes negative duties on the
state and public bodies. However, he singled out article 8, which had always
been seen as different22, and confirmed the corresponding positive obligations
that this article engenders. The crucial elements of his reasoning which
represents a significant departure from the judgments adhering to the indirect
horizontal effect discussed above, are the assertions that English judges have to
refer to the Strasbourg jurisprudence when considering an action under breach
of confidence and that article 8 and article 10 are not peripheral to the central
test to be applied but are the very content of the domestic tort that the English
court has to enforce23.
It is important not to underestimate the radical change in judicial reasoning that
this case represents. It is submitted that the shift from a strong indirect
horizontal effect to a direct horizontal effect of article 8 and article 10 originates
in this decision.
As Nicole Morehams argued, what Buxton L.J. effectively did in McKennittwas to
make common law rules secondary to the privacy action, useful only to the
extent that they provide some guidance as to how to apply the two articles24.
It is important to note that while it remains the case that the common law does
not recognize and at no point created, a general tort of privacy, the overall result
of article 8 and article 10 being given horizontal direct effect is that it greatly
reinforces private parties rights to claim for protection against intrusions of
22 Ibid at (9).
23 Ibid at (11).24 Nicole Moreham, "Privacy and Horizontality: Relegating the Common Law [2007] 123 Law
Quarterly Reviewpp 37-42.
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privacy under the breach of confidence cause of action. This is illustrated by the
test applied by the Buxton L.J., which may be said to build on the roots of the
new methodology25 as laid down in Campbell. This judicial technique was
refined in later cases and now provides the most authoritative framework for
analyzing privacy cases under English law. The most recent and comprehensive
version of this test can be found in Eady Js judgment in the Mosley v News Group
Newspapers Ltd26case.
Before proceeding to any sort of balancing exercise, it must be shown that the
claimant had a reasonable expectation of privacy with regards to the information
which he seeks to protect. This basic requirement, originating from Campbell27in
which it was described as the touchstone of private life28 now forms part of the
question as to whether article 8 is engaged or not in respect to the information
claimed to be private29. The Court of Appeal in Murray listed the factors to be
taken into account when assessing the existence of such an expectation30.
Unlike in the American legal system where Freedom of expression takes
precedence over the right of privacy by virtue of the first amendment to the
Constitution, the whole balancing exercise in English31
and French law32
is
25S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593at (23).26 [2008] E.M.L.R. 20.27Ibid. Per Lady Hale at (134); Per Lord Hope at (92): A reasonable person or ordinary
sensibilities would feel if he or she was placed in the same position as the claimant and face with
the same publicity.28 Ibid. Per Lord Nicholls at (21).29Murray v Express Newspaper Plc [2008] EWCA Civ 446 at (30) McKennitt v Ash [2006] EWCA
Civ 1714 at (11).
30[2008] EWCA Civ 446 at (26).31S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at
(17)
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conducted on the basis of the premise that both articles are of equal importance.
If article 8 is engaged and claims under article 10 put forward, the new
methodology then consists in confronting both articles on the basis of an
intense focus on the facts under scrutiny33. More specifically, the intense
focus in Mosley can be seen as an examination of the existence of any of the
limiting principles derived from Lord Goffs judgment in the Spycatcher
case34. These are: the principle of confidentiality preventing the reasonable
expectation of privacy from remaining effective where information has gone into
the public domain; the principle according to which information may only be
protected if it is of some import; and the public interest principle which allows
disclosure in circumstances where the wider benefit of the information being
disclosed outweighs individual privacy rights.
Once the competing interests are weighted against each other and the reasons
given for interfering with or restricting each right35 examined, the last part of
the analysis revolves around the question of proportionality. What Eady J calls
the ultimate balancing test36 drawing upon Sedleys assessment of the strength
of Hello newspapers claim in Douglas (No. 1)37, focuses on whether the
infringement of the claimants right under article 8 is sufficiently justified for the
purpose of serving the public interest, the basis for this exception appearing to
32 J. Ravanas, Libert dexpression et protection des droits de la personnalit, D.2000, Chron.
P.459, n. 9.33 Mosley v News Group Newspapers Ltd [2008] E.M.L.R. 20 at (10).34Attorney General v Observer Ltd [1990] 1 A.C. 109.35S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 A.C. 593 per Lord Steyn at
(14).36 Ibid at (14) .37Douglas v Hello No 1 [2001] 2 WLR 992 at (137).
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be the rights of others38 present in the Convention as a legitimate limit to freed
expression.
On the other side of the Channel, the balance between freedom of information
and the protection of private life is struck on a case-by-case basis, in accordance
with principles derived from the general manner in which conflicts of interests
are resolved39. Gny issued some abstract guidelines as to how exactly to
conduct the context-specific test. According to him, the judges are required to
identify the interests at stake and evaluate their respective strengths, the
objective being to ensure the prevalence of the most important interest on the
basis of a social criterion and then to establish between them the most desirable
balance between them40.
On a theoretical level, some elements of the process by which French judges are
required to resolve conflicting interests may be compared with the first three
stages of the English methodology. The first part of both tests consists in
identifying and characterising the respective rights of the parties. Judges are
then required to weigh up both types of interests in order to determine their
importance in a specific context. They are then invited to take into account
peripheral considerations and limitations surrounding the exercise of such
rights, which are laid down in Convention articles 8(2) and 10(2).
38 Art 10(2) of the ECHR.39 Agathe Lepage, Recueil Dalloz 2003, p. 1539.40 F. Gny, Mthode dinterpretation et sources en droit priv positif, 2nd ed, 1932, t.II, p. 167, n.
178.
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After a more detail examination of the French case law, it will be apparent that
key substantive principles still differ considerably between both judicial
approaches, but that the influence of the Strasbourg jurisprudence on both legal
systems may lead to the convergence of the criteria used to justify the prevalence
of freedom of expression over privacy.
A series of decisions taken by the Cour de Cassation at the beginning of the last
decade demonstrate the substantial change that French law has undergone in
balancing article 9 of the Code Civil with the right to receive information, which
comes under the broader right to freedom of expression. Indeed, under both
limbs of article 9 - the right to ones private life andthe right to ones own image
- the judiciary has strengthened the role played by considerations coming under
article 10 of the Convention.
Christophe Bigot saw the effects of five different rulings from the Cour de
Cassation as constituting a novel judicial trend in cases involving article 9, two of
them effectively introducing a new methodology in disputes relating to the
individuals right to private life41.
The growing influence of article 10 of the Convention in the French judicial
reasoning can be seen in three Droit limagecases brought in 2001. The first
two42, citing article 10 of the Convention alongside article 9 and 16 of the Code
Civil, established that the freedom of expression and the need to inform made the
41 Christophe Bigot Recueil Dalloz 2003, P 1854.42 Cass. 20 February 2001 Bulletin 2001 I N 43 p. 27.
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publication of photographs of persons involved in a newsworthy event
legitimate so long as such publication was not contrary to human dignity. The
criterion used in the first case to determine the potential infringement of human
dignity was whether the publication of the photograph was sensationalist and
whether it was indecent43. In the second case, a policeman who appeared in a
political tract without having given his consent to it was not able to rely on his
right under article 9 on the ground that the event remained topical days after it
occurred, and thus freedom to communicate information overrode his subjective
right to his own image.
In a decision given six months later, the Cour de Cassation, in a case concerning
the legality of publishing photographs of someone involved in criminal
proceedings, reiterated the existence of a limit on the freedom to communicate
information by the concept of human dignity44, protected by article 16 of the
Code Civil.
These three cases lay down the governing principles of the balance to be struck
between the right to ones image, the protection of which was previously
absolute under French law, and the values embodied under article 10 of the
Convention.
Moreover, it is clear that the judicial reasoning behind these decisions requires a
proportionality analysis to be made of the interests at stake, as is shown by the
two cases involving claims under the first limb of article 9 of the Code Civil
covering the right to ones private life. In a judgment handed down on 3rd of April
43 Cass. Civ. 1st20 February N 99-15.970 Bulletin 2001 I N 43 p. 27.44 Cass. Civ. 1st12 July 2001 n 98-21.337 Bulletin 2001 I N 222 p. 139; JCP 2002, II, n.10152,
note Ravanas.
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200245, the Cour de Cassation found that there was a right to information in a
dispute relating to a prima facie intrusion into an individuals private life. The
first civil chamber judges found that the break up of a famous couple could
amount to a public fact, meaning that its disclosure by the press would be
justified under freedom of communication. It was also held that some facts
relating to peoples private lives may be so trivial as not to be covered by the
application of article 9. These findings, which reflect two of Lord Goffs limiting
principles, extend the range of circumstances under which the right to privacy
will gives way to article 10 considerations, and more specifically the right for the
public to be informed (although the provisions is not mentioned in this case,
Bigot46 is convinced that it has the same conceptual logic as the three cases
discussed above) to the point that the arrtwas heralded as marking the start
of a new era of privacy law47.
The cases effect on privacy law was clarified by another ruling of the same
chamber of the Cour de Cassation a year later, which shed some light on the
balancing exercise to be conducted. Indeed, on 23 of April 200348, in a case
involving the disclosure of extra-marital relationship affecting the Princess of
Monaco, the court established that the publication of information on a
newsworthy event capable of overriding the claimants right under article 9 of
the Code Civil could nonetheless be prevented on the basis that it would not
satisfy the objective to inform the public. The criterion of whether a story
conveys information in an appropriate manner, which is used by judges to
45 Cass. Civ 1stApril 2002, Legipresse n.195, oct. 2000, III. 171.46 Christophe Bigot, Avocat au Barreau de Paris, Protection de la vie prive : la Cour de cassation
pose de nouvelles rgles, Recueil Dalloz 2002 p. 3164.47 Ibid.48 Cass. Civ. 1st23 Avril 2003. Bull 2003. I. n.98 p.75.
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establish whether article 10 of the Convention should apply, is of central
importance to balancebetween freedom of expression and ones right to have
his or her private and family life respected49.
When comparing the legal principles which the French and the English legal
systems apply when confronting the values embodied in article 8 and article 10
of the Convention, similarities may be observed in the manner in which
competing interests are balanced against each other.
French and English judges now see privacy and freedom of expression as
requiring the same level of protection, their status being equal in both states.
Both tests will ultimately be conducted on the basis of the notion of
proportionality demonstrating that both countries drew on the manner in which
Strasbourg dealt with both articles to reshape their domestic legal rules to the
issue. However, numerous rules contained in both methodologies still differ
substantially.
For instance, French claimants do not have to prove a reasonable expectation of
privacy for their claim to be balanced with a countervailing interest. A
reasonable expectation of privacy does not constitute an initial trigger 50 to a
successful claim under privacy law in France. French claimants rights not to
49 Ibid.50H. Delany and C. Murphy Towards common principles relating to the protection of privacy
rights? An analysis of recent developments in England and France and before the European Courtof Human Rights (2007) E.H.R.L.R. 5, 568-582.
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have their private life mentioned in the media or not to have their photographs
published in a newspaper, regardless of the place were they taken, is exclusive
and personal so that, save in circumstances where consent is established, an
exception to those rights will be made only if proof is provided of the existence of
a legitimate interest on the part of the public to be informed.
Furthermore, the condition whereby the publication of an image taken in a
public space need not be contrary to human dignity if it is to prevail over ones
droit limageis not present in the English balancing exercise. In French law,
the concepts of human dignity and privacy are related and come under the
broader notion of individual personality. The purpose of linking the two
together within the balancing exercise is to impose limits on freedom of
communication on both sides of the spectrum, meaning that, when an image
satisfies the criterion of relating to a current event, thereby going outside the
scope of article 9 of the Code Civil, its publication will not be allowed to go so far
as to provoke the public by being inherently offensive. The fact that French
judges will see fit to find an infringement on the grounds that a photograph is
sensationalist demonstrates the potentially wide ambit of this limitation.
IfPeck v UK51had been heard in France, the publication of a photograph showing
the applicant in a public place holding with a kitchen knife minutes before his
attempt to commit suicide might have been considered to be sensationalist. It
certainly related to an emotional subject matter (suicide) and was capable of
shocking and disturbing some readers. Nevertheless, French courts seems to
have used the limitation in order to prevent the publication of photographs of a
51(2003) 36 E.H.R.R. 41.
http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E9http://login.westlaw.co.uk.libproxy.ucl.ac.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=6&crumb-action=replace&docguid=I1D55FBD0E42811DA8FC2A0F0355337E97/27/2019 M. Korytko - Dissertation (LLB)
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more extreme nature, as can be seen in the Erignac case52,where an image of the
corpse of an assassinated public figure was found to infringe article 16 of the
Code Civil.
At first glance, it may seem that the reasons for disclosing prima facie private
material in England and France, namely the presence of a public interest and
the fact that material is newsworthy and creates a right for the public to be
told, are similar in nature. However, the French approach to the criteria
requiring the material to be disclosed only to the extent that it is necessary to do
so in the light of the objective of information is clearly more intrusive than its
English counterpart.
Before comparing the circumstances in which both legal systems allow privacy
interests to give way to a wider right for the public to be informed ofprima facie
private information and the impact of these approaches on the media, it is worth
noting that, in France, confronting privacy interests and a broader right for the
public to be informed about a given event is a relatively recent task imposed on
the courts.
Indeed, the traditional view of privacy as an individual prerogative rendered
any infringement unlawful if no consent was given for the disclosure of
information or the publication of a photograph53. Considering that the right to
respect for ones private life was originally seen as a weak penal limitation to
52 Cass. Civ. 1st20 December 2000, D.2001, p. 872, note J-P. Gridel.53Cass. Civ. 5 March 1977, JCP 1977, IV, 925.
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freedom of expression54 when it was first recognised in a law enacted more
than a century ago55, it is surprising that little could be done in the absence of
consent on the part of the claimant before French judges devised a new test at
the beginning of the twenty-first century.
The old approach adopted when the two rights came into conflict certainly had a
detrimental impact on the way the press developed in France. The requirement
of consent on the part of the person whose right to private life was affected
placed a huge burden on editors and newspapers to ensure anyone mentioned in
an article or depicted in a photograph agreed either expressly or implicitly to
publication.
The rights derived from article 9 received a quasi-systematic precedence56
over the rights covered by article 10 of the Convention, which, considering the
role of democracys watchdog57 later attributed to the press by the ECtHR, was
highly inappropriate. Going against this French judicial tendency to give
excessive weight to rights embodied in article 9 of the Code Civil, the ECtHR
handed down a series of judgments 58 encouraging French courts to afford better
protection to the right to receive and impart information in circumstances where
the contested material formed part of the public interest and where journalists
54 J,-P Gridel et A. Lacabarats, Droit la vie prive et libert dexpression: fond du droit et action
en justice, Gaz. Pal., 17-19 nov. 2002, p 4.55 Law of 11 may 1868 (art 11; abrogated by a law enacted in 1881).56 Picard, The Right to Privacy in French Law in Markesinis (ed) Protecting Privacy(Oxford:
OUP, 1999) 49 at 54.
57Von Hannover v Germany(2005) 40 E.H.R.R. 1 at (63).58 See Editions Plon v France (2006) 42 E.H.R.R; Fressoz v France (2001) 31 E.H.R.R; Societe Prisma
Presse v France (2003) App No 71612/01; Radio France v France (2005) 40 E.H.R.R 29.
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acted in good faith and in accordance with the ethics of journalism59.
It may be argued that the Strasbourg case relating to the permanent injunction
imposed by French courts on the publication of a book written by Franois
Mitterrands private doctor had a tremendous impact on the national courts
examination of claims under article 10. According to the French courts, the
books publication breached the duty of medical confidentiality and the former
Presidents right under article 9 of the Code Civil, which his relatives were able to
invoke. The Strasbourg court, in holding that the information contained in the
book raised the public interest issue of the transparency of political life60 while
taking account of the fact that the book was accessible on the internet,
significantly widened the range of circumstances under which article 10 could
trump a public figures right to privacy under French law.
Moreover, the influence of the Strasbourg jurisprudence in French law is
noticeable in the way national courts has gone from solely allowing material
covered by article 9 of the Code Civilto be disclosed when it such material was
newsworthy to adding an alternative criterion that the publication of the
material need to contribute to a debate of general interest.
In 2003, Frances highest court entitled judges to prioritise the publication of a
photograph over the right to respect for ones private life in cases where the
disclosure was justified by the involvement of the photographed person in a
59Fressoz v France (2001) 31 E.H.R.R at (54).60Editions Plon v France (2006) 42 E.H.R.R at (44).
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newsworthy event which should legitimately be made known to the public61.
The decisive factor that courts will take into account in disclosing private
information or publishing a photograph is the newsworthiness62 of the story in
which the claimant is involved in.
Moreover, the form in which the story is revealed will be relevant to the
balancing exercise. Indeed, once the newsworthiness of the published story is
established, another requirement imposed on the press is that they must ensure
that the photograph or the articles content satisfies the objective of informing
the public and does not go any further63. It can be argued that this approach is
intruding upon press freedom and the leeway that should be granted to
journalists in writing their articles.
This argument was reflected in Campbell v MGN, in which Lord Hoffmann saw
the detrimental effects of allowing judges to evaluate the underlying tone of
articles in order to determine whether the right of the public to receive
information exists in a specific context. He stated that it would be inconsistent
with the approach which has been taken by the courts in a number of recent
landmark cases for a newspaper to be held strictly liable for exceeding what a
judge considers to have been necessary64. Lord Nicholls and Lady Hale echoed
this concern about the judiciary interfering with the media by focusing on the
article rather than the interests at stake. The first suggested that a judicial
examination as to the form and content of a particular newspaper article would
61 Cass. 24 April 2003, Bull Civ II, no. 114.
62Evnementdactualit.63 Cass. Civ 1st23 April 2003, Bull 2003, I, no. 98.64 (2004) 2 AC 457at (62).
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not be needed when determining the existence of a public interest65, while the
second flatly rejected the idea that whether or not the article was sympathetic
had any relevance66.
While French judges will determine whether an article infringes the right to
private life by looking at whether the article and the headlines surrounding it are
written in such a way as to convey information relating to the newsworthy
event in an appropriate manner, English judges will assess the existence of a
public interest and, once it is established, give leeway to journalists to report it
in the manner they see fit67.
These issues are part of an extremely sensitive debate about the extent to which
the judiciary can interact with the press. Judges ability to control the content of
an article under the pretence that it does not convey information correctly or
does not appropriately portray the person whose right to private life has been
infringed seems to extend the judiciarys influence on the press to an excessive
extent. The unfairness of ordering newspapers to pay damages to celebrities and
other public figures merely on the ground that the article did not cast a
favourable light on the person affected by the privacy infringement, or that it
was notsufficiently sensitive to someones personal problems68, is obvious. What
seems to be targeted by French judges when assessing whether the article
distorts the objectif dinformation is speculation by journalists about the
persons feelings and behaviour before, during or after the newsworthy event. It
65 Ibid. at (59).66 Ibid. at (156).67Ibid. Per Lord Hoffman affirming the Court of Appeals reasoning at (65).
68 The duty to inform the public was distorted by an article stating that the Princess of Monacowas humiliatedafter the revelation that her husband was having an affair: Cass. Civ 1 st23 April
2003, Bull 2003, I, no. 98.
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may be argued that, even in cases where prima facie private facts are revealed, it
is the journalists duty to portray the story as observed through his or her own
eyes, giving his or her interpretation of the various elements of the story. In
cases where the elements of the stories are proven to be false, the tort of
defamation69 will provide a sufficient safeguard against untrue statements
affecting the honour or reputation of the person concerned. On the other hand, if
the judicial examination of the information contained in the article were to be
conducted on the basis of a more objective and specific criterion, it could be
beneficial for the judges to be able to prevent the publication of newspaper
articles which, while imparting newsworthy information, clearly deviate from
the real story to boost their sales, resulting in the readers being confused about
the true facts of a story which is of public importance.
French judges fears that the balancing of privacy rights and the right to
information may result in the press becoming increasingly sensationalist have
engendered a restrictive judicial evaluation of the substance of press articles.
That evaluation in question has been heavily criticized for being inherently
subjective, leaving national judges with broad discretionary powers in
determining whether the information provided is necessary in order to satisfy
the broad objective of informing the public. This, according to Christophe Bigot70,
will greatly affect legal certainty, as judges are entitled to base their decision on
moral criteria. Moreover, he points out, as Lord Hoffman did in Campbell, that
such an approach would result in the judiciary trespassing into the area occupied
69 Article 29 of the law on freedom of the press 29 July 1881.70 Christophe Bigot, Avocat au Barreau de Paris, Recueil Dalloz 2003, P 1854.
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by newspaper editors, while providing it with tools which are not judicial in
nature.
Although the merits of judicial scrutiny by French judges of newspaper articles
on newsworthy stories remain controversial, one criterion on the basis of which
the disclosure of private information can now be prioritized as against the rights
derived from article 9 was clarified by the Cour de Cassation in the same year
that Buxton L.J. judgment in McKennitt v Ash drastically increased the impact of
the Convention and the ECtHRs jurisprudence in English law.
Drawing on the balancing exercise conducted by the Strasbourg court in the case
of Von Hannover71, and in response to that courts concern that French courts
were not giving sufficient weight to article 10 of the Convention, the Cour de
Cassation72 chose to incorporate the concept of contribution to a debate of
general interest into the judicial equation. The dispute involved the legality of
an article disclosing the fact that several local councillors and a mayor were
freemasons and had been charged with various offences. The Cour de Cassation,
after having mentioned article 9 of the Code Civil and article 10 of the
Convention, recognized that publication of the article was legitimate in a
71Von Hannover v Germany(2005) 40 E.H.R.R. 1 at (76): [I]t considers that the decisive factor inbalancing the protection of private life against freedom of expression should lie in the
contribution that the published photos and articles make to a debate of general interest.
72 Civ. 1re, 24 oct. 2006, n 04-16.706, Express-Expansion et a. c/ J. Copin et a., Bull. civ. I, n 437 ;D. 2006. IR. 2754 ; Lgipresse 2007. III. 89, note A. Lepage ; RLDI 2007/23, n 727, obs. N. Verly ;
Gaz. Pal., 5-6 oct. 2007, p. 51, note P. Guerder.
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democratic society, as it related to a current judicial event and was justified
because it informed the public as part of a debate of general interest73.
A couple of month later, this terminology was taken over by the first instance
court called upon to consider the strength of Nicolas Sarkozys claim for breach
of privacy which concerned revelations of his marital difficulties by a Swiss
newspaper. The evaluation was formulated in similar terms, the judge being
required to accommodate the rights of others and freedom of expression by
determining whether the information contributed to a debate of general interest
or whether it related exclusively to the details of the complainants private life74.
The recent reliance on this concept in French cases will undoubtedly clarify the
overall balancing exercise, as it has been authoritatively argued by Picard that on
several occasions the French interpretation of the public interest had given rise
to seemingly contradictory ratios75
. Accordingly, the incorporation of the
Strasbourg exception to article 8 of the Convention will provide French judges
with a comprehensive method for conducting the balancing exercise.
Moreover, the result of such incorporation will surely be to broaden the
circumstances under which the right to freedom of expression will prevail over
claimants rights under article 9 of the Code Civil. Indeed, the Cour de Cassation
chose not to read the criteria of newsworthiness and contribution to a debate
of general interest together by requiring both of them to apply for article 10
purposes in order for freedom of expression to trump the right to privacy, but
73 Ibid.
74Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006 at (2).75E Picard, The right to privacy in French law in B S Markesinis (ed) Protecting Privacy(Oxford
University Press, 1999) at (95).
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decided to make the two notions alternatives76. This represents a notable
difference from the approach advocated by the Strasbourg jurisprudence, which
requires the concept of public interest and contribution to a debate of general
interest to be established cumulatively77, setting a higher threshold than the
French domestic balancing exercise.
Nevertheless, it would appear that the finding of a contribution to a debate of
general interest will not necessarily result in a correspondingly lower standard
of protection for claimants under article 9. This is can be demonstrated by the
fact that, although Mr Sarkozy failed to prevent the disclosure of his separation
from his wife, the judges nevertheless found against the newspapers for
publishing the details of the separation. Furthermore, in recent cases, the Cour de
Cassation has been slow to establish the existence of a debate of general interest
in relation to certain facts which, prima facie, could have triggered the
prevalence of article 10 of the Convention. In 2007, the Cour de Cassation refused
to recognize that there was a legitimate interest in the public being informed that
the Prince of Monaco had a biological son when the prince was about to accede
to the throne78. This was surprising, given that the Cour de Cassation had allowed
the existence of the princes legitimate child to be revealed in 2004 79 and had
accepted the publication of an article informing the public about his marriage to
a famous TV presenter in the same year80. The argument according to which the
sons legitimate status was the decisive factor in the evaluation is not convincing,
76 Civ. 1re, 27 fvr. 2007, n 06-10.393, D. 2007. AJ. 804, obs. D. Delaporte-Carr ; RTD civ. 2007.
309, obs. J. Hauser.77Leempoel v Belgium (64772/01) Nov 9, 2006, at (68) and Tammer c. Estonie, no 41205/98, CEDH
2001-I, at (64).78 Civ. 1re, 27 fvr. 2007, n 06-10.393.
79 Civ. 2e, 19 fvr. 2004, D. 2004. Jur. 2596, note C. Bigot ; RTD civ. 2005. 99, obs. J. Hauser.80 Civ. 2e, 8 juill. 2004, D. 2004. IR. 2694, et 2005. Pan. 2643, et nos obs. ; RTD civ. 2005. 99, obs. J.
Hauser.
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in particular because French family law does not differentiate between
legitimate and illegitimate children81.
The manner in which English judges construe the notion of public interest has
changed dramatically in the past ten years. Lord Woolfs extremely broad views,
as expounded in A v B plc82, which equated an understandable interest for
readers to be told about private information relating to public figures with a
legitimate interest in the public being informed has been considerably restricted
in recent years. Lord Hoffman in Campbell83and Buxton L.J. in McKennitt v Ash84
have made clear that there exists a distinction between what is likely to interest
the public and the public interest. Angus McLean and Claire Mackey85 recently
submitted that the most authoritative judicial opinion on this distinction remains
Baroness Hales speech in Jameel v Wall Street Journal86
. However, the part of
her judgment that is of greatest relevance to the present discussion is her
rejection, owing to its subjective nature, of the concept of newsworthiness in
the test used to determine whether the public has a right to be given a particular
piece of information87. It is obvious that not all newspaper editors have the same
idea of what constitutes a current event and that tabloid readers will not
necessarily consider political news to be interesting. The criteria used by the
French courts may have the overall effect of introducing a degree of uncertainty
81 Ordinance of 4 July 2005 abolishing the distinction between legitimate and natural children.82[2002] EWCA Civ 337, [2003] Q.B. 195.83(2004) 2 AC 457 at (57).84[2006] EWCA Civ 1714 at (66).85 A. Mclean and C.Mackey, Mosley v News Group Newspapers Ltd: How sadomasochism changed
the face of privacy law : a consideration of the Max Mosley case and other recent developments in
privacy law in England and Wales E.I.P.R. 2010, 32(2), 77-89.86 [2007] 1 A.C. 359 at (147).87 Ibid.
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into the choices that editors are called upon to make. Nonetheless, the ability for
French judges to evaluate the content of an article in order to assess whether it
conveys the information correctly, regardless of the conceptual merits of the
rule, will have the practical effect of limiting the impact of an article or a
photograph on a public figures private life. Indeed, had the details of Nicolas
Sarkozy and the Princess of Monacos separations from their partners not been
found to distort the objectif dinformation, reliance on the notion of
newsworthiness would have seemed inappropriate, owing to its being
excessively broad in its application and liable to result in disproportionate
disclosure of private information.
The question as to whether English privacy law will fully incorporate the concept
of a contribution to a debate of general interest into its balancing exercise
remains to be settled. However, given the recent development in English privacy
law, which take increasing account of Convention rights and the Strasbourg
jurisprudence, it may well be that future cases will explicitly rely on the criteria
laid down by the ECtHR in all circumstances.
In McKennit v Ash, Buxton L.J. brushed away the authoritative character of the
findings made in A v B plc after noting that the case was inconsistent with Von
Hannover. He did so on the ground that the principles established by the Court of
Appeal in 2004 with reference to article 10 of the Convention were not
conclusive and accordingly could not be part of the new balancing test which
required article 8 and article 10 and the Strasbourg jurisprudence under those
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articles to be applied88. The judge gave primacy to the Strasbourg case, but still
analyzed the facts with reference to the guidelines issued in A v B plc in order to
demonstrate that no public interest would have been found had the case
remained authoritative under the new version of the balancing exercise89.
Giving additional weight to the precedential rule of Key v Lambeth LBC90
according to which first instance courts should apply the decision of a higher
domestic court even if it appears inconsistent with a later case from Strasbourg,
two years later,in Murray v Express Newspaper Co91, Sir Anthony Clarke M.R. did
not deem it appropriate to apply Von Hannoverand instead analyzed the public
interest from the standpoint of proportionality92, in line with Campbell93.
Nonetheless, the Court of Appeal judge underlined that his reasoning was
consistent with the Strasbourg decision and recognized the ability of English
judges to have regard to it94.
More recently, in Mosley, the judge doubted the extent to which the very high
test set by requiring a contribution to a debate of general interest will be taken
in the courts of this jurisdiction in relation to photography in public places95,
noting the impact that such an incorporation would have on the English
sensationalist press. Eady J nevertheless proceeded to apply the Strasbourg
88[2006] EWCA Civ 1714 at (63).89 Ibid at (65).90Kay v Lambeth LBC [2006] UKHL 10 Per Lord Bingham at (43-46).91[2008] EWCA Civ 446 at (20).92H. Delany and C. Murphy Towards common principles relating to the protection of privacy
rights? An analysis of recent developments in England and France and before the European Court
of Human Rights (2007) E.H.R.L.R. 5, 568-582.
93(2004) 2 AC 457 at (20).94 [2008] EWCA Civ 446 (59).95[2008] E.M.L.R. 20 at (131).
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standard to the facts of the case, thereby rejecting the argument that the
publication of images and the written description of the event, which occurred in
a private place, was justified by the public interest and contributed to a debate of
general interest.
Since McKennitt, English courts have been showed a greater willingness to
recognize the effects of Von Hannover and its requirement that, in order to be
disclosed to the public, private information must contribute to a debate of
general interest. Although the Strasbourg decision does not set the same
standard as Campbell and A v B plc in relation to the public interest exception,
the courts have been careful to conduct the balancing exercise consistently with
the ECtHR jurisprudence.
English judges have been reluctant to require photographs taken in public places
against individuals right under article 8 to satisfy the high threshold set by Von
Hannover, which itself concerned intrusive photographs taken in places to which
the public had access. Although Eady Js explicit application of the concept as
formulated by Strasbourg appears to have the effect of bringing the English
balancing exercise closer to the French one, the circumstances in which the press
is able to publish visual images that are, prima facie, covered by article 8 of the
Convention will continue to be substantially different in both countries. Indeed,
French law, which regards newsworthiness and a contribution to a debate of
general interest as alternative criteria, will prevent the publication of
photographs infringing individuals right to their own image even more
drastically than it did before the incorporation of the concept derived from the
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Strasbourg jurisprudence which requires them to be of relevance to a topical
debate and not to provoke readers by portraying public figures in an indecent
and sensationalist manner. On the other hand, the press in England will still be
able to fall back on the lower threshold provided by the common law in disputes
relating to photographs taken in public places, although the interpretation of the
public interest, as set in A v B plc, has been made considerably more restrictive
by Campbelland Murray.
The overall effect of this development is arguably to significantly increase the
level of protection afforded to celebrities and other public figures under article 8
in cases where the event giving rise to the photograph, the video or the
newspaper article occurred in a private place. It would also appear that the need
for the disclosure of private information to contribute to a debate of general
interest will be more easily satisfied in relation to politicians rather than public
figures from the entertainment business. So, while English claimants will
continue to enjoy less protection than French litigants, who can rely on the right
to their own image by virtue of article 9 when photographed in a public place,
the recent application of the exception to article 8 as interpreted by the ECtHR in
Mosley shows a certain degree of convergence between the French and the
English balancing exercises in relation to material obtained from the private
sphere. In light of the growing influence of the Strasbourg jurisprudence on
common law courts, it may be possible for the concept of contribution to a
debate of general interest to be extended to public places, although such a
development would clearly be contested by the section of the press that relies on
the publication of photographs of celebrities to make a profit.
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We have observed that, owing chiefly to the dualist system of international law
that exists in the common law and the initial desire of English judges to continue
to determine infringement-of-privacy cases on the basis of breach of confidence,
the application of the Convention rights under article 8 and article 10 to disputes
between private individuals has been more controversial in England than in
France.
In recent years, however, the recognition of the horizontal effect of the
Conventions provisions in cases like McKennitt v Ash and Mosley v News Group
Newspapers Ltd has resulted in the English balancing exercise being centred
around concepts like proportionality to the same extent as the French method
for resolving conflicts between privacy interests and article 10. It has become
clear that, although the stages in the procedure followed by French and English
judges when applying this context-specific test do demonstrate a structural
similarity between both balancing exercises, substantive legal rules and concepts
still vary from one side of the Channel to the other. The requirement that the
publication of a photograph must not be contrary to human dignity is a limitation
which is absent from the English methodology. Moreover, the condition that the
claimant must show a reasonable expectation of privacy in relation to the
material which he seeks to protect from disclosure does not exist in French
privacy law, as article 9 confers a universal and enforceable right to privacy.
The criteria used by the two legal systems in determining when the disclosure of
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prima facie private information is justified by a broader right for the public to be
told are further illustrations of the differences between French and English
privacy law. French judges have chosen to allow disclosure when such
information is newsworthy, in the sense it relates to a current event, while
adding the proviso that the content of the article or the photographs must not
distort the objective of informing the public. This gives the judiciary an intrusive
power to scrutinize the substance of newspaper articles. On the other hand, the
common law has demonstrated a more flexible and expansive perception of the
public interest, as evidenced inJameeland Campbell. The answer to the question
as to whether the influence of the Strasbourg jurisprudence has had the effect of
unifying both interpretations of what will justify article 10 trumping privacy
interests is yes. Indeed, French courts have incorporated the concept of a
contribution to a debate of general interest into the relevant balancing exercise
and made it an alternative condition to newsworthiness. This has been
beneficial to French privacy law, as the reliance on the Strasbourg concept and
the case law derived from it provides more guidance on when it is appropriate to
disclose information protected by privacy interests. On the other side of the
Channel, English judges have been increasingly willing to refer to the Strasbourg
jurisprudence and to make their judgments consistent with it. Given this judicial
trend and the fact that the concept of a contribution to a debate of general
interest was expressly applied by Eady J in the Mosley case, it may be argued
that the English and the French methodologies are converging on a central issue
of the balancing exercise. The reluctance of English judges to extend the
concepts scope to cases where the disputed photograph was taken in a public
place does, however, still demonstrate that privacy law and, by extension, the
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media are still likely to be substantially different on either side of the Channel.
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