Privacy in France: overview

A Q&A guide to privacy in France.

The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Myria Saarinen and Julie Ladousse, Latham & Watkins
Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

Private and family life is protected under Article 9 of the Civil Code. This Article provides that everyone has a right to respect for their private life. Any victim of a privacy violation can claim damages and request that the violation be stopped.

The Criminal Code also provides sanctions for offences against privacy. For example, any wilful violation of a person's private life is punishable with one year in prison or a EUR45,000 fine. A "wilful violation" includes doing the following without consent (Article 226-1, Criminal Code):

  • Intercepting, recording or transmitting words uttered in confidential or private circumstances.

  • Taking, recording or transmitting the picture of a person who is in a private place.

In addition to the Civil and Criminal Codes, the Data Protection Act No 78-17 dated 6 January 1978 is the main law protecting individuals against violations of their personal data.

The Postal and Electronics Communications Code also applies to the collection of personal data when used for electronic messages.

Freedom of expression is protected under Article 11 of the Declaration of the Rights of Man and of Citizen of 26 August 1789, which is included in the preamble to the Constitution.

Protection of privacy and freedom of expression also comes from international and European texts that have been ratified by France, including:

  • UN Universal Declaration of Human Rights 1948, Article 12.

  • Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights), Article 8 (privacy) and Article 10 (freedom of expression).

  • Charter of Fundamental Rights of the European Union, Article 7 (privacy) and Article 11 (freedom of expression).

These texts have a strong influence in France, in particular the European Convention on Human Rights and the rulings of the European Court of Human Rights. For example, reconsideration of a final criminal decision can be requested for any person judged guilty of an offence, where it appears from a ruling given by the European Court of Human Rights, that (Article 622-1, French Code of Criminal Procedure):

  • The conviction has been declared to be in violation of the provisions of the European Convention on Human Rights or its additional protocols.

  • Where the declared violation, by its nature or seriousness, has led to harmful repercussions for the convicted person that the "just satisfaction" granted under Article 41 of the European Convention on Human Rights cannot bring to an end.

 
2. Who can commence proceedings to protect privacy?

Anyone who is suffering or has suffered damages due to a violation of privacy can file a claim. There is no difference in the law between the claims of public figures (celebrities, exposed politicians and so on) and private persons.

Courts are less likely to award damages to public figures because their right to privacy may be altered when it comes to general interest to citizens and public life. While "public persons" are not legally defined in French law, courts have been influenced by the Parliamentary Assembly of the Council of Europe. The Parliamentary Assembly asserts that public persons are those holding public office and/or using public resources and, broadly speaking, include all persons who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain (see Resolution 1165).

 
3. What privacy rights are granted and imposed?

The notion of privacy is not defined under French law.

Courts have intervened to specify what should be introduced into the realm of privacy. Therefore, it has been ruled that the protection of privacy can include:

  • Personal information (emotional/family life, sexual life, health, home).

  • Material information (property status, mail secrecy).

  • Professional life.

The freedom of expression protection is not limited to the freedom to express opinions and the prohibition of censure. Under the influence of EU law, national judges have included free access to pluralistic and independent sources of information.

It is important to note that the right to privacy is not absolute, in particular when it conflicts with freedom of expression and freedom of the press. Substantive case law (strongly influenced by the European Court of Human Rights) has laid down a series of criteria aimed at finding a balance between these rights. Typically, courts will assess the:

  • Contribution to the public interest debate.

  • Notoriety of the public figure.

  • Previous behaviour of the public figure concerned.

  • Way the information has been obtained and its truth.

  • Content, form and consequences of the publication of the information in litigation.

Therefore, conflicting rights are usually resolved through the conditions of necessity (general interest, journalistic goals and current events) and the proportionality of the infringement (scale of the infringement of each right).

 
4. What is the jurisdictional scope of the privacy law rules?

Privacy violations committed by individual and legal persons can be civil or criminal offences. Reparations can therefore be claimed before civil or criminal courts.

Some high courts have specialised chambers for hearing privacy cases. For example, the 17th chamber of the Paris High Court specialises in cases relating to the press.

If multiple jurisdictions are involved, the claimant can choose the most convenient jurisdiction.

In urgent situations, emergency injunctions can be sought before a specific judge called the "juge des référés". The Supreme Court has ruled that "the mere ascertainment of an infringement to one's right of privacy and to one's image through the press characterises an emergency and creates a right to reparations" (decision from the 1st Chamber of the French Supreme Court, 12 December 2000, No 98-21161), creating an irrefutable presumption of urgency in press matters.

When the violation has been committed by an administration or a public authority, administrative courts have jurisdiction over the case (decision from the French administrative Supreme Court, 27 April 2011, No 31-4577).

Time limits for tort actions for privacy infringement depend on the person committing the violation. The usual limitation period for seeking damages is five years from the time the claimant becomes aware (or should have become aware) of the violation (Article 2224, Civil Code). However, there is a reduced time limit for media infringement of privacy (Article 65, Press Act 1881). The claimant has three months from publication of the contested content to bring an action (for radio and television programmes, the three months start from the date the programme is aired).

 
5. What remedies are available to redress the infringement of those privacy rights?

Civil law protection of privacy is guaranteed by general tort law (Articles 1240 and 1241, Civil Code), requiring misconduct, damages and a causal link between the two.

Damages can be awarded along with any other measures to prevent infringement, such as sequestration and seizure of items.

Measures to cease a breach of privacy can include:

  • A warning.

  • The submission of documents.

  • Suspension of the distribution of a book.

  • An obligation to issue a press release.

  • An obligation to publish a court decision.

In an emergency, the measures can also be provided under summary proceedings (Article 9, Civil Code).

 
6. Are there any other ways in which privacy rights can be enforced?

Though not legally binding, French members of the press have drafted and kept (since 1918) a code of conduct common to all journalists. While privacy is not directly mentioned, journalists commit to respect people's dignity.

The Higher Council for the Audio-visual Sector (Conseil Supérieur de l'Audiovisuel) does not hold any specific powers in this area, apart from a general regulatory power that enables it to issue warnings to audio-visual press and communication services against invasions of privacy.

 

Contributor profiles

Myria Saarinen, Partner

Latham & Watkins

T +33 1 4062 2000
F +33 1 4062 2062
E myria.saarinen@lw.com
W www.lw.com

Professional qualifications. France, Avocat à la Cour

Areas of practice. Data privacy, security and cybercrime; complex commercial litigation; litigation and trial practice; white collar defence and investigations; securities litigation and professional liability; product liability; mass torts and consumer class actions; energy regulatory and markets; intellectual property litigation; technology transactions.

Languages. French and English

Publications

France Chapter, The Technology, Media & Telecommunications Review, 2016.

French Digital Republic Law Expands Rights of Users and Regulators (Law No 2016-321 of 7 October 2016), Client Alert, 2016.

5 Questions About France's New Health-related Class Action Law, Client Alert, 2016.

France Chapter, The Technology, Media & Telecommunications Review, 2015.

France Chapter, International Fraud & Asset Tracing - 3rd Edition, 2015.

Class Actions Enter into Force in France as of 1st October 2014, Client Alert, 2014.

Introduction of Class Actions in France: A Growing Threat to Professionals?, Client Alert, 2014.

Julie Ladousse, Associate

Latham & Watkins

T +33 1 4062 2000
F +33 1 4062 2062
E julie.ladousse@lw.com
W www.lw.com

Professional qualifications. France, Avocat à la Cour

Areas of practice. Data privacy, security and cybercrime; complex commercial litigation; securities litigation and professional liability; litigation and trial practice.

Languages. French and English

Publications. 5 Questions About France's New Health-related Class Action Law, Client Alert, 2016.


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