In 2002, The Economist commented that “for a nation of secretive people, Britain is curiously casual about privacy”. This comment is particularly relevant in the light of the reluctance shown by the English legislature and judges to recognise a general right to privacy. Indeed, despite the impact of the Human Rights Act 1998 on the development of protection of privacy, case law shows till the present day that the path of incremental evolution in this area has not been abandoned, with judges preferring to expand established torts rather than promoting the establishment of a new tort. Moreover, although there were in the past various attempts to legislate on the subject, there is still a strong-held belief in media circles that the press is and should be able to regulate itself through the Press Complaints Commission.

Foreign experience, especially French law on privacy, has very often be used by commentators to illustrate how it is possible to provide adequate protection to people’s privacy through the judicial development of a ‘blockbuster’ tort, yet still not endangering the principle of freedom of the press.

Protection of privacy in France can be traced to the end of the nineteenth century when French law started to develop piecemeal personality rights, including the right to control one’s image. This particular right was first recognised in 1858 in the case of the famous actress Rachel where her family were entitled to damages in respect of the unauthorised publication of a portrait of the actress on her death bed.

However, it was only in 1970 that a general right to respect for private life was added to the Civil Code in its article 9 which states that “everyone has the right to respect for their privacy”. The civil code right to privacy was modelled on article 8 of the European Convention on Human Rights which, since its ratification by France in 1974, has become directly applicable in domestic law. In 1995, the right to privacy was further ascribed constitutional value by the French Constitutional Court.

Under article 9 of the Civil Code, protection of privacy includes not only disclosure of elements of a person’s private life but also the unauthorised taking of photographs of people and their publication, as well as ‘false light’ presentation. In this respect, it should be pointed out that any person in France has a considerable degree of control over how his or her image is used by the media. Thus, there is no right to use the publication of an individual’s picture for a purpose or in a manner which differs from the one which was originally agreed or to distort the manner in which an individual interviewed has chosen to project his image or express his opinion.

It is also important to note that under the 1970 law everyone, in particular people who are in the public eye, has the right to respect for their private life. This principle is very well established and French judges do not hesitate to recall it when necessary, always using the same formula in their judgment: Given that everyone, regardless of rank, birth, wealth and present or future role in society, is entitled to have his private life respected.

The 1970 law provides for specific remedies which include the award of damages, the seizure of the offending publication, and the publication of the judgement condemning the newspaper or magazine.

Intrusion into someone else’s private life is also an offence (226-1 New Criminal Code). Anyone found guilty is liable to a term of one year’s imprisonment and / or a fine up to a maximum of 45 000 Euros.

The 1970 law has produced a very important body of case law. What the courts have attempted to do is to strike a balance between the freedom of the press and the people’s right to know, on the one hand and, on the other hand, individual’s right to respect for private life. However, this has not been without difficulties.

The first difficulty has arisen in the context of politicians and celebrities. Although, as already mentioned, these categories are, under the law, entitled to the same respect for their private life as private individuals, in practice they have gradually seen their rights limited since the public is regarded as having a legitimate interest in greater information about them. Thus, it has been ruled that persons in the public eye are generally considered as having given tacit consent to publication of information related to public activities, whereas express consent is needed if publication relates to private life. The same applies to the taking and publication of a person’s photograph.

A further difficulty derives from the fact that the notion of private life has never been defined and, again, it has proven difficult to draw a line between private and public life in respect of persons in the public eye. However, it is now well established that the concept of private life includes family life, love life, illness and medical records and private address. On the other hand, information about the income and assets of public figures is allowed to be published as long as this information has not been obtained by fraudulent means. Also, it has been decided that there is a legitimate right for the public to know about family events relating to celebrities or other public figures such as a birth, a divorce or, even, family conflicts.

Perhaps, the most notorious case to have highlighted the difficulty as where to draw the line between public and private life in the context of disclosure and publication of facts relating to famous persons was the publication in 1996, following President F. Mitterrand’s death, of his doctor’s book ‘The Big Secret’. It was alleged by President Mitterrand’s family that the book, in giving a detailed account of the President’s cancer during his mandate, was in breach not only of medical confidentiality but also of the President’s right to privacy. The late President’s family obtained on the basis of article 9 of the Civil Code an injunction for the immediate suspension of the distribution of the book. This injunction was upheld on appeal and in the Court of Cassation, the highest court for private matters in France. The Mitterrand decision was criticised in France since it was questionable whether the right to private life should not be excluded here where there is an obvious legitimate interest for the people to know whether the Head of State is fit enough to carry out his duties. However, this case shows how French judges have the discretion to reverse the direction the pendulum in the balance between the legitimate interest of the public and the right to privacy when they so deem it necessary.

Despite the difficulties outlined above, the protection of privacy has been effective in France, especially in the case of celebrities. However, there are still two aspects to which reservations must be made. First, in view of the number of cases in which the same personalities and publications are repeatedly involved, one may argue that, to a certain extent, the law is not acting as a deterrent but merely serves the particular interests of both parties: more publicity for the personality, more sales for the publication. Secondly, the level of damages awarded in the case of breach of privacy remains fairly low and, as such, does not serve again as an effective deterrent. For damages to have a significant impact they should rather be proportionate to the publication’s extra-sales value generated by the offending disclosure, which is not the approach which has been favoured so far by French judges.

Although some may conclude from this overview of the French law of privacy that, as Lord Justice Mummery suggested in The Home Office v Wainwright, “…the creation of a new tort [of privacy] would give rise to as many problems as it is sought to solve”, it may also be suggested that, relying on the French experience, the introduction of a general tort of privacy would clarify the legal situation of celebrities where an invasion of their private life has taken place in circumstances where there was no public interest at stake. Cases similar to Kaye v Robertson, where an actor – photographed lying in hospital with serious head injuries – was left without remedy, would benefit from such a development and would align England with the majority of democratic systems which have recognised a general right to privacy.