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Case:
Cour de Cassation, First Civil Chamber, (pourvoi no. 03-13.913) Bull.civ. 2005.I.no. 295 p. 246
Date:
05 July 2005
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Since the court of appeal had held that in the absence of any connection between the photograph in issue and the text of the article to which it was attached the honour and esteem of the claimant could not have been affected by it, it was right to decide that his claim was based on article 9 of the Code civil and could not be based on the Law of 29 July 1881.

A judgment holding that the unauthorised publication of a photograph of the claimant taken in an entirely different context is invasive of his right to have his image respected cannot be said to be unjustified.

According to the judgment under attack (Versailles, 6 February 2003) the journal L’Equipe published an article concerning a criminal investigation into the doping of cyclists; it was illustrated by a photograph showing two of the suspects, MM. Sainz and Lavelot, arriving at a race-track in the company of M. Danloux and a horse he had trained; the text above the photograph read “Sainz, a thug known to the police, has twice been convicted of cruelty to horses, several of which he owns jointly with M. Lavelot,  and he will certainly have his trainer’s licence withdrawn by France galop”; and below it were the words “Sainz, the owner of Haras du Bois de Play, posing with M. Lavelot, another criminal, with whom he owns several other horses”. M. Danloux then alleged that the publication of the photograph invaded his right to respect for his picture and sued the publisher.

With its first ground of complaint the journal claims :

1. that the publication of the photograph in question was justified in that the article, contrary to its misconstruction by the court, was concerned with horse-racing as well as cycling, in both of which M. Sainz was involved, and it therefore criticises the court below for dismissing the defences of no cause of action and prescription and proceeding to hold it liable for failing to respect M. Danloux’s right to his image, for if  M. Danloux was correct to suggest that there might be a connection between his picture and the matter under discussion, then there was at most a defamation falling under the Law of 1881 which has its own preconditions and excludes any sanction based on article 9 Code civil (misconstruction of the document of 11 May 1999; articles 4, 12 of the New Code of Civil Procedure, 1134 of the Code civil);

2. that regardless of the texts involved the court, in treating the claim by M. Danloux as resting on a ground other than the one pleaded,  modified the terms of the lawsuit contrary to articles 4 and 5 of the New Code of Civil Procedure, articles 9 and 1382 of the Code civil, and article 29 of the Law of 29 July 1881;

3. that since the real complaint of M. Danloux, whose name was not cited either in the article or under the photograph, was that he had been defamed by the publication of his picture in connection with a murky affair of great public interest in circumstances which might lead people to believe that he was involved in the drug business when he had no part in it at all, the court should have held that it was irregular and improper to seek to sanction a defamation by basing his claim on article 9 Code civil (violating articles 12 of the new Code of Civil Procedure, article 9 Code civil, article 29 of the Law of 29 July 1881).

But given its holding that in the absence of any connection at all between the picture of M. Danloux and the subject-matter of the article the publication of the picture could not have besmirched his honour and esteem, the court of appeal was quite right to decide, without misconstruing the documents or misconceiving the nature of the claim, that the action could not be based on the provisions of the law of 29 July 1881;

From which it follows that this ground of complaint is baseless;

Given that in its second complaint L’Equipe raises five objections to the decision that it had infringed M. Danloux’s right to his image and must pay him damages, namely that:

1. the decision misconstrues the article containing the two photographs showing M. Sainz and his horse in the company of M. Danloux among others in stating that its subject-matter was the abuse of drugs in the world of cycling, with which M. Danloux has nothing to do, whereas the article in fact related to the use of drugs in the world of horse-racing as well as cycling, which justified the use of the picture of M. Sainz with one of his horses, there being no reference to M. Danloux in the accompanying words (misconstruction of the article of 11 March 1999, paragraph 3 ff., article 4 New Code of Civil Procedure and 1134 Code civil);

2. Since M. Danloux was not named in the article or under the photograph , the judgment was wrong to find that his right to his image had been invaded for the relevant law was designed solely to protect a person’s privacy (violation of articles 9, 1382 Code civil);

3. That the court was wrong to deny that there was any connection between the persons in the photograph, namely M. Sainz, the sole object of the article, and M. Danloux, who had trained some of his horses (lack of legal basis, article 9 and 1382 Code civil);

4. That the court was wrong to hold that the complainant’s right to his image had been invaded by a photograph which did not name him at all and had been taken with his consent in  a public place in connection with his professional activities (lack of legal basis as to articles 9, 1382 Code civil);

5. That a person cannot complain that his privacy and right to his image have been invaded by a photograph, legitimately used by the press to illustrate an article concerned with a doping scandal, in which he figures coincidentally, not because of any involvement in the scandal but just because he happened to be present for business reasons (violation of articles 9, 1382 Code civil);

That a person cannot complain that his privacy and right to his image have been invaded by a photograph, legitimately used by the press to illustrate an article concerned with a doping scandal, in which he figures coincidentally, not because of any involvement in the scandal but just because he happened to be present for business reasons (violation of articles 9, 1382 Code civil);

But given that the judgment states that the mere fact that M. Danloux had trained some horses belonging to the accused does not establish any link between the photograph in which he figures, with no mention of his name, and the  news event about the use of drugs in the world of cycling, a field of activity with which he has nothing to do; given that in the light of these findings and without misconstruing the article the court of appeal justified its decision by holding that the claimant’s right to his image had been invaded by the use of a photograph without his consent in a context quite different from that in which it had been taken;

From which it follows that the complaint is unjustified;

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