Cour de cassation

The court:

Given that Mme Li Shu Xian., widow of Pu Yi., the last Emperor of China, criticises the decision of the Court of Appeal of Paris of 21 September 1993 which dismissed her claims based on the intrusion into the private life of her late husband by Behr’s book Pu Yi le dernier empereur; first, for having held that there could be no claim for damages unless the author had been malicious, which in this case he was not, whereas the mere fact of invasion of privacy justified her claim, and secondly because it did not analyse the relevant documents or explain a letter in which the author admitted to cavalier treatment of his sources of information;

But given that the Court of Appeal gave proper and apt reasons for holding that in his autobiography Pu Yi himself had divulged certain aspects of his private life which Behr. had included in his book consistently with the objective facts on which he relied, and that the Court of Appeal thus gave a legal justification for its decision on this point

…

For these reasons DISMISSES the application for review.

Civ. 1, 10 Oct 1995 (doctrine upheld) and CA Paris, 27 May 1997 (doctrine partially upheld): change possible as regards the of action of heirs).

See aforementioned Jurisclasseur “Civil responsibility”, fasc. 364 “publisher”: any publication revealing events concerning a person’s private life must be authorised by that person. The publisher is therefore liable (he is generally held jointly liable with the author) if he has failed to obtain any consent from the interested party (see on the privacy of the members of a royal family, Civ. 1, 5 Nov 1996). On the other hand, privacy is not infringed if the author bases himself on the autobiographical accounts produced by the interested party himself (Civ. 1, 10 Oct 1995: Bull. I, no. 356). The same goes if the published facts were common knowledge as the interested party himself “made a display of them” (Civ. 2, 22 May 1996: Bull. II. No. 106). The most notorious case to have highlighted the liability of the author and the editor as regards infringement of privacy is the publication, on president François Mittérand’s death, of his doctor’s book (“The Big Secret”), which not only breaches the right to privacy, but also medical confidentiality. On the basis of Article 9 of the Civil Code, the President’s widow and family naturally obtained an injunction dated 18 January 1996 for the immediate suspension of the distribution of the book; this injunction was confirmed by the Paris Court of Appeal on 13 March 1996 (JCP G 1996, II, 22632), then by the Court of Cassation (Civ. 1, 16 July 1997, Bull. I, no. 249), without prejudice to their right to obtain compensation for the damage already suffered., The defendants, contesting the right of the widow and family to sue, pleaded in vain that the publication had taken place after the President’s death, particularly as the publication contract had been signed prior to the death (CA Paris, 27 May 1997, JCP G 1997, II, 22894).

Note: With particular reference to the judgement of 10 October 1995, special note should be taken of the aforementioned judgement (Civ 2, 22 May 1996), which confirms this case law, and which has some similarities with the issues being discussed here. That judgement, relating to a case in which a father’s identity was being investigated and which was subject to considerable media interest as it involved a famous actor who had in the mean time died, holds that the facts invoked as constituting an infringement to privacy did not in fact do so, insofar as they had been obligingly revealed by the alleged father, in his own book of personal memoirs; furthermore, they did not infringe the plaintiff’s privacy insofar as such an infringement “supposes the existence of a reference or an allusion to the life of the person who is claiming the infringement”, which was not the case in the offending article. Regarding the publication of the book entitled “The Big Secret”, the Court of Appeal’s judgement holds that “the Mittérands, husband and wife, have, as part of Mr. François Mittérand’s estate, received the right to act against the appellants”, and all the more so because, even though the book came out after François Mittérand’s death, the publication had been decided before it. On that point, the Court of Cassation seems to have based itself, in that case (Civ. 1, 14 December, 1999, Bull. no. 345), on a more restrictive concept, pointing out that “the right to act in respect of privacy disappears when the person in question, the sole holder of that right, dies”. The fact remains that (see Jacques Ravanas, Jurisclasseur civil, fasc. 10) “if the right to privacy cannot be transmitted, and only belongs to the living (Civ. 1, 14 December 1999 préc.), the members of the family have the right to sue, as long as the rights of history are respected. They sue, at least partly, according to the injury to their own feelings (Civ. 2, 8 July 1981, Bull. No. 151). Whether or not they have rights in the estate is immaterial. Strictly speaking, the right of Article 9 of the Civil Code is not a family right; this cased law is the consequence of the tight links that exist between family members”.

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