Case:
JCP 1965. II.14223 Case Philippe v. France Editions Publications Subsequent developments
Date:
13 March 1965
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation

The court:

Appeals are brought by both France Editions et Publications, a limited liability company, and Mme Philippe. (née Nagaux) against an order made on 10 March 1965 by the President of the Tribunal de grande instance (Seine).

On the front and eighth pages of number 968 of its weekly France Dimanche, dated 11-17 March 1965, the appellant firm published under a banner headline “Gérard Philippe’s son admitted urgently to hospital” several photographs of nine-year old Olivier Philippe, one of them showing the child, his face only partly occluded, abed in the St Louis Hospital where he was being treated. The journal also contained a photograph of his parents and an article giving details of the child’s state of health and where he was being treated. Posters containing photographs of father and child were also displayed in order to promote sales.
According to the testimony given to the President of the Tribunal by the personal appellant, suing in her own name as well as in her capacity as her son’s tutor, several photographers managed to effect entry on Sunday 7 March 1965 into the child’s ward, and despite her anxious protests, took several photographs, which seriously traumatised the child; and although neither the taking of the photographs nor their publication had ever been authorised, they were used to illustrate a very inaccurate article about the child’s illness. She went to court to ask for the appointment of a court officer to seize all copies of France Dimanche containing the photographs as well as the posters on public display. She also sought the appointment of experts to inquire into the circumstances and consequences of this “veritable aggression”.

The first judge authorised Mme Philippe to have the seizures effected by huissiers of her choice and ordered her to make her substantive complaint in court before 20 March 1965 but refused to appoint experts. The appellant firm maintains that there was no occasion to proceed to a référé or to the seizure, seeks an inquiry into the harm caused thereby and the immediate execution of the judgment sought. The personal claimant wants the order below confirmed, and by appeal asks the Court to appoint a judicial administrator to enforce it at the expense of the publisher, to have the firm enjoined to withdraw from sale all the copies and posters objected to, in a judgment of immediate effect.

The appellant firm contends that other articles about the illness of young Olivier had previously been published, that the article was particularly flattering about the conduct of Mme Philippe, that most of the photographs had previously been made public, and that showing the child on his hospital bed could not cause either him or his mother harm of such immediacy or severity as to justify the seizures.

But given that none of these arguments hold water, that neither the prior publication of certain articles and photographs relating to the child or Mme Philippe nor the was the article flattered her are of any relevance to this litigation, but that on the contrary the reproduction for purely commercial motives of unauthorised photographs and the details, true or false, of the child’s state of health and the treatment he was receiving constitute an intolerable intrusion into the private life of the Philippe family, and that it is the role and duty of the référé jurisdiction in cases of urgency to protect rights of personality, especially where, as here, they are the rights of a child, and so to limit as far as possible the harm which could be caused, a temporary and exceptional power which has no effect whatever on the right of the court to decide the substance of the matter and to award damages to one or other party, the order criticised must be confirmed, without any need to grant the firm the order it seeks.

On the individual’s appeal, in view of the fact that the Société France-Editions et Publications which published and distributed the objectionable issue is in the best position to see to it that it is withdrawn from circulation, there is no need to appoint a judicial administrator since the measures taken by the judge below and by this Court are sufficient to ensure the protection of the interests of Mme Philippe and her son; the circumstances of the case do, however, demonstrate the absolute necessity of ordering the immediate execution of this decision.

For these reasons and those of the judge below consistent with them which this Court adopts, the principal appeal is dismissed and the incidental appeal partially allowed; the order of 10 March 1965 is confirmed, with the addition that the Société France-Editions et Publications must forthwith take the necessary steps to withdraw from sale all the copies and posters of France-Dimanche which include photographs of Olivier. Philippe or his parents or articles about them; the present decision is subject to immediate execution even prior to registration; the Société France-Editions et Publications is liable for the costs of the référé and both appeals.

Paris Court of Appeal, 13 March 1965
Doctrine upheld. See Juriclasseur Civil, art. 9: If a person whose picture has been reproduced was at the time in a private place, it is unlawful to make that picture, just as it is to publish it or make use of it without permission, as it infringes the right to privacy of the person in question. In civil law such acts are prohibited by art. 9 of the New Civil Code (see CA Paris 13 Mar. 1965 and, after Application for Review, Civ. 2, 12 Jul. 1966 and 6 Jan. 1971). A hospital room, a private boat sailing off the coast, a police station search room or a place of detention can be considered private places (re: a hospital room, see Paris 13 Mar. 1965 and, after Application for Review, Civ 2,12 Jul. 1966). Whatever the nature of the infringement to the rights of the person in question, a court can add to its finding against the perpetrators other measures usually used to ensure that the finding is carried out, as and when this seems appropriate and when no special text forbids it. Thus, the court can first of all order the provisional enforcement of its judgement, that its judgement be published in the press, that a reply be added or that a contentious passage or disputed photographs in a newspaper, a book or a film, be removed. The court can also supplement its judgement with financial penalties for non-compliance, particularly when it orders the insertion of a reply, the publication of its judgement or the removal of parts of articles, books and films, or the destruction of unamended copies of the newspaper or books in question. As for the jurisdiction of a Judge in Chambers to make this abuse cease – this being the main novelty in this judgement according to its commentator (since as regards the right to a picture the solution does not seem new) – while the urgency of the situation is without doubt, the second condition necessary for founding an application to a Judge in Chambers seemed less certain, “in the sense that if the court entertained the application the principal issues were prejudiced” . As is also noted by Claude Giverdon (Jurisclasseur “Civil Procedure, fasc. 234 “Summary Judgements”): The ordering of such measure [tending to limit freedom of expression in the press], particularly coming from the Judge in Chambers, must be reconciled with the freedom to express ideas and opinions as set out by Article 1 of the law of 29 Jul. 1881. That is the reason why this freedom of expression can be subject to restrictions through the summary procedure only if the obviously unlawful interference referred to by art. 809 NCPC exists by reason of either 1) an intolerable infringement of, or an unjustified intrusion into, the intimacy of private life, or 2) an act of aggression, the violence or deliberate repetition of which make it impossible for the person targeted to defend himself (CT Civ 2, 12 Jul. 1966 and CA Paris, 11 Jun. 1986, D 1987, p. 107).

See also Jacques Ravanas (Civil Jurisclasseur, art. 9, Fasc 20) – The Civil Code (art. 9, para. 2) legalises measures restricting freedom the press in the following terms: the courts can, without prejudice to compensation for the loss suffered, order any measure capable of impeding or stopping an infringement to the intimacy of private life, such as sequestration, seizure and so on; in urgent cases, these measures can be imposed by a Judge in Chambers. We come back to the condition of urgency required by art. 808, para. 1 NCPC. Urgency arises each time a delay in prescribing the requested measure would harm the interests of the plaintiff; more particularly, it is urgent to order the seizure of a publication containing elements likely to infringe the intimacy of private life when that publication is just about to come out. Urgency is presumed in cases of infringement of the intimacy of private life and it is not necessary for the Judge in Chambers to mention it expressly (C1, 16 Oct. 1984: Bull. I, no. 267). The mere fact that an infringement of the intimacy of private life and of a person’s image by the press has been proved is sufficient to characterise urgency (C1, 12 Dec. 2000, Bull I, no. 321 and 22 Dec. 2000, Bull. I, no. 341). The summary action of article 9 of the Civil Code does not apply to all urgent cases. Unlike the summary action of art. 808 of the New Code of Civil Procedure, its only aim is to impede or stop an infringement to the intimacy of private life.

Note: the legal doctrine posed by this judgement, as regards both the right to compensation for an infringement of privacy, and the jurisdiction of the Judge in Chambers is upheld, and in fact confirmed by the current wording of art. 9 of the Civil Code. At most it can be noted that the wording used in the judgement of 13 Mar. 1965 – “intolerable interference into private life” –, still used by the Court of Cassation in its report for the legal year 1968-69, was later replaced by the expression “serious infringement” of the right to privacy.

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