France: Image rights

In particular, can a video/audio recording that has captured the image/voice of people without their prior knowledge or permission – and therefore illegally – nevertheless be used as evidence of illegal acts committed by the person filmed/recorded?

The right to a person's image and its uses, as that is the subject at hand, is an extremely sensitive and always highly debated subject.

Based on the fundamental right to privacy enshrined in Article 9 of the French Civil Code, image rights are relatively well established in France. Nevertheless, they regularly undergo new twists and turns as a result of court cases. What's more, as the GDPR reminds us, images are also personal data, an individual’s property protected as such by this European regulation.

Some time ago, we commented on the French Supreme Court's ruling of 2 June 2021, in which the highest French jurisdiction reaffirmed a position adopted at European level by the European Court of Human Rights (ECHR), namely that a person's image is not only protected against its public dissemination, but also from the moment of its capture, meaning that the latter generally requires the consent or information of the person filmed. This is a reassuring solution, given that in the age of ubiquitous screens everyone has experienced the violence that can arise from being filmed against one’s will, in public or in private settings.

Over the past few months, and notably on 14 February 2024, several rulings from the French Supreme Court have added a new dimension to image rights: can an image obtained illegally nevertheless be considered as lawful and admissible evidence of an unlawful act in civil proceedings?

By an amusing coincidence, the German film “The Teacher’s Lounge” (“La Salle des Profs”), released in March 2024, also addresses this particular aspect of image rights: a teacher decides to discreetly film her teachers' lounge, using her computer’s camera left on, in order to identify the perpetrator of repeated thefts. Tension rises when teachers and students learn that they have been filmed without their prior authorization, despite the fact that this recording clearly, in hindsight, serves the purpose of revealing the truth.

Unlike criminal cases, in civil cases, unfairly obtained evidence is usually deemed inadmissible, with the French Supreme Court prioritizing the principle of loyalty of evidence (established by a landmark ruling in 2011) and the protection of privacy over probative efficiency. However, this stance has been evolving over the past few years.

After a number of convergent decisions in recent years on the general issue of evidence, several rulings in 2023 overturned the principle established by case law in civil cases, and particularly in labor cases, that video or sound recordings obtained without authorization are inadmissible as evidence of misconduct.

On 8 March 2023, in two rulings relating to dismissals for misconduct based on video surveillance footage, the French Supreme Court, aligning its position with that of the ECHR, held that evidence obtained unlawfully should not be systematically excluded from the proceedings and could even be admitted when, firstly, it was essential to the exercise of the right to evidence, and when, secondly, the infringement of the employee's private life by these unwarranted recordings remains strictly proportionate to the aim sought, namely the characterization of serious misconduct. 

On 22 December 2023, the plenary assembly of the French Supreme Court heard a civil case (specifically, a labor case) (no. 20-20.648) where an employee had been dismissed for serious misconduct on the basis of an audio recording made without his knowledge during an interview, during which the employee made statements that justified the employer's decision. The employee challenged his dismissal before the Labor Court on the grounds that the evidence used was unlawful, and won the case on appeal. The High Court thus overturned its case law, ruling that evidence (in this case, audio evidence) could not be dismissed solely on the grounds that it had been obtained unfairly. According to the French Supreme Court, the judge also had to, on one hand, ascertain whether they were indispensable for the exercise of the litigant's rights, and on the other hand, evaluate whether the infringement on the legitimate interests of the individual (here, the employee) was not disproportionate in light of the necessities of the right to evidence.

In practice, the French Supreme Court quashed the ruling of the Court of Appeal, thus inviting the referring court and future courts to carry out this proportionality and necessity test before deciding whether to accept or reject an illegal recording.

As proof that this is a proportionality test requirement and not an acceptance in principle of unlawful recordings, on 17 January 2024, again in a labor case, the French Supreme Court upheld the position of the Court of Appeal, which had rejected an unlawful recording on the grounds that it was not essential to prove psychological harassment, as it could be established by other lawful means.

These decisions mostly concern audio or video recordings made unfairly and without the knowledge of the persons concerned, generally employees in cases of dismissal. They serve as a practical and useful illustration, in terms of personal data and image rights, of the pragmatism displayed by several rulings in recent years, which have begun to consider the admissibility of unlawful means of evidence under these restrictive conditions.

In the latest case, dated 14 February 2024 (no. 22-23. 073), on the one hand, a pharmacy employee had been dismissed for serious misconduct (theft), based on recordings taken from the premises’ surveillance footage, on the other hand, this video surveillance system had unfortunately been installed by the employer without prior consultation of the Social and Economic Committee (CSE) or information of the employees, and was therefore unlawful (it should be remembered that the consent of the employees is not required, with certain exceptions, for video surveillance in companies, when its purpose is to protect people and property).

The employee therefore contested her dismissal, arguing that the evidence of the alleged misconduct had been obtained illegally.

The employee contested the admissibility of this recording, and therefore her dismissal, on several seemingly legitimate grounds:

What should have taken precedence: the infringement on the employee's privacy (and image) as a result of an illegal recording, or the effectiveness and interest of the evidence in establishing serious misconduct detrimental to the company?

The Court held that the Court of Appeal had indeed conducted a proportionality test, between the employee's right to privacy and the employer's right to prove harm to the company’s operations. In this respect, the Court of Appeal had correctly ruled that the videotape was essential to prove the alleged facts, without its production causing a disproportionate infringement of the employee's rights.

This decision marks a departure from the traditional stance of civil courts rejecting evidence obtained unlawfully. From this recent jurisprudence, it is now evident that courts must employ a test of proportionality and necessity to determine which fundamental right – whether it be each individual's inherent right to their image and voice or every litigant's fundamental right to substantiate their claims – should take precedence when they conflict. This stance is grounded in Article 6 of the ECHR and Article 9 of the French Civil Procedure Code, which underpin the strength of the right to evidence in favor of the litigant – even if said evidence was seemingly obtained unfairly.

This evolution also represents an intriguing shift in perspective between the fundamental safeguarding of one's image as a symbolic representation of personal privacy, traditionally affording little leeway for exceptions, and the assertion of a right to evidence that could supersede the protection of such data.

Image rights encompass a wide range of aspects, from the conditions under which the image is captured, with or without the individuals' authorization, to the various legitimate or illegitimate, commercial or non-commercial uses, limited or extensive, to which the image may be subject, particularly in employer-employee relationships in the business setting.