Damages for invasion of privacy in the context of sexual assault, the lawyer specialised in media and internet law in Paris answers you

by | Mar 10, 2023

What does the law say about invasion of privacy and sexual assault?

Article 39 quinquies of the French Freedom of the Press Act of 1881 provides for a special procedure for persons who believe they have been the victims of revelations in a newspaper or other medium.

Under this article, the person can ask the judge to order the author of the article to pay a fine and damages (civil action adjoining the public action) without having to prove the damage suffered. The amount of damages is determined by the judge according to the circumstances of the case.

It should be noted that this procedure is only available for acts committed through the press, and not for other types of disclosure such as verbal disclosure.

The press procedure is a special and criminal procedure governed by the short statute of limitations of three months.

Under press law, legal persons cannot be held criminally liable, but they can be sued for damages (civil liability) incurred by their employees.

Article 9 of the Civil Code on the protection of privacy allows for a civil liability claim for damages (five-year limitation period).

Other criminal or civil qualifications can be sought: articles 226-1 and following of the penal code; 

In criminal matters (excluding press law), companies can be held liable, and the fine incurred is 5 times that incurred for natural persons.

Criminal or civil proceedings?

Criminal prosecution (public action) allows the police to be called in to identify the perpetrators; the public action escapes the prosecuting party, except in the case of the press, where a transaction allows the action to be extinguished.

Civil proceedings are aimed at obtaining damages and can be conducted independently of public proceedings, except for certain offences.

Short circuit or long circuit?

The short circuit is preferred in cases where speed is required. The "accelerated procedure on the merits" allows action to be taken on internet content.

Privacy" or "press" basis?

The press procedure is entrapment, subject to a short statute of limitations, and is necessary for press offences.

Invasion of privacy is not a 'press offence' but the opponent will tend to show otherwise.

The Press Act (39 quinquies of the amended 1881 Act, cited below) provides for a fine of EUR 15,000 against a weak individual.

Article 39 quinquies Version in force since 01 January 2002

Modified by Ordinance n°2000-916 of 19 September 2000 - art. 3 (V) JORF 22 September 2000 in force on 1 January 2002

Disseminating, by any means and through any medium, information concerning the identity of a victim of sexual assault or abuse or the image of such a victim when identifiable is punishable by a fine of

The provisions of this Article shall not apply where the victim has given written consent.

These provisions are mainly justified by taking into account the interests of the victim. Therefore, publications mentioning the identity of the latter are authorised subject to written agreement (L. 29 July 1881, Art. 39 quinquies, para. 2, same text).

. - Articulation between Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code

It follows from the combination of Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code that, while the dissemination of the identity of a person and the sexual nature of the crimes or offences of which he or she was a victim is prosecuted on the basis of Article 39 quinquies of the Law of 29 July 1881, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a separate act constituting an invasion of his or her privacy, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a distinct fact constituting an infringement of his or her privacy, which may be punished on the basis of Article 9 of the Civil Code (Cass. 1st Civ, 9 September 2020, n° 19-16.415: JurisData n° 2020- 012860).

 

Is compensation possible?

In general, damages for attempted invasion of privacy and for the identification of victims of sexual harassment will vary according to the particular circumstances of each case. However, some general principles that may apply are

  1. Attempted invasion of privacy: If someone attempts to invade another person's privacy, but is unsuccessful, the victim may still be entitled to damages. These damages may include compensation for emotional distress and mental anguish, as well as any other harm caused by the attempt. The exact amount of damages will depend on the seriousness of the attempted invasion of privacy and the harm suffered by the victim.
  1. Identification of victims of sexual harassment: If someone reveals the identity of a victim of sexual harassment, the victim may be entitled to damages. These damages may include compensation for emotional distress, mental anguish and any harm caused by the disclosure of their identity, such as damage to their reputation or loss of earnings. The exact amount of damages will depend on the severity of the harm caused by the disclosure and the particular circumstances of the case.

It is important to note that damages for attempted invasion of privacy or identification of victims of sexual harassment may vary depending on the jurisdiction and laws applicable to the case. 

 

It is advisable to consult a lawyer specialising in press, media and internet law in Paris to determine your legal rights and options. Roquefeuil Avocats will assist you.

See as well :

Right to be forgotten, privacy, Roquefeuil Avocats can help you

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Personal data: the CJEU retains the preponderant interest of official company registers, the communication law lawyer in Paris analyzes

by | Oct 5, 2022

#privacy #personal data #webdirectories #righttoforget: Court of Justice of the European Union – CJEU – Judgment in Case C-398/15 Camera di Commercio, Industria, Artigianato e Agricolturadi Lecce v Salvatore Manni March 9, 2017

In this ruling, the CJEU confirms the informative role of company registers, which, through the information they provide, including personal data, contribute to trade transparency.

Trade and company registers: legitimacy not in question

This position is classic.

Care will be taken to ensure that it does not benefit private directory companies which abound on the Internet, which buy data from official registers, to ensure increased and untimely publication on the Internet, without the prior authorization of professionals and of the companies concerned, for the sole purpose of attracting traffic to the advertisements they display alongside said data, and in their sole interest.

These private directory companies obviously remain condemnable for the unauthorized use of personal data and for the damage that they are likely to cause and that they actually cause for unsolicited “service”. An alleged freedom of expression or business loyalty cannot derive in law from infringing the freedom of enterprise and the choice of its mode of communication.

More generally, however, one can wonder about the need to indicate in these registers certain personal data of the directors. Managers can indeed be “found” by bailiffs without the publication of the manager's personal address being necessary; a simple collection by the registry and disclosure at the request of a bailiff or judge would be less detrimental to the exercise of the right to protection of privacy. At the present time, the interference of the public authority in the exercise of this right seems excessive and could undoubtedly be challenged before the ECHR.

The personal data of the manager of a legal person 

The personal data of the commercial company manager

by | Jun 18, 2022


January 18, 2022

Updated Nov 24, 2022

 

At the time of personal data protection (Directive 95/46/EC of the European Parliament and of the Council, of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data; REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (general regulation on data protection), the manager of a commercial company can legitimately consider it abnormal to see his personal data published and repeated in multiple parasitic directories.

See as well : The negative opinion

These parasitic directories "pump" the commercial register to attract web traffic and advertising revenue, under the pretext of providing more or less muddy services, such as the collection of opinions and ratings on companies, or referencing on the internet against hard cash.

When the manager's personal data is concerned, there is an invasion of the privacy of these persons.

Especially since the publication of the personal data of the leader is useless if not to stir up the unhealthy curiosity of people.

There are indeed many other ways to reach a leader in case of debt or abuse on his part.

However, the case law is reluctant to sanction the platforms, on the pretext of a certain conception of freedom of expression, or of an alleged need in the general interest to publish the personal data of the leader.

Thus, in a CJEU judgment, March 9, 2017, case n°C 398/15, the Court of Justice of the Union considers that the publication of personal data in the register meets a legal obligation and an interest in the protection and transparency of trade, and must therefore compromise, with some exceptions, the right to be forgotten recalled by the judgment Google Spain C-131/12 of May 13, 2014 which established the right not to be indefinitely filed and sued by Google in defiance of the objectives of social reintegration provided for by law.

The Court lays down the only limit that the processing of personal data does not exceed the "[duration] necessary for the achievement of the purposes for which they are collected or for which they are subsequently processed”.

The concept is very vague, especially since some personal data of the leader, in particular his personal address, are often obsolete and useless.

Certain national laws, including France, impose the publication of the personal address of the leader, and even though Union law only imposes the publication of the name and functions (Dir. 68/151/CEE , Article 3, which aims to allow all interested third parties to be informed, without them having to prove a right or an interest requiring protection (ECJ, n° C-97/96, Judgment of the Court, Verband deutscher Daihatsu-Händler eV v Daihatsu Deutschland GmbH, 4 December 1997).

Article 8 of the European Convention on Human Rights (hereinafter the “Convention” or the “ECHR”) prohibits state interference with privacy when it is not necessary for the prosecution of certain Goals, even if it is provided for by law, in these terms: 

“Right to respect for private and family life

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • There may be interference by a public authority with the exercise of this right only insofar as such interference is prescribed by law and constitutes a measure which, in a democratic society, is necessary for national security, public safety, the economic well-being of the country, the preservation of order and the prevention of criminal offences, the protection of health or morals, or the protection of the rights and freedoms of others .”

There can be interference by “public authority” in the exercise of this right only under certain conditions.

According to the Convention, an interference by a public authority is only admissible if it fulfills two criteria: 

an organic criterion:

  •  the interference must be “prescribed by law”; (but here the CJEU considers that it is any text of the public authorities, and not the only "Law")

a proportionality criterion according to well-defined objectives which are: 

  • national security
  • public safety
  • the economic well-being of the country
  • the defense of order 
  • the prevention of criminal offenses
  • the protection of health or morals
  • the protection of the rights and freedoms of others

  • The French practice of disclosure by the services of the trade and companies register of the personal address constitutes an “interference by public authority”;  

According to the European Court of Human Rights: 

A person's home address constitutes personal information relating to private life and which, as such, enjoys the protection afforded by Article 8 (Alkaya v. Turkey, § 30).

The services of the registry of the commercial and companies court have the practice of systematically collecting and communicating on request, in particular via a simple order of Kbis extract, the personal address of the manager.

The public and systematic disclosure of the manager's personal address obviously infringes his private life, since it designates a priori his place of family life, his "domicile" as mentioned in Article 8 (1) aforementioned.

This public and systematic disclosure is to be distinguished from the simple collection of the personal address, which in itself is justified by a need to preserve an indication of the location of the person of the manager which can be communicated on presentation of a legitimate reason.

It is commonly accepted that the personal address of a natural person is not necessary in itself for his identification, only his date and place of birth are usually considered necessary for this purpose.

On the other hand, the designation of the manager's personal address to the public necessarily infringes the privacy of the manager when the latter expresses his wish that his address not be disclosed, and whatever the motivation of the leader, the latter being in the best position to assess the impact of such disclosure on his private life, and secrecy being inherent in the notion of respect for private life.

There is therefore an invasion of private life, that is to say “interference by a public authority with the exercise of the right to respect for private and family life” to use the terms of the Convention.

The Court of Cassation ruled that:

"Disclosure of an agent's address by the Administration without his consent would constitute an invasion of privacy" (Cass. Civ. 1re, 6 November 1990, Bull. civ. I, no. 238).

National and European case law, which will be discussed below, confirms that the non-consensual disclosure of the personal address constitutes an invasion of privacy.

 

 

  • This interference is unconventional because it is not "necessary", in the sense that neither the national or Community rules, nor the parliamentary proceedings, indicate in what way the disclosure of the leader's personal address is "necessary" for the pursuit of an objective set in 2° of 8 of the European Convention on Human Rights, which therefore suggests that this interference does not pursue any of the objectives set by 2° of 8° of the ECHR and is totally disproportionate ;  

 

French case law and decisions or opinions of administrative authorities

The non-disclosure to the public of the personal address does not otherwise affect the right of a third party to be provided with the personal address of the manager upon presentation of a legitimate reason, provided for by the Béteille law.

The judgment of the Court of Cassation rendered on March 19, 1991:

"if any person is entitled, in particular to escape indiscretion or malice, to refuse to reveal the place of his domicile or residence, so that in principle his will must be respected on this point by third parties , it is different when this concealment is dictated to him by the sole illegitimate intention of evading the performance of his obligations and defeating the rights of his creditors; that it is up to the judge in chambers to put an end to such a fraudulent maneuver, as soon as it is manifest” (Cass. Civ. 1ère, March 19, 1991, appeal no. 89-19.960) 

Today, law n° 2010-1609 of December 22, 2010 known as the Béteille law goes further by widening the access to information of the judicial officer in charge of enforcement and holder of an enforceable title, by allowing him to obtain information directly from the third parties who hold it without going through the President of the Court.

Thus, the administrations of the State, the regions, the departments and the municipalities, the companies conceded or controlled by the State, the regions, the departments and the municipalities, the public establishments or organizations controlled by the administrative authority must communicate to the bailiff in charge of enforcement, holder of an enforceable title, the information they hold allowing the debtor's address to be determined, the identity and address of his employer or any third-party debtor or custodian of liquid or payable sums and the composition of its real estate assets, to the exclusion of any other information, without being able to oppose professional secrecy. (Article L 152-1 of the Code of Civil Enforcement Procedures).

However, this information is strictly limited to the legal framework. They may only be used to the extent necessary for the performance of the title(s) for which they were requested. It is in particular forbidden for the judicial officer to communicate them to a third party (Cass. Civ. 1ère, March 22, 2012, n° 10-25811) or to combine them in a personal file. 

“The address belongs to privacy. When the interest in knowing the address without the consent or even against the opposition of the person is of less value than the protection of privacy, the latter prevails. (CA Toulouse, ch. soc. 4, sect. 1, September 25, 2015, n° 13/01895: JurisData n° 2015-021972)

“Thus in the present case, after recalling that the personal address is information which is a matter of private life (see also e.g. Cass. 1st civ., March 19, 1991, n° 89-19.960: JurisData n° 1991-000768 – Cass. 1st civ., June 30, 1992, No. 90-18.458: JurisData No. 1992-001674; Bull. civ. 1992, I, No. 213), the Court of Appeal investigated whether a interest here superior to the right to respect for the employee's private life justified revealing her address without her consent. “

The CADA believes that the merchant's home address should be concealed: 

“The commission for access to administrative documents examined in its meeting of February 7, 2013 your request for advice relating to the communicable nature of a list of traders from an external market, showing the type of trade and their seniority.

The commission recalls, as a preliminary point, that if the name of a merchant, necessarily registered in the trade and companies register, is information the disclosure of which is not contrary to the provisions of II of article 6 of the law of July 17, 1978 relating to statements covered by the secrecy of private life, is however prohibited, by these provisions, the disclosure of documents revealing the working hours and the dates of holidays of merchants as well as any statement relating, for example, to the seller's address, date of birth or identity card number.

It also considers that are covered by the commercial and industrial secrecy protected by II of article 6 of the 1978 law, the documents which would

display any data relating to the commercial strategy of the businesses concerned, such as, for example, the dates and times of opening of the stalls.

The commission considers, in application of these principles, that the list of merchants on the external market of the municipality, which shows the type of products sold and the seniority of the businesses, is communicable, subject to the prior concealment of the address traders, as well as the indication of their days of presence on the market, which are likely to infringe the protection of the privacy of the interested parties or commercial and industrial secrecy.

European Union law

Directive (EU) 2017/1132 of the European Parliament and of the Council of June 14, 2017 relating to certain aspects of company law, taking over from Council Directive 68/151/EEC of March 9, 1968, aimed at coordinating, to make them equivalent, the guarantees which are required, in the Member States, of companies within the meaning of the second paragraph of Article 58 of the Treaty, in order to protect the interests both of the members and of third parties, require that the directors be "identified" but never mentions their home address.

In case C-398/15 of 9 March 2017, the Court, without evading the ability of Member States to provide for the provisions they wish with regard to the collection of personal data by commercial registers, specifies that only the collection of the identity of the directors is required: 

32 In that regard, it should first be noted that, under Article 2(1)(d) of Directive 68/151, Member States must take the necessary measures to ensure that advertising mandatory relating to companies relates at least to the appointment, the termination of functions as well as the identity of the persons who, as a legally provided for body or members of such a body, have the power to commit the company concerned with regard to third parties and to represent it in court or participate in the administration, supervision or control of this company. In addition, according to the same Article 2(1)(j), the appointment and identity of the liquidators as well as, in principle, their respective powers must also be made public..”

Latvia no longer requires the ruler's home address (Ruķers M., Kā izpaužas tiesības uz personas datu aizsardzību publiski pieejamā reģistrā. Jurista Vārds, 26.jūnijs 2012/NR.26(725). 

Same in Dutch law, 

Section 16 of the Commercial Register Act 1996 provides for the possibility of restricting the publication of certain personal data for privacy purposes. In this regard, Article 32 of the 1996 Order on the Commercial Register stipulates that a manager of a legal entity may request that the mention of the domicile address of the said manager be blocked under certain conditions.

The Commercial Register Law of 2007 entered into force on 1 July 2008. The Commercial Register Order of 2008 provides in Article 51 for a limitation of the publication of certain personal data for the purposes of compliance with the private life. According to paragraph 1 of this provision, the mention of the address of the domicile of a manager, a commissioner, a representative, a sole shareholder, a holder of shares not fully paid up, a liquidator or a manager of a foreign company, cannot be consulted by third parties. However, there is an exception for, in particular, administrative authorities, lawyers, bailiffs, notaries and certain supervisory authorities. A natural person may request that the publication of his domicile address be blocked under certain conditions pursuant to Article 51(3) of the aforementioned decree. 22

Same in the UK: 

Although most of the information held at Companies House is made available to the general public, some information, such as private addresses and full dates of birth, is not entered on the register but is shared with certain specified public authorities, such as as the police, as well as credit reference agencies. The legislator considers that the non-disclosure of the day of birth strikes a fair balance between the principles of transparency and confidentiality.

-Small Business and Enterprise and Employment Act 2015. Following complaints of identity theft, since October 2015 only the month and year of birth appear on the public register, “Great news – we're listening to our customers and making changes”, Companies House Blog, 17 June 2015, https://com panieshouse.blog.gov.uk/2015/06/17/great-news-were-listening-to-ourcustomers-and-making-changes/. It appears from the same article that, from now on, the day of birth will be redacted from the copies of the documents transmitted to the register in paper format. Regarding past transmissions, Companies House is working on an effective solution

-“Restricting the disclosure of your information”, Companies House March 2016, p. 3 and 5. 9

-“Our register: advice on protecting your personal information”, Companies House Blog, 21 January 2016, https://companieshouse.blog.gov.uk/2016/01/21/our-register-advice-on-protectingyour-personal -information/.

  • The national judge can set aside an unconventional national standard; 

Even in the event that the Constitutional Council has declared a legislative provision to be in conformity with the Constitution, the judicial and administrative courts always retain the possibility of setting aside its application when they deem it contrary to the Convention (See for example Cass., Full Ass. April 15, 2011 No. (10-30.316)…hope is born.

We will lynch you: the right to be forgotten on the internet

 

We welcome the judgment of November 22, 2022, the Court of Jusitce (Judgment of the Court in joined cases C-37/20 | Luxembourg Business Registers and C-601/20 | Sovim) which goes towards more protection of life privacy by noting the invalidity, under the Charter, of the
provision of the Anti-Money Laundering Directive requiring Member States to ensure that
information on the beneficial owners of companies and other legal entities incorporated in their territory
are accessible in all cases to any member of the general public.

According to the Court, public access to beneficial ownership information constitutes a serious interference
in the fundamental rights to respect for private life and the protection of personal data
staff, respectively devoted to Articles 7 and 8 of the Charter. In fact, the information disclosed
allow a potentially unlimited number of people to learn about the material and financial situation
of a beneficial owner. Furthermore, the potential consequences for data subjects resulting from any misuse of their personal data are aggravated by the fact that, once
available to the general public, these data can not only be freely consulted, but also
be stored and disseminated.

 

 

 

World-Check, ICIJ, Pandora papers, have personal data removed

by | Feb 16, 2022

computer law lawyer paris

 

In the name of transparency, the fight against money laundering, and freedom of the press, press consortia make it their business to seek suspicious financial flows, parallel to or upstream of police or judicial investigations.

Also, they tend to pin more or less known personalities on the basis of public documents that they can find on the internet.

These public documents are sometimes the result of data leaks, known as “Pandora papers”, “Panama papers”, etc… and also from official public registers.

These press organs sometimes go to work quickly and make hazardous deductions, to scoop up the scoop and entice the reader, or even, more legitimately, to try to bring about clarifications on a case.

People are thus publicly suspected and then filed in shared databases, such as World-Check, on which certain banks, poorly equipped in means of investigation - and above all wishing to close small accounts (<3ME) not very lucrative and at risk – , rush to check if the bank accounts they hold do not involve people targeted by these files.

They will hasten to close these accounts without explanation, and will thus be able to justify their compliance with the authorities of control and international cooperation, without spending too much.

The ICIJ is one of these consortia of journalists, and intends to participate in the fight against tax evasion and the impoverishment of Nations.

This type of consortium assumes that governments and public authorities manage public money correctly and that there is in any case no justification for fraud. No one will dispute that fraud is indeed reprehensible in itself in that it seeks to unduly evade its legal obligations, and that tax evasion can have the effect of impoverishing the conscientious taxpayer.

On the other hand, the opinion according to which the public authorities cannot provoke legitimate mistrust is unfortunately not shared.

Above all, a person can claim to be unjustly the victim of the oukazes of press organs, and complain that he has not benefited from the guarantees due to him within the framework of the investigations carried out by the judicial or administrative authorities.

These include guarantees of secrecy of the investigation, the presumption of innocence, and the possibility of being heard impartially before a conviction is pronounced.

What recourse does a person unjustly denounced have against the press?

The person denounced by the press can choose to “communicate” or not, and thus create such or such an image with the public, depending on their situation.

It will take care to reconcile its communication with the requirements of the secrecy of the investigations (provided for example by article 11.of the French code of criminal procedure), or other secrets, in particular business secrecy, provided for by the directive (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure.

Thus article 11 of the French code of criminal procedure provides, in its version of the December 24, 2021:

Except in the case where the law provides otherwise and without prejudice to the rights of the defence, the procedure during the investigation and the instruction is secret.

Any person who participates in this procedure is bound by professional secrecy under the conditions and under the penalties provided for in Article 434-7-2 of the Criminal Code.

However, in order to avoid the dissemination of fragmented or inaccurate information or to put an end to a disturbance of public order or when any other imperative of public interest justifies it, the public prosecutor may, ex officio and at the request of the investigating court or the parties, directly or through a judicial police officer acting with his agreement and under his control, to make public objective elements drawn from the procedure which do not include any assessment of the property -founded the charges against the persons implicated.

On a legal level, the law of European countries offers an action for defamation against press organs, according to a particular procedure.

We will refer for example, for French law, to the law of July 29, 1881 on the freedom of the press and to its article 29 according to which:

Any allegation or imputation of a fact which undermines the honor or consideration of the person or body to which the fact is imputed is defamation. The direct publication or by way of reproduction of this allegation or this imputation is punishable, even if it is made in doubtful form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms speeches, cries, threats, writings or printed matter, placards or posters incriminated.

Protection of privacy can also be sought, through, for example, Article 8 of the European Convention on Human Rights (or Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950

Everyone has the right to respect for his private and family life, his home and his
correspondence.
There may be interference by a public authority in the exercise of this right only for
provided that such interference is prescribed by law and constitutes a measure which, in
a democratic society, is necessary for national security, public safety,
economic well-being of the country, the maintenance of order and the prevention of crime
criminal offenses, the protection of health or morals, or the protection of the rights and freedoms
from others.

 

What are the recourses against the databases?

The right to the protection of personal data aims to sanction the processing, in particular computer processing, of personal data which infringes the freedoms or the consent of the person.

This right can be invoked against files and databases, internet search engines.

The files, registers, processing, search engines and other databases that collect personal data allow the person to be profiled, sometimes to their detriment.

Indeed, a query, in the database, on a name or other personal data, will inevitably result in drawing up a profile of the person concerned, adding a category and any possible negative opinion, public or not, from a journalistic source or not. , from an official source or not, depending on the type of database consulted.

The file, insofar as it allows direct and instantaneous access to the profile of a person from the information of one of his personal data, has a capacity for nuisance which can be particularly stinging when the database is public, without restriction of access, not reserved for law enforcement authorities, such as an internet search engine, for example.

In European Union law, it is Regulation (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (general data protection regulation) which provides for the personal data protection regime.

This protection is ensured by means of judicial and administrative remedies open to the citizen, and also by the initiative of dedicated authorities able to act in a network (for example, in the EU, network of national authorities of each of the Member States of the EU ).

This right to the protection of personal data includes a "right to be forgotten", provided for in Article 17 of the Regulation, which allows the erasure of personal data.

This right does not in any way call into question the freedom of expression of the press but makes it possible to restrict the processing of personal data (in other words the "registration of the person") when the fundamental rights of the person are at stake, in particular their privacy. and its safety.

It is therefore necessary to distinguish

Firstly :

  • "the news" which appears spontaneously in the form of a bulletin on such and such a subject, according, precisely, to the news of the moment, which commands, and which freedom of expression intends to promote,

And on the other hand :

  • the "processing of personal data" whose use requires the prior information of personal data; here it is the information of personal data, and not the “news”, which controls the search result.

 

We will lynch you: the right to be forgotten on the internet

We will lynch you: Right to be forgotten and right of reply on the internet, privacy and personal data: the lawyer in press, media and communication law in Paris answers

by | Apr 16, 2021

Profiling by search engines, this scourge of modern times – Big Brother is Watching You – You are stuck and appear in search results: what to do?

In the age of social networks and vociferous TV shows where people come with their feelings slung over their shoulders, the right of reply is often presented as the absolute bulwark against the excessive use of freedom of expression, allowing anyone who is referred to in a published article to require the publication of a patch. However, things need to be put into perspective. Typically the profiling of people and companies by search engines, very fond of American-style freedom of expression, the savage "freedom of speech" of the US Constitution, does not allow any right of reply and really stigmatizes this who are victims of it.

 

The absence of a right of reply against search engines

On the internet, the right of reply is governed by:

Article 6-IV of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy

Decree 2007-1527 of October 24, 2007 relating to the right of reply applicable to online public communication services and taken for the application of IV of Article 6 of Law No. 2004-575 of June 21, 2004 for the confidence in the digital economy
 
Article 13 of the law of July 29, 1881 on the freedom of the press

Search engines generally look favorably on what can be likened to dialogue and constructive criticism, or what reinforces and ultimately legitimizes a negative opinion, such as a response.

According to the principles of e-reputation, the insertion of a response nevertheless has a counter-productive effect in the sense that it would tend to increase the referencing of the publication that one precisely wants to combat.

However, this right of reply often remains the only way to quickly combat disparagement and defamation, invasions of privacy, while waiting for something better, when there is a way for the person concerned to reply directly, online, to the notice. (Unfortunately: no right of reply against search engines that index unfavorable content and whose power of nuisance is much greater).

This is all the more so since the remedies remain so laborious for ordinary mortals.

Consult a lawyer specializing in communication law in Paris

The palliative of the "right to be forgotten"

The Costeja judgment (Court of Justice of the European Union, May 13, 2014, Costeja / Google Spain, C-131/12) may possibly be opposed to search engines to obtain a delisting ("right to be forgotten") , and with reference to Articles 17 and 85 of EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data data, and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), and Article 80 of Law No. 78-17 of January 6, 1978 relating to data processing, files and freedoms.

The Costeja judgment makes it possible to pursue the referencing made by search engines, given that they make it possible to establish the profile of a person by a search on his name, by indexing the pages which mention this name. This computer processing carried out by the engine is covered by Article 17 of the GDPR ("right to be forgotten" or "right to erasure") and developed in Article 51 of the Data Protection Act, which reserves the exercise of freedom of expression.

This delisting is not automatic. It allows a stigmatized person to claim from a search engine that certain content concerning them should no longer be marked by the engine. It must be based on valid reasons (judgment of the CJEU of September 24, 2019, judgments of the Council of State of December 6, 2019 and March 27, 2020, Court of Cassation, Civil Chamber 1, November 27, 2019, 18-14.675 , Published in the bulletin, pole 1), or on the protection of privacy.

With regard to the theme of the protection of personal data in the face of freedom of expression, we note:

Article 85 of the GDPR refers to the law of each Member State regarding the reconciliation of the right to the protection of personal data with freedom of expression.

In this regard, Article 80, 2°, of the Data Protection Act, in its version of June 1, 2019 resulting from Ordinance No. 2018-1125 of December 12, 2018, Article 1, maintains the restriction of the right to protection of personal data in the face of freedom of expression only insofar as it is exercised by a professional journalist... and Google, in its search engine activity ("Google Search") does not do journalism, but indexer. It is also accountable to the journalistic content it indexes (see DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC, Article 17).

Article 21 paragraph 1 of the GDPR allows everyone to invoke a particular situation, linked to their personal background, to oppose the processing of their personal data ("right of opposition", also referred to in Article 56 of the Data Protection Act).

See as well :

Defamation, false testimony, slanderous denunciation…what are the differences?

Sexual assault and invasion of privacy

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Personal data

Image rights

 

 

Internet law – Legal framework

by | Jun 9, 2020

 

The right to personal data

Directive n° 2016/680 of April 27, 2016, known as the “Police-Justice” directive

Regulation 2016/679 (GDPR general regulation on the protection of personal data) repealing directive 95/46/

 

Metadata, cookies, telecoms and privacy:

Directive 2002/58/EC of 12 July 2002 known as “privacy and electronic communications” (e-Privacy directive on metadata), amended in 2009 (directive 2009/136/EC). Electronic communications:
Directive 2002/21 (common regulatory framework for electronic communication networks and services) repealed by Directive 2018/1972 (European electronic communications code).

Consumption

Regulation 2015/2120Platforms and consumer law, loyalty

Regulation 2019/1150 (transparency) (concerns sellers using platforms)

Directive (electronic commerce) 2000/31

Directive 2015/1535 (notification of technical regulations)

 

Copyright

Directive 2019/790 (copyright in the digital single market)

 

Open data:

Directive 2019/1024 replacing Directive 2003/98

 

media, audiovisual

MAIN DOCUMENT
guideline 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain laws, regulations and administrative provisions of the Member States relating to the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95 of 15.4. 2010, pp. 1-24)
Successive amendments to Directive 2010/13/EC have been incorporated into the original document. This consolidated version has only documentary value.

RELATED DOCUMENTS
Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on the fight against terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88 of 31.3.2017, pp. 6-21)
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled "Strategy for a Digital Single Market in Europe" (COM(2015) 192 final of 6.5.2015)
Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, pp. 391-407)
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ L 108, 24.4.2002, pp. 33-50 )

Consultation on platform law (Digital Services Act):
https://ec.europa.eu/eusurvey/runner/Digital_Services_Act

EU legal framework

National transposition

Digital Service Act – Digital Market Act

Remove a negative review

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