Privacy is Dead! Long live Privacy
Volume 40, Issue 2, March 2011
Editor: Jo Glanville
There are those in France who would have you believe that freedom of the press, like the notion of human rights itself, is a French invention. ‘The free communication of ideas and opinions’ was enshrined in the 1789 Declaration of the Rights of Man as ‘one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom’ within the bounds of the law. Yet, like so many of those famous rights, it appears that in its spiritual home press freedom can be something of a chimera.
One of the elements that has historically limited journalistic freedom in France are the country’s draconian privacy laws, which make some of the types of press intrusion that are so common in the UK and the US subject to legal proceedings. Whilst there are many who would acknowledge that limiting the kind of press intrusion that Britain’s tabloids specialise in is surely not a bad thing, it has inevitably led to a climate where journalists self-censor and the public expresses profound scepticism regarding journalistic probity.
The origins of the protection of privacy in France can be traced back to the 19th century when French law started to develop personality rights, including the right to control one’s image, though it was not until 1970 that a general right to respect for private life was added to the Civil Code (Article 9). This was modelled on Article 8 of the European Convention on Human Rights which, since its ratification by France in 1974, is now directly applicable in domestic law. In 1995, the right to privacy was given constitutional value in France by the Constitutional Court.
Under the 1970 law everyone, including those in the public eye, regardless of rank, birth, wealth and present or future role in society, is entitled to have his or her private life respected; where this is infringed, damages can be awarded and the offending publication may be seized, pulped and required to publish the judgment against it. However, there are instances where it has been recognised that different types of public interest may allow interference with the right to privacy; for example, the French media has been allowed to publish a list of the ‘hundred wealthiest French people’, with details of their wealth, on the grounds that it is in the public interest that the position of these individuals in the business world be known.
Protection of privacy not only covers the disclosure of details of an individual’s private life but also the taking and publication of photographs of an individual without prior consent. In the case of an interview, an individual’s photograph may not be published for a purpose or in a manner which differs from the one which was originally agreed or in order to distort the manner in which the interviewee has elected to project their image or express their opinion. Intrusion into someone’s private life can also be a criminal offence; anyone found guilty is liable to a term of a year’s imprisonment and/or a fine up to a maximum of €45,000.
Somewhat problematically, the notion of what constitutes ‘private life’ has never been legally defined, although it has been established that private life includes family life, love life, illness and medical records and private address. Or, as a judgment from 1970 put it, Article 9 protects ‘the right to one’s name, one’s image, one’s voice, one’s intimacy, one’s honour and reputation, one’s own biography, and the right to have one’s past transgressions forgotten.’ (Such a law would be a dream for some British politicians, one suspects.) Nonetheless, over the years judgments have tended to decide that there is a legitimate right for the public to know about events relating to public figures such as a birth, a divorce and even family conflict.
The most infamous privacy case took place in 1996, following Francois Mitterrand’s death from cancer, with the publication of a book by his doctor called Le Grand Secret. It was alleged by Mitterrand’s family that the book, in giving a detailed account of the president’s illness whilst he was still in office, was in breach not only of medical confidentiality but also of the president’s right to privacy. Mitterrand’s family obtained an injunction for the immediate suspension of the distribution of the book. In his appeal the book’s author did not rely on the ‘public interest’ argument but instead on his right to ‘freedom of expression’. In overturning the author’s appeal the court took the view that details of the president’s illness involved the most ‘intimate’ aspect of privacy. Given that the president himself had issued regular bulletins about his health, whilst never admitting to being ill with the cancer which later killed him, it has been argued that what actually prevailed in the court’s decision, as the legal expert E Picard has observed, was ‘the right of the subject of the invasion [of privacy] to reveal what he wishes about himself even if, as in this case, it was not the truth’. The ultimate decision of the Cour de Cassation – France’s highest civil court – upheld the family’s right to suppress the book, in effect maintaining what might be seen as a longstanding French tradition of suppressing information in the interests of political expediency.
Mitterrand’s other great secret was his illegitimate daughter Mazarine, born in 1974. Her existence was finally revealed – with the publication of a photograph in Paris Match – in 1994, six months before the end of his presidency. Mitterrand had gone to extraordinary lengths throughout his presidency, including extensive wiretapping of journalists (under the cover of anti-terrorism legislation) to keep Mazarine’s existence out of the public eye. Ironically, given how many resources Mitterrand expended in keeping Mazarine’s existence a secret, the eventual publication of the photograph caused far less of a scandal than the fact that details about his illness were kept secret even after his death.
There are those who claim that the French are growing less respectful of the private lives of their politicians and that a story such as Mazarine Mitterrand could no longer be kept secret. Coverage of Nicolas Sarkozy and Carla Bruni’s relationship has certainly been occasionally less than entirely respectful and there are regular threats issued by Sarkozy to sue various journalists or newspapers for publishing unflattering stories about the two of them. On the other hand, the press was maintaining a cover for Socialist Party presidential candidate Segolène Royal and her partner and leader of the Socialist Party, Francois Hollande as recently as 2007. Le tout Paris knew that the image that all was well in the Royal house of Hollande was pure fiction. The couple had been living apart for months, Hollande having left Royal for a political journalist. Yet not a whisper of their split was revealed in the media until Royal herself announced it, a month after the first round of the elections. Given their respective roles in French politics and the fact that an election campaign was being waged in which their relationship was a key element in the branding of the parti socialiste, it was hard to argue that it was not in the public interest to know that they were in fact in the throes of a rancorous separation (the couple never married but they were together for 30 years and the parents of four children).
Given that the damages awarded against the media in cases of breach of privacy are too low to act as a deterrent, it is pertinent to consider how it is that the media remain in such deference to the country’s political elite. A long tradition of actual as well as self-censorship is certainly part of the problem. Even after the 1881 law on press freedom was passed, the 20th century witnessed several extended periods when emergency censorship was implemented, including during both world wars. ‘Politican officials seemed to feel they could not rule a country at war without it’ as Clyde Thogmartin puts it in The National Daily Press of France (1998). Throughout the 1950s censorship returned periodically as the Algerian crisis threatened to dethrone de Gaulle. Television broadcasting was overtly censored and manipulated up until the end of de Gaulle’s presidency in 1969 – he could not tolerate a national broadcasting authority that was not in thrall to his politics and under his aegis the media in general, and television in particular, was instrumentalised as an agenda-setting mechanism influencing news as much as cultural output.
With such a history of political meddling in a so-called free press it is hardly surprising that there is a deep-rooted suspicion of journalists in France. According to a 2010 survey conducted by the Catholic newspaper Le Croix, 66 per cent of the adult population expressed a lack of faith in journalistic independence, believing journalists to be unduly influenced by political pressure. ‘The impression of collusion between journalists and government is firmly rooted in public opinion,’ was the newspaper’s conclusion. According to Pascal Riche, the editor-in-chief and one of the founders of the French news website Rue89, ‘the press are seen as people trying to stir the mud, or as people who are close to power, eating with politicians, disconnected from the people’. In spite of fine rhetoric about the importance of a free press to the workings of democracy, journalistic culture in France sometimes seems still to be locked in the traditions of the ancien régime.
Such scepticism could be linked to the fact that France has traditionally had one of the lowest levels of newspaper readership in western Europe (although with the recent arrival of free newspapers overall readership has seen a significant increase). Without significant government subvention – whether in tax breaks or actual subsidies – most French newspapers, apart from the free papers such as Direct Matin and Direct Soir which are paid for by the advertising that fills half of their pages, simply could not survive.
Under Nicolas Sarkozy’s presidency, the issue of press freedom in France has become even more precarious than it has been historically, partly due to the fact that the President counts amongst his closest friends several of the country’s most powerful media barons. In effect, with important exceptions, much of the French media is controlled by six powerful conglomerates, all of which are owned by close friends of the president. Martin Bouygues, owner of a telecoms company as well as France’s most popular TV channel TF1, is Sarkozy’s youngest son’s godfather and was one of the witnesses at his wedding to Carla Bruni. Another witness was Bernard Arnault, who owns the Louis Vuitton group LVMH, which includes in its stable two economics magazines and Radio Classique. Francois Pinault, France’s wealthiest man and owner of the newspaper Le Point, is another friend. Vincent Bolloré, who lent the president his jet and yacht for a much-criticised post-election holiday in 2007, is head of a family-owned company that launched the digital television channel Direct 8 in 2005 and, in 2006, the free daily newspaper Direct Soir. Arms manufacturer and proprietor of the media empire Hachette, Arnault Lagardère, calls Sarkozy ‘a brother’; his stable includes Paris Match, Elle and Le Journal de Dimanche. Another friend and arms manufacturer is Serge Dassault, whose deeply conservative politics are suspected of compromising Le Figaro’s editorial independence. After his purchase of Le Figaro in 2004, à propos of the kind of editorial stance the paper should be taking, he was quoted as saying in a creepy echo of De Gaulle, ‘There is some information that is more bad than good. And this puts at risk the commercial and industrial interests of our country.’
It wasn’t long after Sarkozy came to power in May 2007 that alarm bells began to ring. Anecdotes began to circulate that the president was dropping remarks to reporters along the lines of ‘I know your boss’ or ‘I know everything that goes on in your newsrooms’. Off the record breakfast meetings have taken place in the Elysée Palace, where members of the foreign press were harangued by the president himself for their less than flattering coverage of his presidency: ‘He was literally waving his finger in my face,’ one correspondent said. In 2005, even before Sarkozy got the top job, when he was interior minister and planning his presidential campaign, the editor of Paris Match (owned by his crony Arnault Laguardère) was fired after he ran a cover story showing Cecilia, Sarkozy’s not yet ex-wife, in the arms of another man. A year after Sarkozy became president it was announced that in future the president would have the final say in the appointment of the head of French state TV, replacing the independent body that had hitherto had that responsibility. No one was surprised at the announcement in June 2010 that Laurent Solly, Sarkozy’s former deputy election campaign manager, had been appointed as a director of TF1 (the television channel owned by Martin Bouygues).
There have been various episodes of intimidation of journalists, including the arrest and harrassment of Vittorio de Filippis, former publisher of Libération, in December 2008 at the instruction of the investigating magistrate, to which Reporters without Borders allude in their damning report on France in their 2010 press freedom index. By 2010 France’s position on the annual index was, at 44, below that of Namibia, Jamaica, Tanzania, Mali and Ghana. A decade ago France was ranked in respectable 11th place; today only Italy keeps France from the dubious accolade of being ranked the lowest country for journalistic freedom in Western Europe. Reporters Without Borders’ commentary makes sobering reading:
There has been no progress in several countries where Reporters Without Borders pointed out problems. They include, above all, France and Italy, where events of the past year – violation of the protection of journalists’ sources, the continuing concentration of media ownership, displays of contempt and impatience on the part of government officials towards journalists and their work, and judicial summonses – have confirmed their inability to reverse this trend.
In October 2010 the issue of press manipulation took an even more ominous turn. A mysterious series of break-ins during which computers were stolen took place at the offices of various news outlets, both print and digital, all of whom had expended considerable coverage investigating the Affaire Bettencourt, specifically the claims that Liliane Bettencourt, the L’Oréal heiress and the wealthiest woman in France, was guilty of tax evasion and the (possibly linked) question of a substantial, and illegal, donation to Sarkozy’s presidential campaign. Eric Woerth (who lost his post as labour minister in November 2010) is the subject of an ongoing investigation by French police after a former Bettencourt accountant called Claire Thibout alleged that in March 2007 he had been given €150,000 specifically for Sarkozy’s election campaign. Woerth was head of campaign funding; donations by individuals to a presidential campaign cannot exceed €4,600. The allegations, originally made during a July 2010 police interview with Thibout and shortly afterwards in an interview with her published by Mediapart, included startling claims that several unnamed politicians were in the habit of passing by the Bettencourt mansion in Paris to pick up large quantities of cash in unmarked envelopes. Secret recordings made by Bettencourt’s butler reveal that Woerth’s name came up frequently in the Bettencourt household; it also emerged that his wife had been employed as a financial advisor overseeing various aspects of the heiress’s €17bn fortune.
The government issued strenuous denials of any nefarious or illegal involvement in the Bettencourt affair. But after the October break-ins it was widely alleged in the media that the thefts of the computers were part of a strategy of intimidation, orchestrated by the security services at the behest of the Elysée Palace, against Le Monde, Le Point, and the digital news outlets Rue89 and Mediapart, for their part in revealing unpalatable details of Woerth’s alleged involvement in the Bettencourt scandal. (Rue89 was set up by a group of former Libération journalists and Mediapart by Edwy Plenel, former editor of Le Monde, who, coincidentally, was one of the victims in the Mitterrand wiretapping scandal 20 years earlier for his part in investigating the Rainbow Warrior scandal, amongst others).
In November 2010, Le Canard Enchainé, France’s renowned, redoubtable and fiercely independent weekly satirical newspaper, alleged that the president had personally ordered the head of the French Internal Intelligence Service (DCRI), Bernard Squarcini, to spy on journalists investigating corruption under Sarkozy’s regime.
According to the Canard, a meeting was held in September 2009 with Sarkozy’s then chief of staff (now minister of the interior) Claude Guéant, a member of Francois Fillon’s cabinet and an unnamed representative of Sarkozy, to try determine a way to get around a 1991 law which forbids telecoms companies to hand over telephone records to the police. The article went on to claim that an agreement was made between the president, the prime minister and the police to overrule this particular interdiction, in the ‘interest of the state’. Furthermore, according to the Canard, in an alarming instance of Orwellian manipulation, the president appointed what the newspaper described as a more ‘accommodating’ new head of the independent organisation that monitors state surveillance, the CNCIS, in October 2009. The new director, Hervé Pelletier, agreed to adopt the new interpretation of the law on the instructions of the Elysée in January 2010. Since then the police have been able to view detailed telephone records of journalists with impunity, without authorisation. The Canard has also claimed that First Lady Carla Bruni-Sarkozy was given access to the intelligence and police reports.
As if this wasn’t surreal enough, the Canard was put under extreme political pressure to name its source for the story. Bernard Squarcini, head of the DCRI (French Internal Intelligence Agency) announced in November 2010 that he was suing the newspaper for defamation; not to be outdone, in the same month Claude Guéant decided to sue Mediapart for defamation after the site explicitly claimed that he was personally responsible for an orchestrated espionage campaign against it. Amongst other allegations, two Mediapart journalists claim to have been pursued using GPS technology, for which the delightful neologism géolocalisation has been coined.
Mediapart editor Edwy Plenel’s response to the defamation suit is worth quoting at length:
The Mediapart article did no more than report on information obtained from police sources that was similar to that reported at the same time by Patricia Tourancheau in French daily Libération. ‘In the intelligence community,’ she wrote on November 4th, ‘two sources explained to us that ‘the experts on the question’ were placed ‘much higher’ than the [intelligence] services – at ‘the Château’, in other words the Elysée. One of the officers made an enigmatic reference to a highly-placed member of the president’s staff, led, with a master’s touch, by Claude Guéant, formerly the head of the police nationale.
Claude Guéant’s lawsuit is the Elysée Palace versus Mediapart. That is the challenge laid down to us, and we will turn this into a trial about those aspects of this presidency that lie in the shadows. We will make it a trial about defending press freedom, about freedom of information, about the rights of citizens to inform journalists. In short, it will be about defending a true democracy in which secrecy is the exception and transparency the rule. We will supply proof, we will present testimony and we will prove our good faith. The first witness that we will call to testify will, obviously, be the one who is in fact prosecuting us from behind his agent: Nicolas Sarkozy.
In this legal battle, Claude Guéant cannot claim to be acting on his own behalf. The best proof that he is no more than the French president’s stand-in is that, contrary to the suit he is filing against us, we are unable to respond in kind. The astounding ruling recently taken by the Paris prosecutor… extends the immunity from legal pursuit accorded to a sitting president ‘to the acts carried out in the name of the presidency by his staff.
If this trial does go ahead, it will highlight the absurd ‘kingdom’ that the republic of France has become under this presidency. A ‘kingdom’ in which the prince’s servants are allowed to prosecute journalists, yet which protects them from the citizens that we are. In another period when democratic values receded, during the 1950s at the time of the Algerian War, French writer and winner of the Nobel Prize for literature François Mauriac (1885-1970), writing his column in L’Express had these words, which inspire us still: ‘I doubt that the press can be guilty of a crime of indiscretion. But the crime of silence does exist. When the day comes to settle scores, we will not be accused of having spoken out but rather for having kept quiet.
As diplomats and politicians the world over know to their cost, in these days of the internet and WikiLeaks it is increasingly difficult to keep secrets. In France, Sarkozy might have traditional media in his domain, with much of the national press and television channels in the hands of six musketeers dancing to D’Artagnan’s tune, but as Plenel’s robust ‘J’accuse’ suggests, the new internet media outlets are proving less easy to control.