French sports fans have image rights too: balancing personal privacy against the public’s right to be informed
Published 31 July 2019 By: Thierry Granturco
Supporters in France have “image rights” too. Usually, it is the image rights of footballers and their exploitation by clubs or the media that are the subject of disputes and court cases. However, the judgment of the Court of Appeal of Versailles dated 7 May 2019 (no. 17/03549), which went against the company Webedia, reminds us that such rights do not only apply only to sportspersons, and that supporters can also have certain protective rights against the unauthorised use of their images, especially as it corresponds to the related right to privacy in France. This article briefly reviews the case.
Facts and first instant decision
The matter started at the end of the Champions League match involving PSG and FC Barcelona on 15 April 2015. The website Purepeople.com, managed by Webedia, posted an article online (with supporting photos) entitled: “Alice X et Laurent … : Complices survoltés pour le PSG” (“Alice X and Laurent… partners pumped up for PSG”), aimed at a pair of public figures getting into the spirit of the game.
Several months later, Alice X decided to summon Webedia to appear before the High Court of Nanterre for arguably violating the provisions of Article 9 of the French Civil Code and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, with the aim of obtaining compensation for the use of her image which she claimed infringed on her right to privacy and her image rights.
In its judgment of 16 March 2017, the High Court agree with Alice X and ordered Webedia to pay her €1,000 as compensation for the infringement of her privacy rights and prohibited Webedia from reproducing the photos of Alice X, under penalty of the payment of €2,000 per established breach. Webedia appealed against the decision.
Appeal decision and the five major criteria for image rights
In a judgment dated 7 May 2019, the Court of Appeal of Versailles confirmed the High Court’s judgment in its entirety.
The judges stated that the jurisprudence of the European Court of Human Rights imposes five major criteria that must be evaluated in order to decide the fair balance between an individual’s privacy rights and the right of public to be informed. These five criteria are:
the notoriety of the person concerned;
the prior conduct of the person concerned;
whether the publication contributes to a debate of general interest;
the subject of the report; and
the content, form and consequences of the publication.
After conducting their evaluation based on these criteria, the Court of Appeal took the view, like the High Court, that the publication of images of Alice X at the Parc des Princes infringed upon her right to privacy.
The Court also added that although Article 14 of the general terms and conditions of sale of the PSG tickets stipulated that any person attending a PSG match at the stadium granted the Parisian club, free of charge, the right to capture, use, exploit and represent his or her image, this right is granted only to PSG. It could not be inferred from these general terms and conditions that Alice X or any other spectator consented to the use of their images by a third party.
Finally, the Court believed—and this is very interesting to note—that the mere presence of a person, even a public figure, at a sporting event cannot automatically be considered information of a public nature; otherwise, regardless of the person’s passion for sport, it would infringe their right to freedom of movement.
Consequently, in France a company that publishes photos of a supporter attending a sports event without his or her consent risks infringing upon of supporter’s privacy and image rights where the information does not contribute to the public interest.
All of us, whether young or old, powerful or weak, deserve to have our image protected. This is a valuable lesson—both in law and in football.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Commercial | Contract | FIFA | FIFA Champions league | Football | France | Image Rights | Intellectual Property | Privacy Rights
- Taxation of image rights agreements – vital lessons for football clubs and players from the Hull City Tigers v HMRC decision
- Headline issues for brands to consider when negotiating athlete publicity licenses
- Image rights and international footballers: the curious case of Mohamed Salah and the Egypt Football Association
Partner, DS Avocats
Thierry Granturco is a member of the Paris and Brussels Bars. He mainly works on cases relating to sports, and represents national governments, international companies, international NGOs, as well as professional sportsmen and women and sports associations/federations.
He is a European Commission expert since 1997 and a UNO expert since 1999. He graduated from Sciences Po Paris and from ENA (CHEE) and is an auditor at the INHESJ and at the IHEDN. Thierry Granturco holds a Doctorate of Political Sciences (Université Paris I – La Sorbonne, 2004) and a Doctorate of International Relations (Centre d’Etudes Diplomatiques et Stratégiques, Paris, 2005).