Revenge porn: …still no IP rights in sight

Revenge porn is sometimes mentioned in textbooks and commentary as the typical case of private production gone wrong, for which IP rights would prove useful not so much for incentivising the commercial dissemination of the ‘work’ but, rather, for its taking down. Such a scenario would certainly make for an interesting IP case, testing the application of copyright or performers’ rights, or at least serve as the basis of a cheeky examination question, no pun intended. 

The Paris Tribunal recently decided  one  such case of ‘revenge porn’. At the risk of disappointing readers, there were no IP rights in sight in the dispute, the entire case having been (successfully) pled on the ground of the right to privacy. In a decision dated 20 November 2018, the Paris Tribunal decided that a former mistress, who had leaked text messages and erotic photographs of the claimant to his wife and his sister, had breached his right to privacy guaranteed by Article 9 of the French Civil Code.

While no IP right was claimed, the claimant’s submission did refer to the husband’s image rights in addition to his right to privacy. However, this first point was not addressed by the Tribunal, whose decision focused entirely on the breach of privacy. It is unclear why this was the case; the decision does not explain the reasoning of the Tribunal in this regard, neither does it record dismissing the image right submission as redundant to the privacy right claim.

That image rights and privacy rights were addressed as one claim by the Tribunal could be attributed to the fact that each of these claims has the same legal basis under French law: Article 9 of French Civil Code. This may seem odd to readers, since Article 9 makes no mention of image or personality rights: 

Everyone has the right to respect for his private life.
Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order. (Official translation)

Article 9 has been interpreted by the Courts to cover the use, fixation and distribution of a person’s face, voice or name as attributes of his or her personality, which is, in short, image rights as we know them today in France (see here for a recent post on this topic), having been created via case law. That the right to privacy and image rights both have the same legal basis may explain why the two submissions were conflated into one in the decision, despite that the two causes of action have now attracted their own rules and jurisprudence.

Granted, in this case, a claim of either image rights or privacy rights would have likely produced the same outcome, viz., damages to compensate for the moral prejudice suffered by the defendant’s former lover. Ultimately, this is exactly what the claimant secured, as the defendant was required to pay 800 euros in damages.

This leaves a question mark regarding the place of IP rights in revenge porn. Perhaps it would require that the parties be interested in the profits flowing from the release of a private tape for a case to either include an IP claim, or even to plead an IP claim in lieu of the right of privacy. Until such time, privacy rights remain the main shield against revenge porn.