Personality rights are relatively recent in the history of law and date back to the 19th century. They have developed significantly over the past decades and now include core elements such as:

  • The right to the presumption of innocence,
  • The right to a name,
  • The right to one’s voice,
  • The right to one’s image.

The right to one’s image is the right of everyone over their own image. Initially based on the concept of the right to privacy, in accordance with Article 9 of the Civil Code, case law has since recognized its autonomy. Under European law influence, the right to image is now protected by Article 8 of the European Convention on Human Rights, which concerns the right to privacy.

The right to image seeks to protect individuals against the publication of their image.

This right is notably protected by Article 226-1 of the Penal Code, which provides: “A person is punishable by one year of imprisonment and a €45,000 fine for willfully violating the privacy of another person’s private life by any means:

  1. By capturing, recording, or transmitting, without the consent of the author, words spoken in private or confidential settings;
  2. By recording, capturing, or transmitting, without the person’s consent, the image of a person in a private space;
  3. By capturing, recording, or transmitting, by any means, the real-time or delayed location of a person without their consent. When the actions mentioned in points 1 and 2 were carried out openly and knowingly in front of the individuals concerned without objection, the consent of those individuals is presumed. When the actions are performed on a minor, the consent must come from those holding parental authority, in accordance with Article 372-1 of the Civil Code. If these acts are committed by a spouse, partner, or civil partner, the penalty increases to two years of imprisonment and a €60,000 fine. If the acts are committed against a public official, or someone holding an elected public office or their family, the penalties are also increased to two years of imprisonment and a €60,000 fine.”

Article 226-8 of the Penal Code further stipulates: “A person is punishable by one year of imprisonment and a €15,000 fine for publicly or to a third party, by any means, disclosing an edited image or recording of a person without their consent, unless it is obvious that it is a montage or it is expressly mentioned as such. This offense is also applicable when an algorithm-generated image or sound of a person is disclosed to the public or a third party without their consent, unless it is explicitly clear that it is generated algorithmically, or that is mentioned. Penalties increase to two years of imprisonment and a €45,000 fine if the offenses are committed using online communication services.”

Law No. 2016-1321 of October 7, 2016, concerning the Digital Republic, criminalizes “revenge porn” following the recognition of a legal void in its prosecution by the Court of Cassation.

Provisions related to freedom of expression can also be invoked to protect the right to image. When the use of an image constitutes defamation, insult, or outrage, the provisions of the 1881 Press Law apply, especially for photo montages created with artificial intelligence.

Case law recognizes the right to image for individuals (I) and for property (II).

I) Right to the Image of Persons

A person has the right to their image as soon as they are identifiable. A person remains identifiable even if their image is blurred but accompanied by other elements that allow recognition. A simple resemblance does not suffice to establish an enforceable right to image.

The right to image must be balanced with the right to freedom of expression. Judges consider factors such as the contribution of the publication to a debate of general interest, the person’s notoriety, the report’s content, the individual’s behavior, the publication’s form and impact, and the circumstances in which the photograph was taken. In some cases, judges may favor one right over the other, especially for people involved in current events. However, including the image of a person whose identity is irrelevant to the subject is a violation of the right to image.

The use of an image may also constitute an invasion of privacy, especially if it reveals private aspects—true or fabricated—about the person.

People can oppose their right to image, even if they are photographed in public spaces, particularly if the photograph focuses closely on them.

The right to image is no longer solely an extrapatrimonial right. It now grants patrimonial rights. People can commercially exploit their image, and the transfer of image rights is legal, provided that the duration, geographical scope, and nature of the media are specified. Consent can be explicit or implicit.

The right to image ends upon death, although it is not permissible to capture the body of a deceased person without family consent.

II) Right to the Image of Property

A legal debate emerged in the 2000s regarding whether individuals have a right to the image of their property. The First Civil Chamber of the Court of Cassation held that there was a violation of a person’s right to image if the use of the image by a third party caused a disturbance to the owner’s enjoyment of their property (Civ. 1re, May 2, 2001).

The right to the image of property was thus tied to the owner’s right to enjoy and use it. However, the Second Civil Chamber refused to recognize an autonomous right to the image of property and stated that it is not an attribute of ownership (Civ. 2e, June 5, 2003).

In a ruling on May 7, 2004, the Plenary Assembly of the Court of Cassation clarified that “the owner of an object does not have an exclusive right over its image; however, they may oppose the use of the image by a third party if it causes an abnormal disturbance.” There is, therefore, no standalone right to the image of one’s property. The general law of liability must be used, and an abnormal disturbance must be proven. Conversely, if no abnormal disturbance or manifestly illegal disruption is proven, the claim for damages based on violation of the right to image must be rejected.

The law firm remains at your disposal for any questions regarding the right to image.