Justice Credits: dmitroza/iStock/ThinkStock
According to the Court of Cassation
The Criminal Division of the Court of Cassation held that a woman’s consent to have her nude photo taken prevents the repression of her companion who put this file online. A logical solution under current criminal law, however, is in the process of being corrected.
On 26 March 2015, a man was convicted by the Nîmes Court of Appeal for posting an intimate photo of his ex-girlfriend, depicting her naked and pregnant, on the Internet. The trial judges considered that, given the intimate nature of the photograph, agreeing to be photographed did not mean agreeing to be put online. They therefore found the former companion guilty of the offence under article 226-1 of the Criminal Code.
It should be recalled that this provision, which is now used to criminalise “revenge porn”, punishes with one year’s imprisonment and a fine of 45,000 euros the act of violating the privacy of others “by fixing, recording or transmitting, without the consent of the latter, the image of a person in a private place“.
Yesterday, the Court of Cassation overturned this conviction. According to her, it is not prohibited “to broadcast, without her consent, the image of a person made in a private place with her consent“. The case will therefore be retried by the Montpellier Court of Appeal.
In order to understand the reasoning of the magistrates, one must look back at article 226-1 of the Penal Code. A first reading suggests that it is prohibited to “fix” or “record” or “transmit” the image of a person without consent given at each stratum. Here, however, the photo was taken in full view of the naked woman and then transmitted online and publicly disseminated against her consent.
The Court of Cassation held that this consent to the taking of a photo irradiated any incrimination for dissemination on the Internet. Why? This reasoning has been contaminated by the following article, 226-2 of the Penal Code, which typically concerns online broadcasting. It punishes with the same penalties ” the fact of keeping, bringing or allowing to be brought to the knowledge of the public or a third party or using in any way whatsoever any recording or document obtained by means of one of the acts provided for in article 226-1 “.
However, since the woman had consented to the photograph being taken (one of the three acts provided for in 226-1), 226-2 could no longer apply when the photograph was made available to the public, since the latter only provides for criminalisation in the event of taking a photograph without the person’s knowledge. This solution will undoubtedly be considered absurd, unjust, or whatever, but “the criminal law is of strict interpretation” made a point of reminding the judges, no doubt not very proud of achieving such a result constrained by a text which is shaky.
The situation is not new. Last January, she had been blamed by the delegation for women’s rights which, in its report on the Lemaire bill, had noted that for magistrates, a person who gives his consent to the shooting, looking at the lens, will automatically prevent prosecution for the dissemination of the image online.
During the parliamentary debates, an amendment by elected ecologists was usefully adopted to correct this breach. In addition, the penalties were increased to 2 years imprisonment and a fine of 60,000 euros. In the meantime, discussions are due to continue in the Senate from 6 April, and the Court of Cassation has had to make do with what already exists, since a stricter law cannot be made retroactive, especially as it is still at the draft stage….
It should be noted, however, that this case law does not disarm the victims. These provisions only concern the criminal field. In civil proceedings, a person who considers himself a victim of a violation of his privacy and image rights can always claim damages.
Published on March 17, 2016 at 3:50 pm