Europe and Internet

This handbook is really a second edition. The first edition was published in1998 and followed an end-of-study essay on the subject. “For ten years, my publishing company had been asking me to update the work”! At last it is finished. In relation to the first work, this new publication includes two major developments: an examination of European case law and a section devoted to the Internet.   

Despite the omnipresence of the net and the infinite possibilities for abuses that it entails, the law has not undergone any major transformations in order to deal with the current situation. Earlier legal texts are always used as a basis for solving current problems. These texts did not require the emergence of the World Wide Web in order to be written. The first text referring to the right of personal portrayal goes back to 1886 and involves the notion of portraits.

“It was the advent of instant photography which brought about the development of the law relating to the subject because before this, in order to complete an image the posing time was longer and the model or subject would clearly have had to give their consent. The problems were always bound to multiply from the moment it became possible to take stolen photos”, explains the author.

The right of personal portrayal has become a Europe-wide issue over the last fifteen years, particularly following a series of media affairs such as those involving the opposition of Caroline of Monaco to German magazines. The princess attacked them on two occasions for telephoto shots taken while the princess was in the company of the actor Vincent Lindon or with her husband Ernst August de Hanovre.

In the first case, the European Court of Human Rights did not follow the advice of German courts and ruled that it was indeed a violation of her right of portrayal. In the second case it decided the opposite. The context made the difference between the two situations. In the first case, the photos clearly interfered with her private life while in the second; the paparazzi took photos showing her to look somewhat unworried while her father, prince Rainier, was ill. The European court ruled that the right to public information must prevail in this case.

Dutroux and his image

The right of personal portrayal is not absolute and the right to information, in certain circumstances, may take precedence over it. Marc Isgour cites the example of the Dutroux case in 2004, during which the accused claimed the right not to be filmed or photographed. The president of the court had granted his request but a few days later, the Flemish daily newspaper Het Laatste Nieuws and the magazine La Libre Match ignored this ruling.

“In theory, Marc Dutroux had the possibility of refusing that his image be disseminated, but this criminal case was of such importance in Belgium that, in my view, the right of information takes precedence here. I had also been consulted concerning the opportunity to publish or not to publish photos of Michel Nihoul on his release from prison. Here I also answered that the right to information took precedence. This would not have been the case six months later, because the link with current news was not established and in this case he could have invoked his right to be forgotten”.

The right to information does not authorize everything, however, and the media tends to forget this fact. While it is not rare to find photos from social networks in the press, particularly to illustrate general news, this practice does not happen automatically. In 2013, the Belgian Council of Journalistic Ethics, when called upon to comment on the use of an image posted on Facebook by a journalist, declared that, “The fact that journalists have access to photos online does not automatically grant them the right to reproduce them, but his can be waived when the person himself has allowed his image to become public”.