Mon image et Moi : Does Ireland need a right to image similar to that of France?

Whilst the 21st century has heralded not only advancements in the fields of science, medicine and in particular technology, the last two decades have given rise to a number of questions in relation to how we as human beings interact with these advancements, and indeed, how these advancements and out interactions with them shape our laws. 

In this digital age, privacy can appear to some as virtually non-existent. Indeed, the ever-increasing use of social media platforms has diminished one’s privacy to a certain extent – that being however much or little a person chooses to share. Of course, this diminishing cannot be attributed to just social media, rather so-called ‘traditional’ media plays it part too, albeit a significantly smaller role than it would have played in the past. A common theme throughout those types of media-forms just mentioned is that images, in particular, images of people. Social media sites like Instagram are built on the premise of sharing personal images, of your life, your friends, your pets. It must be said that even newspapers would be less engaging if there were no pictures to accompany the political exposés held between their pages.

However, what if you are photographed and it is posted online, or published in a newspaper and you don’t know about it? What if the photo is humiliating, and could cause you losses? What if you were unaware of the photo being taken, and had you known would never have consented to it? Just what protections do you have under Irish law to protect you from such a violation of your privacy?  

The answer, to put it quite plainly, are few. In Ireland, there is no definitive constitutional provision guaranteeing the protection of the privacy of its citizens. Indeed, there are a number of provisions which may suggest a right to privacy in certain circumstances, for example, Article 16.1.4° protecting the secrecy of ballot papers.[1] Furthermore, in Article 40.3, it is reasonable to suggest that a general right to privacy is guaranteed, as per the decision of the court in McGee v Attorney General,[2] wherein it was held that the State may not infringe upon or involve itself in the private affairs of its citizens unless it is for the ultimate aim of protecting the common good. However, in the case of Norris v Attorney General,[3] it was asserted by Chief Justice Higgins that the right to privacy itself, cannot be absolute. Since there is limited case law on the right of privacy in Ireland, the exact scope of the right as provided for within the constitution is unclear.[4] We do not yet know whether this implied right to privacy encompasses all aspects of life in the 21st century, whether it protects only the private life of a citizen from undue infringements by the State, or whether it protects citizens from having their privacy violated by way of the distribution of their image without their consent. 

The right to one’s image is a fundamentally interesting concept, particularly in the context of the 21st century legal landscape we currently operate within. If there were to ever be a right to one’s image in Ireland, a number of questions arise: to whom does it apply? How is it enforced? What are the consequences of violating that right? 

In order to answer those questions, one can look to a country wherein there is already a long standing right to privacy, and a clear and emphatic right to one’s image: France. Under Article 9 of the Code Civil (the French equivalent to the Constitution, outlining the fundamental rights of French citizens), every person is guaranteed an absolute right to a private life.[5]  This right of privacy has been held to extend to the person’s place of residence,[6] and notably, to the right to one’s own image. The right to one’s own image, or le droit a l’image, prohibits the unauthorised publication of a person’s image. Under this right, a person’s image is regarded as an attribute of their personality, and therefore the affected individual may oppose the publication of the image in order to protect themselves, and obtain damages if this right is breached. It must be noted that this right also extends to those in the public eye; the sole fact that you may be a celebrity, or public representative is irrelevant – once an image of you is published, be it on social media or in a newspaper, without your consent, you have a cause of action. This right to image was exercised recently in a case taken by Brigette Macron, the wife of French President Emmanuel Macron. The tabloid magazine Closer published photos taken of Mrs. Macron during a visit to a hospital, she had allegedly undergone cosmetic surgery. A French court deemed the publication of her image as a violation of her right to a private life, and as such she was awarded damages of approximately €8,000.[7]

Of course, it should be noted that there are Irish laws concerning the distribution of a person’s image, but they only apply in very limited situations. The recently enacted Coco’s Law (Harassment, Harmful Communications and Related Offences Bill),[8] pertains only to the publication of intimate images without the consent of the victim, and therefore it is not a general protection.[9]

A possible solution to the gap left in the law here is to actually provide a solid basis for a constitutional right to privacy within the constitution. This article is not the first to advocate for such a provision, and it most definitely will not be the last.  It should not be an implication of a right, as is the case under Article 40.3 currently, but an actual statement of the right. A general provision, guaranteeing the private life of each citizen, with the scope to allow for the expansion of that right across the domains of image, and other areas of life. If not a definitive and emphatic statement within the Constitution, then we need to consider the possible drafting of legislation pertaining to privacy, dealing explicitly with the publication of a person’s information and or image in order to provide context and to place parameters on the exercising of the right to privacy. 

It is unlikely that there is a perfect solution, such is the case with the world we live in – where technological advancements occur on a near bi-weekly basis.  Yet, it cannot be denied that in the in the world we live in, one where information is easily found, and even easier shared, a stricter approach to guaranteeing personal privacy is absolutely necessary. We have seen in recent months, just how important the right to one’s image actually is – for instance, the national conversation that was had regarding the publication online of unflattering photographs of the Tánaiste.[10]

            It is a difficult area of law to legislate for, that is not disputed – but the evidence is clear: in the 21st century, we should not have a wink-and-nudge approach in legislating for privacy, and particularly in legislating for the right to one’s image. One could even go as far in saying that privacy, and the protection of it, in these modern days, is a necessity and not merely a right.

[1] G.W Hogan, “Unenumerated Personal Rights: Ryan’s Case Re-Evaluated” (1990) 25(1) The Irish Jurist, 95-116.  

[2] McGee v Attorney General [1974] IR 284 (SC).

[3] Norris v Attorney General [1984] IR 36 (SC).

[4] Paul McMahon, ‘Privacy Rights’, available at <http://mcmahonsolicitors.ie/privacy-rights/.>

[5] [5] Article 9, Code Civil – “Chacun a droit au respect de sa vie privée.”

[6] 2è, 05/06/2003 n°02.-12.853, judgment available at <https://www.dalloz.fr/documentation/Document?id=CASS_LIEUVIDE_2003-06-05_0212853#motifs.> 

[7] Maxime Gil, ‘Closer  condamné à verser 8000€ à Brigitte Macron pour avoir révélé son hospitalisation à Neuilly’, actu,fr (January 29, 2021), available at https://actu.fr/ile-de-france/neuilly-sur-seine_92051/closer-condamne-a-verser-8000-a-brigitte-macron-pour-avoir-revele-son-hospitalisation-a-neuilly_39084628.html.  

[8] The Harassment, Harmful Communications and Related Offences Bill, 2020, available at < http://www.irishstatutebook.ie/eli/2020/act/32/enacted/en/print#sec13>. 

[9] For additional information on Coco’s Law, Laoise Kelly, ‘Coco’s Law – Legislating Image Based Sexual Assault’, NUI Galway Law Review Awareness (June 2021), available at < https://www.lawreview.nuigalway.ie/commercial-awareness/cocos-law-legislating-image-based-sexual-assault>.

[10] John Meagher, “When is it right to put politicians’ private lives in the picture?” Irish Independent (September 10th, 2021) available at < https://www.independent.ie/life/big-read-when-is-it-right-to-put-politicians-private-lives-in-the-picture-40834983.html>.