Don't judge french law too fast..
Being a french amateur photographer, this law to the 'right of the image' is a real pain because we can't publish whatever picture we want and we have to be a bit careful. Some take the risk and are still fine... The probability of being sued seems pretty low.
There are legal precedents in favor of the photographer as well as in favor of the person whose picture was taken.
Here is an excerpt of a judgement that I think defines well how this law is interpreted (I'm no lawyer but I've searched the subject a bit. Maybe others will step in):
"Si chacun dispose d’un droit exclusif sur son image qui lui permet de s’opposer à la publication de celle-ci sauf nécessité tirée du droit à la légitime information du public, ce droit peut céder devant la liberté d’expression de l’artiste photographe lorsque ne sont en cause ni le respect de la dignité humaine ni l’atteinte à la vie privée de la personne représentée."
It pretty much means that the right to inform and the right for an artist to express himself takes precedence unless the photograph harms one's dignity or his right for privacy. Also, when the consequences of a picture are unusually grave, the person taken can also oppose to publishing the image.
There is another principle which is that anyone has the absolute right to control his image.
Some of our case laws:
- publishing a photograph of a dead body is harming his human dignity
- publishing a photograph of a famous person being taken by an ambulance falls in the right to inform
- François-Marie Banier published a book (perdre la tête) which included a photograph of a woman. She sued for her 'right for image' but lost against banier's right for 'artistic expression'.
In the case on hand (Yan Morvan) I could not get the judgement so I don't know why the judge leaned towards the person being photographed.
Several reasons may explain why:
- the photograph was taken in a private place (the subject's bedroom)
- there does not seem to be any written authorization given from the subject to the photographer
- the photograph is of a national extremist ("extrême droite"). You can see SS and 3rd Reich posters on the walls.
I could very well see why this person would like to protect his current reputation and publishing this image may harm his image with unusual gravity. Because he may regret what he thought.
Hope I'm not launching a flame war. I understand that we as photograph want to report and express ourselves. Should we bring up that someone in his 20s was pro-SS and publish a 'gang' book with him in it ?
It reminds me of Eddie Adams photograph of General Nguyen Ngoc Loan. Later, M. Adams said
"The general killed the Viet Cong; I killed the general with my camera … photographs do lie, even without manipulation."
Here you can hear him talking about it:
http://www.youtube.com/watch?v=Bv11KilBpHQ
