COMPARATIVE LAW: IMAGE RIGHTS IN QUEBEC
I can already hear some of you laughing...
Why write an article on image rights in Quebec? What is the interest for a lawyer from Marseilles to know the image rights regime applicable in the "Belle Province"?
In reality, the advantage of a comparative law article (apart from the fact that it allows the author to appear to be a scholar, which is, it must be said, rather pleasant) is to possibly draw ideas from others, since, whatever Jean-Paul Sartre may say, hell is not necessarily them.
I believe, as Saint-Exupéry says in The Little Prince, that "If I differ from you, far from harming you, I increase you. ».... And vice versa.
So let's get back to the point...
In France, since the insertion of Article 9 in our Civil Code, the liability regime arising from the violation of privacy is very protective, since any infringement of this right is condemnable in itself, without the need to prove fault on the part of the perpetrator or damage suffered by the victim.
This is due to the need to stop the wrongful act, which does not require proof of harm.
This is not an isolated phenomenon, as this protective trend can also be seen to some extent in Quebec.
It should be remembered that Quebec is one of the few places in the world, along with the State of Louisiana, where Roman Law and Common Law coexist and mutually enrich each other.
It is indeed interesting to note that the doctrine in la Belle Province refers as much to Doyen Carbonnier as to the decisions of the Supreme Court of the United States.
It should also be remembered that in Common Law countries the essential source of law is judicial precedent, whereas in Roman Law countries the essential source is written law.
This is why, in Quebec, although the principles of civil law, particularly those of the right to privacy, are written principles, the case law in this area provides interesting clarifications, especially since, unlike in France, the deliberation phase is not secret.
Indeed, the "dissenting" judges have the right to express their point of view; this makes it possible to see the pre-legal law in full development and in some cases to "feel" the arrival of a jurisprudential reversal.
Since Quebec is still, until proven otherwise, a province of Canada, it is appropriate to refer to the Canadian constitutional principle to find the first references to the right to privacy.
The constitutional status of privacy has been established through a broad interpretation of sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
« 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
8. Everyone has the right to be secure against unreasonable search or seizure. »
Quebec, as a province, adopted the Charter of Human Rights and Freedoms on June 27, 1975, which came into force on June 28, 1976.
This Charter is a so-called "fundamental" law, because no provision of a text with normative value can be contrary to certain rights set out in it.
In Quebec, this Charter therefore has infra-constitutional and supra-legislative value.
Section 5 of the Charter of Human Rights and Freedoms expressly provides: "Every person has a right to respect for his private life. »
It is important to specify that, as in France, the right to image as an autonomous constitutional right does not exist, but is considered as one of the components of private life.
This is the reason why the right to image only protects images that concern private life.
Section 9.1 of the Charter also provides that rights may be subject to limitations, since the law may regulate their exercise.
Quebec civil law recognizes not only the right to privacy but also the right to image.
The reform of the Quebec Civil Code at the end of the 1990s was intended to reflect the profound changes that Quebec society had undergone since 1866, when the first Code was adopted.
Thus, in the preliminary provision of the new Civil Code it is solemnly declared that :
"The Civil Code of Québec governs, in harmony with the Charter of Human Rights and Freedoms and the general principles of law, persons, relations between persons, and property.
The Code consists of a body of rules which, in all matters to which the letter, spirit or purpose of its provisions relate, establishes, in express or implied terms, the general law. In these matters, it forms the basis of other laws which may themselves add to or derogate from the Code. »
The first title of Book 1 of the Code sets out the general principles relating to the enjoyment and exercise of civil rights.
Article 3 states:
"Every person has personality rights, such as the right to life, to the inviolability and integrity of his person, to respect for his name, reputation and privacy. »
The second title of the Code is devoted to certain personality rights, and the provisions relating to privacy are contained in article 35, which states:
"Everyone has the right to respect for his or her reputation and privacy.
No person's privacy may be invaded without the consent of that person or his or her heirs or as authorized by law. »
Article 36 states:
In particular, the following acts may be considered as violations of a person's privacy
(...)
3 Capture or use her image or voice when she is in private places.
Section 49 of the Charter of Human Rights and Freedoms provides that the violation of the rights and freedoms it defines gives rise to a right to redress:
"A unlawful infringement of a right or freedom recognized by this Charter confers on the victim the right to obtain the cessation of such infringement and compensation for the moral or material damage resulting therefrom. In the case of an unlawful and intentional infringement, the court may also order the perpetrator to pay punitive damages.
Article 1457 of the Quebec Civil Code (a close cousin of article 1382 of the French Civil Code) also states that :
"It is the duty of every person to observe such rules of conduct as are required by circumstances, custom or law, so as not to cause injury to others.
When a person is endowed with reason and fails in this duty, he is responsible for the injury he causes to another person by this fault and is bound to make reparation for this injury, whether it be bodily, moral or material.
He is also bound, in certain cases, to make reparation for injury caused to another person by the act or fault of another person or by the act of property in his custody. »
As in France, an individual's permission must be obtained before his or her image can be disseminated.
In the absence of authorization, the individual photographed may act to obtain compensation by seeking an award of damages.
This principle was established many years ago in Canada (Rebeiro v. Shawinigan Chemicals (1969) Ltd, [1973] S.C. 389).
As noted, the liability regime for invasion of privacy in Quebec is theoretically based on the concept of proven fault.
However, the liability regime has come closer to the French system thanks to (or because of) the famous Aubry decision (which has nothing to do with the instigator of the 35-hour work week), which is one of the most important decisions in Quebec jurisprudence relating to image rights.
This judgment goes back to the notion of fault, proof of loss and especially the amount of damages.
The facts of the case are simple: A 17-year-old girl, Pascale Claude Aubry, was photographed without her permission by a photographer named Gilbert Duclos, while she was sitting on a step in front of a building on Sainte Catherine Street in Montreal.
This photograph was published by Vice-Versa Inc. in an art book with a print run of only 722 copies.
The girl then decided to sue the photographer and the publisher for 10,000 Canadian dollars (about €6,468), half of which was for compensatory damages and the other half for punitive damages.
The Court of First Instance of the Court of Quebec, grants the request and jointly and severally orders the publisher and the photographer to pay the victim the sum of 2,000 Canadian Dollars. (approximately 1 394 €uros).
Bourret J., who was in charge of the case, recognized in his decision that the unauthorized publication of the photograph constituted a fault to which the magazine's publisher and the photographer who entrusted him with the photograph contributed.
However, the judge moderated his judgment by stating that since the photograph was not defamatory, either in itself or in association with the text that accompanied it in the magazine, no compensation could be awarded for it. He also refused to award exemplary damages in the absence of proof of malicious intent on the part of the defendants.
The photographer and the publishing company decided to appeal the decision.
In 1996, the majority of the Court of Appeal confirmed the decision of the court of first instance, with some clarifications.
As mentioned, the advantage of the Quebec system lies in the fact that litigants can know the content of the deliberations that led to the decision.
It is appropriate to revisit some of the judges' positions.
Thus, in the 1996 decision, Justices LeBel and Biron stated that :
"The fault lay not in taking the photograph, but in publishing it. According to LeBel J., writing for the majority, since the respondent was in a public place when the photograph was taken, this act alone could not be considered a violation of her privacy. The unauthorized publication of the photograph did, however, constitute an invasion of anonymity, an essential component of the right to privacy."
However, Judge Baudouin dissented on the issue of compensation
"One cannot impute damage solely on the basis of the wrongful distribution of the photograph. Nor can the lack of proof of damage be disguised as 'nominal damage'. This is all the more important, in his view, when the right to privacy is claimed against freedom of information or artistic freedom."
This is why Justice Baudouin refused to consider as sufficient proof of prejudice the respondent's sole assertion: "the world has laughed at me". (sic).
Gilbert Duclos and Les Éditions Vice Versa inc. then decided to bring the case before the Supreme Court, which dismissed their appeal on April 9, 1998.
L'Heureux-Dubé, Gonthier, Cory, Iacobucci and Bastarache JJ. found that :
"The right to one's image is a component of the right to privacy enshrined in s. 5 of the Quebec Charter. Insofar as the right to privacy seeks to protect a sphere of individual autonomy, it must include the ability of a person to control the use that is made of his or her image. The right to image is violated, and therefore a fault, as soon as the image is published without consent and allows the person to be identified... The weighting of the rights involved depends on the nature of the information, but also on the situation of the persons concerned.
In short, it is a contextual question. As a matter of legal analysis, it is unnecessary to resort to the notion of "socially useful information" adopted by the Court of Appeal... The right of an artist to make his work known is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image the work reveals...
The fault, as almost unanimously admitted by French and Quebec doctrine and case law, consists in the capture of the image itself, or in its dissemination, when these acts are not authorized by the person himself or justified by one of the classic exceptions, notably the presence in certain cases in a public place, the role of the public figure, the satisfaction of the right to information or to history, the precedence of public order. »
Justice Lamer, for the majority, finally states:
"There seems, therefore, to be no justification for giving precedence to the appellants, other than their position that it would be very difficult, as a practical matter, for a photographer to obtain the consent of all persons whom he photographs in public places before publishing their photographs. To accept this kind of exception is, in effect, to accept that the photographer's right is unlimited, so long as his photograph is taken in a public place."
With regard to damages, the judges state that a distinction must be made between two types of damages, extrapatrimonial and patrimonial.
"As Dean Nerson points out in his thesis Les droits extrapatrimoniaux (1939), [...] the damage "may consist simply in the displeasure the person feels at becoming a 'well-known figure'". The publication of an image of a person who discloses a scene from his or her private life violates the victim's "eminently respectable" sense of modesty and may cause him or her considerable moral prejudice... With respect to the property aspect of the invasion of privacy, we are of the opinion that the commercial or advertising exploitation of the image, whether of a well-known person or of a private individual, is likely to cause the victim material prejudice. The compensation must then be calculated on the basis of the loss actually suffered and the gain lost... The testimony of Mr. Gilbert Duclos revealed that he usually had to pay between $30 and $40 per hour for the services of a model, generally for a period of two to four hours. The Respondent would therefore normally have been entitled to a sum of money."
With respect to pain and suffering, Lamer J. writes:
"A French author states that the damage in the case of an infringement of the right to one's image "may consist simply in the displeasure of becoming a 'known figure' [...] With respect, this statement cannot mean that the mere infringement of a right of personality leads to civil liability in Quebec in the absence of proof of injury, contrary to what seems possible in France: P. Kayser, La protection de la vie privée (2nd ed. 1990), at pp. 222-266."
It is interesting to note that, as in French law, the Quebec judges considered that the fault consisted solely in the capture of the image without any intention to harm.
On the other hand, contrary to France where in certain cases damages in cases of image rights can be assimilated to "punitive" damages (See in particular CASS.CIV 2nd 5 November 1996 Grimaldi C/Voici) Bull.civ. II, n°378; Resp.et ass. 1997, n°1, p.9; JCP 1997, II, 22805, obs. J. RAVANAS; D. 1997, p. 403, note by S. LAULOM), the Quebec judges, who nevertheless have the so-called "damages" in their legal arsenal, have a more moderate position and do not seem to give in to the temptation that one might call "American".
Several authors are campaigning for a reform of our right to image so that damages in the event of violation of this fundamental right are only awarded in cases of proven prejudice.
It is interesting to note that having a no-fault liability regime, such as that of Quebec and article 9 of our Civil Code, can be perfectly reconciled with the awarding of damages based on the harm suffered.
So we have a lot to learn from our cousins.
(1) While in France, the amount of damages always corresponds to the amount of prejudice actually suffered, which must be proven by the plaintiff, this is not the case in Quebec, where the judge may award damages in excess of the prejudice actually suffered, this increase being intended to penalize the person who was "guilty" of an intentional fault or serious negligence.
This concept of punitive damages, which first appeared in England in the famous 1763 case of Huckle v. Money, is the hallmark of the law of civil liability in common law countries.
However, it is interesting to note that in its report submitted to the Minister of Justice in September 2005, the Catala Commission appointed to prepare the overhaul of our law of obligations and our law of prescription recommended the introduction into our law of punitive damages.
A new article 1371 was to be introduced into the Civil Code in the following terms:
"The author of a manifestly deliberate fault, and in particular of a lucrative fault, may be sentenced, in addition to compensatory damages, to punitive damages, of which the judge has the option of making the Public Treasury benefit in part. The judge's decision to award such damages must be specially motivated and their amount distinguished from that of other damages awarded to the victim. Punitive damages are not insurable. »
This reform was never followed through but who knows ....
