Framework and history
The term ‘privacy’ used in the common law literature corresponds in France to the topic of ‘protection of the personality’ or ‘rights of personality’. This concept is relatively new in French legal history, since it appeared only in the second half of the nineteenth century. Indeed, the French civil code, or Code Napoléon of 1804, does not contain any provision concerning the protection of the personality. Rather, the most important theme of the Code civil is ‘property’, even if it has a philosophical connotation stemming directly from the natural rights doctrine.
As early as the middle of the nineteenth century, the reproduction of a person's likeness began to attract the attention of jurists and was soon considered to be the subject of an exclusive right, the exact nature of which remains, however, unclear. The judicial decision in the Rachel case, concerning a famous actress who was portrayed on her deathbed, is seen as the birth of the right to one's image in France. In this judgment, dated 16 June 1858, the civil court stated that
no one may, without the express consent of the family, reproduce and make available to the public the features of a person on his deathbed, however famous this person has been and however public his acts during his life have been; the right to oppose this reproduction is absolute; it flows from the respect the family's pain commands and it should not be disregarded; otherwise the most intimate and respectable feelings would be offended.