Circumstances in which a private investigator may lawfully obtain video evidence in France of suspected fraudulent claimants for presentation to the British Courts.
The profession known as “private investigator”, which consists of "collecting information for third parties in order to defend their interests, without revealing in which professional capacity or disclosing the object of the mission" (Article 20 of the Act n°83-629 of July, 12, 1983), is subject to various criminally sanctioned rules (1).
Moreover, the act of obtaining video evidence must comply with criminal and civil rulesensuring respect of privacy, and the person’s image right (2).
1. RULES APPLYING TO PRIVATE INVESTIGATORS
1.1 Rules
Act n°83-629 of July 12, 1983 provides that exercising the profession of private investigator is
a criminal offence where:
- a licence has not been issued;
- performance of the activity mentioned in section 20 is subcontracted to a person
without a licence;
- the person also performs activities such as
o Providing services relating to human or electronic surveillance and guarding
movable or immovable property and safety of people in these buildings;
o Transporting and monitoring jewellery, funds, or precious metals;
o Protecting the physical integrity of persons.
It is also specified that private investigators shall neither obstruct the free use of property in anyway, nor use coercion against anybody.
1.2 Penalties:
1.2.1 For the private investigator:
Under Articles 31 and 33 of Act n°83-629 of July 12, 1983, legal entities convicted of the aforementioned offences incur, amongst other penalties, a maximum fine of € 225.000,dissolution, and confiscation of the product of the offence (i.e. the video evidence).
1.2.2 For any client of a private investigator:
Although only the private investigation agency (or any natural person pretending to be a licensed private investigator) may be the perpetrator of such offences , the clients of such agencies may, in certain circumstances, be considered to be their accomplices.
The notion of “accomplice” is defined by article 121-7 of the French Criminal Code as follows:
“The accomplice to a felony or a misdemeanour is the person who (…) by means of a gift, promise, threat, order, or an abuse of authority or powers,provokes the commission of an offence or gives instructions to commit it”.
Thus, if the person of whom you obtained video evidence is able to prove that you knowingly, ordered and gave instruction to a private investigator to commit one of the offences detailed above, you may incur the same penalties.
1.3 Recommendation:
In order to avoid any risk of criminal sanction, or having the video evidence confiscated, you should always verify that the private investigator instructed to obtain the videoevidence has a valid licence, delivered by the Prefect of the place where the investigator is established. Such verification can be made by calling the “regulated professions” service of the competent Prefecture.
2. COMPLIANCE WITH RULES ENSURING RESPECT OF PRIVACY AND
DATA PROTECTION
Private investigators and their clients must comply with the Data Protection Act, dated
January 6, 1978, n°78-17, which:
- requires declaration to the French Data Protection Authority of (known as the CNIL)
of any processing of personal data, such as video evidence;
- forbids, without the express agreement of the persons concerned, the recording or
preserving in a computerised memory of personal data which directly or indirectly
reveals: racial origins, political, philosophical or religious opinions, or trade union
affiliations, or their health or sexual orientation.
However, those rules only apply to the processing of data on the French territory, and
therefore should not concern you as long as you processes such data in the UK.
2.1 Under Criminal law:
2.1.1 Definition of offences:
2.1.1.1 Violation of the intimacy of private life :
Article 226-1 of French Criminal Code defines this offence as a “wilful violation of the
intimacy of the private life of other persons by resorting to any means of (…) taking,
recording or transmitting the picture of a person who is within a private place, without the
consent of the person concerned”.
The elements to be evidenced are therefore:
- A recording of pictures (whatever their quality);
- The absence of consent of the person concerned;
- The intention to violate the intimacy of the private life of the person pictured;
- The private nature of the place where the person was pictured.
According to case law:
« The private place must be defined as a place that is not open to anybody unless
authorized by the person who lives, temporarily or permanently, in this place » (CA
Besançon, 5 jan. 1978, D. 1978.357, note Lindon, JCP 1980. II. 19449, note Bécourt).
In contrast, “must be considered as public place, a place accessible to everybody without
special permission from anyone, this accessibility being either permanent and
unconditional, or subject to certain conditions” (TGI Paris, 23 oct. 1986, Gaz. Pal. 1987.1,
jur. 21).
For example, hospital or hotel rooms are thus usually considered as “private places”, whereas
shops are generally considered as “public places” during opening hours.
2.1.1.2 Keeping, Bringing to the knowledge of a third party, Use of the surveillance footage :
Article 226-2 of French Criminal Code punishes acts of “keeping, bringing or causing to be brought to the knowledge of the public or of a third party, or the use in whatever manner, of any recording or document obtained through any of the actions set out under article 226-1”.
The pre-condition of this offence is that the video evidence is “obtained through any of theactions set out under article 226-1”, i.e. that the person filmed is in a private place.
It should be noted that French Courts would have jurisdiction to punish such an offence evenif the keeping, the bringing to the knowledge of a third party (who can be an expert or a judge) occurs outside the territory of French Republic.
2.1.2 Criminal Penalties:
Under Articles 226-1, 226-7, 121-7 and 131-38 of French Criminal Code, the perpetrator or accomplice to such offences incurs a maximum fine of € 75.000, as well as being prohibited from engaging in the professional activity in the performance of which the offence was committed, and publication of the decision.
2.2 Under Civil law:
2.2.1 Applicable Rules:
2.2.1.1 Breach of privacy :
Article 9 of the French Civil Code, which provides that: “Everyone has the right to respect for his private life”, not only protects individuals against disclosure, but also investigation, of their private life.
The French Cour de Cassation [Supreme Court] indeed stated that
- “the fact of hiring somebody in order to spy, watch over or follow a person, characterizes an unlawful interference with the privacy of a person” (Civ. 1ère, 25 juin 2000 ; civ. 2ème, 3 juin 2004);
- “the verification of the address of a person for purposes of establishing certification constitutes an arbitrary interference with privacy, since this verification was accomplished by investigations into the conditions under which that person occupied the accommodation” (Civ. 1ère 6 mars 1996).
2.2.1.2 Breach of image rights:
Even if it is also based on Article 9 of the French Civil Code (on breach of privacy), the right to protection of one’s image is distinct from the right to privacy in case law, and can therefore justify additional damages (Civ. 1ère, 10 May 2005).
Thus everyone has a right to oppose to the distribution of an image of oneself, irrespective of whether the person is in a public or a private place, inasmuch as the image appears in isolation due to framing (Civ. 1ère, 12 December 2000).
2.2.2 Sanctions:
2.2.2.1 Damages:
Although breach of privacy, or image rights, is enough to obtain damages, without the victim having to prove fault, harm, and causal link (Civ. 1st, November 5 1996, No. 94-14798), the victim has to prove the extent of damage alleged (TGI Paris, 8 Jan. 2003), for it to be evaluated.
In the hypothesis of a breach of privacy effected for production before a Court (and not for!dissemination in the press), no financial prejudice may be recovered.
As to non-financial prejudice (which may be the feeling of being affected in one’s tranquillity,honour, modesty, delicacy, intimacy, freedom etc.), this can be evaluated by the courts, using various criteria, such as:
- How the violation was committed, for example by using a telephoto lens giving the applicant a “feeling of being tracked down, caused by the supervision to which he is subjected” (TGI Nanterre, 20 Jan 2006, prev.) ;
- “The repetition of breaches of privacy caused to the victim, committed in disregardof its opposition” (Versailles, 23 sept. 1999, CCE 1999. Comm. 25, obs. A. Lepage);
- “The extent of dissemination” (TGI Paris, 28 janv. 2008).
The damages granted by the courts often amount to only one euro, and rarely exceed a few thousand Euros.
2.2.2.2 Non-admissibility of the proof before the French courts:
Proofs illicitly or dishonestly obtained may be declared inadmissible by French civil and commercial Courts.
Thus, although video evidence is commonly collected by French private investigators, it is quite rarely presented to the courts. In practice, the party which instructed a detective agency usually communicates only a written report to the Court, mentioning the existence of pictures/video evidence, thus leaving the court to decide whether to authorise their disclosure or not.
2.2.3 Recommendations:
In order to avoid any criminal penalties, one should never order investigations of any kind in private places.
As to civil sanctions, in as much as, in your case, the video evidence has to be used beforeEnglish courts, admissibility of the proofs illicitly obtained depends on English procedural law. If indeed such proofs were admissible under English procedural law, it could be worth using such video evidence, since the damages potentially incurred before French courts for having violated privacy civil law are usually quite low in this kind of matter