Thursday, July 22, 2021

Rights concerning privacy

Source: Law of Persons Teaching Material

The Civil Code provisions that stipulate rights of privacy protect persons against illegal searches and secure the inviolability of a person’s dwelling place and correspondence.  Rights of privacy also include a person’s rights against public exhibition, reproduction and sale of his photograph or image. 

a) The right against illegal searches 

By virtue of Article 11, no person shall be subjected to search except as provided by law. The first part of this provision prohibits the restriction of freedom against search, except in the cases provided by law, and its latter part forbids illegal searches.  Articles 32 and 33 of the Criminal Procedure Code regulate searches on the person himself or his premises. 

 

 

b) The inviolability of domicile  

“No one may enter the domicile of another person against the will of such person; neither may a search be effected therein except in the cases provided by law” (Article 13/2).  The term “domicile” under Article 13 should impliedly include residence.  The French version uses “la demeure”, meaning ‘dwelling house’ so as to include both residence and domicile.  Articles 604 and 605 of the 2004 Criminal Code (same as Articles 571 and 572 of the 1957 Penal Code) use the term domicile in its wider interpretation.   

 

c) Inviolability of correspondence 

The contents of a confidential letter shall not be divulged without the consent of the author (31/1).  The two exceptions are: first, it may be produced in judicial proceedings; and secondly, it can be produced where the addressee has legitimate interest (31/2). 

The term “confidential” seems to include all letters that are in closed envelope even if they are not marked confidential.  Violation of privacy of correspondence by a person to whom it is not addressed (i.e.- an act of deliberately opening a closed letter or envelope that encloses “correspondence, telegrams, business papers or private communications, or a packet, parcel or consignment of any kind …”) is punishable under Article 606 of the Criminal Code.  

 

d) Inviolability of a person’s image 

Article 27 stipulates that “The photograph or image of a person may not be exhibited in a public place, reproduced, nor offered for sale without the consent of such person.”  


Exception with regard to reproduction 

(Article 28):  

Consent of the person is not required if reproduction is justified by: 

- notoriety of such person,  

- public office, 

- requirements of justice or the police, or, 

- facts, events or ceremonies (that are) of public interest or which have taken place in public. 

According to the literal reading of Article 28, these exceptions are applicable to reproduction of images and photographs, but not to exhibition and sale.  However, Article 29/1 avails sanctions against the exhibition or sale of image without consent except in the exceptions referred to in Article 28.  Thus (unlike Vanderlinden’s commentary on page 52, second para), Article 29/2 renders the exception under Article 28 applicable to exhibition and sale of image or photographs as well. 

Sanctions against exhibition or sale without consent 

(Article 29): 

- Except for the exceptions allowed under Article 28, a person whose image is exhibited or offered for sale without his consent may demand that such acts be stopped. 

- Damages (29/2) may be awarded. And moral damages (29/3) may also be awarded if the act doesn’t cease immediately when cessation is demanded. 

The spouse, or in default, the relatives stated in Article 30/2 can invoke the sanctions under Article 29 if the exhibition or offer for sale of image is prejudicial to the honour and reputation of a deceased person. However, the sanction under Article 29 doesn’t include reproduction of image.  Nevertheless, as long as reproduction of image without consent (27) is forbidden, the sanctions of cessation and damages are self-evident. 


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