Police have opened an investigation into the photos, including one of the President on a jet ski wearing swimming trunks, which appeared as part of an exhibition from paparazzo Thibaut Daliphard in Paris earlier this month.
The Macrons are not the only political figures unhappy about photos of them being published. Far right pundit and possible presidential candidate Eric Zemmour has also filed a complaint against the magazine Paris Match after a photo showing him in the sea, very close to one of his advisors, made the front page.
Zemmour’s lawyer Olivier Pardo told BFMTV he would be pursuing the complaint, since the photos violated the polemicist’s right to privacy, and there was “intent to cause harm” to his reputation.
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It’s not unusual for public figures to take publications to court to defend their right to privacy, but how much are photographers able to get away with?
What the law says
“Everybody has the right to privacy.”
That simple phrase is enshrined in Article 9 of the French Civil Code and the courts’ definition of what constitutes a private life has been pretty broad including love life, friendships, family circumstances, religious or political opinions and state of health.
Within this is the bit that covers photos and videos – it’s called the droit à l’image (image right) and states that everybody has a basic right not to have images of themselves published against their will.
However, exactly how this is applied – particularly when it comes to public figures – relies on precedent and can get pretty complicated.
When it comes to photos taken in a private space, the photographer usually requires the consent of their subjects when they can be identified. France’s penal code states that taking or publishing a photo of somebody, taken in a private place without their consent, is punishable by up to a year in prison and a €45,000 fine.
It is worth noting that a car is considered a private space, which is why a French court ordered Closer magazine to pay damages to actress Julie Gayet, after publishing a photo of her allegedly on her way to meet then-president François Hollande, with whom she was having an affair.
Journalists and media organisations do have the option to argue that the publication was in the public interest, but the test for this is strict and – as the Gayet case shows – the simple fact of someone having an affair may not meet it.
In public spaces, no particular authorisation is needed if – crucially – a public figure is aware that their photo is being taken or if the image illustrates a newsworthy event.
So you are also allowed to publish photos of public figures on the campaign trail, but paparazzi shots on the beach would be more difficult to justify.
For ordinary members of the public in general consent is required, unless the publication is in the public interest or if the person is pictured as part of a large crowd, for example at a demonstration.
The law on publishing all types of images of under 18s is very strict, while relatives can make a complaint about the use of a dead person’s image if the publication adversely affects their reputation. It’s worth pointing out that ‘publishing’ includes posting pictures on social media.
It is often said that people in France are more willing to ignore facts relating to politicians’ private lives, and this has traditionally been reflected in the law. But, influenced by the European Court of Human Rights, French courts have in recent decades given increasing weight to the question of whether photos or information published are in the public interest.
Which is what it could come down to in the case of Zemmour.
“What can it do for intellectual and political debate to know how Eric Zemmour swims, how he looks in a swimsuit at the beach?” his lawyer said.
Paris Match on the other hand has argued that Zemmour’s advisor, Sarah Knafo, is key to his rise as a political figure.
Photos regularly published
Considering the strict rules in place to protect privacy in France, it can seem surprising that magazines don’t seem deterred in their pursuit of scoops. Nanterre in Paris’s suburbs has seen a long string of public figures parading through its court over the years seeking compensation for having had their privacy violated.
In 2015, two celebrity magazines were fined for taking photos of Hollande and Gayet at an official country residence in Versailles.
In 2017, a French court ordered Closer to pay €100,000 in damages to Britain’s Prince William and his wife Kate Middleton after publishing topless photos of her in 2012.
Magazines may decide that any potential fine is worth it when compared to the increase in sales a particular scoop could bring. But editors are more likely to cite the public interest when defending their decisions.
“To say we’re ‘making money’ with this subject, that the additional sales cover the damages, that overall we come out ‘on top’… that’s the most demagogic argument used against celebrity magazines in general, and it’s also the most wrong,” Closer’s editorial director Laurence Pieau told Le Point in 2014, after her magazine published photos of Florian Philippot, then vice-president of the far right Front National, with a man it claimed was his partner.
“France has the most restrictive laws on this issue. Damages are much higher than anywhere else. In the United States, people practically never sue, because they consider it to be part of the job.”
Despite the magazine’s claims that the photos were in the public interest due to Philippot’s opposition to gay marriage, Closer was ordered to pay the politician €20,000 in damages.
The August summer holiday at Bregancon is a long-standing traditional for French presidents and past French leaders had often posed for photographs in an attempt to head off paparazzi, beginning with Charles Pompidou and Valery Giscard d’Estaing in the 1970s.
But while later presidents, including Macron, continued the tradition, paparazzi photographers have staged ever bolder attempts to snap them in private moments.
Both Nicolas Sarkozy and François Hollande and their partners were also photographed without their knowledge in their swimming trunks in the azure waters lapping at the foot of the fort.