Bradley Cooper, star of the hit film “American Sniper,” has filed suit in France against the French tabloid “Oops!” concerning a story about his relationship with supermodel Irina Shayk. The lawsuit alleges that the story, which says that Cooper’s relationship with Shayk is now out in the open, violates his right under French law to a “private life.” Oops! retorted that the story was based upon photos that ran in a Spanish magazine and were available in the U.S. (See “Bradley Cooper — Sacre Bleu, I Must Sue Zee French Magazine … Over Irina Shayk.”)
The French Civil Code provides that “everyone has the right to respect for his or her private life.” The Code provides that French courts may make orders directing whatever steps may be required to put a stop to violations of this right. (See “French Legislation of Privacy.”) The European Convention for the Protection of Human Rights and Fundamental Freedoms similarly provides that “everyone has the right to respect for his private and family life.” (See “Protecting the right to respect for private and family life under the European Convention on Human Rights.”)
Cooper’s decision to file his case in France is likely supported by the hope that the French court will take a broader view of his right to a private life than would be taken by the courts here in California.
California courts have recognized a right to privacy, which generally breaks down in four ways: (1) intrusion into private affairs; (2) public disclosure of private facts; (3) placing a person in a false light; and (4) appropriation of name and likeness. However, Cooper would have a tough time fitting his case under any of these categories.
To prove intrusion into private affairs, one must show intentional invasion of a zone of privacy, in which the plaintiff had a reasonable expectation of solitude, in a manner highly offensive to the reasonable person. For example, a doctor’s breast examination of a patient in front of a drug sales representative who was introduced as “someone observing the physician’s work” was wrongful, but taping or surveillance in a crowded restaurant or non-private office in the booking area of county jail was not.
A case for public disclosure of private facts requires proof that the disclosure would be offensive and objectionable to the reasonable person and is of no legitimate public concern. One successful case involved publication of a Little League team photograph in a story concerning a manager who pleaded guilty to child molestation. However, the First Amendment generally bars any action for disclosure of facts that are a matter of public record.
False light involves subjecting a person to unreasonable and highly objectionable publicity that attributes to the person characteristics, conduct or beliefs that are false. These cases are also hard to prove and subject to serious First Amendment defenses where the subject is a public figure and if the matter is of public concern.
Finally, people enjoy certain rights concerning use of their name and likeness. This right generally bars unauthorized commercial use but not use in works of news or entertainment.
Cooper’s case would likely fail in a California court under any of these theories. Apparently the photos on which the story was based were already public, and were not obtained by Oops! through offensive means such as trespass or telephoto lenses. The disclosure of who Cooper may be dating is not highly offensive and is of at least minimal public concern in a tabloid world. The story does not subject Cooper to offensive or unreasonable publicity or attribute to him false characteristics even if he is not in fact dating the woman in question. His rights of publicity in California would not stop use of his name or likeness in news.
In the U.S., First Amendment concerns over free speech and reporting of news often trump attempts to show that the media engage in actionable invasion of privacy. Cooper was correct to aim his fire in Europe, where privacy rights do not have to contend with our First Amendment.