Voodoo and law may appear as odd bedfellows but go tell that to the French.
Sarkozy’s case, interesting though it may be to political pundits, is also fascinating from a legal perspective as it pits the right to privacy against freedom of expression, particularly the right to satire and caricature of political or other public personalities.
In October of 2008, Tear Prod, a French toy manufacturer began distribution of a voodoo doll of French President Nicolas Sarkozy. The packaging included a small-stuffed doll with the likeness of the French president printed on its head. Twelve pins were included and suggested insertion points imprinted on the doll.
The notice on the packaging referred to the consumer’s "hate" for Sarkozy and asks whether he "thinks before talking".
Within days of its release, Sarkozy sent the manufacturer a demand letter asking that the product be recalled. When this was ignored, the French president petitioned a Paris court for a declaration that his privacy rights had been breached and on that basis, injunctive relief.
Sarkozy relied on §8 of the European Convention on Human Rights ("Everyone has the right to respect for his private ... life") and especially §9 of the French Civil Code:
"Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order."
Sarkozy’s lawyers argued that a right to privacy includes a right to prevent someone else from merchandising their likeness or image. This is trite law.
But in anticipation of Tear Prod's defence, Sarkozy's lawyers added that while there may be a "freedom of expression" right to satire and caricature in regards to public officials and events as far as defamation claims goes, it does not act as a shield from an action for breach of privacy rights.
In any event, his lawyers conclded, a voodoo doll is not political satire. While admitting that as President of France, he is exposed to satire and caricature in written material, the voodoo doll was simply a "gadget".
The manufacturer replied that the doll could not be looked at in isolation. This was a package which included an instruction manual.
And that manual was rife with satire presenting the doll to consumers as a way for them to affect Sarkozy’s tenure as French President.
An extract from the Sarkozy voodoo doll manual:
- "Do you hate Nicolas S.? Are you thinking of taking a second job to pay your bills?
- "Thanks to our special sorcerer, you can prevent Nicolas S. from causing more damages.
- "What are you waiting for? When you retire at the age of 87, it will be too late."
Tear Prod's voodoo dolls was not that much different from the American publisher's Running Press' Hillary Clinton doll of 2007 which was advertised as: Stick It to Her Before She Sticks It to You! or the George W. Bush version: Stick It to Him Like He's Been Sticking It to You!
The Paris court heard Sarkozy's case on October 24 and rendered judgment on October 29, ruling against Sarkozy and he was ordered to pay Tear Prod’s costs.
Sarkozy quickly appealed.
That appeal was heard in short order; a month later, November 28, the Paris Court of Appeal accepting the appeal. But it was a hollow victory for the French president.
The appeal court held that caricature and satire:
"... even if deliberately provocative and disgusting, forms part of the freedom of expression and of opinion."
But the court was concerned with the idea of pricking the image of Sarkozy with needles and the invitation this left with the consumer to cause physical harm upon the actual person of the French president. This, the Court of Appeal ruled, was a disproportionate abuse of the French president's privacy when weighed against freedom of expression and of political commentary.
In true voodoo justice, Tear Prod was then held to appose a very precisely worded warning, 3mm wide, on each package of the doll, to read as follows:
"It has been held that the invitation to the consumer to pick the doll included herein with needles provided in the packaging, presupposes physical harm, albeit symbolic, and is a violation of the privacy rights of of Mr. Sarkozy. Judicial injunction."
Tear Prod was ordered to pay the French president a single Euro in damages, and his costs of 2,000 Euros.
By February of 2009, Sarkosy’s popularity rating in France had plummeted. Indeed, the international economic recession has certainly been a factor but perhaps the French president was right to be so fearful of the effect of these voodoo dolls.
In the law books, this case may stand as a partial victory for political satirists and caricaturists, but one with many needle holes.
- Bennhold, K., The Herald Tribune, October 30, 2008, "France enjoys Sarkozy's voodoo doll setback"
- Le Monde, October 30, 2008, "Poupée vaudou: Un echec judiciaire inédit pour Sarkozy"
- Sarkozy v Tear Prod, Paris Court of Appeal, decision dated 28 novembre 2008, published at http://www.legalis.net/jurisprudence-decision.php3?id_article=2505
- Sarkozy v Tear Prod, Tribunal de grande instance de Paris, Decision of 29 octobre 2008, published at http://www.legalis.net/jurisprudence-decision.php3?id_article=2504