Have you recently participated in a podcast and are wondering what uses the recording could be put to?
Benjamin Mourot, a lawyer specialized in Intellectual Property and New Technologies associated with the Bignon Lebray law firm in Lille, explains to us how French law protects you against any pernicious use of your voice.
But before anything else, there is still one detail to settle...
" I give my consent for you to reuse my voice and the content of everything I say ".
With this sentence recorded, we have Benjamin's explicit and informed consent to quote him. The interview can begin.
Let's start at the beginning. Benjamin, legally, what is a voice?
" Voice is two things. First of all, it is an element that emerges from the personality of a person. It allows you to individualize someone. Second, voice is a vehicle for ideas, in other words, the way you formalize ideas."
According to French law, by what principles is a voice protected?
" The right to one's image, the right to privacy, the right to voice are part of a pool of rights that we identify as the right to personality, in other words the rights that relate to the person. In the same way as image and privacy, the right to voice is protected by article 9 of the Civil Code, which states that everyone has the right to respect for his or her private life. It is on this basis that paparazzi are condemned, for example.
And then as a vector that serves to convey ideas that will be materialized in a speech, the voice is protectable under copyright. One cannot do just anything with the voice of a third party, be it a private person or a public person.
For example, there are urban myths that circulate, which say that a person whose job is to sell his or her image no longer owns it. This is not true. The sound recording of a voice, whatever it is, is protectable. It is forbidden to take someone's picture or record their voice without their consent.
Recording someone without their knowledge is also sometimes a violation of correspondence. One cannot make phone taps without judicial authorization, it is a violation of the secrecy of correspondence. You cannot record a customer who calls a customer service without informing him that his conversation can be recorded.
Finally, the CNIL has also confirmed that a voice is personal data since it allows the individualization and recognition of its owner. From then on, it is personal data and all personal data fall under the RGPD and require explicit consent, legal bases, framing... Any exploitation of an element of someone's personality must be subject to authorization and framing. "
Against what risks is a voice protected?
The most famous example of misuse of a third party's voice is probably the case of Cyril Mazzotti. In 2008, the French actor recorded his voice for the needs of a company specialized in voice synthesis, without knowing what use it would be made of it. He was far from suspecting that a few years later, he would find himself in the pocket of millions of people by becoming, without his knowledge, the French voice of Siri! His American counterpart, Susan Bennett, had the same misfortune. Cyril Mazzotti launched a legal procedure against the company that sold his voice to Apple, and Susan Bennett against Apple ... Without result. The two actors have since been replaced by new voices.
Another striking example of exploitation and broadcasting of a voice without the consent of the person concerned: In 1980, in the radio program France Musique, excerpts of recordings of Maria Callas' voice were broadcast... Personal excerpts, which according to her heirs, she did not wish to make public. The Tribunal de Grande Instance of Paris concluded that "the voice is an attribute of the personality, a kind of "sound image" whose diffusion without express and special authorization is wrong".
" Using someone's image for other than authorized purposes is tantamount to a lack of consent. Either you give your consent for a certain purpose or you do not. As soon as we go beyond the purpose for which you consented, you have not consented. Then we fall into the trap of illegal capture or distribution," summarizes Benjamin Mourot.
Is the absence of consent a criminal offence?
" And even more so, you can't take a picture of someone you pass on the street with your phone without their permission. Capturing someone's image without their consent is a criminal offence that can land you in jail for up to 1 year. In addition, reusing that photo and distributing it without the person's consent is another criminal offense."
It is therefore necessary to have the consent of the person recorded both for the capture of the voice and for its broadcasting?
" Yes, capturing is one thing and reuse, distribution is another. It is necessary to have a double consent. It is valid for the image but also for the voice. In essence, if you record someone, it's because there is an interest in recording them, there is always a presumption of broadcasting when you make a recording."
How do you obtain consent to record a person's voice?
" Consent can be given in any way. The real problem is to be able to prove it. The lawyer that I am will tell you that it is better to have a written document, because if we have to prove this consent, it will be easier to prove it in writing by detailing what will be done with the data. Especially since in certain matters such as personal data, if the use is not well informed, and the person who is the subject of the collection is not well informed, he or she can withdraw consent. That's why it's better that it's in writing, so that the person giving consent has had all the information."
And what about a voice in a crowd?
" If we recorded background noise, if you trigger a microphone on the street and we can't recognize the people because there's a hubbub, it's not a problem, just like the crowd image with the people from behind."
How long is it possible to use a person's image or voice?
" It's directly related to the consent of the person and how you can prove it. My advice as a lawyer is to have someone write down, when you do a capture, that they authorize the capture on the one hand and the broadcast on the other hand, for a period of so many years from the capture.
As broadcasters, you have the obligation to respect the broadcasting time limits that you have been given. When you broadcast, it is up to you to set up broadcast structures so that you can activate or deactivate the broadcast and simply delete the traces in time.
At the end of the number of years indicated, there is no more right to the image, so you no longer have the right to exploit the capture. On the other hand, if the registered individual has not authorized you otherwise and if you do not justify yourself, you no longer have the right to hold this recording since it is personal data. So after the number of years indicated, the law requires you to delete the record if the person is identifiable in it, unless you ask for consent again."
What is the impact of new media on the use of voice and the protection that must be provided?
" In the long run, starting from a recording, we could make a person say anything. Formats, means, methods change very quickly, but the right to voice is quite known and quite stable. Technologies have multiplied the exposures. For example the podcast is developing more and more and is multiplying. It tends to replace the radio in particular. I am thinking of Spotify and others that broadcast podcasts on demand, that allow us to choose programs; this is something new, but legally nothing changes, it remains a phonographic recording. To tell you the truth, the right to voice, it's something that's pretty visible."
The voice seems to be well protected by the French law...
" On the voice, 3 legal protections are superimposed. You have the right to the image on the voice. Whatever I say, my voice is as such protected. Then, you have the copyright on the content of what I am going to say: if it is intelligent, new, original, it is protected by copyright. Finally, my voice is also protected by personal data rights. These three layers of protection overlap.
You have a civil component, mainly with Article 9 of the Civil Code on the right to personality, and a criminal component on unauthorized capture and dissemination.
Note also that you have a copyright infringement component on intellectual property, and a repressive component of personal data, if you ever record someone without warning or without collecting his authorization.
It is rare that we have protection with so many safety nets. It is mainly because we are dealing with something that touches on the human being and on a right of the personality. Your image, just like your voice, will be protected in the same way. It is a double, even triple, quadruple protection. To be very clear, a voice is still very, very well protected."
Your voice is an attribute of your person particularly well taken into account and protected by the French law. Don't worry, you have little chance of finding it in the depths of the Internet if you have not given your authorization for it. The use of a voice, as well as the use of a person's image, is governed by a large part of French law. Find out about your rights, express them, be aware of the use that can be made of your image and do not hesitate to call upon a lawyer specialized in this matter if necessary!