Kamel Daoud Affair: Between Fiction and Reality, How Far Can the Perpetrators Go?

Sued for breach of privacy by Saâda Abane, the author Kamel Daoud is accused of having used her story in his novel Houris , which won the Prix Goncourt last November.

This woman was a patient of the wife of psychiatrist Kamel Daoud. Kamel Daoud and his wife are accused of using the story of this young woman, a survivor of a massacre during the Algerian civil war in the 1990s, without her consent in writing Houris .

Other authors before him have faced such accusations. These cases are flourishing thanks to the craze for autofiction. "It's totally contemporary," said Elvire Bochaton, a lawyer specializing in intellectual property law, interviewed by BFMTV.com, emphasizing that "compromises" are often reached before going to court.

Hélène Devynck thus concluded a legal contract with her ex-husband, the writer Emmanuel Carrère, to no longer appear in his books and in particular in Yoga , published in 2020, after their divorce. "I don't want to be written against my will," she argued in an interview with Le Monde at the end of 2020. The journalist, who throughout their life together appeared in several of Emmanuel Carrère's books - D'autres vies que la mienne tells the story of her sister Juliette Devynck -, wanted to protect herself. "No one wants to be described, after a divorce, without being able to respond."

So what can be done when we draw inspiration from reality and talk about our loved ones, as Emmanuel Carrère often did?

"There is freedom of creation and expression, but it is not without limits," analyzes Elvire Bochaton. "The judge will weigh up the situation and decide which of these two freedoms (freedom of creation and respect for privacy) has been most violated. As the saying goes, 'One person's freedom ends where another's begins.'"

Some authors have been convicted after their relatives, or people described in their novels, took legal action.

Christine Angot , the queen of autofiction, was thus condemned for "invasion of privacy" for having revealed in Les Petits , in 2011, elements of the intimate life of Elise Bidoit, the former partner of the man with whom the author shares his life. In the novel, the character was named Hélène, but the character was identifiable. Christine Angot recounted the battle between the two ex-spouses for custody of their children, the "little ones" who give the book its title.

"When his book came out, I tried to end my life. Everything in his book is true, it's my life," Elise Bidoit said during the trial.

Christine Angot was ordered to pay 40,000 euros in damages to Elise Bidoit.

The courts also considered it an "aggravating circumstance" that Elise Bidoit had already sued Christine Angot for her previous novel, Le Marché des amants , in which she also appeared, before reaching a financial settlement with the author.

It was also a close friend of the writer Lionel Duroy who obtained his conviction for invasion of privacy. The author had been sued by his son Raphaël, who was awarded 10,000 euros in damages for invasion of his privacy, in the novel Colères , published in 2011 and describing his conflictual relationship between father and son. The author, who attributes drug problems to him, reproduced an email from his son in his book.

"There is no legal definition of privacy," emphasizes Elvire Bochaton. "Throughout the decisions, the notion of privacy has been broadened to include various elements such as religion, political beliefs, correspondence, and family life. Broadly speaking, anything that is not known in the public sphere is considered private."

In the novel Fragments of a Lost Woman , which led to Patrick Poivre d'Arvor being ordered to pay his ex-partner €33,000 in 2015, the author also published excerpts from their correspondence and details of their relationship. The court ruled that "the literary techniques used do not allow the reader to differentiate the characters from reality, so the work cannot be described as fictional."

Furthermore, changing the names of the protagonists is not enough to avoid privacy claims. "It's a big myth: no, it's not enough," confirms Elvire Bochaton.

"The person must be completely unrecognizable. Adding fictitious elements doesn't change anything either if the person is recognizable."

"Sometimes authors post disclaimers at the beginning of their novels, but these have no legal value either. You can't avoid liability by putting a warning in."

Régis Jauffret, who never mentions Dominique Strauss-Kahn's name in his book, The Ballad of Rikers Island , was convicted of defamation. The book recounts the Sofitel affair , which led to the former IMF chief's resignation in 2011.

In June 2016, the Paris Criminal Court sentenced the writer to a suspended fine of €1,500 and €10,000 in damages for moral prejudice for certain passages in his book that used the term "rape," even though DSK had not been convicted of these acts. The court also banned any new editions of the novel containing the passages deemed defamatory.

"It is not enough, in order to claim to escape any conviction, to hide behind the express qualification of 'novel'," the court ruled.

For the courts, Régis Jauffret "has completely disregarded the conclusions reached in the American proceedings […] which resulted in the prosecution being abandoned."