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Personality rights in Spain. An introduction
The roots of the protection of privacy and personality rights are set in article 18.1 of the Spanish Constitution, 1978.
A. Consequences of a constitutional level of protection: The Spanish system has divided categories of fundamental rights protected by the Constitution. One of these categories is “fundamental personality rights”, derived from the idea of human dignity. Therefore, those rights will focus on privacy and dignitary aspects rather than commercial interests, especially because a distinct category of “socio-economic rights” exists, but this second category is considered of a lesser importance. Such considerations are visible in some cases, see for example Aragón Alvarez. Moreover, because of this Constitutional protection, those rights are enforceable via a recurso de amparo, a privileged and quick proceeding, which may also involve preliminary injunctions, possible before the Constitutional court, directly or after a misapplication of the Constitution by the Supreme Court. B. Person and personality rights Because personality rights are derived from the idea of human dignity, the person is the touchstone concept of the scope and attributes of personality rights. Thus, assignment of rights is not possible except in some few exceptional cases, see Isabel Pantoja Martín. Those exceptions are only available for a transmission during the person’s life-time but transmission upon death is always impossible, as the courts referred to the definition of “personality” in the Civil Code, article 32: “the civil personality is extinguished at the death of the person”. However, courts have interpreted personality in an extensive sense. For instance, personality does not mean only the actual physical person and protects the whole personal sphere, i.e. it can include the family and all the persons who are close to someone. See Isabel Pantoja Martín.
A. Legislative developments Article 18.1 Constitution has been developed by Organic Law 1/1982 (Ley Orgánica 1/1982 de 5 de Mayo de protección del derecho al honor, la intimidad personal y familiar y la propia imagen)
The importance of the consent is visible in the case-law. The court interpreted the expression “at any moment” to refer to the time of the revocation, but not to its effects. Consequently, a revocation will only produce its effects for future events and cannot be expected to have a retroactive consequence. Therefore, the event for which consent is withdrawn must still be future and not on its way, see Doña Ana García Obregón. Article 8 of the act establishes some limits on personality rights, most of them according to the Constitutional framework, like freedom of expression (See Aragón Alvarez) or information. The courts balance the different interests at stake in all cases, so long as the information is true or not misleading (see Luxury SA). B. Case-law developments The Constitutional court has been interpreting many issues. First, it stated that the various rights protected under article 18.1 are autonomous rights and the finding of the violation of one of them must not induce any conclusion as to the violation of the others. Judges will examine each of them separately. See Doña Elena Riera Blume. Similarly, even if an overlap may be observed at first sight between intimacy, honour and dignity concepts, each has a specific purpose and substance. See Aragón Alvarez. Secondly, it extended the definition of personality with the “physical image, voice, name, qualities which form part of the definition of this person and attributed as inherent and irreducible possessions of each person” and similarly extended the definition of the image as the graphic information generated by the person’s personal physical characteristics.
The courts have distinguished the commercial exploitation. They acknowledged that economic interests exist and should be worthy of protection, (see Aragón Alvarez). They nonetheless considered this aspect should be protected under the usual system of civil proceedings and according to the reasoning of the 1/1982 Act. The main explanation for such distinction is that the economic aspect is really focused on a different use of the right, as the court affirmed in “In this aspect, the right to the image which is invoked is, in fact, the right to dispose of the image … and of its potential economic exploitation,…capable of possessing patrimonial content”. (Isabel Pantoja Martín). However, economic exploitation still seems to remain impossible after the celebrity’s death. Although it would first seem shocking to affirm that legal persons were entitled to personality rights as legal persons are merely economic entities, a new tendency of the court was to take more aspects into consideration. Therefore public knowledge of a defamation of an economic entity would be detrimental where the impact of such attacks is very easy and severe was taken into account and enabled an extension of the idea of personality, as the “personality” of the entity might suffer in Luxury SA. Moreover, the Constitutional Court recalled that because of this commercial value, personality rights could be the centre of contractual negotiations. They could be used to increase a celebrity’s bargaining power. Consequently, the Court has drawn the attention of the judges of this derived use of personality rights, they must examine the real aim of the claim and distinguish whether there has been a real violation of personality rights or whether rights are simply used as a clever tool to strengthen someone’s bargaining power on commercial negotiations. See Doña Ana García Obregón. * Assignment of personality rights * Definition of personality rights * Economic considerations * Freedom of expression and personality rights * Freedom of information and personality rights * Importance and effect of consent * Legal persons
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