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Case Name: Doña Isabel Pantoja Martín v Prographic S.A. Country: Spain Key Words: Documentary about matador, Broadcast death, transmission of rights, anticipation, personal sphere. Court: Constitutional Court, 2nd Chamber President: Doña Gloria Begué Cantón. Judges : don Angel Latorre Segura, don Fernando García-Mon y Gonzales-Regueral, don Carlos de la Vega Benayas, don Jesùs Leguina Villa, don Luis López Guerra. Citation: 19881223 « BOE » num. 307 Case Number: 231/1988 Date: 02/12/1988 Importance: -Personality rights are derived from the idea of dignity of the person, therefore they last only so long as the person is alive, they cannot be transmitted (apart from very few legal exceptions) and the economic aspects cannot be protected under the constitution. -But personality does not mean only the actual physical person and protects the whole personal sphere, i.e. can include the family and all the persons who are close to someone. -Personality rights as fundamental rights are above freedom of information. Facts: Late don Francisco Rivera Pérez was a famous professional matador, known as the “Paquirri”. The society Prographic S.A. created and then commercialized a videotape about bullfights and the profession of matador. The video included some unauthorised images of the Paquirri in his professional activities, and especially the bullfight in which the bull fatally gored him, depicting the actual event, close-ups on the bruises and wounds, and the following medical assistance, both in the arena and in the infirmary. His widow brought an action for violation of right of privacy and to the image, and claimed 40.000.000 pesetas damages. She was attributed 20.000.000 pesetas on first trial and appeal, but the Supreme Court found for Prographic S.A. She brought an action before the constitutional court for misapplication of article 18.1 of the Spanish Constitution. Decision and Reasoning: The Constitutional court found for doña Pantoja Martín after the analysis of three issues: first, whether she was entitled to any sort of action, secondly whether the videotape dealt with a private matter, and thirdly if there was a private matter, whether the recording and broadcasting were an illegitimate intrusion. I. Is the plaintiff entitled to sue ?
The court started to analyse whether any action was opened to the plaintiff. The problem was that she was not linked with Prographic, as the videotape did not show anything about her but only the late matador, it was considered as a foreign party to her and she was only indirectly affected. However, the judges took into account that even if she was a “third party” to any relationship between the late matador and the company, -which was something to be determined as she argued to be directly affected- all the legal means had already been used (i.e. the case had already been allowed up to the Supreme court). This situation is envisaged by article 41.2 of the procedure regulations for the Constitutional court (Ley Organica del Tribunal Constitucional ) which enables the judges to allow a third party to bring an action before them if they think that but for this permission, a fundamental right would stay unprotected and its alleged violation unpunished. The action was therefore authorised.
* Two possibilities: The judges then moved on to the following question: what rights are said to be violated exactly? Prior to this analysis, it had first to be established who the holder of such rights was. A dual argument had been made: first the case dealt with the late husband’s right to the image and right to intimacy, secondly the case also affected the right of privacy of his family because of “the moral harm of such acts done without the consent of the family members, who will remain affected in their pain and intimacy”. * Right to the image: Not transmissible As for the rights specific to the deceased, the judges interpreted the rights protected under article 18.1 of the Spanish Constitution and concluded that they were “fundamental rights strictly related to the own personality, derived without doubt from the dignity of the person protected under article 10 of the Constitution”. This whole sphere of personality implies an “own and reserved range regarding others’ action and knowledge, necessary according to the core of our culture to maintain a minimal life quality”. These rights are closely linked to the person and the existence of this precise individual and can only be exercised by himself/herself. a) Assignment However, the court acknowledged that article 9.2 of the 1982 Act gave a few exceptions to this rule during the person’s life-time. Therefore, when some aspects of those rights are disconnected with the holder’s person, they can be exercised by third parties. Amongst them lies the damage caused to a third party via someone else’s personality right, when this party is included in the article 4 list. This list includes relatives, so there is no problem as to the transmission of some rights during life-time. The article 4 list, however, also includes the legatee or ab intestat rightholder. The question as to whether personality rights were transmissible upon death was therefore raised. b) Transmission because of death The court did not allow such extension. They referred to the definition of “personality” in the Civil Code, article 32: “the civil personality is extinguished at the death of the person”. Therefore, it seemed logical to the judges to conclude that all the rights derived from the person and whose object was the same, i.e. the protection of the personal and reserved sphere, also came to an end at the death of this person. Therefore, they cannot be exercised by someone else or be transmitted after the person’s death: the widow could not bring an action in the name of her husband. c) Economic aspects The absence of transmission upon death had another consequence. The court distinguished another aspect of the right to the image, the economic aspects. “In this aspect, the right to the image which is invoked is, in fact, the right to dispose of the image of a deceased person and of its potential economic exploitation,…capable of possessing patrimonial content”. The economic rights are recognised as distinct rights under the 1/1982 Act, and should be claimed in civil proceedings but not in a constitutional trial. Nonetheless, the court mentioned that such rights are only actionable while the person is alive and will disappear with its object: personality.
Logically, the holder of some article 18.1 rights, as “personal and family intimacy” can nonetheless be the family. In this second circumstance, the case focused more closely on the privacy aspect of the images shown in the video and especially “the character of intimacy of the moments when someone is struggling between life and death”. The privacy of such moments belonged not only to the injured but extended to his family at least by its moral consequences. “The right to privacy extends not only to aspects of someone’s own and personal life, but also to determined aspects of the life of some other people with whom he has been keeping a special and close relationship”. Therefore, the right of privacy accorded to someone should be extended to the whole personal sphere, i.e. at least his family. In each case, the judges will have to examine the relationship between the claimant and the depicted person, but the court stated that “in accordance with the standards of our society” at least there was no doubt at to the closeness of a parent-child or spouses relationship. For this reason, the widow was allow to bring an action in her own name, because the diffusion and marketing of the video had a direct incidence on her rights. The court thereafter established its reasoning in two times, based on two questions: First, do the reproduced images have an incidence on the intimate sphere of the plaintiff? Secondly, do the capitation and reproduction of those images constitute an illegitimate insertion into such sphere? II. Is it a private matter ? The court distinguished between two types of images. * The matador is given medical assistance and taken to the infirmary The video clearly reproduced the moments when the matador was given medical assistance, taken to the infirmary, it showed in close-ups the face, the wounds, the blood, the suffering of the injured and his state of mind. There was no doubt for the judges that such scenes would cause distress to any relative of the injured, not only because of the nature of the situation but also because the injuries depicted so clearly became in a very short moment afterwards fatal to the injured, hence an association would be made between those two moments. The judges concluded that such images were without question in the intimate spheres, personal and family, of the widow. * The bullfighting activity Some other scenes, which could be private on a first thought, were actually excluded because they corresponded to the article 8 list of the law. Indeed, the images were considered as being part of the professional show of the deceased - namely the lidia; i.e., the 4th stage of the bullfight. The judges therefore had to consider whether this recording and reproduction of his professional activity excluded any illegitimate insertion according to article 8.2.a). or whether a defence for informative T.V. programs was sustainable. III. Is there any illegitimate intrusion? * The professional activity The court again rejected the idea that the images inside the infirmary were part of the bullfighting show, and of the professional activity of the injured. Therefore, it could not be assumed that this scene should or could be exposed to the public. An uncertainty nonetheless remained: the Supreme court had upheld Prographic appeal on the ground that the risks of injury or even death is part of the whole activity, and the matador is always perfectly aware of them. However, the Constitutional Court rejected this interpretation: “under no circumstances the incidences on the health or life of the matador, derived from the injuries he sustained, can be considered public or part of the whole show”. It was not possible to convert such a traditional instrument of entertainment into something as much personal as the very death of a person, to consider them both of being of the same nature would be an outrageous contradiction to the principle of human dignity protected under article 10 of the Spanish Constitution. The court gave evidence of this fundamental difference in nature: after the medical assistance arrived, the doctors got the arena to be evacuated, and thereafter transported him to the infirmary, a place which any layman would consider of no public nature. * Public knowledge: anteriority? A defence of “anticipation” was raised: indeed, on the day of the bullfight, the images were broadcast in the Spanish TV news (That was those images which thereafter were incorporated in the videotape). Prographic tried to argue that there had been a diffusion of those scenes with anteriority, therefore the putting into circulation through the videotape did not add anything more than merely reproduce something already in the “public knowledge”. The Court rejected this argument, first the diffusion on the following days in the TV news were a mere reporting of current events but “the diffusion for some times of some images which were considered pieces of news and objects of interests cannot represent a transformation into public images”. The videotape is now totally disconnected with any kind of news, the defence was not sustainable. IV. Result The court annulled the decision of the Supreme court, recognised the widow’s right to intimacy, its violation, sent back the parties before the Supreme Court for another judgement, which under Spanish law will follow the findings of the Constitutional Court. V. Dissenting opinion Judges Don Fernando García-Mon y Gonzalez-Regueral and don Carlos de la Vega Benayas filled in a dissenting opinion. First, they recognised that when in conflict, the rights protected under article 18.1, fundamental human rights were above the “right to give true information”, mere socio-economic rights. However, they considered that in the present case, there was no real conflict because the scenes were wholly part of information, mostly because the videotape was aimed at depicting “the social reality which, whether we like it or not, … forces to qualify as normal the contemplation of wounds and death of the human protagonist by the audience.” Therefore, they estimated that there was no insertion into privacy. Case Name: Doña Ana García Obregón v “Editorial Origen S.A.” and others Country: Spain Key Words: Photographs, revocation of consent, non-retroactivity, assignment of rights, celebrity’s commercial value. Court: Constitutional Court, 2nd Chamber President: Don Eugenio Díaz Eimil. Judges: don Alvaro Rodriguéz Bereijo, don José Gabaldón López, don Julio Diego Gonzaléz Campos, don Carles Viver Pi Sunyer. Citation: 19940531 « BOE » num. 129 Case Number: 117/1994 Date: 25.04.94 Importance: - Personality rights are assignable but cannot be indefinitely surrendered or waived: any consent can be revoked at any time. Revocation is efficient against both the photographer who was directly given authorisation but also to any subsequent purchaser of the images, even in good faith. The consent however can only have effect for the future and compensation must be accorded for any loss suffered, if any, by the other party. - The publication of a monthly magazine is not an “instant act” but consists of a series of stages, therefore the revocation must be notified with appropriate delay. As soon as the pictures are sent for printing, the whole publication is deemed to be a “past conduct”. - Judges must be ensured that personality rights are used to make good a violation and not abused to strengthen a celebrity’s position in contractual negotiations. Facts: Doña Ana Obregón is a Spanish actress. En 1985, she sat for a series of photographs for an Italian photographer in Roma, and for some pictures she selected, gave him for free all rights to distribute them in “fine newspapers”. The photographer sold some pictures to Editorial Origen, the Spanish publisher of “Play boy”, for 1.000.000 pesetas. The plaintiff’s solicitor sent a letter to Editorial Origen twenty days before the putting into circulation of the next monthly magazine, stating her opposition to the publication of the pictures. Notwithstanding this letter, the pictures were published in the following issue. Two days after, the publisher received a second letter with a similar content. She brought an action against Editorial Origen and the Italian photographer for violation of her right to her image for the publication and violation of her honour for the comments made with the pictures. Decision and Reasoning: I. The history of the case It is interesting to have a look at the decisions of the lower courts in this case. The plaintiff argued that she had the right to revoke her consent, according to article 2.3 of the 1982 Act “The consent referred to in the preceding paragraph is revocable at any moment, but the damages or loss thereby suffered, if any, including legitimate expectations, will have to be compensated for.” The first instance court, appeal court and Supreme Court arrived at the same result, dismissing the claim and appeals, but each court focused on a different issue. - First trial: the judges stated that the revocation of consent of article 2.3 was only effective against the person to whom it was originally given, but not against a third party who acquired the picture in good faith. - Appeal: the court considered that the issue of the magazine was already sent for printing when the letter was received, therefore, the economic loss and inconvenience caused by the retrieval of the article at this stage of publication would have been too important compared to the damage of the plaintiff. - Supreme Court: consent cannot be revoked with a retroactive perspective but can only apply for the future, the letters arrived too late. The question before the Constitutional Court was whether the preceding judgements, because they did not consider the revocation of the consent as valid, gave a proper interpretation and application of the right to the image and right to the honour. II. The scope of personality rights A. A definition of personality rights The court started by recalling that the rights protected under article 18.1 were part of personality rights, and as such guaranteed its holder an ambit of freedom concerning her characteristic attributes, “very own and immediate, like physical image, voice, name, qualities which form part of the definition of this person and attributed as inherent and irreducible possessions of each person”(§3). The right to intimacy therefore can intervene at two different stages, first at the time when someone intends to observe or obtain a celebrity’s image, then at a second stage where the obtained picture is intended to be published or put into circulation. B. A permission will always be revocable The court then acknowledged that a conflict between personality rights and freedom of the press, which was one of the reason why the law clearly required consent to be secured. However, it also recalled that rights over the image were intrinsic to the person, she could change her mind, and more importantly she could not waive the right to revoke her consent, the permission will always have a revocable character. C. Taking into account economic aspects The court distinguished between the dignity aspects of the image and its commercial value and “patrimonial content”. Such value automatically leads to negotiations about the use. Consequently, judges have to be particularly cautious not to be confused about the real aim of the revocation: is it because there is a violation of personality rights or is it simply used as a clever tool to strengthen her bargaining power on commercial negotiations? “The show business professionals and artists in general have the same personality rights as anybody else, except for the limits drawn by the publicity of their acts or their fame, they consent frequently to the taking and publishing of their image, which affects sometimes their privacy, but the aim is always to become the object of a commercial exploitation”. But even in those cases, the court concluded that the possibility of revoking her consent had to reaffirmed, because personality rights are above the rights created by the contractual cession. D. Conclusion Therefore, a revocation will always be valid, the loss for the third party must however be made good. However, the question remained against a third party who bought the pictures in good faith. III. The revocation of consent The judges started by acknowledging that the consent given in Roma was valid, even if without financial compensation and that there was no need to discuss as to whether “Play boy” was a “fine newspaper”. The attention was focused on whether such consent was properly revoked. In case of a positive answer, the court would then examine whether the revocation should have had effect on the publication, and if yes, whether damages must be awarded, taking into account at this stage only that she had never received any money for the pictures and mitigate both parties’ loss. A. The scope of the revocation The court rejected the advocate general’s argument that the revocation was only valid against the photographer because of his contractual relationship with the plaintiff. The subsequent purchasers of the pictures would remain subject to any exercise of right derived from personality rights. “The possibility of revocation is not extinguished by its use against the original contractual party who was the first recipient of the authorisation, but also extends to all others who subsequently purchased any power or position over the use of these images”.(§5) This is so because personality rights cannot be “surrendered neither waived”. Therefore: against the Italian photographer and the publisher, the revocation had the effect of cancelling the authorisation as to further operations with those pictures. However, the crucial issue became whether the revocation was efficient at the time it was made to prohibit the publication in “Play boy”. B. The time of the revocation * Interpretation of article 2.3 The judges first stated that the expression used in article 2.3 “at any time” meant without doubt that the revocation could be exercised at any time but that did not imply that its effects would be take place immediately. * Time effect of the revocation First, the way to notify the revocation in a commercial context had to be “a concrete expression without reservation of the will”. Secondly, the revocation must have reached the other party in an honest way and in its entirety. Thirdly, if any loss or damages are incurred, including legitimate expectations, they must be compensated for. When all these requirements are satisfied, the court recalled, the revocation could not have retroactive effects and would only bind for the future. The question to be answered therefore is whether the publication was a already a past or still a future event. C. Publication: past or future event? First, the judges noticed that the revocation did not include any statements as to compensate for the potential loss incurred by the publisher, and this should be taken into account by the court. So should the economic aspect of the whole situation: not only the plaintiff wanted to take back her rights to the publication of the pictures but the publisher would have had to incur loss. The court concluded that Editorial Origen only had knowledge of the revocation when it was already materially impossible to stop the issuing of the magazine without heavy costs. The reasoning was further explained in §8 “on the basis that the publication was not a single and instantaneous event, but an integrated process with a plurality of phases”. Some of the more important phases for the publication of the next issue had already taken place before the revocation, therefore the whole publication was considered to have already happened and to be an already past event, upon which the revocation could not have any effect. Result: The court dismissed the plaintiff’s claim. Case Name: Luxury, S.A. and others v Diario de la Mañana, S.A. and others Country: Spain Key Words: Legal person, documentary about drugs, right to the image, right to the honour. Court: Constitutional Court, 2nd ChamberPresident: don Alvaro Rodríguez Bereijo. Judges: don Vicente Gimeno Sendra, don Pedro Cruz Villalón, don Enrique Ruiz Vadillo, don Manuel Jiménez de Parga y Cabrera, don Javier Delgado Barrio. Citation: 19960112 « BOE » num. 11 Case Number: 183/1995 Date: 11.12.1995 Importance: Legal persons are entitled to claim violation of right to their honour and right to their image. Facts: The magazine “Diario de la Mañana” published an article entitled “the andorranos look for prohibited paradises in El Seu” with subtitles like “Crossing the Andorran frontier has been converted now into a guarantee for forbidden pleasures”. The whole point of the article was to establish that drugs and different types or pornography were of easy access for Spanish in a new “oasis”, the Republic of Andorra. The illustration of the article was the frontage of the “Luxury”, a nightclub in Andorra. The article did not mention anything about this nightclub but it was clearly identifiable in the picture. The owners of the club brought an action in their own name and in the name of the legal person, the Luxury SA for illegitimate intrusion to their right to honour and to the image. The trial judge allowed the claim, but the Appeal court considered that legal persons could not be holders of personality rights. The Supreme Court allowed the nightclub appeal and stated that legal person had a right to honour and image and awarded 2,5 millions pesetas damages. The magazine appeal to the Constitutional Court for misapplication of article 18.1. Decision and Reasoning 1. Legal person: any personality? * The Court The court referred to a previous decision STC 139/1995 where it had said that “the significance of the right to honour neither can nor must exclude from its scope of protection legal persons”. Therefore, the judge rejected this part of the appeal by concluded that legal persons could be holders of right to the honour and to the image. The underlying reasoning is not exposed, and surely this conclusion could be seen as surprising as personality rights are said to be derived from the idea of human dignity, a concept difficult to link to a legal person. The arguments of the advocate general in this case might be helpful. * The “Ministerio Fiscal” arguments The ministerio fiscal (advocate general) concluded in favour of the extension of personality rights to legal persons. He first stated that the affirmation that legal persons were entitled to personality rights would be at first sight shocking as legal persons are merely economic entities and the steady interpretation of personality rights has been to derive them from the idea of personality and human dignity. He maintained however that a new tendency of the court, for example visible in the case STC 214/1991, was to take more aspects into consideration. Therefore he argued that arguments that the public knowledge of a potential involvement or responsibility of the nightclub would be detrimental, especially in a small town where impact of such attacks is very easy and severe should be taken into account and enable an extension of the idea of personality, as the “personality” of the entity might suffer. 2. Illegitimate intrusion? Now that the society has been entitled to claim a violation of its right, the court moved on to the conflict between personality rights and freedom of the press and information. It first stated that it could not be a defence against violation of right to the image, but maybe to right to the honour. The appealants had based their claim upon article 20 of the Constitution, freedom of information. However, the court recalled that article 20.1 is about freedom to disclose “true information”, therefore there is a “special duty to contrast the different sources of information so as to prove the truth of the facts”, even more when the informant is a professional. Putting together the text of the article and the image lead the reader to think that the commercial entity depicted was engaged in the mentioned activities. Therefore, even if the article was in itself neutral so as to the activities of this precise society, the association impliedly made induced untrue information. By doing so, the publication affected the society’s right to honour, without any defence under article 20. 3. Result The recurso de amparo was dismissed Case Name: Emilio Aragón Álvarez v Proborín, S.L. Country: Spain Key words: Drawings Citation: STC 81/2001 Date: 26.03.2001 Number: 81/2001, Recurso de amparo Court: Constitutional Court, 2d Chamber/ Sala Segunda del Tribunal Constitucional President : Don Carles Viver Pi-Sunyer ; Judges : don Rafael de Mendizábal Allende, don Julio Diego González Campos, don Tomás S. Vives Anton, don Vicente Conde Martín de Hijas, don Guillermo Jiménez Sánchez. Importance: The constitutional right to the image as a personality right only protects the dignitary aspects of the person. If a celebrity wants to claim a “right of publicity”, he would have to do so by using the 1982 Act. Drawings depicting a man with distinctive clothes do not violate a celebrity’s image, they are a creative original expression, even if the celebrity is famous for this peculiar clothes style. Facts: The plaintiff, Emilio Aragón Álvarez, is a very famous actor, he is also known for his usual clothes style when he appears on TV: black trousers and white sport shoes. He also wrote and interpreted a song called “My feet smell” (“Me huelen los pies”). The defendant issued a series of graphic representations for a publicity campaign, including some drawings of a man in black trousers and white sport shoes, with the slogan “The most famous person in Spain has stopped to tell you your feet smell”. The ad did not reproduce the plaintiff’s actual face or name and the defendant did not ask for his consent. The plaintiff argued that it was a violation of his right to his own image, as protected under article 18.1 of the Spanish Constitution. He lost on first instance, won on appeal but lost before the Supreme Court. He challenges the application of the Constitution made in this last decision before the Constitutional Tribunal. Decision and Reasoning: 1. The right : What is an “image”? * Two possibilities The plaintiff tried to argue that the object of the constitutional protection was not someone’s image in a restricted sense, but the whole personal identity which, for celebrities, was not only in their actual faces as they could be identified by other characteristics. Conversely, the advocate general, (“Ministerio Fiscal”) submitted that the right to someone’s image existed only because of its relation with the protection of the dignity of the person, therefore such fundamental right could not be violated when the representation of a fictitious person created only for the purposes of commercial activities was used, instead of the actual image of an independent individual. * The opinion of the tribunal: personal physical characteristics The tribunal therefore first considered that the main question in the proceedings was what was meant by “image” in article 18.1 and whether the ad used such image. It stated that right to the image was a personality right derived from the idea of human dignity. Therefore, article 18.1 was aimed at protecting the moral dimension of the person, and enabled the owner of the right to determine the “graphic information generated by his personal physical characteristics” which were to be issued to the public. * The attributes of the right to the image: As a fundamental right, it enabled to prevent the obtaining, reproduction or publication of his own image by a non-authorised party, whatever the purpose of this reproduction or publication. 2. The scope : Image, Honor and Dignity: overlap ? Although in the Spanish Constitution the right to the image is described as autonomous, the court recognised that it was a personality right which, derived from the dignity of the person and protecting his moral patrimony, had a close relationship with the right to honor, and especially with the right of privacy. However, “the specific purpose of the right to the image is to protect against the reproduction of the same, which, although it may sometimes affect someone’s honour or privacy, does not in itself damage his name or reveal his private conduct” The court seemed to distinguish between “someone’s own reserved sphere”, protected by the right to the image and “someone’s intimate sphere”, protected by the right of privacy. The right to the image protects the necessary span to decide freely how to manage his personality in front of others and, “according to our culture”, necessary to maintain a minimal life quality. A kind of self-determination is respected with this right in its constitutional dimension, as the person can choose what aspects of his personality is to be disclosed or preserved from any public diffusion. 3. The limits : Artistic creation, freedom of speech and right to the image As any other rights, the right to the image is subject to some limits. In the present case, the court thought to compare it with the freedom of expression and artistic creation. But it eventually stated that free expression was not exactly the more relevant matter. The judges therefore focused in more details on a second possible limit to the Spanish right to the image. The image in this case is a series of drawings of someone with recognisable characteristics. The court considered that such form of expression did not affect the personal dimension of the plaintiff. The fact that the alleged violating conduct was actually a drawing prevented the court from considering the violation even further, i.e. they would not consider whether the face was sufficiently recognisable or not. Whatever the answer to such question would be, this graphical representation would not affect the plaintiff in his moral dimension as an individual or in his privacy. It is a mere imaginary representation of a celebrity’s external characteristic and that such representation is too “remote from the privacy sphere, from his own image as an individual … and finally from his personal dignity”. 4. The protection : The Constitution protects the dignitary aspect, the law protects the economic interests The right to the image had to be carefully interpreted. It had not to be confused with the right that a person has in the economical or commercial exploitation of the image, in other words, with publicity rights, although the court acknowledged that sometimes the former might affect the latter. It must be borne in mind that the Spanish system separates fundamental personality right and fundamental socio-economic rights. As the right to the image has been derived from personality rights, it cannot be part of two different categories and cannot include a commercial aspect as such. The 1982 Act (“La Ley Orgánica 1/1982)” recognizes to any person a unit of rights related to a commercial exploitation of the image. However, this legal dimension cannot be equally considered to a right protected under the Spanish Constitution, concerned with the protection of the moral sphere and only related to the human dignity. “The protection of the economic, commercial or patrimonial interests of the image has effects on different legal issues. Such issues are not real personality rights and for this reason, even if they deserve protection and are effectively protected, they do not form part of the contents of the article 18.1 fundamental right to his own image”. * Images are new items of the patrimony: consequences ? The court acknowledged the fact that images become more and more economic values and can therefore be said to be a “patrimonial” value. The judges thus discussed whether this aspect had to be taken into account to the application of article 18.1. They referred to a precedent 1987 case (STC 170/1987 30.10. FJ 4) where the court had recognised that the protection to the right to one’s own image needed to be developed according to the increasing role of the media and the parallel evolution of the means of publication, reproduction and broadcasting. However, they concluded that the right had a “personal-only” (personalísimo) goal of protection, i.e. article 18.1 includes only the image as an element of someone recognition as an individual. It was therefore clearly stated two situations to distinguish: - when the plaintiff’s image has been used with a view to or as a means of violating the plaintiff’s intimacy or privacy , - when the plaintiff argues that the appropriated or exploited image has a commercial value The court considered that the two situations were easily identifiable in every case, so it did not need to “elaborate a theoretical general doctrine about the various elements which enable to distinguish between the moral dimension and the patrimonial one”. Case Name:Doña Elena Riera Blume v Interviú Country: Spain Key Words: Naked photographs, documentary about sects, autonomous rights, freedom of information. Court: Constitutional Court, 2nd Chamber President: don Carles Viver Pi Sunyer. Judges: don Rafael de Mendizábal Allende, don Julio Diego González Campos, don Tomás S. Vives Anton, don Vicente Conde Martín de Hijas, don Guillermo Jiménez Sanchez Citation: 20010726 « BOE » num. 178 Case Number: 156/2001 Date: 02.07.2001 Importance: 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. Intimacy includes body intimacy, to be interpreted according to cultural standards. Facts: The magazine “Interviú” published a coverage of sects in Spain entitled “Sex and negotiations in the name of God, Barcelona: the CEI sects”, illustrated with some pictures depicting the plaintiff, an alleged female member of a CEI sect, naked. She brought an action for violation of her right to intimacy, privacy and right to her image and claimed 100 millions pesetas damages. The trial judge dismissed her claim; the Appeal court of Barcelona awarded her 1 million. The Supreme Court allowed the newspaper’s appeal on the ground that permission was not required when the photograph was part of an article included within the area of freedom of information. Decision and Reasoning: I. Personality rights are autonomous rights A. Statement of the autonomy To deal with this case, the court started its reasoning by stating that the rights to the honour, to intimacy and to the image were autonomous rights. Each of them has its own characteristics and substance. Although one must acknowledge “that as personality rights they are all closely related because they are derived from the concept of human dignity and aimed at protecting someone’s moral dimension, each has a specific content”. Moreover, finding the violation of one of them would neither prevent further investigation as to a violation of another right nor lead to the automatic conclusion that the others have been violated too. Conversely, interaction is possible and one same act, like the reproduction of someone’s image can violate both right to the image and privacy. This autonomy implies that none of the rights is considered as a generic right which would automatically spread inside other fundamental rights: it will all depend on the facts of the case. B. Consequences Consequently, a separate perimeter must be defined for each right. For the court, the analysis of the scope of the right to the image must be the analysis of “the protection regarding the graphic reproductions of a person which do not violate her honour or privacy”. From a more practical point of view, when someone asserts that the use of his own image amounts to a violation of two or more article 18 rights, he must make distinct claims and pretensions, and the court will examine each of them separately. II. New aspects of someone’s intimacy A. New intimacy unveiled: body intimacy A steady constitutional doctrine has established that article 18.1 rights are fundamental rights derived from the idea of personality and its dignitary dimension as protected under article 10 of the Constitution. Using this background, the court with this case extended the dimension of personality rights to include a new aspect of personal intimacy: body intimacy. By this way, “remains protected by the legal order the feeling of personal decency”. The reason to include this new aspect however comes from cultural values. First, the court affirmed that personal decency must be protected because it amounts to criteria firmly rooted in the culture of the community. Then, it repeated that the scope of body intimacy protected by the constitution was “not a physical entity but cultural, by the dominant criteria of our culture about corporal demureness”. Consequently, a violation of body intimacy will be upheld only if, in addition to the mere reproduction of a body part, such reproduction is regarded by cultural standards as a violation of somebody’s shyness and usual corporal demureness. B. Economic aspects The court stated that the constitutional protection did not overtake the patrimonial aspect. Rights related to commercial exploitation of the image are worthy of protection, but will be protected under regular civil law proceedings and according to the 1982 Act. Therefore, economic aspects are not included in the scope of the fundamental right to the image. III. Information and public interest: limits to personality rights ? Personality rights are not absolute; and conflicts with other rights impose some limits on them. The court recalled that when an intrusion is necessary to achieve a legitimate purpose, by proportionate means and which are necessary to produce the minimum affectation in the scope guaranteed by this personality right, then the intrusion will not be illegitimate. * Privacy In the present case, as for privacy, the photographs were taken in a private place and depicted private part of the body, which leads to the conclusion that such degree of intrusion makes it illegitimate. The circumstance that the plaintiff was a member of a sect which praises sexual intercourses between its member does not convey that she has lost her rights over her privacy and body intimacy. The right to disclose information to the public here did not force the newspaper to publish those pictures. * Right to her image The right to her image includes “the unconditional right and without reserve to prevent the physical features which identify the person from being captured or published… but like any other right, it is not absolute”. The determination of the possible limits must take into account the teleological dimension of this right. Thus the court had previously concluded that “the capture and diffusion of the person’s image will only be admissible when the person’s own conduct or the circumstances where the conduct appears justify that the level of reserve be lowered so that the public interest could prevail” (STC 99/1994). This level will therefore first be lowered by the own will of the rightholder. However, the public interest will sometimes be considered of greater importance and prevail over someone’s interest I keeping information hidden. Is it the case here? The court first stated that the photograph reproduced physical image clearly identifiable, so there was an intrusion in her right to her image. Can the public interest be a defence? Although it could justify an intrusion in a right to her privacy and image, the fact that she was naked is far too disproportionate. IV. Result The court rejected the argument of the appeal that the text in the article amounted to an intrusion into her privacy and her honour but declared that the publication of the photographs of somebody clearly identifiable was a violation of her right to privacy and right to her image. V. Dissenting opinion Don Vicente Conde Martin filled in a dissenting opinion. He considered that the Supreme Court was right in holing that the newspaper did not need any permission as the photograph were mere accessories to the article which was allowed as included in the area of freedom of information. Therefore the publication of the photographs was overridden by the protection of public interest.
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