One’s own image rights and, in this case, the right to not have photographs published without express consent are concepts which we can arrive at by analysing specific cases from the perspective of different regulations such as the Spanish Constitution, Organic Law 1/1982 of 5th May, on civil protection of the right to honour, personal and family privacy and one’s own image, as well as the European regulation on data protection (GDPR).
In the first place, article 18 of the Spanish Constitution guarantees the right to honour, to personal and family privacy and one’s own image; this protection is developed in more detail by the aforementioned Organic Law 1/82, which establishes that the disclosure of facts concerning the private life of a person or family which affect his or her reputation and good name, as well as the publication by photography, film or any other process of the image of a person in places or at times in his or her private life, except as provided for in Article 8(2) (i.e. persons with public or well-known positions captured in public acts or spaces open to the public, caricatures or graphic information of a public event when the image of the person is merely accessory) shall be considered unlawful intrusion of such rights.
On its part, the GDPR defines personal data as all of the information regarding an identified or identifiable natural person (the data subject) either directly or indirectly, and in particular through an identifier, such as, for example, a name, an identification number, location data, an online identifier or one or more elements particular to the physical physiological, genetic, physiologic, financial, cultural or social identification of said person, thus, consequently a photograph is therefore personal data.
All of these regulations coincide in that any processing of a photograph or information of the data subject carried out without his or her consent shall be considered unlawful.
In particular, the Supreme Court analyses in its judgment 91/2017 of 15th February a case in which, as a result of a case of a criminal nature (the plaintiff was injured by his brother, who shot him with a firearm and later committed suicide), a provincial newspaper published details of the story, and included personal data (names of the plaintiff and his brother, the initials of their surnames, the nickname of the brother, the exact family address, reference to the notoriety of the family in the area, etc.) including, also a photograph of the victim obtained from his Facebook account.
The court carried out a double analysis of the facts. On one hand, it referred to the deliberation between the right to the freedom of information and the right to personal and family privacy. In this area it determined that the publisher did not engage in any unlawful activity and deemed that the former right should prevail. The basic arguments are that:
a) it is not a matter of serious intrusion due to the reduced territorial reach of the newspaper;
b) the facts are not especially degrading against the dignity of the affected party (as are crimes of a sexual nature, etc.);
c) the information contained in the article does not significantly increase the knowledge that those surrounding the victims already had or would have in this respect;
d) the facts were objectively serious and reportable (criminal significance);
e) the story is adapted to the norms of the chronicle of events as a journalistic genre, and does not expose facts with morbid overreach or reveal intimate facts unrelated to what happened, it does not even make reference to the cause of the family disagreement. The express mention that the mother suffered from Alzheimer’s is relevant to the case, since she witnessed what happened;
f) the interest of the story is important in a territorial context (in the province).
On the other hand, in assessing the right to one’s own image, the court stressed that it should be regarded as a right which is independent to other rights to personality, including the right to privacy.
Based on this precision, the court undertakes a separate analysis, indicating that, in this case, there was indeed illicit data processing, as the court considers that the fact that the affected person has a Facebook account that includes a photograph freely accessible to the public should not be interpreted as an act itself which constitutes the acceptance of the reproduction of said image on the part of third parties without consent, because it does not constitute express consent. Consent cannot be general and should be given exclusively for each individual act, and in this case, it cannot be deemed given as the subject is not a public figure. Likewise, consent, as a basis for legitimacy, must be revocable at any time.
None of the aforementioned exceptions of article 8.2 of the Organic Law 1/82 are deemed applicable, since the fact that photographs do not interfere with the right to privacy of the person concerned, does not rule out the possibility that it may interfere with the right to one’s own image. The right to the freedom of information does not legitimise the non- consensual publication of the image of the person concerned in an environment outside the one in which the events took place.
The fact that a photograph was uploaded in a social network only implies that the person concerned may not file any claim against the company providing the digital platform service because a third party has accessed the photograph, however this is possible if the photograph is used by the third party without express consent.
In conclusion, the public interest aroused by the violent event and which justified the media’s reporting thereupon, even with identification of those affected by the event, did not require or justify the publication of the image of the victim of the event, obtained from his profile on a social network, without his express consent. This criterion has also been confirmed by the court itself in the most recent judgment 697/2019 of 19th December.
Andreas Terán
Vilá Abogados
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13th March 2020
