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The right to one's image consists, in essence, of the ability we all have to decide what degree of dissemination and what uses are given to the physical features that define us. Simply put, it is the right to decide when a photograph of us, which sufficiently identifies us, can circulate freely or even appear in the media. It is a fundamental right, according to the Constitution, and enjoys the special safeguard granted by Organic Law 1/1982, of May 5, 1982, on the civil protection of the right to honor, personal privacy, and self-image.
In any case, it is not an absolute right and often collides with freedom of information or freedom of the press, since the media constantly need to disseminate images of certain people to illustrate or accompany the news to be published. It is therefore important to know the cases in which a media outlet is justified in disseminating images of a certain person, as well as the reasons that may allow it to do so. As we shall see, the variety of cases that raise problems is, as we shall see, very wide.
Images of people with public relevance
The clearest, most frequent and easiest to understand exception to the right to one's image is that of those persons who, because they hold a public office or have a personal notoriety derived from their profession or activity, are considered to have a relevance that allows - and even makes necessary - the disclosure of their image. This is provided for in Article 8.2 of Organic Law 1/1982, although with an important precision: these images must have been captured “during a public act or in places open to the public”.
With these two elements referred to in the Law, we can already understand that the image must correspond to their public sphere of activity and not to their private sphere, while it must have been taken outside the sphere of their strictest privacy. A film actor, for example, is considered a person with “a profession of notoriety or public projection” and, therefore, in principle, images of him may be published. However, not just any image can be disseminated. From the outset, it is clear that it would not be admissible to publish a photograph when the actor is inside his home, taken without his express consent or even from the outside, using telephoto lenses. It would be acceptable, however, to publish a photograph taken at an awards ceremony or the premiere of a film. But not only because they are images taken in public spaces, but also because the actor is at that moment performing tasks inherent to his profession. A photograph of him having dinner with friends, even if it was taken in a public space, should not be published, as it belongs to his private sphere.
However, the line between private and public is blurred, especially when it comes to people linked to the so-called celebrity press. Thus, the Supreme Court has come to consider that it is lawful to publish photographs of one of these characters when he was leaving his house even if he had not expressly consented to have that image taken of him (Ruling 258/2016, April 19).
Images of minors
Minors enjoy special protection about their right to their image, especially because the dissemination of their photographs in the media will rarely have to do with them, but will generally be a consequence of their association with a person of public relevance. A photograph of a minister with his minor children, for example, can be published if it meets the requirements referred to above (public relevance or general interest), but pixelating, covering, or blurring the face of the minors, on whom no general interest is projected.
In any case, these techniques will only be necessary when the minor is identifiable. The Supreme Court considers that there is no interference in the right to one's image when the published photograph of the minor, even without pixelating his face, does not allow him to be identified because the image does not clearly show his face. This is Ruling 551/2024, of April 24, which states that, in such a case, “the requirement of recognizability cannot be considered to be met, so that it is not possible, according to our doctrine, to consider that the minor's right to his image is affected”.
Images taken from social networks
Another increasingly common controversy is the publication by the media of photographs taken from social networks. To illustrate a certain piece of information, the accounts or profiles of the protagonists of that information are used, and some of the images that are publicly accessible there are used. But this practice, contrary to what might seem a priori, since these are images that their owners have decided that any third party can see, is also an interference in the right to one's own image.
The reasons for this are explained by the Supreme Court in its Ruling 91/2017, of February 15, in which it recalls that the express consent of the holder of the image is required for it to be reproduced in a media: “That in the account opened in a social network on the Internet, the holder of the profile has ‘uploaded’ a photograph of himself that is accessible to the general public, does not authorize a third party to reproduce it in a media without the consent of the holder, because such action cannot be considered a natural consequence of the accessible nature of the data and images in a public profile of a social network on the Internet. The purpose of an account opened on a social network on the Internet is the communication of its holder with third parties and the possibility that those third parties may have access to the content of that account and interact with its holder, but not that the image of the account holder may be published in a media".
Images that incorrectly identify a person
Nor is it appropriate -and in this case, without generating doubts- to illustrate a certain news item with a photograph of a person who, in reality, is not the real protagonist. Especially when the content of the news item may harm the good name of the person concerned.
An example of situations of this type can be found in the case resolved by Ruling 927/2011, of December 22, 2011, of the Supreme Court, in which the following happened: having knowledge that an alleged terrorist had been arrested in London, and having as his first name and surname, a television channel made a search on the Internet, located a photograph of a profile of a person who responded to the same name and surname, and broadcast it as part of the news, although that person was not, in reality, the detainee. Later realizing the error, he removed the image, but the damage had already been done, insofar as there was an anonymous citizen who, incorrectly, had been publicly identified as an alleged terrorist.
The Supreme Court considered that an action of this type was an illegitimate interference in the right to one's own image, and that freedom of information could not prevail in this case, considering that the media had not acted with the required diligence: "The error of identification made in the graphic presentation of the news item, which is the object of the debate, reaches, in this case, sufficient significance to understand its character of truthful information as having been breached, since the mistaken photograph was interrelated with the content of the information to form a whole, since the obligation to verify or contrast the veracity of said graphic information was omitted and there has been negligence or irresponsibility in providing it, without due verification, as a fact, with the effect that its disclosure undoubtedly implies contempt or discredit in the consideration of the plaintiff's person".
The constant need of the media to illustrate their news, together with the profusion of technologies and the increasingly widespread social use of photography and of the image itself, lead us to believe that this type of conflicts will become more and more frequent.
The lawyers of our litigation and arbitration department have extensive experience in legal proceedings relating to the rights to honor, privacy, and self-image, as well as in the defense of freedom of information when it prevails over these other rights.
Antonio Valmaña
Director of the litigation and arbitration practice area
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