28.03.2020 – 12.30 – A recent case that has become public knowledge has rekindled the debate on the right to personal portrayal and its limits.
The case involved a doctor who returned home after a very hard shift in intensive care and was photographed by someone who then thought well of posting the photo on social media, accusing the doctor of having broken the rule of staying at home.
The doctor has filed a complaint, and as we will see, she has done very well in doing so, and I don’t doubt she will get legal satisfaction.
But let’s take a step back and try to understand what the rules and limits are regarding the use of other images.
There is a constitutional right, defined as “right to privacy” not expressly provided for in the Italian Constitution (as it wasn’t something that was cared about when the constitution was laid down), but easily inferred from Articles 2 (inviolable human rights), 13 (freedom), 14 (inviolability of the home) and 15 (secrecy of correspondence and communication).
It is therefore a general principle which guarantees the right to confidentiality of everything that concerns our private sphere.
This is therefore, for those who use the image, the first big divide between what is lawful and what is not.
The use of a private image is illegal (and also punished, art. 615 bis and 617 bis of the penal code), the use of a public image is not because in public the right to confidentiality is lost.
The rules for the protection of confidentiality have been collected in the personal data protection code D.Lgs. 196/03 finally modified by the well-known D.Lgs. 101/18.
We should also not forget Article 10 of the Civil Code, which specifically deals with the abuse of the image of others.
Also, Articles 96 and 97 of the 22/4/1941 Law n. 633 on copyright are relevant, constituting the regulatory framework of reference in this area.
Having thus distinguished between private and public image, the second distinction has to be made between lawful and unlawful which is given by consent, which may be tacit or express.
There is nothing to say about express consent; let us consider the tacit consent with an example.
If at a party, for example, one or more participants pose for a photo, it must be considered that all the photographers have given tacit consent to the disclosure of that photo.
The consequent disclosure is therefore lawful unless it is for profit, in which case it requires express consent.
A famous case happened many years ago in Trieste, where a group of young people posed for a photo at a party, showing their arms muscles for fun.
For some strange step that photo ended up at a very famous fashion house, which printed it on its T-Shirts with the words United Machos of … (let’s forget the name of the fashion house).
Those guys sued for misuse of the photo and won it.
Profit is not the only limit, however.
Slanderous and defamatory intent is also a limit, and so we come to the subject from which this debate is based.
Illicitness does not generally consist in photographing people on the street, as they do not enjoy the right to privacy, but rather in attributing to them some specific conduct resulting from being where they are.
To deduce, and publicly affirm, that a person is where he is because he has violated laws, whatever they may be, is defamatory behavior and is as such punished by art. 595 of the Criminal Code with imprisonment of up to two years (!).
One last consideration always starting from an example: but if I see a thief stealing a car, or if in the window of the apartment opposite mine I see a person attacking another, can I legitimately photograph or film the scene?
The answer is obviously yes.
Yet, especially in the latter case, we are in the private sphere where the right to privacy has the greatest protection.
Well, the lawfulness of the conduct derives from the usability in criminal proceedings of the
evidence thus acquired and is justified by the balancing of interests, where that of privacy rightly leaves room for the acquisition of evidence of a crime.
Traduzione di Michael Guggenbichler
