In its recent decision in the case Dupate v. Latvia, the European Court of Human Rights ruled that the publication of covert photographs depicting a mother leaving the hospital with her newborn child infringed upon the latter’s right to private life. This judgment offers an opportunity to provide an overview of the protection granted to rights of personality under Italian law, from both a privacy and an IP standpoint.
On November 19, 2020, the European Court of Human Rights (“ECtHR”) rendered yet another cornerstone judgment, this one in case 18068/11 Dupate v. Latvia, concerning the balancing test between two fundamental rights protected under Articles 8 and 10 of the European Convention on Human Rights (the “Convention”), respectively the right to private life and the right to freedom of expression.
The case concerned a well-known celebrity-focused magazine’s publication of covertly taken pictures depicting the applicant, the wife of the chairman of a political party that did not have any seats in Parliament, as she left the hospital carrying her newborn baby in a car seat (the “Publication”).
In 2006, the applicant brought a case before the Riga City Central District court, claiming that the Publication infringed her right to private life as protected under Article 8 of the Convention. Although her claims were initially upheld by the Riga City Central District Court, that judgment was later overturned on appeal. Furthermore, on September 22, 2010, the Senate of the Supreme Court dismissed the applicant’s appeal by endorsing the appellate court’s findings and reasoning. In particular, the Supreme Court ruled that taking photographs in a public place without a person’s consent does not constitute interference with the right to private life as set forth by ECtHR case-law over the years.
In light of the foregoing, on March 17, 2011, the applicant brought proceedings before the ECtHR, claiming that the Supreme Court’s judgment infringed upon her right to private life.
In the case in question, the ECtHR concluded that, contrary to the Latvian Supreme Court’s position, the applicant’s right to private life, protected under Article 8 of the Convention, was infringed as a result of the Publication.
In particular, according to the ECtHR, a fair balance must be struck between the applicant’s right to the protection of her private life under Article 8 of the Convention and a publisher’s, editor’s, and journalist’s right to freedom of expression as guaranteed by Article 10.
That balance must be achieved while taking into account the criteria set forth by ECtHR case-law, namely:
- The contribution of the Publication to a debate of public interest – which is absent in the case in question, since the birth of a politician’s child does not have impact on a matter in the public interest.
- The degree of notoriety of the person affected – in this regard, the ECtHR ruled that the Publication went well beyond any notoriety the applicant may have derived from the public status of her partner or that was merited by the particular event.
- The subject of the report – according to the ECtHR, giving birth is a unique and delicate moment in a woman’s life that must be given particularly generous protection, and journalists must therefore display prudence and caution when covering such events.
- The prior conduct of the person concerned – in the case in question, the ECtHR noted that the mere fact of having cooperated with the press on previous occasions or an alleged or real previous tolerance with regard to articles touching on one’s private life (as the defendants argued about the applicant) cannot serve as an argument for depriving the person of the right to privacy.
- The content, form, and consequences of the publication – according to the ECtHR, the fact that the applicant was not depicted in a humiliating manner has no real bearing: the potential subsequent use of the photographs must be taken into account in assessing the level of intrusion.
- The circumstances in which the photos included in the Publication were taken – in the case in question, the applicant was not aware that someone was taking photos of her, nor had she manifested willingness to be recorded or reported upon in a public manner.
As a consequence, the ECtHR found that the Latvian domestic courts, which dismissed the applicant’s claim, did not perform the balancing test required between the fundamental rights at stake in conformity with the criteria laid down by ECtHR case-law.
Personality rights under Italian law
The case in question offers an opportunity to provide an overview of the protection granted to the rights of personality under Italian law, both from a privacy and from an IP standpoint.
Under Italian law, personality rights are are granted to all individuals, and are personal, inalienable, untransferable, and imprescriptible. According to settled case-law, these rights are protected at the national level under Article 2 of the Italian Constitution and at an international level by Article 8 of the Convention.
Personality rights from an Italian IP law perspective
From an Italian IP law perspective, the main personality rights that come into play are the right to personal image and portrait, which are respectively and specifically set out in Article 10 Italian Civil Code and Articles 96 ff. of Law 633/1941 (“Italian Copyright Law”).
These provisions protect the right to personal image and portrait by generally preventing third-party unauthorized reproductions of a person’s image and portrait. Image and portrait differ to the extent that “portrait” usually refers to the actual visual representation of a person (e.g., photographs, videos, etc.), while “image” is construed in a wider way to include any representation that allows a person’s likeness to be identified (e.g., an actor clearly impersonating a certain individual or any other element that provides an unambiguous reference).
Therefore, according to the above provisions, a third party can legitimately reproduce a person’s image and portrait, insofar as such reproduction has previously been expressly authorized by the portrayed person; or, irrespective of the portrayed person’s consent, when reproduction of his/her image is exceptionally permitted by law, as determined by the specific, exhaustively-listed exceptions set forth in Article 97 of the Italian Copyright Law (the “Exemption Regime”). Generally speaking, any commercial use of a person’s image needs to be authorized by that person.
Under the Exemption Regime, a person’s image may be used without his/her authorization if such use:
- is justified by certain circumstances (g., the portrayed person enjoys a certain level of celebrity or the person’s image is used for cultural, scientific, or educational purposes), and
- is linked to facts, events, or ceremonies that are of public interest or held in public, and
- does not harm the portrayed person’s honor and reputation (e., it is not potentially defamatory).
Thus, even when the requirements under both points (i) and (ii) above are met, any third-party unauthorized use of a person’s image still must also fulfill the obligation not to harm the portrayed person’s honor and reputation, which shall always be respected.
In this sense, while unauthorized use can be lawful under one of the abovementioned exemptions, e.g., for informative purposes, it must always meet the following requirements in order not to be potentially defamatory:
- truthfulness, e., the portrayed image must be true in relation to the facts shown;
- public interest, e., the portrayed image must be related to facts, events, or circumstances that are socially relevant;
- continence, e., the portrayed image must be used in a way that is pertinent to the facts depicted, so that the narrative is presented in a way that is proportionate, sober, and appropriate.
Based on the above, Italian courts are required to find a balance between the two rights protected at a constitutional level: the right to personal image and portrait and the right to freedom of the press, which is an expression of the right of thoughts, protected by Article 21 of the Italian Constitution. Moreover, when freedom of the press outweighs an individual’s right to private life, a further balance shall be struck between freedom of the press and the individual’s right not to be depicted in a defamatory manner.
Right to private life under Italian law
Under Italian law, the right to privacy is not expressly set forth in any legal provisions, but it was established by the Italian courts in the second half of the twentieth century. According to that case-law, any individual holds the right to keep confidential facts and events that – even if they occurred in a non-domestic context – do not have any social significance that might justify their disclosure to the public.
Furthermore, as clarified by consistent case-law, the right to privacy is an expression of the right of personality protected by Article 2 of the Italian Constitution: as such, the right to privacy is enjoyed by any person and cannot be waived or transferred.
Following the implementation of EU Directive 95/46/EC “on the protection of individuals with regard to the processing of personal data and on the free movement of such data,” implemented in Italy by Law No. 675/1996 and later replaced by the Data Protection Code (Legislative Decree 196/2003), the individual has been granted power of control over the circulation of his/her own personal information. Therefore, the right to privacy is reflected in the right to the protection of personal data, which – as recently highlighted by the Italian Supreme Court of Cassation (Decision of May 19, 2020 No. 9147) – operates beyond the sphere of private life.
As a consequence, the Italian Data Protection Authority may also rule on matters related to an individual’s right to privacy.
Therefore, the right to privacy is enjoyed regardless of whether the person concerned is a public or private figure. However, that status does become relevant when the balancing test described above is being performed and the person claiming his/her right to privacy is a public figure. Indeed, in that circumstance, as specified by the relevant provisions of the amended version of Legislative Decree No. 196/2003, there may be a higher degree of public interest involved in learning information about him/her. Notwithstanding the above, the following elements should still be taken into consideration when carrying out the balancing test:
- the fact that a person is a public figure does not automatically imply that the right to freedom of the press outweighs that individual’s right to privacy. Indeed, the facts related must nonetheless be of public interest, and the other two criteria of the balancing test (truthfulness and restraint) must also be met; and
- the requirement of public interest may be met even if the person concerned is not a public figure but the facts are nonetheless of public interest (e.g., crime news).
With this said, the relevant case-law found that, in principle, the following figures possess a sufficiently public nature to justify public interest in knowing facts relating to them:
- professionals, namely lawyers, involved in criminal investigations;
- managers and journalists in the Italian public television service;
- members of the former Italian royal family.
Notwithstanding the above, it should be noted that a case-by-case assessment must be carried out in any instance in which the right to privacy conflicts with freedom of expression.
In light of the foregoing, if the case decided by the ECtHR had been filed before an Italian court, the Publication would likely have been deemed unlawful as well – and a strict approach to these issues is indeed desirable, especially in a society where communication through images is outstripping communication through words.