The latest ruling on damages for infringement of image rights
The facts
On 23 January 2019, the Italian Supreme Court of Cassation ruled on a case of infringement of the right to personal image – and specifically, on the quantification of damages arising therefrom. The main proceedings were brought by a well-known actor against the editor and publishing company of a magazine, alleging their unauthorized publication of thirteen pictures portraying him relaxing, shirtless, with a showgirl in a park.
In the first instance, the Court of Milan having ascertained that such publication occurred without plaintiff’s consent and ruled out the freedom of press exemption raised by defendants, found them in breach of civil and copyright rules protecting the right to personal image and portrait (Section 10 of the Italian Civil Code and Section 96 of the Italian Copyright Law). According to the Court, the defendants’ conduct also amounted to unlawful processing of plaintiff’s personal data, thus infringing Sections 2, 11 and 23 of the Italian Data Protection Code and constituting the offence of unlawful interference in someone else’s private life (sanctioned under Section 615-bis of the Italian Criminal Code).
According to the Court of first instance, defendants’ conduct caused both pecuniary and non-pecuniary damages to the actor. Indeed, he suffered a financial loss, quantified by referencing the sum he would have been granted had he authorized the publication of his pictures (quantified in EUR 80,000.00) and moral distress for the unlawful interference in his private life (quantified in EUR 40,000.00).
In the second instance, the Court of Appeal of Milan fully upheld the first instance decision, except for the quantification of damages. In this regard, the Court of Appeal only awarded compensation for the non-pecuniary damages suffered by plaintiff, ruling out any financial loss on the grounds that he had expressly denied his consent to publish the pictures at issue in the proceedings. According to the reasoning of the Court of first instance, this had prevented the actor from relying on the opportunity to economically exploit them. In fact, the Court of Appeal partially reversed the decision given on that grounds, stating that if pecuniary damages have to be calculated on the basis of the principle applied in the first instance – the “price of consent”, i.e. the sum that would have been paid as consideration for the authorization needed to publish the pictures – then no pecuniary damages should be awarded to plaintiff, seeing as he had expressly refused to authorize the use of the pictures at issue in the proceedings. Thus, the Court of Appeal reduced compensation to EUR 40,000.00 only for the non-pecuniary damages suffered by plaintiff.
Consequently, the plaintiff appealed the decision before the Supreme Court of Cassation claiming that, despite what the Court of Appeal held, he had suffered immeasurable financial damage since, being a public figure, in other moments of his life he had given his consent to publish his pictures in exchange for conspicuous fees. Hence, even if not at the price of consent, plaintiff argued that the financial damage should be calculated, at the very least, on the number of copies the magazine had sold and on the revenue achieved or on the fees requested in other recent, similar occasions.
The decision of the Supreme Court of Cassation
According to the Supreme Court of Cassation, the decision given in second instance had not correctly applied the principles of law already set forth in the past.
First, the Supreme Court recalled two leading cases on the determination of pecuniary damages in the case where the right to personal image of a well-known person had been infringed. In 1991, for the first time, the Supreme Court had decided that “anyone who unlawfully publishes the image of a well-known person shall be liable to pay compensation – to be calculated not merely on the infringement of the right to privacy, but on the causes of the person’s reputation: indeed, if the person’s reputation is due to an activity in which the exploitation of their image is common practice, such as with show business, the unlawful publication causes a financial damage because the person concerned – on the one hand – can no longer benefit from the opportunity of offering their image for advertising similar products or services and – on the other hand – has much more difficulty to advantageously market their own image in relation to different products and services” (Supreme Court of Cassation Decision No. 4031/1991).
Thus, the Supreme Court, also citing a similar case of 2004 (Decision No. 22523/2004, the “Sandrelli case”, from the name of the famous Italian actress involved), established that if a well-known person decides not to give their consent to publish pictures of them taken in a private context, this shall not be construed as a waiver of the right to publish such pictures because the portrayed person may decide to exercise such right at any time in the future. Indeed, according to the interpretation of the relevant provisions set forth by the Supreme Court, anyone has the absolute right to manage their own personal image and, therefore, is free to decide whether or not to economically exploit it (and the conditions upon which this can be done), also because such use could potentially be harmful to them, even if only in the long term.
In light of the above, the Supreme Court has affirmed that whenever pictures of a well-known person are unlawfully published – that is, despite the fact they previously refused their consent to the publication – the portrayed person suffers a financial damage that shall be calculated “on an equitable basis, having regard to the size of the financial advantage gained by the person liable for the unlawful publication and any other circumstance consistent with the purpose of the liquidation”.
Therefore, the Supreme Court of Cassation, upholding the appeal, referred the case back to the Court of Appeal of Milan in charge of applying the principles of law outlined above to reconsider the quantification of damages suffered by plaintiff.
CELEBRITIES’ REFUSAL TO AUTHORIZE PUBLICATION OF THEIR PICTURES DOES NOT PREVENT THEM FROM SEEKING PECUNIARY DAMAGES, ITALIAN SUPREME COURT SAYS
The latest ruling on damages for infringement of image rights
The facts
On 23 January 2019, the Italian Supreme Court of Cassation ruled on a case of infringement of the right to personal image – and specifically, on the quantification of damages arising therefrom. The main proceedings were brought by a well-known actor against the editor and publishing company of a magazine, alleging their unauthorized publication of thirteen pictures portraying him relaxing, shirtless, with a showgirl in a park.
In the first instance, the Court of Milan having ascertained that such publication occurred without plaintiff’s consent and ruled out the freedom of press exemption raised by defendants, found them in breach of civil and copyright rules protecting the right to personal image and portrait (Section 10 of the Italian Civil Code and Section 96 of the Italian Copyright Law). According to the Court, the defendants’ conduct also amounted to unlawful processing of plaintiff’s personal data, thus infringing Sections 2, 11 and 23 of the Italian Data Protection Code and constituting the offence of unlawful interference in someone else’s private life (sanctioned under Section 615-bis of the Italian Criminal Code).
According to the Court of first instance, defendants’ conduct caused both pecuniary and non-pecuniary damages to the actor. Indeed, he suffered a financial loss, quantified by referencing the sum he would have been granted had he authorized the publication of his pictures (quantified in EUR 80,000.00) and moral distress for the unlawful interference in his private life (quantified in EUR 40,000.00).
In the second instance, the Court of Appeal of Milan fully upheld the first instance decision, except for the quantification of damages. In this regard, the Court of Appeal only awarded compensation for the non-pecuniary damages suffered by plaintiff, ruling out any financial loss on the grounds that he had expressly denied his consent to publish the pictures at issue in the proceedings. According to the reasoning of the Court of first instance, this had prevented the actor from relying on the opportunity to economically exploit them. In fact, the Court of Appeal partially reversed the decision given on that grounds, stating that if pecuniary damages have to be calculated on the basis of the principle applied in the first instance – the “price of consent”, i.e. the sum that would have been paid as consideration for the authorization needed to publish the pictures – then no pecuniary damages should be awarded to plaintiff, seeing as he had expressly refused to authorize the use of the pictures at issue in the proceedings. Thus, the Court of Appeal reduced compensation to EUR 40,000.00 only for the non-pecuniary damages suffered by plaintiff.
Consequently, the plaintiff appealed the decision before the Supreme Court of Cassation claiming that, despite what the Court of Appeal held, he had suffered immeasurable financial damage since, being a public figure, in other moments of his life he had given his consent to publish his pictures in exchange for conspicuous fees. Hence, even if not at the price of consent, plaintiff argued that the financial damage should be calculated, at the very least, on the number of copies the magazine had sold and on the revenue achieved or on the fees requested in other recent, similar occasions.
The decision of the Supreme Court of Cassation
According to the Supreme Court of Cassation, the decision given in second instance had not correctly applied the principles of law already set forth in the past.
First, the Supreme Court recalled two leading cases on the determination of pecuniary damages in the case where the right to personal image of a well-known person had been infringed. In 1991, for the first time, the Supreme Court had decided that “anyone who unlawfully publishes the image of a well-known person shall be liable to pay compensation – to be calculated not merely on the infringement of the right to privacy, but on the causes of the person’s reputation: indeed, if the person’s reputation is due to an activity in which the exploitation of their image is common practice, such as with show business, the unlawful publication causes a financial damage because the person concerned – on the one hand – can no longer benefit from the opportunity of offering their image for advertising similar products or services and – on the other hand – has much more difficulty to advantageously market their own image in relation to different products and services” (Supreme Court of Cassation Decision No. 4031/1991).
Thus, the Supreme Court, also citing a similar case of 2004 (Decision No. 22523/2004, the “Sandrelli case”, from the name of the famous Italian actress involved), established that if a well-known person decides not to give their consent to publish pictures of them taken in a private context, this shall not be construed as a waiver of the right to publish such pictures because the portrayed person may decide to exercise such right at any time in the future. Indeed, according to the interpretation of the relevant provisions set forth by the Supreme Court, anyone has the absolute right to manage their own personal image and, therefore, is free to decide whether or not to economically exploit it (and the conditions upon which this can be done), also because such use could potentially be harmful to them, even if only in the long term.
In light of the above, the Supreme Court has affirmed that whenever pictures of a well-known person are unlawfully published – that is, despite the fact they previously refused their consent to the publication – the portrayed person suffers a financial damage that shall be calculated “on an equitable basis, having regard to the size of the financial advantage gained by the person liable for the unlawful publication and any other circumstance consistent with the purpose of the liquidation”.
Therefore, the Supreme Court of Cassation, upholding the appeal, referred the case back to the Court of Appeal of Milan in charge of applying the principles of law outlined above to reconsider the quantification of damages suffered by plaintiff.
