Autore: Silvia Grazioli

Italian law establishes a robust and far-sighted legal regime for the protection of image rights – which are viewed as an aspect of privacy and thus a fundamental human right

This article first appeared in World Trademark Review magazine issue 68, published by The IP Media Group. To view the issue in full, please go to http://www.worldtrademarkreview.com

Protection of personal images comes under the category of personality rights in Italy.
Although not specifically dealt with in the Constitution, such protection should be seen as a fundamental human right, since it applies to an aspect of privacy – seen as one of the most important personal values today.
Image rights are understood as the right of an individual to ensure that his or her image is not disseminated, disclosed or in any way published without consent, unless this is provided for in one of the exceptions
set out in the law.

Regulatory basis 
The Italian legal system provides for two levels of protection for images.
Article 10 of the Civil Code recognises the right of individuals to request the cessation of use of their image where this falls outside the scope of exceptions provided for under the law or – where use is covered
by the exceptions – is used in such a way as to damage his or her dignity or reputation.
In such cases, the interested parties or their close relatives may call on the judicial authority to order the cessation of such abuse and, where appropriate, compensation.
In addition, Articles 96 and 97 of the Copyright Act deal with personal likenesses, prohibiting their display, reproduction or placement on the market without the subject’s consent, except in cases of free use.

Consent 
Article 96 of the Copyright Act states that “the likeness of a person may not be displayed, reproduced or placed on the market without the consent of the person in question”.
Image rights are therefore absolute personality rights which may not be used by third parties without consent.
With regard to the way in which consent is given, the law sets out no specific formal requirements. Consent may thus be given either expressly or implicitly, provided that it is clear and unequivocal.

Once consent has been given, image use is still subject to limitations of time, space and scope laid down by the rights holder.
Where consent is tacit, these should be inferred circumstantially by interpreting the subject’s behaviour.
Consent is valid only where the image is used for the purposes for which consent was given.
Some confusion has arisen as to whether consent may be withdrawn after being given. Some commentators are of the opinion that consent may not be withdrawn if it is given in contractual form and involves the payment of a consideration, except in cases of damage to the honour, reputation and dignity of the subject; otherwise,
withdrawal will render the subject liable for any loss or damage caused by the party which has had to withdraw the image.

Free use
Under Article 97 of the Copyright Act, the requirement for validly expressed consent from the subject thus does not apply where publication of the image falls within free-use cases justified by the public or social interest.
In relation to the reproduction of images of famous people, it has been established that reputation alone is insufficient to justify the absence of consent; dissemination of the image must also be for public information purposes. ‘Public information’ in turn is defined as:

• making the public aware of what the person in question looks like; or
• visually documenting published news about the person in question.
Where the intention to inform is not the main motivation and publication is for other reasons (ie, for profit), absence of consent renders the publication unlawful, even where the subject’s honour and dignity
are unaffected, and renders the guilty party liable to pay compensation in accordance
with Article 2043 of the Civil Code.

For example, publication is deemed not to serve the public interest where images of singers, actors or other famous people are published on garments with the aim of placing such items of clothing on the
market. However, if famous people are shown performing an activity for which they are known, publication is deemed to be in the public interest, regardless of whether they have consented.

Consent is also not required where reproduction of the image is:
• for judicial or police purposes (eg, in the case of a photo published to help in the search for a wanted person, a kidnapping victim or a child who has disappeared);
• for political, educational or scientific purposes which would justify publication of the image; or
• due to the public office held by the subject (eg, a photo of the president).

These exemptions do not apply where use of the image is detrimental to the subject’s honour, reputation or dignity (Article 97(2) of the Copyright Act).

Image rights and privacy
Publication of the image of another person may also constitute unlawful personal data processing in accordance with Legislative Decree 196/2003 and thus be liable to heavy administrative fines, as well as to criminal prosecution resulting in imprisonment.

The Privacy Code defines ‘personal data’ as any information that identifies or allows for the identification of a natural person, even indirectly by association with other information.
It is obvious that a photo can allow a person to be identified, since it may also contain data of a sensitive nature, such as the subject’s state of health, political opinions and sexual preferences.

Protection against infringement
Individuals may take action to protect their rights in case of wrongful use of personal images.

Injunctions
Those that publish the personal images of others without consent commit a civil offence and the injured party may apply to the ordinary courts for an injunction to compel the publisher or manager of the
online space in question to remove the offending image or video immediately
under Article 163 of the Copyright Act.

Injunctions issued under this provision might involve:
• a cease and desist order against further use of the image;
• an order to seize material that allows for reproduction of the image; or
• an order to destroy copies, negatives or other material containing the image.

‘Personal identity’ in this context means social image – in other words, the political, intellectual, professional and religious values of the subject and his or her right to maintain these unaltered. In such cases, damage may be deemed to have been caused if the image is distorted and results in an inaccurate or unwanted
representation of the true state of affairs.
Anyone suffering this type of non-material damage has the right to compensation under Article 2059 of the Civil Code, regardless of whether a criminal offence has taken place.
The subject may sue for damages, which must be paid on an equitable basis, depending on the actual loss or damage suffered and the seriousness of the guilty party’s conduct.

Criminal offences
Such unlawful conduct may be regarded as criminal in nature. Where reproduction of the image also damages the subject’s reputation, this might amount to defamation (Article 595 of the Criminal
Code). Defamation is punishable by between six months’ and three years’ imprisonment or a fine of at least €516.
Those that publish images of others without consent in order to gain profit for themselves or for others, or to cause loss or damage to others, may be charged with unlawful data processing, which is punishable
by up to three years’ imprisonment.

Image rights and online publication
Social network users who post likenesses of others, content containing intellectual property or other data relating to third parties without express authorisation, or who exceed the scope of the consent given, infringe thirdparty image rights or copyright.
Taking action against those immediately responsible for publishing images online is rarely straightforward. One of the main problems is identifying those responsible for the unlawful act.
Italian case law tends to attribute responsibility for infringements committed by third-party users to the site which contains the offending material and the internet service provider (ISP) responsible for hosting
it (Articles 158 and 163 of the Copyright Act).
The guilty parties are deemed responsible not for failing to prevent the commission of an unlawful act, but rather for aiding and abetting the offence of defamation via the Internet committed by the user.
ISPs can escape liability if they were unaware that the activity or information was illegal and, for the purposes of compensation, were unaware of any events or circumstances that would make the unlawful nature of the activity or information evident.

On being notified by the competent authorities, ISPs must act immediately to remove the offending information or to block access thereto. However, ISPs are not bound by a general duty to monitor the information that they transmit or record, or to actively search out events or circumstances indicating the presence of
unlawful activities (Article 17 of Legislative Decree 70/2003).
Information and images posted online may potentially be viewed across the world, making it difficult to determine where an offence has been committed. The Italian legal system has thus adopted the criterion
of the place of commission of the offence to determine where compensation should
be paid.
Therefore, where damage is caused by images uploaded to the Internet, the location of the server on which the defamatory content is stored is not considered. Instead, account is taken of where other people have
viewed the image (Cassation, United Civil Sections, 21661/09).

August/September 2017


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