Can a newspaper illustrate an article with a photograph posted on social media?

Monday, 27 of April of 2020

By Marta Gadea

In this post we want to analyze the Constitutional Court's ruling of February 24, 2020. This is an appeal against the ruling of the Civil Chamber of the Supreme Court of 15 February 2017 (ECLI: ES:TS:2017:363) which determined that the publication of a photograph on a social media doesn’t automatically translate into a tacit authorization for a newspaper to use the image to illustrate a news item.

The publisher brought the case to the Constitutional Court because he believed that the right to freely communicate truthful information has been violated.

The judgment values the following four aspects.

1. The doctrine of the constitutional court on the right to one's own image in its collision with the right to information
The ruling states that the fundamental essence of the right to one's own image is to give the subject the power to decide whether to make his or her facial features public. However, the right to one's own image is not absolute or unconditional, but rather, in the event of a collision with freedom of expression or information, the different interests at stake must be weighed and, taking into account the specific circumstances of each case, a decision must be made as to which interest deserves greater protection.

In order to conclude whether the right to information should prevail, it will be necessary to ascertain the public relevance of the information or the veracity of the facts and assertions.

The right of image should be sacrificed in those cases where, even without the consent of the individual, a photograph is published in which the person appears in a public event related to his position or profession of notoriety.

2. The digital society and the unauthorized use of another's image
The ruling assesses the impact of technological change, and understands that, despite citizens voluntarily sharing personal data on the Internet, they continue to possess their private sphere, provided that they have not given their unequivocal consent for their image to be used and published.

Therefore, unless there is unequivocal authorization for the capture, reproduction or publication of the image by its owner, interference with the fundamental right to one's own image must necessarily be justified by the prevailing public interest in having access to it and in disseminating it.

3. The need for express authorisation for the use by third parties of the image of others in the digital environment
The Constitutional Court considers that the consent given by users for the use by third parties of the information provided is undermined not only by the distortions in user’s behaviour at the time of initial registration but also during their participation in the network.

In light of the above, the court rejects the plaintiff's argument that the owner of the right to the image has authorized its use by a third party simply because he has published or "uploaded" a photograph of himself on his Facebook profile, the purpose of which is social interaction with other users.

4. The non-consensual use of another person's image
The question under discussion is reduced to pondering whether the non-consensual reproduction of the image of an anonymous person, but one that unwittingly takes on importance in the news, in this case as the victim of the failed murder attempt by his brother and the subsequent suicide of the latter, amounts to an illegitimate intrusion into his fundamental right to his own image.

In cases such as those presented in this appeal, this Court must give relevance to the prevalence of the right to the image of the victim of the crime over the freedom of information, since graphic information is superfluous because the photograph of the victim lacks real interest for the transmission of information, this case the apparent realization of a homicide and subsequent suicide.

In conclusion, the Constitutional Court shares the considerations of the Supreme Court, which leads to the rejection of the application for amparo.