Freedom of the press may be called into question when, to report a news item of public interest , a newspaper publishes the image of a private individual. A photograph that, for example, depicts all or part of a person’s face may be censored and subject to claims for damages by the person concerned if the publication has not been authorised in advance. However, under certain conditions, freedom of the press prevails.
The case dealt with by the Court of Verona in its very recent judgment No. 1123/2024 of 15.05.2024 is as follows: a lady recognises her own image in an article in the local press reporting the news of the persistent closure of public premises at the height of the Italian lockdown; a photograph accompanying the news article portrays the lady sitting obliviously at the tables outside  a bar/restaurant in a pose that seems to express a naive expectation of the reopening or, it is assumed, the pleasure of being able to freely use the seat in a stall without consuming.
The image of the person concerned is misrepresented and compromised, and litigation for damages follows. The newspaper publisher is sued, and, in turn, it claims indemnity from the author of the photo shoot, a professional bound to the local newspaper by a contract for the supply of photographs and videos.
The regulations invoked to protect the image are Article 10 of the Civil Code, Articles 96 and 97 of the Law on the Protection of Copyright and the regulations on privacy (Legge sulla protezione del diritto d’autore e le norme sulla privacy -“LPDAâ€). The publishing house, on  its part, in contesting the grounds of the plaintiff’s claims, opposes the lawfulness of the publication pursuant to Article 21 of the Constitutional Charter and the aforementioned Articles 96 and 97 LPDA, without prejudice to the fact that the lady in the incriminated photo is not recognisable because she is portrayed in the distance, in the midst of other people and with her face almost entirely covered by a Covid-19 protection mask.
The defence of the author of the photo shoot also relies on such arguments.
The commented judgment rejects the claims for damages made in the litigation along three lines of argument.
First of all, according to the judge, pursuant to Article 97 of the LPDA, ‘… the consent of the person portrayed is not required when the reproduction of the image is justified by reputation or public office covered, by the needs of justice or the police, by scientific, educational or cultural purposes, or when the reproduction is related to facts, events, ceremonies of public interest or held in public . …‘ and for the court, the matter dealt with in the newspaper article and its accompanying photo concerned “… a matter of public interest, namely the preparation of a plan to facilitate the reopening of the premises after the lockdown imposed by the Government to contain the Covid-19 virus …†(see judgement’s reasoning).
Furthermore, in view of the clear connection between the news of public interest dealt with in the article and the contested photograph, the court did not see the need for authorisation of the publication from the portrayed subject.
Secondly, according to the Court, the plaintiff was not identifiable or recognisable to the readers of the newspaper as she was ‘… photographed in a photo of the stalls, in a completely casual manner, together with several people, with her face covered by a mask …’ (see judgement’s reasoning), thus eliminating the possibility, even if only abstractly, of a possible damage to the plaintiff’s image.
Lastly, according to the judge in Verona, ‘… On the subject of journalistic activity in particular, publication is legitimate if it complies with the limits laid down by Article 137 of Legislative Decree no. 196 of 2003 essential to illustrate the content of the news and those of the exercise of freedom of the press , as well as the special precautions imposed to protect the person portrayed provided by Article 8 of the journalists’ code of ethics, which constitutes an additional source of legislation. In fact, human dignity,  when compared to the right to manifest thought, which is also protected by the Constitution under Article 21, may be ‘re-dimensioned’ when freedom of the press remains within the limits outlined by the legislator, which operating an upstream assessment provided, as a requirement legitimising the journalist’s conduct, the requirement of the essential nature of the information, the verification of which is the responsibility of the judge of merit …‘ (see judgement’s reasoning).
As a result of a careful and prudent balance of the opposing interests, the court held that the publication of the plaintiff’s image was lawful regardless of her consent, not only on the basis of the public’s interest in information but also because of the absence of any concrete harm to the person portrayed in the photo.
In this specific context, only freedom of the press could prevail.
Author
Enrico Storari
