Which of the two prevails?
Written by Macchi di Cellere Gangemi
The right to report can be called into question if, in reporting news of interest to the community, any newspaper publishes the image of a private individual. The photograph that, for illustrative purposes, portrays in whole or in part the face of a person can be censored and the subject of compensation claims by the interested party if the publication has not been previously authorized. Under certain conditions, however, the right to report prevails.
The case addressed by the Court of Verona in the very recent ruling no. 1123/2024 of 05/15/2024 is the following: a lady recognizes her image in a local press article reporting the news of the persistent closure of public places in the midst of the Italian lockdown ; a photograph accompanying the news article portrays the unaware lady sitting at the outdoor tables of a bar/restaurant in a pose that seems to express the naive expectation of reopening or, one assumes, the pleasure of being able to freely use the seat in an outdoor area without consuming.
The image of the interested party is distorted and compromised, therefore the litigation to obtain compensation for the damage follows. In the action the publishing house of the newspaper is sued, which, in turn, asks for indemnity from the author of the photo shoot, a professional linked to the local newspaper by a specific contract for the supply of photographs and videos.
The provisions invoked to protect the image are art. 10 of the Civil Code, articles 96 and 97 of the Copyright Protection Act and the privacy provisions. The publishing house, for its part, in contesting the validity of the plaintiff’s claims, opposes the lawfulness of the publication pursuant to art. 21 of the Constitutional Charter and the aforementioned articles 96 and 97 LPDA, without prejudice to the non-recognizability of the lady in the incriminating photograph because she is portrayed in the distance, among other people and with her face almost entirely covered by a Covid-19 protective mask.
The defense of the author of the photo report also relies on similar theses.
The judgment in question rejects the claims for compensation formulated in the dispute following three lines of argument.
First of all, according to the Judge, pursuant to art. 97 LPDA “… The consent of the person portrayed is not required when the reproduction of the image is justified by the notoriety or the public office held, by the needs of justice or police, by scientific, educational or cultural purposes, or when the reproduction is connected to facts, events, ceremonies of public interest or held in public …â€Â and for the court the issue discussed in the newspaper article with the accompanying photo concerns “ … a fact of public interest, or the preparation of a plan to facilitate the reopening of premises after the lockdown imposed by the Government to contain the Covid-19 virus … †(see motivation).
Also considering the clear connection between the news of public interest discussed in the article and the contested photograph, the judge did not find it necessary to obtain authorization for the publication of the subject portrayed.
Secondly, according to the Court, the actress was not identifiable or recognisable by the newspaper’s readers because she was “… taken in a photo of the terrace, completely by chance, together with several people, with her face covered by a mask …” (see reasoning), thus eliminating the possibility, even abstract, of a possible damage to the actress’s image.
Finally, again for the judge from Verona “… In terms of journalistic activity in particular, publication is legitimate if it respects the limits set by art. 137 of Legislative Decree no. 196 of 2003 of essentiality to illustrate the content of the news and those of the exercise of the right to report, as well as the particular precautions imposed to protect the person portrayed provided for by art. 8 of the code of ethics for journalists, which constitutes an additional source of legislation. Human dignity, in fact, in a perspective of comparison with the right to freedom of expression, also protected by the Constitution, in art. 21, can undergo a “scaling down†when the exercise of the right to report remains within the limits set by the legislator, who, carrying out an upstream assessment, has provided, as a requirement legitimizing the conduct of the journalist, the requirement of essentiality of the information whose verification is up to the judge of merit … †(see motivation).
Following a careful and prudent balancing of the opposing interests, the court deemed the publication of the actress’s image legitimate regardless of her consent, not only on the basis of a public interest in information but also due to the absence of any concrete prejudice to the subject portrayed in the photo.
DISCLAIMERÂ : This article provides general information only and does not constitute legal advice of any kind by Macchi di Cellere Gangemi, which assumes no responsibility for the content and accuracy of the newsletter.Â
