The Law Firm Cecatiello, Milan, Rome, offers its clients judicial and extrajudicial assistance in the field of privacy, image and use of new communication technologies.
It must be considered as a photograph taken by a mobile device is more and more frequently published on a social network and often, thanks to special applications to different social media at the same time.
there is a serious problem of legitimacy of such behaviors especially in cases where the multimedia material portrays people opposed to the diffusion or the possibility that the person photographed or filmed excludes the existence of the material itself or has not been informed. Another issue is that of the publication of images of minors which has recently been resolved by jurisprudence with the need for the consent of both parents, especially if they are separated or divorced.
The norm that regulates the production and diffusion of the "portrait", also photographic, is the law on copyright (L. 633 of 1941).
In general, to proceed with the dissemination of a photograph or a film, the express consent of the subjects appearing in it is always required (Article 96, Law 633/41). The preferred form for the release of consent is the so-called "release".
The simple activity of production or collection of multimedia files is not sanctioned; the material is used exclusively for personal consultation.
The sanctioned conduct is that of public use, the offer to third parties for example with the publication on a social network.
The Court of Cassation stated that, in addition to non-pecuniary damage deriving from damage to honor or reputation, pecuniary damage is also fully compensable. The damage must be proportionate to the extent of the gain achieved or achievable by the person who made the photograph or shooting public, also considering the compensation presumably that can be requested by the person portrayed if he had consented to publication.
Regarding journalistic purposes, the law has identified some cases where it is exempt from the release.
You can freely publish the portraits of people who are "notorious", for example a famous athlete, or who hold a public office, for example the President of the Republic.
The Code of the Pricacy has excluded, even in the case of well-known personalities, the publication of multimedia material proving specific "sensitive" aspects of the private sphere of the subject: religious belief, sexual orientation and, in particular, the state of health.
The use and dissemination of photographic material are also permitted in the case of justice or "police" needs, such as the mug shots of a fugitive.
Please note that the general interest in a so-called civil complaint is not a reason for the publication of videos or images depicting people who do not consent. The publication of a photograph of a person who portrays him in the act of throwing a handkerchief, a cigarette butt or in general small waste in the public street is an infringement of privacy.
Article 97 of Law 633 expressly provides that the dissemination of material relating to "facts, events, ceremonies of public interest or held in public" is permitted, a flexible closing clause which, for example, exempts the photographer from the release request. a religious procession.
The journalist may publish photographs that contain the representation of subjects even in the absence of the release.
The Guarantor for the protection of personal data has finally specified that photos of subjects subjected to coercive measures or with wrists bound by handcuffs and that photos can be used only for justice and police purposes can not lawfully be disseminated.
Article 97 takes care to specify that the portrait of a subject can never be exhibited or disseminated if, with this act, a sensitive prejudice is caused to his reputation or honor, for example
The case of multimedia material depicting minors is specifically regulated, against which the law provides significantly more extensive and significant protection.
The discipline protecting the right to privacy of minors is based on the intrinsically fragile nature of this legal situation.
The minor is a "person in the making" who has not yet completed his / her path of maturation and whose image could be irremediably compromised by incorrect use.
Given that the minor has not yet acquired the ability to act, it is up to those who hold parental authority the power to give consent so that the image is legitimately used pursuant to Law 633/1941.
For the purpose of issuing the authorization, the consent of a single parent is generally required, given that the signing of the same is an act of ordinary administration which can be compiled separately (Article 320 of the Civil Code) but the most delicate issues arise when the parents are separated, divorced . As we have already seen, in these cases the subscription of both parents is required.
Minors are provided with extensive protection also in the journalistic field where the right to privacy prevails over the right to report.
Under no circumstances may the journalist publish photographs in which minors are identifiable and where the publication of a video or a photo is of particular general interest, he must use computerized means to manipulate the multimedia file in order to make the face unrecognizable. Please note that even if the parent has given consent, it is still the journalist's responsibility to carry out a further verification, verifying the existence of an effective interest in the publication for the minor.
Armando Cecatiello Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.