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 these behaviors, especially in cases where the multimedia material portrays people against the diffusion or from the eventuality that the person photographed or filmed excludes the existence of the same material or has not been informed. Another issue is that of the publication of images of minors that was recently solved by the jurisprudence with the need for the consent of both parents, especially if they are separated or divorced.
The law that regulates the production and diffusion of the "portrait", also photographic, is the law on copyright (L. 633 of 1941).
In general, in order to proceed with the diffusion of a photograph or a film, the express consent of the subjects appearing in it is always necessary (Article 96, 633 / 41 law). 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 affirmed that, in addition to the non-pecuniary damage deriving from the injury of the honor or reputation, the pecuniary damage is also fully refundable. The damage must be proportional to the amount of the gain realized or achievable by the person who made the photograph public or the shooting, considering also the remuneration presumably demanded by the subject portrayed in case he had allowed the publication.
Regarding journalistic purposes, the law has identified some cases where it is exempt from the release.
You can freely publish portraits of subjects who are "well-known", such as a famous athlete, or who hold a public office, such as the President of the Republic.
The Code of Pricacy has excluded, even in the case of well-known personalities, the publication of multimedia material proving specific "sensitive" aspects of the private sphere by the subject: religious belief, sexual orientation and, in particular, the state of health.
The use and dissemination of photographic material in the case of justice or "police" needs are also allowed, for example, in the photos of a fugitive.
Care must be taken that the generic interest in a civil complaint is not a reason for the publication of videos or images depicting non-consenting persons. It is a violation of privacy the publication of a photograph of a person who portrays her in the act of throwing a handkerchief, a cigarette butt or generally small waste in the public street.
The 97 article of the 633 Law expressly provides for the dissemination of material relating to "facts, events, ceremonies of public interest or held in public", a ductile closing clause which, for example, exempts the photographer from 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.
The art 97 takes care to specify that the portrait of a subject can never be exposed or disseminated if, with such an act, a prejudice is caused sensitive to his reputation or his honor, for example
The case of minor retractable multimedia material is specifically regulated, with respect to which the legal system provides significantly more extensive and significant protection.
The discipline protecting the right to privacy of the minor is based on the inherently fragile nature of this legal situation.
The minor is a "person in progress" who has not yet completed his path of maturation and whose image could be irreparably compromised by incorrect use.
Since the minor has not yet acquired the ability to act, it is up to the parental authority to give consent for the image to be legitimately used in accordance with L. 633 / 1941.
For the purpose of issuing the authorization, the consent of a single parent is generally necessary, since the signing of the same is an act of ordinary administration that can be disjointed separately (Article 320 cc) but the most sensitive issues are highlighted when the parents are separated, divorced . As we have already seen in these cases it is necessary to sign both parents.
Minors are provided with extensive protection also in the journalistic field where the right to privacy prevails over the right to report.
In any case, the journalist can not publish photographs in which the minors are identifiable and where the publication of a video or photo is of particular general interest, it must use manipulative means of the multimedia file in order to make the face unrecognizable. It should be remembered that even if the parent has given consent, it is in any case the journalist's responsibility to perform a further check, 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.