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Sources of law
Right of publicity
Is the right of publicity recognised?
Article 18.1 of the Constitution guarantees the right to honour, to personal and family privacy and to one’s own image, and refers to these personality rights as fundamental rights. Moreover, the Spanish Organic Act 1/1982 of 5 May (LO 1/1982) provides civil protection for these same rights. In that regard, the scope of the Spanish fundamental rights to one’s own image and to honour would be substantially similar to the scope of the common law right of publicity.
It should also be noted that in Spanish law, the protection of personality rights is split into two concepts:
- protection of the constitutional or fundamental content of the right under the provisions of LO 1/1982; and
- protection of the financial or commercial dimension of the rights under ordinary legislation.
In this chapter, any allusion to the right of publicity should be understood in respect of the Spanish fundamental rights to one’s own image and to honour in their constitutional context. On the other hand, allusions to personality rights should be construed in respect of the three basic rights provided under article 18.1 of the Constitution (namely, the right to honour, to personal and family privacy and to one’s own image - likewise, in a constitutional context). Where reference is made to the financial or commercial aspects of those rights, this shall be made explicit.
Principal legal sources
What are the principal legal sources for the right of publicity?
The principal legal sources for the right of publicity are article 18.1 of the Constitution and LO 1/1982. Therefore, the right rests on a statute.
How is the right enforced? Which courts have jurisdiction?
The civil regime establishes two kinds of proceedings for hearing cases involving the infringement of personality rights as laid down in article 18.1 of the Constitution:
- ordinary proceedings laid down in article 249.1.2 of the Spanish Civil Procedure Act (LEC); and
- the procedure for rectifying information disseminated by any media (television, newspapers, radio, etc) provided under the LO 1/1984 of 26 March regulating the Right of Rectification (LO 2/1984).
Civil judges hold jurisdiction over both kinds of proceedings.
Notwithstanding, any disputes relating to the protection of any financial or commercial aspects of the right of publicity will be processed using the ordinary procedures established in the LEC. However, this facet of the right is excluded from the scope of LO 1/1982 (see question 1).
If the violation of personality rights constitutes an offence (eg, libel and slander), the criminal law system (and criminal judges) would be responsible for hearing such cases.
If the personality rights are infringed by a public administrative body and the violation is committed through an action that is subject to administrative law, the appropriate way to handle the dispute would be to bring contentious-administrative proceedings. Contentious-administrative judges would hold jurisdiction over the action.
If the violation of the personality rights arises in an employment situation, the appropriate procedural channel for handling the action would be the proceedings provided under the Employment Procedure Act. Judges of the employment tribunals hold jurisdiction over such action.
Other relevant rights
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
The protection of the right to a person’s name, own image and honour, as such, is only recognised in LO 1/1982. However, the LO limits protection to the right considered as a personality right, therefore excluding protection of the patrimonial or economic aspect of the right (see question 1). Accordingly, where the commercial aspect of the right is concerned, the patrimonial aspect of a person’s name and image could be protected under other regulations (such as contractual law, trademark law or unfair competition law).
Existence of right
What aspects of a person’s identity are protectable under the right of publicity?
The right of publicity guarantees the right to honour, to personal and family privacy and to one’s own image. In particular, the right to image extends to the protection of one’s own name, voice and image.
Do individuals need to commercialise their identity to have a protectable right of publicity?
The right of publicity is considered a personal right that is inherent to the individual. Therefore, under Spanish law, individuals need not commercialise their identity to have a protectable right of publicity.
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
In principle, rights of publicity form part of the personal status of the individual, and, accordingly, they would be subject to the individual’s personal law as determined by nationality (article 9.1 of the Civil Code). However, the Constitution effectively guarantees the protection of rights of publicity without making a distinction between nationals and foreign citizens, and LO 1/1982 echoes this guarantee. Moreover, redress for violation of the right of publicity falls within the scope of non-contractual civil liability and is therefore subject to that specific regimen. In view of this, we are of the opinion that foreign citizens may seek relief under the provisions of LO 1/1982 as if they were Spanish citizens.
Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
The right of publicity falls under the scope of personality rights, and its protection is not subject to registration or public notice.
Protection after death
Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
See question 14. It should be added that the protection of the right of publicity is not conditional upon the exercise of that right while the individual was alive.
Ownership of right
Can the right be transferred? In what circumstances?
The constitutional right of publicity is non-transferable (article 1.3 of LO 1/1982). However, the commercial exploitation of the right may be transferred by means of inter vivos transactions granted to that effect by the rights holder, which must have that party’s express consent (article 2.2 of LO 1/1982). Although LO 1/1982 makes no mention of the circumstances surrounding the transfer of such a right, it could, in principle, be understood that the right may be transferred by means of any kind of contract permitted by law (eg, licence, franchise, rights assignment agreements, etc). In any event, it is necessary to highlight that the rights holder may revoke its consent to commercially exploit the rights, and in that case, it must pay compensation for any damages sustained, including justified profit expectations (articles 2 and 2.3 of LO 1/1982).
It is also notable that the consent of minors or legally incompetent persons should be given by themselves, if so permitted, according to their level of maturity or competence. Otherwise, the consent must be granted in writing by their legal representative, who will be obliged to notify the Public Prosecutor’s Office of the consent beforehand. If the Public Prosecutor opposes the minor’s projected consent granted by their legal representative, the judge shall settle the issue (article 3 of LO 1/1982).
Can the right be licensed? In what circumstances?
See question 10.
If the right is sold or licensed, who may sue for infringement?
The licensees or assignees of the rights to exploit the right of publicity cannot bring a civil action to protect them as provided under LO 1/1982. Only the rights holder or, where applicable, its assignees, may bring such action (article 4 of LO 1/1982).
Nevertheless, legal action deriving from agreements over the exploitation of the right signed with third-party licensees or assignees of that right will correspond to the aforesaid licensees or assignees. In other words, if the rights holder transfers the possibility of commercially exploiting the right (eg, the possibility of using his or her image in an advertising campaign) to another party (eg, an advertiser), and the assignee (the advertiser) in turn contracts a third party in relation to that same right (eg, a photographer), the assignee (the advertiser) may exercise the rights deriving from that contract against the third party (the photographer), given that it is they who have entered into a contract with the third party. The person who had initially transferred the rights would not be able to bring the action deriving from the contract against the third party, since that person was not involved in said contract and would therefore not have standing to sue.
If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?
Personality rights are recognised for the duration of the person’s life plus 80 years following the person’s death (article 4.3 of LO 1/1982).
Post-mortem rights regarding the right of publicity are conferred on, or limited to, the person designated by the deceased in his or her will (article 4.1 of LO 1/1982). If the right owner dies without making a will, or without having designated an heir in his or her will, the affected person’s spouse, descendants, lineal ancestors and siblings who are alive at the time of his or her death will be entitled to claim protection of those rights (article 4.2 of LO 1/1982). In principle, any of those relatives will be able to bring the action provided to protect the deceased’s rights (article 5.1 of LO 1/1982). Where there are no such relatives, the Public Prosecutor’s Office will be entitled to bring protective action, and this party will be able to act on its own motion.
It is important to highlight that the post mortem right of publicity cannot be enforced by any person other than those mentioned above (eg, by an assignee, legal representative, legal proxy, etc). A relevant ruling recently issued by the Spanish Supreme Court (Judgment No. 414/2016 of 20 June 2016) (see question 25) specifically addresses this point. By contrast, enforcement of the patrimonial or economic aspect of the right will not be subject to the above limitation (at least, arguably).
Are there any actions that rights owners should take to ensure their rights are fully protected?
There is no specific action that rights owners should take in order to guarantee protection of their right of publicity. In this regard, it is important to reiterate that protection of that right is not subject to registration or public notice.
Nevertheless, during the right owner’s life, he or she should ensure that any agreements for the assignment of his or her rights are properly drafted and comply with LO/1982 (to the extent possible).
As for the post-mortem lawful use of the right owner’s right of publicity, it would be prudent for the right owner to ‘act in advance’ by designating a person or entity in his or her will who will be entitled to protect and defend his or her rights after his or her death. The designation of a person or entity entitled to defend the right owner’s right of publicity after his or her death, and in the case of infringement, will be particularly advisable due to the limitations existing under Spanish law on the post-mortem enforcement of the right of publicity.
What constitutes infringement of the right?
Under article 7 of LO 1/1982, the following shall be held to constitute infringement of the right to one’s own image:
- installing devices capable of listening to or recording people’s private lives;
- using devices to gain knowledge of people’s private lives and private statements or documents not intended for the user, and recording and reproducing same;
- disclosing details of a person’s or family’s private life that affect his or her reputation and good name, and disclosing the content of private written documents;
- disclosing a person’s or family’s private details gained through the business or official activities of the disclosing party;
- using any process to capture, reproduce or publish a person’s image in a private place or at a private time or otherwise, except where the persons involved hold a public position and the limitations established by law are respected;
- using a person’s name, voice or image for advertising, commercial or similar purposes;
- attributing deeds or making value judgments in a manner that damages another’s dignity, discrediting his or her fame or attacking his or her self-esteem; and
- a guilty party’s use of his or her offence to achieve public notoriety or for financial gain, or the disclosure of false information on the criminal deed where this damages the victim’s dignity.
Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
LO 1/1982 contains no explicit exclusion from claims based on the right of publicity in respect of certain formats of intellectual property. In this respect, it should be noted that one of the criteria established in article 7 of LO 1/1982 as constituting an infringement of the right of publicity is ‘using a person’s name, voice or image for advertising, commercial or similar purposes’ (see question 1). Moreover, the Spanish courts have interpreted this provision broadly, considering that the use of a person’s own name, voice or image in the context of the promotion of any type of product or service in order to make it more attractive and alluring may constitute an infringement under the aforementioned provision. This includes the commercialisation of copyrighted goods (such as video games, films, CD covers or books, etc) where the purpose of the use is to make the product more attractive from a commercial point of view.
However, article 8.1 of LO 1/1982 establishes a limitation that excludes infringement where a relevant ‘historical, scientific or cultural’ interest prevails or predominates. Article 8.2 specifies that the right to image cannot be exercised in the following cases in particular:
- where the image used refers to a person who occupies a public position or has any other high-profile profession and his or her image is captured during a public act or in a space open to public;
- where ‘caricature’ is made of said persons, provided that it is made in accordance with ‘social use’; and
- where the use of a person’s image in a report on a public event is merely accessory.
Essentially, it would be necessary to determine whether there is a relevant historical, scientific or cultural interest that prevails over the commercial or promotional purpose in each case and whether the use of the person’s image falls under any of the above-mentioned exceptions. In fact, most cases concerning infringement of the right of publicity ultimately refer to the assessment of whether the exceptions provided in article 8 apply (namely, whether there is a relevant ‘historical, scientific or cultural’ interest that prevails and therefore excludes the right of publicity).
The legal basis for the above exclusions is established by statute LO 1/1982.
Infringement claim requirements
Is knowledge or intent to violate the right necessary for a finding of infringement?
Spanish case law has been ambiguous in this regard. However, the current line of reasoning seems to be that knowledge or intent is unnecessary for a finding of infringement of the right.
Liability of media
Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?
According to LO 1/1982, the person or entity liable for the illicit use of a person’s right of publicity will be the one who has carried out the violation in question. In this regard, LO 1/1982 does not contain any specific provision with regard to possible extension of liability to third-party intermediaries regarding the infringement of the right of publicity.
With regard to media liability, the Spanish Press and Print Act No. 14/1966 establishes an extension of liability for civil infringements to authors, directors and publishers, as well as to printers and importers or distributors of foreign publications (who will be held jointly and severally liable).
As for the liability of website operators, there is an act that regulates the liability of internet service providers (ISPs) regarding infringements carried out by third parties that have availed themselves of their intermediation services (Act No. 32/2002 on Information Society Services and Electronic Commerce). In this regard, the Act basically establishes that the ISP will be excluded from liability for the infringing acts committed by third parties in the context of their intermediary activities unless:
- they have had any active involvement in the infringement; or
- having ‘effective knowledge’ of the infringement, they have not acted diligently to remove the conflictive content or block access to it.
Finally, in respect of matters of republishing, retweeting or other social media propagation, they will also be considered as infringements inasmuch as they constitute a subsequent act of infringement (though not the original one). Therefore, in those cases liability will not derive from third parties’ acts but from the person who has re-published or retweeted the content in question.
What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
Court relief against infringement of the right of publicity can be secured by means of the various methods described in question 3 (although legal action concerning this subject is usually conducted in the civil courts). The injured person will be able to request the adoption of the necessary measures in order to stop the infringement (article 9.2 of LO 1/1982). These measures will normally refer to the cessation of the infringement, the removal of the elements and contents on which the infringement appeared and, also, compensation for damages.
In respect of damages, it is important to note that article 9.3 of LO 1/1982 provides that the existence of damages shall be presumed on condition that the infringement has been demonstrated. Likewise, articles 9.2 and 9.3 state that compensation shall extend to economic and ‘moral’ damages. The latter will need to be assessed in view of the circumstances of the case and the seriousness of the harm actually sustained (in respect of which dissemination and audience of the media on which the infringement has occurred will particularly be taken into consideration).
Is there a time limit for seeking remedies?
Action against an infringement of the right of publicity will become statute-barred once four years have elapsed since the party with standing to sue could have filed such an action.
Are attorneys’ fees and costs available? In what circumstances?
Under Spanish law, attorneys’ and procurators’ fees and costs will follow the cause (ie, the party that loses the action bears the winning party’s costs). In practice, however, the party that has been awarded costs will be entitled to recover only a limited percentage of the fees actually incurred with regard to attorneys’ fees and procurators’ fees. That percentage will be determined in accordance with a sliding scale of fees published by the bar association of the territory where the action is pursued (eg, Barcelona, Bilbao or Madrid). This limitation will not apply to outside costs (eg, experts’ fees). However, with regard to the reimbursement of legal fees and experts’ fees, the law limits the right of recovery to one third of the amount of the claim (namely, the damages claimed by the plaintiff). In cases where the amount of the action is not set, this ceiling will be €6,000. Procurators are lawyers who represent the parties in court, and are entrusted with filing and receiving documents and communications with and from the courts.
Where the action is held to be partly admissible and partly inadmissible, each party would bear their own costs, and common costs (eg, judicial experts) would be shared by the two parties, unless the court finds that one of the parties has litigated the case without due care (or in bad faith).
In relation to interim relief applications, it is at the court’s discretion to ask either party to pay the other party’s costs. The usual order, however, is to reserve an award on costs pending the outcome of the proceedings. In other words, whoever wins in the main action will likely recover its costs for both the interim application and the main action.
Are punitive damages available? If so, under what conditions?
Punitive damages are not available under Spanish law.
Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Article 9.1 of LO 1/1982 confirms that due process against infringement of personality rights may be extended to the granting of interim relief aimed at securing the immediate cessation of the infringement.
It is necessary to mention that in Spain, the test for infringement or the degree of evidence required to substantiate a provisional or precautionary measure is lower than what is required to substantiate ordinary or merit proceedings. In this regard, demonstration of a prima facie case against the defendant will be sufficient to grant the measure. In addition, the applicant will need to show:
- the pressing reason to act promptly (without delay);
- risk of harm through the lapse of time involved in the pendency of the litigation; and
- proportionality of the interim relief.
Moreover, the applicant will need to provide security (eg, a bank guarantee) or make a payment to the court to cover any loss that may be caused to the respondent as a consequence of the interim relief being granted. The amount of the security will primarily depend on the nature and scope of the relief sought and its impact on the respondent’s operations.
Provisional measures will be revoked if the applicant does not commence proceedings on the merits within 20 working days of the court order granting interim relief.
Finally, the interim relief measures will be lifted as soon as the court order (granting interim relief) has been reversed (normally on grounds that it was unjustified). Under these circumstances, the applicant will need to compensate the respondent.
What are the measures of damages?
In respect of economic damages, LO 1/1982 does not contain any parameter for their assessment or calculation. Therefore, they will be assessed in accordance with the general rules and parameters established in Spanish civil and tort law.
With regard to moral damages, article 9.3 of LO 1/1982 establishes certain parameters for their assessment (eg, the circumstances of the case, the seriousness of the case and the harm actually sustained in respect of which dissemination and media audience on which the infringement has occurred, will particularly be taken into consideration). These are essentially abstract parameters that ultimately allow judges considerable discretion and result in a lack of uniformity in Spanish court rulings regarding calculating damages.
Significant case law
What significant judgments have recently been awarded for infringement of the right?
The most relevant judgments are as follows:
- Judgment No. 18/2015 of the Constitutional Court of 16 February 2015. This judgment overturned a decision issued by the Supreme Court that denied protection to the plaintiff’s image and personality rights on the basis that in view of the circumstances of the case, freedom of speech and the right to information prevailed. The case referred to a famous person who was in an intimate situation in public with his partner, and his image was captured and disseminated without his consent by television gossip programmes. The Supreme Court dismissed the protection on the basis that:
- the plaintiff’s personal relationship was in the public domain;
- the plaintiff did not take the necessary measures in order to keep his relationship private; and
- the plaintiff did not try to preserve his personal image when he revealed his personal relationship in an open place.
Therefore, since the effect on his image and privacy was very lim- ited, the right to freedom of information had to prevail. Contrarily, the Constitutional Court considered that the constitutional protection of freedom of information requires that the information be true and have public relevance. If those requirements are met, the constitutional protection of the personal right to one’s own image and to privacy should give way. The Constitutional Court also referred to the European Court of Human Rights (ECHR) doctrine settled in the judgment of 7 February 2012 in the case Von Hannover v Germany (No. 2), which has been followed by the Constitutional Court, according to which the protection of a person’s intimacy shall not be restricted to the domestic sphere but can also be extended to the public sphere, and therefore those relationships shall have protection even outside the private context. The Constitutional Court also mentions the doctrine settled by the ECHR in its ruling of 24 June 2004 (Von Hannover v Germany), according to which the right to information would only prevail over one’s private life if the information contributes to a debate of general interest. This requirement is not met when the information serves only to satisfy the curiosity of the public regarding the person in question’s private life.
- Judgment No. 73/2015 of the Supreme Court of 2 March 2015, which found that there had been an invasion of the plaintiff’s right to privacy owing to the dissemination of his medical data, which had come to light in the context of legal proceedings between the parties, and the defendant published them afterwards. The lower instance courts dismissed the action on the grounds that the plaintiff was a person who held a public position and had authorised the psychiatric report to be taken out of his private sphere himself and submitted it to the legal proceedings, which were public. The Supreme Court overruled the previous judgments and stated that information referring to one’s physical or mental health was an important element of a person’s private life and it was therefore covered by the fundamental right to privacy. Furthermore, the Supreme Court indicated that the ECHR has declared that the protection of the confidential nature of the information regarding a person’s health constitutes an essential principle of the member states’ legal systems, which must provide the necessary measures in order to impede its unlawful dissemination (see Z v Finland, 25 February 1997). The Supreme Court also stated that medical information is not just private information, but it is particularly sensitive information that consequently merits special protection within the fundamental right to privacy. Taking the above into account, the Supreme Court considered that the fact that the legal proceedings were public did not justify the dissemination of the medical information provided in the proceedings in a context other than the proceedings. Likewise, the fact that the plaintiff was occupying a relevant public post did not preclude the foregoing consideration as the medical information in question had no bearing on the performance of his role.
- Judgment No. 269/2015 of the Supreme Court of 19 May 2015, which dismissed the plaintiff’s complaint regarding infringement of the right to honour and the right to privacy by giving preference to the right to information. The conflict arose when a newspaper published the decisions issued by a court regarding the coercion of a contestant of the television programme Big Brother in the context of the same programme. The court stated that the publication merely contained neutral information reporting on the decision issued by a court and did not discredit the plaintiff. In addition, the dispute, which the judgment referred to, occurred within the context of the programme in which the plaintiff had voluntarily participated with the knowledge that what would take place would be made public. The Supreme Court’s judgment is interesting with regard to the assessment of the requirement concerning the public relevance of the information in question. In this respect, it must be mentioned that, according to the ECHR doctrine mentioned previously, in a conflict between the right to information and the right of publicity the former should not prevail when the information disseminated serves only to satisfy the curiosity of the public and does not contribute to a debate of general interest. However, in a case such as this, the Supreme Court considers that regardless of the fact that entertainment programmes such as the one in question are aimed at satisfying the curiosity of the public, that circumstance is not sufficient for the purpose of ruling out the potential prevalence of the freedom of information with regard to a particular case.
- Judgment No. 591/2015 of the Supreme Court of 23 October 2015. The Supreme Court overturned the judgment laid down by the Court of Appeal, which considered that a newspaper publication reporting on a scandal regarding a possible case of economic and political corruption harmed the plaintiff’s right to honour. According to the Supreme Court, the right to freedom of information acquires more weight when corruption issues are reported, especially when the people involved occupy public positions. In this regard, the Supreme Court pointed out that the publication of news or the expression of an opinion regarding those cases is not only legal but also necessary in order to render the right of citizens to information on how public issues are being run effectively.
- Judgment No. 430/2016 of the Supreme Court of 27 June 2016, which dismissed the plaintiff’s complaint regarding violation of his right to honour by a report published in El Botines magazine titled ‘Everybody fears Eugenio’, which reported on the plaintiff’s alleged criminal acts (the murder of two people in a nightclub shooting; an act for which the plaintiff had been arrested). The court of first instance upheld the plaintiff’s complaint on the grounds that the manner in which the information was given in the report (clearly biased) could not fall under the right to information. The Appeal Court overturned the decision and the Supreme Court confirmed its decision. The Supreme Court weighed up the circumstances in order to determine which of the fundamental rights at issue should prevail (the right to honour or the right to information) and concluded that in this case the right to information prevailed and the plaintiff’s right to honour had not been infringed. The court’s conclusion was based on the following points:
- the facts were indeed newsworthy and of public interest (there had been gunfire);
- the facts had been fully confirmed - although there had not yet been a judgment declaring the plaintiff liable for those facts;
- the reporter showed the required diligence in obtaining the information, and the purpose of his report was clearly not to slander but to inform; and
- the report was based on objective facts.
This judgment is another example of the prevalence of the right to information over the right to honour where the report or publication is of public interest (in this case, not owing to the popularity or fame of the person involved but because of the nature of the facts themselves) and when the information is objective and has been reasonably corroborated.
- Judgment No. 266/2016 of the Supreme Court of 21 April 2016, which declared that there had been a violation of the plaintiff’s own image, which had been disseminated without the plaintiff’s due consent in erotic publications. The background of the dispute was that the plaintiff had initially licensed the exploitation of her image to the defendants and signed a contract with them to that end. Later, she decided to terminate the contract and also revoked her consent to any exploitation of her image, but both defendants continued using the images in question. The defendants claimed that the revocation was not valid since it breached the duration of the contract signed by the parties. In this context, the Supreme Court declared that there had been an infringement and unauthorised exploitation of the plaintiff’s image since they continued using it despite the fact that she had clearly revoked her consent. Also, infringement could not be excluded on the basis that the revocation was made during the term of the contract. What is particularly interesting about this judgment is that the Supreme Court clarifies that the rights owner’s possibility of revoking his or her consent regarding the exploitation of his or her image at any time (provided in LO 1/982) is a right that derives from the fundamental right to image and should therefore be considered as a fundamental right. The point is that, although one can license his or her image rights (therefore, the right can be commercially exploited), the possibility of revoking consent (precisely because it derives from a fundamental right) can be exercised at any time and is not subject to any contract or agreement signed by the parties.
- Judgment No. 414/2016 of the Supreme Court of 20 June 2016, which denied the Foundation Gala-Salvador Dalí legal standing to sue in proceedings for illicit exploitation of the painter’s image after his death. The Fundación Gala-Salvador Dalí, as the entity responsible for the administration and exclusive exploitation of the painter’s IP rights in his works, as well as his image rights, decided to initiate proceedings against a company that was using the painter’s image for promotional purposes. The Supreme Court dismissed the action on the grounds that ‘post-mortem’ protection of the right to image recognised in LO 1/1982 can only be claimed by the person or entity specifically appointed to that end by the rights owner in his or her will, and the foundation did not meet that requirement since it was a mere assignee of the painter’s IP and other intangible rights. Furthermore, the Supreme Court declared that post-mortem protection of the right to image only provides protection of the ‘memory’ (in the sense of a moral right connected with a person’s dignity) and not the patrimonial aspect of the right, which is excluded from protection under LO 1/1982. In this respect, the Court suggested that what the foundation was ultimately seeking was not the protection of the painter’s ‘memory’ or ‘moral aspect of the image’ but protection of the economic aspect of his image.
- Judgment of the ECHR of 14 June 2016 that condemns Spain for not protecting the freedom of expression in a decision issued by the Spanish courts (in a case that reached the Constitutional Court) by virtue of which a journalist was ordered to pay a fine equivalent to €100 a day for 12 months - with an alternative sanction of one day in prison for every two quotas that went unpaid - for slander against the former mayor of Madrid. According to the Strasbourg court, the Spanish judgment was incompatible with the freedom of expression guaranteed in article 10 of the European Convention on Human Rights. The Strasbourg court considered that although the journalist used some ‘provocative’ expressions (referring to the mayor as a ‘traitor’, ‘fraud’, ‘dishonest’, etc) the use of those expressions as a matter of public interest can fall within the scope of freedom of expression and although they might be serious, they cannot constitute grounds for a conviction.
- Judgment No. 91/2017 of the Supreme Court of 15 February 2017, which declared that the dissemination of a person’s image that had been obtained from his Facebook profile picture without his express consent violates the person’s image rights. The case in question refers to a newspaper report of an event involving the plaintiff that published a picture of the plaintiff that had been obtained from his Facebook profile. The defendants alleged that they could not have infringed the defendant’s image rights insofar as the plaintiff had posted the picture on his Facebook profile in a way that was freely accessible to the general public. Therefore, the defendants argued that, according to the principle of consistency or estoppel, it could be understood that the use of the image had been authorised by the rights holder and, therefore, was not illicit. The Supreme Court declared that the uploading on to a social network site of a picture of oneself that is made accessible to the general public does not authorise a third party to reproduce it on social media, or elsewhere, without the rights holder’s consent. Indeed, the rights holder’s consent for the general public or a limited number of people to see their image on an open website or social network does not entail an authorisation to make use of the picture or disseminate it in any other manner. Such further use requires further express consent by the rights holder referring to that particular use.
- Judgment of the ECHR of 21 February 2017, which condemned Spain for not protecting the right to honour of the singer Paulina Rubio in a decision issued by the Spanish courts. The famous singer had sued a Spanish social media site for propagating comments about her regarding her sexual orientation and the alleged use of drugs and abuse by her partner. The Spanish courts rejected Paulina Rubio’s claim on the grounds that the information disseminated concerned a public figure and related to issues that had already been made public. Likewise, the Spanish courts considered that comments on sexual orientation could not violate one’s right to honour since, nowadays, sexuality was not seen as a dishonourable matter. The ECHR, on the contrary, considered that the fact that the singer was famous did not necessarily entail that her activities in the private sphere could be considered relevant to the public interest, and that famous peoples’ tolerance of public knowledge of certain aspects of their private lives did not deprive them of their right to protection. The Strasbourg court confirmed that the public relevance of a person’s private life cannot be determined in light of the public’s curiosity about the information, even if the person concerned is famous. This would be in line with the ECHR’s doctrine established in Von Hannover v Germany. The judgment awarded no damages to Paulina Rubio since she had not claimed any.
- Judgment No. 426/2017 of the Supreme Court of 6 July 2017, which declared that the publication, in a news article reporting on a trial, of the defendant’s picture in the courtroom during the trial’s hearing did not infringe the defendant’s image rights. The court confirmed that the right to information should prevail since the information was true and the subject matter of the information was of public relevance owing to its criminal nature. The interest in this case lies in the fact that the defendant, among other arguments, alleged the right to be forgotten, which concerns the right to erase from the internet certain personal information that is outdated and could be damaging to the person concerned. The Supreme Court considered that the requirements for considering the right to be forgotten would not be met in the present case; specifically, the Supreme Court declared that the information in question was of unquestionable public interest because it concerned extraordinarily serious facts with grave social consequences, and the limited time period that had elapsed could not have made the processing of the data disproportionate.
- Judgment No. 4671/2017 of the Supreme Court of 19 December 2017, which ordered a famous television broadcaster to pay €50,000 for damages to the writer Lucía Etxebarría on the grounds that there had been a violation of her right to honour and privacy owing to the revelations disclosed in a television programme on aspects of Etxebarría’s private life discrediting her as a person who was careless with her personal hygiene and of that at her home. The Supreme Court confirmed that despite it being socially accepted that a television programme can be aggressive, it must respect the rules, among others, of those relating to the fundamental rights of a person protected under the Constitution.
- Judgment No. 122/2018 of the Supreme Court of 26 January 2018, which declared that revealing a picture of a suspect, who had participated in criminal offences, on a police website did not infringe the person’s right to image. In this regard, the Supreme Court declared that making such a picture public (taken while the person was participating in criminal offences) on the police website was an adequate means for achieving a legitimate objective: to identify the alleged suspect. The police therefore acted in accordance with the legitimate public interest of investigating and finding criminals, an interest that is protected under the Constitution and is also connected with other constitutional rights and values such as social order and people’s safety. Following an overall assessment considering the fundamental rights in question, the Supreme Court determined that the limited interference to the suspect’s right to privacy was not relevant when compared to the social benefits deriving from the publication in question.
- Judgment No. 1415/2018 of the Supreme Court of 12 April 2018, which considered that the noise caused by the flights over Madrid-Barajas airport did not constitute a violation of the neighbours’ right to privacy. The Supreme Court invoked the Constitutional Court doctrine, according to which the personal rights to privacy and inviolability of homes could not be deemed to be infringed whenever the levels of noise generated by overflying aircraft are not excessive or disproportionate insofar as they are ‘within the parameters permitted according to the administrative regulations regarding sound monitoring, sounds and noise emissions’.
- Judgment No. 2748/2018 of the Supreme Court of 20 July 2018, which declared that it does not constitute an interference with a person’s right to honour to post sarcastic comments on the internet regarding truthful facts of one’s life if such comments are not offensive or degrading and have some ‘general interest’. The Supreme Court also confirmed that the disclosure on social media of pictures that a person had previously published on the internet did not infringe such a person’s right to privacy as long as the subsequent disclosure was through private social accounts.
In what forum are right of publicity infringement proceedings held?
Ordinarily, right of publicity infringement proceedings will be held in the Spanish civil courts, specifically, in the courts of first instance of the place where the plaintiff resides. In cases where the plaintiff does not reside in Spain, the proceedings will be held in the court of first instance of the place in which the right had been infringed (article 52.1.6 of the LEC).
The procedure laid down in Spanish law for actions of this kind is the ordinary procedure. Nevertheless, these kinds of proceedings have two special features (article 249.1.2 of the LEC):
- the Public Prosecutor’s Office will always be a party to such proceedings; and
- their prosecution is of a preferential nature.
It should be recalled that, as indicated in question 3, as an exception, publicity infringement proceedings may also be heard by the criminal courts, the contentious-administrative courts or the employment tribunals.
Use of juries
Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?
Disputes of this nature will be decided by judges, not by a jury. At first instance, such a dispute will be heard by a single judge and at the appeal or cassation appeal stage, there will be a chamber of three or more judges. The same applies in respect of damages.
How is the choice of applicable law determined?
Since EU Regulation (EC) No. 864/2007 expressly excludes rights relating to personality from its scope of regulation (article 2(g)), it is necessary to resort to Spanish rules on international privacy law. Spanish law does not contain a specific provision regarding applicable law in cases of infringement of personality rights (such as the right of publicity). In this regard, there is a debate concerning which Spanish conflict-of-law rule should apply. Some doctrine considers that inasmuch as the conflict concerns a fundamental right, the applicable law should be determined by the personal law of the victim or prejudiced person (that is, the law of the victim’s country of residence), by virtue of article 9.1 of the Spanish Civil Code.
However, much of the doctrine maintains that the applicable law in these cases shall be determined in accordance with the conflict-of-law rule provided for non-contractual obligations (article 10.9 of the Civil Code). This latter rule establishes the traditional lex loci delicti commissi, meaning that the applicable law shall be determined by the place where the infringement occurred.
It must be noted, however, that the generic terms used in the provision lead to doubts as to whether it should be understood that the place where the infringement took place refers to the law of the place of origin of the infringement or, rather, to the place of the result of the infringement.
Likewise, the interpretation of this conflict-of-laws rule leads to interpretation problems in cases where the infringement has originated in one country and has its results and effects in another, or where it has occurred in several places simultaneously (where the infringement has taken place on the internet, in particular). In this respect, Spanish doctrine agrees that there is a clear need for a uniform regulation regarding the applicable law in international disputes concerning fundamental rights (such as the right of publicity) to be provided at an international level.
Consideration of foreign decisions
To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
In Spanish law, case law is a formal source of law and has a binding effect on the judges of the lower courts. Spanish case law is constructed on the basis of two judgments that interpret a rule in an identical manner. Those judgments must emanate from the Supreme Court or, where the case is under the jurisdiction of the Autonomous Communities, from the corresponding high courts of justice. Judgments rendered by the Constitutional Court, due to the special status of this body, also have a legislative effect and are considered as case law.
Judgments decided by foreign courts are not binding on Spanish judges and therefore lack authentic substantive legislative content. Such judgments are solely held as precedents and it is at the discretion of Spanish judges whether they are taken into account.
What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
An appeal will lie against the decision rendered by the courts of first instance in main proceedings or preliminary injunction proceedings before the Spanish courts of appeal. The procedure for such an appeal will be as follows:
- 20 days to file a formal brief of appeal;
- notice to the other party to the proceedings;
- 10 days to file a defence brief;
- transfer of the court file to the Court of Appeal; and
- Court of Appeal’s decision.
Three provisos to the above points are as follows:
- the appeal can challenge any point of fact or law of the court of first instance’s decision;
- the applicant will need to pay a €400 fee for filing the appeal. In addition, the applicant will be obliged to pay a €50 deposit to the court. This deposit will be lost if the Court of Appeal confirms the decision at first instance. By contrast, the deposit will be returned to the applicant if the appeal is successful. Payment of these moneys should be made in advance when the appeal is filed; and
- if the appeal is dismissed, the applicant will be ordered to pay costs. If the appeal is successful, there will be no awarded costs. Each party will be responsible for their own costs.
The judgment rendered by the Court of Appeal in the main proceedings can be challenged on points of law or on the infringement of procedural rules before the Supreme Court.
Average cost and time frame
What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?
The time frame for a first instance decision will vary between 12 and 24 months, depending on the court’s workload, the steps taken by the adversary and the complexity of the case. The time frame for a preliminary injunction will vary between five to 10 days for ex parte interim orders to one to four months for inter partes interim orders. The time frame for an appeal decision will vary between six and 18 months, depending on the court’s workload, the complexity of the case and the level of rebuttal.
It is not possible to provide precise information regarding costs, because they are calculated on a case-by-case basis depending on the background circumstances and the complexity of the case.
Updates and trends
Updates and trends
Updates and trends
Behind most cases of infringement of the right of publicity, there is a conflict between the right and that right to freedom of expression or information.
Spanish courts resolve these conflicts using a deliberation or weighing-up technique. This technique first calls for the abstract weight of each of the conflicting rights to be assessed, and then for their relative weight to be considered in order to determine which right should prevail in each particular case. In this regard, the technique calls for a combined assessment, not just at the abstract level of the conflicting rights, but also in the appreciation of the various mitigating factors (such as public relevance or interest of the information, exercise of a public post, etc) that can appear in each case. Inevitably, this leads to unclear case law. Nevertheless, owing to the proliferation of cases (as shown by numerous decisions issued by the Supreme Court) it is possible to separate and categorise the decision criteria.
With regard to the abstract weight of the rights, it is notable that in Spanish law, the deliberation should respect the prevalent position held by the right to freedom of information and of expression over the personality rights identified in article 8.1 of the Constitution. However, recent case law indicates that the Constitutional and Supreme Court have taken a more protective position with regard to personal rights when balancing them with the fundamental rights to information and freedom of speech. Nonetheless, this trend is the opposite in cases of corruption, where Spanish Courts consider that the right to freedom of information acquires special weight, prevailing over the right to honour.
It is also important to note that when minors are concerned, their personality rights should prevail over and above the right to freedom of information or expression, pursuant to article 4 of Law 1/1996 for the Legal Protection of Minors.
Likewise, it is notable that in recent years, there have been numerous judgments concerning cases of infringement of personal rights to honour, privacy and one’s own image on the internet and, specifically, on social media sites. In these cases, the criteria of the Spanish Supreme Court differ, depending on whether the conflictive disclosure occurs on an online publication of the press or mass media, or on a social media site. For instance, in the recent ruling of 20 July 2018 (see question 25), the Spanish Supreme Court considered that the disclosure on a social media site of a picture of a person who had previously posted the picture on the social media site was within the social customs of the internet. By contrast, the Supreme Court declared that such a conduct should not be interpreted in the same manner whenever the subsequent disclosure is made on a press or mass-media site.
Damages awarded in proceedings relating to this area of law continue to be moderate. In most cases, damages range from €10,000 to €50,000.