With very few exceptions, the Italian law provides that the portrait of a person may not be displayed, reproduced or commercially distributed without the consent of such a person and this may invite damage awards. It is therefore always advisable to secure permission in a form that is provable and to specify the extent of such permission (duration, territory, form, etc.). However, in many cases, obtaining a written consent for these contributions is simply impractical, as it happens in the case of people who take part, for example, in pop vox.
On the 8th of July 2015, the Court of Milan issued an interesting ruling confirming that, under Italian law, consent to use likeness does not require to be in writing, as it can be inferred from the party’s behaviour and circumstances.
The claimant sued an Italian TV broadcaster alleging the violation of his publicity rights to the extent that he was interviewed without notice, while at work in a public street, on a live recording TV show, without his consent to be filmed being given in writing. In rejecting the claimant’s claims, the Court found that a consent, tacit though, was in fact released by the claimant, who did not oppose to be interviewed by a well-known TV host in front of the broadcaster’s television cameras.
This decision confirms that tacit consent might be a strong argument for defendants in suits alleging a violation of publicity rights whenever the conduct of the plaintiff is unequivocal.