Sources of lawRight of publicity
Is the right of publicity recognised?
Although there is no legal concept of the right of publicity in Russia, separate elements of the individual’s personality, such as name, pseudonym, voice, image, are protected by law. The right of publicity is related to the right to privacy and protection of the individual’s private life, honour, dignity and business reputation, personal data and image from its unauthorised use.
Russia is still building its court practice on protection of the right to privacy. It cannot yet boast high-profile cases and the amounts of compensation awarded for invasion of the right to privacy cannot be compared with those granted in Europe, even more so in the US.
Most of the privacy protection cases are initiated by the public figures and well-known persons against celebrity magazines and newspapers. The amounts of compensation claimed and awarded in such cases are usually omitted from the court decisions available in the open sources. It is common knowledge that the awarded compensations are not high and are significantly reduced by the court in comparison with what has been claimed by the plaintiff.
In 2017, a court considered a defamation case related to child abuse in a nursery allegedly committed by their nursery teacher. The article describing the events had been rewritten based on another press release and published by the defendant. Nevertheless, editors and journalists are not usually found liable for reproducing articles, and the defendant was found responsible for the claims of the teacher’s violent behaviour in the absence of substantial evidence. In addition, the defendant violated the claimant’s right to using her image because no permission to use her image for the article was given and there was no evidence that the image had this been previously released for use in the public domain.
In a recent case, Case No. 4g-9067/2018, an actress and model filed a lawsuit against a newspaper for the unauthorised use of her photograph, which was taken without her consent in a public place. The Moscow City Court decided that the actress was a public figure and the photograph was lawfully used in an article for a publicly valid discussion. Therefore, the media did not need special authorisation to use her images.
In a similar case, though, the Moscow City Court noted that the public nature of the plaintiff’s profession could not affect the assessment of the defendant’s actions in view of the right to privacy granted by articles 23 and 24 of the Russian Constitution, and did not exempt the defendant from the obligation to obtain prior permission from the plaintiff for dissemination in the mass media of the information about the plaintiff’s private life.
In its recent Ruling No. 274-O, dated 12 February 2019, ‘On the refusal to accept for consideration of the complaints of Sergey V. Bezrukov on the violation of his constitutional rights by article 152.1, paragraph 1 and article 152.2, paragraph 1 of the Civil Code of the Russian Federation’ and the Ruling No. 275-O, dated 12 February 2019, ‘On the refusal to accept for consideration of the complaints of Anna O. Bezrukova on the violation of her constitutional rights by article 152.1, paragraph 1 and article 152.2, paragraph 1 of the Civil Code of the Russian Federation’, the Constitutional Court stated that the publication and use of the image of a citizen without his or her consent is allowed in case of public interest, in particular if the citizen is a public figure (holds a public office or a municipal office, plays a significant role in the public life in politics, economics, art, sports or any other field), and the publication and use of the image is carried out in connection with a political or public debate or interest in the person in question.
However, a person’s consent is necessary if the sole purpose of the publication and use of the image is to satisfy an ordinary interest in his or her private life or to make a profit. At the same time, the ban on the dissemination in the mass media of the information about private life of citizens, if no consent has been obtained from them or their legal representatives, does not apply only to cases when it is necessary to protect public interests, and the public interest should not include any interest shown by the audience, but, for example, the need of society to detect and disclose a threat to the democratic state of law and civil society, public safety and the environment.
The Constitutional Court also noted that the said conditions of disclosure and use of the image of a citizen (taking into account the absence of differences between the ways (forms) of dissemination of information about the person’s private life) are applicable not only in case of publication of such citizen’s images but also the information about his or her private life in mass media, including In online publications, without the consent.Principal legal sources
What are the principal legal sources for the right of publicity?
There are a number of international and federal laws that regulate the right of publicity. Among the international treaties are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
On a domestic level the following apply.
- Article 23 of the Constitution guarantees the right to privacy, personal and family secrets, protection of honour and reputation. Other guarantees include the right to privacy of correspondence, telephone, telegraphic and other communication. Restriction of such rights is only possible on the basis of a court decision.
- Article 24 of the Constitution prohibits collection, storage, use and dissemination of information about an individual’s private life in the absence of his or her permission. The Russian Civil Code regulates non-material values and their protection. Article 19, paragraph 4 of the Civil Code provides that a person’s name or pseudonym can only be used with the individual’s consent by third parties in their artistic, business or other activity in ways that exclude confusion of the person’s identity, as well as abuse of rights in other forms.
- Article 150 of the Civil Code lists among non-material values, life, health, human dignity, personal inviolability, honour and good name, business reputation, privacy, security of residence, personal and family secrets, freedom of travel, freedom of residence, name of the individual, authorship, and other non-material values that belong to a citizen naturally or by operation of law and are inalienable and non-transferable. Honour, dignity and business reputation are protected under article 152 of the Civil Code, whereas the right to one’s image is protected under article 152.1 of the Civil Code. All provisions of article 152 equally apply to legal entities in the same way as to physical persons, except for the ability to claim moral damages. Article 152.2 protects a person’s private information from collection, storage and distribution, unless it is done through governmental or public interest or the information was revealed earlier by the person voluntarily.
- Article 1265 protects the author’s right to use or authorise the use of a work under his or her name, under a pseudonym or anonymously. In accordance with article 1315, paragraph 1, sub-paragraph 1 of the Civil Code, an artist has the exclusive right to performance, including her image and voice. The artist is entitled to exercise his or her right and prohibit third parties from using the recording of the performance or give authorisation to such use.
- Article 3, paragraph 7 of the Law on Information, Information Technologies and Protection of Information provides for the right of privacy, prohibition of collection, storage, use and dissemination of information of private nature without the individual’s permission.
- Article 49 of the Law on Mass Media requires that a journalist obtain a person’s consent or a consent of his or her representatives for disseminating information of a private nature, except for the cases when such dissemination is necessary in the public interest.
- The Law on Data Protection in article 6, paragraph 1 allows collection and processing of personal data only with the holder’s consent.
- Article 128.1 of the Criminal Code provides for liability for defamation: depending on the aggravating circumstances, the violator would have to pay a fine up to 5 million roubles or compulsory community service of up to 480 hours. Criminal liability does not exclude the possibility of a civil lawsuit, which allows the claimant to receive compensation for financial and moral damages as well as demanding the refutation and removal (from the online media source) of discrediting information.
How is the right enforced? Which courts have jurisdiction?
Legal entities and individuals that believe that their right has been violated are entitled to initiate court proceedings against the infringer, and claim an injunction against the infringer and compensation.
Courts of general jurisdiction and commercial (arbitration) courts both have jurisdiction. Cases involving individuals are tried by the courts of general jurisdiction. As regards cases involving legal entities, jurisdiction will depend on the nature of the claim and the sphere of the claimant’s activity.
As prescribed by sub-paragraph 7, paragraph 6, article 27 of the Arbitrazh Procedure Code, cases on protection of business reputation in the sphere of business and other economic activity fall under the jurisdiction of commercial (arbitration) courts.
In accordance with article 152 of the Civil Code, an individual is entitled to claim refutation of information discrediting his or her honour, dignity and business reputation if a person disseminating such information does not prove that it is true. Defamatory information disseminated in the mass media must be denied in the same mass media. In addition to the refutation and publication of a response to the defamatory information, the individual is entitled to claim damages.
As with individuals, legal entities are entitled to protect their business reputation even if their firm name was not mentioned in the false publication. In its ruling ‘Review of court cases on resolution by the courts of the disputes of protection of honour, dignity and business reputation’, dated 16 March 2016, the Presidium of the Supreme Court of the Russian Federation stated that dissemination of false information about the trademark under which the plaintiff’s products are manufactured derogates the plaintiff’s business reputation even if the plaintiff was not referred to in the publication. Absence of the plaintiff’s name in the publication does not exclude the negative effect of the statement towards the plaintiff. A trademark is a designation used for individualisation of legal entity’s goods and, thus, inextricably connected with the person who manufactures the goods branded with the trademark. Therefore, dissemination of false information regarding the trademark derogates the business reputation of the manufacturer and trademark owner and results in loss of the customer’s interest in its goods and occurrence of loss.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?
Article 19, paragraph 4 of the Civil Code prohibits use of the person’s name or pseudonym if it results in passing-off, regarding the identity of the persons and abuse of rights in other forms.
- Article 1483, paragraph 9, sub-paragraph 2 of the Civil Code prohibits registration as trademarks of designations identical to the name, pseudonym or the derivative therefrom, portrait or facsimile of a person well known in Russia (as of the date of the trademark application) without such person’s consent.
In its ruling in Case No. SIP-1010/2014 on annulment of the ZEGNA trademark registration, the IP Court concluded that the claimant failed to prove its interest in filing claims under article 1483(9)(2). That article provides that only an interested party, such as the well-known person, or his or her heirs, can object to trademark registration on these grounds. However, the claimant was neither related to nor represented Ermenegildo Zegna or his heirs but was another company. Furthermore, the claimant did not prove that the surname of the Italian fashion designer was well known and not merely a fictional name for the benefit of Russian consumers.
Existence of rightProtectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
Under the right of publicity, aspects of a person’s identity such as their name and pseudonym, image, personal data, honour, dignity and business reputation, as well as private life, are protected.
Russian law does not regulate use of an individual’s voice, per se. A voice can be protected as an element of an artist’s performance.
In Ruling No. 25 of 23 June 2015, the Presidium of the Supreme Court of the Russian Federation stated that in accordance with article 152.1 of the Civil Code, an individual’s consent for publishing and further use of his or her image is not required when the image is used, inter alia, for state, social and other public interests.
Public interest occurs when a person is a public figure (eg, holds a state or municipal position, plays a significant role in public life in the sphere of politics, economics, art, sports, etc), and publishing and use of his or her image relates to political or public discussion, or the interest in such a person is publicly important. Publication of photographs and information about the person’s private life, with the only purpose being to satisfy the readers’ curiosity regarding the particulars of the individual’s private life, cannot be considered as a contribution to publicly important discussion, even if the individual in question is a well-known figure.
In 2016, Case No. 33-654/2016 of the Supreme Court in Mary-El Republic, publication of a comical photograph of the mayor of Yoshkar-Ola without his authorisation was considered lawful because he was the object of public political discussion and the photograph was not deliberately retouched to offend him or harm his reputation.
In the same ruling, the Supreme Court stated that the individual’s consent is not required if his or her image is not a main object of use and the photograph depicts information in the public domain. As a rule, if people depicted in it clearly expressed their consent to the photograph being taken and did not prohibit publication and use of the photograph, one of them is entitled to publish and use the photograph without additional consent from the others, except if such a photograph contains information on their private lives.
Certain laws contain stricter regulations with respect to publishing in relation to minors. Article 4, paragraph 6 of the Law on Mass Media prohibits publication in mass media and telecommunication networks information on a minor suffering as a result of unlawful acts, which includes his or her name, surname, photograph and video images, his or her parents and other legal representatives, date of birth, recorded voice, place of residence or location, school or work and other information that would allow the minor to be identified.
A legal entity can initiate a legal proceeding against the person who disseminated false and defamatory information relating to such a legal entity, including against members of their governing bodies. If defamatory information is published against the chief executive officer of a business, such an action is deemed to be aimed at the business because the reputation of its manager is inseparably associated with the business that he or she runs. It is noteworthy that a person who has published such information can be brought to administrative responsibility by the chief executive officer and not the organisation. Article 5.61 of the Administrative Code provides for liability for derogation of honour and dignity expressed in indecent form.
Do individuals need to commercialise their identity to have a protectable right of publicity?
No. Russian law does not require that individuals commercialise their identity to have their right of publicity protected.Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
Yes. Any person whose right of publicity has been violated in Russia is entitled to protection.Registration requirements
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?
No. Neither registration nor public notice is required for protection of the right of publicity.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?
In general, the period of limitation does not apply to the claims on protection of non-material values. Non-material values of the deceased person can be protected by his or her heirs and other interested persons. In the absence of heirs, consent to publication of the individual’s image is not required.
There is no legal requirement that the right must be exercised during the individual’s life in order to be protected after his or her death.