Sources of lawRight of publicity
Is the right of publicity recognised?
Greek law does not explicitly recognise the right of publicity, but considers it to be part of the right of personality. The latter encompasses all elements of human existence (Papantoniou, General Principles of Civil Law (1982), page 105, Decision No. 1010/2002 of the Supreme Court, Nomiko Vima, 51, 248), and includes a person’s honour and reputation, the right to privacy, the right to image and to other physical features and intellectual property rights. As the concept of personality is not defined in Greek law, the enforcer may adjust the meaning to the ever-changing manners and opinions of society.
The right of publicity can be defined as a right of mixed nature, having at the same time personal and property aspects.Principal legal sources
What are the principal legal sources for the right of publicity?
The Greek Constitution assigns to the state the primary obligation to respect and protect human dignity (article 2) and recognises the right of each person to develop freely his or her personality (article 5). Article 28 of the Constitution provides that the generally accepted rules of international law and treaties ratified by the Greek state constitute an integral part of Greek law and prevail over contrary statutory provisions. Greece has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1959) and its Protocols. Article 8 of the Convention protects private and family life.
The right to personality is protected under article 57 of the Greek Civil Code (GCC), which provides that:
A person who has suffered an unlawful offence on his personality has the right to claim the cessation of such offence as well as the non-recurrence thereof in the future. A further claim for damages based on the provisions governing unlawful acts shall not be excluded.
The Greek Penal Code also protects a person’s honour and reputation under articles 361 to 367. Article 361 provides that a person who, by words or acts, injures another’s reputation and the act is not punishable as a slander offence, shall be punished by imprisonment up to six months or pecuniary penalty. If the insult has been committed in public or via the internet shall be published by imprisonment up to one year or pecuniary penalty.Enforcement
How is the right enforced? Which courts have jurisdiction?
In Greek law there is a distinction between jurisdiction and competence. The first refers to the state’s judicial power in general (eg, in terms of international jurisdiction) or the divisions of judicial authority based on the nature of the matter to be judged (eg, civil, administrative or criminal). The second refers to the allocation of judicial power within the state’s jurisdictional divisions. Civil disputes, such as those emerging from infringement of the right of personality, are dealt with by civil courts. While territorial competence depends on where the defendant is domiciled, the subject-matter competence (of general actions) depends on the amount in contention. Provisional remedies are administered by the single-member competent court of first instance, but can also be administered by a competent court for the claim if the main action has already been filed and served on the defendant; therefore, a hearing of the case will be pending before that court.
Criminal courts might also be competent under articles 361 to 367 of the Penal Code. Jurisdiction in penal matters is essentially based on the territoriality principle; an offence is deemed to have been committed both where the act took place and where the result occurred.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 right of publicity is recognised under Greek law as a part of the right to personality (Ioannis Karakostas and Christina Vrettou, ‘The Unlawful Intrusion of Personality and the Right of Publicity: comments on Decision No. 4661/2004, in Law No. 2/2006’). Besides article 57 of the GCC, articles 58 and 60 of the same code also provide, accordingly, for the protection of a person’s name and products of his or her intellect, and trademark law (Chapter III of Law No. 4072/2012, as amended) and intellectual property law (Law No. 2121/1993 as amended by Law No. 4212/2013 by which Directive 2011/77/EU has been transposed into Greek law).
Existence of rightProtectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
All aspects of his or her personality that can be economically exploited (eg, a person’s image, name (including pseudonym), voice, etc).
Do individuals need to commercialise their identity to have a protectable right of publicity?
No. The right is based on the principle that each person has a right to self-determination in view of the commercial exploitation of his or her image and other aspects of his or her personality (eg, voice, signature).Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
In Greece, there is no distinction between Greek and foreign citizens in terms of judicial protection.
According to article 34 of the GCC: ‘every human being is capable of being the subject of rights and other duties’. Furthermore, article 68 of the Code of Civil Procedure (CCivP) provides that: ‘he who has a direct legal interest may request judicial 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 registration is required under Greek law for the protection of the right, with the exception of trademarks. Should a person consent to the registration of a feature of his or her personality as a trademark, the licensee may apply for its registration according to the provision of article 122 et seq of Law No. 4072/2012.
There are no provisions in Greek law permitting optional registration of a right for the purpose of protecting a person’s 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?
As a right of mixed nature (having personal and property aspects), the right of publicity can be protected after a person’s death.
The right to personality, as a personal right, terminates with death (article 35 of the GCC). However, the GCC provides for the protection of the memory of a deceased person (article 57 of the GCC) and for the name of a person (article 58 of the GCC). The claim may be filed by any close relative of the deceased person who is not necessarily an heir. Hence, the spouse, the children, the siblings and other close relatives may file a claim against anyone violating the memory or offending the name of that person and demand the cessation of the offence, its non-recurrence in the future, compensation as well as moral damages. To that extent, the relatives of the deceased person may forbid or allow the economic exploitation of the name, the image, the signature or other features of that person’s personality. No time limit exists under Greek law for the protection of the right. The Supreme Court, when reviewing Decision No. 626/2010 of the Nafplion Court of Appeal, adjudicated, with Decision No. 525/2014, that the court did not err by accepting that the plaintiff’s personality right had been violated by the unlawful use of her surname (which was the surname of her grandfather that had been registered (in 1952) and used for more than 60 years (from 1905 to 1966) as a trademark) by the defendants for the distinction of products similar to those distinguished in the past with her grandfather’s surname. The right to seek protection is prescribed (see question 20).
Although Greek law does not clearly recognise heirs’ rights stemming from a deceased personality, we are of the opinion that personality features (such as name, image, signature, voice, private life) survive a person’s death and can be economically exploited. If heirs can forbid the use of features of a deceased personality, they may as well allow it. Heirs or third parties to whom such rights had been previously assigned by the deceased may also seek protection according to the law.
There is no need for the right to have been exercised before the person’s death.
Ownership of rightTransferring
Can the right be transferred? In what circumstances?
Personality rights are not transferable. However, property rights related to someone’s personality are. Celebrities may enter into agreements for the economic exploitation of features of their personality (image, voice, signature, etc). Such rights may be transferable (by the licensee) or inherited by the heirs of the licensor. It should be noted that the extent to which a right is granted is usually limited and clearly specified in the agreement.Licensing
Can the right be licensed? In what circumstances?
Yes. Since features of one’s personality (such as image, voice or signature) may acquire an economic value, holders of such rights may enter into agreements granting third parties the right to commercially exploit their features. A person may also register, or give the right to another person to register, his or her name or image as a trademark to distinguish products or services. In such cases, the fame of a person is used to attract the public’s attention to the specific products or services.Infringement
If the right is sold or licensed, who may sue for infringement?
Under Greek law, ‘anyone who has a direct legal interest may request judicial protection’ (article 68 of the CCivP). Third parties, having an indirect interest concerning the right, do not have standing to sue. Hence, depending on the case and the terms of the agreement, both parties may have a direct interest to sue.Post-mortem rights
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?
Greek law does not directly recognise post-mortem rights, with the exception of the provisions of paragraph 2 of article 57 and article 58 of the GCC. However, as a right of a mixed nature, the property aspects of the right to personality can be inherited by natural heirs (see question 9). The owner of such rights may also designate third parties (natural or legal persons) as beneficiaries of the right by way of a will.Recommended actions
Are there any actions that rights owners should take to ensure their rights are fully protected?
If personality rights are violated, the offended person should seek protection under the law. Claims should be filed promptly because they are subject to prescription. Furthermore, the assignment of a right should always be in writing. The agreement should specify the term and the extent of the assignment. It should be noted that the Athens Court of Appeals adjudicated with its Decision No. 1441/2010 that the consent given by the right holder for the publication of his or her picture only covers the purpose for which it was given.
What constitutes infringement of the right?
Any unlawful use of features of a person’s personality by the violating party for reasons of commercial exploitation.Excluded formats
Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
No. The right of publicity is not directly recognised in Greek law. Although both rights are based on the right of personality and they are analogies in the way the rights are licensed, they differ significantly, because intellectual property rights protect creative works produced by a person. The purpose of intellectual property rights is to encourage artistic expression and promote through the exploitation of such works economic growth. Intellectual property and connected rights are protected in Greece by Law No. 2121/1993 (as it is in effect). The Law covers original intellectual literary, artistic or scientific creations expressed in any form (article 2.1). Translations or adaptations are also considered to be ‘works’ protected under the Law. The Law provides in article 3 for the economic powers that are conferred upon the ‘author’.Infringement claim requirements
Is knowledge or intent to violate the right necessary for a finding of infringement?
No. However, if a defendant is found to be at fault (a person is at fault when he or she wilfully or negligently commits an unlawful act or omission), he or she may be ordered to pay monetary compensation or make other reparations for the moral damage caused. The elements of delictual liability are:
- unlawful act;
- damage; and
- causal relation between the unlawful act and the damage caused.
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?
The GCC protects personality rights against any unlawful action, even against persons who are not at fault. Hence, the offended person has the right to claim the cessation of such an offence as well as the non-recurrence thereof in the future.
Content providers are liable only for the violation of provisions regulating the transmission of commercial communications provided in Presidential Decree No. 109/2010 by which Directive 2010/13/EU has been transposed into Greek law and article 9 of Law No. 2251/1993 (as it is in effect) for the protection of consumers. However, should a person’s personality rights be offended by an advertisement, that person may seek protection and demand the cessation of the offence and the non-recurrence in the future by any person involved therein, according to the general provisions of article 57 of the GCC.
Law No. 1178/1981 (applying to printed and electronic media) introduces strict liability for content providers for libellous content, produced by a third person, usually an employee, that is disseminated through newspaper, magazine or electronic media. According to paragraph 1 of the Law, the owner of a mass medium is obliged to fully indemnify the unlawful pecuniary and moral damage that is culpably caused by a publication offending the honour or the reputation of any person, even if the culpability of the unlawful act can be attributed only to the writer, newscaster or TV presenter. Hence, if such content also violates the right of publicity, publishers or media content providers could be held liable according to the above-mentioned provisions.
Greece has transposed into Greek law Directive 2000/31/EC on certain aspects of information society services, in particular, electronic commerce in the internal market. Hence, intermediaries (such as video-sharing platforms) offering hosting services have limited liability. The host provider is not liable for information stored at the request of the recipient of the service provided that the provider:
- has no actual knowledge of the illegal activity and, as regards claims for damages, is not aware of the facts or circumstances from which the illegal act or information is appropriated; and
- obtains such knowledge or awareness and acts expeditiously to remove or disable access to information.
What constitutes ‘actual knowledge’ is a matter of interpretation in accordance with the general provisions of the law. Should the intermediary be notified (by a third person) of the illegality of the content stored, he or she should evaluate the content of the notification, occasionally in the light of different jurisdictions that might be involved, and act accordingly.
Social media fall under the notion of information society services that are regulated by Directive 98/48/EC. Social media allows individuals to upload content to share or place it on a website. Hence, social media acts as hosts, also having limited liability according to the above-mentioned provisions.
Conversely, retweeting is the act of sharing publicly a tweet (information) with one’s followers. It is an act of the user of the social media platform. Liability of the person that performs the act depends on the case, particularly if the ‘retweeting person’ was at fault regarding the violation of a person’s right of publicity. Note that no such case has ever come before the Greek courts.
What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
The offended person has the right:
- to demand the cessation of the offence;
- to demand the non-recurrence of the offence in the future; and
- to claim for damages.
According to article 59 of the GCC, a person can claim for damages that are not material but are the result of mental anguish experienced following an offence against his or her personality. Reparation for moral damages may consist of monetary compensation, publication of a statement restoring the truth and whatever is dictated by the circumstances. The person who has suffered an unlawful infringement of his or her personality rights may seek reparations on the basis of articles 914 and 932 of the GCC, which will cover damages for pecuniary injury and moral non-pecuniary harm.
The offended person may also seek provisional remedies based on articles 682 to 738 of the CCivP, provided that there is an urgent case for, or imminent danger concerning, the substantive right at stake.Time limits
Is there a time limit for seeking remedies?
A claim is subject to prescription under the law (article 247 of the GCC (see question 14)). In the case of claims for damages arising from delicts, prescription commences from the time the claim can be pursued (article 251 of the GCC) and accrues five years after such time and, in any case, 20 years from the commission of the unlawful and culpable act (article 937 of the GCC).Attorneys' fees
Are attorneys’ fees and costs available? In what circumstances?
Attorneys’ fees and costs are available depending on the case and the procedure. However, there is no available data on this matter.Punitive damages
Are punitive damages available? If so, under what conditions?
They are not provided for under Greek law.Preliminary relief
Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Provisional remedies are provided for in articles 682 to 738 of the CCivP on condition of an urgent need or in order to avoid imminent danger. Their scope is broad. A provision order can also be granted upon filing a request (article 691 of the CCivP). Such remedies are of a definite term. When granted before the filing of the main claim, the plaintiff is ordered to file his or her claim within a specified period of time and in the case of non-compliance, the remedy expires without any further action from the other party.Damages measures
What are the measures of damages?
The offended person may seek reparation for damages that are not material but are the result of mental anguish experienced following an offence against his or her personality as well for pecuniary injury. The court takes into account the circumstances under which the unlawful act took place and in particular:
- the nature of the unlawful act;
- the impact that the act had in the (business and social) environment of the offended person;
- the conditions under which the unlawful act was committed; and
- the social and economic status of the parties et alia.
Reparations related to pecuniary injury may include the decrease of existing property (positive damage) of the injured person (creditor) as well as lost profits, that is, profits that the injured person would expect to gain in the normal course of events (if the person obliged to indemnify would not have violated his or her rights).Significant case law
What significant judgments have recently been awarded for infringement of the right?
The party aggrieved by Decision No. 6289/2009 of the Athens Court of Appeals contested its judgment before the Supreme Court for violation of the rule of substantive law and in particular for accepting violation of the plaintiff’s personality under article 57 of the GCC consisting in the use of the plaintiff’s artistic name as a trademark for the distinction of similar products. The Supreme Court, with Decision No. 1223/2014, rejected the appeal and upheld the decision of the Court of Appeals.
The Athens Court of Appeals adjudicated with Decision No. 3808/2014 that the plaintiff’s personality right had been infringed by the publication of photographs picturing her and her partner in an intimate act. The court reasoned that there was no prevailing public interest in the photographs that had been taken from the archives of the police and that the defendants had not only infringed the plaintiff’s personality right but also violated the provisions of Law No. 2472/1994 (as it is in effect) providing for the protection of individuals from the processing of their personal data.
In what forum are right of publicity infringement proceedings held?
The offended person may take an action against any unlawful intrusion, invasion or infringement of his or her personality before the civil courts of first instance. The subject-matter competence depends on the amount in contention. According to article 14 of the CCivP, justices of peace are competent for claims up to €20,000, while one-member courts of first instance are competent for claims up to €250,000. Provisional remedies are administered by the single-member courts of first instance.Use of juries
Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?
Civil court matters are presided over by judges. Only criminal justice is, in certain cases (in some felonies), administered by jurors.Applicable law
How is the choice of applicable law determined?
Article 26 of the GCC introduces for torts the lex loci delicti commissi approach. Conversely, property rights, including possessory rights, are governed by lex rei sitae, according to article 27 of the GCC. However, intangible assets are not considered to be things and if they are part of personality right are governed by the national law of the person involved. Intellectual property rights are governed by Law No. 2121/1993 (as it is in effect) of article 67 that sets a number of criteria to select applicable law.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?
Greece is party to conventions dealing with matters of recognition and enforceability of judgments. Furthermore, the GCC contains provisions for the recognition of foreign judgments or orders. Article 323 provides for the requirements for such recognition. A foreign judgment may also obtain enforceability according to the provisions of article 905 of the CCivP.Appeals
What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
A case can be reopened with an appeal. According to Greek law, only final judgments are appealable. The time frame for filing the appeal is 30 days from the date of service of the judgment or 60 days if the appellant resides abroad. Grounds for appeal may refer either to the evaluation of evidence, to alleged procedural mistakes or mistakes in the interpretation of the law by the lower court.
Provisional remedies can be revoked by the same court or the court before which the main claim is pending.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?
Costs vary depending on the case. The Greek judicial system has been scrutinised for the rather slow progression of ordinary proceedings. In recent years, provisional remedies have also been rendered rather slowly, a fact that has increased the number of applications for provisional orders.
The new CCivP that came into effect on 1 January 2016 provides for conciliation and mediation proceedings. In particular, articles 209 to 214 provide for a pretrial-friendly settlement before the justice of peace. The person that has standing to sue may apply in court pretrial for an amicable settlement of the dispute. The justice of peace summons the parties and examines the case; not being bound by the rules and procedures provided for in the GCC and the CCivP. Attempts at conciliation may take place for all or part of the settlement. If the parties accept the outcome of the attempt, the terms of conciliation are recorded. The settlement achieved, according to the provisions of article 208 of the CCivP, has the same effect as judicial conciliation.
Article 214A provides that if the parties reach an amicable settlement by themselves, they may redact a document of settlement and submit it to the competent court to certify it to become enforceable. The judge examines whether the difference can be subject to conciliation, if all parties have signed the relevant documents and if the terms of conciliation are clear enough (including the performance to be rendered or amount to be paid).
Article 214B also provides for judicial mediation. The parties may apply for mediation either before the filing of the lawsuit or after but before the court reaches a decision. If the parties reach an agreement, the judge redacts the relevant document, which is signed by the parties and him or herself, before being filed before the secretariat of the court to certify it. The instrument then becomes enforceable.
Updates and trendsKey developments of the past year
Are there any emerging trends or upcoming legislation regarding the right of publicity in your jurisdiction?Key developments of the past year 32 Are there any emerging trends or upcoming legislation regarding the right of publicity in your jurisdiction?
Although it seems unlikely for Greece to recognise the right of publicity as a stand-alone right due to its legal tradition, most people now understand how famous people are used to command attention. In the recent parliamentary electoral procedure (June 2019), a candidate used the image of Yannis Adetokumbo, the famous basketball player for the Milwaukee Bucks (National Basketball Association). Yannis is of Nigerian origin but was born and raised in Greece and has Greek citizenship . The candidate uploaded two pictures of the player (one wearing the jersey of the Milwaukee Bucks and the other wearing the jersey of the Greek national team) in his Facebook profile with the caption: ‘Greek to the core. You were always one of us. We move together taking courage from our struggles.’ The upload of these pictures created a ‘tsunami’ of reactions as it was understood that the candidate wanted to use the image of the famous player as an ‘election tool’. Mr Adetonkumbo also reacted and the candidate withdrew the pictures, apologising to the public.