The Civil Court of Bari, as stated in a sentence filed last January, admitted that Liliana De Curtis, Totò’s daughter and legal heir, was right to act against Popolo delle Libertà – PDL – for her father’s personal identity offense. The litigation took place as a consequence of some poster put up by that political party representing Totò’s face (with a sorrowful look), on the foreground. They also mentioned the famous motto “..and I pay”, from the movie “47 dead man speaking”, and everything was represented beside a photo about the demolition of some buildings belonging to the so called “Eco monster”, located in Punta Perotti, Bari, in 2009, and beside a PDL’s mark.
Mrs. De Curtis considered that approaching her father’s image, with a sorrowful look, and the sentence “..and I pay” that became famous thanks to him, to a recent event was prejudicial to his rights because completely out of the original context and associated with a political propaganda. In particular, it was prejudicial to: Toto’s image right (art. 10 Civil Code), his right to privacy (Privacy Code); Toto’s personal identity (art. 96-97 Copyright Law), his reputation (art. 595 Criminal Code) and, above all, his “intellectual and political legacy”.
The actress asked a compensation for damages, both pecuniary and non-pecuniary ones, for an amount of 500.000,00 €. The Civil Court of Bari stated that the poster was prejudicial to Totò’s personal identity. Due to a photocomposition, it seemed that the artist was a spokesman for a political message, completely unrelated to the original expressions (both facial and oral) even if it was historically impossible as when the artist lived, that political party didn’t exist still, so his political support couldn’t be supposed. From an ideological viewpoint also, there is no evidence in his personal and artistic biography, to establish his political preference.
The Court of Bari considered appropriate to justify the sentence underlining that Totò’s speech must be considered among the “so important people for the history of a certain community, that is impossible to associate them with a certain political party or ideology”. The Court also states “in fact the personality couldn’t be considered as politically sided, and, in any case, he’s ever been considered in that way, so no politically sided, by communis opinion.” The poster, as the sentence states, makes Totò’s personal identity twisted, in particular sub specie, political identity, that is protected by the Italian legal system also in its negative meaning. In accordance with the Court of Bari, the personal identity damage in the specific matter De Curtis-PDL, was originated by other rights damages still protected in the Italian legal system: image’s right (art.10 Civil Code), reputation’s right (art. 96-97 Copyright Law) and privacy right (Privacy Code).
The Judge, Mr. Caso, stated, on the other side, that no reputation’s damage happened considering the calumny sub specie (art. 595 Criminal Code provides the civil effects for this offence). The essential circumstance in his decision was the absence of an agreement among all the heirs and that there were no excuses, above all there wasn’t the one related to the fame of the represented personality. This excuse requires the existence of a public information demand, so advertising scopes aren’t enough (for case-law: see Italian Supreme Court, Sec. III, 11 may 2010, n. 11353). The Court of Bari stated that political propaganda scopes can’t be related to information ones.
The Court excluded the pecuniary damage adopting an unusual parameter for Italian Law, regarding reputation and personal identity’s right; it referred to the parameters processed by the Court of Milan in relation to a relative death and it applied the minimum fixed for non pecuniary damage due to a relative death, for an amount of € 150.000,00.