Image rights and dissemination in the digital age
During a Coldplay concert at Gillette Stadium in Boston, the “kiss cam” – a common feature at sporting and musical events that captures couples in the audience and invites them to kiss – picked up a man and a woman embracing each other. Taken by surprise, they instantly hid, arousing the curiosity of the audience and immediately fueling speculation that they were lovers.
The scene, shown live on the big screen and promptly captured by spectators on their smartphones, went viral within hours, generating a wave of ironic comments and speculation about the protagonists’ private lives.
During the following days, rumors spread that one of the protagonists was considering taking legal action against the event organizers for accidentally exposing him during the concert.
Taking inspiration from this event, it is legitimate to ask whether such legal action brought by the protagonists of the incident could have legal grounds under Italian law.
More specifically, the question to be asked is whether the reproduction of a person’s image at an event, such as a concert, is lawful. And further, whether the subsequent online distribution of the video depicting the person’s image, filmed by a third-party viewer, is lawful.
To answer these questions, we must first start with the image rights, which in Italy are protected by several sources of law and are recognized as fundamental rights of the individual.
In this regard, it is certainly worth mentioning Article 10 of the Civil Code, according to which any display, reproduction, or publication of the image or portrait of a person without his consent is prohibited.
No less relevant is Article 96 of the Copyright Law, which states the prohibition on reproducing a portrait of a person without his consent, except in the following cases provided for in Article 97, for which it is not necessary to obtain the consent of the person concerned:
- when the reproduction of the image is justified by the notoriety or public office of the person concerned, by the requirements of justice or the police, or by scientific, educational or cultural purposes;
- when the reproduction is connected to facts, events, ceremonies of public interest or held in public (including concerts).
In all these cases, the interest in the free expression of thought and information prevails over the personal rights of the individual, provided that the reproduction of the image does not harm the dignity, reputation or decency of the person portrayed.
Regarding concerts, there is a further clarification to be made, namely that the subject portrayed should be part of the indistinct crowd of spectators and not clearly identifiable or in the foreground, as the latter case could constitute an invasion of privacy, especially if conveyed through means such as websites and social media.
Finally, it should not be forgotten that the image of a person’s face, if identified or identifiable even only in the context of the event, is personal data within the meaning of Article 4 of the GDPR. It follows that, in the absence of the consent of the person portrayed, whoever disseminates the image becomes the data controller and may be held liable for any possible damage caused.
To overcome these problems and to avoid the violation of any of the above-mentioned rules, event ticket distributors usually include specific clauses providing that by purchasing the tickets, the individual consents to the reproduction of his image and therefore to being photographed, filmed, and shown on big screens, broadcasts, or promotional clips.
Alternatively, event organizers usually post clearly visible notices at the entrance to the event regarding the possible use of images recorded during the event.
Therefore, in the absence of such contractual provisions that the person concerned accepts in order to participate in the event or of specific notices displayed at the entrance, any reproduction of an individual’s image during the event is to be considered unlawful.
In a case similar to the one in question, the Supreme Court, in its ruling no. 36754 of November 25, 2021, ordered Sony music label to pay €40,000.00 as compensation for the damage to a woman who, during the recording of a music video for a well-known singer, was filmed on the street with her lover. The DVD containing the video in question had been widely distributed, to the extent that the extramarital affair of the woman who subsequently sought compensation for the damage suffered became public knowledge.
The music label was held liable for failing to obtain consent for the recording and distribution of the image in question and for failing to indicate, by means of appropriate signs, that recordings were taking place in that area.
Having clarified this first aspect, which mainly concerns the liability of the event/concert organizer, there is, however, a further and more important aspect to analyze, namely the possible dissemination of the image by third-party participating in the event. In fact, the consent given at the time of entry by accepting the contractual conditions does not extend to the dissemination of images by third parties.
This is where the real problem of the whole affair lies, namely the subsequent massive dissemination of the video in question online showing images of those involved in the incident without their consent or authorization. All this is in total violation of the afore-mentioned provisions of Article 10 of the Civil Code, Article 96 of the Copyright Law, and Article 4 of the GDPR.
As a result, the protagonists of this story would have the right to take legal action against those responsible for having unlawfully published and disseminated the images in question, requesting their removal pursuant to Article 17 of the GDPR (which establishes the right to be forgotten), in addition to compensation for damages suffered.
However, this action is difficult for the injured parties to take, as it is practically impossible to identify the person responsible for the unauthorized reproduction of the image on the web in order to claim compensation for the damage suffered.
It is no coincidence that Codacons recently issued an official statement calling for a ban throughout Italy on the use of Kiss cams during concerts and public events, in order to prevent the uncontrolled dissemination of images and given the difficulty to identify the person responsible among thousands of people armed with smartphones.
In conclusion, the filming of people using tools such as the “kiss cam”, intensified by the virality of social media, shows how an apparently harmless entertainment form can trigger complex legal issues.
While buying a ticket often implies tacit consent to be part of the audience that is filmed, the uncontrolled dissemination of images on social media raises significant ethical and legal issues.
In an age where every image risks becoming viral content, it would be desirable for legislators to intervene to clearly define the limits and scope within which such sharing can be considered lawful.
