La Regina Nuda and Italian Privacy Law – Athalie Matthews and Giacomo Parmigiani

26 09 2012

So Kate and Wills have now jetted back from the South Pacific and are lying low after French Closer published topless pictures of the Duchess under the headline “OH MY GOD!” and other publications followed suit.

The dust is also settling on the royals’ initial victory last Tuesday (18 September) against Berlusconi-owned publisher, Mondadori France, in which the Tribunal de Grande Instance de Nanterre banned the publisher from selling or re-using the pictures in France.  But – as the Gendarmerie poke around Provence for the offending paparazzo in the ensuing criminal inquiry – what next outside France?

It has not escaped the world’s attention that, on the day of the French judgment, not to be outdone, the Italian magazine Chi rushed out a 26-page special edition with 18 photos of the Duchess under the headline “La Regina E’ Nuda” (“The Queen is Naked”) – only to be followed on 19 September by the Swedish Se øg Hor (See and Hear) and its Danish sister title the next day.

So what would happen were a royal writ to wend its way to Italy?

Before publishing, Chi’s editor Alfonso Signorini defiantly said that “not even a direct call from the Queen” would stop him – and that the photographs complied with Italian privacy laws.

Inforrm’s modest inquiries reveal that this analysis was absolutely false; should Chi ever feel the wrath of the Windsors, Italian laws protecting name and image rights would give Mr Signorini a nasty mal di testa.

As in England, Italian privacy rights derive from various sources, but whereas in England put-upon princesses seek protection in a cause of action evolved from breach of confidence, Italian courtiers would point to legislation protecting name and image – both in the Italian Civil and Criminal Codes and in copyright and data protection legislation.

Articles 6 and 10 of the Italian Civil Code lay down name and image rights, Article 10 stating:

“Whenever the image of a person or of the parents, of the spouse or the children has been exhibited or published outside the cases in which the exhibition or the publication is in conformity with the law, or in a manner  prejudicial to the dignity or reputation of that person or relative, judicial authority, at the request of the interested party, can order the abuse to stop, without prejudice to the recovery of damages.”

This provision works in conjunction with the Italian Copyright Act (Act 633/1941)[pdf], which sets out broadly what is and what is not in conformity with the law.  Article 96 provides

“The portrait of a person cannot be displayed, reproduced or subject to commerce without the consent of this person, subject to the exceptions in the following articles…”

Article 97 provides

“The consent of the person in the portrait is not necessary when the reproduction of the image is justified by fame or the holding of public office,  for the purposes of justice or for police, scientific or teaching purposes or when the reproduction is associated with facts, events and ceremonies of  interest to the public or held in public. The portrait can still not be displayed or commercially distributed when the display or commercial distribution would prejudice the honour, reputation and dignity of the person portrayed.”

The words ‘justified by fame’ might well cause a shudder among the famous, especially given that in Italy this is generally interpreted to mean any person of interest to the public. However in practice the rule is that if a photo is taken of private premises (whether indoors or outdoors) without consent and the subject is not easily visible from public land, it cannot be justified by the fame of the person depicted and is thus unlawful.

The most famous illustration of this was the case of Lilli Gruber, an Italian journalist who didn’t take it lying down when a photographer climbed a tree and used a telescopic lens to get pictures of her sunbathing naked on her own private property in the garden around her swimming pool.

She promptly sued the Italian magazines, Oggi and Novella 2000, which published the stolen shots – and on 17 November 1994 the Court of Milan held that the conduct of the photographer violated Article 615 bis of the Criminal Code as well as Ms Gruber’s right to protect her image and privacy.

The court ordered the editors of both titles, the publisher and the photographer, to pay damages totalling 250,000 ,000 Lire, which today would mean in excess of 250, 000 Euros.

This case had obviously slipped the mind of Chi’s editor as he pressed the “print” button and gave his assurance to the world that it is fine to publish papped pictures of the future Queen of England with her top off (not to mention Wills rubbing suncream into her delicate derrière), defiantly telling The Mirror:

“I don’t sell artichokes and carrots, I sell photographic scoops…it satisfies the curiosity of readers, it is the first time that the future Queen of England has been pictured in such a way. They are natural pictures, there is no morbidity about them, there is nothing that could affect the dignity of the person involved….Lastly they were taken on a public road by photographers on public land…The Duchess was sunbathing on a terrace, sadly for her. Italian privacy laws say that we can quite happily take pictures from a public road, of personalities, exposed places, in open air.”

According to Milan-based law firm Mondini Rusconi – as you will by now have gathered – there is not a Corgi’s whimper of a doubt that Chi’s stated position is inconsistent with Italian law and that Mr Signorini was auditioning for RADA.

Editors know full well from the Gruber case – which remains good law – that whilst consent is not generally required when the famous person or holder of public office is in a public place or at a public event, it most certainly is when they are on a private terrace enjoying a private holiday and only visible with an exceptionally powerful telescopic lens.

Senior Partner Giorgio Mondini said:

Based on publicly available information, it appears that the Duchess was on a private balcony in a private house enjoying a private holiday. She was a long way from any road and could not be seen at all without the aid of an extremely powerful telescopic lens. If she had been sunbathing topless on a public beach or visible by passers by then of course the pictures would be legal – but in these circumstances they are certainly illegal.”

Had the Duchess applied for a pre-publication injunction in Italy, she would in his view (as long as the pictures had not previously appeared there) have got one, he added.

Whilst Italian law has to perform a similar ‘balancing act’ to the one conducted by English judges, there is no doubt that the press’s rights would be outweighed by the holidaying Princess’s right to defend her modesty from the prying eyes of the world, he added.

Should the Duchess pursue the case in Italy, according to Mr Mondini, she would be likely to be awarded several hundred thousand Euros:

“This is clearly a very special case. The plaintiff is so famous and so much damage has been done to her by the worldwide press coverage that the Milan judges, who are usually conservative with damages, with 100,000 Euros the ceiling for example for defamation, would be likely to make a much more substantive award than usual.

And what about the pictures themselves? The French court held that privacy had been breached, ordered the aptly named Closer to refrain from selling the photos or publishing them on-line and ordered it to hand back all devices containing the photographs (which it reportedly duly did) or face a fine of 10, 000 Euros per day.

According to Mr Mondini, an Italian civil court could prohibit further use of the unlawful pictures in Italy and order their destruction if a violation of Articles 96 and 97 of the Italian Copyright Act 633/1941 and/or article 615 Bis of the Italian Criminal Code were ascertained.

However, an order for the seizure or withdrawal of the copies of the magazine already on sale at newsstands across Italy would be unlikely due to the protection afforded to the freedom of press under Article 21 of the Italian Constitution and the fact that most of the damage was done upon first publication.

As for Ms Gruber, remedies would also lie in the Codice Penale: Article 615 bis of the Italian Criminal Code, entitled: “Illicit interference in private life”, states that:

 [I] “Whoever, by means of instruments for visual or audio recording unlawfully obtains information or pictures relating to private life carried out in the places indicated in Article 614, is punished by imprisonment of between 6 months and 4 years.

 [II] Unless the facts constitute a more serious crime, anyone who reveals or distributes, by whatever means of information, to the public, the news or the images obtained by the means indicated in the first part of this Article, will be subject to the same penalty.

 [III] The crimes are punishable by a claim from the affected person without a prior complaint being filed by the injured party and the penalty is  imprisonment of from one to five years if the act was committed by a public official or by someone carrying out a public function, abusing their powers or violating the duties inherent in their function or service or equally anyone abusing the profession of private investigator.”

(Article 614, ‘Violazione di domicilio’ refers breaches of privacy in the home/ the house or the grounds of one’s home/ house without consent or by clandestine means or deception.)

Under [II] then, it seems that, technically, an Italian editor and publisher could end up behind bars for publishing (revealing and distributing) such pictures to the public. However this has never happened in Italy.

Whatever legal path the Duchess may (or as seems increasingly likely may not) follow in Italy, Inforrm has taken a long-distance look at Mr Berlusconi’s own past relationship with the telescopic lens. Let us not forget that the former (three time) Italian prime minister notorious for his penchant for young, preferably naked, ladies, owns both French Closer and Italian Chi which have ridden so roughshod over Catherine Elisabeth Middleton’s efforts to tread the media minefield so carefully since her world-famous marriage to the heir to the British throne on 29 April 2010.

In April 2007 the Sardinian photographer Antonello Zappadu photographed Mr Berlusconi (then the opposition leader), by means of a telescopic lens, in the company of five naked and topless young women in the grounds of his Sardinian villa, Villa Certosa. As in the Duchess’s case, the photographer was not on private property and the images were not visible without technological help.

After the photos were published in Oggi, Mr Berlusconi filed complaints with the Public Prosecutor’s Office at Tempio Pausania in Sardinia, and with the Italian Data Protection Authority. The photos were ruled to be in breach of Article 615 bis of the Criminal Code and of data protection law and were banned (although subsequently published internationally).

It would also be open to the Duchess to call on the Authority which, whilst not a judicial court, has administrative jurisdictional powers, including the power to block the use of pictures or other materials violating the provisions of the Italian Data Protection Code (Legislative Decree number 196/2003).

An appeal of the 2007 criminal decision by the publishers of Oggi was rejected by five judges of the Supreme Court of Cassation in Rome who found that:

“..photographs showing behaviours causing harm to private life obtained by conduct with constitutes a crime, by means of intrusion in private place of  residence with special technical means cannot be published in magazines and copies of daily newspapers.”

In June 2009 (around the same time as a further successful claim by Mr Berlusconi against Mr Zappadu for taking other photographs of the same property) the Spanish national newspaper El Paìs published the photos anyway, leading Mr Berlusconi frothing at the mouth at what he described as “…a violation of privacy and a scandalous aggression.” Ring any bells, anyone?

Athalie Matthews is a Media Law Associate at Bindmans LLP, Giacomo Parmigiani is an IP specialist at Milan firm Mondini Rusconi

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