While the privacy complaint of the Duchess of Cambridge received unprecedented attention from the press and legal commentators alike, the Spanish Supreme Court recently found itself grappling with a number of similar issues.
In 2007, the Spanish media was shocked by the publication of pictures of a famous Spanish actress, Elsa Pataky, in a state of considerable undress on a Mexican beach. She was getting changed while shooting a feature for the magazine ELLE when two paparazzi took pictures of her from a hotel some distance from the beach.
Five years later, the Spanish Supreme Court has condemned the magazine in which the pictures were published. In an interesting resolution that deals carefully with the meaning of concepts such as “public space” and “information in the public interest”, the Supreme Court for the first time awarded exemplary damages (of €310,000), taking into account the profit that the infringing magazine expected to make from publishing the photos.
The Spanish Constitution of 1978 establishes under a single article, 18.1, the right to “honour” privacy and reputation, as fundamental rights. These rights were also the subject of a more detailed 1982 regulation pursuant to the Law 1/1982 on the right to honour, privacy and reputation, which aimed to balance these rights with the (also constitutionally protected) rights of freedom of information and of public speech. For the past 30 years, the Spanish Courts have heard cases in which they have had to balance these rights, but the relatively low level of damage awards have provided little disincentive to would-be infringers.
The facts giving rise to the present case go back to March 2007 on a beach in front of the Hotel Paraíso at the Bonita Resort of Puerto Morelos, in the Rivera Maya (México). Detailed evidence as to the private or public nature of the beach was not advanced, although it seems that the public were able to cross the beach, and it was certainly accessible to the clients of the resort.
While the magazine feature did not include pictures of the actress in the nude, it did publish photos of her undressing in order to change her clothes. Two paparazzi took pictures of her from a distance, in words of the Court, clandestinely and furtively. The pictures were published a few days later in a Spanish tabloid under the title “Finally! From desire to reality”.
The actress claimed that the publication constituted an unlawful infringement of her right to privacy and her image rights. The magazine defended the complaint on the basis that the pictures were taken in a place open to the public, that the actress voluntarily posed nearly naked, and that there was a legitimate interest derived from the right to freedom of information to publish the pictures and inform the public. The magazine even argued that the publication of the pictures resulted in free publicity and economic benefit for the actress.
The case was therefore fought over the classic battleground: freedom of information versus the right to privacy.
The Supreme Court departed from the general rule under Spanish law that affords greater weight to freedom of information than to the right to privacy. And even though the right to privacy is a fundamental right covered also by the Spanish Constitution, according to the case-law of the Supreme Court, it is limited by the law and social custom, and also takes into account the extent to which the complainant has voluntarily put private information about themselves and their family into the public domain. Obviously, someone who has appeared naked in several films will struggle successfully to challenge the publication of pictures of her sunbathing topless on a boat.
Image rights under Spanish law entitle the owner to prevent the obtaining, reproduction or publication of his or her own image by a third party, whatever the aim pursued by the party taking the picture (whether commercial, scientific, cultural, etc). However, there will be no unlawful infringement of these rights provided that there is express consent from the owner of the image or there is a general interest to publish the image and the information it conveys. In this respect, the Supreme Court has held that there will be no lawful informative interest when the purpose of the publication was for profit or commercial purpose.
In the present case, the Court resolved that the privacy right of the actress should take precedence over the freedom of information rights of the magazine.
In doing so, the Court followed European Court of Human Rights precedent and held that the burden of proving that the photographs were taken in a public, rather than private place, falls on the defendant. In this case the magazine failed to establish that the beach was indeed a public place. However, the Court also noted that the nature – public or private – of the space, is not conclusive in order to decide whether the right to privacy or the image right was infringed. In making its decision, the Court also took into account a number of circumstances specific to the case.
First, the place where the actress was photographed was chosen due to its relative seclusion and because it offered – presumably – at least some degree of privacy.
At the time the pictures were taken, the actress was carrying out a professional activity, that of shooting a feature for ELLE Magazine. The demeanour of the other people working on the photographic shoot was relaxed, suggesting that they understood the location to be private.
While the case concerned the publication of photographs in Spanish magazines, the place where they had been taken was outside Spain, which is where the pictures were argued to have been of public interest.
The actress was able to show that she had not allowed her naked image to be used in public before, and that in this instance she had arranged for someone to cover or shield her when changing clothes.
Finally, the Court concluded that there weren’t any people (other than those involved in the shoot) who were nearby, as no one was seen on the deck-chairs of the beach, and the fact that the paparazzi were far away meant there was no reason why the actress would have realised she may be being photographed as she got changed.
All these factors led the Court to decide that there had been an infringement of the actress´ privacy to which she had not consented, whether expressly or implicitly.
The Court then conducted a balancing exercise between the actress’ privacy right and the magazine’s right of information. It concluded that the feature conveyed no information of any legitimate public value and was simply not in the public interest. To the contrary, the article was published by the magazine for purely commercial and publicity reasons, where it appeared in the section usually reserved for erotic pictures. The Court was clearly influenced by the nature of the magazine as a whole, contrasting it with more serious news publications.
Echoing conclusions which have been made in similar cases in the English Courts, the Spanish Supreme Court decided that while the public may find the pictures interesting from the point of view of being entertaining, this did not mean that the magazine could justify its infringement of privacy and image rights as being in the public interest.
It remains to be seen whether the English Courts adopt a similar approach to the question of exemplary damages.