How far does a footballer's right to control use of their their image go? Italian Supreme Court weighs on interplay between right to private life and freedom of expression/information

Gianni Rivera
with his Milan AC jersey in the 1970s

In what circumstances and at what conditions is one entitled to use another person's image without permission?

This vexed question, which is at the very core of balancing one’s right to private life with freedom of expression and information, has come once again under the scrutiny of a court.

This time it was the Italian Supreme Court, which earlier this summer ruled (ordinanza 19515/2022) that it is possible to use a well-known person’s image without permission when this person is portrayed, not only while performing their professional activity, but also while undertaking other activities connected to that.

In so doing, the Supreme Court adopted a more generous reading of the defence under Article 97 of the Italian Copyright Act than what the lower courts had done.

As it will be discussed further below, despite that the Italian court did not refer specifically to the European Convention on Human Rights (ECHR), the decision appears to be in line with inter alia the consolidated jurisprudence of the European Court of Human Rights (ECtHR) regarding the interplay between Article 8 ECHR (right to respect for private and family life) and Article 10 therein (freedom of expression and information).

But first things first: let’s see what happened in this Italian case.

Background

Gianni Rivera is a well-known former professional footballer (as well as politician), who played for several years for Milan AC.

In 2012, he filed a lawsuit against RCS, the publisher of inter alia prominent sports newspaper Gazzetta dello Sport, over the unauthorized use of his image within some documentaries on this history of football and memorable matches.

Specifically, these documentaries incorporated some photographs and footage of Rivera’s while playing football, as well as some photographs allegedly depicting him in non-professional/private settings on account that there Rivera was not playing football and/or not wearing his football uniform.

Those photographs related to the following situations:

• Getting off a plane while holding a cup just won;
• A football retreat together with other footballers;
• An interview with a journalist.

Rivera claimed that, no matter their content, such use of his image was inter alia in breach of his image rights, as recognized under the Italian Civil Code and the Italian Copyright Act.

In 2015, the Milan Court of First Instance partly sided with Rivera, finding that the reproduction of Rivera’s image outside of professional contexts (e.g., while playing football or posing with his team mates) and as appearing on some medals was unlawful. As a result, the court ordered RCS to pay EUR 50,000 in damages.

In 2017, the Milan Court of Appeal substantially upheld the decision at first instance, also considering that the notoriety of Rivera (a defence recognized under the already mentioned Article 97 of the Italian Copyright Act) could not be relied upon by RCS when publishing images of him in a private setting.

A final appeal of RCS to the Supreme Court followed, only concerning the lawfulness of the unauthorized publication of photographs of Rivera’s allegedly outside of professional settings in accordance with Article 10 of the Italian Civil Code and 96-97 of the Italian Copyright Act. It is worth recalling that the Italian Supreme Court is not a court on the merits, and is only tasked with evaluating the correct application of the law by lower courts.

The Supreme Court decision

The Supreme Court substantially accepted RCS’s reading of the defence under Article 97 of the Copyright Act, thus disagreeing with the conclusion at both first instance and on appeal in relation to the photographs of Rivera outside of the football pitch / not wearing his football uniform.

The Court offered the following preliminary remarks regarding the photographs at issue:

• First, they are neither offensive nor in any way inappropriate and do not pertain to the intimate and most private life of a person;
• Secondly, they appear to have been taken with Rivera’s permission, since there he looks like he posed for the photographer when they were taken.

The life of a top athlete is not easy ...

Moving on to the substance of the appeal, the Court noted that, under Italian law, the use of one’s own image is unlawful when (a) it takes place without the person’s consent, or (b) outside of any of the public interest-focused circumstances allowed for by law and subjected to a strict interpretation requirement, including but not limited to the person’s notoriety and freedom of expression/information, or (c) is such as to cause prejudice to that person’s honour, reputation or dignity.

With regard to the exercise of freedom of expression/information, the Court recalled that it is necessary to evaluate whether the use of a person’s image is necessary to ensure the completeness and accuracy of the information provided. In any case, any automatism that freedom of expression/information, as also protected under Article 21 of the Italian Constitution, always prevails over the protection of one’s own private life must be rejected.

Furthermore, the Supreme Court noted that the case at issue (i) was completely different from the Audrey Hepburn one discussed on The IPKat here and (ii) did not call for any application of the right to be forgotten.

All the above considered, the Supreme Court reached the following conclusion (the translation from Italian is mine):

The correct application of the defence under Article 97 of the Italian Copyright Act allows the publication of photographic images of a well-known person not only when they are portrayed while performing the specific activities that they are well-known for (e.g., a sports contest for a sportsperson, a musical performance for a singer, a theatrical performance for an actor) […] but also when the photograph at issue portrays such person in the context of accessory and related activities, which fall within the remit of their public image and, thus, within the public interest in their activity.

As such, photographs that portray a well-known footballer about to depart for or upon returning from a sports event, or while showing a trophy that they have won, or while being interviewed by a journalist in connection with their activity, or together with other footballers – especially during a retreat organized by their team or the national team – all fall within [the scope of accessory and related activities].

Those mentioned above are all cases in which the sportsperson, even though they are not wearing their uniform and are not practicing their own sports activity at that very point in time, is portrayed in close connection with the activity that they have become famous for and is thus the subject of interest on the side of the public because of their status as a well-known sportsperson.

The Court noted that, of course, private activities that have no direct or indirect connection to the activity that a person has become well-known for fall outside the scope of application of the defence under Article 97 of the Italian Copyright Act.

Comment

... especially when you are chased by
paparazzis all the time!

As stated, even though the Italian Supreme Court did not refer to the jurisprudence of the ECtHR, its conclusion is in line with the approach developed by the latter in connection with Article 8 / Article 10 ECHR situations.

Indeed, the ECtHR requires consideration of 5+1 key criteria to determine if Article 10 should prevail over Article 8 protection:

• The contribution to a debate of public interest;
• The degree of notoriety of the person affected;
• The subject of the news report;
• The prior conduct of the person concerned;
• The content, form and consequences of the publication; and, where appropriate,
• The circumstances in which the photographs were taken.

The first two criteria have been interpreted substantially in line with the Supreme Court’s approach:

• In relation to the first criterion in particular, the ECtHR has held that the notion of public interest concerns matters affecting the public to such an extent that the public may legitimately take an interest in them. While it has ruled that no such public interest arises when a publication is only aimed at titillating the public, it has also recognized that public interest can inter alia subsist in connection with sporting issues.
• Turning to the second criterion, the ECtHR has held that for well-known persons, the role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitutes an important factor. In this sense, it has famously held that the unauthorized publication of photographs of Princess Caroline of Monaco while engaged in private matters breached her right to private life.

In sum, well-known persons do enjoy an expectation of privacy but such an expectation is to be balanced against the public interest in being informed about them. Against this framework, a well-known person’s public persona (i.e., what the subject of public interest relates to) encompasses activities that concern – directly but also less directly – the professional and/or institutional activity that they have become well-known for.