Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Mixed Outcome
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The Spanish Constitutional Court confirmed the Supreme Court’s award of damages to a man whose social media photographs had been published by a Spanish newspaper. The man had sued the newspaper after a report on his brother’s suicide had included photographs from the man’s private Facebook account. The Constitutional Court recognized that there is a balance to be found between a newspaper’s right to freedom of expression and an individual’s right to privacy, and held that the publication of private photographs which were not directly related to a matter of public interest was an infringement of the right to privacy. The Court stated that the mere sharing of images on social media by an individual does not authorize the use of those images by third parties without the individual’s consent.
On July 13, 2013, the Spanish newspaper La Opinión de Zamora published a report about the suicide of the brother of an individual named only as Dario. Dario’s brother had shot and injured Dario and then shot and killed himself. The article included photographs of Dario and his brother which had been obtained from their profiles on Facebook without prior consent.
Dario sued the newspaper on the grounds that the publication constituted an illegitimate interference of his right to image and privacy. He argued that the photographs’ publication was irrelevant for the purposes of keeping readers informed about the event and were a disproportionate infringement of his rights. Dario also asked for the amount of €30,000 for damages to his mental suffering and requested the newspaper remove the photographs and his personal data.
Article 18.1 of the Spanish Constitution guarantees the “right to honor, to personal and family privacy and to one’s own image”. Article 20 protects the “right to freely express and spread thoughts, ideas and opinions through words, in writing or by any other means of reproduction”.
The first instance judge ordered the newspaper to pay €30,000 as compensation for the violation of Dario’s right to privacy and personal image. The newspaper then appealed the judgment.
The Supreme Court of Spain heard the case and held that the right to information exercised by the press should prevail over Dario’s right to image and privacy as the interference against the right to privacy was not severe. However, the Supreme Court stressed that uploading photographs on social media did not authorize their wider publication or reproduction on a media outlet without the consent of the owner. Consequently, because Dario had not given consent to the photographs’ publication the Supreme Court held that he should be awarded damages. However, it reduced by half the compensation established by the first instance judge.
The newspaper filled an “action of amparo” (an action brought in respect of constitutional rights) against the Supreme Court’s ruling.
Judge Juan Antonio Xiol Ríos delivered the judgment of the Constitutional Court of Spain. The Court was required to determine whether the publication of a photograph by a newspaper without the owner’s consent was protected under the right to freedom of information.
The newspaper argued that the dissemination of Dario’s photograph was justified despite the lack of his consent.
Dario contended that the publication of the images did not contribute to a debate of general interest, but merely satisfied human curiosity.
The Office of the Attorney General of Spain added that the photographs were not newsworthy because Dario did not hold a public office or enjoy public protction, nor were the images captured during a public act or in a place open to the public.
The Court discussed the right to personal image and noted that it is not an absolute and unconditional guarantee. According to the Court, in any democratic society the right to image has to yield when the publication of the image contributes to fostering the public debate. The Court held that the right to image must be sacrificed in those cases where, even without the owner’s consent, a graphic document displays an event that involves a person holding a public office or enjoying public notoriety. However, when the publication lacks public relevance the right to image continues to enjoy the greater protection provided under the Spanish Constitution and the Court stressed that the image of an unknown individual cannot be used without his or her express consent, even if it is captured in a public place.
In discussing the impact that the use of information and communications technologies have had on human rights, the Court held that “the increase in popularity of social networks has caused users to go from a stage in which they were considered mere consumers of content created by third parties, to another – the current one – in which the content is produced by themselves” [p. 19].The Court highlighted that the use of these technologies posed a greater risk against individual’s rights because of the speed and scope with which the image could be disseminated. However, it noted that fundamental rights do not disappear even if they are exercised within the digital realm. Therefore, although citizens voluntarily share personal data online, they are still entitled to privacy and the mere publication of a photograph on social media does not authorize its reproduction by third parties.
The Court recognized that users are often unaware of social networking privacy policies as average users do not have legal and technological knowledge, which makes it difficult to determine whether their consent is information-based or reliable.
The Court reiterated that criminal incidents are newsworthy events, irrespective of the private nature of the person affected by the news. However, the Court held that Dario’s photographs were not related to Dario’s brother’s criminal conduct which was the subject of the article. Thus, the publication of the images was unnecessary since it did not contribute to the formation of a free public opinion. Consequently, the Court held that media outlets cannot publish information obtained from social networks to illustrate information if they do not have the express consent of the profile owner. The Could held that Dario’s right to image should prevail over the newspaper’s right to information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By limiting the use of private photographs without the individual’s consent to situations only when the individual is a public figure and the matter is of public relevance, the Constitutional Court restricts the media’s right to freedom of expression. The Court’s ruling contradicts its previous decisions that have embraced the least restrictive means test when freedom of expression collides with other human rights. However, the Court did balance the newspaper’s right to freedom of expression and access to information against an individual’s right to privacy, and in light of the facts of the present case, it weighed in favor of privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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