Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
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The Italian Supreme Court recognised the existence of the right to privacy as a self-standing personality right for the first time. After photographs of two prominent individuals in intimate positions were published by a newspaper, one of the individuals claimed that her right to privacy and of image had been violated and sought compensation. The court of first instance ordered that the newspaper pay compensation, but the Court of Appeals held that although her right to image had been infringed, there was no standalone right to privacy and that her decorum, honor, and reputation had not been infringed. The Supreme Court examined Italian law and the Constitution, and held that the domestic legal system did, in fact, guarantee the right to privacy as an autonomous right.
In 1968, volume No. 29 of the Italian newspaper “Gente” published several photographs portraying Miss Soraya Esfandiary – the former Queen of Iran who then lived in Italy – and movie director Franco Indovina in an intimate moment in the Queen’s Italian villa. On July 11, 1968, Esfandiary used Article 700 of the Italian Civil Procedural Code to request the precautionary seizure of the copies of the newspaper and of the photographs’ copies of the photographs. She claimed that her right to privacy and her right of image had been violated and that the newspaper had breached her decorum, honor, and reputation. She then brought an action before the Court of First Instance of Milan for confirmation of the precautionary measure and seeking compensation for the damages suffered as well as the publication of the Court’s ruling in Gente. Gente published another set of photographs in volume No. 35 and Esfandiary brought an identical action reinstating her requests.
The Court of First Instance of Milan ordered the publisher of Gente, Società Rusconi, to compensate Esfandiary.
On appeal, the Court of Appeals of Milan held that her decorum, honor and reputation had not been violated and that her right to privacy was not infringed, denying its existence as a self-standing personality right. The Court of Appeals did hold that her right to image had been breached and that the public right to information must be justified by a collective interest in the famous individual. The Court stated that the public interest cannot be justified by a morbid curiosity for spicy and scandalous events happening behind the closed doors of a home. It upheld the Court of First Instance’s decision on the compensation of damages, but did not order that the newspaper publish the ruling, finding that it would have worsened rather than ameliorated Esfandiary’s situation.
Both Esfandiary and Società Rusconi appealed the Court of Appeals’ decision to the Supreme Court.
The central issue before the Supreme Court was whether the Court of Appeals in Milan had correctly applied the principles related to the rights of image and privacy.
Esfandiary argued that ignoring the existence of an autonomous right to privacy and the lower Court’s finding that her decorum, honor and reputation had not been violated was incorrect.
Società Rusconi argued that the lower Court’s finding that Esfandiary’s right of image had been infringed was incorrect. It submitted that that the publication of photographs of a famous individual may be considered unlawful only when the honor, reputation, and decorum of the individual has been violated. Società Rusconi maintained that no “spicy” or “scandalous” information had been published.
The Court discussed the evolution of the case law to determine whether Esfandiary’s right of image had been infringed. Article 97 of copyright law states: “1) The consent of the person portrayed shall not be required when the reproduction of the image is justified by reputation or public office covered, by the need for justice or the police, by scientific, educational or cultural purposes, or when the reproduction is connected with facts, events, ceremonies of public interest or held in public. 2) The portrait may not, however, be exhibited or put on the market when the exhibition or putting on the market would be detrimental to the honour, reputation or even decorum of the person portrayed.” The old approach in the jurisprudence was that the image of a famous individual could not be lawfully circulated when it was not made clear what activity makes him or her famous and so relevant to the public interest. The Court noted that this approach was no longer applicable as it imposed a requirement (the specification of the activity) which was not covered by Article 97. The Court stated that, to lawfully share certain images, it is sufficient for there to be public interest in those images. The questions to be asked are the nature of this public interest in the images of famous individuals and the circumstances in which those individuals may have a right to invoke the protection of their image.
To investigate the nature of the public interest, the Court noted that Article 97 must be interpreted restrictively in that it contains an exception to the general prohibition to circulate the image of a person without his or her consent. The first limit to the rule of Article 97 paragraph 1 is found in paragraph 2 of the provision, which prohibits the circulation of the image when that would damage the honor, reputation or decorum of the person portrayed. In 1959 (with ruling n. 295), the Supreme Court had stated that only a significant public interest in information (in its different forms) justifies circulating the image. An example which clearly illustrates the lack of public interest is the prohibition to use one’s image for the lucrative and advertising purposes of a business where, even the protection of the right to entrepreneurship, under Article 41 of the Italian Constitution, does not justify the use of the image. If there is not a right to commercial exploitation of the image of others (although famous individuals), there cannot be a right for the press to report, without limits, on every aspect of the lives of persons who have become, sometimes involuntarily, famous, when the exclusive or prominent purpose of such publication is to make a profit. The Court recalled that the public interest requirement is also present in the regulation of the right to inform which must meet three conditions in order to be lawfully exercised: 1) the fact reported shall correspond to the truth; 2) there must be a public interest in the information; and 3) privacy and honor of the person involved must be respected. The more the private sphere of individuals is limited, the more it must be protected from intrusions which lack any social relevance. The Court highlighted that it is clear that the private sphere of notorious individuals is per se particularly limited, and so there must be a truly relevant public interest for the intrusion to be legitimate.
Accordingly, the Court confirmed that the breach of honor, reputation or decorum is not the only limit to the use of the image of notorious individuals and so rejected Società Rusconi’s complaint.
The Court then considered whether an autonomous right to the privacy of one’s personal sphere exists. The Court noted that this is a relevant enquiry because clearly defining the right had become necessary by the development of modern technologies which allow public and private parties to share information on every aspect of one’s life. This “extraordinary evolution” requires discussion of restrictions to its invasiveness and clear definition of individuals’ right to privacy. The Court stressed that this is particularly necessary because the protection of the right to privacy often comes at the cost of other rights, including the right to freedom of expression. The Court noted that in 1963 (ruling n.990) the Supreme Court had rejected the existence of an autonomous right to privacy, and merely stated that it existed a “right erga omnes to the freedom of self-determination in the development of a person’s individuality”. The 1963 decision refers to Article 2 of the Italian Constitution, which states that “The Italian Republic recognizes and guarantees the inviolable rights of the person (…)” and held that it is prohibited to disclose information regarding a person’s private life “unless the person has given his or her consent or unless there is an interest of the general public in being informed”.
In defining the right to privacy, the Court present three common interpretations: 1) The right to privacy is limited to the respect of one’s intimacy within their home – also defined as “the right to be left alone”; 2) The right extends to every aspect of one’s private life, where no intrusion of any kind would ever be allowed under this extensive interpretation; and 3) an “intermediate” approach which sees the right to privacy as extended to one’s intimacy expressed within an “ideal” intimate space, which does not have to physically coincide with their home. The Court held that the first and third conceptions of the right to privacy were deserving of protection, and analysed the legal provisions which provide legal protection of this autonomous right to privacy.
The first conception of the right to privacy (the respect of one’s intimacy within their home) is expressly protected by Article 14 of the Constitution, Article 614 of the Criminal Code, and Law n. 98 of 1974, Article 1 which punishes the unlawful gathering and circulation of images of the private life of a person within their home. The Court stressed that the third conception is also protected by law as both the Civil and Criminal Code offer provisions protecting individuals’ body, name, image (Articles 5 to 10 of the Civil Code), and honor, domicile, and correspondence (Articles 595 paragraph 2, 614, 616 of the Criminal Code). The law also provides instruments to protect people’s right to privacy when interacting with professionals (e.g., banks, companies, public servants). In some circumstances, people’s individual and personal interest in the protection of their private sphere takes precedence over collective and public interests, for example the right to deny personal inspections (Articles 116 and 118 of the Code of Civil Procedure) and the right of family members not to testify with regards to facts which happened within the family (Article 247 of the Code of Criminal Procedure). The Court highlighted that the legislator’s intention to protect the intimacy and privacy of people’s private sphere can also be found in the provisions prohibiting the publication of private correspondence (Article 93 of Law n. 633 of 1941), the provisions requesting domestic employees to maintain the privacy of the family (Article 6 of Law n. 339 of 1958), or the provisions prohibiting corporal inspections of the employee (Law n. 300 of 1970). In addition, not only does the protection of privacy beyond the domestic realm not violate constitutional principles it also finds support within them: human and social dignity, protected by Articles 2 and 3 of the Constitution, requires the existence of an autonomous private sphere; Article 13 establishes the inviolability of personal freedom (Article 13) and of the domicile (Article 14), and the secrecy of personal correspondence (Article 15); and Article 27 provides that everyone is innocent until proven guilty which also implies that a restraint shall be put to the circulation of potentially damaging information regarding the defendant.
The Court emphasized that the right is already expressly recognised by international legal instruments as both the Universal Declaration on Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966 prohibit any arbitrary interference with the individual’s private life. Similarly, Article 8 paragraph 1 of the European Convention on Human Rights of 1950 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Paragraph 2 clarifies that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Article 10 prescribes that freedom of expression can be limited “in the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence”.
Accordingly, the Court accepted that there was an autonomous right to privacy. It characterized the right as consisting of the protection from external interferences of those situations, also manifested outside the domicile, which are strictly private and connected with family life and which do not have any public interest. In order for the protection to be applicable, it is not necessary that the interference be illegitimate and that the honor, reputation and decorum of the person involved be violated, and the right cannot be denied to certain categories of persons solely on account of their notoriety unless there is a real social or public interest in the information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling is of extreme significance by recognizing for the first time that the right to privacy is a self-standing right in the Italian legal system and supported by the Constitution. Subsequent caselaw consistently refers to this judgement when dealing with the right to privacy.
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