Image Rights, Data Protection and Consent: a Milan Civil Court Ruling

The Civil Court of Milan recently issued an interesting ruling in a dispute involving personality rights (ruling no. 8423/2015, published on 08 July 2015).

A reporter from a famous RAI comedy TV show, broadcasting live from the streets of Milan, managed to briefly get into a three-wheeler owned by AMSA, the company in charge of the waste collection and street cleaning services in the city, before being asked to get off the vehicle by the driver. The latter was clearly visible in the broadcast aired on RAI.

A few months later, the driver – who in the meantime had also been disciplined by his employee on account of the events just described – sued RAI for the unauthorised use of his likeness, which he claimed infringed his image rights, his dignity and his right to personal data protection.

RAI, as could be expected, defended itself by arguing that the plaintiff had authorised the use of his image.

The judge upheld the defendant’s claims. Noting that the consent required for the use of someone’s likeness, under both the Italian Civil Code and the Copyright Act (Law no. 633 of 1941), does not require any definitive form and can thus be implied, found that, in the case at hand, the plaintiff had in fact given implied consent to the broadcast.

The recording of the piece, in the judge’s view, showed that, on the one hand, the plaintiff was fully aware that his person was being captured along with the scene – the reporter was a famous TV personality, he was talking live to the show host in the studio for the whole duration and the cameras were in sight of the driver – and that, on the other, he had failed to express any sign of dissent. The judge also noted that no harm to the plaintiff’s dignity could be detected in the broadcast that was aired.

The breach of personal data protection rules was ruled out by the judge on the grounds that, under the Italian Data Protection Code, an individual’s likeness, in order to qualify as “personal data”, should be connected by the data controller to some other information that makes the person identifiable, and this had not happened in the case of the RAI broadcast: the plaintiff was not known to the general public and he had not in any way been made identifiable by RAI through any reference to his person.

This part of the ruling, although supported by reference to the Italian Supreme Court case-law, leaves room for debate. It is arguable that the privacy legislation requires that the data subject is made identifiable by the data controller, or by information in the latter’s domain; indeed, several commentators believe that the requirement of the identifiability of the subject is met when any party is able to reconnect the information to a specific individual, by using resources reasonably available to them.

It would have been interesting, had the judge decided to follow the latter interpretation, to observe how he would have solved the apparent conflict between the Civil Code and the Copyright Act on the one hand, and the Italian Data Protection Code on the other, concerning consent. The latter, in fact, specifically requires that consent to the processing of personal data is “express” and documented in writing, leaving no room for implied consent.