YouTube ads violate Italian former football star’s personality rights, says the Court of Milan (Court of Milan, Enterprise Matters Chamber, Ruling no. 8018/2015)

At the end of a legal battle echoing an earlier lawsuit brought by the same plaintiff, Gianni Rivera, the famous Italian ex-footballer, has been granted damages by a Milan Court for the violation of his personality rights in connection with YouTube adverts.

The dispute arose following the publication on YouTube of “overlay ads” publicising a competition launched by a Telecom company to promote its products. The ads were superimposed on a number of videos of old interviews with Mr Rivera, which had been visible on the platform for several years. Mr Rivera claimed that, in launching this campaign without his authorisation, the company had violated his privacy rights and his copyrights and had unduly exploited his image.

The defendant argued, among other things, that it could not be held liable for any wrongful conduct on the grounds that it had commissioned the campaign to a third company, which, in turn, had purchased YouTube advertising services without actually having any say on the final positioning of the messages, instead merely indicating relevant themes (sports, technology and games).

The Milan Court rejected the claim that the alleged conduct constituted a breach of the plaintiff’s privacy rights or of any copyrights on the interviews in question. Concerning the latter, the Court, having observed that for an interview to qualify as a work of authorship it must possess a minimal degree of creativity, and that, as a rule, the title of author belongs to the interviewer, found that the plaintiff’s answers to the interviewer’s questions were not particularly elaborate nor creatively expressed the personality of the interviewee, hence not meeting the threshold of originality required for copyright protection.

The Court, conversely, upheld Mr Rivera’s infringement of personality rights claim, in application of the principle whereby the association of the image of celebrities to any commercials without their consent is capable of producing an undue economic advantage in favour of the advertiser. In the Court’s view, the superimposition of a promotional message on YouTube videos portraying Mr Rivera created an undue and unambiguous association between the latter’s persona and the campaign’s message, capable of misleading the average viewer into believing that Mr Rivera himself endorsed the advertised products.

The fact that the defendant had not pre-selected the videos on which its ads would appear did not exempt it from liability, the Court stated, on account of the principal’s vicarious liability for tortuous acts caused by its agents, where the principal has control or direction over the latter. The defendant’s direction over its agents was demonstrated in the Court’s view by the out-of-court discontinuation of the wrongful activity following the sending of a cease-and-desist letter by the plaintiff.

In light of its findings, the Court enjoined the defendant from repeating the unlawful conduct, setting a penalty for any transgression, and ordered it to pay damages to the plaintiff. The damages have been assessed by the Court on the basis of the putative daily royalty for the exploitation of the plaintiff’s image, which was derived in turn from an agreement settling a similar dispute produced by the plaintiff’s counsel.