Abstract

The right to one's own image is a relatively young right that, in Spain, has its roots in the dignity of the person and it was first recognized in the 1978 Constitution. It is a right that arises from the self-determination of the human being and that is related with other rights such as the right to honor, privacy, protection of personal data, even with older ones such as the right to the inviolability of the home and the right to secrecy of communications. This characteristic makes it different from a purely commercial right, although it can't be denied that, possibly, this is the constitutional right with the greatest economic content.

In Spanish legislation, there is no definition of the right to one's own image. It is through jurisprudence and doctrine that we can determine its concept and its character as an autonomous right aside from the right to honor and the right to privacy.

Our goal is to define the material and immaterial content of the right to one's own image and in which assumptions there is a proper image and those there is not. We will present a selection of interesting cases about the right to one's own image from which we can conclude that Spanish judges and courts have not yet said the last word about this right.

The methodology employed will be eminently descriptive based on the documentary resources coming from the judgments of the courts1 and the information from the media. A critical judgment will be made based on the results.

In any case, the objective is to determine what is considered the right to one's own image in Spain as the first part of a study of greater depth that determines the limits between this right and other rights, in particular the freedom of speech.

From the Photograph that Steals the Soul, to the Hand that Asks Money to Be Photographed

Is it a baseless belief, a superstition or a ruse to pretend to earn money with the image of oneself? Surely you have heard or read about it,2 that story about the natives who refused to be photographed because they believed that by capturing their image their souls would be stolen.3 The truth is that in ancient times, it was believed that it was the mirrors that stole the soul; breaking one of them was a cause of bad luck, because the souls lodged inside would be fragmented. Today, even in Western civilization there are people who do not like to be photographed. Something magical seems to subsist when even photographers talk about capturing the essence of a moment and, in this way, maintain the images of a culture in time.4

When it comes to photographing in Africa a Maasai warrior, he leaves his can of soda and extends his hand for the tourist to pay him. He has already learned the commercial value of their image and he is immersed in the consumer society. A society in which the image not only serves to recognize people and is the wrapping of a spirit, but has an economic value.

These two dimensions represent a spiritual and a purely economic aspect of the image of a person. They are not the only ones. We could refer to the right to change our physiognomy, to look for a more musical name … in short to transform our relationship with the world that surrounds us from our physical image. Our aim is to show how the Law in Spain considers this right to one's own image.

From Legislative Lack of Precision to the Jurisprudential and Doctrinal Concepts

In Spain,5 there is no definition of the right to one's image in the law. In the Spanish Constitution, the first paragraph of Article 18 only states that it “… guarantees the right to honor, personal and family privacy and your own image.”6 Similarly, we cannot find a definition in the main body of law that protects the right to one's own image: Organic Law 1/1982, of May 5, civil protection of the right to honor, personal and family privacy, and one's own image; neither in the Organic Law 1/1996, of January 15, on the Legal Protection of Minors; or in the Organic Law 4/1997, of August 4, which regulates the use of video cameras by the Security Forces in public places; not even in the Organic Law 10/1995, of November 23, of the Criminal Code. All these laws refer to the right to one's own image, without its concept being explicit. Ángela Moreno refers to the fact that, in the case of privacy, it “remains an indeterminate legal concept, a situation that produces in certain cases, a great legal uncertainty.”7

The singular wording of the word “right” in both Article 18 of the Constitution and in the aforementioned Organic Law 1/1982 seem to point to the fact that it is a single fundamental right that encompasses honor, privacy, and self-image.8 Jurisprudence and doctrine have clarified this question by saying that we speak about three different rights, although there is a close relationship between them. The fact that paragraph 4 of the aforementioned article 18 establishes the limitation of information technology to guarantee personal honor and privacy and it “forgets” to mention one's own image seems to point to three different fundamental rights.9 The “forgetting” of the right to one's own image also occurs in Article 12 of the Universal Declaration of Human Rights, in Article 17 of the International Covenant on Civil and Political Rights, and in Article 8 of the [European] Convention for the Protection of Rights of Man and Fundamental Freedoms where the right to honor and the right to privacy are cited, but nothing is said of the right to one's own image.

Neither does it help to establish a legal concept of right to one's own image when the Spanish laws describe the behaviors that undermine the right to honor, privacy, and one's own image without any order, as a totum revolutum, where illegitimate intrusions or crimes against the right to honor, intimacy, or self-image are mixed. This is the case in Article 7 of Organic Law 1/1982 or in Article 197 of the Penal Code, where behaviors that may be constitutive of attacks against honor, intimacy, or self-image are described without a clear difference or a proper organization of the text. For all this, it is necessary to search into the courts' judgment (jurisprudence) and to the experts' opinions (the doctrine).

It is true that on many occasions the right to self-image concurs with the right to privacy (e.g., a photograph taken above the wall of a house), the right to honor (an image in an inappropriate attitude), or with the right to the protection of personal data, while the image of a person is considered a personal data (images of clients that are stored in a computer) and, this concurrency makes conceptualization more difficult.

It is also common practice for Spanish attorneys to argue jointly and inaccurately the violation of the right to honor, personal and family privacy, and their own image without there being a precision on which of the rights has been violated. This also contributes to hinder the search for a clear concept. The imprecision itself is used as an advantage by attorneys to defend their causes. In some cases, it is clearly seen that this is a matter related to the right to own image and, at the end, the court appreciates an interference in the right to privacy, which can be positive to defend the interests of a client. But that confusion in origin can also be negative when the court distinguishes between both rights: “[Cassation appeal] mixes honor, intimacy and image, it is not clear what right [the appeal] accepted and then revoked and what is indisputable is that there are three distinct rights and not a single trifurcated right.”10

As José Luis Amérigo Sánchez states, it could have two negative consequences: “First, if the compensation for damages has been requested for both concepts [honor and own image], the judgment, by exclusively recognizing the violation of the right to honor, will grant that compensation in a partial manner since the right to one's own image has not been violated; and, secondly, the partial estimate of the demand, in principle, will entail that costs are not imposed on the defendant.”11

The Constitutional Court has resolved the vagueness of the laws on the right to own image by saying that “it is an autonomous constitutional right that has a specific scope of protection against reproductions of the image that, affecting the personal sphere of its owner, do not harm his good name or make known his intimate life, trying to safeguard his own reserved space, although not intimate, against the action and knowledge of others. For this reason, it gives its owner the faculty to avoid the unconditioned diffusion of its physical aspect, since it constitutes the first configurative element of the personal sphere of every individual, as a basic instrument of identification and external projection and an essential factor for its own recognition as an individual.”12

From the previous sentence, it is clear the autonomy of the right to one's own image, a right that is linked to the physical being of the human being, as the first projection of a person toward his external world. The doctrine defines the right to own image “… as a right of personality close to the right to honor and private life … it is the right of the person to decide about the communication of his physical image and to avoid that it is reproduced, disseminated or commercially exploited without his or her consent.”13

Already in the mid-twentieth century, Manuel Gitrama defines the right to the image as “an innate right of the person, a right that is concreted in the reproduction or representation of the figure of the person, in a visible and recognizable manner. It is a personal right but endowed with a potentially patrimonial content in that through its exercise economically valuable assets can be obtained, and also regarding the possible pecuniary compensation in case of violation. It is an inalienable right; as such irrevocable, and in general, not subject to expropriation. It is a non-transferable right mortis causa, its post-mortem guardianship corresponds fundamentally to the closest relatives of the deceased. It is, in short, an imprescriptible right.”14

The referential image of what is seen constitutes the nucleus of the right to one's own image, although it extends to the voice and the name, insofar as they make a person recognizable, a matter that we will discuss later. The image itself is communication. In short, the image is a sign.

A person's face is the most easily recognizable sign, but it is not the only one by which a person can be recognized. The key lies in the recognizability of the image captured or disseminated. Recognizing a person as such seems to be the essence of the right to one's own image, this is the basis of the Emilio Aragón v. Probotín case, which will be explained later.

From Recognizable to Not Recognizable: The Recognoscibilidad

The right to one's image requires recognoscibilidad. That is, when a person is recognized, which raises at least two problems. In the first place, who must recognize the person and, second, if recognition by an exact image is essential or recognition by a significant characteristic or representation would be enough.

We can ask ourselves if a person is recognizable when the person recognizes by himself or, if it is necessary that the recognition be produced by someone from his inner circle, by people who know him or by a third party. For Fernando Igartua, it is not admissible that “the interpretation held by a German court that it is enough the mere identification of the affected person,”15 to present a demand “should be understood as sufficient the existence of the possibility that third parties can proceed with this identification”16 and, will be the identification of “a third party, whose testimony will be, moreover, more conclusive as more neutral it is (which can be the judge by himself) and that can make the identification by comparing it with other images of the person.”17 In relation to the number of people who can identify the person, it is a circumstance that will have relevance not in terms of identification, but in the determination of compensation and, in some cases, if there are few people who can identify the person.

We can ask ourselves if identification is possible, not by the image of the person itself, but by another means or circumstance, such as a habitual brand in his clothing, a differential tattoo, his association with a very specific vehicle such as a sports car, a boat, or even a racing horse. In these cases, the advertising marks and the numeral of the car, the morphology of the horse, or the color and characteristics of the boat would come to identify the person although his personal image is so small that it is impossible to appreciate his physiognomy. It is a controversial issue, with disparate results in Europe. For example, in Germany “it is understood that a rider can be identified, and his image violated, by a photo in which his horse is clearly recognized, if it's very popular in equestrian circles, despite the fact that no traces are discernible from the rider.”18 It could be argued that the concurrence of the image of the object (or animal) with the image of the person is what produces the identification, just as when a caption is given to a person who is not recognizable in the photograph. Personally, I think that the image of the object should be perfectly “joined” or “stitched” with the image of the person in order to consider that the first is an extension of the personal image of an individual. This implies a reiteration in time, a projection of the person toward others, something similar to what happens with the name or the pseudonym.

From What it Is Not, to What the Right to One's Own Image Is

The Social Image

Sometimes in front of an offensive manifestation made by a third party, the offended person says that his image is being damaged, with reference to the social image, to the reference that society has of him or her. In this sense, Miguel Ángel Alegre Martínez understands that “the concept of social image is not protected in our Organization through the recognition of the right to one's own image, but rather this is a matter in the field of honor.”19 It is a damage that has to do with the right to honor, to prestige, not to the right to one's own image. This is what theSupreme Court says in Judgment 1029/1992, of November 17:

… about the extension of the concept of the right to one's own image, not only to the ‘figure, representation, resemblance or appearance of a person and equivalent to the graphic representation of his figure by means of a mechanical or technical reproduction procedure’ …, but also to the features or patterns of behaviour transmitted by a person, in the social order, so that the distortion by means of words of that social ‘portrait’ goes against it, although it does not pose problems, in general terms, from a technical point of view, it must be rejected because the ‘social image’ of a person is equivalent to his reputation, that is, to the conceptualization of his qualities and status; in short, to its fame that is protected by the right to honor.

The Literary Description

The literary description or literary portrait would not be included within the scope of the right to one's own image itself. In the opinion of Azurmendi, “the marked intellectual aspect of the process required to communicate an image through language qualitatively distinguishes it from the human image as sensitive representation.”20 The truth is that a literary description of someone produces a process of decoding the information that previously passes through the subjective filter of the writer, who reencodes it in a literary way, incorporating a certain subjective component in the description, however, objective it may be, and finally the reader must carry out an intellectual activity that brings him closer to the description. Therefore, it is not possible to claim a violation of the right to one's own image when a literary book describes a real person.

The Image of Companies

The Spanish Constitutional Court has recognized the possibility that companies are holders of the fundamental right to honor; among others, in Judgment 139/1995, of September 26: “Consequently, given the constitutional system itself, the meaning of the right to honor cannot and should not exclude legal persons from its scope of protection. It is true that this fundamental right is in close original connection with the dignity of the person proclaimed in Art. 10.1 CE. But this does not prevent that normatively it be placed in the context of Art. 18 CE (…) Insofar as this is so, the legal entity can also see its right to honor violated through the disclosure of facts concerning its entity, when it defames it or makes it demerit in the consideration of others (Article 7.7 of LO 1/1982),” and 183/1995, of December 11: “that legal persons can be holders of the right to honor does not suppose, as the appellants claim, the establishment of an illegitimate limit to the right of information, but, on the contrary, a constitutionally adequate interpretation of the subjective scope of the right to honor recognized in Art. 18.1 of the Constitution.”

Personally, I consider it an excessive extension of the right to honor, especially in cases where there is no direct involvement of natural persons in the legal entity. Yes, that would occur when the owners of a club are known in the town, so it would be understood that an attack on the club would affect the honor of the owners.21 In any case, defending the prestige of a commercial firm by means of a fundamental right to honor seems excessive when there are legal mechanisms in Spain to defend that prestige of a company. Fundamentally through Article 1902 of the Civil Code. This route of protection requires proof of moral damage—which is presumed in the case of a breach, provided for in Organic Law 1/1982, and does not apply to a preferential and abbreviated procedure and, finally, there is no appeal for protection before the Constitutional Court. As for the affirmation that legal persons like companies are not holders of the right to the image has been pronounced by the Supreme Court in Sentences 470/2011 of June 15, and 369/2009 of May 21, which, identically, says: “The TC considers that its content protects the interest of the owner of the right to the image to avoid that its physical features are not captured or disseminated without his consent (STC 72/2007, of April 16, FJ 5). From this it follows that, by its very nature, the right to one's own image only makes sense in relation to the physical person.” In short, as Gema Rosado Iglesias says: “Regarding the right to self-image, the Constitutional Court has consistently declared its purely individual nature as a right of personal self-determination.”22

The Brand

The closest to the image of a commercial company is its trademark that is legally protected by the ordinary courts by means of Trademark Law23 and it even has criminal protection in Article 274 of the Spanish Criminal Code. Teodoro González Ballesteros defines it as “the sign or means for the individualization of products and services in the market.”24 In any case, it is not about the right to one's own image, insofar as it is not related to the dignity of a human person. In the matter of the Clot Collection, the Gala-Salvador Dalí Foundation raised a complex demand for unfair conduct and, for the infringement of trademark rights, intellectual property rights, and illegitimate interference by using the name and image of Salvador Dalí for advertising and commercial purposes. The first ruling of the judge of the 1st Instance of Barcelona (Court of Original Jurisdiction) recognized the infringement of trademark rights, intellectual property rights, unfair conduct, but not the use of Dalí's name and image for commercial purposes. The ruling of the Provincial Court of Barcelona (Appellate Court) no. 318/2013 on July 24, which resolves the second instance partially modifies the judge's initial ruling, without acknowledging the violation of the name and image of Salvador Dalí and condemns “to cease the use of the domain name www.dalibarcelona.com and, particularly, to eliminate the Dalí reference from the web address itself, as well as from the inside of the page, in the terms that have been most widely collected in the body of this resolution. And we also condemn you to stop using the following metatags on your website: “Dalí,” “Salvador Dalí,” “Daum Dalí,” and “Dalí theater museum.” The ruling of the Supreme Court on this matter will be discussed below, in relation to the image of a deceased person.

The Image of a Dead Man

It may be incongruous that the rights derived from the dignity of the person, this is, the power that a person has to decide for himself, survive after the person dies. Carlos Granados Pérez, magistrate of the Supreme Court refers to the honor of the deceased with a few words that we could apply to the deceased's own image: “… every human being, in addition to temporal and ephemeral earthly life, and the supernatural, lasting, eternal and until infinite one, according to the believers, enjoys a third life, more or less prolonged and lasting, that finishes with the course of time, and, that is, of course ‘post mortem’, that stays between its mourners and parents who are especially obliged to respect and make others respect the heir as a continuator of the deceased's personality, and which consists in the trace that his step left in the sensitive world and in the memory, reputation or good reputation that remained of him.”25

This could be predicated on photographs, portraits, videos, voice recordings, or even the name of the deceased who survives associated with a person who has already disappeared.

Article 4 of Organic Law 1/1982, of May 5, on Civil Protection of the Right to Honor, Personal and Family Intimacy and [One's] Own Image will refer to the civil protection of rights named in the title of the Law, when the owner has died. Article 4 says: (1) The exercise of civil protection actions of the honor, privacy, or image of a deceased person corresponds to whoever has designated for that purpose in his testament. The designation may fall to a legal person. (2) If there is no designation or the designated person has died, the spouse, descendants, ascendants, and siblings of the affected person who lived at the time of death will be entitled to seek protection. This article seems to point out that these rights extend beyond the death of a person.

According to Caballero, the previous precept “does not protect as much the rights of Article 18.1 of the Constitution, extinguished at the death of the person, as the memory of the deceased (as stated in the statement of reasons of the law) in the aspects related to these rights. But the exercise of actions … presupposes that the defendant's conduct has supposed not only an unauthorized exploitation of the image or the name of the deceased, but also a detriment, an injury to his memory, in a broad sense, because the use of the image has been made in an objectively denigrating way, or because it was done in a way that does not agree with the behavior that the deceased observed in life.”26

This is the line of reasoning that leads the Supreme Court, in Sentence 219/2014, of May 8, to deny legitimacy to the transferee of the rights of image of a well-known artist, “being the commercial exploitation of the artist's image something foreign to the content of the fundamental right enshrined in Article 18.1 of the Spanish Constitution, ‘recalling that’ the right to the image must be distinguished, as a right of the personality, moral sphere, related to human dignity and as a patrimonial right, protected by Law but alien to the constitutional aspect as a fundamental right.”

The Supreme Court, in Judgment 414/2016 of June 20, employs a double argument on the matter of the Clot Collection, where it decided not to recognize the right to one's own image of the deceased Salvador Dalí. In the first place, I interpret, in my opinion, and in an excessively strict manner, Article 4.1 of the Organic Law 1/1982 cited above, that the “Gala-Salvador Dalí Foundation” had not been directly designated in the will to protect the image of the deceased artist. The other argument affects the difference between the moral aspect of the right to one's own image, characteristic of the right of personality, with the patrimonial facet of the right to one's own image, which will be discussed later. This patrimonial aspect of the right to one's own image is denied the category of fundamental right, at least in relation to the deceased. This is the jurisprudence that one can also find in Sentence 231/1988 of the Constitutional Court, in the case Pantoja v. Prographic. When referring to the right to one's own image, it says that this right “cannot be subject to protection through amparo27 [the protection of fundamental rights before the Constitutional Court], since, once the owner of that property of the personality has died, there is no longer a vital area to protect as a true object of the fundamental right even if their patrimonial effects could survive.” Despite this statement, the court brings the matter to an illegitimate interference in the right to family privacy to which it does endow the rank of fundamental right.

Regarding the Name and the Voice of a Person

The name and voice can serve to identify a person. Even when it's an artistic name, “the name identifies each person within their social context and identifies her as a specific subject of rights and duties, and of positive or negative actions in the social context in which he or she operates.”28 “The voice is another element closely related to a person's image. Such is its proximity to this, that some authors have come to consider the existence of a sound image, with the same nature and identical characteristics as the human visual image.”29

The Constitutional Court in Judgment 117/1994 of April 25, includes both the physical image and the name or voice within the right to one's own image: “The right to one's own image, recognized by Article 18.1 of the Spanish Constitution, is at the same time a right of honor and of personal privacy, it is part of the rights of the personality and as such guarantees the scope of freedom of a person in respect to their most characteristic attributes, own and immediate, such as physical image, voice or name, defining qualities of their own being and attributed as an inherent and irreducible possession of every person.” In the Spanish legislation, Paragraph 6 of Article 7 of the Organic Law 1/1982 considers as illegitimate interference: “the use of the name, voice or image of a person for advertising, commercial or similar purposes.” This paragraph introduces the voice and the name within the protection of the right to one's own image although for many authors “honor, privacy, name and voice are realities close to the image, but they do not identify with it, nor can they be included in the concept of human image,”30 although for Spanish jurisprudence it is possible to include them in the right to one's own image.

Cartoons

The exclusion of the literary description of the right to one's own image poses problems in the case of the caricatures that according to Article 8.2 of Organic Law 1/1982 constitute an exception to the right to one's own image when “occupying a position in public office or having a profession of notoriety or public projection.” This legal reference includes the caricature within the image itself and the exception when it comes to public persons. The caricature as a satirical drawing in which the features and appearance of someone is deformed also requires an entire intellectual process on the part of the author and the recipient of the caricature. There is therefore a process of intellectual mediation, but in the case of the caricature, it is not the words that bring the image closer to the recipient, but a drawing. An image deformed in order to make people laugh.

From a Fundamental Right to a Commercial Right

In Spain, the Constitutional Court ruled in the case Emilio Aragón v. Proborín in Sentence 81/2001, of March 26.31 Emilio Aragón is a famous person due to his television appearances where he combined formal attire with white sports boots while singing and playing the song, “Your Feet Smell Bad.” A series of expressions and graphic representations were used in an advertisement for footwear templates by the company Proborín, consisting of a drawing of crossed legs, with black pants and white sports boots, together with a legend that said: “The most popular person in Spain has stopped saying: your feet smell.” The ads that appeared in various media and avoided reproducing the name and image of Emilio Aragón.

In the resolution of this case, the Spanish Constitutional Court, in the first Legal recital states that “in the notice in question, the figure of the appellant is clearly identified without the need to reproduce his face or use his name and, since it is the commercial use of the image, the object of protection is not the image in its strict sense, but the personal identity, since in cases of famous people it is not necessary to use their identifying physical features so that that person can be recognized.” In the ruling, it was not recognized that the fundamental right to one's image was involved, since it was not the person of Emilio Aragón himself, but a fictional character created by him. “The Constitutional Court understood that it was simply a matter of commercial exploitation of a character, and that, as such, it was a question that had to be resolved by the ordinary civil jurisdiction,”32 which is surprising and tremendously convoluted,33 but opens a very interesting interpretation that comes to differentiate between the right to one's own image as a fundamental right and the right to commercial use of the image34 as a right that has only ordinary protection. Perhaps the most worrisome aspect of all of this is that it is difficult to conceptualize a right to one's own image as a fundamental right devoid of its economic or commercial part.

Conclusion

The degradation of the category of the right to one's own image when dealing with persons that are already dead (cases Clot and Pantoja v. Prographic Collection) or when it's a simple question of commercial exploitation of a character (case Emilio Aragón v. Proborín) is worrisome. Fernando Herrero Tejedor made it clear when he said that “it comes to a situation that causes a certain perplexity: Organic Law 1/1982 was born to develop Article 18.1 of the Constitution, but part of its regulation is alien, not to say contrary, to said precept.

There is a civil claim based on the Organic Law, but the corresponding action cannot give rise to an appeal to Constitutional Court.”35 In some way, the right to one's own image seems to lose status as a fundamental right and only recovers its splendor when it concurs with other fundamental rights, in particular honor or intimacy. It can be observed in Spanish jurisprudence, that in some situations the intrusions of the right to one's own image lead to an intrusion in the right to privacy. It is true that the Spanish Constitutional Court should not decide on cases in which compensation is discussed, since it is a matter for ordinary courts, but the Constitutional Court must determine whether there is a violation of a fundamental right and it cannot forego its duty just because of the fact that it is mainly a commercial matter. Jurisprudence and doctrine need to do a better job in defining the difference and the effects between both facets of the right to one's own image: commercial and spiritual. It would be very negative that the right of publicity prevents the recognition of a fundamental right to one's own image that embraces both the patrimonial and the spiritual aspects. In other words, to limit the constitutional right to one's own image to a mere spiritual faculty, a negative character of exclusion, a right that only allows for controlling one's image, is to impoverish its very concept.

Footnotes

1.

In Spain, there is a Supreme Court that is the top of the judiciary. Outside the judiciary and with the ability to review the decisions of judges and courts when fundamental rights are violated is the Constitutional Court, which in some cases recognizes the violation of the right to self-image by modifying Supreme Court rulings, for example, in the topless images on beaches. In other cases, such as the use of hidden cameras, it confirms the Supreme Court's judgments. This supposes a certain tension between both courts, with the clear prevalence of the Constitutional Court. Among other sentences on the right to own image: STC 18/2015, of February 16; STC 19/2014, of February 10, STC 208/2013, of December 16; STC 176/2013, of October 21; 12/2012, of January 30

2.

Mundo Esotérico y Paranormal (MEP).

3.

Guido Boggian is pointed out as the photographer who paid with his life for this belief. See Zorita, Fotos que roban el alma.

4.

Nelson, Before they pass away. You can see an interesting collection.

5.

On international protection of fundamental rights linked to the dignity of the person, see Cordero Álvarez, “La protección del derecho al honor, a la intimidad y a la propia imagen.”

6.

In the Spanish Constitution of 1978, appear for the first time in the history of Spanish constitutionalism, both the right to honor, as the right to privacy, and the right to own image. Other rights, such as the right to the inviolability of the home or the right to secrecy of communications, have been recognized in previous constitutions. See Sempere Rodríguez, “Artículo 18: Derecho al honor, a la intimidad y a la propia.”

7.

Moreno Bobadilla, 203,

8.

Article 132 of the Criminal Code also includes the word right in the singular, to refer to “… privacy, the right to one's own image and the inviolability of one's domicile …”. Clearly, it is a drafting error, since the right to one's image has little to do with the right to the inviolability of one's home.

9.

Although in the protection of personal data the image of people is included. In this sense, Instruction 1/2006, of November 8, of the Spanish Agency for Data Protection, on the processing of personal data for surveillance purposes through camera systems or video cameras that in its Article 1 says “The present instruction is applied to the processing of personal data of images of identified or identifiable individuals, for surveillance purposes through camera systems and video cameras.”

10.

Supreme Court, Judgment 770/2008, of July 26. Aranzadi RJ 2008\551. FJ 2º.

11.

Amérigo Sánchez.

12.

Constitutional Court Judgment 83/2002.FJ 4. Also Constitutional Court Sentences 231/1988 (FJ 3º), 99/1994 (FJ 5º) y 81/2001 (FJ 2º)

13.

Azurmendi Adarraga, 147.

14.

Gitrama, 326.

15.

Igartua Arregui, 28.

16.

Ibid. 29.

17.

Ibid. 30.

18.

Ibid. 25.

19.

Alegre Martínez, 45.

20.

Azurmendi Adarraga, 25.

21.

Constitutional Court Judgment no. 183/1995 of December 11 confirming the recognition of the right to honor of the Luxury disco and its owners by the judgment of 5 April 1994 of the First Chamber of the Supreme Court.

22.

Rosado Iglesias, 189.

23.

Ley 17/2001, December 7, de Marcas.

24.

González Ballesteros, 1133.

25.

Granados Pérez, 139.

26.

Caballero Gea.

27.

The appeal for “amparo” before the Constitutional Court is an extraordinary demand before a court that does not belong to the judicial power. It is provided for in Article 161.1.b of the Spanish Constitution.

28.

Azurmendi Adarraga, 39–40.

29.

Ibid., 41.

30.

Ibíd., 44.

32.

Suárez Espino.

33.

The confusion between the right to one's image and the right to privacy can be found in some Spanish newspapers. For example ABC: “The TC says that an imaginary character is alien to intimacy”06/04/2001. http://www.abc.es/hemeroteca/historico-06-04-2001/abc/Comunicacion/el-tc-dice-que-un-personaje-imaginario-es-ajeno-a-la-intimidad_22611.html

34.

This term is also known in Spanish as the “commercial appropriation of the image” or “patrimonial right of the image” (Igartua Arregui).

35.

Herrero Tejedor, 289.

Bibliography

Alegre Martínez, Miguel Ángel. El derecho a la propia imagen. Madrid: Tecnos, 1997.
Aillapán Quinteros, Jorge Eduardo. “El derecho a la propia imagen: ¿Derecho personalísimo? ¿Derecho fundamental? Precisiones terminológicas para el ordenamiento jurídico chileno.” Revista Chilena de Derecho 43, no. 2 (2016): 435–62.
Amérigo Sánchez, José Luis. “La relevancia de la autonomía entre los derechos al honor y a la imagen, en especial, respecto de la persona jurídica.” Diario La Ley, no. 8455, Sección Tribuna,
January
9
, 2015, Año XXXVI, Editorial LA LEY.
Azurmendi Adarraga, Ana. El derecho a la propia imagen: Su identidad y aproximación al Derecho a la Información. Madrid: Civitas, 1997.
Caballero Gea, José-Alfredo. Derecho al Honor, a la intimidad personal y familiar y a la propia imagen. Doctrina de los tribunales. Madrid: Dykinson, 2017. Edición electrónica. UCM.
Callejo, Soraya. “Los desnudos, el Tribunal Supremo y el derecho a la propia imagen.” Diario La Ley, no. 7172, Sección Tribuna,
May
12
, 2009, Año XXX, Ref. D-171.
Carrillo, Marc. “Libertad de expresión, personas jurídicas y derecho al honor en ‘Derecho Privado y Constitución’”. Número 10 (1996).
Cordero Álvarez, Clara Isabel. “La protección del derecho al honor, a la intimidad y a la propia imagen en el tráfico privado internacional.” PhD thesis, Universidad Complutense de Madrid.
April
2012. Accessed February 2, 2018. http://eprints.ucm.es/16299/1/T33950.pdf.
De Verda y Beamonte, José Ramón. “Las intromisiones legítimas en los derechos a la propia imagen y a la propia voz. (Un estudio del art. 8.2. de la ley orgánica 1/1982, de 5 de mayo, a la luz de la reciente jurisprudencia)” Diario La Ley, no. 6754,
July
11
, 2007.
Díaz Díaz, Efren. “Acciones de defensa legal.” Diario La Ley, no. 8781,
June
13
, 2016.
Doval Pais, Antonio y Anarte Borrallo, Enrique “Efectos de la reforma de 2015 en los delitos contra la intimidad.” Diario La Ley, no. 8744,
April
19
, 2016.
Gitrama, Manuel. Imagen, derecho de la. In SEIX EDITORES: “Nueva Enciclopedia Jurídica Seix”. Tomo XI, Página 326. Barcelona, 1962.
González Ballesteros, Teodoro. Diccionario Jurídico. Madrid: Dykinson, 2011.
Granados Pérez, Carlos: “Jurisprudencia del Tribunal Supremo sobre el derecho al honor, a la intimidad y a la propia imagen.” Cuadernos de Derecho Judicial, no. 1 (1998): 131–64.
Herrero Tejedor, Fernando. Honor, intimidad y propia imagen. Madrid: Colex, 1994.
Igartua Arregui, Fernando. La apropiación comercial de la imagen y del nombre ajenos. Madrid: Tecnos, 1991.
Mundo Esotérico y Paranormal (MEP)
. “¿Almas robadas a través de fotografías?” Accessed January 26, 2018. http://www.mundoesotericoparanormal.com/almas-robadas-a-traves-de-fotografias/.
Moreno Bobadilla, Ángela. Intimidad y menores. Madrid: Centro de Estudios Políticos y Constitucionales, 2017.
Sentencia Tribunal Constitucional (TC) 83/2002. fundamento 4º
. Además de las sentencias del Tribunal Constitucional 231/1988 (fundamento 3º), 99/1994 (fundamento 5º) y 81/2001 (fundamento 2º).
Nelson, Jimmy. Before they pass away. “You can see an interesting collection of photographs of the cultures in.” Accessed January 26, 2018. http://jimmynelsonfoundation.com/cultures/.
Rosado Iglesias, Gema. La titularidad de derechos fundamentales por la persona jurídica. Valencia: Tirant lo Blanch, 2004.
Sempere Rodríguez, César. “Artículo 18: Derecho al honor, a la intimidad y a la propia imagen.” In Comentarios a la Constitución Española de 1978, edited by Oscar Alzaga Villamil, 383–465. Madrid: Editorial Edersa, 1984.
Suárez Espino, María Lidia. “¿Qué protege el derecho fundamental a la propia imagen?” Diario La Ley, no. 7791, Sección Doctrina,
February
6
, 2012, Año XXXIII, Ref. D-52, Editorial LA LEY.
Velasco Núñez, Eloy. “Derecho a la imagen: tratamiento procesal penal.” Diario La Ley, no. 8595, Sección Doctrina,
September
1
, 2015, Ref. D-311.
Villanueva, Ernesto. Diccionario de Derecho de la Información. México: Cámara de Diputados, LX Legislatura: Miguel Ángel Porrúa, 2006. Página 147.
Zorita, Miguel. Fotos que roban el alma. Accessed January 30, 2018. https://www.albedomedia.com/cultura/historiografia/fotos-que-roban-el-alma/.
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