Dissemination of the photo of the detainee published on the social network: Illegitimate interference with the right to self image

The TS confirms that there is illegitimate interference with the right to self-image through the publication of the photograph of a detained person and in pretrial detention, obtained from a social network without his consent.

A digital newspaper published a report on the detention and imprisonment of a person accused of having sexual relations with minors, illustrated with a photograph of him obtained from the social network Facebook, in which he had an account that was free access – being a public profile.

The one investigated for this serious crime filed a lawsuit against the editorial journalist and the editor of the newspaper, which was estimated, declaring that there was illegitimate interference with the fundamental right to the image itself due to the public dissemination of that photo without his consent, establishing compensation in their favor, and ordering the withdrawal of the photo and publication of the operative part of the sentence with the same relevance and visibility.

The appeal of the co-defendants before the PA was dismissed, which stressed that the investigated plaintiff was not a public figure, and the exception of art 8.2 a) LO 1/1982 was not consequently, and that the image discussed was originally captured in an area private. Co-defendants appealed to the TS.

Once the conflict between two fundamental rights is framed (the right to self-image, as opposed to freedom of information), the TS recalls that the requirement to protect the right to information cannot mean that the fundamental rights are left empty of content – specifically those recognized in art. 18.1 Constitution, of those who are affected by the exercise of that. And these rights must only be sacrificed to the extent necessary to ensure free information in a democratic society.

Although a person detained under the accusation of a crime as serious as that of sexual abuse of minors acquires a relevant public relevance – as the co-defendants alleged in their appeal to the TS -, at least momentary, such circumstance does not justify any diffusion of their public image. And since the indicated relevance has occurred in relation to these facts, the role that freedom of information plays in a democratic society justifies that:

• Be informed about such fact (the detention and imprisonment of the person accused of committing such acts),
• that this information includes graphic information related to such facts, such as: images of the defendant’s detention, his entry into court, or his entry into prison.

But it does not justify that any image of the affected party can be used, and specifically, images of the accused that lack any connection with the newsworthy facts and whose dissemination has not expressly consented. And the fact that the profile picture of said account can be freely accessed does not constitute the “express consent” required by LO 1/1982.

Nor does the exception provided in art. 8.2 c) LO 1/1982 for graphic information on events when the image of a particular person appears as merely accessory (as could be considered, for example, the reproduction of the image of the accused of committing a crime in the act of trial, entering the court building, in the course of the judicial reconstruction of the facts, etc.), accommodated to the canons of the chronicle of events and, therefore, according to social uses, the same does not occur with the image obtained from a account of a social network and disseminated without consent, without relation to the facts whose public relevance justifies the issuance of the information.