Does a “Like” amount to consent to the use of the image? The Supreme Court has taken a position on the matter
A woman sues her ex-husband after he posted photos of her on his social network profile without her prior consent.
Involvement of a “Like”
The ex-spouse decided to publish on his Facebook account some photographs in which his ex-wife appeared in moments prior to the marital crisis reflecting family moments.
At the time of publication, there was a ‘like’ and comments from the plaintiff, so that his conduct led his spouse to believe that the plaintiff consented to the publication of her image on the defendant’s social network account.
As can be seen, it is important to take into account the spheres of intimacy between both parties in order to be able to understand how far a ‘like’ can reach, being a determining factor of what can be considered as acts of consent.
Property and consent
The plaintiff considers that there is an interference with the right to one’s own image and the right to personal and family privacy.
The right to one’s own image is a fundamental right of the individual which is contained in Article 18 of the Spanish Constitution, its nature is based on the right of the individual to reproduce his or her own image and to prevent a third party from disclosing, reproducing or publishing it without prior consent.
The right to one’s own image is very personal, which means that it is:
- Inalienable, it cannot be transferred or assigned, what is authorised is the right to exploit the image.
- Unwaivable, any waiver of the right to one’s own image will be considered null and void.
- Imprescriptible, it cannot lose its validity or lapse.
Therefore, anyone who accesses without prior authorisation is carrying out an unlawful interference to which financial penalties and compensation for damages are attached. An illegitimate intrusion can be the use of the voice, image or name for advertising campaigns, capturing images, recording videos and reproducing them on social networks or other digital platforms without express authorisation, publishing recordings of private conversations.
The courts have on numerous occasions reminded us that express consent is required from the owner of the image in order for it to be reproduced, disseminated or published in a digital medium. For example, the fact that the owner of a social network profile decides to upload a photograph of himself, which is accessible to the general public, does not imply authorisation for third parties to reproduce it in the same or any other medium, since there is no consent from the owner of the image. An action of this type cannot be considered as access to data and images on a public profile on a social network.
The position of the Supreme Court
Given the customs and social uses of social networks, an act such as that of the plaintiff consisting of consenting to be photographed by her husband, at that moment, knowing that he is the owner of a Facebook account and ‘liking’ several photos, the Supreme Court considers that it is demonstrative of consent to such an image being both captured and published on the social network.
The Supreme Court dismissed the plaintiff’s appeal on the grounds that the defendant’s perception that he had the consent of his wife at the time was reasonable, as it was a typical customary act in an intimate and familiar environment.
IP/IT lawyer.
