Spanish Supreme Court in its decision number 426/2018, of July 20th, reminds us that the right to one’s own image is not absolute but limited by the social context in which it is used.
The claimant, who had been on sick leave since October 2014, alleged violation of his right to honour, his right to privacy and his right to his own image, as a result of the publication by the defendant of several tweets in April 2015 in which she sarcastically accused him of attending public events while on his sick leave. The tweets not only disclosed the claimant’s medical situation, but also included several pictures in which he was perfectly recognizable.
In this sense, the Court considers that the inclusion of an image in a tweet is equivalent to the inclusion in the tweet itself to the link on the web in which such image is found, which can be considered as a “natural consequence” of the consented publication of the image in a certain general access website. Thus, since the pictures were allowed to be taken and published on the internet by the claimant, as proven in the course of the proceedings, and not originally published by the defendant, the Supreme Court decided that there was no illegitimate violation of the claimant’s right to his own image.
The Supreme Court also ruled that given the public interest of the content of the tweets (the claimant appears with well-known politicians), the absence of insults or degrading expressions and the veracity of the facts underlined in the tweets, there was no illegitimate violation of the claimant’s right to honour.
However, after being dismissed in first and second instance, the Supreme Court has found the defendant guilty of violating the claimant’s privacy due to the following reasons: i) the fact that the claimant was on a sick leave is sensitive information that may not be publicly disclosed without consent under the Spanish Law and Constitution; ii) the defendant had access to the sensitive information due to her professional position and; iii) even though the disclosure of such information was permitted to those directly affected by it – in this case, the claimant’s employer – the means used were inappropriate, since the tweets were visible for a wider group of people – at the minimum, every one of the defendant’s twitter followers.
The decision is relevant for the Spanish practice, in particular as to the extension and limits of the Constitutional Rights to honour, privacy, and one’s own image on social media.
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