The plaintiff, of Spanish nationality and domiciled in Spain, was married to the defendant, of French nationality and domiciled in France. Claimant and defendant were married and, without there being any evidence of a marital crisis, the defendant published on his Facebook wall several photographs showing the image of the claimant, who expressed her satisfaction (they were photographs relating to pleasant or playful moments in the family’s daily life), without it having been proved that they were accessible to the general public, beyond the persons expressly authorised by the defendant. At the time the complaint was filed, the couple was in divorce proceedings, the plaintiff alleging that the publication of the photographs on her then-husband’s Facebook wall was made without her consent, without consent to the taking of the photographs in which her image appeared implying consent to their publication.
The lower court dismissed the claim, concluding that, given the circumstances of the case, the defendant could reasonably understand that he had his wife’s consent to publish the photographs. The Supreme Court considered that the plaintiff’s conduct, by consenting to the capture of her image and reacting positively to her husband’s previous posts on social media, demonstrated her consent to the publication of those images.
It was emphasised that, in the context of a marriage and the social uses of social networks, it was reasonable for the husband to believe that he had the applicant’s consent to publish the photographs.
The Supreme Court dismissed the appeal, concluding that there was no unlawful interference with the applicant’s rights to privacy and self-image, and ordered the appellant to pay the costs of the appeal.
Four issues were raised: international jurisdiction, applicable law, delimitation of the protection of the right to one’s own image, and consent as a circumstance excluding unlawful interference.
A) International jurisdiction.
Whoever intends to bring an action for the protection of his personality rights in respect of an unlawful interference caused by content published online on an Internet site (such as the wall of a Facebook account), when there is a foreign element, has a double elective jurisdiction, the general jurisdiction of the defendant’s domicile and the special jurisdiction of the place where the harmful event has occurred or may occur, which refers both to the place of the causal event and to the place where the damage has materialised. Articles 4.1, 5.1 in conjunction with 7.2 of Regulation (EU) No 1215/2012 of 12 December 2012 are relevant.
B) Applicable law.
The applicable law is Spanish law, since the action has been brought in the place of domicile and centre of interests of the offended person, where the greatest damage would have been caused by the dissemination of the offensive content on the Internet.
The Court’s reasoning is based on the fact that Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) excluded from its scope of application obligations arising from the infringement of personality rights (Article 1(2)). In the absence of any other instrument of European Union law or of international law in general regulating this question, in order to determine the applicable law in these cases one must resort to the rule contained in Article 10.9 of the Civil Code, according to which non-contractual obligations are governed by the law of the place where the event from which they derive occurred. However, the application of this rule to cases of infringement of personality rights due to online content on a website must be combined with the criteria for determining the jurisdiction of Regulation (EU) 1215/2012 and, specifically, with the criterion of the law of the place of the damage, lex loci damni, understood as the place where the offensive content is disseminated.
C) Delimitation of the right to one’s own image.
In accordance with the provisions of art. 2 (One) of Organic Law 1/1982, the civil protection of honour, privacy and one’s own image is delimited not only by the law but also ‘by social customs, taking into account the sphere which, by his own acts, each person keeps reserved for himself or his family’. It is therefore relevant to analyse to what extent social networks have created certain ‘social uses’ in the interaction of internet users on these networks. The Court considers that the circumstances in which the action in respect of which the infringement of fundamental rights is alleged to have occurred are of particular relevance. In the case under appeal, the Court highlights the fact that, at the time the events occurred, the plaintiff and the defendant were spouses, without, as has been established in the lower court, there being a crisis in the marriage at that time, which did exist when the lawsuit was filed a few months later, as the parties were currently going through divorce proceedings.
D) Consent excludes the existence of unlawful interference.
The Judgment analyses the transcendence of the conduct of the person affected by the publication of his image on social networks, both to determine whether there has been ‘express consent’ which, according to art. 2 (Two) of the aforementioned Organic Law 1/1982, excludes the existence of unlawful interference with the rights of the personality, and to assess the scope that the person affected has reserved for himself or his family by the publication of his image on a third party’s social network.
The right to one’s own image, in its negative or excluding facet, grants the right to prevent the obtaining, reproduction or publication of one’s own image by a third party without the express consent of the owner, whatever the purpose pursued by the person who captures it. However, the requirement of express consent does not mean that consent must be formally expressed, but that it must be unequivocal, and can be considered as such when it is derived from conclusive acts that express this will (Constitutional Court ruling 196/2004, 15 November).
Spanish Supreme Court Decision of 24 June 2024.
Consent excludes unlawful intrusion. Publication of pictures.
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