At a time when videos and images are everywhere, we reflect on the so-called “images as accessories”: shots of anonymous individuals that are used to illustrate news articles or to put together documentaries and non-fiction programs. The consent of the person shown is not required to use these images (often taken from archives) when such use is covered by freedom of information.
The right of personal portrayal is a fundamental right that is protected in the Constitution. Generally speaking, a person’s image can only be used with their express, unequivocal consent. However, the law does lay down certain exceptions with a view to achieving a fair balance between the right of personal portrayal and other fundamental rights such as freedom of expression and information. There is no need for consent, for example, when a person is caricatured or when celebrities or people in public office are photographed in public. Neither is consent required when someone’s image is used precisely “as an accessory to provide visual information to illustrate a public event or incident”.
As far as the dictionary definition is concerned, an accessory is something that depends on the main aspect or which is joined to it by accident. When we speak of the use of images as an accessory, we tend to think of broad sweeps of the camera at large concerts or public protests before the lens zooms in on its subject, and where only a few isolated faces can be recognized.
Panning – as it is called in professional jargon – rarely ends in a court claim. There is a degree of social and also case law consensus on the admissibility of marginal appearances in the context of information of general interest (because such news pieces are aimed at encouraging democratic debate or helping to form public opinion), provided that they are harmless to the person concerned and do not affect their privacy. As the Supreme Court has held, the visual likeness must be depicted in a manner that does not make the private individual the center of attention. The type of camera shot, the time the image remains on the screen and its prominence, or how a photo is placed on a newspaper page layout, are criteria that are used to measure whether an image is an accessory.
But industry uses have pushed courts to accept a more subtle and circumstance-dependent approach (which is also more inconsistent), based on whether the image is secondary to the information of general interest. Indeed, the Supreme Court has held that the image was an accessory even when the person in question occupied a prominent position in a photograph illustrating a news article, when the individual involved was the focus of a television broadcast, and even in a case in which the person appeared on the front page of a newspaper (although in the latter two cases the court spoke simultaneously of the legal concept of persons “in public office or in a highly visible profession”). We summarize some of the most relevant cases:
Warring neighbors case(Supreme Court judgment of April 30, 2021)
The Supreme Court held as valid the broadcast on television of images of the chairman of a neighbors’ association standing on the balcony of his home while being heckled during an eviction. The pictures had been taken days before the person in question had been interviewed by the same program regarding squatters, without knowing that the television channel would broadcast the balcony incident alongside the interview.
Although the individual was clearly the focus of the images, the High Court considered that the footage was an accessory: it was related to the information that the channel sought to broadcast and his functions as chairman of the association were of public interest and harmless to his image.
Diario Montañés Case (Supreme Court judgment of March 30, 2017)
Diario Montañés published an article on the Pisa Report called “Students from Cantabría go downhill somewhat” and illustrated it with a close-up of a minor situated between two of her friends. The mother of the minor argued that she had not given her consent to the publication, that they were unaware of why the photograph was being taken and the title under which it would be published, and that the daughter’s image could not be considered an accessory because she was in a prominent position in the photograph, especially because the other students were out of focus.
However, the Supreme Court held that the photograph was an accessory. In its opinion, the image was secondary in relation to the news item and her presence was unnecessary and not particularly related to the purpose of the photograph. The minor’s name did not appear in either in the photo or the article, which did not refer to her or her school. For the court, the picture of several students enriched the contents of the information aimed at raising public opinion on education in Cantabria and held that “it is impossible to censure the image when it is shown neutrally or harmlessly in the newspaper, without infringing the minor’s greater interest”.
Diario 16 case (Constitutional Court judgment of April 16, 2007)
Diario 16 published a front page photograph of a uniformed police officer immobilizing a person on the ground, together under the title “Violent eviction”.
The Constitutional Court based its judgment on the public office exception and held that it had been taken in a public act and place and, less obviously, that the image was an accessory to the news item: “The photograph in question is an accessory with respect to the information published and does not reflect the plaintiff doing anything other than strictly performing her duties. The photograph is unquestionably related to the written information since it illustrates what the article seeks to communicate, namely the resistance of some neighbors to an eviction, despite the existence of a court order, which made it necessary for the police to ask the judicial committee in charge of the eviction for help”. The classification of police officers as public officials also enabled the image of a police inspector to be used, dubbing his voice for satirical purposes (El Informal case).
Francis Bacon case (Supreme Court judgment of July 9, 2020)
El Mundo published a photograph of the British artist Francis Bacon and his partner in Spain to illustrate an article about his sentimental relationship. Although the Supreme Court held there had been an invasion of privacy, it held that their right of personal portrayal had not been breached on the grounds that the image of a person who poses in a photograph with someone famous is necessarily an accessory.
In other cases, however, the courts have held that the image was not an accessory: for example, when the media outlet claimed the persons concerned had purportedly engaged in criminal conduct or conduct that damaged their reputation, especially in the case of minors (Ana Rosa case: illegal nurseries; La opinión de Murcia case: children with disabilities); when the photograph had been obtained from someone’s social media (Hit and run in Xirivella case); and when private scenes are revealed (ABC case: 061) or victims of incidents are shown (La Opinión de Zamora case).
Garrigues Intellectual Property Department