Implicit Consent to Image Publication: Analysis of Judgment No. 18276 of 2024

The recent order No. 18276 of July 3, 2024, issued by the Court of Cassation, addresses an increasingly relevant theme in the Italian legal landscape: implicit consent to the exposure of one's image. In an era where the dissemination of photographic content is commonplace, it is essential to understand the legal implications related to privacy and personal image.

The Case: Bertolani vs. Pennesi

The controversy at hand involves B. (Bertolani Massimo) against K. (Pennesi Andrea) and concerns the publication of a photographic portrait. The Court of Appeal of Bologna, in its judgment of April 14, 2022, had already rejected B.'s request for privacy protection, asserting that consent to the exposure of one’s image can also be implicit. This principle was confirmed by the Cassation, which explored the requirements that characterize such consent.

Implicit Consent: What Does It Mean?

According to the ruling, implicit consent to the exposure or dissemination of an image does not necessarily have to be expressed in writing but can arise from a sufficiently conclusive manifestation of will. This aspect is crucial, as Article 96 of Law No. 633 of 1941, which governs copyright, does not impose formal constraints for consent to the use of the image. Conversely, Article 110 of the same law requires written form only for the transfer of exploitation rights, without delving into the merits of consent to exposure.

Publication of photographic portrait - Implicit consent - Admissibility - Basis. Consent to the exposure or dissemination of one’s image can also be implicit, provided it results from a sufficiently conclusive manifestation of will, since Article 96 of Law No. 633 of 1941 does not foresee any formal constraint, while Article 110 of the aforementioned law - which requires written form for the proof of contracts concerning the transfer of image exploitation rights - is solely aimed at regulating conflicts between alleged holders of the same exploitation right.

Practical Implications of the Ruling

The implications of this ruling are manifold and deserve attention. In particular, it is important to consider the following aspects:

  • The necessity to demonstrate the willingness to consent to publication through concrete behaviors.
  • The risk of legal conflicts in the absence of a clear manifestation of consent.
  • The importance of accurate information regarding image rights, especially in areas like social media.

In this context, it is essential that individuals are aware of their rights and the ways in which they can manifest consent to the publication of their image.

Conclusions

In conclusion, judgment No. 18276 of 2024 represents an important step in defining implicit consent to image exposure. It clarifies that consent does not necessarily have to be expressed in writing but can arise from behaviors that demonstrate a clear and unequivocal will. This principle offers greater flexibility in managing image rights but also requires heightened attention from individuals regarding their privacy and the use of their image.

Bianucci Law Firm