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In a judgment provoking media controversy, the Supreme Court concluded that, although a user profile photograph in Facebook can be accessed by the public in general, it does not authorize the media to reproduce the photograph without the user’s consent.

The case the court analyzed started with a complaint lodged by the victim who was injured as a result of being shot by her own brother. The newspaper La Opinión de Zamora published an article about the story, providing details about the victim, such as her name and the initials of her surnames, her exact address and details about her mother’s health, as well as publishing a profile photograph from her Facebook page.

It is the photograph that the media has picked up on, and once again the legal challenges posed by social networks are a subject for debate. The defendant (the newspaper) upheld that it had obtained the image from the public profile that is accessible to all internet users, and which was secondary to the news item; therefore, it considered that its use was protected by the right to information.

However, the Supreme Court considers that (i) the photograph was not taken in the context of the facts mentioned in the news item and had been obtained from a social network aimed at communicating with third parties; and (ii) the “consent given to publish an image with a specific purpose (in this case, as a profile photograph in Facebook) does not warrant its publication for a different purpose.”

In its judgment, the court resolves, while acknowledging the difficulty of analyzing the right to information, and image and privacy rights, and contrary to that upheld in the first instance by the Court of First Instance of Bilbao and in the appeal by the Provincial Court of Appeals of Vizcaya, that the data relating to the victim’s personal and family life do not constitute a breach of the claimant’s right to personal and family privacy.

However, the court upholds that publishing the photograph without the holder’s consent, even if the photograph had been obtained from a public profile in a social network, does constitute a breach of the claimant’s image rights.

Authors: Blanca Puig and Jorge Monclús

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