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The Supreme Court, in its recent judgment of July 20 (no. 2748/2018), sentenced a hierarchical superior to compensate an employee €6,000 for breaching his right to privacy by sharing images on Twitter in which the employee appeared in public acts of political parties and social events, and adding comments referring to the fact that the employee was on sick leave and questioning his unjustified absenteeism.

In the Tweets subject to litigation, the defendant shared images of other Twitter users in which the employee appeared attending fashion events, public acts of a political party and social events with friends. Although the court of first instance and the Provincial Court of Appeal of Madrid rejected the claimant’s complaint, the Supreme Court admitted the appeal, analyzing the alleged breach of the right to honor and those of personal privacy and self-image, protected under Spanish Act 1/1982.

Regarding the possible breach of the right to honor, the Supreme Court rejected any interference as the sarcastic comments made about the images were made in relation to truthful facts, were protected under freedom of expression given that the unjustified absenteeism was of general interest, and degrading and insulting expressions were not used.

Similarly, in relation to the possible breach of the right to self-image, the Supreme Court also rejected such interference reiterating constitutional case law. In this case, as the images were taken and shared by the defendant’s acquaintances in public places and acts with his consent, the court considered that this entails the implicit consent for the dissemination of these images, provided it is a natural consequence of the accessibility of the photographs in the context of the legitimate uses of social media. Given that the Twitter profiles were public and the purpose of the network is social interaction, there was no such breach, as the claimant consented to the initial publication and, implicitly, agreed to the consequences of using the social network.

This conclusion differs—as the Supreme Court itself indicates—from the circumstances of its ruling in a judgment of 2017, which we also analyze in this blog post, where a newspaper was sentenced for including a personal image obtained from Facebook in a news story; in the latter case, this was not a legitimate use derived from the natural consequence of sharing public content on social media, but instead, a breach of the right to self-image for not obtaining the express consent established in these cases by the law.

Finally, the Supreme Court did consider that the employee’s right to privacy had been breached, because information regarding personal health is included in the intimate scope of privacy protected by that right. That fact that conjectures were made on a publicly accessible platform on the employee’s state of health and sick leave implied an excess that breached Spanish Act 1/1982, as these comments were not necessary for reporting the hypothetically unjustified nature of the sick leave to the competent authorities or the employer.

Pedro Santos e Silva and Jorge Monclús


This post is also available in: Español



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Jorge Monclús