There is no reasonable expectation of privacy at public events; organisers can even acquire the rights to participants’ images and do (almost) whatever they want with them. However, social networks must remove content that violates the law, including photographs covered by copyright. This is demonstrated by another important case in the news recently: Gianni Minisichetti – Meta – Initially published in Italian by LaRepubblica-Italian Tech
Andy Byron and Gianni Minisichetti. Two names unknown to those outside the industry, but which have hit the headlines due to “photographic” incidents involving privacy, image rights and ownership of content generated by third parties.
The first is the CEO of Astronomer, an American software house, and a few days ago he was filmed with a woman other than his wife by a “kiss cam” during a Coldplay concert in Boston, with the image going viral around the world. The second is an internationally renowned Italian photojournalist who recently won a lawsuit against Meta, which was found liable by the court in Turin for failing to delete a copyrighted photo taken by the journalist of Oriana Fallaci.
The two cases, however different, represent two aspects of the same problem, namely the limits on the exploitation of personal images by parties other than the individual portrayed.
The Byron case: there is no privacy in open spaces
In the Byron case — although a “violation of privacy” was (timidly) raised — there is little to complain about. Even in Italy — where the Court of Cassation has repeatedly affirmed the principle of law — there is no reasonable expectation of privacy in public places. This means that photographing or filming someone in open spaces does not constitute the criminal offence of unlawful interference in private life (the only real rule protecting privacy in Italy).
This is even more true if the filming takes place during a public event — a concert, a demonstration or a show — where the purchase of a ticket may even imply the transfer to the organisers of the right to exploit the image of the spectators for financial gain. This is what happened during the Coldplay concert, where the kiss cam was an integral part of the concert, so much so that the singer himself asked for certain scenes to be filmed for projection on the big screens.
Therefore, in such a context, it would not even be (easily) possible to invoke personal data protection to complain about what happened, since the incriminating footage was taken in real time and became “news” because the Coldplay singer drew attention to what was being shown at that moment.
The photographer has total control over the images they take
In such cases, the only limitation is respect for the dignity of the person, so it is not possible to exploit images of people in distress or in embarrassing, humiliating or degrading conditions.
There are exceptions to the exceptions for journalistic or documentary work that fulfils a social function of reporting or informing, but the substance of the facts remains the same: the images belong to those who take them, and those who are photographed have very limited possibilities to oppose their circulation.
This is well known to many celebrities such as Ozzy Osbourne, Miley Cyrus and Ariana Grande, who have faced legal action for using unauthorised photos of themselves taken freely by photographers in various contexts.
The Minisichetti case: platforms are liable if they do not remove content reported as illegal
This brings us to the Minisichetti case: legal action brought against Meta for failing to comply with a request to delete an image of Oriana Fallaci that the journalist had taken in New York in 1972 and which had been “bounced” around many Facebook profiles for some time.
The Turin court, applying a principle established in 2000 by the EU e-commerce directive, ruled that Minisichetti’s reports were sufficiently substantiated to trigger the obligation to remove the content used by users of the social network.
In this regard, one could argue at length whether the obligation imposed by the EU is legitimate—it is not up to private individuals but to judges to decide whether something is illegal or not—and whether, in doing so, the EU has essentially privatised justice, disregarding the protection of citizens’ rights. But what matters in the immediate term is the possibility of obtaining compensation from platforms (social networks, but also newspapers and blogs) and not (only) from those who use other people’s works without permission.
Not all content is protected equally by the law on rights of the authors
The issue is particularly relevant because, according to right of authors’ law, not all content is protected and therefore not all content can automatically be subject to removal and compensation claims.
In general terms, a text, music or image is protected by law provided that it is an expression of human creativity.
In the case of photographs, there is even a difference between “photographic works” and “simple photographs”. The former are those that achieve the status of works of art (in case of doubt, the intervention of a judge is required), while the latter are those that do not “transcend” to the “higher level” and over which the photographer has more limited rights. Finally, the law —whose drafters could not have been aware of Vittorugo Contino’s work on the writings of Ezra Pound— does not provide any protection for photographs of writings, documents and projects.
Protecting content regardless of right of author’s law?
Broadening the scope of the discussion, it must be said that this approach, which dates back conceptually to the 19th century, is clearly unsuitable for protecting the content industry and individual “content creators” because it does not take into account the radical change caused by the spread of content-sharing platforms.
Today, content has value not because it is creative, but because it is saleable or “monetisable”. In other words, to stay with the specific case, it is not important whether the “content” is a “real” photograph or an image generated by AI, nor whether copyright can be invoked, because regardless of how it was created, the only thing that matters is whether it can be exploited to make money. And there is no need for specific legislation, because at least in Italy, even if “content” is not “creative”, it is still protected.
The venerable Article 810 of the Italian Civil Code — dating back to 1942 — establishes that “things that can be the subject of rights are property”. Therefore, it matters little whether an image was created with a burst of photographs (where the photographer has no creative role) or through text-to-image: the result belongs to the person who produced it (who can therefore exploit it), even if copyright does not apply.
Overcoming copyright to protect the individual
Following this line of reasoning, it is clear that if the concern raised by the Byron and Minisichetti cases is about control over personal images in public spaces and the repression of their abuse, it is obvious that neither “privacy” nor copyright can be instruments of protection.
Persisting along this path leads to paradoxical effects, such as advocating, in the name of “privacy”, anti-facial recognition systems, which in Italy could be contrary to the Consolidated Law on Public Security. Or, as in the Danish proposal to recognise “copyright” – i.e. authorship rights – over physical features and voices in order to combat deep fakes, which clearly have nothing “creative” about them.
Certainly, therefore, the right to protection of one’s personal image (also dating back to 1942) is a more effective tool than “privacy” and copyright to protect the way we live when we are in open spaces.
Is it impossible to protect ourselves?
However, moving from the university lecture halls to real life, faced with the huge number of individuals spreading content in even greater quantities, even this weapon proves ineffective when used against the perpetrators of violations. There are too many of them, they are too widespread around the world and they often commit acts that do not reach a level of social alarm that would justify state intervention to protect the community.
So, while it may seem pragmatic to “take it out” on the gatekeepers, the platforms that allow user-generated content to circulate, the price we pay is relieving the state of its duty to deliver justice.
In doing so, we leave the protection of our rights to acceptable user policies or terms and conditions, which, of course, we have all read, understood and accepted before clicking on the “submit” button.
