Privacy for Sale. Just call it ‘Right to Personal Image’

On 16 June 2009, the Italian Supreme Court made public a ruling recognising the right of the well-known plaintiff Cgt to obtain compensation for damages to his privacy and his right to image caused by the publication of photographs that had portrayed him in August 2009, in an intimate relationship with his partner Ca.El. in the park of (omissis), in the Municipality of (omissis).  The ruling does not say whom Cgt and (although not a party to the proceedings) Ca. El. are because the protagonists of the affair had asked that their respective personal details not be disclosed. However, with patience, the mystery will be revealed at the end of the text, the (understandable) curiosity satisfied and the paradox of privacy revealed by Andrea Monti – Originally published in Italian on Strategikon – an Italian Tech Blog.

Photography, paparazzi and unlawful interference in private life

It is a well-established principle in Italian jurisprudence that freedom of press excuse does not apply in places where a reasonable expectation of not being exposed to the public (the so-called reasonable privacy expectation) exists. The most famous international case acknowledging this principle is that of Princess Caroline of Monaco, who, despite her notoriety, was granted by a German court the right not to live under the lens of a camera constantly.

It is one thing to photograph a (known) person in a public space, but quite another to do so by climbing walls, fences and trees or using drones. In the latter case, the person’s intention not to expose himself to the gaze of others is clear, and the sanction for those who do not respect this intention is equally automatic. It explains why CGT had already been acknowledged in the degrees preceding the Supreme Court judgement to have been a victim of the violation of the law on privacy, i.e. Article 615 bis of the Criminal Code, which expressly punishes unlawful interference in private life also committed through (video)recordings and photographs.

Privacy, machine learning and individual responsibility

In this regard, it is interesting to note that in 2015 the Italian Supreme Court, in its judgment 25363/2015, also analysed

the role of software technologies (photograph retouching applications) used to magnify small images or part of them, to render them suitable for publication and gossip. Using software to extract (or, as in this case, to enhance) information not otherwise easily accessible gives rise to a legitimate privacy claim.

Thus, if it violates privacy to photograph someone who has placed himself in a position making clear that he does not want to be filmed, this also applies to enlargements or enhancements made possible by photo processing software that reveal details not immediately noticeable. This interpretation, incidentally, is particularly relevant because it is well ahead of its time in addressing a problem that may have seemed marginal at the time but is now extremely real.

Until a few years ago, enlarging a portion of a photograph was only possible up to a certain point and, despite the software’s magic, the results in terms of detail could not necessarily be satisfactory (look at the covers of tabloids, which sometimes publish grainy images, made precisely by enlarging small portions of photographs taken from a distance).

Today, however, algorithms based on machine learning (Google has presented one, and Adobe has already incorporated a similar function in its software) improve the resolution of poor quality photos and reconstruct details that would otherwise not be visible with traditional applications. For once, therefore, we are faced with a ruling that anticipates technological evolution rather than undergoing it.

What is on sale, privacy or the right to publicity?

Another interesting aspect of the ruling is the overlap between the right to privacy and the right to personal image. CGT had complained that, although he had never sold photos of his private moments, he might change his mind and monetise even non-public shots in the future. Therefore, the circulation of the paparazzi’s photos would have harmed him not because they violated his privacy but because they deprived him of the possibility of selling an exclusive photoshoot.

This complaint had not been upheld in the previous degrees, but in the third degree, the Cassation Court gave reason to the mysterious CGT. In this case, the court considered that the problem was not so much a question of privacy or (which is a horse of different colour) of personal data, but of the right to personal image.

For a VIP of the entertainment world, monetising one’s image (understood not only as pure exteriority but as lifestyle as a whole) is a source of income. Like any economic good, the scarcer an object is, the more it is worth. So, if CGT’s private photographs are not easy to find, they have a high value.

Although this reasoning is understandable when applied to VIP, it introduces an element of inequality towards the rest of the world that is not famous. In similar cases but relating to ordinary people, the principle of law enunciated by the Supreme Court in favour of CGT would not apply. It would have made more sense to derive the damage from the violation of the right to  privacy so that the decision would be valid for anyone, regardless of their fame.

Who is CGT?

On the sidelines of this story, the Cassation’s ruling exposes a a couple of paradoxes.

The first: this ruling is not yet available on the website of the Court of Cassation because the erasure of parties’ details is still pending, however its text is widely available on the Net. One wonders how such a thing could be possible and, remarkably, from which loophole of the Court  the text could have escaped.

The second: as in the case of the famous Italian singer Antonello Venditti, the court  ordered to keep the parties’ details confidential and therefore not to publish the full name of CGT. However,  the national and local press and even professional and legal websites have not had any qualms about publishing the full name of CGT, who is none other than George Timothy Clooney.

Who else?

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