Right to own image and its appearance in computer matters. Three cases in Chile

The panorama of fundamental rights in Chile is currently under review due to the ongoing constitutional process. This heralds that not only will there be a reexamination of the constitutional rights currently enshrined, but also the appearance of new rights that the doctrine has been proposing and shaping for some years.

One of these figures is the so-called “right to one's own image”, which, despite not appearing in the main proposals regarding the new Constitution, has a certain presence in the jurisprudence of the Chilean courts.

According to Nogueira, we can define the right to one's own image as "The power that every person possesses to oppose third parties who have not been expressly authorized to capture, reproduce or publish the physical figure of the person portrayed".[1]

It is a new generation right, which little by little has appeared in the jurisprudence of the courts. This is mainly mentioned with respect to cases in which aspects related to computing are involved.

In effect, the technological advantages that these media provide to people have not only served to disseminate aspects of the interested parties, but many times to discredit and affect other people.

We must note, in any case, that its cited formulation closely approximates the characterization of personal data as informative self-determination, in the sense of a power to allow and control the use of data, here expressed in the image of the physical figure of a person.

Next, we will present three rulings on protection resources, where the issue has been addressed and we will see how the application of this right has been resolved. The three rulings have as an indirect protagonist, the use of social networks.

The first relates to an appeal for protection, Case No. 394-2019, dated October 14, filed before the Court of Appeals of Iquique. Faced with the alleged discriminatory treatment by a teacher of a student with a disability, her mother proceeds to make publications against her on her Facebook account, open to the public, including the account of the alleged events and a photograph of the teacher , action commonly known as "funa". This provoked comments on the social network that discredited the teacher, including aggressive expressions.

In the sixth considering paragraph, the Court argues that the mother's actions were contrary to the right to self-image enshrined in Article 19 No. 4 of the Constitution. Rather, the wording seems to refer to honor in an objective sense, that is, image as prestige or fame, instead of the image itself as disclosure of the physical figure of a person.

On the other hand, the seventh recital expressly states:

"SEVENTH: In this sense, it has been upheld by the Supreme Court in Case No. 14.998-2018, since there is an impairment of the right to the appellant's own image, who in the sphere of privacy has the power to control and the power to prevent the disclosure of the features that distinguish them as an individual subject, affecting in the species the right to the appellant's own image, enshrined in number 4 of article 19 of the Political Constitution of the Republic, which is why the appeal will be accepted ”.

Regarding this argument, we can point out that article 19 No. 4 CPR refers to the right to privacy and the judgment speaks of the image itself as a right that would be immersed in the notion of privacy.

Referring to the judgment cited in the aforementioned considering, Case No. 14.998-2018, issued on July 30, it states:

"SEVENTH: That with regard to the constitutional protection of the right to one's own image, which is precisely what the action proposed in the record tends to, it is true that Article 20 of the Fundamental Charter does not specifically list it among the guarantees that can be protected by this precautionary measure, However, both doctrine and jurisprudence coincide in that their protection comes from and is framed in article 19 No. 4 of the Constitution, since it is implicitly included in the attribute of privacy of the person, which this norm is in charge of protecting (CS , Rol 9970-2015) ".

Furthermore, at a time when the right to data protection was not clearly contemplated in the Constitution, the same sentence cited above in the ninth recital reproduces the concepts of personal data (art. 2 letter f) and sensitive personal data (art. 2 letter g), both of the law 19.628, on protection of personal data, highlighting that the photograph would correspond to the mention of the characteristics of said type of data when referring to "Those personal data that refer to the physical or moral characteristics of people ...". Previously, in the eighth recital, he relates privacy with the image itself, the idea that it is a component of the image itself, as Anguita points out when referring to the image itself-private life, who is cited in the ruling.[2]

We can comment that, at present, it would be more difficult to mention the image as part of privacy invoking the law on personal data, since this is considered an autonomous right from the former by the constitutional reform of law No. 21.096, of 16 June 2018.

The second case is another protection ruling, Case No. 279-2020, of June 1, also from the Iquique Court of Appeals, regarding the publication on Facebook of the identity and photos of two people who had not made a contribution. previously agreed monetary policy, configuring the phenomenon called “funa”. This also led to verbal and physical attacks. The appellant alleged, among other affectations:

"It maintains that the conduct described violates the constitutional guarantees of the right to life and physical and mental integrity; respect and protection of private life and honor of the person and his family; and property rights, since the respondent attacked her client with her fists and feet, causing her minor injuries and mental damage, and continues with attacks on her dignity and honor, thus affecting her right to control her own image ".

The appellant asked, among other things, both the respondent and Facebook to remove all content that affected her.

We emphasize that this action refers to several violated rights, not only privacy. However, it is powerfully striking that he makes a reference to property and then expresses the "domain of one's own image", giving it a patrimonial consideration to one's own image.

The Court ruled in favor of the appellant. In the sixth recital, it declares the right to privacy of article 19 No. 4 CPR affected. Later, in the seventh recital, he states:

SEVENTH: Similarly, as soon as a photograph and personal data of the appellant were published, it has been affected the right to its own image in its negative variant - expressed in its right to prevent third parties, without their due authorization, from capturing, reproducing or disseminate that image or personal data, whatever the purpose taken into consideration for it-, and included in the guarantee in analysis because it is part of the privacy attribute of the person whose guardianship said rule is in charge-, in the sense that in The sphere of privacy has the power of control and the power to prevent the disclosure of the features that distinguish them as an individual subject, affecting the indicated right in the species.

As we can see, the recital gathers within the notion of own image the disclosure of a photograph and someone's personal data, which may be related, but not the same. Then incorporate both notions into the "sphere of privacy" in terms of controlling distinctive features.

The third ruling, also of protection, Case No. 1.305-2020, dated September 1, emanated from the Puerto Montt Court of Appeals. It is about the publication on Facebook of texts and photographs against the appellant, charging him with crimes and publishing a photograph of his person. Again we find the phenomenon of the "funa".

The Court ruled in favor of the appellant, stating, among other arguments:

FOURTH: That, from reading the impressions of the publications on the social networks Facebook and Instagram, accompanied by the actor, it is possible to conclude that the acts questioned by the appellant, due to their nature and content, possess sufficient aptitude to violate the right to honor of the appellant, by being generically charged with the execution of legally and socially reproached conduct. Indeed, in the publications accompanied by the actor there is a photograph that would correspond to the appellant, associating him with acts of abuse in the pololeo, highlighting with larger letters than the above a "funa" would correspond.

In this case, despite mentioning the existence of a photograph and personal data, he speaks directly of honor without mentioning the right to one's own image, not even within the notion of personal data.

On the other hand, from the point that we could call "administrative jurisprudence", we find two cases related to video cameras, where we see how the right to one's own image is related to personal data. We will take with reference a Spanish case and another that occurred in Chile.

one).- Procedure No. 402/2020, Spanish Agency for Data Protection: in the case of a person who installed cameras on the outskirts of his house, and that allowed him to capture and record people in the street to the point that facilitated their identification, beyond For the purposes of safeguarding its property, the data authority ordered its redirection to its property, among other measures. The important thing is that in his argument he understands the physical image as part of the concept of personal data, as provided in article 4.1 of the General Data Protection Regulation of the European Union (Fundamentals of Law, II).[3]

one).- Audit of the Council for Transparency (Chile): in 2019 an audit was carried out by said entity to the Municipality of Quintero, in relation to the use of municipal surveillance cameras for public security purposes and that they were managed by a contracted company for these purposes. This diligence was carried out due to the misuse of the images of a person, which was clearly identified, and which were filtered affecting said person. The president of the entity, commenting on the situation, stated: “This is an extraordinarily serious situation. Citizens have the right to the protection of their personal data. The image of a person is a sensitive piece of information, which has a higher level of protection ”.[4]

As we can see in these cases, which are very frequent in Chile, the development of social networks and their misuse, or the use of video cameras (nowadays computer-controlled), will put a strain on the relationship between privacy, honor , personal data (which some jurisprudence still does not recognize as an autonomous right) and the image itself, the latter being a figure not yet understood in the others and which will take time to be clearly delineated.

Surely, the development of information technology and social networks will be a fertile source of new similar cases that will help to outline and establish the right to one's own image, separated from the notion of personal data.

[1] NOGUEIRA, Pablo. “The right to one's own image. Legal nature and its protected aspects ”. Librotecnia, Santiago de Chile. First Edition, 2010. Page 58.

[2] ANGUITA, Pedro. "The Protection of Personal Data and the Right to Private Life". Editorial Jurídica de Chile. 2007. Pages 156 and 157.

[3] Website Spanish Agency for Data Protection, specifically https://www.aepd.es/es/documento/ps-00402-2020.pdf (consulted 13.8.2021).

[4] Council for Transparency Website, specifically https://www.consejotransparencia.cl/cplt-fiscaliza-a-municipio-de-quintero-tras-filtracion-de-datos-personales-grabados-con-camaras-municipales/

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Manuel Vergara Rojas
Lawyer. Degree in Legal Sciences from the University of Valparaíso, Chile (State). He currently works as a Professor in the Law Degree, Viña del Mar Headquarters of the University of Las Americas and assistant in the Law Degree at Andrés Bello University, Viña del Mar Headquarters, in the area of ​​Public Law and Law History. He has published three books and scientific articles on public, computer law and history of law education.

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