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• W2901003485 abstract "From the perspective of countries that follow the civil law system, there is no equivalent right to the right to one's own image in common law jurisdictions. Understood as a fundamental right, as stemming from human dignity and part of personality rights, meant to ensure the full and free development of a person in his or her own terms, the only line of comparison involves what are known as publicity rights, developed in America, although these two do not share the same characteristics. Thus, the right to one's own image, as it is understood in Ibero-America—Latin American countries and Spain—may exhibit certain connections that do make it directly comparable to publicity rights.There is a considerable debate as to whether the right to one's own image is a fully autonomous right or a part of the right to privacy. The right to privacy has somewhat different foundations in civil law and common law systems, but in both of them seems to have clear connections to the right to one's own image. The American understanding of what privacy is, as defined by Brandeis and Warren in “The Right to Privacy” as the right to be let alone, has been tied to that full and free development of personality alluded to before in Europe as well.In all works in this special issue of the Journal of Information Policy, the connection between both understandings of privacy and in turn, the connection between the right to privacy and the right to one's own image is drawn, as is the connection of both rights to human dignity which is what, in Ibero-American law terms, motivates the protection of all human and fundamental rights. The connection is easily drawn because, while there is some controversy, as said, in some Ibero-American constitutions, and in the courts of most of these countries, the right of one's own image is protected as part of the right to privacy.But the protection of the right to one's own image in Ibero-America differs in three important ways with how the American legal system recognizes and protects this right. First, the scope of application of the right in terms of who and what is being protected is more comprehensive when compared to US law. Put differently, the protection of a person's own image is not limited to economic aspects as it is in the American right to publicity, in general more aimed at letting a person control if and how his or her image is exploited commercially and publicly. Although the right to one's own image can include economic aspects, its main focus of protection is preventing the unauthorized use of a person's image, likeness, and even voice in ways that may be understood as affecting said person's dignity, the primary principle behind the protection and that is not present in the American conception of publicity rights.A second difference we can find between both rights is that the right of publicity offers certain legal protections that do not have a direct match in the right to one's own image. This feature lies in the additional protection that is made by the common law torts protecting privacy, particularly with the tort of public disclosure of private facts and the appropriation tort. In a similar way, the right to one's own image does not identify itself with the protection of children's privacy quite in the same way the right to publicity does and it certainly, the former does not have the connections with intellectual property protection that the latter does. While, of course, such circumstances may occur in civil law jurisdictions, and for example, the publication of a person's likeness may be deemed highly offensive or derogatory, justification for the protection of one's own image in these cases exhibit their own characteristics which is what leads some other scholars in Ibero-American countries to deem this right as an autonomous right.Thus, we could say that the right does have clear connections to privacy in some cases, bringing it closer to publicity rights, but in others, it is protected as a fully fledged autonomous right. These situations seem to coexist in the legal reality of the right to one's own image, and it stimulates the debate seen in national court cases and constitutions in Latin America and Spain which tend to consider the right as linked to privacy and a certain sector of academia that intends to define it as a standalone right, protecting the values of, but ultimately different from, the right to privacy.A similar discussion is currently happening in European Union law, which recognizes, separately, a fundamental right to privacy and a fundamental right to the protection of personal data in Articles 7 and 8, respectively, of the Charter of Fundamental Rights of the European Union. While the right to the protection of personal data is clearly established as an autonomous right in the Charter, it cannot be conceived without its underlying intention to protect values closely related to privacy, and thus, makes the separation of both rights difficult, especially as seen in European case law, with the right to the protection of personal data lacking any legal definition and understanding that can separate it clearly from the right of privacy. They seem inseparable, and so far, courts have struggled to define them as autonomous from one another and in academic circles the debate is ongoing.Even with the entering into force of the European Union's General Data Protection Regulation (GDPR), which strengthens the personal data protection and its justifications, according to the Article 8 of the Charter of Fundamental Rights of the European Union, the reality is that often times the distinction between privacy and the right to personal data protection seems to exist only nominally for the courts. However, the recently implemented GDPR has not received an adequate interpretation by the courts, and perhaps in time, both rights will be clearly defined as autonomous from each other. Indeed, most Ibero-American courts have rooted both privacy and personal data rights under the same value of human dignity. As said, the debate on the autonomous nature of the right to one's own image is similar, although not the same, in Ibero-American countries and such debate is evident in the works that are published as part of this special issue, with authors identifying the right to one's own image with privacy to various degrees and on occasion, claiming it should exist as an autonomous right. Again, this is evidence of the ongoing debate.A third and important difference is that in the United States the right of publicity is mostly protected at the state level; while in Ibero-American jurisdictions, as said before, it is part of their national constitutions or federal statutes, which means that courts focus their decisions at a national level, in a more uniform manner.This is not the case in US law, where state-level protection results in a varying degree of protection. While some state laws may establish torts defined in their legislation, in others, the right of publicity is only protected through common law legal precedent and through the definition and interpretation of the right done by local courts over time.Finally, another distinctive characteristic that is given a measure of attention in the works presented in this special issue is the few exceptions that exist to the right to one's own image. These exceptions include the publication of images of public officials and public figures as long as those images are taken in public; or images that belong to facts that are deemed as a matter of public concern. With the right to one's own image are ties to human dignity, when understood as a fully autonomous right, or at the very least, with its direct connections to privacy. And in those cases in which the right is not linked to an expressly recognized constitutional right—in the case of so-called implicit rights—they are still protected as manifestations of human dignity, which means that in very few occasions the right to one's own image will be trumped by another right. Such cases, as we can see in the two examples given above, are tied to the public's right to know; or in Ibero-American legal terms, to the people's right to seek, receive and impart information, which form part of our conception of freedom of expression and of the press.In the case of Ibero-American law, since fundamental rights are analyzed shoulder-to-shoulder in order to determine which one has precedence—that is, which deserves higher protection acting as a limit on the other—it is generally accepted that communication rights and informing the public of relevant, noticeable facts takes precedence over the protection of a person's own image when such a person is a public figure and images of such person are taken in public, those images being clearly part of the news or when in fact, images of any person, not necessarily a public figure, must be included in order to inform the public of any facts. As seeking, receiving, and imparting information are rights of a higher category, the protection of a person's own image in these cases cannot be an obstacle to the public's right to know.Going into the specifics of this special issue, to the casual reader the right to one's image (or its American cousin, publicity rights) may seem like a rather niche topic for a special issue of a journal and even more so if we take into account that this particular special issue focuses specifically on the laws regulating this right in Ibero-America and does not focus on other civil law countries, which includes most of continental Europe and that has both legislation and court decisions that have been important in defining and developing this right, with their influence felt in Ibero-American countries. Such influence is evident, though, as more than one of the articles draws from sources that come from other continental law countries and of course, from the Acquis Communautaire, that is European Union law that rules over Spain, one of the countries that are best represented in this special issue.We believe that studying this particular right deserves a closer look and it is particularly relevant in our mediated lives in which social media platforms, search engines, and in general, digital information and communications, all play a prominent role. Issues like data protection, privacy, online harassment, and, in general, how private online platforms have become spaces in which we exercise our fundamental rights are topics that are among the interests of many communication and legal scholars today.It is in that context that we believe that the Ibero-American perspective is particularly relevant as the legal and policy approaches to the right to one's own image are grounded in the conception that this is a fundamental right and not merely a set of economic rights which is what publicity rights are generally considered in US law. We think that this is especially important in current times where the world is having a public debate on surveillance, including face recognition and other technologies and platforms, such as social media, that are incredibly relevant to the right to the protection of one's own image.When personal data is seen as a fundamental right and not as a transactional one, compensating for the exploitation of images depicting individuals demands governmental surveillance to be more transparent, accountable and bound by the rule of law. Furthermore, when we need to demand stronger regulation for the activities of private entities instead of relying on self-regulation and ethical guidelines, then it becomes interesting to explore the Ibero-American approach. Monetary compensation is not necessarily a solution, nor can it solve all grievances or issues. The Ibero-American perspectives can help guide the policy debate in much the same way we look at broader European policy-making to inform American debates.By surveying the court decisions, legal thinking and doctrine of Latin American countries in particular, we intend to introduce the reader to ways of approaching the matter that are perhaps lesser-known but just as interesting. Putting Ibero-American perspectives on the law in these matters is essential as many of the big American companies that can infringe upon or at the very least, have influence on how we exercise our rights, including the right to the protection of our own image online. In current times when US-based companies have incredible influence over the daily lives of citizens of Ibero-American countries, the Latin-American legal scholarship seems even more relevant.All of the above can also be said of the right to be forgotten, imported from EU countries, most notably from Spain, into the Latin American courts and legal provisions. The very contentious right to delete information online, which to many US readers represents an intolerable obstacle to free speech, is well described in the works by Martínez and Mecinas, commenting on the right mostly from the perspective of Mexico and the United States. Moreover, Moreno and Gutiérrez present a more optimistic view of the right to be forgotten under the Chilean law, recognizing an evolution in the way their citizens understand the right to privacy.In the call for papers for this special issue, we asked prospective participants to analyze issues such as the implicit or explicit recognition of the right to the protection of one's own image in their jurisdictions and indeed in their national constitutions, when appropriate. We also encouraged them to shed some light on the current debate about the consideration of this right as a standalone one, in the hopes that this in turn would motivate authors to look deeper into the characteristics that make the right to one's own image a fundamental right in their respective legal systems which also would lead authors to explore the distinctions to be made in regards to the protection of an individual when such person is part of a specially protected group such as minors, the elderly and the disabled and if the right should be understood differently in these circumstances.In Manuel Sánchez de Diego's paper, the origins of the right are examined and traced to its 1978 Constitution, which makes this a relatively young right that, as exposed by the author, is rooted in the self-determination of the person, highlighting as well that this right has characteristics that set it apart from a purely commercial right, such as the right to publicity, but nonetheless, with characteristics that make it “the constitutional right with the greatest economic content” as he says in his concluding remarks.This ties to another question, explored in Moreno and Gutiérrez's work, regarding the ethical dimension of the right to one's own image for journalism, although the focus could easily have been put on advertising and audiovisual production. This paper also reviews jurisprudence related to the right to be forgotten and the right to one's own image from the European Union as well as Russia, Japan, Mexico, and Argentina.As mentioned before, Martínez and Mecinas also make a complete analysis of the relationship between the right to be forgotten and the right to the protection of one's image, which compares and overviews the relationship with the right of publicity. In doing so, they identify a common ground between the different legal systems, and then describe how in the interaction with the right to be forgotten it is crucial to understand that, in the online world, the likeness and/or name of a person is also personal data that defines “the information that our and future generations can find,” and its connections to the rights to seek, receive, and impart information.We of course asked authors to consider the ways in which the right to the protection of one's own image differs from the right to publicity, a distinction that the works of Corredoira, as well as that of Martínez and Mecinas, spend some time considering.Corredoira also explores the links between the right to one's own image with fundamental rights to dignity, physical integrity, reputation, personal and family privacy, and honor (also explored by Sánchez de Diego), while also taking a novel approach by applying the theory of concentric circles to the protection of a person's image and likeness, as proposed by Ignacio Bel and José María Desantes in Spain, which, when developed further, will surely prove to be an important contribution to the study of this right. The goal Corredoira has in mind when analyzing all of these rights is to highlight the multiple dimensions attributed to the right to one's own image in the Spanish legal system and by linking it to the theory of concentric circles, more traditionally associated with the right to privacy, Corredoira explores the balance that must be found between the right to one's own image and the right to communicate (communication rights) so that the public's rights to seek, impart and receive information can be adequately guaranteed when they run into this right.Further questions considered include whether the law distinguishes between the reproduction of a person's likeness, such as their voice, from the reproduction of intimate parts, the relationship of the right with advertising law and intellectual property rights, how and if consent can be withdrawn once it has been given for the reproduction of a person's likeness, including when such reproduction is done through cartoons, and, tied to it, if the right extends to diseased persons, which is something Sánchez de Diego also explores in his contribution along with considering its relations to honor, privacy, and the protection of personal data.In conclusion, this special issue attempts to provide a different perspective on privacy rights and specifically on the right to the protection of one's own image. Latin American jurisdictions have been deeply influenced by the European approach towards privacy and their connections to the Spanish approach are quite clear. As opposed to the US legal system, lacking the great protection of the First Amendment, the Ibero-American community represents an example of a more balanced protection of information rights (i.e., free speech vs. privacy). Courts in this region apply the proportionality test—with exactly the same formula used in Europe—and not the strict scrutiny as understood by the US Supreme Court. Furthermore, the right to one's own image seems more comprehensive in its scope than its US equivalents, chiefly the right of publicity and privacy torts. Just like in the case of privacy, common law countries see the right to one's own image as a fundamental right, or at the very least as part of the fundamental right to privacy, which accounts for its more comprehensive scope.All these features highlight the value of comparative law for information policy. Within jurisdictions with an extensive Continental European tradition, but with its own ways of recognition and protection of privacy, we expect that aspects such as a human dignity and the constitutional protection of privacy rights might be interesting for the current US information policy debates." @default.
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• W2901003485 title "Introduction to the Special Issue: The Right to the Protection of One's Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries" @default.
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