Clarification on the Online Publication of Images of Minors in Public Events

The facts of the case were the following: A well-known actress and model who participated with her son in a charity walk in a public area in the City of Buenos Aires sued Yahoo Argentina for damages caused by the online publication, without her express consent, of photographs of her son. 

The court of first instance rejected the claim. This decision was appealed by the actress and by the Public Prosecutor.

The Court of Appeals confirmed the lower court’s ruling after applying Intellectual Property Law No. 11.723 (“IP Law”) and the former Argentine Civil Code (taking into account the date in which the publication took place).

In particular, the Court of Appeals emphasized that the rule established by section 31 of the IP Law, which has been interpreted as a generic prohibition to the publication of the image of an individual without his or her express consent, is not absolute. It referred to case law issued by the Argentine Supreme Court where public interest prevails over an individual’s right to image.  In addition, it stated that section 31 of the IP Law provides that the publication of images is free when “it relates to scientific, didactic and cultural purposes, or to a fact or event which is of public interest or was conducted in public.”

Under these circumstances, the Court of Appeals concluded that in that case the use of the minor’s image was lawful and did not require express consent. In order to determine this, it considered the direct relation between the image of the minor, the event of public interest and the right of the community to be informed, as well as the fact that the publications in question were factually accurate. Moreover, it stated that the publication did not harm or slander the minor, and that his privacy was not affected.

The decision clarifies the extent of section 31 of the IP law and provides a harmonic interpretation of the right to image, in this case belonging to a minor, as related to facts or events of public interest or conducted in public.