The Consent for the Capture and Subsequent Publication of her Image Given by a Minor Is Null

In re “N. F. N. v. Editorial Televisa Argentina S.A. re: Damages”, case No. 29352/2013, the minor filed a complaint seeking compensation for damages as a result of the unlawful use of her image,  harm to her reputation and violation of the right to privacy as a consequence of the publication without her authorization or consent of photographs with her image with the aim of illustrating the transcription of an interview made to the defendant.

The first instance judge admitted the claim and ordered the defendant to pay compensation to the amount of AR$ 76,000, plus interest and litigation costs.

The first instance court considered that it was sufficiently proven that the plaintiff and her mother had consented to the capture and publication of the images as well as the publication of the magazine containing such photographs. However, the district judge ruled that such consent was erroneous pursuant to the construction of constitutional and “supra-legal” provisions.

Editorial Televisa Argentina S.A. appealed the first instance decision arguing, among other defenses, that the judgment adopted a “rigid classification” when ruling that the consent given was null and void. The Court of Appeals dismissed the appeal considering that a strict interpretation of the legal statute shall prevail since what was being assessed in the case was the possible damages that “indecent activities, capable of socially expanding their pernicious effects” could cause to the minor’s dignity.

On the other hand, the Court of Appeals stated that section 26 of the Civil and Commercial Code, which provides that people who are 16 years old should be considered adult for decisions pertaining to the care of their body, was not applicable since that provision does not refer to commercial or labor relations.

The Court of Appeals also dismissed the claim of the defendant concerning the alleged deception that the plaintiff might have caused when hiding or lying about her age at the time she gave the consent. In this regard, the court rated such argument as significantly unsustainable and reproachable since, notwithstanding the fact that consent given by a minor is not valid, the alleged deception was a consequence of the defendant’s considerable oversight when it failed to check the age of the plaintiff.

Lastly, the Court of Appeals reduced the amount of compensation for damages to AR$ 16,000 on the understanding that the degree of moral involvement of the plaintiff was less than what the first instance court ruled.