Legal Status - JULY 2022
Disputes: News on the Right to the name and image of a famous deceased person
Employment: New foreign employment models in Spain, are PEO/EOR admissible?
Media: Sanction to a production company for using images recorded without consent
News on the Right to the name and image of a famous deceased person
On June 16, 2022, the Supreme Court issued judgment no. 486/2022, which analyzes an interesting case of infringement of the right to one’s own image of a deceased person, and which additionally analyzes a formal question of lifting the corporate veil.
Specifically, the case started with a lawsuit filed by the sons of a singer of a well-known Spanish rock band from the 80s, who was an original member of the band and its frontman for many years and who died in 2013, against a company organizing a music festival in 2018, which had included in the promotional poster of the festival a reference stating that this band would perform a tribute concert for this person and publishing his name and photograph.
The two sons and heirs of the deceased singer had required the company to cancel this advertising when they found out about it, before the festival was held. However, the company ignored their request and continued to use the advertising poster.
In this case, the Court of First Instance issued a judgment dismissing the lawsuit, considering that the reference to the tribute to this person did not imply any attack on his honor but rather the opposite given that it was a tribute, and that it did not imply special publicity in favor of the organizing company because the public would go mainly for the concert itself, not for the tribute.
On the other hand, the Provincial Court interpreted that there was indeed a violation of the right to the image of the deceased; this was advertising content using the singer’s image as it was in the context of a concert for which a ticket is charged. In fact, the poster itself includes instructions on how to purchase tickets, and the heirs had shown their opposition to the use of the name and image of their father.
The Supreme Court confirms this interpretation and extends it, indicating that the law regulates exceptions to intrusions in the right to one’s own image, and in this case none of them are found. Specifically, the Court does not consider that the image is used with any relevant historical, scientific or cultural interest, specifying that a tribute could be understood as of cultural interest to honour the memory of a person who made a relevant contribution to culture, but the mere mention of the tribute to the artist is not enough to prove it, and the circumstances of the case highlight its advertising and commercial purpose and blurs its potential cultural interest.
Furthermore, the Supreme Court does not consider that the person being famous, and his image having been taken in a public event constitutes a legal exception, because the interpretation of the use of an image, although public, depends on the circumstances and purpose of its use. Thus, if the image had been used to illustrate a news item or information directly related to that person, it could be considered of public interest, However, this is not the case as it is used for advertising a music festival, and therefore this interest cannot prevail over the interest of the artist’s heirs who opposed the use of their father’s image.
Finally, it should be noted that this judgment also analyzes a tangential formal issue, which is the application of the lifting of the corporate veil doctrine to dismiss the exception of lack of standing to sue.
This derives from the fact that the heirs of the deceased artist sued the company that had historically organized the festival and that was the one legally notified, but formally the organizer of the 2018 festival was a new company, with a different tax identification number. However, this new company has the same corporate name as the previous one, except for the inclusion of the word “New,” has the same registered office, the same corporate purpose, and uses the same website to promote the festival. Given all this, it is considered that there has been a business succession with confusion of legal personalities that makes both companies equally liable.
In addition to this, the judgment highlights that the requested company did not answer the legal notice and that it could have done so by rejecting the request on the grounds that it did not organize the festival, but another new company did.
It is an interesting application of the lifting of the corporate veil doctrine, which is of exceptional but effective use when the defendant tries to avoid its responsibilities by creating a new company with another tax identification number that in fact carries out the same activity.
New foreign employment models in Spain, are PEO/EOR admissible?
As a result of the Covid-19 pandemic, a new employment model is becoming widespread, which although legal in many countries, is still considered illegal in Spain: companies that offer services as “Professional Employer Organization” (PEO) or “Employer of Record” (EOR).
PEO/EOR are Spanish entities that hire employees on behalf of foreign companies that do not have their own entity in Spain. In this sense, these Spanish entities register the employees with the Spanish Social Security, pay their monthly salaries, pay Social Security contributions, etc., all this pursuant to the stipulations of the service contract between the foreign companies and the Spanish entities.
In this way, PEO/EORs are intended to enable the foreign company to carry out its main activities without having to worry about the management of its employees in the country where the activity is carried out or about compliance with labor regulations in the country where the services are provided.
However, in Spain, this situation falls under the figure of illegal assignment of workers regulated in Article 43.2 of the Workers' Statute, which states:
“2. In any case, it will be understood that the illegal assignment of workers referred to in this article is carried out when any of the following circumstances concur: the object of the service contracts between the companies is limited to the mere provision of the workers of the assigning company to the assignee company, or the assigning company lacks its own stable activity or organization, or does not have the necessary means for the development of its activity, or does not exercise the functions proper to its status as an employer."
As for the main consequences of an illegal assignment of workers, there is joint and several liability between the assignor and the assignee for the obligations contracted with the employees and with the Social Security.
Furthermore, failure to comply with labor obligations regarding the assignment of workers may give rise to economic sanctions with fines for companies between Euro 7,501.00 and 225,018.00, as it is classified as a serious infringement by the Law on Infringements and Penalties in the Social Order (article 8.2).
To sum up, according to the most recent labor regulations and jurisprudence, it is important to highlight - in view of the frequent practice of foreign companies that hire local Spanish entities that offer PEO/EOR services - that this figure is not legal in Spain and implies an illegal assignment of workers, although each specific situation should be reviewed in detail.
Sanction to a production company for using images recorded without consent
On December 21, 2021, the Supreme Court issued a judgment that is particularly relevant since it concludes that using a private figure’s images recorded without consent in a television series constitutes a violation of the fundamental right to one’s own image, and awarded a compensation of 10,000 €. The Supreme Court analyzed the fundamental rights in conflict; on the one hand the fundamental right to information and freedom of expression of the production company and, on the other hand, the right to honor and to one’s own image of the person who was recorded without their previous consent.
Balancing the right to information and freedom of expression against the right to honor and one’s own image
Pursuant to established doctrine, the right to honor and the right to one’s own image are not absolute. The right to honor normally prevails over the right to information and the right to freedom of expression prevails when someone is ill-treated or insulted, i.e., when they are disqualified in some way affecting a person’s reputation.
However, sometimes the right to information and freedom of expression must prevail over the right to one’s own image. This is the case when the use of the image, on its own or accompanied by text, is of public interest and contributes to the shaping of public opinion. In other words, when the image appears in connection with a newsworthy public event or belongs to a public figure, even if the image was obtained without consent.
The balancing of fundamental rights must take into account the circumstances of the specific case. For example, in the case analyzed, the Supreme Court considers the fact that the images are of “indisputable social interest” is decisive given that they show the murder and subsequent criminal trial of the president of the Diputación de León (Council of the Province of León), committed by a Council employee and her mother. Thus, the news becomes relevant for the public interest because the victim is a member of one of the most renowned political parties in the country and holds a public office.
During the criminal proceedings, the defendants accused of the crime of murder introduced as evidence in the criminal proceeding, a recording of the competitive examination for a public office in the Diputación de León, to which one of the defendants sat in order to prove, in her defense, that there had been irregularities in this examination. The recording showed a person, who also sat the examination, leaving the room with an open examination envelope. Subsequently, that person was the only one who passed the exam out of the 30 applicants and obtained a permanent position, which meant that the defendant lost her interim position. The defendant alleged irregularities in the hiring proceedings as shortly after getting his position in the Diputación de León, this person took a voluntary leave of absence and joined in the Ayuntamiento de Burgos (City Council of Burgos) a similar position, leaving the position in León vacant. In other words, the Diputación de León finally dismissed the de
fendant from her interim position but left her position vacant.
In the context of the case under analysis, it is worth noting that the person was involved in the events completely involuntarily, but as his figure was relevant to the case, he caught the attention of the production company not only because he was the selected applicant, but also because of the circumstances of the case.
Regarding the analysis of the right to honor, the Supreme Court considers that the inclusion of the recording in the series does not violate the right to honor, since at no time is the person disqualified, but it rather includes statements by third parties that are not directly directed against him and, therefore, are protected by freedom of expression. These statements are against the admission test system at the Diputación de León and this is protected by the right to information.
As for the right to one’s own image, the Supreme Court considers that the person was recorded during the admission test and his image was made public by the production company without consent, and thus it understands that the use of the recording in the series is an illegitimate intrusion not protected by the right to information. The Supreme Court understands that the person is a third party not involved in the crime, who was caught in the facts in a completely incidental and involuntary way, only for having taken the admission test. Consequently, the resolution argues that the use of the recording in the series for broadcasting on television for commercial purposes and indefinitely in time constitutes an unlawful interference with the right to one’s own image.
The Public Prosecutor's Office requested that the recording be kept if the face of the person was blurred in order to prevent his identification, but finally the Supreme Court concluded that the producer of the series should remove the recording of this person from the series and compensate the engineer with 10,000€ for the moral damages suffered as a result of the broadcasting of the series.