Romania: A fundamental right

Image rights are considered to be one of the broader categories of fundamental right (eg, the right to life, the right to health, the right to physical and psychological integrity, dignity, privacy and freedom of expression) which are internationally acknowledged by the Universal Declaration of Human Rights and the European Convention on Human Rights, among others.

European Court of Human Rights case law acknowledges image rights as being intrinsically connected with the right to privacy provided by Article 8 of the convention.

Romania’s Constitution acknowledges protection for image rights only as a general and indirect principle (ie, as a limitation to the right to freedom of expression). However, legislation has evolved in this area during the last 20 years:

• The 1996 Copyright Law sets out provisions for the use of a ‘portrait’.
• The Advertising Code of Conduct provides that “an advertisement which harms the image, honour, dignity and private life of individuals is forbidden”, and that “commercials should not present or refer to individuals, whether public or private, without the individual’s prior approval”. Publicity and image rights are also mentioned in the Advertising Law (148/2000).
• Law 161/2003 establishes restrictions with regard to the use of recordings or images of public employees or officials for any advertising purpose.
• Decision 187/2006 of the National Audiovisual Council sets outs detailed guidelines for publicity and image rights in the context of audiovisual programmes.

Although the restrictions on the right of freedom of expression introduced by the above council guidelines have a limited scope (and cannot be extended to newspapers, magazines or the Internet), many critics have argued that these guidelines should be observed when it comes to exercising this right.

The decision establishes that fundamental rights and liberties should be respected by all radio and television stations, which may not profit from an individual’s ignorance or good faith. Any issues, facts or local or national events that are significant to public life are considered to be of justified public interest. The decision then goes on to find that reference to the right to information cannot justify an invasion of private life (it is worth noting that this principle is often infringed by Romanian television stations), although image rights should not impede the determination of truth in the case of justified public interest.

The broadcasting of images or recordings of persons under criminal investigation or persons who have been arrested or imprisoned without their written consent is prohibited, unless the images or recordings were made in a public place (another point which Romanian television stations often fail to observe).

An individual’s rights to private and family life, residence and correspondence must be respected. Broadcasting news, debates, audiovisual inquiries or coverage concerning an individual’s private and family life without his or her consent is prohibited, unless there is a justified public interest or a clear and significant connection between the individual’s private and family life and a justified public interest. Similarly, the address or phone number of an individual or a member of his or her family cannot be disclosed without permission.

Broadcasting images of an individual filmed in his or her residence or in any other private place, or images captured within a private property without consent is prohibited, unless such images constitute evidence of a criminal offence or capture facts of justified public interest. In the same way, broadcasting images or sounds recorded using hidden microphones or cameras is prohibited, unless the material could not be obtained under normal conditions and the content is in the justified public interest. Broadcasters shall not broadcast the following without prior consent:

• images of individuals as victims;
• images of deceased persons; or
• images exploiting or underlining a trauma.

Finally, an individual has the right to privacy in difficult moments, such as irretrievable loss or misfortune. In cases of human suffering, natural disasters, accidents or violent acts, broadcasters are obliged not to unjustifiably interfere with an individual’s private life.

Although the precise nature of image rights is still subject to debate (ie, whether image rights form part of the right to a private life), there is no doubt that their scope is mostly formed by external, physical characteristics which are closely related to an individual’s personality.

At the heart of image rights is thus the individual’s right to control the use of his or her image, name and voice, and oppose the unauthorised use of these – in other words, consent.

Consent is not required according to the Copyright Law if the portrayed individual is a professional model or has been paid to sit for a portrait and has not expressly requested that his or her image not be published. Neither is consent required in the case of a portrait of a celebrity, if the portrait was made during his or her public activities; or when an individual’s image is a detail of a larger image representing a gathering, a landscape or a public assembly.

On October 1 2011 a new Civil Code entered into force, replacing the 1864 Civil Code. The code represents a fresh and welcome approach to personal rights and contains specific provisions on “respect which should be given to a human being” (Article 58), defining personality rights, image, name, voice and private life rights, as well as rules to determine whether consent is needed for a specific action and the right to obtain material and moral damages as a result of any infringement of these rights (Articles 73 and following).

The new code further provides that the following might be considered harmful to the right to private life:

• capturing or using an image or recording inside a private property without the subject’s consent;
• publishing interior images of a private property without the owner’s prior consent;
• publishing images taken during a medical procedure without the subject’s consent; and
• bad-faith use of an individual’s name, image or voice or a resemblance to another individual.

However, the new code also establishes a legal presumption of consent where an individual voluntarily provides material or information to somebody working in the media, with no other written consent being required.

Finally, for the first time in Romanian law, it is expressly provided that a deceased individual benefits from the same protection granted for image and reputation rights as a living individual.

A limited number of cases involving image rights came before the Romanian courts between 2005 and 2011, which were decided based on general tort provisions set out in the Civil Code, the Constitution and Article 8 of the European Convention on Human Rights. Any claims involving image rights were generally based on the 1996 Copyright Law and were handled by specialist IP panels.

One of the most well-known cases in Romania involved former World Boxing Association champion Leonard Doroftei, whose name was used in 2003 by a private entrepreneur for a new brand of cigarette. The case did not reach the courts after the entrepreneur ceased using the Doroftei name.

Of the cases that did reach court, the following are worth mentioning:

• Ana Birchall v Iosif Buble (10437/3/2010) – Ana Birchall, a young politician, claimed damages of €100,000 from Iosif Buble, an independent journalist who wrote 17 defamatory articles about her and published a defamatory film depicting aspects of her private life. The Bucharest Tribunal initially awarded Birchall €70,000 in moral damages; however, the decision was appealed and remanded for judgment and the amount reduced to €20,000. The decision is still subject to a second appeal.
• Camelia Potec v Sanoma Hearst Romania (30400/3/2005 (1975/2006)) – Camelia Potec, a former European champion swimmer who attended the London 2012 Olympic Games, claimed damages of €180,000 from Cosmopolitan magazine following the allegedly unfair use of her image to advertise cosmetics instead of Omega products (this company having exclusive rights to her image). However, the claim was denied.
• Pellea Oana v Becali George, New Generation Party (11358/3/2005 (594/2006)) – Oana Pellea, daughter of famous Romanian actor Amza Pellea, claimed damages of approximately €50,000 as a result of the unauthorised use of her father’s image by Becali George (a former member of the European Parliament) for a political video made for the 2004 parliamentary and presidential elections. The Bucharest Tribunal partially ruled in favour of Ms Pellea, granting moral damages of €8,000 following the defendant’s failure to present prior consent from her as sole successor to Amza Pellea’s image rights, in accordance with the Copyright Law.
• Elena Turcu v Realitatea TV, Andreea Cretulescu (382/2009) – Elena Turcu, a former judge and university lecturer, claimed €10,000 from Realitatea TV and presenter Andreea Cretulescu following a minor car accident in 2007. Turcu claimed that her image rights were affected following the repeated broadcast of videos depicting her in the crash and intense media debate of the incident. The Bucharest Tribunal granted moral damages of €10,000. The decision was maintained by the superior courts.
• Traian Basescu v Dinu Patriciu (42195/299/2009) – Traian Basescu, the president of Romania, claimed symbolic moral damages of Leu1 from Dinu Patriciu (the former number one Forbes billionaire in Romania), claiming that the latter stated that he was in possession of a video (which was later released to the media) showing Basescu hitting a child during his presidential campaign in 2004. The Bucharest First District Court granted the claim. The case was finally decided in 2013 and Basescu was awarded the claimed moral damages. 
  

  Dragos M Vilau
  Partner
  [email protected]

  Dragos M Vilau is one of the founders of and coordinates the trademark, copyright and data protection practice groups at VILAU | ASSOCIATES He is a member of the Bucharest Bar Association, the International Trademark Association and the Pharmaceutical Trademarks Group. He has been involved in numerous cases before the Romanian courts.

  

  Ionut Lupsa
  Partner
  [email protected]

  Ionut Lupsa is one of the founders of and coordinates the patent practice group at VILAU | ASSOCIATES He is a member of the Bucharest Bar Association and INTA and is qualified as a trademark attorney. Over the past 14 years his practice has focused mainly on intellectual property, information technology, e-commerce, dispute resolution and litigation.