Tacit consent to image publication: analysis of judgment no. 18276 of 2024

The recent ordinance no. 18276 of July 3, 2024, issued by the Court of Cassation, addresses an increasingly relevant issue in the Italian legal landscape: tacit consent to the exposure of one's image. In an era where the dissemination of photographic content is commonplace, it is crucial to understand the legal implications related to privacy and personal image.

The Case: Bertolani v. Pennesi

The dispute in question involves B. (Bertolani Massimo) against K. (Pennesi Andrea) and concerns the publication of a photographic portrait. The Court of Appeal of Bologna, in its judgment of April 14, 2022, had already rejected B.'s request for privacy protection, arguing that consent to the exposure of one's image can also be tacit. This principle has been confirmed by the Court of Cassation, which has delved into the requirements characterizing such consent.

Tacit Consent: What Does It Mean?

According to the judgment, tacit consent to the exposure or dissemination of an image does not necessarily have to be expressed in writing, but can derive from a sufficiently conclusive manifestation of will. This aspect is crucial, as Article 96 of Law no. 633 of 1941, which governs copyright, does not impose formal constraints on consent to the use of an image. On the contrary, Article 110 of the same law requires written form only for the transfer of exploitation rights, without going into the merits of consent to exposure.

Publication of photographic portrait - Tacit consent - Admissibility - Basis. Consent to the exposure or dissemination of one's image can also be tacit, provided it results from a sufficiently conclusive manifestation of will, as Article 96 of Law no. 633 of 1941 does not provide for any formal constraints, while Article 110 of the aforementioned law – which requires written form for proof of contracts concerning the transfer of image exploitation rights – is solely intended to regulate conflicts between alleged holders of the same exploitation right.

Practical Implications of the Judgment

The implications of this judgment are manifold and deserve attention. In particular, it is important to consider the following aspects:

• The need to demonstrate the will to consent to publication through concrete behaviors.
• The risk of legal disputes in the absence of a clear manifestation of consent.
• The importance of correct information regarding image rights, especially in areas such as social media.

In this context, it is essential that individuals are aware of their rights and the ways in which they can manifest consent to the publication of their image.

Conclusions

In conclusion, judgment no. 18276 of 2024 represents an important step in defining tacit consent to the exposure of an image. It clarifies that consent does not necessarily have to be expressed in writing, but can derive from behaviors that demonstrate a clear and unequivocal will. This principle offers greater flexibility in managing image rights, but also requires greater attention from individuals regarding their privacy and the use of their image.