On July 16, the band Coldplay performed a concert in Boston, Massachusetts. The event was proceeding normally until the now familiar “Kiss Cam” focused on a couple who, upon seeing themselves projected onto the screens of Gillette Stadium in front of thousands of people, tried to hide to avoid having their image broadcast.
The moment quickly went viral on social media, and days later, the situation gained further notoriety when it was revealed that both individuals were married and held senior executive positions at a US company. The man was, in fact, the CEO, who, under media pressure, resigned.
This raises an interesting question: can people affected by this type of exposure take legal action to protect their privacy and their right to their image?
Without going into the applicable legislation in the United States, if the events had occurred in Costa Rica, the outcome would be more predictable. Article 24 of the Costa Rican Constitution guarantees the right to privacy. According to the jurisprudence of the Constitutional Chamber, this includes the right to one’s image, which is therefore protected at the constitutional level.
In judgment No. 2001-09250 of September 14, 2001, the Chamber defined the right to one’s image as “the right of individuals to reproduce their image or, conversely, to prevent a third party from capturing, reproducing, or publishing an image without authorization.”
In principle, no third party may capture, reproduce, or disseminate the image of another person without their consent. However, Article 47 of the Civil Code, within the regime of personality rights, introduces several relevant exceptions:
- “The photograph or image of a person may not be published, reproduced, displayed or sold in any form without their consent, unless the reproduction is justified by the person’s notoriety, the public function they perform, the needs of justice or the police, or when such reproduction relates to facts, events or ceremonies of public interest or taking place in public.”
- The publication of images that reinforce discriminatory stereotypes is also prohibited.
It follows from this provision that, although the right to one’s image enjoys legal protection, it is not absolute. Among the exceptions are images captured or reproduced in connection with events, occurrences, or ceremonies taking place in public.
This exception has been addressed by the Constitutional Chamber, specifically in resolution 2014-018101 of October 31, 2014, indicating that the phrase in Article 47 of the Civil Code refers to facts, events, or ceremonies that took place in public, with “public” understood to mean in full view of everyone, which may occur on private property, such as a stadium or shopping mall.
The “Kiss Cam” may have been indiscreet and the luck of those involved frankly unfortunate. But the truth is that, at least from a legal point of view, and if the case had occurred in Costa Rica, a possible claim for unauthorized use of the image would have little chance of success in court.