Protecting image

The technological development attained today allows us to enjoy the internet and traverse frontiers with a simple “click”; we live within the constant communications game and entertainment that is articulated by social media that invite us to share and exchange images of how much and what we do or how much goes on in our daily lives; we are participants of the multimedia world in which it is important to know what regulations protect our image.

Image as such, is one of the most fundamental signs of a human being’s personality, a sign that he or she builds to his or her likes throughout life and through which he or she identifies and communicates with peers.

Human image is protected through the so-called “right to image”, also called “right to one’s image”, including within its scope, all those physical or external characters that serve to identify the person. In this sense, the protection provided by this right does not refer to the concept of “good or bad image”, which has to do with reputation and is protected under a different right, denominated “right to reputation”.

The right to one’s image has double character, as a human and fundamental right, as well as a personality right. Its protection at an international level is not uniform; it is essentially structured in two systems; i) continental right countries (based on the German doctrine of the general personality right), who consider it as an autonomous constitution right, system to which Mexico belongs to, and ii)  common law right countries where the right to image does not arise as an autonomous constitution right but instead as an aspect of the right to intimacy or privacy, system to which the United States, Canada, Australia, and the United Kingdom belong to.

In Mexico’s case, although this right has not been textually established at a constitutional level, it has been recognized by the Nation’s Supreme Court of Justice to be, an implicit right in the international treaties subscribed by the State and which in any case should be understood as a right derived from the recognition of human dignity, enshrined in article 1° of the Constitution.

A similar case occurs in Colombia, where the Constitutional Court’s jurisprudence has indicated that the image constitutes a form of the subject’s self-determination, constituting a right of autonomous fundamental character.

Now, beyond knowing that it deals with a fundamental and essential right for the development of the personality of human beings, recognized at a constitutional level, it is convenient to take note of which norms we can utilize to make its protection efficient.

In Mexico’s case, its legal protection system is essentially structured by: i) copyright legislation (Copyright Federal Law); ii) civil legislation (in its federal and local scopes, where the Civil Liability Law is highlighted for the protection of the Right to Private Life, Reputation, and One’s Image in the Federal District, today Mexico City); and iii) other regulatory bodies, such as legislation in intellectual property matters (Industrial Property Law) and legislation in data protection matters.

The regulatory framework in reference allows us to establish what the protection of this right is and how it is configured, and even though on one hand we can establish that the right to one’s image in at first a personality right opposable before all this, that is, before any unauthorized capture of the image, and whose damage is reparable through a moral damage action, the truth is that these norms also tell us that it deals with a right that is not absolute, and therefore there will be limits and exceptions that will not impede the use of the image, circumstances where other rights will prevail, for example, when dealing with situations where freedom of expression or the right to information come first.

From this regulatory framework we can also establish that this is a right that is especially censored in relation to minors’ image, as also a right that is especially limited in relation to people who are public officials, a notorious profession or of public projection, who have to endure a different threshold of protection, deduced from the public interest that their activities or acts carry, which is not to say that their image can be captured or reproduced without any limits, but that their protection is understood to be affected to a greater extent by the public opinion.

Likewise, it was said that in the Mexican legal system, we would also find other regulatory bodies, which although they do not strictly regulate the right to one’s image, do protect the personal image, such as the legislation in matters of industrial property, which allows the registration of the image, so much so that it considers it a distinctive sign capable of distinguishing products or services in the market; it also cannot go unnoticed that copyright legislation protects the image through the figure of Rights Reserved for Exclusive Use, within the genre of characterization of human characters, but only in the sense that the image is tied to a character. It is worth noting that these legal figures are to a greater extent used by notorious individuals, as they find in them a valuable source of exploitation of their image. The above presents the possibility that a violation of the right to one’s image, will at the same time bring violations in matters of intellectual property rights.

As can be observed, in Mexico’s case, image protection is recognized as Constitutional Court fundamental right, a right that grants its titleholder the exclusive faculty to decide over the use of physical characteristics, and that is structured under a diversified system of norms.

Claudia Stephany González Trujano
Attorney specialized in Intellectual Property – Chávez-García-Lakimies, S.C.

Juan Manuel Chávez
Managing Partner – Chávez-García-Lakimies, S.C.