Right to One's Own Image: Foundations, Civil Liability, and Challenges in the Digital Age

Theoretical Framework, Jurisprudential Application, and Legislative Prospects

This article addresses the issue of the right to one's own image, its civil protection, and the compensatory consequences of its violation. The analysis requires an unavoidable normative update: the original texts cite provisions of the Civil Code of the Nation (Law 340, of 1871) —such as articles 1071 bis, 1109, 1067, 1069, 1078, 512, 901, 902, 1197, 1198, 1193, 1627, and 1628— which have been repealed. Consequently, the substantive law references have been reformulated to the National Civil and Commercial Code (NCCC, Decree 79/2014), in force since August 1, 2015 (specifically arts. 51 to 61, 1710, 1741, and 1770). In the procedural sphere, the Civil and Commercial Code of Procedure of the Province of Buenos Aires (CPCCBA, Law 15,240) applies.

1. General Guidelines of the Right to One's Own Image

The right to one's own image is an autonomous personality right, an emanation of personality, which is protected in the Argentine Republic by Article 31 of the Intellectual Property Law No. 11,723 and Art. 53 of the NCCC. The intellectual property norm establishes that «the photographic portrait of a person cannot be placed in commerce without the express consent of the person themselves», and, in the event of death, without the consent of their spouse, children, or direct descendants, or the father or mother.

Jurisprudence has interpreted that the expression «placed in commerce» must be understood in a broad sense, encompassing exhibition, dissemination, or publication for any purpose, not exclusively commercial. This was highlighted by the Civil and Commercial Court of Appeals of Azul, Division II, in «C. E. O. y otros c. E. P. S.» (Court: Civil and Commercial Court of Appeals of Azul, Div. II, Date: 15/04/2003, Parties: C. E. O. et al. v. E. P. S., Published in: LLBA 2005 (February), 77), maintaining that the mere capture, reproduction, or advertising of the image outside lawful assumptions constitutes an attack on the right, without the need to prove affectation to privacy, honor, or reputation.

The Supreme Court of Justice of the Nation has pointed out in «Franco, Julio César c. Diario La Mañana» (Court: Supreme Court of Justice of the Nation, Date: 30/10/2007, Parties: Franco, Julio César v. Diario "La Mañana" et al., Published in: LA LEY - DJ 02/01/2008, 9) that the protection of the deceased's image right corresponds to their relatives, and that the publication of a photograph without authorization and without justified cause is an undue act that generates liability. Consent for publication must be express and of restrictive interpretation, and cannot be tacitly presumed.

The NCCC recognizes these rights in Articles 52 (affectations to dignity), 53 (right to image), and 1770 (protection of private life). Article 53 textually establishes: «ARTICLE 53.- Right to image. To capture or reproduce the image or voice of a person, by any means whatsoever, their consent is necessary, except in the following cases: a) the person participates in public acts; b) there is a priority scientific, cultural, or educational interest, and sufficient precautions are taken to avoid unnecessary harm; c) it concerns the regular exercise of the right to inform about events of general interest. In the case of deceased persons, consent may be given by their heirs or the person designated by the deceased in a last will. If there is disagreement among heirs of the same degree, the judge shall resolve. After twenty years from death, non-offensive reproduction is free.» This norm harmonizes with Art. 31 of Law 11,723, subsuming the old protection of Art. 1071 bis of the repealed Civil Code.

2. Damages: Moral Damage and Quantification

The violation of the right to one's own image generates compensable moral damage. Jurisprudence is settled in that direct proof of moral damage is not necessary: it is configured in re ipsa, that is, by the mere production of the harmful event. This was resolved by the National Civil Court of Appeals, Division E, in «L., M. C. c. Telearte S.A.» (Court: National Civil Court of Appeals, Div. E, Date: 25/06/2004, Parties: L., M. C. v. Telearte S.A., Published in: DJ 13/10/2004, 494), maintaining that «the simple non-consensual exhibition of the image affects the right protected by Art. 31 of Law 11,723, generating by itself a moral damage represented by the displeasure of seeing one's own personality trampled».

For the quantification of moral damage, the following factors must be weighed, among others: the gravity of the author's fault, the existence of material prejudice, the personal conditions of the victim, the reach of the medium, and the pursued purpose. The National Civil Court of Appeals, Division H, in «Markarian, Analía Verónica c. Arte Gráfico Editorial Argentino S.A.» (Court: National Civil Court of Appeals, Div. H, Date: 03/06/2008, Parties: Markarian, Analía Verónica v. Arte Gráfico Editorial Argentino S.A., Published in: LA LEY), highlighted that the reproduction of photographs without authorization and omitting their authorship constitutes an illicit act that naturally flows into moral damage, without the need for specific demonstration.

It is crucial to distinguish that psychological damage is compensable autonomously from moral damage. Division E of the National Civil Court, in the cited ruling «L., M. C. c. Telearte S.A.», clarified that while moral damage affects the sphere of feelings, psychological damage predominantly attacks the sphere of reasoning, and can be compensated separately when psychophysical sequelae (temporary or permanent incapacity) are accredited.

The Supreme Court of Justice of the Nation, in «Ferrari de Grand, Teresa Hortensia Mercedes y otros c. Entre Ríos» (Court: Supreme Court of Justice of the Nation, Date: 24/08/2006, Parties: Ferrari de Grand, Teresa Hortensia Mercedes et al. v. Entre Ríos, Published in: Fallos 329:3403), reaffirmed that moral damage must be considered configured by the mere production of the harmful event, presuming the inevitable injury to feelings due to the degree of kinship, without requiring the cause of such suffering to be permanent.

3. Right to Privacy and its Relationship with Image

The right to image is autonomous from the right to privacy and honor, although they are frequently linked in factual practice. The right to privacy is enshrined in Article 19 of the National Constitution and in Art. 1770 of the NCCC. The National Civil Court of Appeals, Division L, in «R., S. c. Pronto Semanal» (Court: National Civil Court of Appeals, Div. L, Date: 11/11/2004, Parties: R., S. v. Pronto Semanal, Published in: DJ 2005-1, 362 - ED - JA), resolved that there is no illegitimate intrusion into privacy when the events unfold in public and the article does not contain data harmful to honor or privacy, and the plaintiff had been informed of the circumstances that could surround her work.

However, furtive obtaining or the publication of images taken in private spaces constitutes a violation of privacy. The paradigmatic case is «Ponzetti de Balbín» (CSJN, Fallos 306:1892), where the publication of a photograph of Ricardo Balbín in agony, taken without authorization in an intensive care unit, was considered illegitimate, as it violated the most sacred sphere of privacy.

The Civil and Commercial Court of Appeals of Azul, Division II, in «C. E. O. y otros c. E. P. S.» (15/04/2003), maintained that the assumption of notoriety that authorizes the publication of images of deceased persons without the consent of their relatives is not configured if the notoriety stems from misfortune or crime and the dissemination accentuates the grief of the bereaved, being unnecessary for the general informative purpose.

Currently, Art. 1770 of the NCCC expressly protects against «arbitrary intrusion into the lives of others», including the publication of portraits, and allows the judge to order the publication of the sentence in a local newspaper or periodical, at the request of the aggrieved party, as a measure of satisfaction and neutralization of moral damage.

4. Journalistic Publications and Editorial Responsibility

Freedom of the press is not absolute and must be harmonized with personality rights. The doctrine of actual malice —received by the Supreme Court in «Costa», «Vago», «Morales Solá», among others— exempts the media from liability when reporting on public officials or matters of public interest, unless it is proven that they acted with knowledge of falsity or reckless disregard for the truth.

The Superior Court of Justice of the Province of Neuquén, in «D. R. B., M. c. Editorial Río Negro S.A.» (Court: Superior Court of Justice of Neuquén, Date: 07/08/2006, Parties: D. R. B., M. v. Editorial Río Negro S.A., Published in: LLPatagonia), considered that the publication of a photograph of a prosecutor alongside an article on a criminal case, using an out-of-context archive image with an offensive sign, constituted an abusive exercise of right, condemning the publisher for moral damage. In dissent, Dr. Tribug maintained that the doctrine of actual malice should be strictly applied since it involved a public official and a matter of institutional interest.

Nevertheless, legitimate exceptions exist. The National Civil Court of Appeals, Division K, in «Herrera, Ramón S. c. La Nación S. A.» (Court: National Civil Court of Appeals, Div. K, Date: 02/09/2003, Parties: Herrera, Ramón S. v. La Nación S. A., Published in: DJ 2003-3, 601), revoked a conviction for publishing a photograph without consent, understanding that the journalistic article on the eating habits of Argentines had a scientific, statistical, and informative nature, fitting into the exception of Art. 31 of Law 11,723.

Technological evolution imposes new limits. The Civil and Commercial Court of Appeals of San Isidro, Division I, in «Riva, María A. c. Sonne S.R.L.» (Court: Civil and Commercial Court of Appeals of San Isidro, Div. I, Date: 14/08/2003, Parties: Riva, María A. v. Sonne S.R.L., Published in: JA - LLBA 2004, 104), condemned a company for disseminating a model's image on the Internet without authorization, considering that the Internet is a medium distinct from traditional ones (print or film) that requires express and specific consent for its use, and cannot be tacitly inferred from a contract for other media.

5. Contracting: Advertising Models and Commercial Use

The leasing of services or work is currently governed by Arts. 1251 et seq. of the NCCC. Consent for the use of the image must be express and specific for each medium and term. The National Civil Court of Appeals, Division G, in «Urzi, Daniela A. c. System Action S.R.L.» (Court: National Civil Court of Appeals, Div. G, Date: 04/10/2000, Parties: Urzi, Daniela A. v. System Action S.R.L., Published in: LA LEY 2001-A, 8 - DJ 2001-1, 481 - RCyS 2001, 584), condemned the defendant for using the model's image beyond the contractually agreed term, recognizing compensation for frustrated earnings (patrimonial damage) and moral damage.

However, the professional context modulates moral damage. The National Civil Court of Appeals, Division L, in «Colliard, Alejandro M. c. Laboratorios Temis Lostalo S.A. y otro» (Court: National Civil Court of Appeals, Div. L, Date: 28/04/2006, Parties: Colliard, Alejandro M. v. Laboratorios Temis Lostalo S.A. et al., Published in: DJ 09/08/2006, 1047), specified that when a company exceeds the use of a model's image beyond the agreed time, it must pay the fees corresponding to the unconvened period, but compensation for moral damage does not apply if there was no intrusion into privacy, disturbance that hurts their feelings, or use of the image for purposes other than those originally agreed upon.

A similar criterion is observed in «Mereles Friedenlib, Rumilda Rosa c. Gilmore S.R.L. y otro» (Court: National Civil Court of Appeals, Div. L, Date: 04/09/2007, Parties: Mereles Friedenlib, Rumilda Rosa v. Gilmore S.R.L. et al., Published in: La Ley Online), where compensation for moral damage was confirmed due to the lack of remuneration for the provision of services and the use of the image in an unpactated television context, which affects the right to identity and the economic value of the image.

6. Photography of Minors and Corpses: Enhanced Protection

The protection of the image of minors is reinforced. The Convention on the Rights of the Child (incorporated into the National Constitution by Art. 75 inc. 22) establishes in its Art. 16 the protection against arbitrary interference in their private life and attacks on their honor. The Supreme Court of Justice of the Province of Tucumán, Civil and Penal Division, in «Ortiz, Miguel Angel y otra c. La Gaceta S.A.» (Court: Supreme Court of Justice of Tucumán, Civil and Penal Div., Date: 10/02/2004, Parties: Ortiz, Miguel Angel et al. v. La Gaceta S.A., Published in: LLNOA 2004 (April), 990 - DJ 2004-2, 1042), confirmed the conviction of a newspaper for publishing the photograph of a minor without the consent of their parents, highlighting that the burden of proving consent falls on the party alleging it as a defense to avoid claims from the image holder.

Image manipulation aggravates liability. The Civil and Commercial Court of Appeals of Tucumán, Division II, in «Ortiz, Miguel A. y otra c. La Gaceta S.A.» (Court: Civil and Commercial Court of Appeals of Tucumán, Div. II, Date: 03/07/2003, Parties: Ortiz, Miguel A. et al. v. La Gaceta S.A., Published in: LLNOA 2003 (December), 697), considered that the use of a minor's image via photomontage, taken out of context and juxtaposed with another, without authorization, configures an in re ipsa compensable moral grievance, without requiring proof of intent or fault by the press medium, as it is a case of objective liability for the affectation of personality rights.

Regarding the photography of corpses, the Supreme Court in «Franco, Julio César c. Diario La Mañana» (30/10/2007) maintained that the publication of the image of a lifeless body in an advanced state of decomposition, without the authorization of relatives, injures the right to image and privacy. The Attorney General, in her opinion shared by the majority, emphasized that «the medium cannot validly invoke that it is in the public interest to know the physical state of a deceased person's body», as it clearly belongs to the sphere of personal and family intimacy.

However, there is a current doctrinal debate. In dissent in the «Franco» case, Justice Argibay maintained that the publication of images taken in freely accessible spaces does not constitute, as a rule, a violation of privacy, and that condemning without proving invasion or illegal intrusion, based solely on the affectation of feelings, would be inconsistent with freedom of the press and would subject photojournalism to paralyzing self-censorship.

7. The New Frontier: Digital Image and Artificial Intelligence

The advancement of technology has generated a regulatory void that doctrine and legislators seek to close. Law 11,723, enacted in 1933, protects the image as a "photographic work or portrait", but does not contemplate dynamic replications generated by neural networks. In response, the National Congress is debating bills that seek to broaden the interpretation of Art. 53 of the NCCC, considering the AI-generated image as a "digital extension" of the person. All active bills are anchored in Arts. 17, 43, and 75 inc. 22 of the National Constitution (property rights, *amparo*, and human rights treaties), as well as in Arts. 53 to 55 of the Civil and Commercial Code (personality rights and acts harmful to personality).

📚 Links of Interest

• National Civil and Commercial Code (NCCC)
• Civil and Commercial Code of Procedure of the Province of Buenos Aires (CPCCBA)
• Intellectual Property Law No. 11,723
• Law 23,849: Approval of the Convention on the Rights of the Child
• Argentine National Constitution (Infoleg)
• Digital Library of the Ministry of Justice: Commentary on Art. 53 NCCC
• Chamber of Deputies Dossier Search Engine (Tracking AI bills)