Papaboys, yes to compensation for photo of child published without consent

The Onlus Papaboys must compensate the pecuniary damage to the parents of a minor for her photo published on the association's website and on Facebook, without their consent. Although there is no profit motive, what is being carried out is, in fact, a form of publicity aimed at gaining membership.

The Court of Cassation thus upheld the couple's appeal against the Court of Appeal's ruling, which had excluded both non-pecuniary and pecuniary damage. The subject of the dispute was the image of the crying girl, published on the social network and website of the Papaboys - the association set up in 2004 for the 'new evangelisation of young people' - with the caption 'Don't make anyone shed tears: God counts them'. A 'stolen' snapshot, for the dissemination of which the parents claimed both non-pecuniary damage and pecuniary damage. The Supreme Court, in line with the Court of Appeal, excluded the former, due to the absence of proof of injury, since the photograph in itself was in no way offensive to the girl's dignity.

The judges of legitimacy, however, departed from the conclusion of the territorial court, which had also denied the asset damage, in the absence of commercial or advertising purposes of the disclosure. On this point, the Cassation does not agree. The territorial Court, in fact, completely overlooked the existence of a specific economic profile 'related to the fact that the minor's image was exposed, without consent, for a period of three months, on the pages of an association that, even though it did not intend to make a profit, had made use of that exposure in order to increase its following, thus resorting to a real technique of advertising communication'.

Those responsible for the publication considered the disclosure to be useful - the Court points out - in order to attract the attention of visitors to the site or to the Facebook profile. Hence the undoubted utility derived by the Papaboys through the instrumentalisation of that image. A utility that 'can only correspond to the result of theexploitation of an economic asset (such as the image of a person, used for the purpose of attracting the attention of others): a result that, unlawfully achieved, is converted into economic damage for the owner of the exploited image, with the consequent unavoidable imposition on the damaging party to pay compensation according to an assessment to be conducted necessarily on an equitable basis (an equitable assessment in the present case legitimately operable through reference to the so-called price of consent)'.