PROTECȚIA PROPRIEI IMAGINI IN ERA DIGITALĂ: SOLUȚII JURISPRUDENȚIALE ALE CURȚII EUROPENE A DREPTURILOR OMULUI

Abstract

Research from the last decade shows that a significant number of European countries have developed a regulatory framework according to which the right to Internet access is protected in law by constitutional guarantees applicable to the freedom of expression and to the freedom to receive ideas and information; is considered inherent to the right to access information and communication protected by national constitutions; and includes the right of every person to participate in the information society as well as the obligation of states to guarantee people’ access to the Internet. This leads us to the idea that the set of general safeguards that protect the freedom of expression is also valid for the right to unhindered access to the Internet. If the protection safeguards are equivalent, then does the posting of content (information) in the virtual environment have equivalent consequences, compared to other media, in terms of immediate impact on the private life of a specific person, such as life history, personal photos, pictures of children? What is certain is that the notion of private life, protected under Article 8 of the European Convention on Human Rights, embeds elements related to a person’s identity (e.g., the name), image (the photograph), physical and mental integrity. The guarantee provided in this regard under Article 8 of the Convention aims at ensuring the individual’s personal development without any external interference, as well as the development of one’s personality in relation with peers. At the same time, given its accessibility and ability to store and spread a vast amount of information, the Internet irrefutably ensures wide public access to news. The possibility offered to individuals to express themselves in the virtual environment represents today an unprecedented way of exercising freedom of expression, protected under Article 10 of the Convention. In such circumstances, it is clear that national authorities are summoned to a more prudent balancing exercise of the two interests at stake. To guide this complex exercise, we will proceed to an analysis of the general principles concerning the protection of the image in the exercise of the freedom of expression by a third party (including in the virtual environment) (I), the protection of the image of public figures (II), and the protection of the image of children (III).