On June 16th the Court of Cassation has published an order that recognized the right of the well-known actor CGT to obtain compensation for damage to his privacy and his right to the image caused by the publication of photographs that had portrayed him in August 2009, in intimate attitudes with his partner Ca.El. in the park of (omissis), in the municipality of (omissis). Who are CGT and (even if he does not take part in court) Ca. El., The provision does not say so because the protagonists of the affair had asked that their respective particulars not be disclosed.
But having a little patience, at the end of the text the mystery will be revealed, the (understandable) curiosity, satisfied and the privacy paradox revealed.
Photography, paparazzi and illegal interference in private life
It is a consolidated principle in the Italian jurisprudence that in places where there is a reasonable expectation of not being exposed to the public (the so-called reasonable privacy expectation) the right to press does not apply. The most famous case is that of Princess Caroline of Monaco, which despite its notoriety was recognized by a German court the right not to always live under the gun of a photographic lens.
Therefore, it is one thing photograph a (known) person in a public spaceanother is to do it by overcoming walls or fences by climbing trees or using drones. In this second case, the will of the person not to want to expose himself to the gaze of others is clear and the sanction for those who do not respect this will is equally automatic. This explains why already in the degrees preceding the judgment of the Supreme Court CGT was acknowledged to have been the victim of the violation of the privacy law, that is article 615 bis of the Criminal Code, which expressly punishes the illicit interference in private life also committed through (video) recordings and photographs.
Privacy, machine learning and individual responsibility
In this regard it is interesting to note that in 2015 the Supreme Court, with sentence 25363/2015 she had also taken care of analyzing the role of software technologies (photograph retouching applications) used to magnify small images or part of them, to render them suit- able for publication and gossip. Using software to extract (or, as in this case, to enhance) information not otherwise easily accessible gives rise to a legitimate privacy claim.
Therefore, if it is an invasion of privacy to photograph someone who has placed himself in a position not to be filmed, this also applies to enlargements or enhancement made possible by photographic processing software that reveal details that are not immediately perceptible. This interpretation, incidentally, it is particularly relevant because well ahead of its time it tackles a problem that at the time might have seemed marginal, but today it is extremely concrete.
Until a few years ago, enlarging a portion of a photograph was only possible up to a certain point and, despite the alchemy of the software, the results in terms of detail could not necessarily be satisfactory (just look at the covers of the tabloids, which sometimes publish grainy images, created precisely by enlarging small portions of photographs taken from afar). Today, however, they are available algorithms based on machine learning (Google unveiled one and Adobe has already incorporated a similar feature into its software) that improve the resolution of poor quality photos and reconstruct details otherwise not visible with traditional applications. For once, therefore, we are faced with a sentence that anticipates technological evolution instead of undergoing it.
What do you sell, privacy or right to image?
Another interesting aspect of the decision is the overlap between privacy and the right to one’s own image. CGT had complained that despite not having never sold photos of their private moments, in the future he could change his mind and monetize even non-public shots. Therefore, the circulation of the incriminated photos would have damaged him not because they violated his privacy, but because they deprived him of the possibility of selling an exclusive service.
In previous grades this complaint had not been accepted, but in the third degree, the Supreme Court agreed to the mysterious CGT. The court found that in this case the problem was not so much a question of privacy or (which is a different thing) of personal data, but of the right to image.
For a protagonist of the entertainment world, monetize your image (understood not only as pure exteriority, but as a lifestyle as a whole) is a source of income. Like any economic good, the more scarce an object is, the more it is worth. Therefore, if CGT’s private photographs are not readily available they have a high value.
While this reasoning is understandable when applied to famous people, it introduces an element of disparity with the rest of the world that is not famous. In similar cases but related to normal people, the principle of law enunciated by the Supreme Court in favor of CGT would not apply. It would have made more sense to make the damage derive from the violation of privacy as such, in order to make the decision valid for anyone, regardless of notoriety.
Who is CGT?
On the sidelines of this story, the order of the Supreme Court consecrates a paradoxical fact, indeed, more than one.
The first is that while on the Cassation website this ordinance is not yet available because “in the darkening phase”, his text is widely available in Tete. One wonders how such a thing is possible and, in particular, from which hole in the Palazzaccio the convict text could escape.
The second is that, as already in the case of Antonello Venditti, the judicial measure will also have ordered to keep the personal details of the parties confidential and therefore not to publish the name of CGT in full. Too bad, however, that the national news, the local one and even sites of professionals and law firms have not had particular scruples in spreading the full name of CGT, which is none other than George Timothy Clooney. Who else?
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