Sports image rights in Bulgaria.

• Author: Kolev, Boris

1. Introduction

   In Bulgaria the concept of "image rights" has not been developed as such. The reason is the fact that the English word "image" has been literally transplanted in the Bulgarian language but associated only with one of its aspects. Dan Harrington and Nick White, who contributed the chapter on the image rights in the United Kingdom (1) for the first edition of the Sports Image Rights in Europe, revealed the different meanings of the word "image", which "may be used to refer to a particular picture or photo, or, alternatively, to how an individual is perceived". They underlined the ambiguity of the word when used in terms of "how an individual is perceived", because this "may be a reference on the one hand to that individual's persona or character or to what others think of that person". On the other hand, according to the authors of the UK chapter, "it may be used more literally, to refer to the person's physical appearance". They ultimately agreed that the meaning of "image" as a person's physical appearance "is reasonably near to the meaning of "image" in the phrase "image rights".

   In Bulgaria the word "image" is used only to refer to its aspect of how an individual is perceived. Consequently, the Bulgarian word "image" does not correspond in meaning to "the person's physical appearance", not even implies this aspect of the word as present in the original English word. That is why the use of "image" according to its Bulgarian context in the connotation "image rights" would turn out to be far from its actual meaning in English.

   However, Bulgarian legal doctrine has identified and developed as concepts other rights, which, in their totality, covers all aspects of the image rights arising from the original meaning of the word "image" in English. Personality rights for the protection of privacy and protection of personal data, right of portrait, right of name, and right of trademark constitute such rights. The right of good name is the concept which to a maximum extent overlaps the concept of image rights as it is perceived in Bulgaria due to the likeness of the words "image" and "good name" in Bulgarian language.

   This country chapter will review and analyse the above mentioned rights in the context of Bulgarian law as well as the legal means for their enforcement, enhancement and protection. It will further provide information and discuss matters related to the management of image rights (sponsorship)

2. Personality Rights

   The general personality rights for the protection of privacy of citizens including sportsmen are set forth in the Constitution (2). Pursuant to article 32 of the Constitution of Republic of Bulgaria "the privacy of citizens shall be inviolable. Everyone shall be entitled to protection against any illegal interference in his private or family affairs and against encroachments on his honour, dignity and good name. No one shall be followed, photographed, filmed, recorded or subjected to any other similar activity without his knowledge or despite his express disapproval, except when such actions are permitted by law." The right of any citizen to refuse to be filmed and photographed in certain cases not falling within the permissible exceptions may serve as a ground for athletes to commercially exploit their general personality rights by agreeing to be photographed and filmed against a fee.

3. Right of Good Name

   Right of good name is one of the personality rights explicitly mentioned in the Constitution. As already said before this right to a largest extent fits the concept of image rights in Bulgarian context as far as "image" and "good name" are very close in meaning in Bulgarian language. Besides its presence in article 32 of the Constitution this right is also listed among the limitations of the right of expression in article 39 thereof. "This right (the right of expression) may not be used for infringement of the rights and the good name of another person." Further, article 41 of the Constitution again mentions "good name" among the values which may justify potential limitation of a constitutional right. The right to receive information may be limited in the cases where its enforcement is directed against the rights and the good name of the other citizens.

   In its decision dated 14 July 1998 the Constitutional Court of the Republic of Bulgaria (3) also construed the value "good name". It stressed in its analysis that "the good name of the other citizens" belongs to the values, which protection serves as justification for limitation of the freedom of expression under the Bulgarian Constitution. The corresponding justification under the European Convention on Human Rights (the ECHR) is the protection of reputation and the rights of others. In fact, the word reputation may be determined to be a synonym of good name in Bulgarian language. The Constitutional Court concluded that the good name as a value encompasses in it also the values honour and dignity, which are inherent to every person. Therefore, although not specifically mentioned as justifications for the limitation of the freedom of expression and the freedom to receive information in the respective articles of the Constitution, honour and dignity are part of the concept of good name according to the Bulgarian jurisprudence.

4. Protection of the Right of Good Name

   4.1. Civil Liability

   All the cases of infringement of the right of good name may be tried under article 45 of the Law on Obligations and Contracts (LOC) (4) stating the general liability of every person to redress the damage he has faulty caused to another person. Tort, as described in article 45 of the LOC, represents a complex legal fact consisting of the following elements: act (action or omission); damage; unlawfulness of the act; cause-consequence connection between the act and the damage incurred; and guilt of the wrongdoer. All these facts are united by the legal rule and must be cumulatively present. Further to the tort liability under article 45 in the cases where damage has been caused during performance of a work assigned by another person, the latter will be vicariously liable. This liability serves as a guarantee that the actual damage will be ultimately efficiently remedied. That is why the vicarious liability does not require presence of guilt on the part of the assignor of the work.

   Bulgarian case law contains numerous examples of litigations having infringement of the right of good name as causes of action. These examples do not involve sportsmen; however, they clearly demonstrate what the reasoning of the court would be in such cases. In a case decided recently by the Supreme Court of Cassations (5) the latter confirmed, as a court of last instance, the amount of BGN 6,000 to be paid as compensation for the infringement of the right of good name of a Bulgarian composer, who was also organizer of a traditional music fest in the city of Burgas. The claim was directed against a woman leading a TV show at one Bulgarian television having national coverage through cable transmission and the legal entity holding the licence for broadcasting the program of the said television. The court accepted as proven the facts that the first defendant had disclosed information about the plaintiff, which was false, insulting, blaming him in corruption, and creating wrong image of his activity as organizer of the musical festival. The Court held that this conduct of the defendant was unlawful and triggered her liability under article 45 of the LOC to compensate the damages she had caused culpably. The Court also made the other defendant severally liable for the payment of the compensation on the ground of its vicarious liability under article 49 of the LOC.

   n case of moral damages the court shall decide on the amount of the compensation on the basis of the rules on justice, i.e. the judge has the discretion to rule on this issue. In the case discussed above the Supreme Court of Cassation found the amount of BGN 6,000 even insignificant in the view of the evidence taken during the proceedings and the rules on natural justice. To reach this conclusion the court took into account the publicity of the statements broadcast on the TV and the image and popularity of the person, who suffered the damage. However, due to absence of claim from the respective party for the increase of the amount of compensation the court left it unchanged.

   4.2. Criminal Liability

   Good name as a value including also the honour and dignity of an individual may be subject matter of the crimes insult, i.e. intentional humiliating the dignity of a given person through mistreatment) and slander, i.e. the conscious disclosure of untruthful and shameful acts for a given person or imputing criminal offence to another person.

   The constitutional case referred to in section III of this chapter was initiated in order to question the compliance with the Constitution of the provisions in the Criminal Code (6) about the penalties provided for insult and slander as criminal offences. More specifically, the penalties provided for these crimes at the time of the proceedings before the Constitutional court - "up to six months of imprisonment" for insult and "up to one year of imprisonment" for slander - were deemed too high and disproportionate to the nature of the crimes. Further, according to the 55 members of the Parliament, who initiated the challenge, article 148 of the Criminal Code provided for discriminatory procedure for realisation of criminal liability. The penalties for the crimes insult and slander were more severe in the cases where the perpetrator or the victim was a state official (two years of imprisonment). Also, the crimes committed by or against such officials were prosecuted by the state ex officio unlike the other cases of insult and slander which were to be initiated following a claim by the aggrieved party. The effect of limitation on the freedom of expression as a result of the...