Sports image rights in Romania.

• Author: Andronic, Ana-Maria

1. Image Rights in Romania

   1.1. Overview of Relevant Legislation

   Although the "image right" is not listed among the fundamental rights expressly listed in the Romanian Constitution (1), nevertheless it is recognized indirectly (2) through a provision which stipulates that the freedom of expression cannot violate the right to one's own image. (3) As such, this constitutional provision was probably meant to be a mirror reflection in the national legislation of the larger right to respect for family and private life (4) and of the freedom of expression right (5) stipulated by the European Convention of Human Rights ("ECHR").

   Following the above referenced constitutional provision, the Romanian Constitutional Court has further given this right--via its interpretation thereof (6)--the identity of a fundamental right by opining that although the image right was provided in the Constitution as a limit to the freedom of expression, when corroborated with other constitutional provisions, image right rises to the rank of a fundamental right having thus a certain constitutional identity and an applicability extended beyond the context of issues involving the freedom of expression, the mass media and public communication.

   In addition, several other legislative acts further cement the explicit recognition of the image right:

   The law on copyright and neighboring rights (7) awards copyright protection to a picture taken pursuant to the portrayed person which may be further published or copied by the person portrayed in the picture without the author's consent (i.e., the photographer) if the portrayed person and the author have not agreed otherwise (8). In the case of a portrait, the portrayed person must give consent to any third party use of his/her portrait and the author (i.e., the painter) shall refrain from copying or using the portrait without the portrayed party's consent (9).

   In addition, the law on trademarks and geographical indications (10) restricts from registration (11) those trademarks depicting the image of a person in the absence of that person's consent.

   Finally, the audiovisual sector is perhaps the clearest in regulating image rights: the Romanian Audio Visual Council has clearly stated (12) that any person has the right to her/his own image.

   1.2. Enforcement

   Not surprisingly, given the legislative context briefly described above, in Romania image rights surface to the lime light most frequently in conjunction with freedom of expression limitations. Naturally, the audio-visual sector has been leading the way in terms of image rights disputes. As such, image rights violations are generally disputed in defamation, libel or intrusion into privacy cases.

   Most of the cases in the audio-visual sector arise from the National Council of the Audio-Visual's ("CNA") key role as the entity empowered to guard the public's interests with respect to audio-visual communications. Among other, the relevant legislation sets forth that the CNA bears the obligation to ensure the protection of so-called human dignity and the related image rights displayed in any audio-visual program. Pursuant to this prerogative, the CNA's core function is to monitor the content of audio-visual programs to ensure that no violations of image rights occur. Thus, the CNA has slowly but surely become the main institution contributing to the development of the nascent Romanian case law on image rights.

   In a decision issued in 2006 (13), the High Court of Cassation and Justice (14) endorsed the central role of the CNA as a guarantor of the public's interests with respect to audio-visual communications, and furthermore upheld a sanction imposed by the CNA upon a TV station which allowed an invitee to make unsubstantiated accusations about certain public figures (who were not present during these discussions) during a TV talk show, and thus not complying with its statutory obligations to request that particular invitee to evidence the mentioned accusations or at least to indicate the evidence supporting its statements. The court stated that:

   "The CNA is, according to the provisions of Article 10 paragraph (1) of the Audiovisual Law no. 504/2002, as amended, the guarantor of the public interest in the field of audiovisual communication, and according to the provisions of Article 10 paragraph (3)(e) it bears the legal obligation to ensure the protection of human dignity, an obligation materialized by the enactment and implementation of the Decision no. 248/2004 regarding the protection of human dignity and the right to one's The court further held that:

   "The relevant legislation sets forth a person's right to take legal action if that person's...