Court of Appeals Ruled in Favor of PARESA in Lawsuit on the Use of a Football Fan’s Image in a COCA-COLA Commercial
August, 2019 - Paraguay
| Vouga Abogados has had the opportunity to represent the firm PARAGUAY REFRESCOS S.A. (PARESA), Coca-Cola’s franchisee in Paraguay, in a lawsuit against it on moral damages and emerging damages for an alleged non-consensual use of the image of a person in an advertisement. The First Chamber of the Civil, Commercial and Labor Court of Appeals of the Central Jurisdiction confirmed the decision of the Civil and Commercial First Instance Court of the city of San Lorenzo, which had already ruled in favor of PARESA, rejecting plaintiff's allegations (first instance decision: S.D. No. 11/2015; second instance decision: Ac. y Sent. No. 147/2019). The plaintiff claimed an alleged lack of authorization for the reproduction of his image in a football stadium in a commercial, which, he argued, resulted in moral damages to him due to an alleged violation of his privacy. Both the First Instance Court and the Court of Appeals considered that it is true that the use of a person's image–apart from the exceptions foreseen by law—is protected by law; however, it is also true that, when analyzing the issue, the particularities under which the facts took place should be taken into account. In both instances, it was taken into consideration that consent is necessary to place in the market the picture of a person, except for the exceptions set forth in the law, e.g., the publication of the portrait for scientific, didactic or cultural purposes or those carried out in a public event. In this sense, both courts agreed with the argument of Vouga Abogados on the interpretation of the facts and the relevant rules of the Paraguayan Civil Code and the Consumer Protection Law. The plaintiff attended a football match of the “Copa America” between Paraguay and Venezuela in the city of Salta, Argentina. On the back of the ticket, it was stated that the attendance to the event implied the unconditional acceptance of the terms, among them, that images/photos taken in the event could be used and distributed without any cost and without limitation of use. The plaintiff acknowledged that his image was televised and reproduced by the media after the game. Considering that the image/photo of the plaintiff was used by Coca Cola brand –official sponsor of the Paraguayan national football team and also a global sponsor of the event "Copa América Argentina"-, the Court of Appeals judged the commercial under question fell within the scope of the terms set forth in the ticket. Likewise, this advertisement, in accordance to the slogan used referring to sports, makes clear the image took place within the framework of a public sport activity. The latter should also be interpreted as a public event; thus, it is not necessary the consent to use the image/photo. In conclusion, both the Court of First Instance and the Court of Appeals judged that there was a tacit consent of the plaintiff; hence, no damages could take place. Both decisions focused on issues and regulations on the contracts of adherence and consumer protection. The attorneys Mirtha Dos Santos and Elio Aguero successfully intervened in this process on behalf of PARESA. |
