Introduction
The Court of Cassation instituted a new case concerning compensation for the publication and use of personal photos on the Internet without obtaining permission access. The Court of Cassation issued a compensation ruling in the famous case known in the media as the “Airplane Cabin” case, which was set up by the heirs of the late civil pilot Ashraf Abu Al-Yusr against the actor Mohamed Ramadan. The incident dates back to October 2019, when Ramadan posted a video clip on his social media accounts as he was flying a plane to Riyadh, next to the pilot, Abu Al-Yusr, without permission or knowledge of the pilot, despite the fact that he asked Ramadan not to publish the photo. Ramadan used the picture in a video clip of one of his songs on social media networks and his YouTube channel, with the intention of making a profit from that. The publication of the photo led to several consequences, including stopping the pilot Abu Al-Yusr from work, preventing him from flying for life, and depriving him of his only source of income, which prompted him to file a lawsuit demanding Ramadan for compensation for the material and moral damages that followed the publication of the photo.
The court relied on compensating the aggrieved party on the interpretation of the text on the protection of private life stipulated in Article 57 of the Egyptian Constitution. It also based its ruling on the Intellectual Property Rights Law as a legal basis for the violation of publication. It is a rare application that carries different precedence over the Intellectual Property Rights Law and is an indication of the absence of clear legal frameworks providing mechanisms for compensating practices that infringe on privacy.
“A person who has made a picture of another may not publish, display or distribute its original or copies without his/her permission or the permission of all those in the picture unless agreed otherwise. However, the picture may be published on the occasion of accidents that took place publicly or if the picture is related to persons of an official capacity, or public, or enjoy local or international fame, or if the competent public authorities allowed this publication to serve the public interest, provided that the display or circulation of the image, in this case, does not prejudice the honor, reputation or esteem of the person. The person represented by the picture may authorize its publication in newspapers and other means of publication, even if the photographer did not allow that unless otherwise agreed. These provisions shall apply to the images, whatever the method in which they were made, such as drawing, engraving, or any other means.”
The text of Article 178 of Law No. 82 of 2002 promulgating the Intellectual Property Rights Law
The ruling of the Court of Cassation renews the debate on the statutory protection of private life and related subjects, particularly in light of the technological evolution and the consequent extensive use of personal data and information in all its forms, and the adequacy of legislative efforts taken in this context. The judgment handed down by the Court of Cassation revealed a major legislative shortcoming in the provision of protection of private life, forcing litigants and courts to expand the interpretation of the articles of the Intellectual Property Rights Law to compensate for damages related to violations of private life.
Existing Legislation is not Sufficient
The constitutional legislator tried to give a character of private life by approving Article 57 of the Egyptian Constitution. But most forms of constitutional protection or what is included in international obligations are largely formal, there aren’t real implications of this right. There is a need to give practical effect to some of the legislation enacted in the context of protecting private life and compensating for damages resulting from exposure to it. For example, the 2020 Personal Data Protection Law is still in progress because of the lack of executive regulations and the composition of the law’s enforcement bodies. There is also a need to improve the legislative environment for private life through integrated regulatory legislation that protects private data, information, etc., and establishes the general parameters of this right.
There are several pieces of legislation relating to the protection of private life, but they are scattered in a number of laws, such as the Penal Code and the Anti-Cyber and Information Technology Crimes Law. Most of the texts adopted in this direction are punitive in nature, with penalties involving deprivation of liberty, and are clearly absent from providing redress and compensation for these practices. This ultimately leads to recourse to the general rules of civil law for compensation for harmful practices, a complex process that requires proof of damage beyond the mere publication or circulation of photographs or the likes, and is subject to the relative discretion of the court hearing the matter.
To illustrate the scattered legislative efforts, examples of criminal protection can be found in the Egyptian Penal Code. The law conferred criminal protection on the sanctity of private life in its various forms, including the right to image, in Articles 309 bis and 309 bis (a); Where the legislator criminalizes taking or transmitting a photograph of a person in a private place with a device of any kind or during a meeting in the hearing or sight of those present at that meeting with the objection of the person being photographed. The legislator established a penalty of up to one year in prison for this crime and hardened the penalty for a public official who, depending on the authority of his/her office, commits this crime to three years in prison.
This criminal protection extends to the offense of publishing, broadcasting, or facilitating a broadcast or the use, even in private, of a recording or document obtained by such means or without the consent of the interested party. The legislator sentenced the perpetrator to up to three years in prison. There is also the crime of threatening to disclose an item obtained in one of the aforementioned ways to induce a person to do or refrain from doing an act, which is punishable by imprisonment for a term not exceeding five years. In addition to the original penalties for these crimes, the court provides for a subsidiary penalty, namely confiscation of the devices used in the commission of the crime, erasure, or execution of recordings obtained from the crime.
With the passing of the Anti-Cyber and Information Technology Crimes Law, criminal protection was extended to illegal information content constituting an assault on privacy in articles 25 and 26. The law criminalizes any violation of privacy, as well as the dissemination, through the Internet or through any information technology means, of information, news, images, etc. that infringes on the privacy of any person without his or her consent, whether the information published is true or incorrect. The offense is punishable by imprisonment for a term of not less than six months and/or a fine of not less than 50,000 EGP and not more than 100,000 EGP.
The Anti-Cyber and Information Technology Crimes Law also makes it a crime to use information software or technology to process the personal data of another person to relate it to content that is contrary to public morals, or to display it in a manner that would harm the person or honor of the other person. The offense is punishable by imprisonment for a term of not less than two years and not more than five years and/or a fine of not less than 100,000 EGP and not more than 300,000 EGP. Although the protection of personal life is widely envisaged in the law, the poor wording of its articles constitutes a significant limitation on its effectiveness.
On the other hand, in addition to the aforementioned criminal protection, the Egyptian legislator recognized the civil protection of the picture right, in compliance with the general rules of liability for personal acts set out in chapter 3, title 1, of the first book of the Egyptian Civil Code, the first of which is Article 163, which states that “every fault which causes harm to others obliges the one who committed it to compensate.”
Detailed rules and criteria for assessing compensation are not provided for by the legislator, but are left to the discretion of the court, as set out in Articles 170, 171, 221, and 222 of the Civil Code. If the purpose of compensation is to alleviate the harm of the violated person and to make reparation for the damage suffered, proof of entitlement to compensation for the damage – whether material or moral – in accordance with these rules has several conditions, including: personal and direct harm to the person, proof of the damage suffered, proof of the amount of damage suffered by legally possible means of proof, whether it is material damage such as that which harm the person’s material integrity, or moral damage such as the harm to the person’s dignity, morality or honor.
The difficulty is to prove damage since the mere publication does not in itself constitute damage, unless there is a legal provision expressly stating that this conduct is not permissible as a civil obligation or constitutes a criminal offense for which a final judgment has been given. For example, it is an offense to take or transmit a photograph of a person in a private place without his or her consent, or if there is a contract that expressly stipulates not to publish, as in the case of a person who hires a professional photographer to photograph them. Material and moral damage is ultimately subject to the discretion of the court, as is the amount of compensation unless provided by contract. The Court of Cassation has already established a principle concerning compensation for moral damage; It states that “the victim must be consoled and provided for rehabilitation, which can only be achieved by proportionating the harm according to the facts of the case, taking account of the circumstances, without exaggeration or profligate making him an unreasonable enrich, and also by neglecting to give him/her less comfort, even leading to abuse by increasing his/her pain and sorrow “. If the court is not in a position to make a final assessment of the amount of compensation, it can reserve the right to request a review of its assessment within a certain period.
Extended Interpretation of the Intellectual Property Rights Law
The claimant, “The plane pilot”, succeeded in obtaining compensation for the publication of his private photographs for various reasons, including serious harm in the form of the termination of his civil aviation service. But the most obvious legal reason may have been that the defendant “actor Mohammed Ramadan” exploited the images of the pilot in some of the artwork that was used on various social media.
The Intellectual Property Rights Law, No. 82 of 2002, gives civil protection to the right to image through Article 178, which regulates the use of private images in business. According to the article, a person who has made another photograph, regardless of the manner in which it has been processed, by drawing, excavation, or any other means, may not publish, display or distribute its original or copies without his or her permission or the permission of all of the photograph, unless otherwise agreed.
The legislator has made a number of exceptions to the rule of inviolability of private images, and these exceptions are listed exclusively:
- First case: If the photo is on the occasion of accidents that took place publicly.
- Second case: If the image concerns persons of official or public status or of local or international renown.
- Third case: If the competent public authorities allow this publication to serve the public interest.
These exceptions are not absolute, provided that the image, or its circulation in this case, does not impinge on the person’s honor or reputation. The Intellectual Property Rights Law, also granted the person represented by the image the right to authorize its publication in newspapers and other publishing even if not permitted by the photographer, unless otherwise agreed.
Court of Cassation and Publication of Private Photos on the Internet
The Court of Cassation ruled in the publicized “Airplane Cabin” case that actor Mohamed Ramadan must pay a total of six million Egyptian pounds in compensation for the material and moral damages caused by the publication of photos. In the course of the case, the Court of Cassation stated that “the examination of legal protection against such threats (dangers arising from the Internet) can only take place through the law and has been developed in this respect by establishing legal rules that protect anyone’s attack on the private life of others through the Internet, as private life has become in most countries of the world a fundamental value worthy of protection, and this value has affirmed Article 57 of the current Egyptian Constitution, stipulating that private life is inviolable, and it is untouchable.” The Court of Cassation linked the protection of private life to Article 178 of the Intellectual Property Rights Law as a legal basis for compensation for infringements of private life. The Court recognized several principles regarding the right to the photo, the interpretation of Article 178 of the Intellectual Property Rights Law, and the extent to which the photo owner is entitled to compensation.
Principles established by the Court of Cassation for the publication of private images on the Internet:
- The right to personal image includes the right to refuse to be photographed and the right to control the exploitation of one’s photo.
- The permission granted by a person to photograph does not include permission to publish the photograph, as the right to the photograph is an absolute right exclusive to the person being photographed and requires his or her explicit consent for the publication and use of the photograph.
- Excluding the presumption of tacit consent that takes advantage of the circumstances by publishing the image.
- The implied permission of the photographed persons must be interpreted narrowly by the courts, with the explicit permission to photograph, publish, distribute, and exploit the image exclusively, as it relates to the scope of each individual’s independence of certain important decisions which, given their characteristics and effects, are more relevant to his or her own destiny and more influential to the conditions of his or her chosen life.
The Court’s interpretation extended to the link between the right to privacy and the right to communicate, obtain and impart information; In its judgment, the court asserted that “the Internet has become a new tool of information and communication and thus a revolution in electronic communication, with this very rapid development of the transmission and exchange of information, the society of the 21st century has become the information society, and in this society, the speed at which information is transmitted in time and space has given way to the freedoms so that everyone living on earth has the right to communicate and exchange ideas and information with each other, and this has been strengthened by the emergence of the right to communicate, access and exchange information not only as a constitutional right but as a human right and fundamental freedoms”.
For the full ruling of the court in Arabic click here
Resources
[1] Article 57 of the current Egyptian constitution issued in 2014, “Private life is inviolable, and it is inviolable. Postal, telegraphic, and electronic correspondence, telephone conversations, and other means of communication are inviolable, and their confidentiality is guaranteed, and they may not be confiscated, accessed, or censored except by order. The state is obligated to protect the right of citizens to use public means of communication in all its forms, and they may not be disrupted, suspended or arbitrarily deprived of citizens, and this is regulated by law.”
[2] Judgment issued by the Court of Cassation at the session 16/03/2022 in Appeal No. 9542 of 91 BC, challenging the ruling issued by the Appeals Chamber of the Cairo Economic Court in the case registered with No. 119 of 12 BC Economic, filed by the heirs of the late pilot Ashraf Abu Al-Yusr against the actor Mohamed Ramadan
[3] Judgment of the Supreme Constitutional Court, session February 5, 1994, Case No. 23 of the “constitutional” judicial year 15 – Judgment of the Supreme Constitutional Court, session January 2, 1999 Case No. 15 of judicial year 18 “constitutional” – Judgment of the Supreme Constitutional Court, session July 8 2000, Case No. 11 of 13 “constitutional” judicial year.