Reflections on a Potential Public Violation of the Rights to Honor, Personal and Family Privacy, and One’s Own Image
By Albert Bosque, Founder of ALBOS LAW and DPO certified by the AEPD (Spanish Data Protection Agency)
Andy Byron’s private life is trending on social media after he was filmed hugging his colleague, Kristin Cabot, at a Coldplay concert held in Boston (USA). The footage was captured randomly and spontaneously by attendees during a live segment narrated by Chris Martin himself.
Without intending to pass judgment on the private life of the CEO of Astronomer—which has generated millions of comments and opinions online—I believe that if the concert had taken place in a Member State of the EU, we would be looking at a possible serious violation of the image, privacy, and honor rights of Mr. Byron and Ms. Cabot.
In today’s context—where social media and audiovisual content are on the rise and an integral part of daily life—it has become necessary to more clearly define the scope of the rights to one’s own image and privacy. Personal data protection regulations require, in all cases, the data subject’s consent to capture and disseminate their image. Often, this consent is the only legal basis that legitimizes such data processing, and it must be given expressly, explicitly, freely, and unequivocally through a clear affirmative action, and must also always be revocable.
In this case, if the concert organizers provided a way for attendees to give such consent, and Mr. Byron and Ms. Cabot gave it accordingly, then the recordings would be legally covered. However, if that was not the case—which is quite likely in these types of events—a legal controversy would arise as to whether the organizers were authorized to carry out such data processing without the subjects’ consent.
Related to this is Article 8, Section 2, of the Spanish Organic Law 1/1982, of May 5, on Civil Protection of the Right to Honor, Personal and Family Privacy, and One’s Own Image, which states:
“Two. In particular, the right to one’s own image shall not prevent:
a) Its capture, reproduction, or publication by any means when it involves persons holding public office or practicing a profession of notoriety or public projection, and the image is taken during a public event or in places open to the public.
b) The use of caricatures of such individuals, in accordance with social norms.
c) Graphic information about a public event or incident where the image of a specific person appears only incidentally.
The exceptions outlined in sections a) and b) do not apply to authorities or persons performing functions that, by nature, require anonymity.”
It’s clear that items (a) and (c) could be subject to interpretation in evaluating whether the event organizers had the legal grounds to film attendees without their consent. However, we must ask: Would the VIP box at the Coldplay concert be considered a public place? That’s debatable. What is indisputable, however, is that the recordings were intended to feature the concert attendees as main subjects, directly affecting their personal image—not incidentally, as would be the case if a wide shot of the crowd happened to include Mr. Byron and Ms. Cabot embracing among many others.
When the camera intentionally focuses on individuals—who, in this case, do not have public roles or professions that would inherently make them public figures—they shift from being anonymous to fully identifiable individuals, at least within their circle of acquaintances. And based on available information, that circle appears to be large.
In my opinion, what constitutes the violation of Mr. Byron and Ms. Cabot’s image rights (and consequently, their rights to honor and privacy) is precisely the targeted nature of the recording—which made them the focal point of spontaneous, unexpected footage, presumably captured without consent, and in which they were the only ones present. Worse still, the footage revealed personal information that they clearly did not wish to make public.
The impact of the incident in the media and on social networks, in this hypothetical scenario, would likely increase the compensation amounts Mr. Byron and Ms. Cabot’s legal representatives could claim from Coldplay’s event organizers for the violation of their fundamental rights. This would be in addition to the possibility of a hefty fine imposed by the relevant data protection authority in the EU Member State where the violation might have occurred.