I. PART ONE: Self Image under Mexican Law
A. Issues
There is indeed image rights protection under Mexican laws. However, protection was "framed" over rules without a systematic structure and that have mostly grown apart from doctrinal principles and standards. Protection has been essentially granted by independent statutes that do not talk each other. Sometimes the statutes overlap, are inaccurate or are technically inconsistent. Deepfakes has become a new global problem that has challenged the laws of Mexico and other countries. As they stand, systems do not offer the best legal solutions against deepfakes. This article will analyze if Mexican laws are consistent and strong enough to protect self image or if they need reform.
B. Fundamentals
1. Moral Heritage and Personality Rights
Generally, self image is dual and therefore, divided into pecuniary and personal or moral rights. Initially, the Mexican view is that personal rights are "personalismos" -personal to farther extent-, subjective, non-renounceable and non-transferible. They have developed mainly as an opposition right. Doctrine and jurisprudence include in the definition of personality rights, those related to physical and psychologic integrity of people. All of that represents the moral heritage of persons. Doctrine discusses whether personal rights can be inherited or if they end after the death of the person. The main position is that they cannot be inherited, but sometimes they can be transmitted mortis causa. Image rights are included within the exception.
Mexico subscribes the theories about heritage, as a container of all rights of persons, whether individuals or companies. Heritage is conformed by different kind of goods and assets. Some are tangible and some other intangible; some are strictly personal and some other pecuniary or economical. Image rights and in general, personality rights, are dual. Image rights are a species of personality or moral right. However, they have a pecuniary side also. People trade or brand with identities, whether physical likeness or voice, ideology, believes, life stories or other elements. On the other hand, third parties may trade with the identity of a given person, image being one of its components. Accordingly, self image rights catch a glimpse of commercial expression, outside the strictly personal aspect.
In some way or the other, countries around the world observe and recognize the duality. For example, the US has conceived the figures of right of privacy and right of publicity. Right of privacy is an old legal institution in the US, created to protect individuals against intrusions in their private life, dignity or personal integrity. Appropriation of name and likeness is part thereof. Right of publicity addresses rights of individuals in commercial contexts. It aims at preventing that third parties profit from using the persona of an individual. In particular, it protects celebrities against the non-authorized commercial use of their identity, including name and image. Mexican law mixes personality rights, whether pecuniary or moral, with a commercial right, that is not well defined. The dividing line between pecuniary and commercial is unclear. The statutes involved overlap. Substantive rights are caught in a complex jumble of actions and proceedings. The situation is confusing. Let's embrace why.
2. Recognition of Self Image as Subject-Matter of Protection.
The image of persons can be fixed or reproduced in drawings, paintings, photographs or recordings, that are distributed -published in physical media- or communicated to the public in intangible media. The distributor or disseminator of persons' images or whoever makes them available to the public, as fixed or reproduced, often pursues the making of a profit. On the other hand, individuals whose image is portrayed in pictures want to take control how they are used. They sometimes say yes, with or without asking for payment and thereby, without the need of seeking a license. But sometimes they say no and refuse to grant conformity, for reasons related with their honor or intimacy.
Legal protection starts with the recognition that self image is a human right -a personality or individual right or a special right of identity-. Other rights of identity include the right of honor, privacy, integrity and freedom. The scope of identity rights is thereby far-reaching. International treaties as well as local constitutions protect personal rights, being self image one aspect thereof. For example, the International Covenant of Civil and Political Rights -articles 16, 17 and 19- and the American Convention of Human Rights -article 11-, deal with rights of honor, intimacy and dignity. Self image is not mentioned in any or the treaties, but countries aggregate it extensively.
The Constitution of Mexico addresses personality rights' in at least one provision. Article 6 deals with freedom of expression and provides as an exemption, that an idea or statement as expressed by someone, does not criminally attempt against honor or the intrusion into private life. Like international treaties, the Mexican Constitution does not mention self image as a human right, but still regards it implicitly. Civil law is another form of protecting the self image of people. Personal rights are basically protected by virtue of civil law. An example of that is the figure of moral damage in the Civil Code.
C. Secondary Laws
Self image is directly referenced in two federal and a number of local statutes. The two federal statutes are the Copyright Law and the Federal Civil Code. The local statutes are the local Civil Codes, that govern in each of the states of the Mexican republic. Likewise, the Law of Civil Liability for the Protection of the Right to Private Life, Honor and Self Image, of Mexico City -Law of Civil Liability-, is of local jurisdiction. Some comments about the statutes will follow next.
1. Civil Codes
Right of image is recognized in the civil codes of some states of the Mexican federal republic. In some others, image rights are part of personality rights. However, the Civil Code of Mexico City, that at the same time is of federal jurisdiction, included self image, in the bundle of rights, only after an amendment that Congress made of the Civil Code in the year of 2007. Article 1916 of said statute, as reformed, conceives a personality right action called "moral damage". It actually defines as moral damage, behavior that attempts against the "sentiments, affections, beliefs, decor, honor, reputation, private life, configuration, physical aspects or any consideration that others may have of a person".
From reading the various paragraphs of article 1916 of the Civil Code, it appears that said provision prevents that people are dishonored or discredited or that their private life is trespassed or abused. Self image is protected if by using the same the user offends or defaults someone. On the other hand, it is not protected when used or exploited commercially. Protection is quite limited with respect to substantive rights and legal actions.
As to actions and remedies, article 1916 provides an action for "repairing damages" in virtue of economic compensation of "material" or "objective" sort. The judge has authority to set the amount of the compensation, following standard criteria. In case of actions against honor or private life, the judge can dictate that the infringer publishes an extract of the resolution.
Lastly, article 1916 sets forth an exemption against moral damage actions, when a publisher reproduces information that is accurate or is not responsable for the accuracy of third parties' information. This exemption is a good addition to the article's text.
To view the full article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.