The Law does not prohibit publishing photographs as such; what it prohibits is publishing images in a manner leading to the person being perceived as guilty. The distinction is fine and the consequence is heavy: Article 285/5 of the Criminal Code provides for six months to two years’ imprisonment.
The provision
Article 285/5: “Where images of persons are published during the investigation and prosecution stages in a manner leading to their being perceived as guilty, a sentence of imprisonment from six months to two years shall be imposed.”
The counterweight follows immediately. Article 285/6: “Making the investigation and prosecution proceedings the subject of news without exceeding the limits of reporting shall not constitute an offence.”
How a perception of guilt arises
The paragraph looks less at the content of the image than at its presentation. The elements that typically create a perception of guilt are these:
- Foregrounding footage of the person handcuffed or in police custody
- Pairing the image with a headline asserting certainty — “killer”, “thief”, “fraudster”
- Omitting words such as “alleged” or “suspect”
- Presenting the photograph alongside a dramatised reconstruction of the offence
- Writing in the language of conviction before the trial has concluded
The absolute identity bans apply separately
Even where Article 285 is not engaged, Article 21 of Law No. 5187 may be. In periodical publications and online news sites, the identity of the following may not be disclosed, and their recognition may not be enabled:
| Person | Basis |
|---|---|
| An offender under eighteen | Law No. 5187, Art. 21(c) |
| A victim under eighteen | Law No. 5187, Art. 21(c) |
| Victims of offences against sexual inviolability | Law No. 5187, Art. 21(b) |
| Parties in news on sexual relations between persons prohibited from marrying | Law No. 5187, Art. 21(a) |
For those groups a photograph cannot be published even where it creates no perception of guilt, because the prohibition is directed at identification, not at guilt.
Is blurring enough?
The test in Article 21 is publication “in a manner that discloses their identity or leads to their recognition”. The question is therefore not whether the face is covered but whether the person will be recognised.
- The face is blurred but a tattoo, prosthesis, hair colour or clothing is distinctive.
- The face is blurred but initials and a neighbourhood appear in the caption.
- The face is blurred but the same report shows the person’s home or workplace.
- The face is blurred but the voice has not been altered.
The investigation confidentiality dimension
Where the photograph comes from an investigation file, a separate risk arises. Under Article 285/1 breaching the confidentiality of an investigation in public is an offence; for the offence to be made out, the disclosure of the content of an act carried out during the investigation must infringe the right to benefit from the presumption of innocence, or the confidentiality of communications or of private life, or the disclosure must be capable of preventing the emergence of the material truth.
Personality rights and damages
Civil liability can arise independently of criminal liability. Under Article 13 of Law No. 5187, for pecuniary and non-pecuniary damage arising from acts committed through printed works or online news sites, in periodicals the author of the work together with the owner of the publication and their representative, if any, are jointly and severally liable. Under Article 58 of Code of Obligations No. 6098 a person whose personality right is injured may claim non-pecuniary damages.
The language of innocence is covered in the arrest guide and investigation confidentiality in the confidentiality guide.