The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Joseph A. Filletti and Mr Justice Geoffrey Valenzia, in the case Patricia Vella vs Marion Mizzi and Corinthia Palace Hotel Co. Ltd, on January 31, 2011, held, among other things, that once Patricia Vella accepted to be photographed without any conditions, and on the understanding that her photos ­– which were commissioned by the hotel – would be used for purposes of publicity, she could not now claim that her right to privacy had been violated by the publication of these photographs by a third party.

The facts in this case were as follows:

Patricia Vella worked for over 13 years with the Corinthia Palace Hotel Co. Ltd in the beauty salon at San Ġorġ Hotel. As an employee she posed for photos, which were to be used by the hotel in advertising brochures to market the Apollo Club, which she effectively ran at the hotel.

She imposed no reservations or conditions on the use of these photographs, which remained the exclusive property of the hotel. The photographer was also an employee of the hotel.

It so happened that the hotel in due course entered into a concession agreement with Marion Mizzi, whereby it transferred the beauty parlour to the company Myoka Ltd, which was managed by Ms Mizzi.

The company forthwith terminated Ms Vella’s employment, on the understanding that she would be re-engaged by Ms Mizzi. Ms Vella, however, was not re-instated after the hand-over to Ms Mizzi. The hotel also passed on to Ms Mizzi all promotional material relating to the Apollo Club, including the photographs of Ms Vella. When Ms Mizzi started to promote her salon, her advertising brochures included pictures of Ms Vella.

Ms Vella objected, however, to the publication of these photographs without her consent or authorisation. She claimed that the use of the photos without her consent was in violation of her rights.

Faced with this situation, Ms Vella proceeded to file legal proceedings against the hotel and Ms Mizzi. She requested the court:

1. To declare that the hotel and Ms Mizzi acted abusively and in violation of her rights;

2. To order the defendants to stop using her image on advertising material and to order the destruction of such brochures, which contained her photograph;

3. To declare defendants to be responsible for damages; and

4. To liquidate the damages and to condemn defendants to pay her damages.

The Corinthia Palace Hotel Co. Ltd, in reply, contested liability, on grounds that Ms Vella suffered no damages in the circumstances.

Ms Mizzi also disputed responsibility and submitted in her defence that:

1. She was incorrectly sued. She denied having any legal relations in her personal capacity.

2. Ms Vella had consented to the publication of her photos. It was stated that Ms Vella herself had organised the photo shoots; that she was well aware that these photos would be published to advertise the beauty parlour at the hotel.

Ms Mizzi in addition informed the court that, as from July 2002, new brochures were published which did not contain the photos in question. In this respect the merits of this case were no longer an issue.

Ms Mizzi contended further that Ms Vella failed to indicate the nature of the damages, which she allegedly suffered as a result of the publication of the photographs. For these reasons she asked the court to reject Ms Vella’s requests.

On October 15, 2008, the First Hall of the Civil Court declared that the publication of the photos were unlawful and in violation of Ms Vella’s rights.

The court declared Ms Mizzi to be responsible but abstained from deciding the claim for damages.

The First Hall of the Civil Court made a number of considerations:

1. It had not been proven that Ms Mizzi was not a legitimate defendant in this case.

2. The court said that, although the photos were commissioned by the hotel, this did not mean the hotel had the right to use these photos without any restraint and in its absolute discretion. The court was of the opinion that the hotel had no right to assign these photos to Ms Mizzi without Ms Vella’s consent.

3. The fact that Ms Vella had originally agreed to pose for the photos did not mean that she consented a priori to other persons to publish her photos in promotional material.

4. The First Hall of the Civil Court found that the defendants acted incorrectly and in violation of basic principles of protection of data, as safeguarded by chapter 440 of the Laws of Malta. The court noted, however, that Ms Vella failed to prove that she suffered damages. It said that it would abstain from deciding her claim for damages owing to lack of proof. The law did not permit moral damages in this case.

5. The First Hall of Civil Court held Ms Mizzi to be responsible for damages. Ms Mizzi knew that at the time she used the photos of Ms Vella, Ms Vella was no longer an employee of the hotel.

Aggrieved by the decision of the first court, all parties entered an appeal. Ms Vella put forward the argument that the First Hall of the Civil Court should not have abstained from deciding the question of damages. It should have liquidated the damages on an artbitrio boni viri basis and condemn Ms Mizzi to pay the damages which it liquidated.

Ms Mizzi pleaded on appeal that the First Hall of the Civil Court should have accepted her line of defence. She reiterated her pleas that

1. She was not the legitimate defendant;

2. Ms Vella had freely participated in the preparation of the brochures and only protested after her employment was not re-instated.

3. The court should have dismissed her claim for damages and not simply abstain from taking a decision.

The hotel, in addition, agreed with the decision of the first court insofar as it was not found to be responsible for damages. It, however, contested violating her rights.

On January 31, 2011, the Court of Appeal gave judgment by revoking the decision of the First Hall of the Civil Court. It accepted both the hotel’s and Ms Mizzi’s appeal, save for her plea that she was not a legitimate defendant. The following reasons were given for the court’s decision:

1. Ms Mizzi should have produced evidence that she was not correctly sued before the First Hall of the Civil Court. It said that it clearly appeared from the disputed brochures that she operated the beauty salon in her personal capacity.

2. At issue was whether Ms Vella had exclusive co-author rights in the photographs. Reference was made to Holyoak & Torremans, Intellectual Property Law which stated that “when someone commissions a photograph, the photographer gets the ownership of the copyright as creator of the work. He or she can use the negatives for all kinds of purposes and does not need the consent of the commissioner. This can be undesirable if the photograph is commissioned for private and domestic purposes”.

A person who commissioned the photos could impose conditions or make reservations on the use of the photos. “The right to privacy grants the commissioner some protection in this respect. The commissioner had the right not to have the copies of the photographs issued to the public, nor have them exhibited in public, and not to have the photograph included in a broadcast. The term of the right (to privacy) is equal to that of the copyright in the photograph”.

The court was of the opinion that Ms Vella accepted to be photographed without any conditions and on the understanding that her photos would be used for purposes of publicity.

It said that she could not therefore claim that her right to privacy had been violated. The photos in question were not covered by data protection when she had freely consented to pose for photos, to be used in advertising material.

She did not have rights under Chapter 488, The Industrial Property Act. The photos, as “an artistic work” (under article 2 (1) of Chapter 415), were commissioned by the hotel.

The principle here was that “when the creator is an employee and has created the work in execution of his duties, many copyright laws provide that the employer, often a company, will at some point become the owner of the rights. This involves asking first whether the work which was done was the kind of work which the employee was engaged to do and, if it was, whether the work was in fact done in the course of that employment at all. An employee may often do things for his employer which he is not expressly contracted to do. Even so, where the work is done during working hours or is for the employer’s request, it may not be difficult to conclude that it falls within some general or implied term relating to the scope of his employment.”

The court pointed out that the hotel had rights as author of the photos. It had the right to freely use the photos in the absence of any conditions/reservation by Ms Vella.

The court also took into account that Ms Vella initially had not objected to the publication of her photos in the brochure and it was only after she had not been re-employed by Ms Mizzi that she began to protest to the use of the photographs by Ms Mizzi.

Dr Grech Orr is a partner at Ganado & Associates.