When the public is content: risks of reusing images

In this forum, Julia Martínez Zaragoza, lawyer in Bardají & Honrado Abogados, is based on a recent ruling by the European Court of Human Rights that involved the Portuguese SIC to address the use of images of the public in different audiovisual formats, a complex area that television stations and production companies must address with special attention.

In recent years, the television and live entertainment formats —such as theater or monologues— have evolved towards models in which the public stop being a mere spectator to become active part of the show. Their reactions, applause and spontaneous interventions not only accompany the content, but, in many cases, they build.

However, this growing integration of the public is not free of legal implications. The real risk is usually not in the recording itself, but in the subsequent use of those images, especially when reused with promotional purposes.

In this context, a key question arises: if the public participates and is recorded as part of the format, doesto what extent these images can be used outside that original framework? This is where the distinction between promotional use becomes relevant in context y out of context of images, a concept known in other areas - such as sector musical, where it is used to delimit the use of musical works in audiovisual productions—, but which in this context acquires own nuances

The case of the Portuguese SIC

A recent ruling by European Court of Human Rights, in the case SIC – Sociedade Independente de Comunicação, S.A. against Portugal (No. 2) sheds light on this issue and establishes a precedent on the matter. The case in question concerns a monologue which took place in a theater in Lisbon, which was recorded for later broadcast in television and made available to the public through internet.

At the entrance to the auditorium, recording notices, and the comedian himself also remembered it when start of the show. However, following a series of comments, two angry assistants Because of the comedian's comments, they got into a fight. heated discussion with him as they left the room.

The real risk is usually not in the recording itself, but in the subsequent use of those images, especially when reused with promotional purposes.

Subsequently, the discussion was included in a documentary series about the comedian's career and, in addition, it was used as promotional material for said series, spreading through the television and in YouTube. The attendees, who felt humiliated and ridiculed, requested the removal of the images from the network, which declined all responsibility. Therefore, they sued the chain and the resolution in the first instance considered that the tacit consent (derived from attending an event that was being recorded) was enough and that the network acted in good faith. However, the determining element did not reside in the initial capture of the image, but in its later use, decontextualized and with a promotional purpose compared to the original show.

The attendees appealed the resolution, and the Supreme Court Portuguese revoked the decision. He sentenced the company to compensation of 40.000 € and to remove the images, arguing that, although there could be tacit consent to be recorded as part of the audience during the show, this did not extend to the editing and use of their image out of context, especially in a promotional video that portrayed them in a negative light. For this purpose, a express and unequivocal consent.

Now, the European Court of Human Rights (ECHR) has proven right Portuguese Supreme Court and although it recognizes the right to freedom of expression - as the defendant had alleged -, in this case the right to privacy and to the own image of the attendees.

The regulatory framework in Spain

The decision of the ECtHR is perfectly aligned with the protection granted by the Spanish legal system, both in its current state and in the direction indicated by future reform. The protection of image and privacy is protected by our regulations, mainly through two means:

The fundamental right to one's own image: Regulated in the “Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy and one's own image”, establishes that the capture or publication of the image of a person without their consent constitutes an illegitimate interference. Although Article Eight of the Law contemplates some exceptions (accessory image in public events, for example), Spanish jurisprudence is clear in interpreting these exceptions in a restrictive manner. For its part, the Draft Reform of this Organic Law approved last January 2026 reinforces and adapts this protection to the new currents and to the reality of the sector, maintaining its fundamental principles.

On the other hand, and as has already been analyzed in previous forums, a person's image is personal data, since it makes it identifiable. Therefore, any treatment (recording, editing, broadcast) must have a valid basis of legitimation and processed for a specific and legitimate purpose, in accordance with applicable regulations.

This standard, however, not easy to translate into practice. Live entertainment formats are nourished precisely by the spontaneity and the unpredictable reaction of the public, which makes it difficult to anticipate and limit all the possible uses of the images.

Live entertainment formats are nourished precisely by the spontaneity and the unpredictable reaction of the public, which makes it difficult to anticipate and limit all the possible uses of the images.

Added to this is the commercial logic of the sector, where the content reuse —especially the most striking or controversial ones— is a regular part of the promotion strategy. In this context, the demand for a specific consent for each possible exploitation introduces obvious friction between the creativity, commercial exploitation and respect for fundamental rights.

Finally, it is important to mention that this greater flexibility is typical of the formats in straight, and, therefore, loses part of its justification when the content is subjected to a editing process, in which there is the possibility—and, in certain cases, the expectation—of eliminate those more controversial or potentially harmful images before dissemination or reuse.

Some keys for the sector

In light of regulations and jurisprudence, relying on a simple cartel at the entrance to the recording location or in the tacit consent is insufficient to cover all subsequent uses of the recordings. In this sense, some key ideas can be highlighted:

The consent It is not an abstract or unlimited concept..
The information provided to the public must be consistent with the effective use of images, and it must be avoided that the information becomes a mere formal procedure.
The content reuse —especially for promotional purposes— constitutes the main legal friction point: not all promotional use is problematic, but it is one that alters the original context or projects an image different from what the attendee could reasonably foresee (that is, one that is carried out “out of context”).
When a person stops being an accessory element and begins to occupy a protagonist role (for example, in conflictive or especially exposed situations), the protection standard intensifies and the margin of use is significantly reduced.

Beyond these guidelines, the real critical point lies in the distinction between use in context y out of context of the images. The recording of a spectacle impliesIn principle, the acceptance of being part of that specific context (use in context). However, when these images are extracted, edited or reused in different environments - such as promotional campaigns, trailers, documentaries or digital content - the use can become out of context, even though materially comes from the same recording.

How much The greater the public's prominence, the greater the risk of instrumentalizing their image..

In practice, this distinction is usually be perceived as a minor issue within the daily dynamics of production. However, as the case analyzed demonstrates, the lack of clarity on this point can have relevant legal consequences. Precisely for this reason, anticipate these scenarios y precisely define the limits of use It is not only a recommended precaution, but an effective tool to avoid future conflicts.

The SIC case c. Portugal not only sets a limit at a legal level, but also shows a structural tension in the sector: how much The greater the public's prominence, the greater the risk of instrumentalizing their image.. Assuming this tension—and managing it with solid legal criteria—will be key to the sustainable development of these formats.