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Image rights refer to the commercial use of someone's image, voice, likeness, name or signature. They have become a common trait of the contemporary media economy and are strongly protected and policed by leading celebrities and their agents. The concept of image rights opens up wider philosophical questions around intellectual property that have a direct impact on the political economy of the media. Despite the concept of image rights gaining purchase within the entertainment industries, there is no legislation that recognises a statutory right of an individual to control the commercial use of their image. This chapter examines the inroads into media rights that have been made by, or on behalf of, leading entertainers and sports stars. It first discusses the philosophy of image rights and trademark law providing monopoly rights to personalities. It then considers the common-law tort of ‘passing off’ and sports-star endorsement, and legal means to protect the commercial worth and privacy of celebrities.

Chapter 4 argues that the South African actio iniuriarum is most unlikely to form a good guide to the formation of the structure of personality rights in Scots law though it may provide examples of their content. It also rejects the former English strictly incremental approach of extending existing torts or equitable wrongs to meet new situations. Instead the Scottish courts should acknowledge expressly that privacy is a protected interest in the Scots law of delict.This would provide “a solid basis for constructing a taxonomy of privacy interests, directly informed by jurisprudence in other jurisdictions bound by the ECHR”. It would also assist us “to articulate clearly how other considerations should be weighed against privacy – issues of legitimate public interestand, such as freedom of expression under Art 10 ECHR”. This would be consionant with the general nature of the Scots law of delict which avoided the forms of action,which is rights-based, and which bases specific categories of delict on general principle. The list of protected rights would exceptionally be further developed if required by cogent reasons. There is little historical basis in Scots law for the kind of structural difficulties which have restricted English law to protection of informational privacy only. If other aspects of private life are worthy of protection under ECHR, Art 8 the inherent flexibility of the Scots law of delict would allow a remedy to be found.

This chapter explores the legislative interface between data protection and the professional journalistic media under the Data Protection Directive (DPD) and then examines the formal regulatory guidance produced by European Data Protection Authorities (DPAs) during the same period. Despite the DPD’s emphasis on ensuring a careful balancing between equally fundamental rights, statutory provisions at State level were profoundly divergent. In broad terms, Northern European States tended to grant journalism sweeping exemptions from data protection, whilst Southern and Eastern European States set down tough standards even in this sensitive area. These media system differences mapped on to broader cultural fissures concerning individualism, uncertainty avoidance, and attitudes towards power inequalities. In the great majority of cases the national DPA retained a supervisory role in this area and over 60 per cent of these bodies, as well as the Article 29 Working Party, had published some statutory guidance. However, this guidance was often confined to a brief elucidation of the importance of contextual rights balancing coupled, in a number of cases, with an emphasis on promoting a co-regulatory connection between statutory supervision and self-regulation. A minority of DPAs did produce much more extensive guidance focusing especially on children’s rights over data, image rights and visual/audio-visual content, and the right to be forgotten and digital news/media archives.

This chapter explores both the statutory law applicable and the regulatory approach taken to the activity of professional artists and writers outside journalism under European data protection as it developed until the end of the Data Protection Directive (DPD) era. It is found that no pan-European data protection instrument prior to the DPD addressed this interface and such a lacuna was also reflected in the majority of first-generation data protection laws adopted at State-level. In contrast, the DPD provides special (but not absolute) derogations not just for ‘journalistic purposes’ but also for ‘literary and artistic expression’ and this was reflected in the second-generation laws of approximately two-thirds of European Economic Area (EEA) States. Despite falling within data protection’s scope, Data Protection Authorities (DPAs) have generally avoided addressing these actors’ positions. In the early period, the Swedish DPA proved a partial exception to this by publishing guidance on media created on CD-ROMs and even attempted to set license conditions for the use of a computer to produce a book manuscript. Under second-generation data protection, both the Italian and Maltese DPAs issued some specific guidance and the Italian and Slovenian engaged in concrete enforcement. These interventions pointed to a lack of consistency as regards applicable norms. Thus, whilst the Italian DPA crafted a deferential approach based on contextual rights balancing, the Maltese and Slovenian DPAs developed a much more peremptory and restrictive perspective at least as regards photographic images.