The online publication of the image of a minor without the parents’ consent does not, in itself (in re ipsa), entitle the claimant to compensation for non-pecuniary damage. Pecuniary damage, however, is compensable pursuant to Article 2056 of the Italian Civil Code in conjunction with Article 1223, where the image has been used - even by a non-profit entity - for promotional purposes, as such conduct constitutes an economically valuable exploitation of the image.
In a decision dated 20 January 2026, the Italian Supreme Court upheld the appeal brought by the parents of a young girl whose image had been published on the website and Facebook profile of a non-profit organisation.
The lower court had observed that - while acknowledging the unlawful nature of the publication carried out in the absence of the parents’ consent - the appellants had nonetheless failed to prove that they had suffered any detrimental consequences. On the one hand, the existence of non-pecuniary damage had to be excluded; on the other, no pecuniary damage (potentially compensable through payment of the so-called “price of consent”) could be recognised, since the defendant association had not used the girl’s image with the aim of pursuing particular commercial purposes.
Regarding the issue concerning the refusal to award non-pecuniary damages, the Supreme Court confirmed the decision of the appellate court. Non-pecuniary damage cannot be considered implicit in the mere commission of the unlawful act (the so-called damage in re ipsa), and the applicants had not adequately demonstrated the occurrence of appreciable non-pecuniary harmful consequences, “considering that the photograph is in no way offensive to the dignity of the minor; that its presence on the Association’s website was brief; and that the image was, in any event, easily available online because it had been reproduced on other websites.”
Conversely, the Supreme Court deemed well-founded the applicants’ ground of appeal concerning the refusal to award compensation for pecuniary damage. On this point, the appellate court had held that, according to established case law, recourse to the criterion of the so-called price of consent - consisting in transferring back to the rights holder the economic advantage that the author of the unlawful act has wrongfully appropriated - “may be adopted by evaluating the type of broadcast in which the image appears and, above all, whether ‘advertising or entertainment purposes’ exist and whether the ‘abusive exploitation of another person’s image for primarily commercial ends’ can be identified” (Cass. No. 11768/2022). In the present case, the court had considered that such circumstances were absent because the publication had occurred on a website that did not pursue commercial purposes.
The Court of Cassation held, however, that the meaning of that precedent had been misconstrued. The legal principle laid down in that decision did not require the award of pecuniary damages (to be measured according to the so-called price of consent) to depend on whether the website operator on which the unlawful disclosure of another person’s image had occurred pursued commercial purposes. The Court further clarified that the decision states that “the unlawful publication of the image of a non-famous person gives rise to compensation also for pecuniary damage which, where it is not possible to demonstrate specific heads of loss, may be quantified in the amount corresponding to the remuneration that the injured party would presumably have requested in order to grant consent to the publication. Such amount is to be determined equitably with regard to the economic advantage obtained by the author of the publication and to any other relevant circumstance, considering the criteria set out in Article 158(2) of Law No. 633 of 1941.”
Through that ruling, the Court of Cassation had confirmed a judgment on the merits which had denied pecuniary damages to an individual who, without consent, had been filmed for only a few seconds within a television broadcast, on the ground that the person concerned could not have obtained any remuneration for consenting to the airing of those images. Thus, the refusal of compensation confirmed in that case was justified not by the fact that the person who had unlawfully used the image did not carry out a commercial activity, but rather by a series of evaluative factors excluding the existence of any appreciable damage suffered by the person depicted. Indeed, owing precisely to the specific circumstances of that exposure, the individual concerned could not realistically have expected to receive any form of remuneration.
In the case under examination, by contrast, the contested conduct consisted in the display, for nearly three months of the face of a crying minor (whose symbolic meaning was therefore exploited), used with the aim of attracting public attention. Such use results in economic loss for the holder of the image rights, with the consequent unavoidable obligation for the wrongdoer to pay compensation.