A company is using your photo in its advertising without consent

The case, in five lines

What is brought

An action for civil protection of the right to one's own image under Organic Law 1/1982 against its unauthorised use in advertising (Article 7.6), seeking a declaration of the interference, cessation and removal, a ban on further use, compensation for non material and economic harm and recovery of the profit obtained.

Before which court

The civil section of the Tribunal de Instancia (the first-instance court) for the place where you live, through the ordinary action whatever the amount, with the Ministerio Fiscal (the Public Prosecutor's Office) as a party and with priority. There is no requirement first to try an appropriate dispute resolution method: Article 5.2.a) of Organic Law 1/2025 exempts civil judicial protection of fundamental rights.

Deadline

A four year lapse period running from when you were in a position to bring the action, which in practice means from when you knew or could have known of the ad (Article 9.5 of Organic Law 1/1982). It is not interrupted by letters or by a complaint to the AEPD (the Spanish Data Protection Agency), and each separate campaign or medium has its own starting point.

Who can bring it

Claimant: you as the person portrayed; if you are a minor without sufficient maturity, your legal representatives, and in any event the Ministerio Fiscal (the Public Prosecutor's Office). Defendants: the advertising company exploiting the image and, where involved, the agency that designed or ran the campaign, which are sued together.

Financial risk

If the court finds that there was consent, that you are not recognisable or that an Article 8 exception applies, the claim is dismissed and you may be ordered to pay costs. If the interference is declared but the amount claimed is cut substantially, each side usually bears its own costs. Harm is presumed, but its amount is set by the court.

What decides the case is not the harm but whether you consented

Article 7.6 of Organic Law 1/1982 classes as unlawful interference the use of a person's name, voice or image for advertising, commercial or similar purposes. It does not require the ad to be offensive, the photo to harm you or the company to have made money from it. A flattering, well framed image used in a modest campaign is still an interference if you did not authorise it for that purpose.

The company's only way out is Article 2.2: there is no interference where the holder of the right has given express consent. Express means express. Consent cannot be inferred from the fact that you posed, that the photo was openly posted on your social media or that you did not object when you saw it. The Tribunal Supremo (the Supreme Court) reads that consent restrictively: it covers the use, the medium and the period for which it was given, and nothing more. It is the company that alleges you consented, and it is the company that has to prove it.

What you do have to show is that the image identifies you. If the ad shows you from behind, out of focus or without recognisable features, there is no protected image to defend. If you can be recognised, even with the photo cropped or retouched, there is. That is why the message from the person who recognised you and told you is worth far more than it seems: it proves at once that you are identifiable and that the ad reached the people around you.

«We bought it from a stock agency»: paying the photographer is not paying you

It is the most common defence and the weakest. Whoever takes a photograph holds intellectual property rights over it: even where it is not a creative work, Article 128 of the Intellectual Property Law gives the photographer the exclusive right to authorise its reproduction, distribution and public communication for twenty five years. That is what a stock agency sells. What it cannot sell is your right over your own face, because that right does not belong to it.

Article 1.3 of Organic Law 1/1982 declares the right to one's own image incapable of waiver, inalienable and not subject to limitation, and any waiver of its protection void, without prejudice to consent under Article 2. A licence bought from the photographer covers the photograph as an object; using it in advertising also requires the authorisation of the person portrayed, what the industry calls an image rights release or model release. If that authorisation does not exist, the company answers to you, and whatever it has to argue with the stock agency it will argue with the agency afterwards.

The picture changes if you did sign something: a modelling contract, a release at a paid shoot, a clause in your employment contract. The dispute then shifts to what exactly you authorised. Consent may be revoked at any time under Article 2.3, but compensating the loss the revocation causes, including the other side's justified expectations. That is why, before revoking, what you signed is read and what it could cost you is worked out: a badly handled revocation turns the victim into the debtor.

The Article 8 exceptions serve to inform, never to sell

Article 8.2 allows the image of people holding public office or a profession of public standing to be captured and published when taken at a public event or in a place open to the public, the caricature of such people in line with social custom, and graphic reporting of a public event where a person appears merely incidentally. All three share an informative or social purpose. None of them covers putting someone in an advertisement.

The Tribunal Supremo has held that the right to one's own image may yield to the right to information, but not where the aim is the advertising or commercial exploitation of a third party's image without consent, and that if the person is well known the interference is more intense, not less, because their image has a value the company is appropriating. Being out in the street when the photo was taken changes nothing either: Article 7.5 treats as interference the capture and publication of a person's image in places or moments of private life or outside them, save for the cases in Article 8.2.

More contested ground is photos taken at events organised by the company itself (an opening, a sponsored race, a class at its gym) with a clause in the registration form or on the ticket stating that, by entering, you authorise filming and distribution. The more generic, the less visible and the further from advertising that clause is, the less it holds up as express consent to a campaign. The actual wording is examined, together with when it was shown to you and what use it was drafted for.

Compensation is claimed head by head, and profit is no longer in Article 9.3

Article 9.3 provides that harm is presumed whenever the interference is established, and that compensation extends to non material harm, assessed by reference to the circumstances of the case, the seriousness of the injury actually caused and the reach or audience of the medium. Once the ad and the lack of consent are proved, you do not have to show that you suffered: the argument is about how much, not whether there was harm.

What many pleadings still copy wrongly is the infringer's profit. The wording before the 2010 reform listed it among the criteria for non material harm; the current wording takes it out and makes it a remedy in its own right, the recovery by the injured party of the profit obtained through the interference, in Article 9.2.d). Alongside it sits compensation for loss under point c), which in advertising has a clear economic side: courts tend to measure it by what the company would have had to pay for an equivalent image licence.

These are separate heads and each needs its own basis. Non material harm rests on reach, duration and what the ad says about you: if it presents you as a patient, customer or satisfied user of something you never used, the injury is more serious. The licence price is proved with a market expert report. The profit requires campaign data that only the company holds. They are framed so that they do not overlap, because the court will not pay the same gain twice, and they are all claimed: what is not in the claim is not awarded.

A four year lapse period and a court in your own town

Article 9.5 provides that actions against unlawful interference lapse four years after the person entitled was in a position to bring them. This is a lapse period: it is not interrupted by letters, formal demands or complaints to the AEPD (the Spanish Data Protection Agency), and the court may apply it even if the company does not raise it. If the ad is still online there are arguments that the interference is continuing, but that is contested ground: the prudent count starts on the day you saw the ad or could have seen it. And each separate campaign or medium is a use with its own clock, so part of the case may have lapsed while another part is still alive.

The claim is filed before the civil section of the Tribunal de Instancia (the first-instance court) for the place where you live, even if the company is in another province: Article 52.1.6 of the Civil Procedure Act sets that venue for civil protection of fundamental rights. It proceeds as an ordinary action whatever the amount, with the Ministerio Fiscal (the Public Prosecutor's Office) as a party and with priority, under Article 249.1.2. There is no need first to try an appropriate dispute resolution method, because Article 5.2.a) of Organic Law 1/2025 exempts civil judicial protection of fundamental rights. If you also claim sums under an image licence contract (for example, a fee agreed and not paid), that contractual part does not enjoy the exemption as clearly, and the prior formal demand is drafted so that it also counts as negotiating activity.

Two situations change the court. If the party using your image is your employer and the use arises from the employment relationship, the Social Jurisdiction Act gives the social (employment) section of the Tribunal de Instancia jurisdiction over the protection of fundamental rights connected with the provision of services, under its own rules; once you have left the company the boundary is debated, and it is studied before anything is filed. If the company is in another EU Member State, Article 7.2 of Regulation (EU) 1215/2012 allows you to sue where the harmful event occurs, and the Court of Justice of the European Union accepts that a victim of an online infringement of personality rights may claim the whole harm where their centre of interests lies.

The evidence that wins the case disappears the moment you write

A company's first reaction to a formal demand is to take the ad down and deny it ever existed. That is why the evidence is secured before any call or email. A plain screenshot is easily challenged; what holds up is a capture certified by a trusted third party, with a time stamp and a digital fingerprint, or a report from an IT expert documenting the web address, the date, the profile publishing it and the browsing path. If there is physical material, copies are kept and the banner is photographed with date and location.

What hardly anyone uses is the ad repository kept by the large platforms. Article 39 of the Digital Services Regulation requires very large online platforms to keep a public record of the ads they present, for the whole time they are shown and until one year after the last time, with the ad's content, the person on whose behalf it is presented, who paid for it, the period it ran and the total number of recipients reached. It proves both the reach and the identity of the advertiser, and it should be downloaded and certified while it is available.

The rest of the reach is in the company's hands: campaign spend, impressions, leaflet print runs, sales of the advertised service. It is requested in the claim through the disclosure of documents that the Civil Procedure Act allows against the other party, and an unjustified refusal counts against whoever makes it. Added to that are the photo's trail (who took it, where it first appeared, what licence the stock agency sold) and the witnesses who recognised you, who establish both identification and reach.

How we run the case, step by step

1. 1

   Secure the evidence before alerting anyone

   Every appearance of the ad (profile, sponsored ads, website, physical media) is certified with a time stamp and the entry in the platform's ad repository is downloaded. Until that is done, the company is not contacted.

2. 2

   Trace where the photo came from and what you signed

   We establish who took the photograph, where it was first published and whether any document bears your signature: a model release, an event registration, an employment contract. That determines whether the case is one of use without consent or of going beyond what was authorised.

3. 3

   Demand cessation, removal and erasure

   A formal demand to the company, and to the agency if there is one, requires the image to be removed from every medium, never used again and your data erased, within a short deadline. If there are contractual claims, it is drafted so that it also counts as an attempt to negotiate.

4. 4

   Seek interim cessation if the campaign continues

   If the company does not withdraw the ad, the court is asked to stop it as an interim measure, with the claim or earlier if the matter is urgent: Article 9.2 provides for that protection and Organic Law 1/2025 does not require a negotiation attempt to seek it. A complaint to the AEPD (the Spanish Data Protection Agency) can be filed in parallel.

5. 5

   File the claim before the four years run out

   It is filed before the civil section of the Tribunal de Instancia (the first-instance court) where you live, seeking a declaration of the interference, cessation, a ban on future use, non material harm, economic harm and the profit obtained, together with disclosure of the campaign data.

6. 6

   Enforce and watch that the image does not reappear

   With the judgment in hand, removal is checked across every channel, including copies on distributors' websites and third party profiles the company passed it to. Any later use breaches the ruling and is taken to enforcement.

The law that applies

• Art. 7 LO 1/1982. It lists the unlawful interferences. Paragraph 5 covers capturing, reproducing or publishing a person's image in places or moments of their private life or outside them, save for the cases in Article 8.2; paragraph 6, the use of a person's name, voice or image for advertising, commercial or similar purposes. BOE-A-1982-11196
• Art. 2 LO 1/1982. Protection is defined by the law and social custom according to the sphere each person keeps to themselves. There is no interference where the law expressly authorises it or the holder has given express consent. That consent may be revoked at any time, but the loss caused must be compensated, including justified expectations. BOE-A-1982-11196
• Art. 8 LO 1/1982. As a general rule, acts authorised by the competent authority in accordance with the law, or where a relevant historical, scientific or cultural interest prevails, are not interferences. The right to one's image does not prevent capturing public officials or people of public standing at public events or in places open to the public, their caricature in line with social custom, or graphic reporting of a public event in which the person appears merely incidentally. BOE-A-1982-11196
• Art. 9 LO 1/1982. Protection covers a declaration of the interference, its immediate cessation, restoration of the earlier position, prevention of further interference, compensation for loss and recovery of the profit obtained, without prejudice to interim relief. Harm is presumed once the interference is proved and non material harm is assessed by circumstances, seriousness and reach. The actions lapse four years after they could be brought. BOE-A-1982-11196
• Art. 52 LEC. In matters concerning the rights to honour, to personal and family privacy and to one's own image, and civil protection of fundamental rights generally, the court for the claimant's domicile has jurisdiction and, if the claimant has none in Spain, the court for the place where the infringing act occurred. BOE-A-2000-323
• Art. 249 LEC. Claims seeking protection of the rights to honour, privacy and one's own image, and of any other fundamental right, except those concerning the right of reply, are decided in ordinary proceedings whatever their value. In these proceedings the Ministerio Fiscal (the Public Prosecutor's Office) is always a party and the case has priority. BOE-A-2000-323
• Art. 5 LO 1/2025. As a general rule, a civil claim is admitted only after an appropriate dispute resolution method has been tried, but civil judicial protection of fundamental rights is exempted, among other matters. Nor is it required to seek interim measures before the claim or preliminary inquiries. BOE-A-2025-76
• Art. 39 Reglamento (UE) 2022/2065. It requires very large online platforms and search engines that present ads to keep a searchable public repository, for the whole presentation period and until one year after the last time, with the ad's content, the person on whose behalf it is presented, who paid for it if different, the period it ran, the targeting parameters and the total number of recipients reached. 32022R2065

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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