Use of a fan’s image in soccer match for advertising does not generate compensation by moral damages.
On June 16, 2020, the 3rd Panel of the Superior Court of Justice (“STJ”) decided unanimously1 that the use of the image of a fan in a soccer match for a car advertising campaign does not generate the duty to indemnify by moral damages.
According to the Reporter Minister Nancy Andrighi, the Precedent No. 403 of STJ is clear in the sense that the indemnity for the unauthorized publication of the image of a person for economic or commercial purposes does not depend on the proof of damage. Considering the soccer match scenario, it is not possible to assume that the appellant, as a fan, tacitly authorized the automobile company to use his image in an advertising campaign.
She also enlightened that the right to the image is not absolute, but socially conditioned, depending on the uses and customs of society. In view of the presented material, the minister stated that the filming does not highlight the image of the appellant, since it is inserted in the context of a crowd, that is, among other fans of the team.
Thus, the Reporter Minister concluded that “even if the appellant’s consent is absent, there is no abusive exposure to constitute an offense to his right to image and, therefore, to characterize the alleged moral damage.”
1 Special Appeal No. 1.772.593