The 57th court of first instance in Barcelona has rejected the claim of an agent of the Guardia Civil, demanding cultural association Òmnium pay 10,000 euros in moral damages, after the association used the police officer's voice in a video. The magistrate also sentenced the plaintiff to pay the costs.
Òmnium Cultural used a fragment of the officer's statement -who had participated in the search of the Economy Department in September 2017- during the trial of the Independence Referedum in a video of the entity that went viral. During his statement, the Guardia Civil agent seemed confused, claiming he saw Òmnium flags in the vicinity of the department although Òmnium has no flag. The plaintiff considered that using this statement without his express authorisation in a propaganda video violated his right to his own image, but on Tuesday the court dismissed the lawsuit and acquitted the entity, which celebrated with a Twitter message defending freedom of expression.
The sentence of the civil guard's denunciation absolves us!- Òmnium Cultural (@omnium) November 19, 2020
Today freedom of expression has won, but let this fact not make us forget the injustices against rights and freedoms. The persecution of the state powers against Òmnium continúapic .twitter.com/5jvbirl8fo
The main conflict on the issue is the purpose for which Òmnium Cultural used the sergeant's statement. While the complainant and also the Public Prosecutor's Office considered the violation of the right to one's own image to be accredited because it had been used in a video for advertising and promotional purposes, the director of the campaign, Oleguer Serra, defended that the purpose of the campaign was not advertising, but rather "denouncing", even though the video ended with the caption "Become a member".
The arguments for acquittal
After hearing all the parties, the judge reached several conclusions. As for the purpose of the video, she emphasises that Òmnium is a "non-profit" entity that does not pursue commercial purposes, but rather "the promotion of Catalan language and culture".
With regard to the mention "Become a member" at the end of the video, in which the plaintiff uses as a shield to justify the advertising purpose of the ad, the judge considers that "it is not a specific mention", but that the expression appears in 31 of the 48 videos of the entity produced by the association between January and August 2019 (as appears in a document provided by the defence). For this reason, in addition to the fact that "it has not been proven that as a result of the publication of the video" Òmnium increased the number of members, the judge considers that the purpose of the publication of the video was not "advertising".
On the other hand, she considers it "evident" that the recording of the plaintiff's voice is "lawful", since it was obtained during a public trial that could be recorded. And it frames the obtaining of the voice of the agent as "freedom of expression", since the entity had the objective "to expose and publicly denounce its point of view or opinion on the declaration" of the agent. Furthermore, although she admits the "mocking" tone of the montage, she stresses that "pejorative or offensive expressions towards the agent were not added" and that his voice "is a faithful reflection of what he stated" during the trial. The judge, however, does not agree with the entity's defence on one point: she does not believed the complaint was filed "in bad faith".
The president of Òmnium Cultural had to appear before the court as the maximum representative of the entity. "Òmnium has no flag," he recalled in his statement, accusing the sergeant of lying, and defended freedom of expression and the right to spread the police officer's nonsensical statement at the trial. "We wanted to denounce that the witness lied and we continue to do so," he stressed, noting that the officer's confusion could be due to "incompetence of a public servant" or "bad faith".