The new draft bill on the protection of honour, privacy and own image in the digital age

The Council of Ministers recently approved the draft bill on civil protection of the right to honour, personal and family privacy, and own image. The new legal text aims to replace the classic Organic Law 1/1982, adapting its content to the digital environment and extending the level of protection of these fundamental rights.

In a context in which the digital environment is rapidly gaining ground and the use of tools that integrate artificial intelligence (AI) is multiplying exponentially, the protection of these fundamental rights is being reinforced, taking into account the specific cases of AI and social networks.

The text, which is pioneering in the legislative history of our country, considers the use of a person’s voice or image to be unlawful when they have been created, simulated or technologically manipulated to give them an extremely realistic appearance. However, if the person affected is a public figure, this type of technology may be used on their own image or voice provided that it is in a creative, satirical or fictional context and it is clearly indicated that AI tools are being used. Nevertheless, the use of deepfakes for advertising or commercial purposes is strictly prohibited, putting an end to the legal loophole that existed in this area.

Likewise, the text expressly states that uploading own personal images to social media does not authorise third parties to use them on other networks or channels of dissemination, consolidating the need for specific consent limited to the purpose of each new use.

An important change introduced by the draft bill is the iuris tantum presumption in that minors as from the age of sixteen will have sufficient maturity to give consent on their own behalf for the processing of their own image.

The draft bill also allows deceased persons to prohibit, by will or through a person designated for that purpose, the use of their image or voice for commercial, promotional, advertising or similar purposes.

In terms of judicial protection, the draft bill sets out the criteria for assessing moral damage. It also strengthens the catalogue of precautionary measures in the Civil Procedure Act, allowing for the removal of images or voices when they may violate honour, privacy or one’s own image.

In short, the draft bill sends a clear message: the protection of honour, privacy and own image in the digital environment is becoming an unavoidable regulatory requirement that makes it necessary to proactively review policies on the use of image and voice, content creation processes and the use of generative AI. Understanding the context and adapting to these changes is essential in an increasingly digitalised society, both to take advantage of the competitive edge this could bring and to avoid potential penalties and serious reputational damage.