The Civil Chamber of the Supreme Court has confirmed this Tuesday that Mongolia magazine will have to compensate extorero José Ortega Cano with 40,000 euros for violating his right to honor and his own image “by disclosing for advertising purposes” a photomontage with which, According to the High Court, the extorero was “mocked”. The Chamber has thus dismissed the appeal filed by Editorial Mong SL, owner of the humorous magazine, against the sentence of the Provincial Court of Madrid, which, like the one handed down by a court in Alcobendas, declared the violation of said right and imposed the payment of compensation of 40,000 euros for damages.
The bullfighter Ortega Cano denounces the magazine Mongolia for violation of honor
According to the Supreme Court, in order to publicize a musical show that was to be held on the night of Saturday, November 12, 2016 in the city of Cartagena (Murcia), the Editorial Mong SL (EM) entity prepared and authorized the dissemination of a poster titled Mongolia Musical 2.0. This poster showed a photomontage with the face of the former bullfighter Ortega Cano and the body of an alien holding in his hands a poster with the text “before Rioja than Murcia” and saying: “We are so happy …”. All this on a background in which a flying saucer could be seen in a seemingly non-terrestrial landscape and accompanied by the legend “Friday of pain … Saturday of hangover”.
The High Court maintains that at no time did Ortega Cano authorize the use of his image for this purpose. The Chamber affirms that “the proven use of its image for an advertising purpose without having previously obtained its consent for such purpose is evident.” In this sense, it explains that the alleged critical intention alleged by the appellant “is not reflected in the prosecuted poster, since the photographic composition on which it was intended to focus the public’s attention was not included in any informative article or opinion on the plaintiff (that is, aimed at communicating truthful facts of general interest about his person or expressing subjective evaluations or value judgments about his person or behavior) but, as the sentences of the two instances state, it was used solely and exclusively to advertise a musical spectacle and, therefore, as a mere claim to sell tickets and seeking the economic benefit of EM “.
The Supreme Court adds that given the characteristics of the photomontage and the texts that accompanied it, the publication of the prosecuted poster also constituted an illegitimate interference in the plaintiff’s right to honor, “which increases the devaluation of the prosecuted conduct, since the plaintiff, in his day a figure of bullfighting, through the photographic composition itself and some texts that, integrated into the poster, focused the viewer’s attention on the plaintiff’s addiction to alcoholic beverages, thus reliving an episode in his life for which he already he had served a sentence, and ultimately undermining his dignity.
The sentence, a presentation by the president of the Chamber, Francisco Marín Castán, rejects that the amount of compensation –40,000 euros– is disproportionate, as the appellant alleges. And it points out that a claim for review based solely on particular appraisals of the appellant that “does not agree with the proven facts” cannot succeed in cassation.