Agreements on Personality Rights in the Portuguese Legal System

The translation of the Constitution Articles into English was taken from http://​www.​tribunalconstitu​cional.​pt/​tc/​en/​crpen.​html.

Mota Pinto (2005), p. 69.

As set forth in Article 24 [right to life], para 1, human life is inviolable; according to Article 25 [right to personal integrity], para 1, every person’s moral and physical integrity is inviolable; according to Article 26 [other personal rights], para 1, everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, to a good name and reputation, to their image, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.

Mota Pinto (2005), p. 73.

See Gomes Canotilho and Vital Moreira (2010), pp. 921 et seq.; Blanco de Morais (2011), pp. 21 et seq.; Miranda (2013), pp. 305 et seq.; Melo Alexandrino (2015), pp. 295 et seq. According to Article 278, para 2, ‘[t]he representatives of the Republic may also ask the Constitutional Court to undertake the prior consideration of the constitutionality of any norm contained in a regional legislative decree that is sent to them for signature’. And, under paragraph 4, also ‘(…) the Prime Minister or one fifth of all the Members of the Assembly of the Republic in full exercise of their office may ask the Constitutional Court to undertake the prior consideration of the constitutionality of any norm contained in any decree that is sent to the President of the Republic for enactment as an organic law’.

See Gomes Canotilho (2003), pp. 917 et seq.; Gomes Canotilho and Vital Moreira (2010), pp. 517 et seq.; Miranda (2013), pp. 244 et seq.; Melo Alexandrino (2015), p. 303.

See Gomes Canotilho and Vital Moreira (2010), pp. 936 et seq.; Blanco de Morais (2011), pp. 595 et seq.; Miranda (2013), pp. 252 et seq.; Melo Alexandrino (2015), pp. 298 et seq., 303.

According to Article 283 of the Constitution,

[a]t the request of the President of the Republic, the Ombudsman, or, on the grounds of the breach of rights of the autonomous regions, presidents of the Legislative Assemblies of autonomous regions, the Constitutional Court shall consider and verify whether there is a failure to comply with the Constitution due to the omission of legislative measures needed to make constitutional norms executable.

The expression ‘personality interest’ is used in this work as the translation of ‘bem de personalidade’, which means, in the Portuguese legal system, the legal interests intimately related to the person, essential to the person to exist, to develop himself or herself as a person, and such interests include life itself. Other personality interests, such as image, allow the identification of the individual and express their uniqueness.

See Gomes da Silva (1944), pp. 34 et seq.; Gomes da Silva (1965), pp. 156 et seq.; Carvalho (1981), p. 83, note 81; Amaral Cabral (1989), p. 381; Mota Pinto (1993), p. 482; Capelo de Sousa (1995), pp. 606 et seq.; Menezes Leitão (1996), p. 745, note 76; Oliveira Ascensão (2000), pp. 82 et seq.; Carvalho Fernandes (2001), p. 218; Trabuco (2001), pp. 405 et seq.; Menezes Cordeiro (2011), p. 101; Pais de Vasconcelos (2006), pp. 64 and 153; Pais de Vasconcelos (2015), pp. 37 et seq. Alternately, Antunes Varela (2000), p. 534; Cabral de Moncada (1995), pp. 74 et seq. Leite de Campos (1992), p. 59, claims that since the person does not have total power over these interests (e.g., one cannot commit suicide), the personality rights are not really subjective rights.

See Antunes Varela (1982–1984), pp. 142 et seq.; Ribeiro de Faria (1990), p. 417, note 2; Mota Pinto (1993), p. 495; Capelo de Sousa (1995), pp. 198 et seq., 513 et seq., 577 et seq., 605 et seq.; Mota Pinto (1999), p. 173; Trabuco (2001), pp. 394 et seq.; Mota Pinto (2005), pp. 209 et seq.; Pais de Vasconcelos (2006), pp. 64 et seq.; Sinde Monteiro (2007), p. 464; Pais de Vasconcelos (2015), pp. 40 et seq.

Menezes Cordeiro (2011), pp. 103 et seq.; Oliveira Ascensão (2000), pp. 80 et seq., 87 et seq.; Oliveira Ascensão (2002), p. 15; Melo Alexandrino (2007), p. 32.

Dias Oliveira (2012), p. 34.

Miranda (2014), pp. 73 et seq.

See Menezes Cordeiro (2011), pp. 141 et seq.; Mota Pinto (2000), p. 156.

Gomes Canotilho and Vital Moreira (2007), pp. 384 et seq. See, about this theory, Reis Novais (2006), pp. 73 et seq.; Miranda and Medeiros (2010), pp. 335 et seq.; Vieira de Andrade (2012), pp. 234 et seq.; Miranda (2014), pp. 337 et seq.

See, about this theory, Reis Novais (2006), pp. 72 et seq.; Miranda and Medeiros (2010), pp. 335 et seq.; Vieira de Andrade (2012), pp. 234 et seq.; Miranda (2014), pp. 337 et seq.

Miranda and Medeiros (2010), p. 335; Vieira de Andrade (2012), p. 235.

Reis Novais (2006), pp. 73 et seq., 77 et seq.; Miranda and Medeiros (2010), p. 335; Vieira de Andrade (2012), pp. 239 et seq.

Mota Pinto (2005), p. 43; Mota Pinto (1999), pp. 235 et seq.; Dias Oliveira (2012), pp. 591 et seq., 601 et seq.

Fundamental rights and personality rights are different from one another; see on this subject Melo Alexandrino (2007), pp. 32 et seq.; Miranda (2014), pp. 76 et seq.; Gomes Canotilho (2003), p. 396; Castro Mendes (1977), p. 111; Mota Pinto (2000), p. 155.

Vieira de Andrade (2012), pp. 257 et seq.

Mota Pinto (2005), p. 75; Dias Oliveira (2012), pp. 600 et seq.

See also Vieira de Andrade (2012), pp. 239 et seq.

Mota Pinto (2000), p. 187.

Festas (2009), pp. 275 et seq.; Menezes Cordeiro (2011), p. 249; Dias Oliveira (2015), p. 221.

According to the Portuguese Supreme Court of Justice, the law permits that the right to one’s image may be explored by public exhibition, by recording and by commercial exploitation (Judgment of 25 October 2005, Case No. 05A2577). See also, along the same lines, the Judgment of 7 June 2011, Case No. 1581/07.3TVLSB.L1S1 (Supreme Court of Justice). Available at www.​dgsi.​pt [Accessed on 30 June 2016].

It is important to stress that the limitation of the exercise of personality rights must be clearly defined. For instance, if someone accepts to have their photo taken for an artistic work, this does not mean that that person accepts the use of those photographs for other goals, such as advertisements. See Judgment of 7th June 2011 (Supreme Court of Justice), note 27.

Capelo de Sousa (1995), p. 246, note 560; Mota Pinto (2001), p. 551; Morais de Carvalho (2003), pp. 52 et seq.; Dias Oliveira (2015), p. 221.

According to the 21 March 2012 Lisbon Court of Appeal judgment, the right to one’s voice has a patrimonial content, besides the personal one. In this case, what was under litigation was a contract concluded between an actress and a company under which it was stipulated that, during a determined period of time, she should record, for a charge, messages that would be used in the company voicemail. After this period ended and the contract was terminated, the company kept using those records. The Court decided that the company could not do the commercial exploitation of the actress voice, otherwise one would be faced with before an unjustified enrichment. Case No. 1139/09.2YXLSB.L1-2 available at www.​dgsi.​pt [Accessed on 30 June 2016].

See Dias Oliveira (2012), pp. 121 et seq.

Festas (2009), p. 124; Dias Oliveira (2012), pp. 118 et seq.; Mota Pinto (2001), p. 551.

McCarthy (1999–2002), vol. 1, 2002, § 1:3, p. 1-2.1.

Festas (2009), pp. 405 et seq.; Menezes Cordeiro (2011), pp. 247 et seq.; Dias Oliveira (2012), 118 et seq.; Dias Oliveira (2015), pp. 220 et seq.

Pessoa Jorge (1968), p. 196; Pais de Vasconcelos (2006), p. 153; Pais de Vasconcelos (2015), pp. 37 and 57; Leite de Campos (1992), p. 59. A different interpretation is given by Brandão Proença (1997), pp. 96 et seq., note 251. According to this, each person has the freedom to use legal drugs, practice self-mutilation, or commit suicide. About this discussion, see Dias Oliveira (2012), pp. 120 and 307.

The Law No. 12/93 of 22 April 1993, Official Gazette, was amended by the Laws No. 22/2007 of 29 June 2007, No. 12/2009 of 26 March 2009, No. 36/2013 of 12 June 2013 and by the Decree-Law No. 168/2015 of 21 August 2015.

Pais de Vasconcelos (2015), p. 53.

Menezes Cordeiro (2011), p. 119; Pais de Vasconcelos (2006), p. 155; Pais de Vasconcelos (2015), pp. 52 et seq.; Dias Oliveira (2012), p. 121.

Oliveira Ascensão (2000), pp. 281 et seq.; Pais de Vasconcelos (2015), pp. 517 et seq.

Mota Pinto (2005), pp. 557 et seq.

Article 1 of the Constitution.

Mota Pinto (2001), pp. 555 et seq.

Pais de Vasconcelos (2006), p. 168.

The Law No. 28/98 of 26 July 1998, Official Gazette, was amended by the Law No. 114/99 of 3 August 1999.

According to the Portuguese Supreme Court of Justice, in the above mentioned judgement of 25 October 2005 (note 27), the agreement, for a charge, on the commercial exploitation of the professional sportsman’s image, taken as being in force for a limited period is valid for it is not contrary to the public policy. The Lisbon Court of Appeal, in a judgement dated 18 December 2007, decided that, although the right to one’s image is inalienable and cannot be waived, the limitation of the exercise of this right is not forbidden, specifically the cession to others, by football players of their right to use their own image as professional sportsmen. The Court decided that both Article 79, para 1, of the Civil code and Article 10 of Law No. 28/98 were violated by a company owner of a magazine that published stamps with the football players’ photographs without their consent nor the consent of those to whom the football players had given the right to exploit their image commercially and exclusively. This company was ordered to compensate the company for material damages and the football players for moral damages.

Oliveira Ascensão (2000), pp. 99 and 79.

Moura Vicente (2008), pp. 277 et seq.

According to the 22 September 2005 Lisbon Court of Appeal judgement, Case No 5011/2004-6, personality rights are innate, cannot be waived and inalienable. Available at www.​dgsi.​pt [Accessed on 30 June 2016].

According to the 21 March 2012 Lisbon Court of Appeal judgement above mentioned (note 30), the contract under which an actress should record voice messages for a company, could not have as an effect the transmission of the actress’s right to her voice nor the transmission of the recording property rights. The voice, which is subject to a personality right and to a fundamental right cannot be transmitted; it only can be limited. If one entered into a contract stipulating the transmission of it, this agreement would be invalid as being contrary to public policy (Article 81, para 1, of the Civil code).

Dias Oliveira (2012), pp. 121 et seq.; Palma Ramalho (2012), pp. 796 et seq.; Dias Oliveira (2015), p. 224. Differently, see Moura Vicente (2008), pp. 277 et seq.; Morais de Carvalho (2003), pp. 56 and 64 et seq., advocates that if someone authorizes the use by others of his or her own personality rights in order to promote goods or services, they cannot, afterwards, unilaterally revoke it. If they do, they will have to pay damages. Festas (2009), pp. 377 et seq., advocates that in order to decide if the revocation is or is not admissible, one must take into account the reason behind this act. One can only admit the unilateral revocation of the agreement if the protection of personal values is at stake and not commercial assets even if related to personality rights.

Mota Pinto (1993), p. 502, stresses that forcing someone to accomplish an obligation that results from a limitation of personality rights would be against the most basic personal rights. According to Leite de Campos (2006), p. 145, any limitation to personality rights is invalid if it does not aim for the free development of personality in respect to the ethical values. See also Pais de Vasconcelos (2015), pp. 53 et seq.; Dias Oliveira (2012), pp. 121 et seq.

Mota Pinto (2000), p. 160.

Mota Pinto (2000), p. 160; Otero (2010), p. 42.

Sousa Ribeiro (1999), p. 433, note 436.

Pais de Vasconcelos (2006), p. 167; Mota Pinto (2001), p. 558.

About abuse of rights, see Ewald Hörster (2003), pp. 280 et seq.; Menezes Cordeiro (2015), pp. 269 et seq.; Pais de Vasconcelos (2015), pp. 240 et seq.; Carvalho Fernandes (2001), pp. 585 et seq.; Pires de Lima and Antunes Varela (1988), pp. 555 et seq.

Mota Pinto (2000), p. 195.

Mota Pinto (2000), p. 191; Mota Pinto (2001), p. 546.

Pais de Vasconcelos (2006), p. 165.

On this question, Mota Pinto (2000), p. 164, quotes the decision No. 263/97 by the Constitutional Court of Portugal.

Vasconcelos Abreu (2005), pp. 116 et seq.

Reis Novais (2006), p. 31; Mota Pinto (2001), pp. 547 et seq.

Menezes Cordeiro (2011), p. 102.

Reis Novais (2006), p. 49.

Miranda and Medeiros (2010), pp. 923 et seq.

Miranda and Medeiros (2010), p. 851.

Although, also under the Constitutional Law, collision of rights can occur. According to Vieira de Andrade (2012), pp. 298 et seq., to solve these problems, one should balance the consequences of the exercise of the specific rights under analyses, and try to find a solution in accordance with Constitutional values.

About the collision of rights in the Portuguese legal system, see Ewald Hörster (2003), pp. 280 et seq.; Menezes Cordeiro (2015), pp. 411 et seq.; Pais de Vasconcelos (2015), pp. 262 et seq.; Carvalho Fernandes (2001), pp. 581 et seq.; Pires de Lima and Antunes Varela (1988), pp. 555 et seq.

See, on this question, Mota Pinto (2001), p. 558.

Mota Pinto (2001), p. 558.