Case Study 1. Publication of a Person’s Photo with Goiter as an Illustration of a Disease

Complaint: S.T. learned from a neighbor that his photo with a title “How Not To Become Cretins” had been published in newspaper “Alia”. The article was about goiter disease, and S.T.-s photo was used as an illustration to this, as he was suffering from goiter and his face was distorted from it. Because of “Alia’s” publicasion S.T. addressed Vake-Saburtalo District court with a complaint. He claimed that publication of his photo without a consent infringed his rights and demanded a compensation for damages.

According to “Alia”, the disputed photo had been stored in the newspaper’s photo archive and the newspaper had no information about the identity of the persons depicted in the photo. The photo was published with a black box over the eyes, which in the opinion of the newspaper, was a proof that that the photo had been published for the purpose of illustrating physical manifestation of the disease. Also, the article itself did not contain any direct reference to a specific person, in this case to S.T.

Decision: By the decision of December 14, 2001, Vake-Saburtalo District Court turned down the complaint due to the reason that covering the eyes with a black box on the photo excluded the respondent's intent (guilt). However, later, Regional Court upheld the complaint partly on the basis of Article 18 paragraphs 1 (right to carry a name), 2 (protection of privacy through court proceedings), 5 (publication of a photo with a consent) and 6 (guilt) of the Civil Code of Georgia and ordered “Alia” to pay GEL 500 to the plaintiff for damages.

Reasoning: In the Court’s view, publishing a person’s photo requires his/her consent except when there are occasions envisaged by the law (paragrapgh 5). Accoridng to the Court, altough the photo had been published with a black box cover on the eyes, it was still possible to identify S.T., because the latter had a rare distinguishing mark in the form of a tumor in the neck area.

In the Chamber’s opinion, no matter how many persons would be able to identify S.T. by the photo, it was sufficient for him to see his distorted image in the newspaper to feel strong anguish. According to the Chamber, respondent’s actions contained guilt. Due to the aforesaid, the Court imposed a liability on the newspaper on the basis of Article 18.6 of the Civil Code.

S.T. appealed the decision claiming that the Court had determined an unreasonably low compensation. According to the complainant, the Court should have taken into consideration on the one hand his poor material state and on the other hand the fact that “Alia” was a large newspaper and upholding the complaint would not put it in a harsh material state. “Alia” in turn also appealed the decision of the Regional Court.


Decision: On the basis of Article 413 (compensation for non-pecuniary damage) of the Civil Code, the Supreme Court of Georgia found the complaint ungrounded and turned it down.


Reasoning: the Chamber did not share the complainant’s view that the Court should have established the amount of non-pecuniary damage in consideration of the plaintiff’s material state. When establishing the amount of compensation for non-pecuniary damage rather than taking into consideration the material state of the plaintiff a court should take into account the quality of guilt, material state of the respondent and satisfactory, preventive and repressive purpose of the compensation for such damage. The Chamber pointed out that upholding a defamation suit does not restitute the infringed right. Rather it morally compensates the physical or emotional anguish caused by the violation as the inflicted damage has no pecuniary equivalent.