It is often said that a picture is worth 1000 words, and this might be why the use of imagery in advertising is quite popular. In the recently decided case of Wanjiru v Machakos University (Petition E021 of 2021) [2022] KEHC 10599 (KLR), on 10th April 2021, Wanjiru (the Petitioner) discovered a picture/photograph depicting her image being used by Machakos University (the Respondent) in advertising and marketing of computer packages course offered at Kshs. 7,000. Wanjiru further discovered that public commercial posts and advertisements were made by the University using her photographs, which were taken during a school graduation ceremony. The photograph depicting her was taken by a representative of the University without her knowledge or consent. Wanjiru wrote to the University seeking an explanation of why they used her image to advertise and promote its computer packages and, in response, the Respondent denied any infringement, admitted to using the photograph as had been its practice, and that the picture was not taken for commercial gain.¹

Wanjiru sued Machakos University claiming a breach of her fundamental right to privacy, human dignity, intellectual property right, right to publicity, and personality rights.

Court’s Decision

The Court identified the following four issues for determination:

1. Whether the use of the Petitioner’s photograph without her consent amounted to an infringement of her right to human dignity and privacy.

2. Whether public interest outweighs an individual’s right to privacy in image rights.

3. Whether the Respondent’s offensive publication and/or advertisement using the Petitioner’s images for their future use violates the petitioner’s data rights.

4. Whether the Petitioner is entitled to general damages for the violation of her image rights and data rights by the Respondent.

In its discourse, the Court while addressing the issues on right to human dignity and privacy, was guided by article 28 of the Constitution of Kenya, 2010 which states that “Every person has inherent dignity and the right to have their dignity respected and protected”. Additionally, the Court highlighted article 31 of the Constitution of Kenya, which provides for the right to privacy, and also referred to the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR which defined privacy as “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.” The Court concluded that the right to privacy is “the right to keep one’s image and likeness from exploitation without permission or compensation, and generally applies to the general public.”²

Moreover, being directed by the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC), the Court identified the following as factors to consider when determining a violation of the right to privacy: (a)whether the information was obtained in an intrusive manner; (b)if the information was about intimate aspects of the applicants’ personal life; (c) whether it involved data provided by the applicant for one purpose which was then used for another; (d) whether it was disseminated to the press or the general public or persons from whom the applicant could reasonably expect such private information would be withheld. Being informed by all this, the Court determined that as Wanjiru contended she is a private person, to that extent the University ought to have known and sought consent, and that the University’s practice of taking and using its graduates’ pictures without consent is unlawful.

The Court also looked at the data protection issues present in the case. In so doing, it (the Court) was guided by the Data Protection Act, No.24 of 2019 (DPA), which was enacted to give effect to article 31 (c) and (d) of the Constitution of Kenya, and whose main objective is protecting the processing of personal data, the rights of data subjects, and obligations of data controllers and processors to data subjects.³ Section 2 of the DPA defines personal data as any information relating to an identified or identifiable natural person. Additionally, section 25 provides for the principles of data protection stating that personal data is to be “…(a) processed in accordance with the right to privacy of the data subject”. Moreover, section 25 also provides that data controllers or data processors should process data lawfully, minimize collection of data, restrict further processing of data, and further requires them to ensure data quality, and establish and maintain security safeguards to protect personal data.

The Court also highlighted section 26 of the DPA, which provides for the rights of a data subject; one of which is to be informed of the use to which their personal data is to be put. With these provisions, the Court determined that the Petitioner as a data subject has rights that must be protected and that she has the right to know what her image was to be used for.

Looking at the issues on image and personality rights, the Court relied on the Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR case which defined image rights as “the right to control the use of one’s image, including the right to refuse publication thereof.” Moreover, being guided by N W R & another v. Green Sports Africa Ltd, the Court held that personality right is defined as “the exclusive right of an individual to market, control, and profit from the commercial use of their image, likeness, and persona.” Following these definitions, the Court concluded that personality rights consist of the right of privacy and the right of publicity, which is an individual’s exclusive right to market their image and likeness for financial gain.

In determining the unlawful use of a name or image, the court cited a three-pronged test.⁴ The petitioner must prove the use of the protected image, that the use is commercial or for other exploitative purposes, and that the owner of the image must establish that consent was not given. The court determined that the use of the Petitioner’s image in advertising ought to be compensated by the Respondent, as it would benefit from fees received as a result of its advertisement.

In its final judgement, the Court made the following orders:

1. A declaration was issued that the Respondent violated the Petitioner’s fundamental right to privacy and human dignity under Article 28 and 31 of the Constitution by publishing the Petitioner’s image for purpose of commercial advertisement without the Petitioner’s consent.

2. A declaration was issued that the Petitioner’s intellectual property rights, right of publicity and personality rights were infringed when the Respondent decided to publish the Petitioner’s image in advertising and marketing the computer packages courses offered for financial gain without seeking authority/consent from the Petitioner.

3. An order of permanent injunction was issued restraining the Respondent from publishing and/or using the Petitioners’ images and likeness in its advertisement or promotion in any way without the Petitioner’s consent.

4. Nominal damages of Kshs 700,000/- awarded to the Petitioner.

Insights

This case demonstrates the increased need for universities and other organisations to be observant and careful with the images they use in their advertising. Due diligence must be carried out and proper consent sought before a person or other legal body opts to use a person’s image for commercial or other exploitative purposes. In another recently decided case, the High Court of Kenya at Meru upheld an order for a Sacco based in Meru to pay a woman Ksh1.5 million for publishing her picture in its annual calendar by way of advertising its services and products without her consent.⁵

From these cases, we can establish that before an image is used for advertising or any other commercial purposes, measures should be taken to ensure that the image to be used was obtained legally, and that where the images have faces of individuals, that the concerned person(s) consented to the use of their pictures for a specific purpose and duration. It would help to have a release form/agreement that clearly stipulates how, when and what the images will be used for.

Photo by Kate Trysh on Unsplash