A betting firm has been ordered to pay Sh1.5 million for using the photographs of two minors in an advertisement.
High Court judge John Mativo ordered that Green Sports Africa pay two minors, only named as NWR and TOO, Sh750,000 each for having their photographs on a billboard advertising betting without the approval of their parents.
The judge heard that the parents of the two children - a boy and a girl - saw a billboard promoting betting in Westlands, Nairobi, with the faces of the two. Green Sports Africa allegedly offered to pay the children Sh10,000.
“It is illegal to use minors or the images of minors to promote gambling, hence the erection of the billboards is illegal. No payment was made for the said advertisement,” the parents argued.
Green Sports argued that the parents did not have a case against it as they were aware that the firm had taken photographs of the children during a tournament it had organised.
According to the firm, the photos were taken at Lavington Shopping Centre and the school where the two children learn was aware of the matter. The court heard that the firm writes to parents seeking their authority whenever it takes their children’s photographs.
The firm argued that its objective was to promote sports in Africa and thus it had no intention of using the minors to make profit.
Justice Mativo was told that the case ought to have been filed in the Children’s Court and thus he ought to dismiss it.
“The first respondent also denies that it personally knew the minors or even benefited from the advertisement and insists that the images were meant for advertisement,” Green Sport argued. “The petitioners used to pick up and drop off the minors at the Lavington Shopping Centre, hence the parents were fully aware of the photo session and tournament.”
The case also involved Acumen Communications Limited, which is responsible for M-cheza, but the firm denied knowing there was a billboard that had minors as an advertisement of betting and gambling.
The firm argued that Green Sports did not consulted it before putting up the billboard, adding that it came to know about the matter when the case was filed.
Justice Mativo exonerated Acumen from blame, saying there was no proof that it was responsible for the advertisement.
He said Green Sports could not escape blame as there was no proof that it had asked for the parents’ consent before it put up the advertisement.
“It is not disputed that images of the two minors were used on the billboard in question. It is not disputed that at the time the images were used, the two minors were aged below 18 years, hence children within the definition under article 260 of the Constitution and the Children’s Act. There is nothing to show that the consent of the minors’ parents or guardians was sought and obtained,” he ruled.
Justice Mativo found that the firm had infringed on the two children’s right to privacy and thus ordered the firm to compensate them.
“A declaration is hereby issued that the fundamental rights and freedoms of the minors, NWR and TOO, were violated by the first respondent’s action of using their photographs on the billboard, which was erected next to Unga House, Woodvale Avenue, Westlands, Nairobi County,” the judge ruled, adding that the firm should pay the amount, failing which it would attract interest at the court’s rate.
The judge also directed that Green Sports pay the costs of the case.