Businesses across the globe have embraced the use of images in advertising. The proverbial “picture worth a thousand words” is now the basis for communicating thought and emotion while capturing a narrative in a way which words only cannot.
Recently, the High Court in Machakos issued a landmark decision in Catherine Njeri Wanjiru Vs Machakos University H.C. Pet No. E021/2021. In this case, Catherine Njeri sued Machakos University for using her photograph in advertising and marketing of the computer packages courses offered by the University.
The photograph was taken without Catherine’s knowledge. The university admitted to the use of the photograph, since the practice of the university was to publish pictures of its graduands on its website and other channels used by the university. In her Petition to the High Court, Catherine sought that the court declares that the University violated her fundamental right to privacy and human dignity by publishing her image for commercial advertisement without her consent.
She also wanted a declaration that her right to property was violated by publishing of her image and likeness by the university for its own commercial gain with no personal financial advantage gained by her. Further, she sought that a declaration be issued that her intellectual property rights, rights of publicity and personality rights were infringed when the university decided to use her image in advertising courses it offered for financial gain without seeking her consent.
Catherine asked the court to issue a permanent injunction restraining the university from publishing her image and likeness in its advertisements or promotions in any way without her consent; and an order of compensation for damages and loss arising from the publication of her image without consent.
In deciding the case, the High Court considered whether the use of her photograph without her consent amounted to an infringement of her right to human dignity and privacy and whether her photograph was used for financial gain. In considering whether there was an unlawful use of her image, the High Court relied on a three-pronged test which was set out in the previously decided landmark case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others (2017) as follows:
Whether there was the use of a protected attribute; Whether the use of the protected attribute was used for an exploitative purpose (commercial or otherwise); and whether consent was given for the offending use of the image.
The High Court observed that a person's image constitutes one of the chief attributes of their personality and that the person has a right to protect their image. The Court further stated that the right to the protection of one's image presupposes the individual's right to control the use of that image, including the right to refuse its publication. The High Court found that Catherine’s right to privacy, right to dignity and right to property had been infringed by the non-consensual publication of her photograph.
Further, in deciding whether the photograph was used for an exploitative purpose, the High Court considered the possible benefits that could have been derived from the advertisement. While the High Court could not ascertain whether there was any increase in admissions stemming from the advertisement containing her photograph, the Court did find that the growth in possible or actual clientele constituted a use of her image that ought to have been compensated.
The final aspect of the test which relates to whether consent was given for the offending use of the image was not in issue since the university had already admitted its failure to seek consent and as such, the Court decided that the test had been satisfied.
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The High Court awarded Catherine nominal damages of Sh700,000 and issued a permanent injunction against the use of her image for the university’s advertisements. The High Court also issued a declaration to the effect that Catherine’s right to privacy and human dignity under the Constitution of Kenya had been violated through publication of her image for commercial purposes without her consent. The Court also affirmed the dual nature of image rights - the right of privacy, being the right to prevent the commercial exploitation of one's image, and the right of publicity, being the right to financial gain/compensation from the use of one's image.
The Court’s decision in this case emphasised the increased scrutiny on the commercial appropriation of individuals' images. Kenya has, for many years past, lacked a proper legislative framework for the protection of image rights, with the most definitive position being that in the Jessicar Clarisse Wanjiku case.
The right to privacy within the context of image rights invokes a more established legislative framework such as the Data Protection Act enacted in 2019, which now means that businesses will have to establish a lawful basis for the use of individuals' images for commercial purposes. In the immediate term, it would be advisable for businesses to take inventory of the photography used in their marketing material.