Observations, criticisms and critiques over a lacunae in the protection of photographs or imagery rights in Kenya have been floating for a while. Victor Nzomo has been able to beautifully capture the cases surrounding protection of image rights in Kenya as far back as 2014. It is not surprising that these issues have formed worthwhile topics for research papers as late as 2017.

Victor explains that image rights refer to an individual’s proprietary right in their personality and the right to prevent unauthorised use of their name or image or a style associated with them. In her research paper, Fidelma Mumbua describes image rights as an essential intellectual property right that shields a person from any unauthorised commercial use by third parties of their image in advertising, merchandising or endorsing goods.” Justice Mativo described image rights to consist of ‘a person’s right to commercialise aspects of his personality such as physical appearance, pictures or caricatures, signature, personal logos and slogans; and also the right to prevent other people from commercially making use of them.’ Victor showcases the commercial aspects of intellectual property and the monetary value that image rights possess.  He continues to state that the protection of image rights was majorly enforced though contractual obligations in Kenya. Fidelma in her reaearch paper, agreed with Victor and stated that,

“The Laws of Kenya do not sufficiently cater for Image rights and neither do the courts acknowledge it as a common right. Disputes relating from dishonest business practices such as the commercial appropriation of a person’s image lack an appropriate forum in Kenya’s formal justice.”

The learned judge equated the protection of one’s image to the tort of misappropriation or the tort of passing off. Ann Njoroge explains that “the tort can be expressed by stating that every individual has an exclusive right to market, for financial gain, their personality, image and name, and that the law entitles an individual to protect that right, if it is invaded.” She examined the legal framework governing image rights in Kenya as two-fold;

The Right of Publicity

Ann explains that the tort of passing off can be expressed by stating that every individual has a right to protect that right, if it is invaded. She further explains that in the case of NWR & another v Green Sports Africa Ltd & 4 others, the petitioner succeeded against a betting company which had used the minors’ images on a billboard without their consent. What then are the pre-requisites to claiming the right of publicity?

The Court in Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) relied on the Jessicar Clarise Case (Supra) in regards to the threshold of proving all the ingredients required in a claim for the right to economic gain for use of one’s image and likeness:

Use of Protected Attribute: The Plaintiff must show that the Defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff’s name or likeness, but the law protects certain other personal attributes as well.

For an exploitative Purpose: The Plaintiff must show that the Defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest.

No consent: The Plaintiff must establish that he or she did not give permission for the offending use.

In particular, the Court considered the aspect of the Plaintiff smiling at the camera and whether or not this amounted to consent. Specifically, the court stated:

“In cross examination by Defendant’s Counsel, the Plaintiff identified photographs at Pg 5 & 6 as her photographs but the signature and watermark were not hers. The Plaintiff stated that since she seemed to be smiling at the camera, she may have consented to the photographs being taken. The Plaintiff intimated the photographs could have been taken at ‘Blanket & Wine’ function, she could not remember but many photographs were/are taken of her at various functions. These answers do not amount to the Plaintiff admitting giving consent to taking of the specific photograph, that was used in the Defendants campaign. […] The Court was not presented with any evidence of communication, negotiations and/or agreement on the use of the Plaintiff’s image and likeness in the Defendant ‘s campaign and advertisement. There is also no evidence of Plaintiff submitting her photograph to /in the Defendant’s competition.

Right to Privacy

It is noteworthy to mention that one of the earliest cases at the High Court regarding imagery rights was in Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others . Hon. Justice Mativo likened the intrusion of personal life “by whatever means or form such as photography” as an invasion of privacy. He stated that;

“The right to privacy is guaranteed under Article 31 of the Constitution of Kenya. Privacy has been defined 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.’

He went further to state that such invasion by whatever means could constitute a ground for an action for breach of privacy.

Invoking a breach of a right enshrined under the Constitution of Kenya is no mere joke. The Constitution of Kenya is the most supreme law of the land by which all other laws must abide. Its validity or legality cannot be subject to challenge by or before any court of law or State organ. Any law that is inconsistent with any provision of the Constitution is void to the extent of its inconsistency. It therefore follows that the apex source of Kenyan law offers the highest form of protection of rights in Kenya. As the most supreme law of the land, it binds all persons and State Organs. Therefore, the likening of unauthorised use of image and likeness to a breach of privacy elevates the status of a case of unauthorised use of imagery from a mere intellectual property right to a constitutionally enshrined one.

One of the earliest lessons I learned in litigation is that the interplay between disciplines of law is more common than most people would think. Once presented with more than one avenue to seek redress, it is upon a litigant to pursue the one which offers the most protection in accordance with what is sought as remedy; whether it is a pronouncement by courts, an apology by opposing litigant or monetary compensation. The remedy sought informs the litigant of ‘the choice of forum’ [type of court] and mode of pleading with which to institute a case before the courts of law.

It then becomes important to question why Hon. Justice Mativo equated unauthorised use of image rights, which were originally protected under contract and intellectual property law, to rights protected under the constitution. He said;

“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.”

The Right Forum

The choice of forum, that is, the right court a litigant chooses to present his or her issues, is determined largely by the predominant issue the litigant wants the court to address. This feeds directly to the jurisdiction of the court to entertain any matter. As the Court of Appeal rightly put it, “jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.” Therefore, a litigant now has two choices;

1. proceed with the matter as a civil or commercial claim under the Small Claims Court, Magistrates or High Court (Commercial and Tax Division). This is dependent on the quantum of damages being sought; or
2. present the same as a constitutional petition at the High Court under its Constitutional and Human Rights Division.

The question then becomes what rules would a litigant abide by in determining which forum to present his matter for adjudication. The High Court sitting in Mombasa stated that;

“A constitutional issue … is that which directly arises from court’s interpretation of the Constitution. […] The test whether a Petition raises a constitutional issue, and adopted by Tuiyott J in Four Farms Limtied vs. Agricultural Finance Corporation (2014) eKLR following the decision in Damian Belfonte vs The Attorney General of Trinidad And Tobago where it was stated;

“[…] where there is a parallel remedy, Constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature, which, at least arguably indicates that the means of least redress otherwise available would not be adequate. To seek constitutional relief in the absence of such feature would be a misuse, an abuse of the Court’s process.” 

However, it is not to say that even commercial matters cannot have underlying constitutional principles. The Court took cognisance of the fact that litigation issues are not always black and white by stating that “[…] even in ordinary civil disputes, it is not difficult to find that there is some underlying constitutional principle involved. However, the mere fact that some underlying principle may be gleaned from the pleadings does not necessarily raise the matter to the level where it may qualify for determination as a constitutional issue.” The court went on to distinguish actual constitutional violations arising from different constitutional interpretations; and other matters that have an underlying constitutional principle. It clarified that when making an allegation of contravention of the constitution, the litigant approaching the court must state the particulars of the contravention and how the contravention was perpetuated in order to justify the court’s intervention. In addition to this, it stated as thus;

“Any such inclination to demand an inquiry every time there is a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialise the constitutional jurisdiction and further erode the proper administration of justice by allowing what is plainly an abuse of the court process. Abuse of process includes using the court process for a purpose or in a significantly different way from its ordinary and proper use. My own conception of a constitutional issue when it relates to the interpretation of a provision of Constitution is that there are posed to the court, two or more conflicting interpretation of the Constitution and the constitutional court is asked to pronounce on which is the correct one…”        

While the High Court in Mombasa held that even private persons, or private entities may breach and are liable for breach of the Constitutional provisions; the Court sitting at Machakos warned that the notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law, the same does not necessarily entail the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution; and that the same would be fallacious. The court warned that the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened; should not be abused lest the courts strike out pleadings or applications before them.

The question of Compensation and its merits

The general rule in seeking damages is that the same must be pleaded and proven. However, the Court in the Jessicar Clarise Case (Supra) noted that as much as damages, either emotional or financial, must be proven, the court must also take cognisance of the fact that recent judicial rulings indicate the right to privacy is recognised even without the absence of damages.

“That notwithstanding, an award of damages entails the exercise of judicial discretion upon reason and principle.

In Kinakie Co-operative Society Vs Green Hotel (1988) KLR 242, the Court of Appeal held that where damages are at large and cannot be quantified, the court may have to assess damages upon some conventional yardstick. But if a specific loss is to be compensated and the party was given a chance to prove the loss and did not, he cannot have more than nominal damages. In Peter Umbuku Muyaka v Henry Sitati Mmbasu [2018] eKLR, in regards to the aspect of damages in certain matters, the court relied on The Halsbury’s Laws of England, Third Edition vol. II, which defined nominal damages as thus;

“Where a plaintiff whose rights have been infringed has not in fact sustained any actual damage therefrom, or fails to prove that he has; or although the plaintiff has sustained actual damage, the damage arises not from the defendant’s wrongful act, but from the conduct of the plaintiff himself; or the plaintiff is not concerned to raise the question of actual loss , but brings his action simply with the view  of establishing his right, the damages which he is entitled to receive are called nominal­­­… 

As I conclude, I could not help but wonder what the place of the Data Protection Act of 2019 is in the protection of image rights, if at all? Sections 2 & 26 of the Data Protection Act, 2019 not only define data and a data subject but also the rights a data subject holds. A data subject is given the meaning of “an identified or identifiable natural person who is the subject of personal data”. Section 2 as read with section 29 of the Data Protection Act mandates data controller/ data processor to, before collecting personal data, in so far as practicable, inform the data subject of, among other rights, the rights of data subject; the fact that personal data is being collected; the purpose for which the personal data is being collected. However, what do you think?