Graduations are big occasions. They’re a stage in one’s life when one gets thrust into completely unchartered territory. The ceremonies are just as grandeur. The whole event is usually recorded and live streamed … and oh the photographs!
These photographs will often flood your social media timelines like an unhinged tsunami intent on flattening any structure and fixture in its path.
One thing is for sure though, one thing that cannot be swept away in an instant, is the use of your image and associated rights without proper justification.
At the heart of this story and High Court case [Catherine Njeri Wanjau v Machakos University (Petition No. E21 of 2021) eKLR] is a graduate – Catherine Njeri, and a University that sought to exploit a moment of significant achievement within which she was captured.
Catherine, just a period of time after her graduation, noticed an image of herself captured in a university advertisement. She went on to point out the wrong that had been committed.
But, had a wrong really been committed?
According to Machakos University – no.
They argued that the actions complained of by Catherine Njeri Wanjau were in fact proper and did not amount to an infringement of her intellectual property rights. The university further argued that for a wrong to be proven, Catherine Njeri had to demonstrate that her name and likeness of other attributes were used for commercial or other exploitative purposes.
It was therefore Machakos University’s case that the use of someone’s name or likeness for news reporting and other expressive purposes was not exploitative so long as there was a nexus between the use of a person’s image and the matter of legitimate public interest, even without obtaining consent.
However, the High Court didn’t quite agree.
In the court’s opinion, Catherine’s right to privacy had been infringed upon by Machakos University, who ought to have known that she is a private person. They should have sought consent. Therefore, the university’s behaviour of taking pictures of graduates and using them without such consent was actually unlawful.
With respect to human dignity, the court, while relying on the South African case of Angella Wells v Atoll Media (PTY) Ltd & Anor, Western Cape High Court Case No. 11961/2006, stated that the appropriation of Catherine’s image or likeness for the commercial benefit or advantage of Machakos University constituted an unjustifiable invasion of the person rights of Catherine, including her dignity and privacy. The court added that, with respect to this dispute, no care was exercised in respecting these rights.
On the issue of public interest, the court held that a person’s image constituted one of the chief attributes of his or her personality because it revealed the person’s unique characteristics, distinguished from one’s other peers.
The right to the protection of one’s image would therefore presuppose the individual’s right to control the use of that image, including the right to refuse publication thereof.
In quashing the university’s case, the court opined:
“The respondent is adamant that it could do as it wishes with the images of graduates from the school as it pleases. The Constitution of Kenya is here to protect those who are exploited by such institutions for their benefit without the consent of the said persons. Rights must be protected”
(Three cheers for Judge Mwangi!)
The court’s averments were to the effect that, in this particular case, public interest did not outweigh an individual right to privacy in image rights. Furthermore, Catherine’s intellectual property rights, right of publicity, and personality rights had been infringed when Machakos University decided to publish Catherine’s in advertising and marketing the computer packages courses offered for financial gain without seeking consent from Catherine.
So, what does the law say?
Let’s dissect it. In so doing, we’ll rely on statutes and decided cases.
- The Constitution of Kenya 2010 protects the right to human dignity and the right to privacy.
[1]Dignity is a founding value of our constitution. Not only is dignity a value fundamental to our Constitution, but it is also a justiciable and enforceable right that must be respected and protected. Furthermore, the right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction, liberty, a “private sphere” with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals.[2]
When determining whether the right to privacy had been violated, the court in Mistry v Interim National and Medical Dental Council of South Africa (1998) (4) SA 1127 (CC had to then figure out whether:
- The information was obtained in an intrusive manner;
- It was about intimate aspects of the applicant’s personal life;
- 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
In T.O.S v Maseno University & 3 Others [2016] eKLR the court held that in order for it to reach a finding that the right to privacy had been breached, it had to first determine the extent of violation of the plaintiff’s right to privacy.
Thus, the appropriation of a person’s image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned – as was decided in the South African case of Angell Wells v Atoll Media (PTY) Ltd & Anor, Western Cape Case High Court Case No. 11961/2006. This particular court further went on to add that ‘if the photograph was employed for the benefit of a magazine, for the sole purpose of making profits, then such action would constitute an unjustifiable invasion of the person rights of the individual, including the person’s dignity and privacy.’
- The Data Protection Act (DPA)
The Data Protection Act of 2019 on its part defines what constitutes data[3] and outlines the rights of a data subject.[4]
According to the Data Protection Act (DPA)[5], Catherine had a right to be informed of what her image was to be used for. Machakos University did not notify her of this intended use (using the photograph for a commercial advertisement) and on that fact alone, her right to be notified under the DPA had been violated. One could argue that by extension, it constituted a breach of her right as a data subject.[6]
Conclusion
In this case, we observe the court’s stance on the importance of the image of an individual that is at the core of their identity. An issue that is particularly prominent within the creative and entertainment industry most especially with the kind of publicity that is associated with it.
This, therefore, is a matter we hope is taken more seriously and incorporated into the manner in which we handle image rights in general and moving forward.
[1] MWK & Another v Attorney General & 3 Others [2017] eKLR
[2] Kenya Human Rights Commission v Communications Authority of Kenya & 4 Others [2019] eKLR
[3] Section 2 DPA
[4] Section 26 DPA. Rights of a data subject.
[5] Section 29 DPA. Duty to notify.
[6] Note 4
