DATA PROTECTION: IMAGE RIGHT IN KENYA

Highlights of N W R & another v Green Sports Africa Ltd & 4 others [2017]

Via a constitutional petition in the High Court, the parents of N.T.A & T.O.O (minors) sued Green Sports Africa Limited (GSAL) a gambling company for an unlawful commercial advertisement by way of Bill Board, bearing the images of their 2 children and promoting betting and gambling without their consent. The Bill board was erected next to Unga House, Located along Woodvale Avenue, at Westlands, Nairobi County. The parents of the minors termed this advertisement as a violation of Article 53 (d) of the constitution. That it was illegal for GSAL to use the minors or their images to promote gambling yet no payment was made for the said advertisement.

The parents thus instituted the petition in exercise of their parental responsibility to protect the minors’ rights under the constitution. They maintained that at the material time the minors were aged below 18 years, and that the consent of the parents was not sought or obtained, and that the actions complained of constitutes a violation of the minors’ constitutional rights and also violates international conventions protecting children’s rights.

GSAL filed grounds of opposition opposing the jurisdiction of the High Court to determine the matter stating that the petition did not raise constitutional issues and that it’s the children court that should determine the matter. GSAL further filed a Replying affidavit stating that the petitioners were aware that the minors took part in the photo shooting session and sports tournament it had organized; which photos were to be used in advertisement.

Determination:

Based on the provisions of Article 22 (1) which provides that “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened and Article 23 (1) which provides that “The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court concluded that it had jurisdiction to determine the matter.

On whether the minors’ rights were violated, the court had this to say:

“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.

Personality rights encompass the exclusive right of an individual to market, control and profit from the commercial use of his/her name, image, likeness and persona. The distinctive characteristics of one’s image, likeness or persona include but are not limited to name, face, body or recognizable body part, voice or voice impersonation, photograph, look-alike, signature phrase, paraphernalia or action, costume or personals signature.

Personality rights, generally speaking, consist of two types of rights, the RIGHT TO PRIVACY and the RIGHT OF PUBLICITY. The right of privacy is the right to keep one’s image and likeness from exploitation without permission or compensation and generally applies to members of the general public. The right of

publicity is the exclusive right of an individual to market his or her image, likeness or persona for financial

gain.

The court concluded that it was not disputed that images of the two minors were used in the Bill board in question. It was 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 and that there was nothing to show that the consent of the minors’ parents or guardians was sought and obtained.

That by voluntarily posing for the photos, the children cannot be said to have consented for the simple reason that they lacked the requisite capacity to grant the consent on account of being minors.

The court thus concluded as follows:

Considering the nature of the violations and bearing in mind the fact that it may not be easy to quantify infringement of fundamental rights in a case of this nature, I find that an award of Ksh. 750,000/= to each of the minors would be reasonable in the circumstances. Accordingly, I enter judgement in favour of the minors, namely N.T.A and T.O.O. as follows:

• A declaration be and is hereby issued that the Fundamental Rights and Freedoms of the minors N.T.A and T.O.O. were violated by GSAL action of using their photographs in the Bill Board which was erected next to Unga House, Woodvale Avenue, Westlands, Nairobi County.
• A declaration that the minors are entitled to damages as a consequence of the said violation.
• That judgement be and is hereby entered in favour of the minors against GSAL in the sum of Ksh. 750,000/= for N.T.A and Ksh. 750,000/= for T.O.O by way of general damages.
• That the above sums shall attract interests at court rates from date of filing suit until payment in full

It is important to note that at the time this decision was made the Office of the Data Protection Commissioner had not been established thus after the enactment of the Data Protection Act 2019, complaints revolving around image rights and privacy right need to be first lodged with the office of Data Protection Commissioner.

At A.O.WANGA ADVOCATES we are happy to assist you in all your image rights, privacy right and Data protection concerns in Kenya.

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