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Opinion & Analysis

What the law says about individual’s right to privacy

Martin Kamotho has risen to fame. PHOTO | Jeff Angote | NMG
Martin Kamotho has risen to fame. PHOTO | Jeff Angote | NMG  

Martin Kamotho alias Githeri Man is a remarkable story of how an innocent picture can take a life of its own and create an alternate story that was never imagined.

However, he is not the first person whose celebrity has blossomed as a result of the hyperactive Kenyan cyberspace. His image spread like wildfire and created a character for countless memes.

Under the Constitution, every person has a right to privacy and this includes the right not have any information regarding their person unnecessarily revealed.

The right to privacy is simply the right to be left alone. It guarantees your inherent right to have your private details not to be publicly consumed without your consent.

A wider interpretation of the privacy right under the Constitution would extend to a person’s right to have their images not to be unnecessarily disseminated.

In other words, you own the device taking the picture but you don’t own the picture entirely when it carries someone else’s image.

By the same token, any person who disseminates anyone’s images without their consent violates the latter’s image and personality rights. Image rights are not owed to those who are famous and neither are they dependent upon any particular level of popularity.

Thus, Githeri Man possessed image rights even before he made his entry to cyberspace through the first picture that was shared online. This means that no one is allowed to share his picture online for the purposes of commercial gain as it infringes his right to privacy.

Susan Sontag wrote in her 1973 seminal work, ‘‘On Photography’’, about there being something predatory of taking someone’s picture because you see them in a way they cannot see themselves, kind of turning them into objects and symbolically owning them.

“The camera/gun does not kill, so the ominous metaphor seems to be all bluff—like a man’s fantasy of having a gun, knife, or tool between his legs. Still, there is something predatory in the act of taking a picture. To photograph people is to violate them, by seeing them as they never see themselves, by having knowledge of them they can never have; it turns them into objects that can be symbolically possessed,” she wrote.

The use of people’s pictures for the purpose of reporting events does not necessarily violate the rights of the photographed subject.

However, using the image for marketing or any other commercial gain without the consent of the owner could provoke a suit in court for violation of privacy and intellectual property rights.

In the Kenyan context, image rights or personality rights is a fairly novel area of law and thus requires an open-minded approach for the application of the law in this manner.

Kenya does not have a comprehensive legal framework for the protection of image rights. Nevertheless, an extra stature addressing the matter would be unwise. The right to personality and image must be retained by virtue of being human, not due to the gravity of popularity.

If the right to protect one’s image depends on the level of popularity it breeds potential legal trouble. For instance, corporate juggernauts would use people’s images for commercial gain while justifying their actions with the lack of popularity.

The right to privacy, which has birthed personality and image rights, must never depend on a collective craze for a person’s life. Privacy must remain inalienable.

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