Privacy: A focus on image rights


Businesses across the globe have embraced the use of images in advertising. FILE PHOTO | SHUTTERSTOCK

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 cannot.

Recently, the High Court in Machakos issued a landmark decision in Catherine Njeri Wanjiru Vs Machakos University.

In this case, Catherine sued Machakos University for using her photograph in advertising and marketing of the computer packages courses offered by the institution. The photograph was taken without Catherine’s knowledge.

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 the publishing of her image and likeness by the University for its own commercial gain with no personal financial advantage gained by her.

The 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 the 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 of 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.

Courts in Kenya continue to uphold the same position as in Catherine’s case. This is seen in Mutuku Ndambuki Matingi v Rafiki Microfinance Bank [2021] where Mutuke was awarded Sh2 million after the court found that Rafiki Microfinance had violated his fundamental rights to privacy and human dignity by publishing his image for purpose of commercial advertisements without his consent.

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 and to take steps to ensure that the use of such photos has lawful justification.

This could include putting in place express consent mechanisms to ensure they can legitimately use the photos for marketing and other purposes.

Mr Njoroge is manager, Legal Business Solutions, at PwC Kenya.

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