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KTDA ordered to pay woman Sh1.5m for photo

tea

A worker on a tea farm. It is illegal to use ones photo on marketing materials without consent. FILE PHOTO | NMG

Summary

  • KTDA ordered to compensate a woman whose photo it used on marketing materials without her consent.
  • Justice Lucy Gitari ruled that KTDA used Ann Njoki Kumena’s image on its marketing brochures without her consent, thus infringing on her rights.
  • But KTDA opposed the claim saying she is not entitled to any royalties in a photo she does not have copyright to.

The High Court has asked the Kenya Tea Development Agency (KTDA) to pay a woman whose photo it used on marketing materials without her consent Sh1.5 million compensation.

Justice Lucy Gitari ruled that KTDA used Ann Njoki Kumena’s image on its marketing brochures without her consent, thus infringing on her rights.

The judge noted that Ms Kumena has a right to control how her image is used and that KTDA should have obtained her consent before using the same.

“Having considered the purpose for which the photograph was used which was for commercial purposes, a reasonable award ought to be given to the plaintiff. I find that an award of Sh1,500,000 is reasonable in the circumstances,” said the judge at Kerugoya High Court.

Ms Kumena claimed that KTDA unlawfully photographed and used her image, saying the action amounts to unlawful conduct and constitutes unjust enrichment of itself and unlawful interference with economic interest.

But KTDA opposed the claim saying she is not entitled to any royalties in a photo she does not have copyright to.

The firm noted that even if she is subject in the photo, which it denied she was, KTDA noted that she accepted to be photographed and voluntarily posed for the same and has not suffered any loss/damage nor had her fundamental rights been infringed upon as alleged.

Commercial purpose

However, the judge said Ms Kumena proved that KTDA took the photo without her consent and used her photographs for commercial purposes, that is, advertisement of its products without paying any compensation.

The photo was published on brochure entitled Kenya Teas: Our field: Our Process and captioned ‘Plucking Green Leaf’.

The court noted that the photo was used as evidence that the tea is picked from KTDA plantations for the production of the quality tea being advertised and yet no consent was obtained.

This violated her rights entrenched in the constitution, the judge observed.

“Where a right is violated and the culprit has gained from that violation, the person is entitled to damages,” the judge noted.

KTDA was also ordered to pay the cost she incurred prosecuting the case in court.

Similar case

In a similar case last year, a court ordered Kenya Orient Insurance Limited to pay Sh500,000 compensation to a man for using his photo on social media without his consent.

The man, Kevin Kimani Mungai, said the insurer took his photo when he went to collect a mobile phone which had been taken for repair.

The photo was later posted on the insurer’s Facebook page, which he said was done without his consent.

The court concluded that photos posted on social media financially benefitted the insurer.