Wanjiru v Machakos University: Image rights and its relationship with constitutional/human rights in Kenya

In August, the Constitution and Human Rights Division of the High Court of Kenya issued a decision on the question of image rights and its relationship with privacy rights and data protection laws in Kenya.

Background

The Petitioner, Wanjiru was an alumna of the respondent, Machakos University. According to Wanjiru, Machakos University infringed her intellectual property rights, image rights, right to privacy and human dignity by using her photograph (taken by the university during Wanjiru’s graduation) in advertising and marketing of the computer packages courses it offers. These computer packages courses were offered at Kshs7,000 (approximately $60).

Wanjiru argued that the motive of using the photograph was commercial gain seeing as people would pay to take the advertised courses and that the use of her image resulted in people assuming that there was an employment or a brand ambassador contract between the parties when there was none. She also contended that the computer packages courses were basic and has therefore exposed her to ridicule and shame as people perceived her to be bragging about basic knowledge and experience.

Source: Cheezburger

The Petitioner therefore sought declaratory reliefs regarding the infringement of her rights; injunctions to restrain the Respondent from further infringement and an order for damages in the sum of Kshs 10million (approximately $83,000) per violation of each right. 

The University refuted these assertions and contended that no rights were infringed.

The decision

In its judgment, the court considered the following issues: whether the use of the pictures without the petitioner’s consent was a violation of her right to privacy and human dignity; whether such use is a violation of image rights and a violation of data rights; whether public interest outweighs an individual’s right to privacy in image rights and, whether the Petitioner was entitled to general damages. [Paragraph 31].

Regarding the issue of violation of the right to privacy, the court held that the factors to consider when determining whether the rights has been violated are “whether the information was obtained in an intrusive manner; whether it was about intimate aspects of the applicant’s personal life; whether it involved data provided by the applicant for one purpose which was then used for another; whether 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”. [Paragraph 43]. The court accepted the Petitioner’s contention that she is a private person and held that the Respondent violated her right to privacy by taking pictures of its graduates and using it without consent. [Did the University not have the usual general consent forms for students, graduands and visitors to consent to or accept that their photographs may be taken and used by the university in its communications to the public]. The court linked the right to privacy to section 29 of Kenya's Data Protection Act which requires data controllers and data processors to inter alia inform data subjects of their rights and of the actions that the data controllers and data processors may take in relation to the data of the data subjects.

Regarding the infringement of image rights, the court tied it largely to the question of whether the pictures were used for financial gain. The court held that the effect of an advertisement in this case was to inform the public of the courses being offered and to cause them to apply for and take the course at a fee of Kshs 7,000. The court further held that the Petitioner’s image rights were infringed as her photographs were used for commercial purposes and without her consent. See paragraphs 47 and 55.

On the question of damages, the court held that even though the Petitioner’s image rights and right to privacy, dignity and property were infringed, she did not sufficiently prove any resulting injury, damage or loss. See paragraph 60. The court also considered that in general and practical terms, the university was not a profit-making enterprise.

Comment

The decision reiterates the position that image rights are recognised and protected in Kenya. Unlike infringement of IP rights that do not generally require proof of resulting damages or injury, an applicant seeking specific damages for image rights infringement must prove resulting damage, injury or loss from such infringement. However, image rights in Kenya lean more towards a human rights protection regime as opposed to IP law/framework.

One other thing that was noteworthy from this case was that the University sought the opinion of the Kenya Copyright Board (KECOBO) on the matter and KECOBO issued a Legal Opinion wherein it stated that the University’s actions may have violated the right to human dignity and privacy, data rights, personal rights and proprietary rights. However, as the court noted the University did not tender this opinion in evidence. Instead, it was the Petitioner who tendered the opinion in evidence without informing the court how she got hold of the Opinion. It was for this reason (i.e., not providing information on how she got possession of the Opinion) that the court declined to give “a lot of weight” to the Opinion. The court’s judgment in this case did end up in tandem with KECOBO's Opinion. But, it would have been interesting to have the court cite and agree with the Opinion especially when the Opinion is a public document per section 79 of Kenya's Evidence Act.

However, future litigants now know how to persuade the court to give weight to the opinions of IP agencies such as KECOBO…