In the recent past, we have seen instances where members of the public, more so well-known personalities who have raised issues against top corporations on matters of copyright infringement, wrongful use of their images or works and the same seems to have either fizzled out or no action taken in regards to the infringement.
However, this seems to be changing in light of the recent decisions that have been held by different courts around the country. For instance in the case of Anne Njoki Kumena vs KTDA Agency Ltd where the judgement was delivered on the 15th of February 2019 by Justice L.W. Gitari at Kerugoya Law Courts, the plaintiff claimed the defendant had used her photograph in a brochure which was intended to market the defendants business thus undermining her own economic interest as the photograph was taken without her permission. The defendant argued that the plaintiff did not own any copyright to the photo and that she had voluntarily posed for the photo thus didn’t incur any loss.
The defendants however failed to produce witness statements and list of documents and thus the plaintiff case went unchallenged.
The court held that the plaintiff had a right to control how her image, name or likeness is used and that it must emanate from her own consent and therefore found that the plaintiff had proved her claim against the defendant thus ordered that the plaintiff is entitled to a declaration that the defendant’s conduct amounts to infringement of the plaintiff’s right to privacy and protection from deprivation of property without compensation, that the plaintiff is entitled to damages and therefore awarded her Ksh.1,500,000/= general damages for the violation of her rights and the costs of the suit and interests.
It is a common occurrence for brands and corporates to share images of customers and event attendees on their social media pages without proper consent. Senior Principal Magistrate Addah Obura in the case of Kevin Mungai vs Kenya Orient Insurance Limited 2018 held that “Such consent was necessary,” and further added that, “This clearly is a form of marketing in the eyes of an ordinary man. Orient is in the insurance business… It is not convincing that they were merely advertising and were not gaining anything from such visits to their Facebook page.”
In this case the defendant took the plaintiff’s 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 and ordered Kenya Orient Insurance Limited to pay Sh500, 000 to the plaintiff.
In the absence of a legislation that is exclusively drafted for the protection of all aspects of someone’s image worldwide. The courts have taken the judicial law making step when it comes to resolving disputes relating to the protection of image rights in Kenya.