THE USE OF EMPLOYEES IMAGES WITHOUT THEIR CONSENT IS A VIOLATION OF THEIR RIGHTS
James WaNjeri - Advocate & Christina Njeri - Advocate
Ms Kamande (the Petitioner) discovered that her photos had beenpublished in a local newspaper in its online publications dated 10thSeptember 2020, 2nd March 2021, 16th March 2021 and 19th March 2021.On 2nd and 16th March 2021 she received photos of newspaper articleswhere her image appeared on pages 16 and 17 of the newspaper. In thosepublications, a caption followed her image stating that she was an M-Pesaagent. She said these publications constituted a gross misstatement as shehas never been employed nor owned an M-pesa agency. She then sued thenewspaper for violating her privacy and publishing her image without herconsent.
She also stated that since her image was utilized in the Business Dailynewspaper, she received numerous phone calls from friends and familyenquiring about her newly found fortune. The perception by most peoplewas that she was paid a colossal amount of money to appear four times inthe newspaper, which made her live in fear for her security.
On its part, the newspaper stated that before capturing and using MsKamande’s image, her employer, Top Image Ltd, had invited them to takephotographs for a promotional event, including images of its products andits employees in their ordinary day-to-day course of business. Based onthe invitation, their photographer visited the place of employment andasked the employer, Mr. Shalin, who confirmed that the employees,including Ms. Kamande, had consented to their images being captured andused by the newspaper. They further stated that she did not object and/orrefuse to have her images captured during the exercise despite beingaware that her image was being captured. As such, they stated that theydid not violate the provisions of Articles 28 and 31 of the Constitution. Itwas also under the impression that a blanket consent for the use andpublication of the images had been given since her employer did not limitthe capture and use of the images to the promotional event only.
In her response, Ms Kamande submitted that the newspaper used her protected attribute which isher face and torso and further no consent was obtained before taking the photo. She argued thatthe purpose of the photo was for commercial gain and an exploitative purpose. She supported hercontention by submitting that the business daily newspaper is offered daily for sale in East Africa atroughly 60 Kshs. to an estimated 11 million readers. Further, all the impugned articles had no nexuswith her but were about Safaricom, a private telecommunication firm that never employed her.Further, the image was used for commercial speech as the article would not appeal or invokereadership without the image. As such, the petitioner submits that the respondent misappropriatedher personality.
The Law
Article 28 of the Constitution provides every person has inherent dignity and the right to have thatdignity respected and protected. Article 31(c) protects every person’s right to privacy, including theright not to have your private information unnecessarily revealed.
Section 26 of the Data Protection Act states that a data subject has the right to be informed of theuse to which their data is being put, the right to object and to demand for deletion of their data. Under Section 29 a data processor or controller is obligated to ensure that there is consent from thedata subject on collection of their data.
Was consent given?
In this instant case, the newspaper stated that they received consent to take photos and use them intheir publications from Mr. Shahin, the employer. The employer did not restrict when the photoscould be used, but he gave blanket consent, which they took as explicit consent to use at any time intheir publications. The court, however, noted that no evidence in the form of documentation wasobtained that they obtained the requisite consent. It further failed to state in which form theconsent was received, either verbally or by written consent.
Was there an employment relationship between Ms. Kamande and Mr. Shahin?
Ms Kamande’s evidence was that she was not an employee of Mr. Shahin. Rather, she was employedby Samsung and operated a stall at the Supermarket owned Mr Shahin and in the photos, she wasclearly wearing a Samsung branded T-Shirt. Further, the newspaper produced no evidence of thealleged employment. According to the Court, even assuming that Ms Kamande was the employee ofMr. Shahin, it was only she who had the capacity to consent to her images being taken andpublished. In the eyes of the Court, “An employer possesses no such capacity on personal affairs ofanother person. This defence of the respondent is just a mere defence.”
The Court also found that Newspaper did not obtain consent because their legal counsel stated thatit has standard operating procedures which stipulate that if a dispute arises concerning an image,the said image is deleted from its database. Despite knowing that she had raised her dissatisfactionwith using her image in the publication through her petition dated 20th April 2021, the businessdaily still used her image in its 6th June 2022 issue. In its considered view, Ms. Kamande’s petitioner’sright to privacy was violated since the publication or use of images of an individual without hisconsent violates the person’s right to privacy.
Did the Newspaper use her image to make a profit or was it for public interest?
Generally, using someone’s name or likeness for news reporting and other expressive purposes isnot exploitative, so long as there is a reasonable relationship between using their identity and amatter of legitimate public interest.
The Court noted that “the petitioner was wearing a t-shirt branded with the logo of Samsung andthat the newspaper did not demonstrate that she had any co-relation with Safaricom Ltd.Further, they did not show that said publications upheld public interest or did sparkcontroversial conversation as alleged by the respondent. On the contrary, the publications weremore geared toward advertising a service offered by Safaricom and would probably propel salesfor the benefit of the company. This is despite the fact that the petitioner was never anemployee of Safaricom. Moreover, the Business Daily is a newspaper widely circulated withinthe East African region and is sold at a certain fee. The juicier the stories and images supportingthem, the more sales the
respondent would achieve. In my view, the petitioner has demonstrated that the respondentstood to gain commercially from the publications.”
To succeed in a case like this, the courts have held that a person must show that the case involvedthe use of a protected attribute such as their image or name; it was for an exploitative orcommercial purpose and there was a lack of consent.
In this case, the Court awarded the petitioner Kshs. 1,500,000 for violation of her rights.
Case citation: Kamande v Nation Media Group (Constitutional Petition E004 of 2021) [2022] KEHC16017 (KLR) (1 December 2022)
Conclusion
This judgment serves as a poignant reminder that the right to control one's image and personaldata is fundamental. Any use without consent constitutes a violation of these rights.
One way for businesses to avoid breaching data protection and privacy requirements is to haverobust data protection policies that guide the collection and processing of data. Employers shouldalso be aware that only an employee has the capacity to agree to the use of their personal dataand the employer cannot give consent on their behalf. This is also a lesson for service providersthat they should always ensure that they have proof of consent to collect and use personal data.Persona data should only be used for the purpose that it is collected for.
We advise on data protection matters and guide businesses in issues touching on consent fromdata subjects. To consult on this, send us an email at legal@jnadvocates.com
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
Landmark Plaza, 13th Floor,
Argwings Kodhek Rd. Nairobi, Kenya
Tel: 0719494083
Email: legal@jnadvocates.com