Seek consent to use photographs
Last week Justice Gitari made a landmark ruling in the case of Anne Njoki Kumena versus the Kenya Tea Development Agency (KTDA) that is set to provide guiding jurisprudence on the image rights in Kenya.
It is the right of every person to protect their “image” against unauthorised commercial use or exploitation.
Kenya does not have a definitive law on personality and image rights. Few countries do. It is, however, notable that the European human rights laws (Article 8 of European Human Rights Convention), recognises a right known as the right to privacy and family life.
One jurisdiction that has a definitive image rights law is the Bailiwick of Guernsey, a small island that makes part of the English Channel in Europe.
Legislating or not legislating image rights has been largely divisive. Some argue that image rights ought to be legislated to protect public personalities from unlawful exploitation for commercial gain. This school of thought argues that public personalities such as celebrities have spent a lot of resources developing their brand and ought to protect the same from misuse.
Others argue that an image rights law is unfair because no investment or creativity is required for the very image.
The fact that the decision is a court decision means it is a binding law unless it is overturned on appeal.
In Kenya, sources of law include legislation, principles of common law and case law such as the decision in Anne Njoki versus KTDA.
The facts of the case were that the defendant unlawfully photographed and used the plaintiff’s image in brochures.
The defendant argued that the plaintiff had no rights to the photo and that she had willingly posed for it.
The court relied on past decisions to establish the principle that where a person, without consent, uses another’s image for commercial benefit the right will apply.
The plaintiff’s constitutional right to privacy had been infringed and she was awarded general damages of Sh1.5 million.
Here are a few tips for people in the creative and marketing industries based on this ruling.
When taking photos or films for commerce, secure consent of subjects. A written consent explaining to the subjects the intended use of their images and any compensation is better.
Public figures can enforce image rights to protect their brand and reputation, given this ruling. You can sue a person who has opened a fake social media account in your name. Uphold people’s image rights for authenticity and to boost your image as a business that upholds ethics.