On the 7th of March 2022, the High Court considered the principle of the right to privacy and dignity. In the suit, the Plaintiff claimed a sum of Tshs 800,000,000 as damages for unlawfully using her pictures in marketing and promoting the Defendant's business without consent.
Personality rights refer to the inherent rights associated with the personality of an individual which aim at controlling the commercial use or any other interference with his or her identity.
Whilst personality rights are not much well established in Tanzania under any specific law, the court used established common law principles to formally recognise personality rights and their application in Tanzania.
Legal Issues for Determination
Prior to the commencement of the hearing, the following issues were framed:
- Whether or not there was consent by a plaintiff for her images to be used for commercial purposes.
- Whether the Plaintiff's rights have been infringed upon by the Defendant.
- Whether the Defendant unjustly enriched herself using the Plaintiff's images.
- Whether a third party has a License Agreement or any legal authorisation with the Plaintiff for the use of her images for commercial purposes.
- In the event that the Defendant is found liable in the suit with the Plaintiff, whether she is entitled to contribution; indemnity, or other reliefs from the Third Party.
- Remedies available to the parties.
The Plaintiff’s Arguments
The Plaintiff, a Medical Doctor, produced evidence in court and sued the Defendant and the 3rd party alleging that they used her images for advertisement without her consent or compensation. She testified that the Defendant and the 3rd party used images of her to advertise their mobile money services without her consent. The advertisements appeared on Twitter, Facebook, and Instagram. The Plaintiff, therefore, sought compensation on the grounds that her private and economic rights had been violated. The Plaintiff further contested that, as of 2018, she had never been compensated by the Defendant, despite the Defendant having utilized her images for commercial purposes. As a result, the Plaintiff sought the following orders from the court :
- A declaratory order declaring that the Defendant is in breach of the Plaintiff's right to privacy and dignity;
- An order for payment of special damages of TZS 800,000,000;
- An order for payment of 25% royalties arising out of the benefits gained as a result of publishing the advertisements infringing the plaintiff's rights as of October 2018;
- An order for the appointment of a receiver to collect and forward to the Plaintiff royalties;
- An order that the Defendant should remunerate the receiver appointed by the court to execute the order; and
- An order for aggravated damages.
The Plaintiff further stated that her celebrity personality rights derived from her attractive nature as she was highly photogenic. She testified that the images in question were taken from her camera, but she failed to tender the exhibits before the court and instead produced two copies of electronically generated images.
During cross-examination, it was further admitted by the Plaintiff that she did not know how much the Defendant and the 3rd party earned from those advertisements.
The Defendants’ Arguments
On their part, the Defendant vehemently contested the claims of the Plaintiff. The defendant produced the contract between itself and the 3RD party, which they alleged to have absolved them of any liability stemming from the use of the Plaintiff’s image rights. Essentially, they claimed that the contract established that :
- Setup Company Ltd (the 3rd party) would have full account access and authorisation to assume the identity of the Defendant and implement advertisement of the Defendant's products and full content creation;
- Setup Company Ltd would have exclusive rights of intellectual property, Trademark or any element of copyright to be used during the implementation of the contract and after the expiration of the contract;
- The limitation of liability among the parties, was that the Defendant shall not be liable whatsoever for any claims arising from any third party including the plaintiff, on any negligence or misconduct done by Setup Company Ltd; and
- That exclusive rights, consent and approval shall be sought by Setup Company Ltd from any third party including the Plaintiff during the implementation of the contract and after the expiration of the contract.
Further to the above, the Defendant submitted that it was agreed in the said contract by both parties that exclusive rights, consent, and approval must be sought by Setup Company Limited from any third party, including the Plaintiff, during the implementation of the contract and after expiration of the contract. The limitation of liability included two parts: First, Setup Company limited must have consent and approval of any intellectual property, trademark, and copyright of 3rd parties, such as the Plaintiff. Secondly, that for any claims arising from third parties due to negligence conducted by Setup Company Ltd, the Defendant would not be liable in whatsoever way.
The Court’s Decision
- Whether or not there was consent by the Plaintiff for her images to be used for commercial purposes and whether the Plaintiff's rights have been infringed upon by the Defendant.
On the first and second issues, the Court was guided by the case of Deogras John Marando vs Managing Director, Tanzania Beijing Huayuan Security Guard Service Co. Ltd, Civil Appeal No 110 of 2018, which provided a test for breach of personality rights. As per the precedent, for a party to establish a breach of personality rights, four elements must be established. One, there must be an intrusion of personal privacy of the Plaintiff on his identity/image by the Defendant and that through such intrusion the Plaintiff suffers either social, psychological, economic or any other kind of injury. Secondly, there must be an appropriation of the Plaintiff’s image or celebrity or likeness for the Defendant’s advantage in any form but particularly, for commercial purposes. Thirdly, there must be a lack of consent from the Plaintiff. Lastly, there must be proof that the respondent earned more profit out of the illegal use of the Plaintiff’s likeness.
The court held that the Plaintiff failed to substantiate the source of the photographs or their origins. The court carefully considered the evidential value of the two copies of electronically generated images tendered by the Plaintiff and the Plaintiff’s failure to tender as evidence the devices used in the creation of the said photographs (camera and mobile phone). Ultimately it determined that it could not be established on the balance of probability that the Plaintiff was the creator of the photographs or that she made the arrangement for the same to be taken. The court further considered the fact that the Plaintiff did not tender the exact photos that were used in the advertisement and observed that the person in the photo the Plaintiff tendered (alleging that the photo was used in the advertisement) was different from the person in the advertisement that was tendered in court.
Moreover, the court was of the view that failure to tender the original photo which was on the advertisement made it difficult to conclude that the Defendant had no prior consent or approval to use the said photo in its advertisement. The court stated that the said photo on the advertisement might have been taken by the Defendant or the Setup Company Limited (3rd Party) or someone else who had copyright of the image. Although acknowledging that in ordinary circumstances, it would be difficult for the Plaintiff to have the original copy of the photos. The court went on to emphasize that for the Plaintiff to succeed in the matter, she was required to establish not only that the image on the advertisement belonged to her but that she was also a creator of or had a copyright of the same. The court reiterated that this could only have been achieved by producing before the court the original photos or at least the device used to generate the same. Lastly, the court gave weight to the fact that despite the Plaintiff alleging that the Defendant downloaded her photo, which was allegedly used in the advertisement, from social media, she not only failed to mention the social media account the photos were allegedly downloaded from but also failed to provide the original photo from the social media account to substantiate the claim.
- Whether the Defendant unjustly enriched herself using the Plaintiff's images.
On this issue, the court held that the Plaintiff failed to substantiate the Defendant’s unjust enrichment. The court stressed that it is trite law that specific damages must be specifically proved. It was the court’s view that the Plaintiff simply demanded payment for TZS 800,000,000 without specifically pleading how such an amount was earned by the Defendant from using the photographs and how her economic rights were infringed upon.
Conclusion
This decision highlights that it is not enough to allege infringement of personality rights, the infringement must be substantiated by reliable evidence e.g., original photographs or the devices used in their creation. Tanzania has subscribed to the common law principle that copyright belongs to the creator of the image or to the person arranging the photo.
There has been a growing number of legal actions concerning the protection of personality rights in Tanzania. However, the lack of legislative authority in this area means judicial intervention often requires borrowing concepts from common law jurisdictions, such as in this instance, the United Kingdom, which has more comprehensive copyright protection laws. It will be interesting to consider the impact of the Personal Data Protection Act (" PDPA"), on this area of the law. The PDPA was passed in November but is yet to have taken effect as the notice of commencement of the same is yet to be published.
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Read the original publication at Bowmans.