KENYA: Court Ruling Underscores Recognition of Image, Privacy, and Publicity Rights

The High Court of Kenya, on August 3, 2022, rendered a decision in the case of Catherine Njeri Wanjiru (petitioner) v. Machakos University (respondent) (Petition E021 of 2021) (2022) KEHC 10599, eKLR, on the entitlement to and enforcement of image, privacy, and publicity rights in Kenya.

The petitioner, who had been a student at the university, alleged that, without her consent, the respondent had used a photograph of her taken at one of its graduation ceremonies to market its training courses. The petitioner sought damages for the respondent’s infringement of these rights.

The respondent denied that it had taken or used the picture for commercial gain. It argued that the picture was taken at a public graduation ceremony and that it had also used other pictures containing images of other graduating students. It argued that it used the picture on its website to execute its obligations under the Universities Act and its Charter, which constituted a matter of public interest.

The High Court identified, among others, the following issues for determination:

• Whether the respondent’s use of the petitioner’s photograph without her consent amounted to an infringement of the petitioner’s image, privacy, and publicity rights; and
• Whether any public interest in the respondent’s use of the relevant image outweighed the petitioner’s rights.

The High Court found the following:

• The petitioner’s image constituted personal data and as such the respondent had infringed her right to privacy because it should have sought her consent to having the photograph taken; and
• The petitioner’s image and publicity rights were a protected attribute and the respondent’s use of her image was commercially exploitative and not in any public interest. As such, the petitioner was entitled to compensation.

It is unclear whether the respondent has appealed against this decision to the Court of Appeal.

This ruling underscores the recognition of image, privacy, and publicity rights in Kenya. Brand owners therefore should be careful when using images of natural persons as part of their trademarks or for any marketing purposes. Ideally, they should obtain consent from the subject in advance if they wish to use such images for public or commercial purposes.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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