Commercial Appropriation of Personality and Image Rights Protection: Uganda High Court Decision in Asege Winnie v. Opportunity Bank

“…the mere lack of a legal regime in our jurisdiction that address the question image rights cannot be taken to mean that persons who suffer wrongs cannot seek redress from courts of law when in actual fact they are aggrieved.” – Hon. Justice Peter Adonyo in Asege Winnie v. Opportunity Bank (U) Ltd & Anor [2016] UGCOMMC 39

This blogger has come across a recent High Court judgment from Uganda in the case of Asege Winnie v. Opportunity Bank (U) Ltd & Anor [2016] UGCOMMC 39 which sheds new light on the emerging topic of personality rights and protection of image rights, which is not catered for in a perfect “unified” legal system but rather in a combination of rights and causes of action under the Constitution, common law and various statutes on intellectual property, defamation and consumer protection.

Asege is described as a successful female commercial farmer based in Soroti district in Uganda operating under the Dakabela Rural Women Development Association as chairperson. In 2013, Asege claims that she saw her image posted on huge bill boards run by the bank in which she was shown to be heartily laughing and holding a bountiful harvest of oranges in her hands. In addition to these huge bill boards the Bank is alleged to have produced advertising flyers, brochures and calendars bearing similar images of Asege as those depicted in the huge bill boards which the bank freely distributed through its branches country wide. In this regard, she told the court that these uses of her persona and image were neither licensed by her nor was her consent sought to use her image to promote the bank’s product in question, namely the “Agro Save Account”.

In reply, the bank stated that it had engaged the services of Maad Limited, an advertising company (listed as the third party in the case filed by Asege) to develop an advertising concept for its new product known as Agro Save with Maad developing the concept after advising it that Maad had lawfully purchased all the photographs used in the advertisement materials from an internet based website known Shutter Stock Inc and from the New Vision Printing and Publishing Company Limited and thus consequently the photograph which was used was lawfully acquired meaning that Asege had no cause of action and therefore her suit should be dismissed by the court with costs accordingly.

The court set out 4 issues which were found to be sufficient in resolving the dispute, namely

1. Whether the plaintiff’s image rights have been infringed upon by the defendant and or the third party.
2. Whether the defendant and 3rd party are liable in breach of confidence, privacy and or are liable for passing off, misrepresentation and false endorsement.
3. Whether the defendant and 3rd party unjustly enriched themselves by use of the plaintiff’s image.
4. What remedies are available to the parties.

With regard to the first issue, the court begins by noting that the legal regime as regards image rights in Uganda has not been largely explored as there is little jurisprudence both statutory and or by way of precedent. However, the court states that image rights protection has been a subject of actions in other common law jurisdictions which have to a large extent described them as personality rights.

The court noted that under the common law jurisprudence a personality right is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.  This right to personality is classified into two categories;

1. The right of publicity or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation and the right to privacy, and;
2. The right to be left alone and not have one’s personality represented publicly without permission.

According to the court, under common law jurisprudence publicity rights fall in the realm of the tort of “passing off” which idea was developed on the notion of natural rights that every individual should have a right to control how, if at all, his or her “persona” is commercialised by third parties who intend to help propel their sales or visibility of own product or service.

Arising from this common law jurisprudence, the learned judge held that for one to succeed in an action for infringement of image rights such a person has to prove the following basic elements:

-The plaintiff must be identifiable.

– The defendant’s action was intentional.

– The defendant must have acted for the purpose of commercial gain.

In this regard, the court cited with approval two Canadian cases namely Krouse v Chrysler Canada Ltd (1973) 13 CPR (2d) 28 and Athans v Canadian Adventure Camps (1977) CAN H1 1255 where it was noted that where a person has marketable value in their likeness and it has been used in such a manner that suggests an endorsement of a product then there is ground for an action in appropriation of such a person’s personality and that personality rights included both image and name.

In refuting Asege’s claim, the defendant tried to convince the court that the present case was similar to the case of Sikuuku v. Uganda Baati HCCS No. 0298 of 2012 previously discussed on this blog here. However the court disagreed with the bank finding that Sikuuku case is distinguishable from Asege’s case in that in the former case the plaintiff sought to recover damages under the Copyright and Neighboring Rights Act whereas Asege is seeking the common law remedy resulting from the unlawful use of her image.

In this regard, the learned judge rightly pointed out that the use of New Vision newspaper’s photograph of Asege must be distinguished from the use by Maad and the bank. As the court noted, New Vision’s use of Asege’s photograph was not for commercial purposes but for reporting current events. Furthermore, the court noted that the Bank and Maad had violated the license issued by New Vision with respect of the photograph since the license was for single use only and restricted to “agricultural purposes”. Finally, the court observed that there was no evidence that either the bank or Maad had made any effort to find out who Asege was before using her image (albeit partially) for commercial purposes.

In making the finding that the bank and Maad had violated Asege’s image rights, the court stated in part as follows:

In my humble view and my reading of the various legal provisions in regards to the instant matter, it is my understanding that every individual has a right to his /her personality which extends to the name of the individual and image and has a right to control the use of either. The defendant and third party apparently without any iota of authority took it upon themselves to use the plaintiff’s’ image for a commercial benefit without caring to find out as to who the plaintiff was. The motive of using the plaintiffs’ image in my view was clearly commercial aimed at promoting the defendant’s product called Agro Save Account which was geared towards soliciting for more customers. While it is debatable that the final product was not that of the plaintiff, it is evident that  features and attributes of the plaintiff are visible in the final product with this fact being related to by the testimonies of the various witnesses who instantly related the advert to the plaintiff for since the plaintiff had  featured in e newspapers before and then some aspects of hers featured in Exhibit D9 (3)

On the second issue, the court discussed in turn the various claims by Asege relating breach of confidence, privacy and or are liable for passing off, misrepresentation and false endorsement. With regard to breach of confidence, the court found against Asege based on the fact that she did not satisfy the first leg of the tw0-step test set out below:

1. There exists a relationship of confidentiality between the plaintiff and the defendant i.e. it must be limited to certain people or be something which is not public property or public knowledge.
2. Must have economic value.

In applying the above test for breach of confidence, the evidence before the court clearly showed that Asege was not known to the bank and Maad until she served the bank with a notice of intention to sue and therefore she was in any sort of relationship with the bank and Maad.

With regard to the breach of right to privacy, the court considered the provisions of the Ugandan Constitution as well as several international instruments ratified by Uganda such as the Universal Declaration of Human Rights (Art. 12) and the International Covenant on Civil and Political Rights (Art. 17), all of which address the right of privacy of the individual. The court found in favour of Asege and stated in part as follows:

“it is clear that while she [Asege] at first was not knowledgeable about the billboards bearing her images until she was informed so by Pw4 and several of her friends … who were asking her as to how much she had been paid for the adverts, she eventually came into contact with the images and was struck by the fact that she was indeed in those images yet she never consented to her images as portrayed by the defendant’s [bank’s] adverts to be used for any purpose with the fact remaining that the defendant was trying to ride on her success as a farmer to popularize their product and attract farmers to itself for commercial purposes and thus by using her images the defendant invaded her constitutional right to privacy as most of her friends kept insinuating that she had received a lot of money from the defendant resulting from the use of her  image on the bill boards, flyers and calendars with this fact creating clear and founded fear in her for ill-intentioned individuals could attempt to rob or steal from her.”

(….)

“Therefore, where an individual does not give any consent to the use of one’s image yet is confronted with the same on billboards in different parts of the country, there will arise grave concern resulting from such infringement of one’s privacy and therefore, I am convinced that arising from the action of the defendant and the third party the privacy of the plaintiff was indeed breached for they never sought in the first place her permission to put her images on the alleged publications.”

The above finding by the court appears to be sound in fact and in law and undoubtedly be extremely persuasive to future courts faced with privacy infringement claims relating to commercial appropriation of ones image. However an important distinguishing factor to be considered would be whether plaintiffs who are not considered to be as “successful” or as “popular” as Asege would be barred from making similar privacy infringement claims. Interestingly, the court’s finding on the privacy right also appears to discount the fact that like any non-derogable right, it is not absolute and may be limited in certain instances based on established grounds.

As alluded to above, Asege’s status as a ‘celebrity’ farmer as supported by evidence adduded in court were instrumental in the court’s findings against the bank and Maad on the various claims of passing off, misrepresentation, false endorsement and unjust enrichment.

Therefore despite the court’s remark highlighted above that Uganda lacks a legal regime for image rights, several areas of law were interpreted and applied favourably to aid Asege’s case. As a result, the Bank and Maad were held jointly and severally liable and ordered to pay Asege a total of 150 million Uganda Shillings in compensation for invasion of privacy, general damages and aggravated damages. The court also ordered the bank to pay Asege 5% of such royalties as accruing from the infringing advertisements since the latter went live.