Protection of Image Rights in Kenya: New Court Cases Against Microsoft, Safaricom and German Embassy

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‘Image rights’ generally refer to an individual’s proprietary right in their personality and the right to prevent unauthorised use of their name or image or a style associated with them. In a previous blogpost here, we have discussed the commercial appropriation or exploitation of a person’s identity and associated images as a commercially valuable asset, particularly for individuals such as actors, musicians and athletes who commercialise their images in association with the promotion of products or services.

The protection of the image of an individual has increased over the years in many jurisdictions, either through case law or through limited inclusion in other Intellectual Property (“IP”) laws such as the Copyright Act in some jurisdiction. However, with the exception of Guernsey, no legislation exists anywhere in the world that is exclusively drafted for the protection of all aspects of someone’s image. In light of this gap, the protection of image rights remains largely a matter of contractual and/or constitutional interpretation, especially in Kenya. Therefore, it follows that disputes relating to the protection of image rights in Kenya may require some ‘judicial law-making’, as it were.

This year, there have been three cases relating to image rights that have arisen and received media attention in Kenya, namely Suzie Wokabi v. Microsoft; Kitosiosio Ole Kutuk v. Safaricom; Tealaso Lepalat v. the German Embassy in Kenya. No rulings and/or judgments have been reported in these cases thus far therefore this blogpost merely highlights the facts and issues presently in the public domain with a view to illustrate some of the challenges in protection of image rights.

In the Suzie Wokabi v. Microsoft case, media reports indicate that Wokabi accuses Microsoft East Africa of misappropriating images of her hands and her son’s foot and using them for billboard advertising of Microsoft products without her consent. According to the media, Wokabi was approached by Muthoni Njomba, a makeup artist and entrepreneur who asked whether she could use Wokabi and her son as models for her artwork. Njomba then got a professional photographer who took photos of Wokabi’s hands and her son’s foot.

Thereafter Wokabi claims she was “shocked” when her husband told her that he had seen the same photo on a Microsoft billboard accompanied by the words “Art Deeper with Windows 8”. Njomba in a media interview reportedly admits that she approached Wokabi but denies the allegations that she sold the photos to Microsoft claiming that the photos belonged to the photographer who had the rights to do whatever he wanted with the photos.

Wokabi has since reportedly gone to court to seek “a declaration that her constitutional right to property was violated by Microsoft, an order for compensation for general damages and compensation for being used as models, taking into account her celebrity status, recognisability and reputation”.

Kitosiosio Ole Kutuk Safaricom 2014

In the Kitosiosio Ole Kutuk v. Safaricom case, it is reported that telecommunications giant Safaricom misappropriated and used a photograph of maasai moran on its GSM Sim Cards. John Ole Muli, the brother of the maasai moran discovered his brother’s photo on the Sim Cards while in Loitokitok town where the the Sim cards were being sold. The maasai moran in question, Kitosiosio Ole Kutuk claimed that the mobile communication service provider did not seek his permission before the photograph was used in the GSM Sim Cards being sold countrywide.

Kutuk therefore sued Safaricom for using his image without his permission or signed contract and it is reported that High Court Justice David Onyancha has heard from Kutuk’s lawyers that there was neither a contractual agreement was entered between Kutuk and Safaricom nor any compensation paid to Kutuk.

German Embassy Tealaso Lepalat Lake Turkana Festival 2012 2013

In the case of Tealaso Lepalat v. the German Embassy, it is reported that the German Embassy in Kenya was a co-sponsor in the Lake Turkana Cultural Festival and that a photo of Mrs Lepalat was allegedly taken and used by the Embassy to promote the Festival. As a result of the photo being taken and used, Mrs Lepalat’s her husband physically assaulted and divorced her for not consulting him before allowing use of her photo to promote the event. Mrs Lepalat also claimed that she has since been cast out of her village because she failed to seek the consent of her husband and elders before having the photograph taken. Mrs Lepalat maintains that she never authorized any person to take and use her photo in connection with the event.

The photograph at the centre of the dispute has since 2012 been used to promote the Lake Turkana Festival, held in Turkana’s Loiyangalani Village every year.

Mrs Lepalat, supported by her brother Gideon Lepalo, has taken the matter to court and is seeking compensation from the German Embassy for her physical and emotional damages she has suffered.

However, the Attorney-General of the Republic of Kenya, who was enjoined in the suit as an interested party, has reportedly told the court that the German Embassy can only be sued if the Federal Republic of Germany waives diplomatic immunity it enjoys in Kenya under the Privileges and Immunity Act. The A-G further contended that that the court has no jurisdiction to hear the matter, as it is barred from hearing the dispute by the Privileges and Immunity Act alongside international laws that protect foreign diplomats.
Therefore the AG asked the court to dismiss the proceedings against the German Government and its Embassy in Kenya.

In rebuttal to the AG’s arguments, Lepalat insists that the the German Embassy waived its immunity when it violated her rights by using the photograph without considering the Samburu community’s beliefs. Lepalat and her family further argue that diplomatic immunity, as per Kenyan laws, does not cover professional or commercial activity. In this connection, Lepalat contends that the Lake Turkana Festival is a commercial activity for which the German Embassy cannot invoke immunity. In addition, the use of her photograph without her consent was not the embassy’s official duty hence cannot be covered by diplomatic immunity.

As these cases proceed to full hearing and determination, this blogger will be keenly following the developments.

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Interpretation of Intellectual Property Rights in Kenya’s Constitution: Lessons from Supreme Court Advisory Opinion on the One-Third Gender Rule

Supreme Court Fountain Kenya

It is true the constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the constitution. We owe that interpretative framework of its interpretation to the Constitution itself. – W. Mutunga, CJ, Supreme Court of Kenya, Advisory Opinion No. 2 of 2012.

On 10th October 2012, the Attorney General sought the Supreme Court’s advisory opinion on one notable issue: Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.

This month, the Supreme Court delivered its Advisory Opinion on the issue raised above, in which the majority view supported progressive realisation of the gender equity rule and whereas a dissenting view in the minority argued for immediate realisation of the constitutional rule. The four Supreme Court judges in majority namely Justices Tunoi, Ojwang, Wanjala, Ndungu were of the opinion that the gender equity principle in Article 81(b) of the Constitution is a statement of aspiration and would only transform into a specific, enforceable right after it is supported by a concrete normative provision.

In arriving at this majority view, the following statement was made:

“The word “shall” in our perception, will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency.”

Read the rest of this article on the CIPIT Law Blog here.

Tobacco Plain Packaging Law: Intellectual Property Rights versus Human Rights in Kenya

Australia’s Parliament is without doubt one of the most proactive legislatures in the world. In a few short years, it has made history as the first country to legislate on carbon taxes and now it is taking on the multi-billion dollar worldwide tobacco industry. In the above clip, circa 10:53, Richard di Natale, Senator from Victoria had this to say on the need to legislate further against ‘Big Tobacco’:

“The one frontier that has remained open to tobacco companies is on the packets themselves. They are little billboards of nastiness advertising their wares to passers-by from pockets, from kitchen tables, on dashboards of cars, all around the country. And smokers do see the branding on these packets potentially dozens of times a day. And this Bill will remove that opportunity. An opportunity for tobacco companies to compete on grounds of brand awareness and image.

The Tobacco Plain Packaging Act 2011, when it does come into law, will remove the ability of tobacco manufacturers to display logos, images and promotional text on their packs and will replace it all with a plain brown packet. Current health warnings will be enlarged and accentuated… Under the Act it will be an offence to sell a non compliant product with potential penalties in excess of one million dollars for a wilful breach of the act by a body corporate. Under the Act, the packet will be tightly controlled: they have to be made of cardboard, packs have to be rectangular, contain no embossing, the colour needs to be a drab dark brown and no trademarks will be allowed. The location and orientation of the branding variant name are strictly prescribed and the graphic warning will be enlarged to 70% of the front of the packet.

In short, this bill aims to ensure that the packet of cigarettes is as ugly as the product itself.” (Emphasis added)

Australia has now enacted this Bill into law.

Meanwhile here in Kenya, the Tobacco Control Act 2007 remains in force and section 21 of this Act contains the following provisions with regard to packaging of tobacco products:

“21 (2) Every package containing a tobacco product shall –

(a) have at least two warning labels of the same health messages, in both English and Kiswahili, comprising of not less than 30% of the total surface area of the front panel and 50% of the total surface area of the rear panel, and both located on the lower portion of the package directly underneath the cellophane or other clear wrapping;
(b) bear the word “WARNING” appearing in capital letters and all text shall be in conspicuous and legible 17-point type, unless the text of the label statement would occupy more than seventy percent of such area, in which case the text may be of a smaller but conspicuous type size, provided that at least sixty percent of such area is occupied by the required text; and
(c) bear text that is black on a white background or white on black background in a manner that contrasts by typography, layout or colour with all other printed material on the package.

(3) All the warning labels specified in the Schedule shall be randomly displayed in each twelve-month period on a rotational basis and in as equal a number of times as is possible, on every successive fifty packages of each brand of the product and shall be randomly distributed in all areas within the Republic of Kenya in which the product is marketed.
(4) The Minister may, by notice in the Gazette, prescribe that the warning, required under this section, be in the form of pictures or pictograms; (..)”

Returning back to Australia, in the recent case of JT International SA and BAT Australasia Limited v Commonwealth of Australia [2012] HCA 30, Big Tobacco went to court challenging the constitutionality of the Plain Packaging Act. The High Court of Australia earlier issued orders ruling that “at least a majority of the judges” are of the view the plain packaging regime is valid under the Australian Constitution. The High Court rejected the arguments of Big Tobacco that there was an acquisition of property on less than just terms. See case citation here.

Meanwhile back to Kenya, BAT East and Central Africa Area Director Gary Fagan is reported as being “extremely disappointed” by the court] decision on the Australian Act which he termed as a “bad piece of law”. He adds that:

“”We fully support any form of evidence-based regulation but there is no proof to suggest plain packaging of tobacco products will be effective in discouraging youth initiation or encouraging cessation by existing smokers (…) In fact, plain packaging would only exacerbate an already significant illicit tobacco trafficking problem, and would have other significant adverse unintended consequences including driving down prices which would lead to increased smoking while reducing government tax revenue(…)”

As a matter of fact, earlier this year, IPKenya recalls government authorities raising the alarm over increased sale of counterfeit and smuggled cigarettes in Kenya. Kenya Anti-Counterfeit Agency (ACA) reported that cigarettes are rapidly becoming the most illegally traded product in the region, while health experts warned a health crisis could be looming. Local cigarette makers BAT-Kenya and Mastermind Kenya Ltd estimated that counterfeiters pocket upwards of US$1.05 billion (Sh100 billion) every year from sales across East Africa.

Comment:

In deciding whether Kenya should or shouldn’t follow Australia’s bold legislative approach, IPKenya asks: Is destroying trade marks or brands of Kenyan cigarette companies in order to discourage the use of tobacco products reasonable and justifiable under the limitation clause in Article 24 of the Constitution?

Unlike in Australia, Kenya’s Constitution has over 3 specific provisions on intellectual property rights including the broad provision on the protection of right to property enshrined in Article 40. In this regard, the stand-out constitutional provision which would need some legislative and judicial interpretation is Article 40(5) which states: “The State shall support, promote and protect the intellectual property rights of the people of Kenya”. This provision alone could form the basis of a constitutional challenge by Kenyan tobacco companies if the government decided to propose a law similar to the Australia’s Tobacco Plain Packaging Act 2011. In addition, Big Tobacco in Kenya may chose to rely on other persuasive arguments mentioned above such as the potential increase of smuggled and/or counterfeit tobacco products and its effect on illegal and organised crime in the country.

If our government was desirous to push for such legislation, it would argue that intellectual property rights must be balanced with other fundamental rights and freedoms also enshrined in the Constitution. In a recent High Court case discussed by IPKenya here, the court considered the intellectual property rights of pharmaceutical manufacturers protected in the Anti-Counterfeit Act but held that the provisions of this Act denied Kenyans access to essential HIV medicines therefore it violates the right to life of Kenyans as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1). The rights under Articles 26(1), 28 and 43(1) of the Constitution in addition to Article 42 on the right to a clean and healthy environment can be relied upon by the State in support of a plain packaging law.

Within Africa, it is reported that South Africa’s government has already expressed its intention to follow Australia’s controversial new tobacco law.