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In a recent judgment in the case of Roshanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR, the High Court considered a petition filed by Ebrahim who was crowned Miss World Kenya 2015 and subsequently dethroned based on nude photographs of her allegedly given to the Miss World Kenya organisers by Ebrahim’s boyfriend. Aggrieved by the decision to dethrone her, Ebrahim sued Ashleys Kenya which is the organiser and franchise holder of Miss World Kenya from the Global Miss World pageant, Ashleys Kenya Chief Executive Officer (CEO), Ms. Terry Mungai along with her said boyfriend, Mr. Frank Zahiten and the First Runner-up Ms. Evelyne Njambi, who was enthroned as Miss World Kenya following the dethronement of Ebrahim.

The Crown Prosecution Service in the United Kingdom defines “Revenge Porn” as “the sharing of private, sexual materials, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress. The images are sometimes accompanied by personal information about the subject, including their full name, address and links to their social media profiles.”

In the present case, the court stated that the two central issues for determination were whether Ebrahim’s constitutional rights were violated by not being given a hearing before her dethronement and whether her right to privacy had been violated by the leakage of her private photographs by her ex-boyfriend.

On the first issue, the court found that Ebrahim’s claim against Ashleys Kenya and its CEO can only lie in Contract Law for any breach of contract by wrongful termination of the Management Contract dated 22nd January 2016 and/or for defamation under the Defamation Act. The court noted that the Contract had an arbitration Clause which required the parties to resolve any disputes therein by Arbitration. Similarly, defamation is a civil wrong the remedy for which should be sought in a civil suit and not in a constitutional petition. Therefore, according to the court, the issue of dethronement of Ebrahim from as Miss World Kenya and disqualification from contesting for the 2016 Global Miss World title is not a constitutional issue for the determination by the Constitutional and Human Rights Division of the High Court. The court held that this issue was a commercial matter for the hearing and disposal by the Commercial Division of the Court, noting that the Arbitration Act, 1995 requires that the dispute which is governed by an arbitration clause be referred in the first instance to arbitration in accordance with the Contract.

On the second issue, the court held that Ebrahim’s case against her ex-boyfriend is a clear human rights issue of breach of the right to privacy under Article 31 (c) of the Constitution. Her ex-boyfriend though a private citizen is bound to observe the rights and fundamental freedoms of the Bill of Rights which includes the right to privacy. The Bill of Rights’ protection to privacy is an obligation of both state and non-state actors in terms of Article 20 of the Constitution. Article 31 (c) of the Constitution provides for the right to informational privacy which includes privacy of private photographs of a person. The court held that Ebrahim’s ex-boyfriend had by his close relationship as a had access to Ebrahim’s photographs, and may indeed have taken some of them, but he had no authority to publish the private photographs. In this regard, the court stated in part as follows:

“…the 3rd respondent [Ebrahim’s ex-boyfriend] did not send the photographs to the criminal investigation agencies, but to the organizers of the Miss World Kenya pageant supporting the allegations of malice on the part of the 3rd respondent following his break up with the petitioner former girlfriend [Ebrahim]. (…) In taking selfie nude pictures using a mobile phone or other communication gadget, a person does not thereby waive her right to privacy, she only exposes herself to the risk and danger of the photographs being transmitted to and viewed by other persons through the communication networks by unauthorised access and publication, or by authorised access but unauthorised publication. (…) In forwarding the private photographs of the petitioner [Ebrahim] to the 2nd respondent [Ashleys Kenya], the 3rd respondent had violated the petitioner’s right to privacy of information under Article 31 (c) of the Constitution, and the petitioner is entitled to compensation in damages.”

Despite the above decision by court, the judge found that Ebrahim had not adduced sufficient evidence for the court to assess the damages for the breach of the petitioner’s right to privacy. Therefore, the court decided to award “modest damages for the breach of the right to privacy” totalling One Million Kenya Shillings (Ksh.1,000,000/-) against Ebrahim’s ex-boyfriend.