According to media reports in June 15, 2017  Purity Njogu, a model, moved to court and sued advertising agency ScanGroup Limited for continued use of her image and photographs in Kenya Airways advertisements despite the termination of her contract six years from the date it was executed. Ms. Njogu has allegedly claimed that her images and pictures were repeatedly used against her wish for economic gain and in violation of her right to privacy. According to the media reports, an advertisement agreement was concluded between ScanGroup Limited and Purity in 2007 in which Ms. Njogu would serve as Kenya Airways model in a promotion campaign both locally and internationally. The respondents asserted that the agreement allowed indefinite use of her images which was contrary to her assertion that the agreement was for a limited time period.

Observers will be keen to see how the court goes about determining the various issues raised in this case. In particular, it is worth recall that there is already persuasive jurisprudence on image rights from the Commonwealth. In Uganda, the case of Asege Winnie v. Opportunity Bank (U) Ltd & Anor [2016] UGCOMMC 39 recognised that under 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 Ugandan 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 in the Asege case held that for one to succeed in an action for infringement of image rights such a person has to prove the following three basic elements: 1) The plaintiff must be identifiable; 2) The defendant’s action was intentional; and 3) The defendant must have acted for the purpose of commercial gain.

Outside Africa, the courts in Canada have also greatly developed jurisprudence in this area. Two cases come to mind, 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.