1.0 Introduction

With technological advancements and trends posed by globalization, businesses, especially giant companies and entities, find themselves in a day-to-day need to advertise for brand relevance and recognition. In advertising, businesses employ different techniques to ensure that ads are relevant and reach the intended users. Common methods of advertisement include social media, social networking, videos, images, and billboard advertising.

In today’s landscape, there is a growing popularity in utilizing micro-influencers, nano-influencers, and everyday individuals in advertising (commonly known as influencer advertising), instead of solely relying on established celebrities or public figures. That has been due to the increased adoption of authentic marketing strategies, which leverage individuals with genuine connections to their audience and the product. The use of influencer advertising aims to cultivate public trust, enhance brand awareness, and foster a favourable brand perception.

It is an undeniable fact that influencer advertising benefits companies, enabling many businesses to thrive on a national, regional, and global scale. However, influencer advertisements can also be double-edged swords, potentially dragging entities to court to answer claims of privacy violation for either unauthorized use of images or likenesses or breach of image usage agreement terms.

The observations hereinabove draw lessons from the following cases in Tanzania:

• Multichoice (T) Ltd v. Alphonce Felix Simbu and others, Commercial Appeal No. 1 of 2023, HCT Commercial Division

The plaintiffs, Alphonce Felix Simbu, Failuni Abdi Matanga, and Gabriel Gerald Geay, instituted a suit against Multichoice (T) Limited before the District Court of Arusha, alleging a breach of their right to privacy. They claimed that Multichoice (T) Ltd had improperly used their images in an advertisement promoting the Olympic Tournament. The plaintiffs asserted that Multichoice (T) Limited displayed their images on billboards, social media, television, and newspapers without their consent, to encourage the public to subscribe to DSTV services.

Multichoice defended itself by arguing that the images used in the advertisement contained general information about the upcoming Olympic Tournament, in which only the plaintiffs were participating, and that Superspot held exclusive rights to the Olympic games.

However, the evidence presented by the plaintiffs revealed that Multichoice (T) Ltd had indeed utilized its images in a commercial advertisement, explicitly promoting DSTV services with pricing information. The extract of the said advertisement provided that: –

“Tarehe 23 Julai tutakiwasha katika mashindano makubwa duniani Olympics. Na kutoka Tanzania tunao mashujaa wa kupeperusha bendera yetu. Nunua full set ya DSTV kwa Tsh. 79,000/=” (in Kiswahili)

Literally transmitted in English to mean;

“On July 23, we will participate in the world’s biggest competition, the Olympics. And from Tanzania, we have heroes to fly our flag. Buy a full set of DSTV for Tsh. 79,000/=

Consequently, the District Court of Arusha ruled in favour of the plaintiff. On appeal, the High Court Commercial Division found the appeal without merit and upheld the awarded damages of Tzs 450,000,000/= plus 10% interest from the date of filing the case to the date of judgment. The Court emphasized that the advertisement constituted a commercial endeavour by Multichoice, aimed at promoting their services through the unauthorized use of the plaintiffs’ images. The court found that Multichoice had no right to use the plaintiffs’ images without their consent and failed to prove ownership of the copyright in the images.

“The appellant may have a responsibility to broadcast news to the public. However, the trial court proceedings (testimonies of PW1, PW2 and PW3) show that the appellant had made a commercial advertisement that included the images of the respondents. She used the advert to invite the public to subscribe and pay for their services. Besides embodying the respondents’ image, the advert included the subscription fee and payment mode. That is not a free service”

“The above extract clearly shows that the appellant’s advert was commercial. Consequently, the respondents’ photos embedded in the advert were for commercial gain. That was not news that may be categorized for public interest. It was for commercial purposes. The appellant had no right to use the images without 32 the respondent’s consent. Even the issue of copyright ownership falls flat because the appellant failed to prove that they own the copyright in the images”

Therefore, the court concluded that Multichoice (T) Ltd.’s advertisement was not merely broadcasting news to the public but was a commercial venture, and as such, the use of the plaintiffs’ images without consent not only constituted a breach of their privacy rights but also passed off to image rights of the claimants.

• John Rafael Bocco v. Princess Leisure (T) Limited, Civil Case No. 3 of 2023, HCT at Mwanza

The plaintiff John Rafael Bocco a prominent footballer for Simba Sports Club and Tanzania National team instituted a case against Princess Leisure (T) Limited (Winprincesstz), a company dealing with online betting services. The plaintiff claimed that the defendant had used his images on its Instagram page for commercial purposes without his prior consent, and for that matter, he prayed the court to award him damages at the tune of Tzs, 1,000,000,000/=, 25% royalty for the use of images from 18/11/2021 to the date of judgment. The most crucial part of evidence in the plaintiff’s claim was that the defendant posted images of the plaintiff on her Instagram account with a statement;

“Uhondo wa ligi ya NBC unaendelea leo kwa mechi 3. Kubwa zaidi nis IMBA watakuwa wageni wa Ruvu Shooting huko Mwanza kwenye dimba la CCM kirumba. Siku za pesa zimerejea” (in Kiswahili)

Literally transmitted in English to mean;

“The NBC league competition continues today with 3 matches. The biggest one is SIMBA who will be the guests of Ruvu Shooting in Mwanza at the CCM Kirumba tournament. The days of money are back”

The Court also established conditions for a successful action for authorized use of image, that the plaintiff must prove first the use of protected attribute(s), secondly use was for an exploitative purpose and third, without consent. Lastly, the court granted damages of Tzs 200,000,000 as general damages after stating as follows: –

“The above message insinuates that the plaintiff and the defendant have a commercial arrangement and the plaintiff has endorsed the defendant’s betting business. This amounts to a misrepresentation where the plaintiff had not authorized the use of his images. It follows that the defendant took advantage of the plaintiff’s image and got gains from the post consisting of the image of the plaintiff without benefits to the plaintiff. The plaintiff believes and I agree with him, that it was for his fame the defendant used his image instead of images of other footballers. He is therefore entitled to damages”.

• Waubani Mohamed Linyama v. Dexter Agency, Civil Case No. 209 of 2021, District Court of Kinondoni at Kinondoni

The case is famously known as the “Ndugu abiria case”, the plaintiff instituted legal proceedings against the defendant, facts of the case are; in 2017 the plaintiff was a driver of a public van for New Force Enterprises while driving from Sumbawanga to Dar es salaam when the bus arrived at Mafinga the bus stopped at the hotel for meals and the plaintiff picked up a microphone and announced to the passengers to get ready for meals, in the course of doing so his fellow driver also employer of New Force Enterprises took a picture of him holding the microphone.

It was with that picture that the plaintiff marched before the court claiming the picture had landed in the hands of the defendants who used his picture in business seeking without his consent. The plaintiff relied on the defendant’s Instagram post of Friday 16th January 2021 with a caption;

“Tangazo Tangazo Abiria Msiwe na Wasiwasi Gari Ina Bima ya Dexter Insurance”

Literally transmitted in English to mean;

“Advertisement Advertisement Passenger Don’t Worry the Car Has Dexter Insurance”

Lastly, the court held as follows: –

“It seems to me therefore, that since the provision quoted above is too protective on personal privacy, personal family, his matrimonial life and protection of personal residence and his communication thus, whoever wishes to interfere with this right must first ask or obtain the consent from the person whom he wishes to publish his information or image/likeness or anything related with someone’s private life. Failure to seek consent from the person who authorizes the publication of private life in social media or community violates the fundamental right to privacy which is enshrined and highly protracted by our constitution which is the mother law of the country”

Notably, the case established different avenues through which claims on unconsented use of one’s image can be litigated, the court stated that claims on image rights can be litigated under Article 16 of the Constitution of the United Republic of Tanzania, 1977 which protects privacy rights. The claims can also be litigated under the common law torts purview by invoking established common law principles relating to the protection of the right to privacy, lastly, the court stated that the claims are litigable under the Human Rights perspective specifically through the Basic Rights and Duties Enforcement Act (BRADEA) [Cap. 3 R.E 2019], whereas in all those available avenues there has to be proof as to the absence of the claimant’s consent.

•  Ivanna Felix Teri v. Viettel Tanzania PLC, set up Co Ltd, 3rd Party Civil Case No. 7 of 2019, HCT at Moshi

The plaintiff, Ivana Felix Teri, initiated legal proceedings against Viettel Tanzania PLC (Halotel). In response, the first respondent applied for and was granted leave to join Set Up Co Ltd as a third party. The plaintiff sought 800,000,000/= in general damages from the first respondent for the unconsented use of her images in the promotion of mobile money services on Facebook, Twitter, and Instagram.

The first respondent argued that they had obtained consent for the use of the plaintiff’s images from Set Up Co Ltd. According to the first respondent, this consent was secured through contractual agreements with Set Up Co Ltd, which held exclusive rights over intellectual property, trademarks, and all other elements of copyrights. Therefore, the first respondent contended that they were not liable to third parties, including the plaintiff. Unfortunately, the case did not end in favour of the plaintiff, as she failed to prove infringement of her rights since the court established that the picture tendered in court was not similar to the one in the advert. In an image rights infringement claim, the person alleging the violation typically has the burden of proving that the image used is of them and that their image rights were not respected.

• Deogras John Marando v. Managing Director, Tanzania Beijing Security Guard Service Co. Ltd, Civil Appeal No. 110 of 2018, HCT at DSM

The appellant was the employee of the respondent. He previously lodged Civil Case No. 71 of 2017 before the Kisutu Resident Magistrates Court. The facts of the case were based on the claim that the respondent used attributes of the appellant’s identity or likeness to advertise his security company without his permission.

The matter was heard ex-part before the trial court following the defendant’s failure to appear, and the suit ended up being dismissed by the trial court. The appellant dissatisfied by the decision of the trial court, lodged an appeal before the High Court.

The Court was under the duty to determine whether there was a violation of the appellant’s right of personality in the matter before. The court before embarking on the determination of the appeal, first defined the right to personality as inherent rights associated with the personality of an individual which aims at controlling the commercial use or any other interference of his or her identity.

Court after going through the arguments of the parties thereof, made clear that there was no single term that authorized the respondent to use the appellant’s likeness and photograph to advertise its security service by the time the two parties were engaged. It was the observation of the court that even if the appellant was an employee by the time of the commission of the alleged tort by the respondent, that could not be an exception to the personality right of the appellant, unless there was clear written consent from the appellant and such consent should have been clear and certain.

The court went on to state that, under the direct commercial exploitation of identity test, when an unauthorized use of a person’s identity is made that is both direct in nature and commercial in motivation, the person whose identity has been misappropriated has by definition become a celebrity for publicity purposes. It follows, therefore, that every individual has an exclusive right to protect his or her identity or likeness. A person who exploits the personality of another on a commercial basis without his or her authorization will be liable under the provisions of the Copyright and Neighbouring Rights Act (Supra).

Further, the court established four conditions for one to establish a breach of personality rights, among other things, are the following:

• There must be an intrusion of personal privacy of the claimant on his or her identity or image by the respondent and through such intrusion the claimant suffers either social, psychological, economic or any kind of injury. There was clear evidence of such an effect.
•  There must be an appropriation of the claimant’s image or celebrity or likeness for the respondent’s advantage in any form but for particular commercial purposes.
• There must be a lack of consent from the claimant. In this case, it is vividly established that the respondent used the appellant’s likeness without his authorization.
• The must be proof that the respondent earned more profit out of the illegal use of the claimant’s likeness.

 From the above analysis, it is clear that a claim for passing off image right will succeed if the following conditions are proven:

1. Absent of Consent: The claimant must establish that there was no valid consent or authorization given for the use of their image, identity or likeliness.
2. Commercial gain: The unauthorized use of the image was for commercial or exploitative purposes. However, if someone uses another’s identity for news reporting or other expressive purposes related to a legitimate interest, it may not be considered exploitative.
3. Harm: The claimant must also convince the court that she/he experienced harm because someone invaded their privacy, affecting them socially, psychologically, or economically.

2.0 Legal framework governing image rights in Tanzania

Image rights fall under the broader category of personality rights, which entails the right to privacy and the right to publicity. In the Kenyan case of N W R & Another v. Green Sports Africa Ltd Constitutional Petition No. 343 of 2016, the right to privacy was defined to mean the entitlement to safeguard one’s image and likeness from exploitation without consent or compensation while, the right to publicity was described as an individual’s exclusive right to commercially exploit their image, likeness, or persona.

In summary, Personality rights are generally considered to consist of two types of rights:

1. The right of publicity refers to the right to keep one’s name, image, and likeness from being commercially exploited without permission or contractual compensation. The right to publicity is also commonly referred to as NIL Rights (name, image, and likeness rights). Read the article https://www.linkedin.com/pulse/preserving-rodeo-legends-legacy-wrangling-rights-ip-nil-nguyen-szqze/
2. The right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission.

It’s worthwhile noting that claims for the protection of image rights in Tanzania can be determined through different legal regimes. Cases involving image rights violations are typically litigated and decided based on human rights perspectives, personal data protection law, intellectual property laws, constitutional provisions, and tort law as the commercial tort of passing off.

Copyrights and the commercial tort of passing off

By default, the copyright belongs to the photographer as the creator of the image. This gives them the exclusive right to control how the image is used, like reproducing, editing, or distributing it. However, if the image features another person, they typically need consent from that person especially if the image is to be used for commercial gains.

In cases whereby the image of a person is used for commercial gain without the proper consent of the person, the act amounts to a commercial tort of passing off. Ordinarily, passing off is defined to connote using another person’s image, likeness, or identity, without declaring such use. For a person to prove the claim of the commercial tort of passing off the three elements mentioned below must be proven:

1. a)    Misrepresentation whereby the personal image used creates a false impression of endorsement or association.
2. b)    Damage to goodwill,
3. c)    Economic harm.

See Above: Multichoice (T) Ltd v. Alphonce Felix Simbu and others, Commercial Appeal No. 1 of 2023, HCT Commercial Division and John Rafael Bocco v. Princess Leisure (T) Limited, Civil Case No. 3 of 2023, HCT at Mwanza.

Personal Data Protection

With the enactment of the Personal Data Protection Act 2022 in Tanzania, the scope of protecting personal images has been widened as identity/personal image is personal data. Hence a person can pursue a violation of image rights under the legal framework of Personal Data Protection.

 Constitution and Human Rights Perspective

Unconsented use of someone’s image amounts to a breach of the right to privacy that is constitutionally protected under Article 16 (1) of the Constitution of the United Republic of Tanzania, 1977. Also, the right to privacy is a human right protected under global human rights instruments and laws such as the Universal Declaration of Human Rights (UDHR). Therefore, one may opt to litigate the unconsented use of his/her image from a human rights perspective. See the case of Waubani Mohamed Linyama v. Dexter Agency, Civil Case No. 209 of 2021, District Court of Kinondoni at Kinondoni.

3.0 What businesses, influencers and public figures must do

1. Enter contracts for Image Use: Businesses using someone’s image in advertising should have a written agreement with clear terms. This agreement should detail things like: – How long the image can be used (duration)- How the image can be used (commercially or otherwise)- How much the person will be compensated (commercial gains)- How either party can end the agreement (cancellation)
2. Understanding Image-Related Rights: Understanding these rights helps them make informed decisions about how their image is used and potentially earn money from it. Influencers and public figures should be familiar with: Intellectual Property (IP) rights – protects creative works like ideas, photos and writings. Name, Image, and Likeness (NIL) rights (in some regions) – protect a person’s control over how their image and name are used commercially. Personality rights – broader legal concepts protecting a person’s control over their image and identity.
3. Protecting Brand and Privacy: In today’s digital world, businesses should prioritize respecting individual privacy – not collecting or using personal information without permission.  Individuals should: – recognize the value of their personal brand (public image) Take steps to protect their privacy – be mindful of what information they share online.

Article written by

Fatma Haruna Songoro

Head of Technology Department

Victory Attorneys & Consultants,

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1. O. Box 72015, Dar es Salaam.

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