I recently attended a forum organised to have discussions around youth involvement in governance. There was a banner being used for the event that had a person’s picture on it.
The picture was of a woman who was offering civic education to members of the public. She had a constitution in one hand and was conversing with the congregants. The scope of such matters is dealt with under personality rights.
Personality rights can be defined as the right to control the personal use of one’s image, likeness or other aspects of their identity. They can be broadly categorised into two types: the right to publicity and the right to privacy.
The right to publicity involves the right to keep one’s image and likeness from being exploited without permission. For instance, in the present case, for this organisation to put the woman's picture on their banner, they ought to get her express consent.
The right to privacy implies the right to be left alone and not have one’s personality represented publicly without permission. This relates more to something to do with a person’s personality, such as brand names and phrases that are synonymous with a person.
To use one’s photographs, image or likeness, the party seeking to use such a representation must first seek permission, and quite often, they have to pay for it. Failure to seek such authorisation could see one being sued for violation of personality rights. If such a suit is successful, the offending party might have to pay damages for the violation.
Personality rights are not very well developed in Kenya. There isn’t any legal provision that speaks to it with specificity and what exists in the current framework are general provisions relating to the affected rights.
There exist some cases that have shed light on the matter, but they have not gained as much exposure. As it is, it is a field of law that has wide room for jurisprudential growth.
Reference to a person does not have to involve their full name or official name. One needs to only make a reference that points towards the claimant. That is to say, even a well-known nickname can suffice.
Many people are unaware of the fact that their image should not be used without their consent. While others think it is a privilege to appear on certain platforms.
For instance, if a political party used a person’s picture taken at a rally, one may think that it is such an honour to have their picture on such a ‘prime’ platform.
Further, in many other instances, it may happen without the knowledge of the person involved. Making the violators of personality rights get away with the violations they commit.
As a general rule, it is prudent to always use a person’s image with their consent. This should be by expressly informing them of the extent to which the image will be used and possibly having a consent form signed. This serves as legal proof of authority.
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