PHOTO PRIVACY and MEDIA/IMAGE RIGHTS in NIGERIA

Introduction

This paper, in its first part, reviews the enforcement regime when a person’s picture is taken without permission. In the second part, this paper reviews the remedies available to a person whose picture or any other aspect of their personality is used for advertisements and other commercial purposes. The two topics for discussion are:

• Unpermitted photography (violation of privacy) and
• Commercialization of aspects of an individual’s personality.

In a more technical sense, the term image rights has come to be defined in line with No. 2 above. To avoid the confusion that might arise from discussing the term ‘image rights’ in both the general and technical usages, the writer would deal with No. 1 above summarily in the following paragraphs and then discuss No. 2 subsequently.

Part One: Image Rights on Violation of Privacy
The right to privacy is guaranteed under Section 37 of the Nigerian Constitution 1999, as amended, which reads as follows: “The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.”

This means that a right to privacy is provided for and guaranteed by the Nigerian Constitution. The question we must then deal with is ‘whether a court would be willing to consider unpermitted photography of a complainant as an invasion of his privacy? To deal with this, we will consider a definition of privacy. The Nigerian Constitution does not define privacy, nor is there any Nigerian case law to the writer’s knowledge that does. For the most part, the meaning of the term is assumed to be common knowledge; however, for purposes of clarity, a definition will be adopted. Privacy has been defined in the Report of the Committee on Privacy and Related Matters 1990 as “The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.

In the above sense, any intrusion into personal life by whatever means or form, such as photography, written articles, or caricatures, may be grounds for an action for breach of privacy. Despite a provision in the Nigerian Constitution guaranteeing the right to privacy, Nigerian legal jurisprudence on the point has remained largely undeveloped. The closest reference to the subject in Nigerian law, as opined by E.S. Nwauche ^32, is in Anton Piller cases, where the courts have expressed concerns about the potential breach of privacy in executing the injunctions and, in some cases, declined to grant the injunctions. However, in the absence of legislation or precedence on any point of law, Nigerian courts have customarily referred to the law for the time being in the United Kingdom (Britain); therefore, we shall proceed to evaluate the law in Britain on this point.

In Britain, there is no law or tort of privacy. As would be found in the succeeding paragraphs, the legislature and the bench in that country have expressed concern about the ramifications for freedom of expression if legislation on privacy or a tort of privacy were developed. In the case of Woodward v. Hutchinson ³³, Lord Denning MR, in a case involving a breach of privacy concerning the publication of private information, held:

“in these cases of confidential information, it is a question of balancing the private interest in maintaining the confidence against the public interest in knowing the truth.”

It is thought that legislation could result in considerable restraint on free speech and result in unprecedented litigation. Accordingly, as we will find much later, the courts, in a bid to do justice in certain cases, have expanded the torts of passing off and breach of confidence. The emerging body of image rights case law from Britain limits enforceable claims and subjects each case to a two-way test, which is brought under the expanded tort of passing off. In a 1961 House of Lord’s motion for the second reading of his Privacy Bill, Lord Mancroft said of the object of the Bill:

“to give every individual such further protection against invasion of his privacy as may be desirable for the maintenance of human dignity, while protecting the right of the public to be kept informed in all matters in which the public may be concerned… I know I shall be told that my Bill is an attack upon the freedom of the
Press.”

As predicted, the bill was challenged as being an attack on freedom of the press, but it ultimately failed, though other attempts were made without success. Consequently, there is a long-standing judicial attitude in Britain that does not recognize an actionable right for breach of privacy or for our purposes with respect to photographs. Underscoring this judicial reluctance in Britain and other common law countries was the captivating dictum of the courts in the 1765 case of Entick v Carrington ³⁴ that “the eye cannot, by the laws of England, be guilty of trespass.” And in the latter case of Raciti v. Hughes ³⁵, it was held that “as a general rule, what one can see, one can photograph without it being actionable.”. The courts in Britain, recognising that there was a need to address cases of breach of privacy but unwilling to create a freestanding right of privacy, in a later decision held that “a more promising and well-trodden path” towards dealing with privacy complaints “is that of incremental evolution, both at common law and by statute, of traditional nominate torts pragmatically crafted as to conditions of liability, specific defenses, and appropriate remedies, and tailored to suit significantly different privacy interests and infringement situations.” ³⁶ Therefore, in a bid to provide relief for complaints of breaches of privacy, courts in Britain have expanded existing torts, often stretching them too far.

An instance is the expansion of the equitable remedy of breach of confidence to cover complaints of breach of privacy. A breach of confidence occurs only when confidential information is published, whereas in privacy, a cause of action is complete the moment the private life of a person has been interfered with or intruded upon. It is immaterial that the information obtained from such interference or intrusion is published to some other person. Nonetheless, it would appear that a litigant in Britain complaining that a photograph of him was taken without permission might have no remedy under the Breach of Confidence unless at least the photograph was shown to some other person. And in that case, what would be punishable is the publication of the photograph to others and not photographing the person without permission. It goes without saying that the present regime of laws in Britain offers little or no remedies for breaches of privacy. As Britain offers no reprieve, we must look elsewhere. Irrespective of the foregoing, there are thankfully, though of persuasive effect in Nigeria, very clear decisions of the European Court of Human Rights (European Court) that, in appropriate cases, photographs taken without permission can ground a claim for breach of privacy. Article 8 of the European Convention on Human Rights (the “Convention”), which has similar provisions to Section 37 of the Nigerian Constitution, has formed the basis for such claims of breach of privacy. Article 8 of the Convention provides as follows: “Everyone has the right to respect for his private and family life, his home, and his correspondence.”. Section 37 of the Nigerian Constitution provides: “The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.” It is the writer’s view that Nigerian courts will find the decisions of the European Court on the subject of privacy, particularly with respect to taking photographs without permission, to be good law and are encouraged to apply the principles enunciated in them. This view is strengthened by the fact that Article 8 of the Convention and Section 37 of the Nigerian Constitution are based on the same principles and are almost similarly worded. There are two decisions of the European Court, among others, that suffice for the purposes of the writer’s arguments. The first of such cases is the case of Princess Caroline Von Hannover of Monacco ^37, whose pictures were taken in public without her permission while she was on holiday. The applicant, Princess Caroline von Hannover, had applied to the German courts for an injunction preventing any further publication of photographs relating to her private life that had appeared in German magazines, on the ground that they infringed her right to protection of her private life and of her own image. The German courts dismissed her claims, leading up to her bringing the claim before the European Court, which found that her right to private life had been breached in those circumstances and that the German courts had not struck a fair balance between her right to privacy and the right of the public to information.

The second and more recent case is authority, where a person’s photograph was taken without permission, and even if the negatives had not been developed, a breach of privacy had occurred. In this case, a baby, Anastasios Reklos, was put into a sterile unit when he was born. While in the sterile unit, his photograph was taken without the permission of his parents by the hospital as part of its commercial services. The baby’s parents objected, and their request for the negatives was refused by the hospital. The Greek courts refused to entertain the case, causing the case to be brought before the European Court. The European Court ruled that the taking of the photograph without the baby’s parents’ permission was a violation of his rights to privacy. Further, the Greek Government had argued unsuccessfully that it was self-evident that the mental maturity of the baby, at the age of only one day, was not sufficiently developed for it to sense any such infringement of its personality rights. The Court declined to entertain that argument, stating rather straightforwardly that all it had to determine was whether the rights to privacy of the baby had been breached, which the court held had been breached. It is proper to indicate that while Article 8 safeguards privacy rights against breaches by public authorities, the European Court held that the Greek government had obligations that, in the particular circumstances of the case, involved the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals.

Does this right to privacy extend to pictures taken in public places?
Yes, in appropriate cases. There are cases, such as that of the European Court on Princess Caroline Van Hannover, that have held pictures taken in public places to be violations of privacy. Even in public, a person can have a reasonable expectation of privacy. In other cases, it has been held that the mere fact that some other people know the information with respect to which a photograph is taken and published to the offense of the complainant does not act as a justification.

Does this right extend to celebrities and public figures?
It is interesting to draw the reader’s attention to a 1977 case where a British court held:

“Those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in favourable light are in no position to complain of an invasion of their privacy by publicity which shows them in an unfavorable light”³⁹

Notwithstanding the above case, in appropriate circumstances, a celebrity or public figure can maintain an action for breach of privacy, as the dictum of the European Courts in the case of Princess Caroline Von Hannover (a public figure) clearly demonstrates.

So does a citizen in Nigeria have a right to claim for breach of privacy where a photograph of him is taken without permission, whether in his home or in public? It is the writer’s opinion that such a claim can be maintained. The Nigerian Constitution guarantees the right to privacy, which the foregoing authorities extend to photographs. A complaint under Section 37 of the Nigerian Constitution may be commenced by way of enforcement of fundamental rights under the Fundamental Rights Enforcement (Procedure Rules) 2009 before any High Court in Nigeria. Moving forward, given that there are no privacy laws in Britain and while there is a constitutional guarantee of privacy in Nigeria, Nigerian courts must look away from Britain in dealing with questions arising in this area and to the European Court for context, if not guidance.

Part Two: Image Rights (Commercialization of aspects of an individual’s personality)
As would be found, the idea that an individual can enforce these rights does not derive from legislation in common law jurisdictions but rather from established legal principles in the United States of America (America) and civil law Europe. Following from the foregoing discussion on privacy rights in Britain, it might be safe to say that there are no image rights in British law; however, there have been very limited decisions of the courts in Britain that support the notion that image rights in a very restrictive sense might be enforceable in Britain. There have also been robust decisions from India on the subject, even in the absence of legislation. This section evaluates image rights in Nigeria, considering emerging precedents in Britain and India, as all three countries are common law jurisdictions. As we will find in the following discussion, appropriation of aspects of an individual’s personality for purposes of public information or other utilitarian ends may not be actionable in Britain on grounds of social policy. This will be discussed later.

Definition
In simple terms, image rights (known as the right of publicity in the US) refer to a person’s right to commercialize aspects of his personality, such as his physical appearance, pictures or caricatures, signatures, personal logos, and slogans, and also the right to prevent other people from commercially making use of them. For context, we refer to two definitions of image rights. The first, a practical definition published on the website of the Intellectual Property Office of Bailiwick of Guernsey: ⁴⁰

“The provision of image rights in law enables the definition, value, commercial exploitation and protection of image rights associated with a person. The Bailiwick of Guernsey Image Rights legislation enables a personnage (see below) to register their personality (and the rights that subsist within that personality). The image right becomes a property right capable of protection under the legislation through registration. Registration enables the image right to be protected, licensed and assigned.”

And in a case involving football star ^Wayne Rooney, image rights were defined as:

“Image Rights means the right for any commercial or promotional purpose to use the Player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the Player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights.”

In this sense, image rights are purely commercial rights and have nothing to do with the privacy of a person. Before we proceed, we must comment on ‘character merchandising’. Character merchandising is a marketing phenomenon where characters, locations, names, titles, and logos from TV series, feature films, or other entertainment programmes are used for promotions and the sale of products and services. In the case of humans, it is the movie character and not the actor that is merchandised. For instance, the character Spider-Man has been played by both Andrew Garfield and Toby Maguire. So clearly, goods bearing the Spiderman brand identify with the character and not the actors. While in some cases, character merchandising might form part of an individual’s image rights, it is noted that both concepts are not the same. Some differences in both concepts are considered below:

Merchandising characters from movies and copyrighted works creates significant copyright and intellectual property relations in the character, but image rights stand alone. Character merchandising is limited to characters in comics, movies, and other art forms, whereas image rights attach to human beings.

Image rights as presently developed are not adequately governed by copyrights and intellectual property legislation. Some of the reasons are as follows:

• One can only copyright works of creative expression that are not naturally occurring, like a person’s face.
• Copyrights and intellectual property rights relate to specific articles or ideas, while image rights attach to a person and all imaginably identifiable aspects of his personality, such as his image, voice, signature, etc. (See definition of Image rights in Rooney’s case.)

As we would find, a claimant in an image rights case must show that some pecuniary or commercial gain is to be made by such use. In actions for infringement of copyrights or intellectual property, the fact of unlawful use is sufficient to establish the case.

In copyrights and intellectual property cases, the person with proof of earliest ownership is likely to succeed, whereas in image rights cases, time is of the essence.

While intellectual property rights proceed from registration, image rights broadly speaking attach to the person and are hence enforceable without registration.⁴²

Understanding Image rights as property rights

As would have been noted already, image rights are property rights. As property rights, a person’s right to his image has four distinctive elements:

• the right to use his personality as he wishes
• the right to earn income from all attributes of his personality
• the right to transfer the income earned from attributes of his personality to others
• the right to sue on unpermitted use of aspects of his personality as a property right

The very notion that property rights are inherent in an individual’s personality implies, conversely, that attributes of that personality cannot be appropriated without prior permission, as with other kinds of property rights. It is important to note that it is celebrities who have mostly instituted and won image rights cases. This is not to suggest that persons who are not celebrities have no image rights; however, the reader will find that the ability of a claimant to demonstrate that he enjoys goodwill or considerable influence might be a factor in any image rights action. This position can be contrasted with the right to publicity in the US, which does not require proof of goodwill or any form of popularity. Indian courts have developed a similar right of publicity even in the absence of Indian legislation on image rights. However, India is an interesting instance of a common-law jurisdiction whose judiciary has been rather proactive in this area. In a 1994 case ⁴³, the Indian Supreme Court held that:

“The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising – or non-advertising – purposes or for any other matter.”

In another 2003 Indian case, ^44, the court held as follows:

“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it. For example if any entity, was to use Kapil Dev or Sachin Tendulkar’s name/persona/indicia in connection with the ‘World Cup’ without their authorisation, they would have a valid and enforceable cause of action.”

It is understandable that Indian courts are evolving a body of judicial precedents dealing with the question of appropriation of personality, as India, like the United States, is vastly endowed with sports and movie celebrities, thus compelling the courts to find alternative means of answering the unending questions of image rights violations. However, the courts have had to frame the Indian right of publicity by relying on Article 45 of the Indian Constitution governing the right to privacy and not purely as a property right. It can also be concluded that, according to the above authorities, in India, an action for breach of a person’s right to publicity may succeed even for non-advertising purposes.

Legal Protection of Image Rights
Image rights cases brought in Britain have proceeded on the unlawful ‘appropriation’ of aspects of an individual’s personality. Where a claimant alleges that he has been falsely held out as endorsing the goods or services of another person, there appears to be available relief under the tort of passing off, ^46, and under the tort of defamation in other cases. While there has been appreciable progress made in India in protecting image rights, the writer is of the view that Nigerian courts would be more inclined towards judicial attitudes in Britain than in India. Therefore, the legal protections discussed here are those ordinarily available in Britain, although a brief overview of the Indian approach would be attempted.

In Nigeria, a claimant might pursue his image rights claim under the following headings:

• Tort of Passing off
• Tort of Defamation

How image rights work:
Tort of Passing off

1st Scenario:
So Brila FM, Nigeria’s premier sports radio station, puts up an advertisement for the radio station, and Kanu Nwankwo is shown in the advertisement. Or pictures of Agbani Darego, a former Miss World from Nigeria, adorn advert posters for ‘Allure’ a local cosmetic company. Because Kanu Nwankwo cannot point to any law that says his image or photograph cannot be used by anyone to promote a brand or for any other purpose, an elementary response might be that Kanu Nwankwo cannot maintain an action against Brila FM. This had also been the position in Britain until the courts expanded the common law tort of ‘passing off’ to encompass cases where a famous person is falsely held out as endorsing a good or service. In the case of Irvine v. Talksport47, Talksport, a radio station, had doctored an image of Edmund Irvine, a Formula One driver, so that he appeared to be holding a radio in his ear. The radio carried the words “Talk Radio” on it. The court held that Edmund Irvine succeeded in his case of passing off against Talksport. In its judgment, the court held that the claimant had to prove:

• That at the time of the acts complained of, he had a significant reputation or goodwill and
• The actions of the defendant gave rise to a false message, which would be understood by a not-insignificant section of his market, that his goods had been endorsed, recommended, or approved of by the claimant.

We find that both Kanu Nwankwo and Agbani Darego might successfully claim against Brila FM and Allure under the tort of passing off for false endorsement. The writer is keen to point out that the Talksport case does not establish that individuals ordinarily have image rights. In a more recent English case ⁴⁸, the court was quick to restate its earlier ruling in another case ⁴⁹ involving the pop star Rihanna that “there is no such thing as a free standing general right by a famous person to control the reproduction of their image.”.

2nd Scenario:
Imagine a second scenario, where advertisements by a company creating awareness about heart diseases have pictures of Kanu Nwankwo on them. Kanu Nwankwo was famous for his significant role in winning Nigeria the Atlanta Olympic football gold medal with famous goals against Brazil. Shortly after the tournament, medical examinations showed that he had a heart defect, for which he underwent surgery. After the success of the surgery, Kanu started the Kanu Heart Foundation, which has become widely popular. Considering the foregoing background, would Kanu be able to maintain an action against the company? Applying the test set down in the Talksport case, an action by Kanu Nwankwo would fail under the second limb of the two-way test on the basis that no goods or services have been held out as being endorsed by Kanu. His picture has been used for purposes of public interest, for which no pecuniary gains have been made by the person putting up the advertisement. However, had the advertisement been put up by a hospital operating a cardiac
centre, Kanu might be able to proceed similarly under the first scenario.

Tort of Defamation:
3rd Scenario:
A young, unpopular graduate of the law school just called the bar, whose picture has been used to advertise a brand of tobacco targeting young professionals. Relying on the already-referenced English cases, it is difficult to see how an unpopular law graduate might succeed in an image rights case. However, there is a view that an action in defamation might serve the same ends because of the following reasons:

• The legal profession is a very conservative profession and
• a lawyer might suffer substantial damage to reputation with the attendant loss of clientele in the said circumstances.

If the said graduate does not smoke at all, such an advertisement might undermine certain relationships maintained on the basis of the graduate’s lifestyle, resulting in considerable personal and perhaps professional losses.

In the case of Tolley v. J. S Fry and Sons Limited50, an amateur golfer brought an action against a company on the basis that an advertisement featuring him gave the impression he was a professional golfer, which could lead to his being asked to resign his membership in his amateur golf club, and in those circumstances, the advertisement was defamatory. In his statement of claim, he deposed that “the defendants thereby meant, and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants’ chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes; that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer.” The case made it up to the House of Lords, which upheld the decision of the trial court, saying “there was evidence that such an inference might be harmful to the appellant in view of his position as an amateur golfer.”. The action for defamation resulted in damages.

It is apparent that the two torts may be extended in cases similar to the above scenarios; however, what is not settled is that these torts are remedies for an individual whose personality has been appropriated without prior permission.

Thoughts on India:
As has been pointed out earlier, the Indian judiciary has been very forward-looking in handling cases concerning image rights. Being a common-law country, can Nigerian courts adopt the Indian approach?

The enforcement of image rights in India has been based on an implied right of publicity, which the courts in India have held is inherent in a right to privacy under the Indian Constitution. What is interesting is that there is no right to privacy explicitly provided for in the Indian Constitution. The Indian courts had, by a long list of decided cases, held that implied in the right to life under Article 21 of the Constitution was a right to privacy. As already stated, the Nigerian Constitution, in Section 37, guarantees the right to privacy. Therefore, can Nigerian courts similarly rely on the right to privacy to protect the image rights of Nigerians as Indian courts have? Of course, Nigerian courts can, if they choose to. There are obvious advantages if Nigerian courts lean favourably towards enunciating a similar right of publicity by extending the right to privacy. Unlike the very limited decisions of British courts that only address the issue of appropriation of the personalities of celebrities, a right to publicity would be a freestanding right capable of enforcement by any Nigerian.

Conclusion
The application of tort devices to deal with the appropriation of personality has not proven sufficient. An image rights regime framed in the mould of the right of publicity in America and India would meet the justice of image rights claims. The writer submits that Nigerian courts should adopt a similarly progressive approach as Indian courts have done. There is a constitutional provision of privacy that can be expanded to include a right of publicity, as the Indian courts have done to great effect.

31. THE RIGHT TO PRIVACY IN NIGERIA Review of Nigerian Law and Practice, Vol. 1(1), 2007
32. Supra
33. [1977] 2 All ER 751
34. (1765) 19 State Trials 1030
35. (1995) 7 BPR 14, 837
36. R v Wainwright, [2001] EWCA Civ. 2081, at para. 42
37. Von Hannover v. Germany no. 2 (application no. 59320/00)
38. Reklos and Davourlis v. Greece (application no. 1234/05)
39. Woodward v Hutchinson (1977) 2 All ER 751
40. http://ipo.guernseyregistry.com/article/103037/What-are-Image-Rights
41. Proactive Sports Management Ltd v. Wayne Rooney & Ors. [2010] EWHC 1807 (QB)
42. The Bailiwick of Guernsey law on image rights makes those rights enforceable upon registration
43. RR RajaGopal v State of Tamil Nadu (JT 1994 (6) SC 514)
44. ICC Development (International) Ltd v Arvee Enterprises (2003 (26) PTC 245 Del)
45. Articles 19 and 21;
46. Traditionally, the tort of passing off protects intellectual property and applies to persons or businesses in competition. However, the tort has recently been extended to fill the void of image rights legislation in some common law jurisdictions, like the United Kingdom. The courts have successfully found that where a celebrity is falsely held out as endorsing a good or commercial service, the holding out comes within the tort of passing off.
47. Edmund Irvine & Tidswell Ltd v. Talksport Ltd [2002] EWHC 367)
48. Hearst et al v AVELA et al [2014] EWHC 439 (Ch)
49. Fenty v Arcadia [2013] EWHC 2310 (Ch)
50. 1 All ER Rep 131
51. Indian courts recognize a right similar to the US right of publicity
52. Right to Privacy Under Article 21 and the Related Conflicts, culled from
http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-related-conflicts-1630-1.html 5:56pm 08/04/22015