THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. 99 OF 2015
THE EYE (U) LTD
SHARREN GLENCROSS ::::::::::::::::::::::::::::::::::::: DEFENDANTS
BEFORE: LADY JUSTICE LYDIA MUGAMBE JUDGMENT
The Plaintiffs claim against the Defendants jointly and severally is for general damages, exemplary damages, a permanent injunction restraining the Defendants from further exploitation of the Plaintiffs photo and likeness and costs of the suit arising out of the Defendants’ invasion of her privacy through misappropriation of her likeness, defamation and violation of her right to privacy.
The Plaintiff is jointly represented by Ms. Wanjui Zakia Badiru and Mr. Boaz Muhumuza of M/s. Nakachwa & Partners Advocates and the Defendants are represented by Mr. Brian Kaggwa of M/s. Impala Legal Advocates & Consultants.
It is the Plaintiffs case that she is a subscriber to the islamic faith and a preacher whose religious belief does not subscribe to taking photos save for unavoidable circumstances and conditions. Sometime in 2014, the Plaintiffs nephew a one Nsubuga Ali Muhammad handed her a copy of the Eye magazine which had the Plaintiff s photo and likeness on its front page.
The Plaintiff contends that she has never allowed the taking of her photo or likeliness or authorised its appearance on the Defendants’ magazine and their website for any purpose whether commercial or not. She avers that she has received wide condemnation and ridicule from fellow preachers of the Islamic faith referring to her as a deceitful preacher who does not practice what she preaches, the copies of the magazine with the Plaintiffs photo have been distributed in bars and night clubs, places greatly condemned by the Plaintiffs preaching, the Plaintiff has been denied the right to preach at conferences and gatherings of muslim women which has deprived her of her source of income. Further that the Plaintiffs reputation has been greatly injured in the eyes of the right-thinking members of society, she has been subjected to psychological torture, mental anguish, emotional stress and that the said photo was not used in a news worthy manner but for commercial purposes leading to unjust enrichment of the Defendants.
The Defendants deny the Plaintiffs claims except that they used the said photograph. They aver that the owner of the photographic work is Dick Wahlin who through email correspondences allowed the first Defendant to use his work. Further that the magazine is a directory with invaluable information whose aim is to promote travel and tourism in Uganda and the Defendants have not gained economically nor accrued any advantage over the use of the photograph. In addition that the contents of the photograph and the person appearing in the magazine is a fair and legitimate factual commentary reporting on the current events or social issues in the public conducting her trade and that the Plaintiff by her conduct consented to the taking of the photograph and even voluntarily posed for it and she is estopped from alleging anything to the contrary.
The following issues were framed for determination at scheduling:
i. Whether the use of the Plaintiffs picture on the front page of the Eye magazine was an infringement of her right to privacy by the first Defendant.
ii. Whether the Defendants are liable in breach of confidence, privacy and or passing off, misrepresentation and false endorsement.
iii. Whether the Defendants unjustly enriched themselves by use of the Plaintiffs image.
Article 27 of the Constitution provides that “(1) No person shall be subjected to— unlawful search of the person, home or other property of that person; or unlawful entry by others of the premises of that person. (2) No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or otherproperty.”
In civil suit No. 194 of 2013 Esther Kisaakye v. Sarah Kadama, it was held that for defamation to exist, the Plaintiff must prove the following elements; (i) the defendant made a statement about the Plaintiff to another; (ii) the statement was injurious to the plaintiffs reputation in the eyes of the right thinking members of society; (iii) the statement was false; (iv) if the Plaintiff is a public figure, or was involved in some newsworthy event or some other event that engaged the public interest, then the defendant must have made the false statement intentionally or with reckless disregard of the Plaintiffs rights and (v) there are no applicable privileges or defences.
The test used to determine whether a statement is capable of giving defamatory meaning was discussed in the case of A.K. Oils & Fats (U) Ltd v. Bidco Uganda Limited HCCS No. 715 of 2005 where Bamwine J (as he then was) relied on Sim v. Stretch (1936) 2 ALL ER 123 A C, where Lord Atkin held that the conventional phrase “exposing the Plaintiff to hatred, ridicule and contempt” is probably too narrow. The question is complicated by having to consider the person and class of persons whose reaction to the publication is the test of the wrongful character of the words used. He proposed in that case the following test; “would the words tend to lower the Plaintiff in the estimation of the right thinking members of society generally?”
In Moses v Macfarlane (17602) Burr 1005, it was held that “the principle of unjust enrichment requires; first, that the defendant has been enriched by the receipt of a benefit; secondly, that this enrichment is at the expense of the plaintiff and thirdly, that the retention of the enrichment is unjust. This qualifies restitution.” The above case was cited with approval in civil suit No. 234 of 2010 Cloth link (U) Ltd v. African Trade Investments Fund Ltd & Another.
I have read all the submissions and the pleadings on record carefully. It is not disputed that the Plaintiffs picture appeared on the cover page of the Defendants’ magazine of the August to September 2014 issue. While the Defendants present in the Written Statement of Defence that the Plaintiffs picture was availed to them by the photographer Dick Wahlin, there is nothing on record to demonstrate the circumstances under which the said photographer took the picture of the Plaintiff. So it is difficult to say whether the picture was taken voluntarily or involuntarily. It seems the Defendants used the Plaintiffs picture on the assurance of the photographer who took it without contacting the Plaintiff for permission so to do.
For clarity, the picture has no captioned story or title to it. It is just a picture on the cover page with the title “the Eye Magazine”. I have carefully and cautiously taken time to look at this picture. It depicts the Plaintiff as a well-covered up muslim woman seated behind a sewing machine, who looks up the camera in the middle of her sewing work. Without any additional story carried along this picture, it is difficult to say that this picture per se is or was defamatory to the Plaintiff.
This court finds it difficult to consider that the picture as presented tended to lower or injure the reputation or image of the Plaintiff in the eyes of right thinking members of society generally. The Plaintiffs claims of ridicule and wide condemnation from fellow preachers of the muslim faith, reference to her as a deceitful preacher, that the Defendant magazine was distributed in bars and nightclubs and that the Plaintiff has been denied the right to preach at gatherings and women conferences thus depriving her of her source of income are unsubstantiated by reliable evidence thus unbelievable by this court. The claims that her photo was used for commercial purposes leading to unjustified enrichment are also speculative and not satisfactorily demonstrated. To this end I wonder whether the use of the Plaintiffs picture earned the Defendants’ magazine more money than if another picture was used.
Issues 1, 2 and 3 cannot be resolved in the affirmative. For the above reasons the Plaintiffs suit cannot succeed. Having said that it is my considered view and I am satisfied that in using her photo for the said magazine, the Defendants did not get the Plaintiffs permission to use it. For this, the Plaintiff is entitled to some redress. I therefore award the Plaintiff general damages of Ug. Shs. 1,500,000/= (Uganda shs: one million five hundred thousand only) for the lack of this permission and any resultant psychological torture, mental anguish or stress therefrom.
I wish to point out that the Plaintiff should not use this use of her photo to exaggerate her claim in an effort to extort from the Defendants. This court can’t be party to such a scheme. In the circumstances of this case I consider any award of costs to be exploitative and unnecessary. So in my discretion, each party shall bear its own costs.
I so order
Lydia Mugambe Judge
5th October 2018.