On 13 October 2023, the Commercial Division of the High Court of the United Republic of Tanzania considered an appeal centred on the right to privacy. Briefly, the Respondents in the appeal - 3 elite Tanzanian athletes - had filed Civil Case No 15 of 2021 in the Arusha District Court against the Appellant, MultiChoice (T) Ltd, for breach of the right to privacy by passing off their image rights without their consent.
The case
On 13 October 2023, the Commercial Division of the High Court of the United Republic of Tanzania considered an appeal centred on the right to privacy. Briefly, the Respondents in the appeal – 3 elite Tanzanian athletes – had filed Civil Case No 15 of 2021 in the Arusha District Court against the Appellant, MultiChoice (T) Ltd, for breach of the right to privacy by passing off their image rights without their consent. The Respondents alleged that the Appellant used their images to sensitize the public to subscribe to their services for viewing the athletes participating in the Olympic Games. These images were purportedly published on various channels, billboards throughout the country, and the Appellant’s official Instagram and Twitter accounts. At the end of the trial, the District Court entered judgement in favour of the Respondents and awarded them TZS 450,000,000 in general damages and 10% interest in addition, calculated from the date of filing the suit to the date of judgment. Aggrieved by the decision, the Appellant preferred an appeal to the High Court.
The Appellant’s grounds of appeal
The Appellant grouped the 14 grounds of appeal into five clusters that the High Court had to determine. These were as follows:
- The District Court (the trial court) unlawfully awarded damages above its pecuniary jurisdiction;
- The court of first instance failed to carefully consider the evidence adduced at the trial;
- The District Court did not appropriately deal with issues surrounding the standard and burden of proof;
- The trial court erroneously failed to recognise that the Respondent was entitled to use the images that were the subject of the suit;
- The quantum of interest on the damages was wrongly awarded at 10%.
The Appellant’s argument
The Appellant adopted the argument that the trial court had no jurisdiction to grant reliefs not claimed in the plaint which if included would be beyond its pecuniary jurisdiction – in this case, TZS 70 million. With regards to the evidence adduced, the Appellant submitted mainly that the Respondents did not testify in the trial court as to where and by whom the images were taken such testimony, the Appellant argued, was essential for the court to ascertain whether the use of the images constituted a breach of privacy. Furthermore, the Appellant vehemently asserted that the case had not been proven to the requisite standard of the balance of probability. The argument concerning the use of the image was centred on the assertion that its purpose was to inform the public, with no evidence suggesting that it was employed to endorse the business or services of the Appellant. Additionally, the Appellant contested the decision to grant the Respondents 10% interest on the general damages from the filing date of the suit to the date of judgment. It was argued that, at the time of filing, the assessment of general damages was not feasible. Furthermore, it was asserted that the law stipulates interest rates of either 7% or 12%, with the latter applicable only in cases where there is a preexisting agreement to that effect.
The Respondent’s argument
On the issue of pecuniary jurisdiction, counsel for the Respondent submitted that the law does not specify a limit of how much the District Court can award for tortious liability and that the Respondent did not claim special damages which unlike general damages could have provided a basis for determining pecuniary jurisdiction. The court could only award the general damages which the Respondents claimed by a judicious exercise of its discretion. Further, the Respondent distinguished between character merchandise and passing off and argued it was the latter which was relevant in this case and that the trial court had found that the Plaintiff had proved passing off by establishing that there was use of the image accompanied by an exploitative purpose and the absence of consent. In rebuttal to the assertion that the Appellant possessed the right to use the image, the Respondent vehemently protested, contending that such a claim had not been substantiated to the necessary standard. The Respondent emphasised that any purported right to use the image could only be perceived as a tacit acknowledgement of the allegations levelled against the Appellant. Given that the crux of the case revolved around the alleged infringement of privacy rights, the Respondent underscored the importance of proving whether the image was indeed used and, if so, whether such utilisation encroached upon the ’Respondent’s rights to privacy and confidentiality. The Respondent conceded to the Appellant on the two issues surrounding interest.
The High Court Decision
The High Court found that the Appellant’s claim that the pecuniary jurisdiction of the District Court in as far as commercial cases are concerned is limited to TZS 70 million as per Section 40(2)(b) of the Magistrate Courts Act (MCA) 2019 was erroneous to the extent of the MCA exception to this limitation in commercial cases – where the subject matter is not capable of being estimated at a money value. The rationale of the court was that the case fell within this exception because the common law violation of privacy via passing off the respondents’ images is a commercial tort whose subject matter is incapable of estimation in monetary terms and on this basis pecuniary jurisdiction cannot be determined. Therefore, being a commercial tort the lowest court of first instance that was competent to try it is the District Court. To buttress this point, the High Court found that the Plaintiffs in the trial court never claimed special damages which could have been the basis to determine pecuniary jurisdiction and reiterated the Respondent’s contention that awarding general damages is at the court’s discretion and pecuniary jurisdiction was therefore a non-issue.
The High Court also found that just as was rightly held in Deogras John Marando v Managing Director, Tanzania Beijing Huayan Security Guard Service Co. Ltd, High Court of Tanzania, Civil Appeal No. 110 of 2018 (unreported), in order to substantiate a claim of passing off or privacy violation based on one’s image, the lack of consent from the claimant is typically required. With reference to the aforementioned case, the High Court underscored that for a claim for violation of privacy to succeed, the claimant is required to prove four conditions, namely: there must be an intrusion of his privacy on the identity or image by the respondent. Two, appropriation of the claimant’s image, celebrity or likeness for the respondent’s advantage in any form but especially commercial purposes. Three, there must be a lack of consent from the claimant. Four, proof of profit gained by the respondent through the use of the claimant’s image. The Court however clarified that as a matter of general principle, for a claim of privacy violation to be sustained proof of profit made by the defendant is irrelevant, however, could be material when assessing the general damages to be awarded to the claimant.
In light of the above, the High Court held that the trial court correctly assessed the evidence presented and concluded that there had indeed been a violation of privacy. This assessment was supported by the admission of a defence witness, who confirmed that the appellant did not have authorisation to publish the photos. The High Court stressed that consent is pivotal in determining whether a privacy violation or infringement of image rights has occurred. Moreover, it was held that the appellant had utilised the photos not in the public interest, but for commercial gain, by advertising and soliciting the public to subscribe and pay for her services.
Delivering its verdict, the Court meticulously distinguished between the copyright of the image and the athlete’s (respondents’) image rights and privacy rights. It underscored that, in the absence of a contrary agreement, copyright in the image or photograph rests with the photographer. Conversely, image rights pertain to the commercial exploitation of one’s likeness, particularly prevalent in sports and broadcasting. The Court recognised the media’s role, particularly television, in creating a marketable identity value, where individuals invest significant energy and ingenuity to attain celebrity status that can be monetized. Legal protection is granted to individuals in this regard, granting them exclusive rights to exploit their image for profit.
Regarding privacy rights, the court reaffirmed their recognition in various international instruments such as the UN Declaration of Human Rights, the ICCPR, and the African Charter of Human and Peoples’ Rights. Moreover, Article 18 of the Constitution of the United Republic of Tanzania explicitly provides for such rights. The High Court emphasised the distinct ownership of these rights—copyright, image rights, and privacy rights—by different individuals. It clarified that while the copyright in the image may belong to the photographer, the image rights and privacy rights may remain with the individual whose likeness is depicted in the image or photograph. Taking the aforementioned into account, the High Court held that the trial court proceedings and the judgment indicated that the appellant owned none of these rights.
Therefore, the High Court affirmed the trial court’s decision regarding both passing off and the privacy violation. Regarding the allegation that the trial court had not properly considered the burden and standard of proof, the High Court found this claim to be unsubstantiated.
Finally, the High Court agreed with both parties that the trial court had inaccurately calculated the amount of interest. As a result, the appeal succeeded in this regard, and the interest rate was reduced from 10% to 7% from the date of judgment (rather than the date of filing) until the date of full payment in accordance with the law.
Conclusion
Interesting points to note are that the High Court made a distinction between breach of privacy which was proved on the balance of probability and breach of confidentiality which was not as the Respondents had failed to prove that the images possessed the quality of confidentiality, and that any confidential information was diverged. Furthermore, the allegation of violation of privacy is based on the exploitation of one’s image without his consent and has nothing to do with copyright in the images. Violation of copyright would constitute a separate cause of action.
It is also worth noting that when the case was instituted in the trial court, the Personal Data Protection Act 2022 (the Act) had not come into effect and the Plaintiffs based their claim on common law tort. Therefore, gaps had to be filled by using common law and local precedents as well as international instruments and the Constitution of the United Republic of Tanzania. The High Court in the Deogras John Marando case (supra) which was cited in this case adopted an appropriately progressive interpretation of “personality right” or “celebrity right” and found that although they are not explicitly mentioned in the Copyright and Neighbouring Rights Act, a person who commercially exploits the personality of another without his/her authorization is liable for contravening the provisions in the Act.
With the enactment and coming into force of the Personal Data Protection Act 2022 (“DPA”), and with the recent inauguration of the Personal Data Protection Commission (PDPC) commission on 3 April 2024 by the President. Such claims of breach of privacy rights will be sufficiently protected by the DPA as it serves as a framework setting forth minimum standards to safeguard the privacy of individuals’ information, and ensuring that their personal data is collected, processed, and managed responsibly in accordance with the principles of privacy protection and data security. The courts to a large extent would no longer have to solely rely on common law, precedents, international instruments and the constitution with such specific data protection law in operation.
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