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Commercial advertising is not an exception to the right to privacy except with express consent says Hon Justice Wolayo in the case of Bassajabaka Yakub V MTN UG LTD

HCCS NO. 100 OF 2012

Hon Justice Wolayo in his judgment delivered on 26thday of March 2018 discussed the use of images for commercial purposes without consent verses the right of privacy.

The plaintiffs photograph was illegally used on a billboard for advertising purposes by the defendant without his consent. It caused him stress and put his life in danger as he received many phone calls alleging he had bagged huge sums of money from use of his picture. The defendant claimed that even if the billboard contains the plaintiff’s image, it is not easily discernible by casual observers and that it is not unlawful for a billboard to carry such an image.

Hon Justice Wolayo in discussing the right to privacy, noted that while the Constitution is loud and clear on the privacy of the home, correspondence, communication and property, it does not directly address the issue under scrutiny.  She looked at Article 17 of the ICCPR which provides that the courts are bound to recognize the right to privacy even when a person is in a public space as was the case before her.

In determining whether the right to privacy was infringed the court first looks into whether claimant had a reasonable expectation for privacy. If so, the court conducts a balancing exercise between the right to privacy and freedom of expression to determine infringement and compensation.

In this instance the plaintiff reasonably expected that an image of him captured while he was on a street would not appear on a billboard to advertise the defendants business and the publication of such image on the billboard without the plaintiffs consent was an infringement of his right to privacy.