Description
Definition of personality – appropriation of one’s personality – right to personality – labour matter – employment relationship – at the time of filing –employer and employee relationship – breach of the right to privacy – unauthorised use of a person’s identity – obiter dictum – celebrity for right of publicity purposes – conditions for breach of personality rights – intrusion of personal privacy – appropriation of the claimant’s image or celebrity or likeness – Lack of consent from the claimant – general damages – error in title.
- Definition of personality – the combination of characteristics of quantities that form an individual’s distinctive character (p. 1).
- Right to personality means inherent rights associated with the personality of an individual (p. 1).
- The claimant filed a suit against his former employer based on tort – the former employer argued that the case was a labour matter hence the court lacked jurisdiction – it was held that the tort is not a labour matter since the employment relationship was not in existence. In order for a matter to be a labour issue, there must be, at the time of filing the suit, an employer and employee relationship (p. 5).
- If, without reasonable and probable cause, one uses another’s likeness, face, photograph or other defining attributes for either commercial or any gain without the other person’s consent, the act amounts to a tort or breach of the right to privacy (pp. 8 – 9).
- The respondent used photos of his former employee in advertising the company without the employee’s consent. It was held that the act amounted to a tort or violation of the employee’s right to privacy.
- Obiter dictum – Even if the appellant was an employee by the time of the commission of the alleged tort by the respondent, that could not be an exception to the personality right of the appellant, unless there was a clear written consent from the appellant (p. 9).
- Consent to commercially use one’s likeness, personality etc must be absolutely clear and certain (p. 9).
- When an unauthorised use of a person’s identity is made that is both direct in nature and commercial in motivation, the person whose identity has been misappropriated has by definition become a celebrity for right of publicity purposes (p. 12).
- Four conditions must be proved to establish breach of personality rights namely:
- Intrusion of personal privacy of the claimant on his identity/image by the respondent causing social, psychological, economical or any kind of injury upon the claimant (p. 19)
- Appropriation of the claimant’s image or celebrity of likeness for the respondent’s advantage in any form but in particular commercial purposes (p. 19).
- Lack of consent from the claimant (p. 19).
- Proof that the respondent earned more profit out of the illegal use of the claimant’s likeness (p. 19).
- The appellant was awarded general damages in the sum of TShs. 50,000,000/- due to the illegal use of his personality (photographs) by the respondent. The damages were awarded even though there was no proof that the respondent made profits out of that wrongful act.
- A case was filed against a director of a company but circumstances implied that the case was against the company and not the director. As a result, the court ignored that error in title and made orders against the company instead of the director (pp. 20-21).
