Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR A tag is an alert on social media platforms/accounts. It does not amount to implied consent if one does not respond to it. It also cannot amount to consent as it is a notification of the photograph already uploaded which is akin to seeking consent after the fact. Therefore, it is not a mechanism to seek or obtain consent, the consent must be explicit. The Plaintiff did not consent to her image and likeness to be used in the Defendant’s campaign and advertisement. c) Is the Defendant’s claim that at all times the copyright author or owner of Plaintiff’s image is Ojwok Photography who submitted the image to the Defendant and has been joined as 3rd Party to these proceedings sustained" The Defendant submitted that there was a condition; ‘By submitting your photos or videos, you give Techno the consent to use your work.’ The 3rd Party submitted the Plaintiff’s photograph which had a watermark and signature, the Plaintiff did not prove that she had copyright over the photograph as provided by Section 2 of Copy Right Act which defines copy right as original work of visual art created by Artist or produced under authority….. and includes photographs…. The Defendant relied on Sections 32 of the Act that provides for moral rights of the author, Section 33 of the Act that provides for modes of assignment and licenses of a copyright. The Defendant also relied on Section 34 of the Act on rights of action and remedies for exclusive license and sublicense and Section 35 of the Act that provides for redress for infringement of the copy right. The totality of these provisions protect an author or artist of visual art as owner of copyright and as such the Defendant submits the 3rd Party is the copyright owner and not the Plaintiff. Nevertheless, the 3rd Party despite being served even through substituted service has never responded or appeared in Court or filed any pleadings. Therefore, the claim under Copy Right Act by the Plaintiff must fail as it is only the originator of visual art who can/may successfully plead and/or prove right to a copyright. The Plaintiff is owner of her image but not author or artist of original works herein the subject photograph. d) Has the Defendant proved/established its counterclaim on defamation" The Defendant pleaded in the Amended Defence, pleaded that the Plaintiff aware of the circumstances of this matter. The Plaintiff produced a video and published on line with the following words; “Hi, it’s your girl Wangechi. In early June Tecno ran an advert in Facebook, Twitter and Instagram to advertise one of their phones on a campaign. They used my image and likeness on this campaign but did not contact me or ask me for permission to use my image and likeness as an endorsement. My management reached out to them with the hope that it could be solved out of court quickly and professionally. Yet after eight weeks they deleted both images and videos from all their social media pages. As an artist, my image is how I earn a living and it is not right for brands to believe that they can get away with robbing us from our rights to earn a living. Our image and likeness is our livelihood, it is not right to steal from us artists. Tecno, pay Wagechi.” The Defendant averred the contents of the Plaintiff’s video and post were false, malicious and defamatory of the Defendant and the publication was actuated by extreme malice and spite and calculated to injure the Defendant in its professional and business image. The Defendant sought full and unqualified apology, general damages, aggravated and exemplary damages costs and interest. The Defendant relied on the following cases; 1) Kipyator Nicholas Kiprono Biwott vsGeorge Mbugguss & Anor [2000] eKLR, “I do not find that the defendants have any defence to this suit having not given particulars of “truth and fair comment” pleaded in the defence, as required by the law…” 2) Joseph Njogu Kamunge vs Charles Muriuki Gachari[2016] eKLR “ a defamatory statement is presumed to be false, unless the Defendant can prove its truth. Defamation law puts the burden of proving the truth of allegedly defamatory statements on the defendant, rather than the Plaintiff.” http://www.kenyalaw.org - Page 10/14