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In the instant case, while it is true the plaintiff was in a public space, he assumed the risk he
could be accidentally photographed except he did not have direct knowledge as in the
Murray case. Can knowledge of the risk be implied ? I am inclined to the position that
knowledge can be implied simply because he was in a public place.
To this extent, the plaintiff by implication consented to the risk of his photograph being
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taken so there was no infringement for taking a photograph of the plaintiff when he was in a
street. However, the publication of the image on a billboard without the plaintiff’s consent
was an infringement of his right to privacy as he did not expect to appear in an advert nor
did he give his consent. The image is private information within the meaning of the Weller
case and its use on a billboard had to be with consent of the owner.
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Right to privacy and freedom of expression.
In SCCA No. 2 of 2002 Charles Onyango Obbo v Attorney General , the Supreme Court
explained the circumstance’s when a constitutional right will not be protected:
Where the exercise of one’s rights prejudices the human rights of another and
where such exercise prejudices the public interest.
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My concern here is with the first test: whether the exercise of the defendant’s right to
freedom of expression prejudiced the plaintiff’s right to privacy of his image .
While I agree with counsel for the defendant that advertising on billboards is a form of
freedom of expression its exercise was prejudicial to the plaintiff’s right to privacy of his
image.
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As suggested in Winfield et al at page 424 , it is irrelevant that the use of the image was
innocent especially as the plaintiff was not the target of the photographer but was
nevertheless very visible in the photograph.
Winfield et tal at page 424 suggests that
‘ while a person may not object to the publication of a photograph in which
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he is merely an incidental face in the crowd, he may object if he is the subject
of the photograph even if it is entirely innocuous and non-derogatory’.
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