Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR The Defendant submitted that the letter of 1st August 2016 was to reply to the Plaintiff’s letter of 22nd July 2016 and to inform the Plaintiff of the circumstances of the use of the image, ownership of the image between the 3rd Party and Plaintiff and the Plaintiff’s consent thereof. Despite this communication, the Plaintiff, produced and distributed the video online and also the post along the same lines. The video and post were not produced in Court, but the alleged words were copied out in the Defendant’s pleadings. The words in their ordinary meaning are about the Plaintiff’s personal experience with the Defendant on the use of her image and likeness without her consent or knowledge. Despite reaching out vide demand letter of 22nd July 2016, the Defendant pulled down her image but as to her claim the pertinent part of the Defendant’s letter of 1st August 2016 read thus; ‘We believe that any issue of copyright ownership over the photo is best resolved between your client and Ojwok’ The import of this reply was that the Defendant did not wish to consider the matter further. Clearly, the Plaintiff’s video and post was her opinion and events arising from the dispute that culminated in these Court proceedings. The Plaintiff’s statement was not false but true arising from her experience with the Defendant. The circumstances under which the words used in the video and/or post arose within circumstances of her own experience with the Defendant. There is no defamation as these facts are borne out by the pleadings and are the Plaintiff’s opinion of the ongoing dispute and not false and hence not defamatory. The Plaintiff used the social media platform to inform the public of her dispute with the Defendant which the Defendant after demand went silent until the Plaintiff filed suit in Court. The Court associates itself with the following sentiments; In Musikari Kombo vs Royal Media Services Ltd [2018]eKLR C.A. noted; “The essence of this defence [s] is an attempt to balance two competing but vital interests in society; the individual’s right to have their character and reputation protected and safeguarded from false unwarranted and malicious or scurrilous attacks on the one hand, and the public’s right to know as exercised and fed by freedom of expression, which is an indispensable feature of a free and democratic society as well as a major tool for public accountability.” The Defendants counterclaim for defamation is not granted as the publication was not proved, the video and photos were not produced as evidence. The Plaintiffs statement was not defamatory. c) If Liability is found, what is the quantum" This Court finds from the Plaintiff’s statement of claim, that the copy right claim fails as she is not author/artist of the photograph. Article 31 of Constitution protects the Plaintiff’s right to privacy; intrusion or infringement of the Plaintiff’s personal life by whatever means including photography audit amounts to breach of right to privacy as has been established in this case. In the Jessica Clarise Wanjiru case supra; the Court applied a 3 pronged test to prove unlawful use of name or image which the Petitioner/Plaintiff must prove as follows; a) The use of protected Attribute; the Plaintiff proved that the Defendant used her image and likeness on it campaign and advertisement on social media platforms from 7th July – 22nd July 2016 without her knowledge or consent. b) The use of protected attribute must be for an exploitative purpose either commercial or other exploitative purpose. The Plaintiff deposed that her image was used for commercial gain without compensating the Plaintiff. The Defendant commenced a social media campaign in form of a marketing competition dubbed # see9seekenya promotion to attract entrants’ submission of photographs/pictures of Kenya rich diverse and beauty of Kenya its people and culture. The winners would be awarded with the Defendant’s C9 Techno phone/camera each. The campaign and advertisement ran on all social media platforms for 2 weeks and the Plaintiff image was one of the photos used in the advert/campaign. The marketing and advertisement of the competition made wide publicity in the market with increased possible and actual clientele as well as promotion of its latest product(s) in the market. The business growth by increased sales meant profit. To that extent by use of Plaintiff’s image she ought to have been compensated. c) The plaintiff must establish that she did not give consent for the offending use of her image. http://www.kenyalaw.org - Page 12/14