Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR occurs when there is a disclosure of true facts to outsiders contrary to the determination and will of the person concerned. A right to privacy encompasses the competence to determine the destiny of private facts, and the individual concerned is entitled to dictate the ambit and method of disclosure of such facts.[9] 21. Academic writers are divided as to whether it is the right to privacy or identity that is primarily violated when a person’s image is used without permission for advertising purposes. Professor McQuoid-Mason contends that such use is a violation of a person’s right to decide for themselves who should have access to their image and likeness – something that goes to the root of individual autonomy or privacy.[10]Professor Neethling holds, to the contrary, that it is primarily the right to identity that is infringed in such circumstances.[11] For present purposes it is unnecessary to resolve these differences. 22. As the South African court authoritatively put it:“... The unauthorized publication of a person’s photograph and name for advertising purposes is in my view capable of constituting an aggression upon that person’s dignitas. It is not necessary for me in the present case to hold, and I do not hold, that this is always so. Much must depend upon the circumstances of each particular case, the nature of the photograph, the personality of the plaintiff, his station in life, his previous habits with reference to publicity and the like. ... “ [12] 23. ‘Privacy’, ‘dignity’, ‘identity’ and ‘reputation’ are facets of personality. All of us have a right to privacy and this right, together with the broader, inherent right to dignity, contributes to our humanity. 24. It is the personality rights of dignity and privacy that underscore individuality and set both the limits of humanity and of human interaction. But, the reasons for protecting privacy are wider than just protecting the dignity of the individual. 25. A person ’s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.[13] 26. Personality rights encompass the exclusive right of an individual to market, control and profit from the commercial use of his/her name, image, likeness and persona. The distinctive characteristics of one’s image, likeness or persona include but are not limited to name, face, body or recognizable body part, voice or voice impersonation, photograph, look-alike, signature phrase, paraphernalia or action, costume or personals signature. 27. Personality rights, generally speaking, consist of two types of rights, the right to privacy and the right of publicity. The right of privacy is the right to keep one’s image and likeness from exploitation without permission or compensation and generally applies to members of the general public. The right of publicity is the exclusive right of an individual to market his or her image, likeness or persona for financial gain. 28. The tort of misappropriation of personality was first introduced in Canada in the case of Krouse v. Chrysler Canada.[14] The tort can be expressed by stating that every individual has an exclusive right to market, for financial gain, their personality, image and name, and that the law entitles an individual to protect that right, if it is invaded. The tort of misappropriation of personality can be invoked when all of the following four elements are met:- http://www.kenyalaw.org - Page 4/9