Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR i. There is an element of commercial exploitation of a person’s personality. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain. ii. The person is clearly identifiable in the medium used and to their respective community or communities. iii. The person does not consent to the use of their personality. iv. Damages, either emotional or financial losses, are proven (although recent judicial rulings would indicate the right of privacy is recognized even in the absence of damages). 29. Emerging case law has developed two torts that allow for an individual to seek damages for the use of their personal image: the “misappropriation of personality” and the “passing off” of personality. 30. A clearly illustration is the U.S. case of Weller vs Associated Newspapers Limited,[15] where in a land mark judgment, the court identified the following issues, namely:-Was there a reasonable expectation of privacy;" If so, how should the balance be struck as between the Claimants’ rights to privacy on the one hand and the Defendant’s right to publish on the other," Did the publication amount to a breach of the law," What relief were the Claimants entitled to" 31. The court[16] considered the relevant legal principles[17] and reached the following conclusions amongst others, namely:i. what the publisher knew, and ought to have known, was relevant to whether there was a reasonable expectation of privacy. ii. the fact that it was lawful to take the photographs would be taken into account when assessing the legal tests in the case. Whether it was lawful to publish them did not determine either the first or second tests that had to be applied. iii. the authorities establish that a person’s image constitutes one of the chief attributes of his personality. iv. when considering the rights of children in this area courts should accord a primacy of importance to their interests. 32. From the above leading decisions on the subject, the key elements of a Claim for unlawful use of Name or image which a petitioner must establish to succeed in a case of this nature are:a. Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff's name or likeness, but the law protects certain other personal attributes as well. b. For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone's name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff's identity and a matter of legitimate public interest. http://www.kenyalaw.org - Page 5/9