Article by Lesai Seema, Candidate Attorney, checked and released by Chantelle Gladwin-Wood, Partner at Schindlers Attorneys.
3 August 2022
In casu, the honourable judge Boruchowitz J deals with image rights, more specifically whether the publication by the defendant of the plaintiff’s photograph constitutes an iniuria.
The Plaintiff is Julia Basetsana Kumalo (“Mrs. Kumalo”), a celebrity, former Miss South Africa and television personality amongst other things. The defendant is Cycle Lab (Pty) Ltd, a retailer of bicycles and cycling products.
In and during February 2007, Mrs. Khumalo attended at the Defendant for the purposes of purchasing a bicycle and the associated paraphernalia, where she was approached by Mr. De Villiers, of the Defendant, who took her photograph. The photograph was subsequently published as part of an advertisement for the Defendant in a magazine and brochure.
Mrs. Kumalo alleged that she had not given her consent to the picture being taken and certainly not for it to be included in an advertisement. She was outraged by this and felt that the Defendant had sought to exploit her image for commercial purposes without her knowledge and consent.
The Defendant, not having the financial means to hire a professional model for its ‘lady-specific products’, alleged that it decided that it would use Mrs. Kumalo as its model when she fortuitously entered the store.
The Defendant, duly represented by its director Mr. McLean, alleged that it did not intend on using Mrs. Kumalo’s image illegally or to capitalise on her name, and further that there was no intention to insult or degrade Mrs. Kumalo or in any way to injure and damage her reputation and dignity.
Mrs. Kumalo claimed for damages for iniuria on the following grounds:
- sentimental damages based on the actio iniuriarum;
- constitutional damages arising from a violation of the plaintiff’s rights to dignity and privacy as enshrined in section 10 and 14 of the Constitution;
- patrimonial or special damages which the plaintiff is alleged to have sustained as a result of the defendant’s unauthorised publication of her image; and
- unjustified enrichment (which was later abandoned).
The question before the court was whether the Mrs. Kumalo had suffered an infringement (iniuria) to her personality rights as a result of the publication of her photograph.
The court referred to the essential requirements for iniuria which have been set out by Melius De Villiers in the “Roman and Roman Dutch Law of Injuries” which are:
“(1) an intention on the part of the offender to product the effect of his act (dolus, animus iniuriandi);
(2) an overt act which the person doing it is not legally competent to do and which, at the same time, is
(3) an aggression upon the right of another, by which aggression the other is aggrieved and which constitutes an impairment of the person, dignity or reputation of the other.” (sic)
In O’keeffe v Argus Printing and Publishing Co Ltd and Another 1954 (3) Sa 244 (C) Watermeyer AJ stated as follows:
“The unauthorised 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.“
The court held that the use Mrs. Kumalo’s image / photograph in an advertisement without her permission not only constitutes an infringement of the personality right to identity but also a violation of her privacy, since, her image was publicly exposed contrary to her determination and will.
It is universally accepted that public figures or celebrities have a legitimate expectation of protection and respect for their private lives. The determining factor is usually whether such intrusion is in the public interest or for the public benefit.
Accordingly, the honourable judge Boruchowitz held that the unauthorised publication by the Defendant of Mrs. Kumalo’s photograph for advertising purposes constitutes an iniuria entitling her to the payment of sentimental damages. It follows that she succeeds on Claim 1.
Understanding image rights within the South African legal framework.