Protection of Image Rights Under the Right to Privacy and Data Protection in Nigeria: “Something Hooge” for Oga Sabinus?

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By Ayodele S. Okedele

  1. Introduction:

Recently, the social media went agog with the news of Sabinus, an influencer/comedian making a “smart move” against two giant Nigerian companies; Friesland Foods Wamco Nigeria (Peak milk) and UAC Food LTD (Gala Sausage Roll) for alleged intellectual property theft. He was reported to have threatened to sue Peak Milk for the infringement of his trademarked slogan “Something Hooge” and Gala Sausage Roll for the unauthorised usage of his animated image in their advertisements[1]. As compensation, he sought for One Billion Naira and One Hundred Million Naira respectively. I hope I don’t get slammed for the usage in my title.

There have been a truckload of legal and e motional arguments as to the merit of his claim under the Nigerian intellectual property laws. While he may or may not have a good case under the aforementioned area of law, this article would review the possibility of his claim against UAC Foods Ltd under the constitutionally guaranteed right to privacy[2] and the Nigeria Data Protection Regulation 2019.

  1. The Interplay between the Right to Privacy and Data Protection

There are several scholarly yet unsettled arguments as to whether right to privacy and data protection rights should be independent of each other or treated as stand-alone rights. However, all of these works seems to agree that both concepts overlap with each other, and would need to work hand in hand to ensure the privacy of all persons[3].

In the Nigerian Jurisprudence, the twin concepts appear to be recognised as the same. Emphatically, Per ABBA BELLO MOHAMMED, JCA in the Nigerian Court of Appeal case of INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE & ORS v. NIMC[4]  spoke thus; “From these decisions, privacy to my mind can be said to mean the right to be free from public attention or the right not to have others intrude into one’s private space uninvited or without one’s approval. It means to be able to stay away or apart from others without observation or intrusion. It also includes the protection of personal information from others. This right to privacy is not limited to his home but extends to anything that is private and personal to him including communication and personal data.” (Emphasis mine). Upon a careful reading of the judicial pronouncement, one would admit that the court recognised the right to data protection as a subset of the right to privacy. The right to privacy is an expansive right with no defined limits, and would expand as far as mankind advances.

  1. Sabinu’s Right to Privacy Arguments:

As canvassed above, the right to privacy[5] is very expansive, and also extends to the protection of image right. Accordingly, image rights refer to the use, appropriation and/or exploitation of a person’s image, and include the expression of a personality in the public domain. They incorporate the right to use a person’s personality and prevent other parties from exploiting or using that person’s image or likeness without his or her permission, and encompass the commercialization of such rights[6] Put differently, image rights refer to a person’s right to commercialize aspects of his personality such as physical appearance, pictures or caricatures, signature, personal logos and slogans, and also the right to prevent other people from commercially making use of them[7].

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For context, Sabinus is a popular comedian who has earned extra value to his image (this is not to say that a person who is not a celebrity does not have image right, however, the worth would vary), and has rights to permit or restrict a brand from leveraging on his goodwill for their own trade. Since it’s a political period, Senator Bola Ahmed Tinubu can also sue for the unpermitted usage of the logo usually on his cap, as this logo has long being ascribed to him.

Acknowledging, the commercial value attached to a personality, the England and Wales Court of Appeal, in the case of Douglas and Others v Hello& Others Ltd[8] held thus; “Where an individual (‘the owner’) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner”

Put in context, Sabinus having built himself to fame in the entertainment industry and has some good will attached to his personality, which must have been the reason UAC Foods Ltd leveraged on his popular pose for its own commercial benefit. He reserves the right to permit or disallow a third party from benefiting from his own worth. The law recognises this, and will protect it accordingly.

More specifically, the Nigerian Court of Appeal in the landmark case of BI-COURTNEY AVIATION SERVICES LTD v. KELANI[9] while answering the question of; whether the unauthorised usage of a picture, photograph, drawing or film of a person is a breach of his right to privacy? The court first settled that that the Claimant/Plaintiff must be identifiable in the image. They relied on the foreign case of ALI VS. PLAY GIRL INC[10], where the Plaintiff, Muhammad Ali, filed an action for injunctive relief and damages against the defendant, Playgirl, Inc., for their unauthorized printing, publication and distribution of an objectionable portrait of himself in an issue of playgirl magazine. The portrait complained of depicted a nude black man seated in the corner of a boxing ring and who was unmistakably recognizable as the plaintiff. He alleged that the publication of the picture was a violation of his rights under the New York civil rights law and of his related common law right of publicity. The depiction was not an actual photograph, but an illustration falling somewhere between representational art and cartoon. Thes Court found that even after a cursory inspection of the picture, the figure was identifiable as Muhammed Ali.

 This immediately rebuts the arguments that suggest that Sabinus cannot recover damages for the use of an animated image. The point must be taken; the standard test of the law is that the identity of the plaintiff/claimant must be unmistakable. Could a person who has known Sabinu’s mistook that animated image for another person? Only a mischief-maker, I think.

Going forward, in the aforementioned Nigerian case, PER Ogbande Festus Ogbuinya in his supporting judgement held thus; “A picture of a person mirrors his own image which is personal to him. It is a clone of an individual. For a business concern to take a picture of somebody, for pecuniary interest, without his consent or authorization, constitutes a serious erosion of right of privacy of that citizen. The appellant’s procurement and public display of the respondent’s photograph for commercial needs, without his endorsement, is an unwarranted infraction of the respondent’s inviolable right to private life as, deeply, ingrained in Section 37 of the Constitution, as amended. The lower Court’s finding is unassailable and deserves a wholesale approbation by this Court. I, therefore, endorse, in toto, the reasoning and conclusion in the leading judgment. I abide by the consequential orders decreed in it”. With no reservations, my lords entirely agreed that the Appellant’s procurement and display of the Respondent’s picture on its billboard without his endorsement is an arrogant breach of his constitutionally revered right to privacy. They recognised that the usage of such picture, especially for their own commercial benefits is an erosion of whatever commercial value he has. If Mr. Kelani, who though was unpopular (at least, at the national level) at the time of instituting his suit could be granted ten million naira in damages, how much more Sabinus a recent awardee of the Africa Magic Viewers Choices Award and his ‘hoooge’ social media presence?

  1. Sabinu’s Right To Data Protection Argument
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On January 25, 2019 Nigeria’s Federal Government agency responsible for developing and regulating information technology in the country, the National Information Technology Development Agency (NITDA), issued a data protection regulation called Nigeria Data Protection Regulation or NDPR with the aim of protection Nigerians’ personal data, home and abroad and non-Nigerian resident in Nigeria. The regulation came into force that same day. The NDPR is Nigeria’s equivalent of Europe’s GDPR with substantial similarities in their provisions[11]. Its four cardinal objectives are to; to safeguard the rights of natural persons to data privacy; to foster safe conduct for transactions involving the exchange of Personal Data; to prevent manipulation of Personal Data; and to ensure that Nigerian businesses remain competitive in international trade through the safe-guards afforded by a just and equitable legal regulatory framework on data protection and which is in tune with best practice.

Under the aforementioned law, Sabinu’s picture or any other’s constitutes a personal datum. By virtue of Regulation 1.3 of NDPR, personal data is defined thus; “Personal Data means any information relating to an identified or identifiable natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; It can be anything from a name, address, A PHOTO, an email address, bank details, posts on social networking websites, medical information, and other unique identifier such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM, Personal Identifiable Information (PII) and others”. With this definition, does the picture of Sabinus which was animated and used for the advert constitute a personal datum? Of course, it does. The definition refers us back to the test of identification which my lords also laid down in the cases. No doubt, it was his photograph/picture which was processed.

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What would constitute or amount to processing? Or when does the law recognise that a personal datum has been processed? With specific reference to Regulation 1.3 xxi “Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction”. Relying on this, the usage of his photograph among others constitutes processing. Against the argument of fair use that was canvassed in favour of UAC Foods Ltd, for the data processing to be considered lawful, any of these conditions[12] must apply;

  1. The data subject has given consent to the processing,
  2. Processing is necessary for the performance of a contract with the data subject,
  3. Processing is necessary for compliance with a legal obligation,
  4. Processing is necessary to protect the vital interests of a data subject or of another natural person,
  5. Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller,
  6. Processing is necessary for the purposes of legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

 Interestingly, none of the above conditions, despite being disjunctive were met for Sabinu’s picture to be lawfully processed. There his right to data protection which extends to his image right has being breached.

  1. Conclusion

As Peterson J. rightly stated in the time honoured case of University of London Press v. University of Tutorial Process[13]”what is worth copying is worth protecting”. This has been the underlying philosophy for protection from time immemorial. If a brand believes that there is goodwill to enjoy in another person’s image or whatever for his own commercial benefit. The law must not hesitate to protect such as part of its economic function.

As a matter of fact, the boundaries of assets keep expanding day by day with different innovations, developments and human behavioural patterns. Our courts must therefore be ready to recognise these changes for the economic prosperity of its market players and the nation at large.

Ayodele is a graduate of law from Lagos State University.

Footnotes

[1] https://saharareporters.com/2022/05/30/nigerian-comedian-oga-sabinus-sues-peak-milk-gala-n11bn-over-%E2%80%98unauthorised-trademark

[2] Section 37 of the 1999 (2011) as amended

[3] Babalola O. 2021, Privacy and Data Protection Law In Nigeria, Noertico Ropertum Inc, Nigeria

[4] (2021) LPELR-55623 (CA) (Pp 20 – 21 Paras F – F)

[5] Section 37 of the 1999 Constitution of the Federal Republic of Nigeria

[6] https://www.ibanet.org/image-rights-protection-nigerian-law#:~:text=Image%20rights%20refer%20to%20the,personality%20in%20the%20public%20domain.

[7] https://www.linkedin.com/pulse/legal-regime-enforcement-image-rights-nigerian-squestion-iwu

[8] [2005] ECWA Civ 595

[9] (2021) LPELR-56365(CA)

[10]  447 F. SUPP. 723 (S.D.N.Y. 1978

[11] Solomon Okedara, Nigeria Immigration Service and the Burden of Data Protection, (June 4, 2022)  https://thenigerialawyer.com/nigeria-immigration-service-and-the-burden-of-data-protection-by-solomon-okedara/

[12] Article 2.2 of the Nigeria Data Protection Regulation, 2019

[13] (1916) 2 CH 601 at 610

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