Nalubega v Stabex International Limited (Civil Suit 665 of 2021) [2023] UGCommC 292 (23 June 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

## (COMMERCIAL DIVISION) **CIVIL SUIT NO.665 OF 2021**

NALUBEGA SHADIA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **STABEX INTERNATIONAL LTD ::::::::::::::::::::::::::::::::::**

#### Before Hon. Lady Justice Patricia Kahigi Asiimwe

#### Judgement

Background:

- 1. The Plaintiff filed this suit claiming that the Defendant used her images in advertising its products on a variety of media of wide circulation without her consent. - 2. The material facts are that the Plaintiff was employed by the Defendant as a customer service assistant at its Nansana Annex Station between June 2019 and March 2021. On 17<sup>th</sup> January 2020, agents of the Defendant took photographs of the Plaintiff dressed in the Defendant's uniform and holding some of its products. Consequently, the Defendant has used the Plaintiff's images on the various print and online media advertising its products. The Plaintiff claims that the Defendant continued to use her images on the said advertising media even after her dismissal from employment in March 2021, in total disregard of her demands to stop. - 3. It is upon this background that the Plaintiff sought the following reliefs: - i) Declarations that the Defendant infringed upon her image rights; the Defendant breached her constitutional right to privacy; and that the Defendant's actions unjust enrichment, passing off. amount to misrepresentation, false endorsement and breach of $23 - 0$ b - 23 confidence.

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- ii) Orders for recovery of royalty fees for the unauthorised use of Plaintiffs images at a rate of 2Ooh of the sales gained from the date of the unauthorised use; and for appointment of an official Receiver to inspect and collect all profrts made by the Defendant from the date of the cause of action for purposes of determining the 2Oo/o claimed royalties and other awards. - iii) Orders for General damages in respect of the inconvenience occasioned to the Plaintiff and the unjust enrichment. - iv) A permanent injunction restraining the Defendant and its agents from continued use of the Plaintiff's images for advertising the Defendant's products. - v) Interest on all the monetaqr awards; and costs of the suit. - 4. The Defendant filed a Written Statement of Defence denying the claim. The Defendant contended that the photos of the Plaintiff were taken and everything was done in the course of her employment. The Defendant thereby contended that the Plaintiff impliedly consented to the taking and use of her photos. According to the Defendant, the suit is intended to extort exorbitant sums of money from it. The Defendant prayed that the suit be dismissed with costs.

### Hearing:

- 5. At the hearing, the Plaintiff was represented by M/s Nomrek Law Consultants & Advocates. The Defendant was represented by M/s Kafeero & Co. Advocates. - 6. The Plaintiff called one witness, herself testifying as PW. The Defendant called two witnesses, Judith Mbabazi and Ismail Tibasiima who respectively testified as DW1 & DW2.

Plaintifl's evidence:

7. PW testified that: she was employed by the Defendant at its Nansana Annex Station as a Customer Service Assistant from June 2O19. This is supported by her contract of employment admitted as PEl. On 16th February 2O2O, the Defendant's

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Station Manager-Andrew Keter instructed PW and her colleague-Mutoni to bring along two clean pairs of ironed uniforms the following day. He told them to report to work at 9:0Oam instead of 7:00am and said he would inform them of the purpose later. On arriva-l the following day, PW and her said colleague were led to a room where a make-up artist applied make-up on them. She initially protested because she is uncomfortable with makeup but the make-up artist insisted that the station supervisor's instructions had to be fulfilled. Shortly thereafter, two gentleman entered the room and started shooting photographs of PW and her colleague. Her pleas to not be photographed were ignored and she begrudgingly gave in to the exercise for fear of losing her job.

- 8. PW testified further that she was required to hold the Defendant's items such as cards and machines during the photo-shoot. She received calls a few months thereafter from different people including family and friends who had seen her images on the various print and online media advertising the Defendant's products. She also saw her pictures on the Defendant's flyers and brochures at the Nansana Annex Station as well as on the billboard named Stabex Online. This is supported by the 6 images comprising PE2. The Defendant has obtained tremendous commercial gain following those advertisements. The Defendant dismissed the Plaintiff from employment in March 2021 bttt has ignored PW's demands to stop using her pictures in its commercial advertisements. She is challenging the lawfulness of her dismissal in the Industria-l Court. - 9. In cross examination, PW testified that she is seen smiling in the photographs while holding Stabex machines because she was told to smile. She was not paid for those photos. She was not fulfilling any part of her contract when she took the photos. The Defendant had never taken any photos of her before she joined them. She never owned the Defendant's uniform before she joined them. Her father by the nalnes of Bukenya Abdu

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called her and told her that he had seen her photos in Malaba. She doesn't know if her father was happy. Her brother also called her but nobody else called her about the photos. She also saw her photos on billboards, Facebook, social media, YouTube, UBC, banners and flyers and she was not happy. She saw the photos at page 9 of PE2 on $15<sup>th</sup>$ August 2021.

### Defendant's evidence:

- 10. DW1 testified that she has worked as an Administrative Assistant in charge of Customer care at the Defendant since September 2019. She knows the Plaintiff as a former fuel pump Attendant at the Nansana Station of the Defendant. Her photographs were also taken, and they appear on various marketing items of the Defendant. The Defendant's policy is to prepare written consents only for non-employees/third parties. Employees' consents are verbal. All employees were approached. The Plaintiff consented but only brought this suit after she was dismissed. - 11. In cross examination, DW1 stated that the Plaintiff's consent was verbal. She was not present when the Plaintiff consented to the photo-shoot. She couldn't speak for the Plaintiff. The Plaintiff's photos were pulled down from Facebook. - 12. On his part, DW2 testified that he is a marketing clerk at the Defendant. The Defendant prepares consent forms for the photos used in its advertisements only for non-employees. The Defendant's employees consent at the time of signing the employment contract. Any subsequent agreement is verbal. The Plaintiff was not in any way unique from other employees who also feature on the Defendant's brochures and billboards. The Plaintiff agreed to the use of her images for advertising the Defendant's products for the time she was in employment. The Plaintiff's photos were pulled down when she was dismissed. The Plaintiff never complained while still in employment. The

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Defendant has never made any material commercial gain from the use of the Plaintiff's images. The photos are used for promotional and expressive purposes which is in the ordinary course of business of the Defendant.

- 13. In cross examination, DW2 testified that he doesn't know the contract of pump attendants. The consent to use the employee's photos for marketing is in the human resource appointment letter. He cannot tell if the Plaintiff consented to taking the photos. It is possible that the Plaintiff's images were used after her termination. The images are not removed immediately. They are removed gradually. - 14. In re-examination, DW2 stated that: he is not part of the team that handles the complaints of people who are not willing to take photos. He started getting complaints after the Plaintiff was terminated. He last saw the Plaintiff's photos over a year ago. None of the Plaintiff's photos are in use. - 15. Issues: - i) Whether the Defendant infringed the Plaintiff's personality rights - ii) What remedies are available?

## Plaintiff's submissions:

- 16. With respect to the 1<sup>st</sup> issue, reference was made to Asege *Winnie V. Opportunity Bank (U) Ltd, HCCS No. 756 of 2013 where* the Court adopted the common law definition of "personality" right" as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspect of one's identity. - 17. Counsel submitted that as noted in that case, every person has a right to his or her personality which extends to the name and image of the individual and has the right to control the use of either. The Court held that for an action of personality right

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infringement to succeed, it must be proved that: the Plaintiff is identifiable; the defendant's action was intentional and the defendant acted for commercial gain.

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- 18. Counsel also cited Jessicar Clarise Wanjiru V. Davinci Aesthetics & Reconstruction Centre & 2 Ors (2017) eKLR cited with approval in *Wangechi Waweru Mwende v. Tecno Mobile Ltd* & Anor, CS No.494 of 2016 which listed the following four elements to prove infringement of personality rights; - *i) Commercial exploitation of a person's personality* - *ii) The person is clearly identifiable in the medium used.* - iii) The person does not consent to the use of their personality. - iv) *Damage occurs, either emotional or financial.* - 19. It was noted that the Defendant does not dispute taking the Plaintiff's photographs and using them to market its products; and that both DW1 and DW2 testified that the consent of the employees is always verbal while that of the third parties is written. Counsel submitted that whereas DW1 & DW2 referred to a company policy, no such policy was adduced in evidence to corroborate. Counsel argued that DW1 & DW2 did not confirm whether that policy, if it existed, was ever brought to the attention of the Plaintiff during her employment. - Counsel submitted that DW1 & DW2's testimony that the 20. Plaintiff impliedly consented to the use of her photographs when she accepted the contract of employment is untenable because there is no such clause in the Plaintiff's contract. Counsel argued that DW1 & DW2's testimony that the Plaintiff's consent was verbal was equally untenable because none of them confirmed being present or seeing the Plaintiff offer the verbal consent. Counsel observed that the Defendant's evidence in cross examination and evidence in chief was full of inconsistencies and contradictions which go

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to the core issue of consent. In that regard, Counsel cited the case of Odur David V. Ocaya Alphonse & 3 Ors, HCCA No.34 of 2018.

- 21. Counsel submitted further that the Defendant's evidence breached section 92 of the Evidence Act when it claimed that the consent was verbal for employees yet the same was not expressly provided for in the Plaintiff's contract, PEX1. Relying on Gold View Inn (U) Ltd V. Barclays Bank (U) Ltd, CS NO.358 of 2009, Counsel noted that the parole evidence rule is to the effect that evidence cannot be admitted (or even if admitted, it cannot be used) to add to, vary or contradict a written instrument. - 22. It was also submitted that since the Defendant claims that the Plaintiff consented to the use of her photographs, the onus to prove the same shifted to the Defendant and the Defendant has not discharged that burden. Counsel argued therefore that the Plaintiff has proved all the three elements to prove infringement of her personality rights and prayed that the $1^{st}$ issue be answered in the affirmative. - 23. With respect to the $2^{nd}$ issue, Counsel for the Plaintiff prayed for a declaration that the Defendant has infringed the Plaintiff's personality rights. Counsel also prayed for an award of UGX 200,000,000 for the breach of the Plaintiff's Constitutional right to privacy. Counsel cited the case of Catherine Njeri Wanjiru V. Machakos University, H. C Pet. E021/2021 where the High Court of Kenya awarded nominal damages of Ksh. 700,000; issued a permanent injunction restraining the University from continued use of the Petitioner's image; and declared that the Petitioner's constitutional right to privacy and human dignity had been violated by the publication of her image for commercial use without her consent.

$23 - 08 - 23$ $\mathbf{R}$ - Counsel submitted further that unjust enrichment exists 24. where there is no contract between the parties but one party is unfairly benefiting from the efforts of the other without providing compensation. (Aseque Winnie v. Opportunity Bank (supra). Reference was made to the Plaintiff's uncontested evidence that the Defendant used her images while marketing and advertising its products, including while opening new stations. Counsel submitted that the Plaintiff did not receive any financial gain. - 25. With respect to general damages, it was submitted that the Court has discretion to compensate the aggrieved fairly for the inconvenience caused by the illegal actions of the Defendant. Court's attention was drawn to the fact that the Plaintiff's images were placed on social media platforms such as Facebook, YouTube, UBC TV and Billboards among others, which have a wide circulation. - It was submitted that aggravated damages are extra 26. compensation awarded for injury to one's feelings and dignity caused by the way the Defendant acted. Court's attention was drawn to the Defendant's actions of especially exposing the Plaintiff's photos on social media without her consent and continuing to use them in disregard of demands from her to stop using them. It was argued that these actions were callous and should be penalized.

## Defendant's submissions:

With respect to the 1<sup>st</sup> issue, Counsel for the Defendant did 27. not disagree with the principles of law stated in the authorities relied on by the Plaintiff. However, the Defendant's Counsel submitted that it is important to examine what is "personality" and what amounts to violation of personality rights.

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- 28. The Defendant's Counsel noted that the Court in Asege Winnie V. Opportunitg Bank (supra) relied on among others, the case of Krouse V. Chrysler Canada Ltd (1977) 13 CPR (2d) 28. Counsel observed that in that case, the Canadian Court noted that where a person has marketable value in their likeness and it has been used in such a manner that suggests an endorsement of a product, then there is ground for an action in appropriation of such person's personality. - 29. The Defendant's Counsel submitted therefore that for anyone to have a claim founded on personality right, her likeness must have marketable value. According to Counsel, this is what distinguishes the case at hand from Asege Winnie V. Opporfitnitg Bank ( supra). - 30. Counsel submitted that in Asege Winnie u. Opportunitg Bank (supra), the Plaintiff was a successful commercial farmer in Soroti District under the Soroti Rural Women Development Association. Counsel argued that while that claimant clearly had marketable value attached to her name and image, the Plaintiff in the instant case had none of that. - 31. Counsel submitted that the Court in Asege Winnie V. Opportunitg Bank (supra) established the impact of the publication and whether claimant had marketable value from evidence that Ms Asege was bombarded with telephone calls from different people. Counsel argued that whereas the Plaintiff in the instant case alleged that many people called her, she failed to prove that section of people save for noting in cross examination that she was ca-lled by her father and brother. - 32. The Defendant's Counsel cited the case of Sikuku Agaitano V. Uganda Baati, HCCS No.298 of 2O12 where the Court stated that:

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*Where an employee who works to produce* products marketed openly does not want his or *her photo or motion picture exposed to the public,* he or she should make a reservation with the employer and be able to present it to Court to show that he or she had an agreement not to be included in any profiling of the company for purposes of advertisements in any broadcast or publication.

Counsel noted that as observed in *Sikuku Agaitano V. Uganda* 33. Baati, seeking permission is a courtesy but not a requirement. Counsel noted that both DW1 & DW2 testified that the Plaintiff was not alone when the photographs were taken and that they were collectively aware of the purpose. Counsel submitted that if the other employees have not complained, the implications of the Plaintiff's suit on the defendant's production needs to be considered as well because there would obviously be a floodgate of claims against the employer. (Sikuku Agaitano v. Uganda Baati (supra)). The Defendant's Counsel submitted that in the premises, the Plaintiff has not proved her case against the Defendant and is not entitled to any of the reliefs sought. Counsel thereby prayed that the suit be dismissed with costs.

Plaintiff's submissions in rejoinder:

- 34. With respect to the Plaintiff's marketable value, reference was made to PW's testimony in cross examination that her pictures were used in flyers and banners when Defendant opened many other stations as shown in PE2. - It was argued that Sikuku Agaitano V. Uganda Baati (supra) 35. is distinguishable because it dealt with neighbouring rights governed by the Copyright and Neighbouring Rights Act 2006. Counsel noted that in that case, there was a briefing of all employees at which meeting the use of the photos in the defendant's magazine, year planner and national media was $02 \quad 23^{-04-23}$

clearly stated. Counsel argued that in the instant case however, the Defendant did not adduce any such evidence. Counsel argued further that the Plaintiff in the instant case is pursuing among others, her constitutional right to privacy as opposed to copyright ownership.

- It was also argued that the Plaintiff's photos were not taken 36. when she was going about her usual work-related duties. Counsel relied on PW's testimony that her supervisor, a one Andrew Keter, asked her to report the next day at 9:00am instead of the usual 7:00am and to do so with an additional uniform. It was argued that this evidence was not controverted in any way. Counsel argued that while the Defendant alleges that some of the Plaintiff's workmates also appear in the images with the Plaintiff, no such workmates were called to testify for the Defendant. - Reference was made to PW's testimony questioning the 37. purpose of the make-up and how she grudgingly accepted for fear of losing her job when the make-up artist insisted. Counsel submitted that this was not controverted yet the Plaintiff's contract as a customer service attendant did not have any provision requiring her to be a marketer for the Defendant's products. - Further reference was made to DW1's cross-examination 38. revealing that she was not attached to the Plaintiff's workstation and did not have any supervisory role over the Plaintiff. Counsel noted DW2's cross-examination revealing that he was not privy to the contract between the parties and was not certain whether the Defendant sought the Plaintiff's consent or whether the Plaintiff consented to the use of her photos. Counsel concluded that none of the Defendant's witnesses confirmed that the Plaintiff consented to the use of her photos and their evidence was largely hearsay for which reason it should be disregarded. Counsel relied on *Criminal* Appeal No.0653 of 2015, Apea Moses v. Uganda. $23 - 96 - 23$

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Resolution:

Issue 1: Whether the Defendant infringed on the Plaintiff's $39.$ personality rights

The facts of this case show that the Plaintiff's photo was taken by agents of the Defendant on 17<sup>th</sup> January 2020 for purposes of marketing products of the Defendant. At the time in question, she was working as a customer service representative of the Defendant. The Plaintiff was requested to come for work dressed in the defendant's uniform. The Plaintiff later found out that the Defendant wanted her to participate on a photo shoot.

- The testimony given by the Plaintiff shows that she was 40. uncomfortable with photos being taken of her. On the other hand, the Defendant alleges that they got the Plaintiff's verbal consent to proceed with the photo shoot. - The cases of Asege Winnie V. Opportunity Bank (U) Ltd 41. (supra) and Sikuku Agaitano V. Uganda Baati (supra) cited by both counsels were decided before the Data Protection Act (DPA) No. 9 of 2019 was passed and came into force. Without departing from the common law principles that have been set out in the decisions cited, I will need to delve into this law to determine the rights of the parties to this case from a privacy and data protection perspective. The DPA is the current legal framework that determines the way photographs of people are dealt with in as far as they are construed to amount to data. - One of the key issues that will lead to resolution of this issue 42. is whether the Plaintiff needed to give her consent in order for her photograph to appear in the Defendant's advertisements. In his judgement in the Sikuku Agaitano V. Uganda Baati case (supra), Justice Madrama (as he then was) stated that:

... Seeking permission is necessary courtesy of the *Employer and in this case, the Employees were*

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informed about the event that was going to take place.

- It appears from this statement above that seeking the 43. employee's consent to participate in a photo shoot to advertise the employer's products is elective, rather than mandatory. - 44. As a result of the passage of the **Data Protection Act**, (DPA) No. 9 of 2019, I believe that this position has changed. The preamble of the DPA states that it is –

"An Act to protect the privacy of the individual and of personal data by regulating the collection and processing of personal information; to provide for the protection of the person whose data is collected; and the obligations of data collectors, data processors and data controllers; to regulate the use or disclosure of personal information, and *for related matters."*

The DPA defines data in section 2 as information which 45.

> is processed by means of equipment $(a)$ operating automatically in response to instructions *given for that purpose.*

46. Data Collector is defined as

"a person who collects personal data."

47. Another important definition is data subject. According to the definition section above;

> "data subject" means an individual from whom or in respect of whom personal information has been requested, collected, collated, processed or stored:

48. Furthermore, personal data is defined as

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information about a person from which the person can be identified, that is recorded in any form....

- 49. From the definitions above, it is clear to me that the Plaintiff is a data subject and the defendant is a data collector. It is also clear that the photographs of the Plaintiff that were taken amount to personal data because they identify her and therefore fall under the ambit of the DPA. The collection, processing and storage of the Plaintiff's photographs are all governed by the DPA. - Both parties to this suit dwelt on the issue of consent in their 50. evidence. Section $7(1)$ of the DPA requires parties collecting or processing personal data to seek consent from the data subject. The relevant provision states as follows:

$7(1)$ Subject to subsection (2), a person shall not collect or process personal data without the prior *consent of the data subject.*

51. Section 2 of the DPA sheds light on what amounts to consent under this Law.

> "consent means any freely given, specific," informed and unambiguous indication of the data subject's wish which he or she, by a *statement or by a clear affirmative action*, signifies agreement to the collection $or$ processing of personal data relating to him or her"

The law furthermore in section 10 states that: 52.

> "a data collector, data processor or data *controller shall not collect, hold, or process data* in a manner which infringes on the privacy of a data subject."

The testimony of the Defendants, was that they only enter 53. into written consents for non-employees and secure verbal consent from employees in order to use their photographs. $23 - 1 - 23$ DW 1 and DW2 did not hear the Plaintiff give her consent. The Defendant did not bring an eye witness to the said consent given by the Plaintiff.

- $54.$ The DPA came into force after realisation of the risks associated with the proliferation of personal data, especially in this internet age. It was intended to ensure that personal data, including photographs or information that identifies people in a specific way is only published, processed or stored with their clear and unambiguous consent. The importance placed on consent of the data subject can be gleaned from use of the word 'shall' where consent is supposed to be granted. - The testimony of the Plaintiff is to the effect that she did not 55. give her consent to the taking of her photographs. She testified that she and a colleague were requested by the manager to come the following day with clean uniforms. On arrival they were taken to a room where a make-up artist applied make-up on them. She states that she initially protested, but begrudgingly gave in for fear of losing her job. It is difficult to understand why the Defendant has a policy of securing verbal consent from staff/ employees (which leaves no record), as testified by DW1, when non-employees are required to put their consent in writing. The definition section of the DPA clearly requires "consent to be unambiguous indication of the data subject's wish which he or she by affirmative action, signifies agreement to the collection or processing of personal data relating to him or her". Having regard to the facts of this case, there is no evidence that the Plaintiff's consent was secured before her photos were taken. - It is my finding therefore that the Plaintiff's privacy was 56. violated when her consent was not sought and as a result,

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her image personality rights were infringed by the Defendant advertising her image on various media platforms.

In the Kenyan case of Kamande V. Nation Media Group 57. (Constitutional Petition E004 of 2021) [2022] KEHC **16017 (KLR)**, the Applicant's photograph had been taken and published in the Respondent's newspaper without her consent. The Respondent argued that they received consent from the Appellant's employer a one Mr. Shahin. Court found that she actually was not an employee of the person who allegedly gave consent. Court further held as follows:

> Even assuming that the Petitioner was the *employee of the said Mr. Shahin, it goes without* saying that it is only the Petitioner as a person *who had the capacity to give consent of taking her* images and publishing it. *An employer possesses no such capacity on personal affairs of another* person. This defence of the respondent is just a *mere defence.*

- In the same case above, it was held further that "the law 58. protects the petitioner's right to control her image, name or likeness and if it's used for publicity or commercial gain by a third party, her consent must be obtained." - The above case brings out clearly the importance of privacy 59. attached to the access and use of personal data and the vital importance of seeking a data subjects consent before their data is collected and processed. - It is my finding that the plaintiff did not give her consent 60. before the photographs in question were taken. It is also my finding that, the Plaintiff's photographs were taken and used without her consent, in breach of the requirements of the Data Protection Act, 2019. As a result, the publication of her

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photograph on various media platforms amounted to a breach of her privacy, contrary to sections $7(1)$ and $10$ of the DPA.

The question then is did the breach of the Plaintiff's right to privacy *automatically lead to breach of her image/ personality rights?*

61. Defence counsel submitted that for anyone to have a claim founded on personality rights, her likeness must have marketable value. In my view, it is not tenable that personality rights can only be held and enforced by the rich and famous, or celebrities. Article 21 $(1)$ of the **Constitution** of the Republic of Uganda provides that –

> (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

- 62. According to the learned author Prof. Dr Ann Lauber -Ronsberg in her article titled 'Commercial Exploitation of Personality features in Germany from the Personality rights and trademark Perspectives, Vol. 107, Trademark **Reporter at pp 818-819**, she states that "an individual's personality rights are violated when her reputation is exploited without consent for advertising purposes." She states furthermore that "depending on the circumstances, the personal characteristics of an unknown person may also possess commercial value. This is even more true in our time...since fame has become relative and sometimes accidental." - 63. I, therefore, find that breach of the Plaintiff's privacy rights in this case led to the breach of her personality rights. Had the with the mandatory consent Defendant complied requirements under the DPA, the Plaintiff's claim would have been groundless.

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## Issue 2: What remedies are available?

- 64. Under section 33(1) of the DPA it is provided as follows: Where a data subject suffers damage or distress through the contravention by a data controller, data processor or data collector of the requirements of this Act, that data subject is entitled to apply to a court of competent $\frac{1}{2}$ jurisdiction for compensation from the data collector, data processor or data controller for *the damage or distress.* - 65. In this case the Defendant took images of the Plaintiff without her consent contrary to section $7(1)$ of the DPA hence entitling her to compensation under section 33 of the DPA. - 66. The Black's Law Dictionary, 8<sup>th</sup> Edition at page 1172, defines damages as money claimed by, or ordered to be paid to, a person as compensation for loss or injury. From the above definition that one has to prove damages or distress in order to qualify for compensation. - 67. In the English case of **Lloyd** (Respondent) $v$ Google LLC (Appellant) [2019] EWCA Civ 1599 the Supreme Court held as follows:

... section 13 of the DPA 1998 cannot reasonably be interpreted as conferring on a data subject a *right to compensation for any (non-trivial)* contravention by a data controller of any of the requirements of the Act without the need to prove that the contravention has caused material damage or distress to the individual concerned.

Section 13 of the DPA of the UK provides as follows: 68.

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$(1)$ *An individual who suffers damage by reason* of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2)An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that *distress if—*

(*a*)*the individual also suffers damage by reason* of the contravention, or

*(b)the contravention relates to the processing of* personal data for the special purposes.

- 69. Similarly, in order for one to get compensation under section 33 of the DPA quoted above, one has to prove that they have suffered damage or distress. In this case, the Plaintiff has not proved any damages. - 70. The Plaintiff in her witness statement stated that she suffered mental and psychological torture. She testified that she was aggrieved by the fact that her photos were put in the public. She further stated that she did not like it. She also testified that she left the Defendant company in March 2021. The Plaintiff adduced evidence that one of her photos was being used by the Defendant on 15<sup>th</sup> August 2021 (PE 2 at pg. 9). This was 5 months after she left the Defendant company. The Plaintiff testified that the Defendant continued to use her photographs despite her demands to have them removed even after her departure from the Plaintiff company. Under cross-examination, DW 2 testified that the Plaintiff's photos were not removed immediately after she left the Defendant company. He further testified that they were removed gradually because they are on several stations. Under reexamination he stated that they started removing the photos

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immediately after they were told that she had been dismissed. The witness' testimony is unreliable and therefore the Plaintiff evidence that the photos were not removed after her dismissal and her demands to remove them was not controverted.

- 71. I am persuaded that the Defendant continued use the Plaintiff's photographs even after her dismissal must have caused her distress. The question then is how to compensate her for the said distress. - 72. In the case of **MWK & Another vs Attorney General & 3** Others [2017] eKLR cited in the case of Kamande V. Nation **Media Group,** the Court held as follows:

*self-evident that the assessment* $It$ is $of$ compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of *frustration, worry, anxiety,* mental upset, grief, anguish, *humiliation.* fear, distress. unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. There is no medium of exchange or market for *non-pecuniary losses* and their monetary *evaluation, it is philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by* earlier decisions; but the award must also of *necessity be arbitrary or conventional. No money* can provide true restitution.

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- 73. From the above decision, it is therefore difficult to assess damages in respect to menta-l and psychological torture, and no amount of money can provide true restitution. However, the compensation must be reasonable and fair. In view of the fact that there is no evidence to prove that the Plaintiff's consent was sought before her photograph was taken and that the Defendant continued to use the photograph even after her dismissa-l, I find that the Plaintiff suffered distress. In the circumstances, I award the Plaintiff damages of UGX. 5,000,000. - 74. ln conclusion, therefore, judgement is hereby entered for the Plaintiff and I order as follows: - a) The Plaintiff's image rights were infringed upon by the Defendant. - b) The Defendant breached the Plaintiff's right to privacy. - c) The Plaintiff is awarded general damages of UGX. 5,OOO,000. - d) The defendant should remove any images from billboards, media outlets, brochures, flyers, YouT\rbe, Facebook, Print media and any other. - e) Interest on c) above at a rate of l8o/o per annum from the date of this judgment till payment in full. - f) The Defendant shall pay the costs of the Plaintiff.

## Dated this 23'd day of June 2023.

Nd'

Patricia Kahigi Asiimwe

Judge

Delivered on ECCMIS