Interesting civil cases on privacy and data protection in year 2021

Meghan Markle

Meghan Markle. She sued and won a privacy claim against a newspaper.

Photo credit: Courtesy | AFP

Last year saw some interesting cases of all kinds in courts all over the world. But the emerging area of privacy and data protection was in my view what spawned the most intriguing cases of a civil – that is, not of the criminal – kind.

At the core of the claim to privacy is that every person has the inherent right not to have information and details of their private lives revealed to third parties without their consent or for no reason.

The most striking was a case filed in respect of the deceased Henrietta Lacks, claiming breach of privacy by way of unauthorised use of cells taken from her body without consent. The story behind this case is that in the 1950s, doctors at the famous Johns Hopkins University Hospital in the United States took cells from black women with cervical cancer, cutting away tissue samples from the patients’ cervixes without the knowledge of these black women. Lacks was one of these women.

Successfully cloned

Tissue taken from her before she died of cervical cancer became the first human cells to be successfully cloned. This was because the cells were discovered to have unique properties in that while most cell samples died shortly after being removed from the body, her cells survived and thrived in laboratories.

This exceptional quality made it possible to cultivate her cells indefinitely – they became known as the first immortalised human cell line – making it possible for scientists anywhere to reproduce studies using identical cells. These cells, now known as Hela cells, have been reproduced infinitely and become key in medicine, enabling countless scientific and medical innovations, including the development of the polio vaccine, genetic mapping and even Covid-19 vaccines.

The family sued the company that has commercialised the use of the Hela cells long after Lacks’s death and not shared any of the income with her family. Johns Hopkins Medicine said on its website that it has never commercialised the Hela cells but acknowledged that it should have done more to inform and work with members of Lacks’s family out of respect for them, their privacy and their personal interests. The case will be watched keenly by persons keen on data privacy and how to deal with the realities of how data is being taken from persons and used either to sell things or to make companies money.

While aged just four months, Spencer Eldon’s parents permitted a photograph of him while naked to be taken in California. This photograph was then used on the back of popular music band Nirvana’s famous naked baby Album titled Nevermind in 1991. The cover showed baby Eldon naked while swimming underwater toward a dollar bill on a string. Last year while aged 30, Mr Eldon sued the band for child pornography. He alleged that the band members, record companies and creative personnel had 'trafficked' his image for profit and sought compensation in the sum of US$2.5 million. The record company and the band denied the claim and stated that Mr Eldon’s parents gave a release and permitted the use of the photograph in the album.

Another interesting case of invasion of privacy is that of Ike Perlmutter, who filed a suit against an insurance company seeking punitive damages. His claim revolves around DNA theft during a deposition. His allegation is that an in-house lawyer for the insurance company made a request for the court to have them appear for depositions at the insurer’s offices but with an ulterior intention.

DNA material

He says that while at the offices, supposedly to inspect documents for use in another case, he and his wife were offered water in bottles and given documents to inspect, which were then used to collect their DNA material, which were then sent for testing. The results of these tests were intended to be used in another case in which the insurer had claimed that Mr Perlmuttter and his wife were sending hate mail. Time will tell whether the court will award the damages for theft of DNA material.

The famous actor Clint Eastwood was probably the one who showed that the use of image rights without permission is no child’s play. In October 2021, a court in California awarded the 91-year-old actor US$6.1 million against a Lithuanian company that had used his name and image to promote their products without consent.

Evidence was adduced in court that the company owned sites where fake interviews and photos of Clint Eastwood endorsing the firm’s cannabidiol (CBD)products were published. The 91-year-old actor said in one of the lawsuits that multiple CBD companies used photos of him, fraudulent articles and quotes attributed to him to promote and sell CBD products.

That same month, a female doctor in the United Kingdom received reprieve for her privacy when a judge held that her neighbour's Ring smart doorbell, which had cameras, constituted breach of her privacy. The court was told that the doorbells are designed to notify the absent homeowner through a smartphone when a visitor arrives at the door.

The owner can then use an app to watch and talk to the visitor by using the doorbell's built-in camera and microphone. The defendant in this case had installed his doorbells facing his neighbour’s house and would monitor her using them. The judge found that the defendant’s use of his doorbells captured the images and audio files of the doctor, which were classed as her personal data.

The court said the defendant had broken the Data Protection Act and that his act amounted to harassment of his neighbour. The neighbour had claimed that she was forced to move out of her home because the internet-connected gadgets were so 'intrusive'. The doctor was to be compensated to the tune of about £100,000 for the intrusion.

But not all persons who sued for breach of privacy reaped the kind of windfall that Clint Eastwood and the doctor made. Meghan Markle, the Duchess of Sussex, sued and won a claim against a newspaper that had published private correspondence she exchanged with her father.

Publishing an apology

In addition to publishing an apology for infringement of both copyright and privacy in the letters, the newspaper was also ordered to pay damages.

The damages were in the nominal amount of £1! This was instructive, if for no other but for the reason that the successful complainant here is a person of high social standing, a Duchess no less, but is awarded a nominal amount that is truly nominal and almost derisive when looked at against other decisions within the same country where a doctor was awarded a hundred thousand-fold in damages.

The case that needs proper reflection particularly in Kenya is the award given to Meghan Markle in a nominal amount. In Kenya, despite the differences in purchasing power parity, courts still award the equivalent of 10,000-fold as nominal damages. This definitely suggests that there is a need for a review of the quantum of awards in Kenya.

The lesson here is that privacy in general and data protection are becoming serious issues the world over and must be taken seriously.


The writer is Head of Legal at Nation Media Group PLC