Universities pay price of using photos without permission

Entrance to Machakos University. A former student took the university to court demanding Sh10 million for using her photo. She was awarded Sh700,000 instead. 

Photo credit: Pool I Nation Media group

Universities are among the first victims of the Data Protection Act after being fined heavily by courts for use of student photos without the owners’ consent.

Since the Act came into force in 2019, two public universities been fined for using pictures of learners in their marketing and advertising materials without permission.

In the latest case, the University of Kabianga was ordered by a court to pay Mr Shimlon Mwangi Kuria – a graduate of the University of Nairobi – a total of Sh500,000 for using his image in its marketing materials without his permission. Mr Kuria complained that the image portrayed him as a student of the Kericho-based university. He had demanded Sh5 million in damages.

In August last year, Machakos University was ordered to pay a former student – Catherine Njeri Wanjiru – Sh700,000 though she had demanded Sh10 million in damages.

Courts have consistently rejected the argument by universities that being public institutions and not engaged in profit, the use of such photos is not an infringement of students’ rights.

Also dismissed by the courts is the argument that publishing or using graduates’ photos on advertising materials portrays them in positively.

Used without consent

Citing Section 29 of the Data Protection Act, the High Court declared as unlawful the practice of universities having pictures of students taken during graduation ceremonies used without consent.

Students and graduands, as data subjects, have the right to know if their images are to be used as provided by Section 29 of the Act, courts say.

The judgments indicate that universities should seek the permission of graduates and students to use their images in advertisements.

Using photos without permission of the subject is an intrusion into privacy, courts say.

“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the individual’s unique characteristics and distinguishes the person from his or her peers,” said Justice Margaret Muigai in the Machakos University case.

“The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication”.

In the Machakos suit, the university said it could do as it wished with the images of graduates.

In dismissing the argument, Justice Muigai said: “The Constitution is here to protect those exploited by such institutions. Rights must be respected,”.

The university had told the judge that the publishing pictures of graduands and staff on its website is not aimed at commercial gain.

Ms Njeri said she found out on April 10, 2021 that her photo was being used by the university in advertising and marketing of computer courses. On conducting online searches, she discovered that public commercial posts and advertisements by the university also had her image.

The photos were also in the website of the school, advertising the list of computer courses being offered. In addition, the school used Ms Wanjiru’s photo in a graduation gown on the website and other platforms.

Ms Wanjiru told the judge that the picture was taken by an unauthorised servant, agent or employee of the school without her knowledge or consent.

“The motive of using the photo was to give the course visibility, which would in turn yield more profits in terms of the many applicants being targeted,” Ms Njeri said.

Urging court to award her Sh10 million for violation of image rights, the right to privacy and human dignity as well as breach of data rights, Ms Wanjiru based her claims on Section 63 of the Data Protection Act.

It recommends a maximum fine of Sh5 million or one per centum of the organisation’s annual turnover of the preceding year of undertaking, whichever is lower.

The court was informed that as per the report of the Auditor-General – a document in the public domain – Machakos University made about Sh1.5 billion.

Subjected her to ridicule

According to Ms Njeri, the use of the image resulted in people assuming that she was working with Machakos University as its brand ambassador.

She said the assumption by peers, kin and the general public subjected her to ridicule as she was seen to be bragging about basic knowledge.

In the Kabianga University case, Justice Asenath Ongeri declared that the institution violated fundamental rights to privacy and human dignity by publishing Mr Kuria’s images without his knowledge and express consent.

The university was ordered to pay Mr Kuria Sh500,000 for using his image in marketing and soliciting funds from a regional commercial bank without his authority.

In his petition, Mr Kuria said Kabianga University used his image and persona for marketing purposes in 2021.

He added that the institution used the image to solicit for funds from the African Development Bank.

Mr Kuria told the court that the action by the university subjected him to psychological torture because society, peers, associates, family, business partners and affiliates perceived him to have graduated from the University of Kabianga.

He added that many concluding that he had not been truthful of his academic credentials from the University of Nairobi.

Mr Kuria said the photo used was during his graduation at the University of Nairobi on December 20, 2019.

About one year later, the University of Kabianga published the said picture on its website, inviting stakeholders to a webinar that was to be held on July 21, 2021.

The webinar was to validate a proposal for a pipeline project in partnership with the African Development Bank on how universities could be supported to cope/mitigate the challenge of the Covid-19 pandemic.

Mr Kuria told the court that the University exploited his identity/image for commercial gain without his consent, hence invading his privacy, contrary to the Constitution.

Opposing the petition, Kabianga University said Mr Kuria lacked the property rights over pictures taken during a public ceremony.

It added that he did not show that Kabianga University used  his image for commercial or other exploitative activities.