Sports Image Rights: Legal Protection in South Africa and Kenya
By Prof Dr Steve Cornelius, Centre for Sports Law, University of Pretoria, South Africa
South Africa and Kenya are arguably two of the sports powerhouses in Africa.
South Africa is well-known for its Springbok rugby union team, cricket team, Olympic swimmers, rowers and athletes, as well as boxing and mixed martial arts champions.
Kenya is best known as the home of the greatest middle- and long-distance runners, whilst the Kenyan cricket and sevens rugby teams can hold their own against the best.
As a result, it would certainly be expected that marketers in the countries would look towards these famous athletes and seek to use their images in an effort to promote their respective products and services in the South African, Kenyan, African and global markets. Ironically, it would not be any of the Olympians or other famous athletes who would bring the issue of image rights to a head in South Africa or Kenya.
South Africa follows a Roman-Dutch Common Law approach based on judicial precedent to unauthorised use of a person's attributes for commercial purposes. The South African law of delict or tort is based on three remedies:
- the actio legis Aquiliae with which damages is claimed for patrimonial loss:
- the actio iniuriarum with which compensation is claimed for willful injury to person or personality; and
- the action for pain and suffering with which compensation is claimed for negligence causing physical or mental impairment.
The landmark ruling on image rights in South Africa is Grutter v Lombard 2007 4 SA 89 (SCA). This case dealt with the continued use of the name "Grütter and Lombard" for a law firm after one partner had left the firm. The court held that the right to identity can be violated in one of two ways.
Firstly, a person's right to identity is violated if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves or endorses a particular product or service or that an attorney is a partner in a firm, whilst this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in violation of the right to human dignity.
Secondly, the right to identity is violated if the attributes of a person is used without authorisation by another person for commercial gain, similar to the commercial appropriation tort in American law. Apart from the unauthorised use of the individual's image, such use also primarily entails a commercial motive which is exclusively aimed at promoting a service or product or to solicit clients or customers. The mere fact that the user may benefit or profit from any product or service in respect of which the individual's attributes have incidentally been used, is not in itself sufficient.
As a result, the court found that the appellant was entitled to insist that there should be no potential for error and ordered the respondents to desist from using the name "Grütter".
In Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC), the court reaffirmed that appropriating a person’s image or likeness for commercial gain warrants legal protection in favour of such a person.
This case provides a prime example of how the unauthorised publication of a person's image, can violate the privacy of that person and have a severe detrimental impact on that person's dignity. A photograph of a girl taken from behind, was published without consent in a magazine for surfers, called Zigzag, depicted the subject, who was twelve years old at the time, in a bikini, kneeling in the shallows at the shoreline on a public beach. Although the photograph was taken from behind and the subject's face was obscured by the angle of the photograph as well as her hair, the court concluded that the girl could be identified and, in fact. was identified by her friends and school mates. The girl was distressed to find that social media posts identified her as the girl in the picture and referred to her as "a little slut" and "PE's little porno star", with reference to her home town of Port Elizabeth. She was further distressed to see that the picture had been put up behind the cashier in a local craft store and to learn that it was seen on the walls of a local boys' school.
The case of Khumalo v Cycle Lab (Pty) Ltd [2011] JOL 27372 (GSJ) is another South African precedent on the matter.
The plaintiff in Khumalo was a former Miss South Africa, celebrity and public figure who built a successful career in modelling, television presentation, magazine editing and business. The plaintiff was also an avid mountain biker and frequently visited the shop of the defendant, which specialises in the retail of bicycles and cycling gear. During one visit to the shop, a man approached the plaintiff and took a photograph of her, which was used without her knowledge by the defendant to advertise his shop in a cycling magazine and advertising brochure. The court held that the publication of the plaintiff's photograph for commercial gain without consent constituted an intrusion of her rights to identity, privacy and dignity and that these rights were worthy of legal protection.
Kenyan law is, to some extent, based on English Common Law. Section 3 of the Judicature Act (Cap 8) implies that the Law of Kenya consists of the Constitution of Kenya, Kenyan and certain colonial legislation, as well as the Common Law, the doctrines of equity and the statutes of general application in force in England on 12 August 1897, to the extent that circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary. Civil liability in Kenya is, therefore. derived from the English law of torts.
However, in the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR (Constitutional Petition 10 of 2020) the High Court in Kenya disregarded English precedents on image rights and took its lead from the South African precedents estblished in Grutter and Wells. In the Rafiki case the petitioner applied for financial assistance from the respondent towards purchasing a motorcycle to transport passengers and goods, which in Kenya is colloquially known as a “Boda Boda”. The bank approved the loan and then used a photograph of the petitioner in its advertisements for Boda Boda loans.
After analysis of the South African precedents on the matter, the court in Kenya upheld the petitioner’s claim that the publication of his image or likeness by the respondent for commercial gain violated his constitutional right to human dignity as provided for in article 28 of the Constitution of the Republic of Kenya, 2010.
South African and Kenyan laws recognise the right to identity as a distinct personality right worthy of protection. This right includes both congenital and acquired attributes that distinguish an individual. Unauthorised use of these attributes for commercial gain can lead to claims for satisfaction or damages, provided that actual damage or loss can be established.
Prof Dr Steve Cornelius may be contacted by e-mail at ‘
