ivanna felix teri vs viettel tanzania public ltd company and set up company ltd as third party 2022 tzhc 903 7 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CIVIL CASE NO. 7 OF 2019 IVANNA FELIX T E R I................................................PLAINTIFF VERSUS VIETTEL TANZANIA PUBLIC LIMITED COMPANY......... DEFENDANT AND SET UP COMPANY LIMITED..........................................3rd PARTY JUDGMENT 22/2/2022 & 7/3/2022 SIMFUKWE, J. The plaintiff Ivanna Felix Teri instituted this suit against the defendant claiming for Tshs 800,000,000/= as damages for unlawfully using her pictures in marketing and promoting the defendant's business without her consent. Believing that her right of privacy and dignity has been breached, the plaintiff filed the instant matter praying for judgment and decree with the following reliefs: Page 1 of 15 a) That, this Honourable Court be pleased to hold that, the defendant is in breach o f the plaintiff's right o fprivacy and dignity and she has unjustly enriched herselfby unlawfully interfering with plaintiff's economic interest, personality and image rights, deprived the plaintiff's property over her image without lawful compensation, misrepresentation, false indorsement and passing o ff the plaintiff's property with no authority and/or consent for commercial gain. b) An order for payment o f the sum o f Tanzania Shillings eight hundred Million (800,000,000) as damages for unauthorized use o f the plaintiff's image in marketing and promoting the defendant's services and products. c) An order against the Defendant for payment o f 25% o f royalties arising out o f the benefits gained as a result o f publishing the advertisements infringing plaintiff's rights as o f October 2018 when the advertisements were posted to the date o fjudgment with interest o f 20% per annum from the date o f cause o f action to the date o f full payment. d) An order for appointment o freceiver to collect and forward to the Plaintiffroyalties prayed underparagraph (c) above. e) An order that the defendant should renumerate the receiver appointed by the court for the purpose o f executing the order under paragraph (c) above. f) Aggravating damages. g) Interest on the decretal amount in (b) and (c) above at the court rate o f 7% per annum from the date o fjudgment to the date o f final payment and satisfaction in full. h) Costs o f the suit i) Any other relief this Honourable Court deems fit and just to grant Contesting the claim, the defendant filed a Written Statement of Defense The plaintiff was represented by Mr. Richard Massawe, learned counsel while Mr. Stephen Mushi learned counsel appeared for the defendant. Prior to proceeding with the hearing, the following issues were framed: 1. Whether or not there was a consent by a plaintiff for her images to be used for commercial purposes. 2. Whether the plaintiff's rights have been infringed upon by the defendant 3. Whether the Defendant unjustly enriched herself by the use o f plaintiff's images 4. Whether a third party has a License Agreement or any legal authorization with the plaintifffor the use o fher images for commercial purposes. 5. In the event the Defendant is found liable in the suit with the plaintiff, whether she is entitled to contribution; indemnity or other reliefs from the Third Party. 6. Remedies available to parties. Page 3 of 15 The plaintiff's case had only one witness, PWl-Ivanna Felix Teri (the Plaintiff herein). The Defendant also had only one witness. The Plaintiff who is a Medical Doctor her evidence produced in Court was to the effect that, she has sued the defendants because they used her images for advertisement without her consent nor compensation. It was testified that the defendants used those images to advertise their mobile money services without agreement and she had never met them before. The said advertisements were on Facebook, twitter and Instagram. Thus, the plaintiff's claim was compensation believing that her private and economic rights had been infringed. She said that she had never received any compensation from the Defendants who had used the Plaintiff's images for commercial purposes since 2018. The plaintiff went on to state that she knew that she is photogenic and have a celebrity personality. That she had pictures which the defendants decided to use for commercial purposes having seen potential on those pictures. Two copies of the Plaintiff's photos which were electronically generated were admitted as Exhibits PI and P2 respectively. She testified further that those photos were advertised on social media which covers Tanzania and all over the world. The Plaintiff also tendered the demand notices which her lawyer issued to the Defendants, and the same were admitted as Exhibit P3 and P4 respectively. When cross examination by Mr. Stephen Mushi, learned counsel for the Defendants, the plaintiff stated among other things that it is not necessary that a person with celebrity personality is a person known but she believed Page 4 of 15 that she has a celebrity personality and photogenic (a person who is attractive in pictures). She also admitted that the pictures (Exhibit PI and P2) were pictures taken from her camera and that the same were not tendered as exhibits before the court. Also, she stated that she did not know how much the Defendants earned from those advertisements. She stated that in the demand note Hallotel replied that they had a contract with Setup Company who had all the copyright rights. Thus, Hallotel directed the Plaintiff to sue Setup Company. That marked the end of the plaintiff's case. In their defence, the Defendant called one witness their legal officer one Allan Charles Sanga who stated that he was aware that the Defendant was sued by the Plaintiff claiming Tshs 800,000,000/= as compensation. DW1 said that, after they had received the said claim in a Demand Letter, they discussed at the Head Quarter and replied the same that they were not liable. They attached a contract showing that the Defendant was not liable. DW1 testified further that the main parties in the said contract were Viettel (T) Limited and Setup Company Limited. The essential features of the contract were that, one, Setup Company Ltd would have full account access and authorization to assume the identity of the Defendant and implement advertisement of the Defendant's products and full content creation. Two, that Setup Company Ltd shall have exclusive rights of intellectual property, Trademark or any element of copyright to be used during the implementation of contract and after the expiration of contract. Three, the limitation of liability among the parties, was that the Defendant shall not be liable whatsoever from any claims arising from any third party including the Page 5 of 15 plaintiff, on any negligence or misconduct done by Setup Company Ltd. It was also agreed in the said contract by both parties that exclusive rights, consent and approval shall be sought by Setup from any third party including the plaintiff during the implementation of contract and after expiration of contract. The limitation of liability included two parts: first, Setup Co. Ltd shall have consent and approval of any intellectual property, Trade Mark and copyright of 3rd parties including the plaintiff. Secondly, it was agreed by both parties that any claims arising from third parties due to negligence conducted by Setup Company Ltd, the Defendant shall not be liable on whatsoever way. Thus, the defendant was in no position to seek approval or consent from any third party including the plaintiff. All rights, account access and authorization were exclusively given to Setup Company Limited. That, in response to a Demand Letter, the Defendant precisely stated that all claims arising from the Plaintiff were to be directed to Setup Company Limited on the ground that Setup Company Limited had exclusive rights for intellectual properties, Trade Mark or any element of copyright. DW1 stated further that they attached the contract as reference to show that both parties of the contract had limitation liability clause which exempted the Defendant from all liabilities. However, to their surprise the plaintiff disregarded that fact and instituted the suit against the Defendant. Then, the Defendant in their Written Statement of Defense filed an application to join Setup Company Limited as a Third Party believing that it was a legal requirement that Setup Company Limited should possess all exclusive rights, consent and approval on Third Party including the Plaintiff to obtain those rights, intellectual Page 6 of 15 properties and copyrights. Second, they wanted to establish that the Defendant was not liable for any claim arising from the Plaintiff or Third Party that the Plaintiff ought to seek compensation or redress from Setup Company Limited. The contract between the Defendant Company Viettel Tanzania PLC and Setup Company Limited dated 2nd July 2018 was admitted as Exhibit Dl. DW1 referred to article 2 of exhibit Dl, which reflects an access and authorization of all online transactions and social networks. On Article 7 there is limitation of liability of the Defendants. Secondly, that the defendant shall not be liable on claims of Third Parties. Lastly, DW1 prayed the court to dismiss the Plaintiff's claims with costs on the ground that they had no contractual obligation or any contract signed with the Plaintiff. In the alternative, they prayed that in case the defendant will be found liable, then the redress and compensation be sought from Setup Company Limited due to their negligence and unlawful act. During cross examination, DW1 insisted what was established during examination in chief that the contract between the defendant and Setup Company Limited was advertisement of Hallotel products on condition that Setup had exclusive rights except for images from Third Parties which required consent or written approval. That, the advertisement on exhibit PI was posted by Hallotel and that they had full authorization. Page 7 of 15 Having heard the testimonies from the parties, the parties through their respective advocates filed their detailed Final Submissions in which everyone tried to influence the court why the case should be decided in their favour. After hearing both parties and carefully examining the exhibits tendered, it is now the Court's task to answer the issues framed. From the record, the 3rd party filed his WSD but didn't defend it. Thus, the only evidence we have is that of the plaintiff and the defendant. It is the law under Section 110 of the Evidence Act Cap 6 R.E 2019, that he who alleges must prove. The provision provides as follows: 110. -(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist In the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha Civil Appeal No.53 of 201^ the court held that; "It is trite law and indeed elementary that he who alleges has the burden o f proof as per Section 110 o f the Evidence Act Cap 6 [R.E 2019]. It is equally elementary that since the dispute was in Civil case, the standard o f proof was on balance o f probabilities which simply means that the court will sustain such evidence which is more credible than the other...." In the instant matter, I opted to answer the 1st and 2nd issues jointly since these issues seems alike. The first and second issues are Whether or not there was consent by a plaintiff for her images to be used for commercial purposes and whether the plaintiff's rights have been infringed upon by the defendant The common point in these issues is the plaintiff's picture. That is to say whether the said pictures were used without consent and that the use of such pictures infringed the plaintiff's rights. The case of this nature is typically based on electronic evidence since the pictures were retrieved from electronic devices in the sense that the advertisement was printed from electronic device and the picture from such advertisement was also from the electronic device. Under section 64 (3) of Tanzania Evidence Act, electronic evidence is the information stored in or transmitted through or retrieved from electronic device or computer system. The admissibility and reliability factors for electronic evidence is provided for under section 18 (2) of Electronic Transaction Act. The fact that the pictures (Exhibit PI and P2) were admitted in court during proceedings does not necessarily mean that the court should give it evidential value. See the case of William Joseph Mungai vs Cosato David Chumi, Misc. Civil Cause (Election Petition) No. 15 of 2015. Therefore, in answering the first and second raised issues, I think the most important thing to establish is the photos/ images which were alleged to have been used in the advertisement by the Defendant. Thus, whether the same were the photos of the Plaintiff. Thereafter, to establish whether there was consent to publish such photos/ images and whether the plaintiff's rights has been infringed. Page 9 of 15 I have thoroughly examined the copies of the photos which were tendered by the Plaintiff before the court, thus exhibit PI and P2. Exhibit P2 are the photos taken from the advertisement on the social media, while exhibit PI are the photos alleged to be of the Plaintiff which this court does not see its relevance to this matter. I could have expected the Plaintiff to have bothered to tender the photos exactly like the photos on the advertisement for the sake of proving on balance of probabilities that the photos on the advertisement were in fact her photos as alleged. The Plaintiff alleged in her Plaint at paragraph 4 and 5 that the said photos marked as annexure IF-1 were used in the advertisement marked as annexure IF-2. Also, in her testimony the Plaintiff alleged that the said photos were taken by using her camera. However, the said camera was not tendered as exhibit nor were the original photos tendered in Court. It may be noted that, the photos on exhibit PI are quite different from the photos on exhibit P2 and connotes that the person on exhibit PI is not the same person who is on exhibit P2. Although, the Defendant seemed to admit that the photo of the Plaintiff was used in its advertisement but shifted liability to Setup Company Limited; I am of considered view that, failure to tender the original photo which is on the advertisement gives me a stuttering to conclude that the Defendant had no prior consent or approval to use the said photo in its advertisement. Possibly the said photo on the advertisement was taken by the Defendant or the Third-party Setup Company Limited or someone else who had copyright of the image. Hence, it is difficult for the Plaintiff to have the original copy of the same. In other words, for the Plaintiff to succeed in this matter, she must establish not only that the image on the advertisement belonged to her, but also that she was a creator or had copyright of the same. That could only be achieved by producing before the court the original photos or at least the device used to generate the same. The learned counsel for the Plaintiff in his closing submission cited the case of Stella Mwanyika v. CBS, Civil Case No. 7 of 2006, in which the Plaintiff was filmed without her consent. With respect, I am of the view that the cited case is distinguishable to our case, since in the instant matter the Plaintiff alleged that the photos were taken by using her own camera (exhibit PI) and that the photo on exhibit P2 was printed from her mobile phone. That, the photo on exhibit P2 was downloaded by the Defendant from the social media. However, the social media account of the Plaintiff was not mentioned and the alleged original picture from the social media account was not produced before the court to substantiate the allegation. In his final submissions, the learned counsel for the Defendant submitted among other things that, the Plaintiff was supposed to bring a separate or original picture in order to confirm that the pictures or images found on the advertisement actually refers to the same person (Plaintiff). This Court totally agrees with the learned counsel for the Defendant I am persuaded by the decision in the case of Deogras John Marando vs Managing Director,Tanzania Beijing Huayuan Security Guard Service Co. Ltd, Civil Appeal No 110 of 2018, High Court Dsm, in which Hon. Mlyambina, J. my learned brother, was dealing with the scenario like the instant one, factors to establish breach of personality right were observed as follows: "One, there must be intrusion o f personal privacy o f the claimant on his identity/image by the respondent and that through such intrusion the claimant suffers either social, Psychological, economical or any other kind o f injury... Two, there must be appropriation o f the claimant image or celebrity or likeness for the respondent's advantage in any form but in particular commercial purposes. In this case the respondent has denied but exhibit PI P2 and P3 collectively proves that the respondent used the appellant's likeness for commercialpurposes. Three, there must be lack o f consent from the claimant. In this case, it is vividly established that the respondent used the appellant's likeness without his authorization. Four, there must be a proofthat the respondent earned more profit out o f the illegal use o f the claimant's likeness. In this case, though there was a proof on illegal use o f the appellant's likeness by the respondent there was no proof of earning more profit." Unlike in the cited case of Deogras John Marando (supra), in this case the above factors were not met by the Plaintiff. Apart from the above findings, the print out which was admitted as exhibit (exhibit PI and P2), we are not told how the same was retrieved from the alleged devices. Section 18 (2) of Electronic Transaction Act provides that: Page 12 of 15 "7/7 determining admissibility and evidential weight o f data message, the following shall be considered a. The reliability o f the manner in which the data message was generated, stored or communicated. b. The reliability o f the manner in which integrity o f the data message was maintained. c. The manner in which its originator was identified. d. Any other factor that may be relevant is assessing. Emphasis added. The plaintiff did not substantiate the source of the picture, thus, where the same originated. In the circumstances that the defendant has denied the liability and threw the same to the Third Party, I expected all these to be proved for this court to give evidential value to those exhibits. I did not ignore the affidavits which were filed by the plaintiff on 1/9/2021 and on 1/11/2021. The same were considered, nevertheless in the circumstances of this case, the said documents do not suffice to substantiate the authenticity of exhibit PI and P2, since in those affidavits, the plaintiff deponed that the same were from her devices (camera and mobile phone) without stating the reason for her failure to bring the said devices in court. In that respect therefore, the authenticity of these exhibits is questionable. In our Copyright and Neighbouring Rights Act, Cap 218 R.E 2019 there is no specific provision in respect of personality rights or celebrity rights/ image rights. It is for that reason that I subscribe to the United Kingdom where copyright of an image as a general rule belongs to the creator of the image, or to the person making arrangement of the photo, or to a person having a license (permission) to use the image often in consideration for payment on certain condition for specific period of time or in case of orphan works copyright will be on the Intellectual Property Office ( See www.aov.uk - Copyright Notice, digital images, photographs and the internet). I am convinced that, the same may be applied in our jurisdiction. Basing on the quoted persuasive literature from the United Kingdom, it is a considered opinion of this court that the Plaintiff failed to establish 'her' image copyright. She failed to prove on balance of probabilities that either she was the creator of the image/photo or made an arrangement for the same to be taken. Thus, the question whether there was consent to publish the said photo becomes of no use. And definetely, we cannot conclude that her rights have been infringed. Moreover, even if we assume that the copyright of the photos is established, still the plaintiff's claims of Tsh 800,000,000/- as specific damages cannot stand since the law requires these damages to be specifically proved. In her evidence during trial, the plaintiff merely told the court that she deserves Tshs 800,000,000/ without specifically pleading how such amount was earned by the defendant from those pictures and how her economic rights have been infringed. Having decided the first and second issue negatively, the remaining issues collapse naturally, since the core issue was the photos/ images alleged to be of the Plaintiff. Thus, I find no need to deal with the rest of the issues as doing so will amount to purely a futile academic exercise. I therefore dismiss this case with costs. It is so ordered, COURT r /. S. H. SIMFUKWE v P r , ' JUDGE THE 07/3/2022 r: / Page 15 of 15