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The High Court dismissed a civil appeal over alleged unauthorized use of a photograph in commercial advertising, holding the appellant failed to prove the claim.
The District Court had jurisdiction to award general damages in a commercial tort claim where the subject matter is incapable of being estimated in monetary terms; the trial court properly evaluated the evidence and the respondents proved unauthorized commercial use of their images, constituting passing off and violation of privacy; however, the trial court erred in awarding pre-judgment interest on general damages and in setting post-judgment interest above the statutory limit.
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The appellant failed to demonstrate good cause or diligence for departure from the scheduling order to issue a third party notice. The trial magistrate properly evaluated the evidence and found no credible proof of respondent's consent to use her image. The award of general damages was justified by the harm suffered, but awarding both punitive and exemplary damages for the same misconduct was improper as they serve the same purpose. The punitive damages award was quashed, but other orders were upheld.
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The appellant used the respondents' images in posters and diaries without their consent, amounting to misappropriation of personality and infringement of privacy rights. The use was public and not limited to internal sensitization. Consent was not proven. The respondents are entitled to general damages for the violation of their rights, but only those who testified are entitled to relief. The quantum of damages awarded at trial was inadequate and increased on appeal.
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Plaintiff consented to use of his images for commercial purposes by Simba and its sponsors during the subsistence of his employment contract; defendant's use was within contractual rights and duration. No evidence of unauthorized use or damages after contract expiry was provided.
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The plaintiff failed to prove on the balance of probabilities that the images used in the advertisement belonged to her or that she held copyright over them, and failed to establish the amount of damages claimed. The authenticity and source of the images were not substantiated, and the plaintiff did not provide original evidence or devices. Consequently, no infringement of rights or entitlement to damages was established.
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