Wakilii

Asege Winnie v Opportunity Bank (U) Ltd & Anor (High Court Civil Suit No. 756 of 2013)

High Court · [2016] UGCOMMC 39 · 2016 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of privacy, passing off, misrepresentation, breach of confidence and unjust enrichment
Decision
Judgment for plaintiff; defendants ordered to pay royalties and damages totalling UGX 150,000,000 plus interest and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the defendant bank and third party advertising agency infringed the plaintiff's image rights by using her photograph without consent in marketing materials for the Agro Save Account. Though the defendants obtained the photo from the New Vision newspaper and merged it with other images, they used the plaintiff's features commercially without her permission. The court found liability for invasion of privacy, passing off, misrepresentation, false endorsement, and unjust enrichment. The defendants were ordered to pay royalties of 5% of account proceeds plus damages totalling UGX 150,000,000 jointly.

Outcome

Judgment for plaintiff; defendants ordered to pay royalties and damages totalling UGX 150,000,000 plus interest and costs

Facts

The plaintiff, a successful commercial farmer in Soroti District and chairperson of Dakabela Rural Women Development Association, discovered in 2013 that her image appeared on billboards, flyers, brochures and calendars for Opportunity Bank's Agro Save Account. The advertisements showed her laughing and holding oranges with the caption 'Save for your success with the Agro Save Account'. She had never consented to the use of her image. The defendant bank had engaged Maad Limited, an advertising agency, to develop the campaign. Maad obtained a photograph of the plaintiff from the New Vision newspaper and from Shutter Stock Inc., then merged the images using Photoshop to create the final advertisement. The plaintiff had become well-known in her region after being visited by the President and Vice Presidents of Uganda, and had been featured in newspapers for her agricultural success. The advertisements led to numerous calls from friends asking how much she had been paid, causing her distress and fear for her safety.

Issues

  1. Whether the plaintiff's image rights have been infringed upon by the defendant and or the third party.
  2. Whether the defendant and 3rd party are liable in breach of confidence, privacy and or are liable for passing off, misrepresentation and false endorsement.
  3. Whether the defendant and 3rd party unjustly enriched themselves by use of the plaintiff's image.
  4. What remedies are available to the parties.

Orders

  • The defendant is ordered to share with the plaintiff 5% of royalties accruing from all Agro Save accounts opened from the date the adverts went live until the presentation of the matter in court, attracting interest at 20% per annum from the date of cause of action until payment in full.
  • The Official Receiver is appointed to establish and ensure the royalty gained by the defendant is collected and forwarded to the plaintiff in accordance with this order.
  • The defendant shall meet the award of royalty fees single-handedly to the plaintiff.
  • The defendant and third party will jointly compensate the plaintiff UGX 80,000,000 for invasion of privacy, with each meeting 50% of this amount.
  • The plaintiff is awarded UGX 50,000,000 as general damages against both the defendant and third party who are directed to meet the same in equal amounts.
  • The plaintiff is awarded UGX 20,000,000 as aggravated damages against the defendant and third party to be paid in equal amounts.
  • The sums awarded in respect of invasion of privacy, general damages and aggravated damages carry interest at 6% per annum from the date of judgment.
  • The plaintiff is awarded the costs of the suit.

Rules and key headnotes

Right to Privacy — Image Rights — Commercial Use Without Consent
Every individual has a right to their personality which extends to their name and image, and has a right to control the commercial use of either. Where a party uses another's image for commercial benefit without consent, the individual's image rights and right to privacy under Article 27(2) of the Constitution are infringed.
Right to Privacy — Photograph Published by Newspaper — Fair Use vs Commercial Use
Where a newspaper publishes a photograph of an individual for news purposes, such use is regarded as fair use and does not transfer economic or commercial rights in the image to the newspaper. A third party who obtains such a photograph from the newspaper and uses it for commercial advertising exceeds the scope of fair use and infringes the subject's privacy rights regardless of having obtained the newspaper's consent.
Passing Off — Use of Another's Personality and Goodwill
For an action in passing off to succeed, a plaintiff must prove existence of goodwill which the defendant is trying to take advantage of to the detriment of the claimant, a misrepresentation, and damage or likelihood of damage. Where a person has acquired good reputation and goodwill through their accomplishments, and a commercial entity uses their image to promote a product, the tort of passing off is established.
False Endorsement — Likelihood of Confusion — Celebrity Identity
False endorsement occurs when a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product. Where an individual with public recognition has their image used in advertising materials without their consent, and reasonable consumers would believe the person endorses the product, the tort of false endorsement is established.
Unjust Enrichment — Benefit Without Compensation
The principle of unjust enrichment requires that a defendant has been enriched by the receipt of a benefit, that this enrichment is at the expense of a plaintiff, and that retention of the enrichment is unjust. Where a commercial entity uses another's image to attract customers and earn profits without paying compensation, unjust enrichment is established.
Damages — Royalties for Unauthorised Use of Image
Where a defendant has earned profits from the unauthorised commercial use of a plaintiff's image, it is legally untenable to allow the defendant to enjoy those profits alone. The court may order the defendant to share royalties with the plaintiff calculated as a percentage of the profits or benefits accruing from the unauthorised use, with interest from the date of cause of action.
Aggravated Damages — Conduct Without Remorse
Aggravated damages are awarded as extra compensation for injury to feelings and dignity caused by the manner in which the defendant acted. Where defendants show no sign of remorse for their conduct and remain adamant throughout proceedings, an award of aggravated damages is appropriate to punish the defendant and deter repetition of such conduct.

Legislation cited (4)

Cases cited (13)

  • Krouse v Chrysler Canada Ltd (1973) 13 CPR (2d) 28
  • Athans v Canadian Adventure Camps (1977) CAN H1 1255
  • Sikuuku Agaitano v Uganda Baati (High Court Civil Suit No. 298 of 2012)
  • PA Thomas v Mold [1968] QB 923
  • Britannia Allied Industries Ltd v Aya Biscuits (U) Ltd (High Court Civil Suit No. 24 of 2009)
  • Nanoomal Lissas Motiwala (U) Ltd v Sophie Natongo & Others (High Court Civil Suit No. 430 of 2006)
  • Cloth Link (U) Ltd v African Trade Investment Fund Ltd & Another (High Court Civil Suit No. 234 of 2010)
  • Moses v Macfarlane (1760) 2 BURR 10
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Rookes v Barnard [1964] All ER 367
  • Jennifer Behange, Rwanyindo Aurelia, Paulo Bagenze v School Outfitters (U) Ltd (Court of Appeal Civil Appeal No. 53 of 1999)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Asege Winnie v Opportunity Bank (U) Ltd & Anor (High Court Civil Suit No. 756 of 2013) [2016] UGCommC 39 (2 May 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.