Introduction

The right to privacy is one of the fundamental rights of an individual guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). The right to privacy protects an individual from the invasion of his/her privacy by anyone, it protects an individual from the public disclosure of embarrassing facts and it also prevents the appropriation of an individual’s name or likeness for commercial use.

A review of the law reports in Nigeria would show clearly that the right to privacy is one of the least litigated fundamental rights in Nigerian Courts and the reason for this is not farfetched—data privacy concerns are just beginning to gain momentum in Nigeria and this can be seen from the recent issuance of the Nigeria Data Protection Regulation (NDPR) in January 2019 by the National Information Technology Development Agency (NITDA). In addition, the advent of social media platforms like Facebook, Twitter and Instagram has also helped to bring data privacy issues on the front burner, as it is now very easy for the personal data of an individual to be easily accessed and used in an unlawful manner.

Summary Of The Facts Of Portland Paints & Products Nig. Ltd & Anor -V- Mr. Jimmy S. Olaghare & Anor

In the recent decision of Portland Paints & Products Nig. Ltd. & Anor. v. Mr. Jimmy S. Olaghare & Anor. (2019) 2 NWLR (Pt. 1657) 541 the issue of the unauthorized use of the photograph of the claimant’s residence for an advertorial by a company came up for the determination of the High Court of Lagos State and the Court of Appeal. Instructively, both courts held that unauthorized use of the picture of the claimant’s residence constituted a breach of the claimant’s right to privacy.

The pertinent facts of Portland Paints & Products Nig. Ltd. & Anor. v. Mr. Jimmy S. Olaghare & Anor. are as follows: the appellants, as defendants at the Lagos High Court, used the picture of the 1 st respondent’s residence without his consent in their 2002 Sandtex calendar by which they sought to promote their paint business. Although the address of the 1 st respondent was not indicated on the calendar, the 1 st respondent as the Claimant at the High Court of Lagos State, alleged that his privacy was invaded, the security of his residence had been compromised and that he had been exposed to embarrassment and ridicule, as a result of the unauthorized use of the picture of his residence.

The 1 st respondent consequently made a claim for the sum of N100 million naira as aggravated and/or exemplary damages against the defendants. The High Court of Lagos State found in favour of the 1 st respondent and awarded the sum of N50million as exemplary damages against the appellants for the unauthorized use of the picture of the 1 st respondent’s residence in their calendar. The appellants were dissatisfied with the decision of the High Court of Lagos State and they filed an appeal against the decision. The fulcrum of the appellants’ argument was that they engaged the services of an independent contractor to design and provide complementary calendars for them and that the independent contractor provided them with an indemnity which was issued by the 2 nd respondent, a photographer who claimed to have gotten the consent of the owner of the property to use the photograph of his property for the advertorial. Unfortunately for the appellants, they were unable to establish that the consent of the owner of the property was indeed obtained before the picture of his property was used in the calendar, as both the independent contractor and the photographer did not put up an appearance in the lawsuit.

The Court of Appeal however substantially agreed with the judgment of the High Court of Lagos State to the effect that the 1 st respondent’s right to privacy was breached by the unauthorized use of the picture of his residence, but it reduced the damages awarded in his favour, to the sum of N3million based on the ground that the sum that was awarded by the High Court of Lagos State was excessive.

Take Away From The Court Of Appeal’s Decision In Portland Paint’s Case

Although the Copyright Act is clear that the image right in a photograph belongs to the person who took the photograph, this provision of the Act might not avail a photographer or company who uses the photograph of an individual or the photograph of his/her property in a manner in which the constitutional right to privacy of the individual would be considered to have been breached. This is because, the right to privacy is a constitutional right which stands above any other statutory rights.

Therefore, it is important for companies to ensure that they take adequate steps to address the potential data protection/privacy issues that may arise from their marketing activities both online and in the print media, as the financial and reputational damage caused by a data breach or breach of the right to privacy of an individual can be devastating to the operations of a company.

Finally, the issues in dispute in this lawsuit could have been resolved amongst the parties through any of the mechanisms of alternative dispute resolution, as the Claimant wrote the Defendants a letter calling for settlement prior to the institution of the lawsuit in Court, but the Defendants spurned the Claimant’s offer for settlement by “impudently relying on a purported indemnity” which was issued by the photographer who took the photograph of the Claimant’s residence and the parties had to spend a total period of fifteen (15) years from the High Court of Lagos State till judgment was delivered by the Court of Appeal.

“It is important for companies to ensure that they take adequate
steps to address the potential data protection/privacy issues that
may arise from their marketing activities both online and in the
print media, as the financial and reputational damage caused by a
data breach or breach of the right to privacy of an individual can
be devastating to the operations of a company.”