ARTICLE
21 January 2025

Navigating Personal Data Protection In Tanzania: Balancing Privacy Rights And Commercial Interests

The long-awaited operationalisation of the Personal Data Protection Commission (PDPC) is finally over, following the official launch by the government of the PDPC on 3 April 2024.
Tanzania Privacy

The long-awaited operationalisation of the Personal Data Protection Commission (PDPC) is finally over, following the official launch by the government of the PDPC on 3 April 2024.Tanzania enacted the Personal Data Protection Act, 2022 (PDPA) on 1 November 2022, which was initially published in Swahili and subsequently translated into English through Government Notice No. 359B dated 13 June 2023. The supporting subsidiary legislation for the PDPA came into force soon after following the publication of the Personal Data Protection (Personal Data Collections and Processing) Regulations, 2003 on 4 July 2023 and this was impressively followed by the setting up of the PDPC, which was recently officially launched by the President on 3 April 2024.

The enactment of the PDPA and the establishment of the PDPC signify Tanzania's commitment to enhancing personal data protection standards. The PDPA provides a comprehensive framework for regulating the collection, processing, and use of personal data, aiming to balance individuals' rights to privacy with legitimate business interests. However, the effectiveness of the PDPA in addressing complex issues such as unauthorised image usage remains subject to interpretation and judicial scrutiny and the question we cannot help but ask, is whether the PDPA and its supporting regulations will provide a cure for the issue we have had in legislation in addressing challenges emanating from the use of people's images in business advertisements without their consent. Businesses have found themselves embroiled in legal tussles based on allegations that they have featured images of individuals in advertisements, without such individuals' consent. Our courts have equally not been spared and have provided legal guidance in determining such disputes. Thankfully, these continue to aid in the development of this area of law, as we have seen a number of such disputes filed in our courts for determination.

Analysis of legal disputes

In one of such recent decision, the High Court (Commercial Division)1, had an opportunity to consider an appeal filed by Multichoice (T) Limited (the Appellant) against the judgment issued by the District Court in favour of three individuals, Felix Simbu, Failuni Abdi Matanga and Gabriel Gerald Geay (collectively the Respondents) in which the District Court decided that the Appellant had breached the Respondents' right to privacy by using their images in its advertisement, without their consent. By way of a brief background, the Respondents are professional long-distance runners who were taking part in the Tokyo Summer Olympic Games in Japan in 2020. At around that time, the Appellant produced an advertisement which had a picture of the Respondents and bore the following content "Tarehe 23 Julai tutakiwasha katika mashindano makubwa duniani Olympics. Na kutoka Tanzania tunao mashujaa wa kupeperusha bendera yetu...Nunua full set ya DSTV kwa Tsh. 79,000" which simply translates into English as follows: "On 23rd July we will light it up in the world Olympics, and from Tanzania, we have heroes who will raise our flag...get your full set of DSTV at Tsh. 79,000/=".

The Respondents claimed that they did not consent to their images being used by the Appellant in the said advertisement and claimed for, amongst other reliefs, general damages to the tune of Tshs. 450 million. The Appellant, being aggrieved by the decision, appealed to the High Court challenging the decision of the District Court on, amongst other grounds, that the use of the Respondents' images on the advertisement neither breached the Respondents' privacy nor was the Appellant liable for "passing off", for the reason that the information contained in the advertisement was general information available to the public which the Appellant, being a broadcaster, had a right to inform the public about, and more so, that the picture forming the basis of the dispute was taken in public, during a tournament.

Amongst the arguments advanced by the Appellant in challenging the decision of the District Court is that the principles necessary to support a claim of passing off, as discussed in the English case of Roby Rihanna Fenty & 2 Others v. Arcadia Group Brands & Another 2 , had not been established. Briefly, the principles discussed in the above-cited Fenty case are that in any claim for passing off, the plaintiff must establish that (a) the claimant has goodwill; (b) the defendant has committed a misrepresentation; and (c) the claimant has suffered damages as a result of the Appellant's misrepresentation. In the case between Deogras John Marando v. Managing Director Tanzania Beijing Huayuan Security Guard Service Co. Ltd.3, the Court coined the following principles as being necessary for a claim of breach of personality right to be successful: (a) there must be intrusion of personal privacy on the claimant and on his identity/image by the respondent and through such intrusion, the claimant suffers social, psychological or economic injury; (b) there must be appropriation of the claimant's image or celebrity or likeness for the respondent's advantage in any form but in particular for commercial purposes; (c) there must be a lack of consent from the claimant (d) there must be proof that the respondent earned more profit out of the illegal use of the claimant's image.

The High Court in the Multichoice case authoritatively affirmed the principles in the above-cited Marando case but went on to caution that in a claim for violation of personal privacy, it is not necessary for the claimant to prove profit made by the defendant, unless the court is considering general damages to be awarded to the claimant. This finding could not be any more precise now that the PDPA is in full force.

Whilst the High Court cautioned on reliance on the Fenty case, on the basis that it involved character merchandise, it is noteworthy that in that case the Court of Appeal categorically stated that in English law, there is no "image right" or "character right" which allows a celebrity to control the use of his or her name or image. As such, a celebrity seeking to control the use of his/ her image must rely upon some other cause of action such as breach of contract, breach of confidence, infringement of copyright or passing off. The court authoritatively cited the decision in the case between Douglas & Others v. Hello! Ltd & Others 4, in which two celebrated actors, Michael Douglas and Catherine Zeta-Jones, sought to prevent the publication and use of unauthorised photographs taken secretly at their wedding. In deciding this matter, the court held that under English law, it is not possible for a celebrity to claim a monopoly in his/her image as if it were a trademark or brand, nor can anyone, celebrity or otherwise, complain simply of being photographed. The court stated as follows: "There is in my opinion no question of creating an 'image right' or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases' image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence."

In the Marando case, the Court acceptably noted that the Copyright and Neighbouring Rights Act, 5 (Copyright Act) is silent on the protection of personality and celebrity rights. The Court went further to provide guidance by relying on the decision of the court in Martin Luther King Jr Centre for Social Change versus American Heritage Products Inc 6 where it was stated that "the term 'celebrity' should be interpreted in a broader sense to encompass more than the traditional categories of movie actors, rock stars and ball players." Interestingly though, the Court in the Marando case boldly equated celebrities to "performers" and went further to state that "under the 'direct commercial exploitation of identity' test, when an unauthorized use of a person's identity is made that is both direct in nature and commercial in motivation, the person whose identity has been misappropriated has by definition become a celebrity for right of publicity purposes."

It is not the intention of this paper to address the correctness or otherwise of the above-stated conclusion by the Court in the Marando case. What is not in doubt is that the Copyrights Act does not afford a definition for the term "celebrity" and on this basis, the reliance on the Martin Luther King Jr case in the Marando case by the High Court is helpful in filling the void. However, it is important to point out that the term "performers" is specifically defined under section 2 of the Copyright Act to mean "actors, singers, musicians, dancers and other persons who act, sing, deliver declaim, play in or otherwise perform literary or artistic, works including expressions of folklore, and variety, and circus artists." It is also noteworthy that in terms of section 31(1) of the Copyright Act, a performer has the exclusive right to carry out or to authorise the broadcasting or other communication to the public of his/her performance, except where the broadcasting or other communication: (i) is made from a fixation, 7 of the performance, other than a fixation made by the original creator of literal or artistic work, or otherwise made without the authorisation of the performer; or (ii) is a rebroadcasting made or authorised by the organisation initially broadcasting the performance.

A performer also has the exclusive right to carry out or authorise broadcasting or other communication to the public of a fixation of his unfixed performance, a direct or indirect reproduction of a fixation of his performance, in any manner or form, the first making available to the public of a fixation of his performance, or copies thereof, through sale or other transfer of ownership, rental to the public or public lending of a fixation of his performance, or copies thereof, irrespective of the ownership of the copy rented or lent and the making available to the public of his fixed performance, by wire or wireless means, in such a way that members of the public may access them from a place or at a time individually chosen by them. However, once the performer has authorised the incorporation of his performance in an audio-visual fixation, the exclusive right specified above is no longer applicable.8

Legal jurisprudence also tells us that a claim for breach of confidence cannot stand where there is no existing relationship of confidentiality between the claimant and the defendant, and no economic value. This was discussed at length in the Douglas case cited above. Closer to home, we have the case between Assenge Winnie v. Opportunity Bank (U) Ltd & Another 9 , also cited by the Court in the Multichoice case, where the High Court of Uganda relying on the decision in PA Thomas versus Mold 10 ,stated that "it is essential that a claimant must make it absolutely clear and certain what he alleges to be confidential information with the rationale for this requirement being that a defendant is able to know the precise allegation against him for the principal of breach of confidence arises where parties are in a relationship or in discussions which will subsequently give rise to a relationship with information exchanged between the parties."

While it may be arguable whether the Respondents qualify as performers under the Copyright Act, what is not in doubt is that the Respondents are well known athletes, both locally and internationally. This position was affirmed by the High Court which stated that evidence had been adduced in the District Court to prove this. As such, the Respondents had goodwill in their images. It is also clear that the Appellant in this case did not own copyright over the Respondents' image, even though the Respondents did not know who took the picture. The fact that the Respondents' image was used to promote the Appellant's service suggests the Respondents' endorsement or approvals of the Appellants' services. However, what may not be clear is whether the Respondents suffered any damage or loss as a result of the Appellant's advertisement, which is a requirement to be proved as established in the Fenty case.

Furthermore, if we consider the principles established in the Marando case, it is not clear whether the Appellant intruded upon the Respondents' privacy in a manner so as to cause the Respondents social, psychological or economic injury, and if indeed the Appellant earned more profit out of the use of the Respondents' image.

Additional questions that also beg legal answers are if, indeed, the Respondents' qualify as "performers" under the Copyright Act, does the exclusive right to carry out or to authorise the broadcasting of their performance to the public qualify for the protection afforded under section 31 of the Copyrights Act? Or this right extinguished if all the Respondents authorised the incorporation of their performance in an audio-visual fixation, or the image was captured by a third party who is also protected under section 5 of the Copyright Act purely based on the fact that s/he captured the Respondents' image? If the Respondents are performers, and hence celebrities, do they retain legal rights for images taken during their performance? Again, bearing in mind that there was no relationship of confidentiality between the Appellant and the Respondents, can a claim for breach of confidentiality stand the established legal test?

While the answers to these questions may not be clear cut, what is, however, clear is that there is a fine line between privacy rights and the tortious action of passing off.

Conclusion

As Tanzania embraces an era of digital transformation, the protection of personal data assumes greater significance. The establishment of the PDPC and the enactment of the PDPA represent positive steps towards enhancing personal data protection standards. However, addressing complex legal disputes involving unauthorised image usage necessitates a balanced approach that respects individuals' privacy rights while accommodating legitimate commercial interests. Moving forward, stakeholders must collaborate to ensure that personal data protection laws effectively safeguard both individuals' and businesses' rights in the digital age.

Footnotes

1 High Court (Commercial Division) at Arusha, (Commercial Appeal No. 1 of 2023), [2023] TZHCComD 363. (13 October 2023) TANZLII

2 [2013] EWHC 2310 (HC)

3 Civil Appeal No; 110 of 2018 [2020] TZHC 1992 (27 March 2020) TANZLII

4 (No 3) [2007] UKHL 21, [2008] 1 AC 1

5 Chapter 218 R.E 2002 of the laws of Tanzania

6 Cited in page 12 of the judgement (694 F.2d 674 (11th Circ 1983) as cited in Journal of Intellectual Property Rights Vol. 16, January 2011, p 7)

7 The term "fixation" is defined under section 2 of the Copyrights Act to mean "the embodiment of sounds or images or both or representations of sounds or images in a material sufficiently permanent or stable to permit them to, be perceived, reproduced or otherwise communicated during a period of more than transitory duration"

8 Section 31(2) of the Copyright Act

9 Civil Suit No. 756 of 2013 [2016] UGCommC 39 (2 May 2016)

10 [1968] QB 923

Originally published 30 April 2024

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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