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Introduction
A picture of a person mirrors his own image, which is personal to him. It is a clone of an individual. For a business concern to take a picture of somebody, for pecuniary interest, without his consent or authorisation, constitutes a serious erosion of the right of privacy of that citizen. – Hon, Justice Obande Festus Ogbuinya (JSC)1
In today's digital age, the line separating personal identity from commercial use has grown increasingly faint. Creators, businesses, and brands eager to gain attention and appeal to the public now produce a wide range of visual and promotional materials. Yet, in this constant race for visibility and with the evolving state of Nigerian law on image rights, the fundamental rights to privacy and human dignity are too often treated as secondary. The simple but essential rule of consent is, in many cases, ignored or conveniently overlooked.
As this practice becomes more pervasive and as the concept of property rights continues to evolve, creators now possess the legal authority to commercialise and exploit their works. However, a single image can now travel across the world within seconds, carrying with it the risk of infringing on another's fundamental rights. Nigerian courts are beginning to address this delicate tension between publicity and privacy with growing clarity and conviction, recognising that the harm extends beyond mere unauthorised use to encompass reputational damage rooted in cultural and religious values
The recent decision of the Federal High Court in Ndidi-Amaka Odogwu v. Quilox Restaurant and Bar Limited2 stands as a strong reaffirmation of the constitutional protection accorded to image subjects. The Court decisively held that the use of an individual's photograph for commercial promotion without authorisation amounts to a violation of the person's rights to privacy and dignity. Significantly, the court also considered how such an unauthorised association with commercial establishments can contradict an individual's religious identity and cultural standing
While creators retain legitimate rights over their creative works, the judgment clarifies that such rights must yield when they encroach upon the fundamental rights of others. Beyond awarding compensation to the injured party, the decision reflects a culminating jurisprudence that an individual's image is more than mere likeness; It is an expression of one's identity and a form of property that deserves substantial legal protection.3
What is an Image Right
Nigerian law is silent on the definition of what constitutes an Image right; however, reference can be made to the Nigerian Court of Appeal decision in Banire v. NTA-Star Tv Network Ltd (2021) LPELR-52824(CA), wherein the court defined an Image right as thus:
"Image rights or publicity right refers to a person's right misappropriation of his name, likeness, physical appearances, nicknames, pictures, personal slogans. Put simply, it is the right of a person to control the public's commercial exploitation of a person's identity."
This right is rooted in the Constitutional right to privacy as provided in section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In accordance with the definition provided in Banire's case, for a person to prove a breach of an image right, such person must establish the following;
a. The Defendant published the person's image
b. The Defendant's act was intentional
c. The Defendant exploited the person's image for commercial benefit; and
d. The Defendant did not obtain the person's consent.
The aforementioned factors formed the foundation of the Plaintiff's case in Ndidi Amaka Odogwu v. Quilox
Facts of the Case
In 2017, the Plaintiff, a former beauty pageant, instituted an action against the Defendant, the popular Lagos nightclub Quilox, for the unauthorised use of her image in promoting one of its nightclub events in a publication titled "Club Quilox Presents Lipstick Wednesday" on its official social media pages, thereby associating the Plaintiff with the Defendant's nightclub.
She alleged that the Defendant, without her knowledge or consent, used her photograph showing her wearing red lipstick in advertising the event on Instagram, Facebook, and Twitter for the purposes of promoting a nightclub event. The Plaintiff claimed that this act falsely associated her with the nightclub and its activities, tarnishing her moral and religious reputation, being a committed member of the Redeemed Christian church, negatively affecting her fundamental rights to privacy and religion4 .
She only became aware of the publication after receiving several calls and messages from friends and relatives who had seen the promotional posts. Consequently, she sought various reliefs, including a public apology, the Defendant deleting the post in contention and general damages for infringement of her image rights.
The Defendant denied liability, asserting that it had contracted an external graphics design company to manage its online promotions and that the image used was obtained from Pinterest, an open internet source. The Defendant further contended that if the image was indeed the Plaintiff's, its availability online implied permission for public use.
Issues for Determination
The court identified two principal issues for determination:
1. Whether the Plaintiff's image rights and privacy were infringed by the Defendant; and
2. Whether the Plaintiff was entitled to the damages sought.
The Court's Reasoning and Decision
After reviewing the pleadings and evidence from both parties, the court found that it was undisputed that the Defendant had used the Plaintiff's image to promote its nightclub event without the Plaintiff's consent. The court held that this unauthorised use violated her constitutional rights to privacy and personal dignity under Sections 37 and 34(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
In upholding this position, the court relied on the Court of Appeal's decision in BiCourtney Aviation Services Ltd v. Kelani, 5 where it was held that a person's image is personal and inviolable, and that using another's photograph for pecuniary gain without consent is a grave invasion of privacy.
The court further took judicial notice of the Plaintiff as an African woman who is a corporate worker, doubling as an official in her church, being associated with a nightclub would be frowned on as such act is rather seen as an erosion of the African cultural values and should be frowned at Accordingly, judgment was delivered in favour of the Plaintiff.
Legal Implications and Significance
This judgment marks an important milestone in the protection of image rights in Nigeria. The decision is notable not only for its robust affirmation of privacy and dignity rights, but also for its explicit recognition of cultural and religious context in assessing harm. By taking judicial notice that an African woman who serves as a church official would face reputational damage from association with a nightclub, the court acknowledged that image rights violations exist within and are magnified by specific cultural frameworks.
However, this cultural dimension also introduces questions about consistency and scope. Would the court reach the same decision if the plaintiff were not a church official? Does this create a hierarchy of image rights protection based on religious or cultural identity? Or is the cultural context merely an aggravating factor that intensifies, but does not create, the underlying violation?
What remains clear is that the decision sends a firm message to businesses and individuals: convenience or the ease of finding images on the internet does not replace the need to obtain proper authorisation for commercial exploitation. Ignoring this duty can carry serious legal and reputational consequences.
Conclusion
The case of Ndidi-Amaka Odogwu v. Quilox Restaurant and Bar Limited represents an important authority in the crystallising Nigerian jurisprudence on image rights. It reinforces the value of personal identity and aligns Nigerian legal reasoning with international approaches that regard a person's image as part of their moral and proprietary rights.
As Nigerian courts continue to develop this area of law, one principle remains unambiguous: commercial interests cannot override fundamental human rights. In the digital age, where images travel instantaneously across platforms, the law must move with equal determination to protect those who appear within them.
Footnotes
1 Bi-Courtney Aviation Services Ltd v. Kelani (2021) LPELR-56365(CA) at Page 29
2 FHC/L/CS/482/17 (Punuka Attorneys & Solicitors represented the Claimant)
3 Edison v. Edison Polyform Mfg Co., 73 NJ Esq 136
4 Section 37 & 39
5 (2021) LPELR–56365 (CA)
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