by Blossom Egbude

Over the past week, a picture originating from a Twitter user circulated social media. This picture shows former Mo’Hits Records stars and Nigerian celebrities, Don Jazzy, Dr Sid, D’Prince, Wande Coal, and D’Banj tagged as cultists by the author of a children’s school book. Many social-media users cried that the publication was defamatory and wrong on the author’s part. This begs the question of the position of the law on issues of use or publication of a person’s image and if the former Mo’Hits stars have a case should they decide to sue.

What Areas of Nigerian Laws Can Mo’Hits Stars Claim Under?

The publication of a person’s image touches on various aspects of law. Each aspect offers some form of protection against misuse and commercialization of a person’s image  and each of them is actionable. Three areas of law applies:

1. Law of Torts
2. Law of Privacy
3. Intellectual Property Law

Law of Torts: Is the author or publisher liable for libel?

The law of torts deals with civil claims and provides remedies to aggrieved parties. Under the law of torts, a person who publishes another person’s or persons’ image(s) is in relation to a falsehood is liable for libel. Libel is a defamatory tort. It refers to false publication about a person. Libel hurts a person’s character and esteem in society.

In Mo’Hits’ case, publication of the former Mo’Hits stars’ images in the manner in question is defamatory, thus libelous. This is because the author’s publication has communicated to the public the wrong notion that the former Mo’Hits stars are cultists. Libel protects a person’s character. We cannot rightly assume that the Mo’Hits stars are indeed cultists or the author’s assertion  is true. Without sufficient evidence or proof that the allegation of cultism is true, the publication is false and consequently libelous. 

To be sure, elements of libel are:

1. a false and defamatory statement must have been made
2. such statement was made to a third party
3. the publisher negligently published the communication
4. damage must have been done

Where the above elements are proved in a court, a case of libel is established and the plaintiffs—former Mo’Hits stars—can get remedy.

Law of Privacy: Is the author or publisher liable for violating Mo’Hits stars’ right to privacy?

The right to privacy is guaranteed under section 37 of the Nigerian Constitution 1999 as amended. It reads as follows:

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

Applied to the scenario above, the author may have indeed violated the Mo’Hits stars’ privacy since their image—which seemingly speaks to an aspects of their life or personality—should not have been published without their permission. If the image had been used in the normal course of entertainment-news reportage, the use may have been excused under fair dealing. But not in this case. Regardless of the publication being an educational work, the manner of publication touches on the privacy of the subjects, guaranteed under section 37 of the Nigerian Constitution.

Article 8 of the European Convention on Human Rights (the ‘Convention’)—which has similar provisions to section 37 of the Nigerian Constitution—has formed the basis for such claims of breach of privacy. Article 8 of the Convention provides as follows: “Everyone has the right to respect for his private and family life, his home and his correspondence”. By virtue of this provision, some cases on the law of privacy have been decided. In  Reklos and Davourlis v. Greece, a baby Anastasios Reklos was put into a sterile unit when he was born.  While in the sterile unit, his photograph was taken without the permission of his parents by the Hospital as part of its commercial services. The baby’s parents objected and their request for the negatives was refused by the Hospital. The Greek Courts refused to entertain the case causing the case to be brought before the European Court. The European Court ruled that the taking of the photograph without the baby’s parents’ permission was a violation of his rights to privacy.

In the former Mo’Hits stars case, based on the facts available to the public through social media, the privacy of the Mo’Hits stars may have been invaded through unauthorized publication of their image in the author’s book. It is a constitutional right. The author (or publisher, if the publisher is different from the author) may have a case to answer in this regard.

Intellectual Property: Is the author or publisher liable for copyright infringement? If ‘yes’, whose copyright?

Copyright law in Nigeria protects images and pictures as artistic works under section 1(1)(c) of the Nigerian Copyright Act.

And by virtue of the provisions in section 10(1) of the Copyright Act, the photographer of a picture is the original owner of such picture. This makes copyright lie with the photographer, not the photographed. Therefore, the photographer is entitled to exploit the image however he or she wishes. But in the case of a commissioned work, the person who commissions the photographer owns the copyright in that image. This is in accordance with section 10(2)-(5) of the Act. This shows how much Nigeria law leans in favour of the creator or photographer as opposed to the subject of an image.

In this scenario, copyright in the former Mo’Hits stars’ picture belongs with the photographer, unless there is an agreement to the contrary or the work is a commissioned work as earlier pointed out.  If it is the former, the former Mo’Hits stars may not have a case under copyright law. But if the latter is the case, they are the right party to bring an action for infringement of copyright as the copyright rests with them. In Peter Obe v Grapevine Communications, the court held that the defendant infringed on the plaintiff’s copyright by publishing his pictures in the book “Nigeria Decade of Crises in Pictures” without his authorization. The author or publisher may of course plead fair dealing since it’s for educational purposes. But it’s doubtful whether this defense would succeed because although the children textbook is an educational material, the book isn’t free. This commercial element will most likely defeat a fair-dealing defence. Let’s hope both parties put this to test in a court of law. Nigeria intellectual-property jurisprudence would be the winner.

Conclusion

On the face of the facts, the former Mo’Hits stars can bring actions under any of the various aspects of law identified above: tort, privacy, or copyright laws. The author is yet to supply any facts or evidence to prove that the former Mo’Hits stars are truly cultists. Subject to proof in the contrary, the author’s or publisher’s publication of their image in the manner it was published may be considered to be a libelous one. I recommend that Nigeria considers image-rights protection laws. If advanced image-rights laws exist in Nigeria to protect the commercial exploitation and unauthorized use of a person’s image, this will provide a comprehensive protection, leading to further development of Nigeria’s intellectual-property and privacy laws.

End Notes

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Reklos and Davourlis v. Greece (Application No. 1234/05)
3. Peter Obe v Grapevine Communications, 40 NIPJD [FHC 1997] 1244/1997; Suit No: FHC/L/CS/1244/1997, published on NLIPW, https://nlipw.com/peter-obe-v-grapevine-communication-ltd/

Blossom Egbude is a legal intern at Infusion Lawyers. She has interest in intellectual property, international law, and commercial law. Email: blossom@infusionlawyers.com.ng