If your image (physical image, voice, signature, likeness, etc.) has been used without your consent for commercial purposes, especially in the absence of a contract, proving your case in court would be difficult because South African law does not recognise the existence of a distinct image right.
This is according to Cape Town-based legal expert Dr Layckan van Gensen who recently obtained her doctorate in Mercantile Law at Stellenbosch University (SU).
Van Gensen, who is a consultant for Sefume Attorneys and a junior lecturer in the Department of Mercantile Law at SU, examined all the areas of South African law (common law of delict, intellectual property law, constitutional property law, unjustified enrichment, and Protection of Personal Information Act — POPIA) that provide potential protection against the misappropriation of people's images. She found that they failed to provide plaintiffs with a legal remedy when dealing with an image rights infringement. Reasons range from legal uncertainty to laws not being tested or interpreted by the courts regarding the misappropriation of images.
“Because of legal uncertainty, many image rights infringement matters are settled between the parties before reaching the courts. Consequently, our courts do not get the opportunity to develop the common law as required to address these types of infringements."
Given the shortcomings of these areas of our law, Van Gensen proposes draft legislation that could protect South Africans who may suffer financial losses due to the unauthorised use of their image.
She says the proposed draft Bill clearly defines “image", “image rights" and “digital replicas" (computer generated or electronical reproductions) and indicates which aspects of an image will be protected.
“It also sets out what exactly an infringement of image rights will be by identifying three forms of infringements: the use of a person's image without their consent; the use of a person's image that may cause harm to the image of the person and/or negatively affects the actual and/or potential commercial value of the person's image rights; and the production, dissemination and/or publication of a digital replica of a person's image which constitutes non-consensual pornography.
“The use of a person's image in deepfakes (fake images or videos) will also be prohibited even if the primary use thereof is not for commercial purposes. The proposed Bill provides for certain exemptions and defences and expressly states that image rights are transferable. This means that the use of a person's image may be transferred by way of a contractual agreement or license which stipulates the specific use of the image for commercial purposes and the specific period of such use.
“The proposed Bill also enforces a form of strict liability which means neither intention nor negligence on the part of the defendant is necessary to succeed with a claim. It sets out the remedies which may be available to a plaintiff whose image has been used for commercial purposes without their consent," adds Van Gensen.
Emphasising the importance of the proposed draft legislation, she says “an individual's image has significant commercial value, and since aspects of it may be used for endorsements, marketing and advertising of brands, products, and services, the law must assist a plaintiff with a legal remedy when such an image has been misappropriated.
“With the explosion of digital media and advertising, the unauthorised use of an individual's image through, for example, false endorsements and deepfakes may now have a direct impact on the livelihoods of influencers, content creators and celebrities who establish themselves as brands on social media."
According to Van Gensen, the proposed draft Bill would create legal certainty regarding the regulation of image rights infringements.
She says image rights should be regarded as a property right rather than a personal right. This will help to protect an individual's economic interest and human dignity.
“Image rights do not only protect an individual from unauthorised use but also grant the holder of such a right the autonomy to exercise control over their own image as they choose by benefitting from authorised use.
“Image right legislation would supplement contractual protection by providing the affected party with a cause of action when their image is misappropriated by third parties where no contractual agreement exists."
She says South African lawmakers can draw on legislation in the United States of America where an individual's image is recognised as having commercial value and worthy of protection against unauthorised use.
