Legal UpdatePosting or Publishing an Online Content on Social Media Without Obtaining Consent Infringes Privacy

INTRODUCTION

Posting or publishing a video clip on Instagram without obtaining consent from the individuals featured in the video can potentially lead to legal liability. This can involve violations of privacy rights, copyright infringement, or defamation.

On 30 July 2024, the High Court of Tanzania (Dar es Salaam Sub-Registry) through the case of SAFARI AUTOMOTIVE LIMITED V. GODWIN DANDA CIVIL APPEAL NO—978 OF 2024.  held liable a party (the Appellant) to pay general damages for publishing a video clip of the Respondent on social media without the Respondent’s consent as the Appellant’s act was interference with personality and privacy without justification.

BRIEF BACKGROUND

Safari Automotive Limited (“Appellant”) is the service provider and Godwin Danda (“Respondent”) is the beneficiary of the service. On the 17th day of January 2022, the Appellant entered into an agreement with the Respondent to mend the seat cover, dashboard, and 5D carpets and cleaning of the Respondent’s motor vehicle made Toyota Harrier with registration No T714 DYD for a consideration of TZS 2,900,000 which the Respondent promptly paid. On 26th day of January 2022 the Respondent went to take his motor vehicle.

During the handover, the Appellant recorded a video of the Respondent with his motor vehicle. The said video was posted online on the Appellant’s Instagram page. The post came to the respondent’s knowledge on 29th January 2022 when he saw the video circulating on the Instagram social media platform.

The Respondent complained that the Appellant had interfered with his personality and privacy thus he suffered a lot because of the publication, and it disrupted the peace and harmony of his family. He therefore preferred Civil Case No. 86 of 2022 before the trial court seeking redress for the unauthorized use of the image in marketing and promoting the appellant’s services and products.

The Appellants’ defense was to the effect that the said video was recorded as consented by the respondent and what was done was not for any commercial or economic gain but was done for educating the members of the community and still, the video lasted for a short time of 10 days online.

The trial Court (the District Court of Kinondoni) concluded its trial in favor of the Respondent and ordered the Appellant to pay the general damages to the tune of TZS 80,000,000 and the costs of the case.

Dissatisfied with the decision of the trial court the appellant appealed to the High Court with several grounds as follows:

1. The general damages worth TZS 80,000,000 were granted without any evidence to prove the same.
2. There was no evidence that the video bearing the Respondent’s image was published on the defendant’s Instagram account for business purposes.
3. The trial court erred by admitting evidences without laying down any foundation evidence towards its tendering and admissibility.
4. The trial court erred to hold that there was no consent of the Respondent for the recording of the said video while the same was consented and no evidence was tendered to dispute the said consent.
5. The trial Court erred to hold that the posted video was for commercial purposes contrary to evidence submitted.
6. The Trial court erred in ordering payment of TZS 80,000,000 without any evidence to prove how much the video generated income for the appellant.

DECISION OF THE HIGH COURT

The High Court on appeal held that the act of the appellant to publish the video clip of the respondent on a social media platform without his consent interfered with his personality and privacy without justification as correctly, ruled by the trial court. The extent suffered by the respondent cannot be quantified but cannot be excessive in the eyes of a common man. Therefore, general damages awarded by the trial court are reduced to TZS 10,000,000.

1. There must be express Consent for Social media advertisement: In this aspect the court observed that, “I have ruled already that the evidence on record does not controvert the fact that the Appellant posted the video on the Instagram without the consent of Respondent. The Consent of Respondent for it to be recorded did not extend to posting the same on Instagram. By any means, any person who witnessed it on Instagram will be persuaded with the service of the Appellant as witnessed by the Respondent in the clip that who received the service. The video clip in exhibit P3 which was posted by the Appellant cannot be distanced from advertisement of the Appellant business because its content is about the quality of the work done by the Appellant to the motor vehicle of the Respondent.”
2. Consent for posting photos of videos on Social Medial must be expressly obtained. The Court was very clear that despite the Respondent consenting to be recorded on the video, he did not consent to be posted on social media. The court observed that “at least I have no doubt that he consented when the same was being recorded thus he was cooperative but, he could not foresee how the video will be used. There is no evidence that he consented for the same to be posted on Instagram or any other social media platform. Having weighed the circumstances of the evidence of both sides the Respondent consented for the same to be recorded but he could not consent for it to be uploaded on social media thus he was shocked when he heard that this image is being circulating in the social media. IN this testimony PW1 said that “I was shocked to see my self on social media advertising the defendant company”.
   From that view, I am satisfied that uploading the video clip to the social media was done without the consent of the Respondent though he consented for its recorded.
3. Invasion of Privacy -Posting or publishing information on social media without consent is invasion of personal privacy. The court noted that “Having said and done, the act of the appellant to publish the video clip of the Respondent on social media platform without this consent interfered with his personality and privacy without justification as correctly ruled by the trial court”

CONCLUSION

This case played a crucial role in shaping the development of personal data protection in Tanzania, as it underscored the significance of safeguarding personal data and privacy even before the Personal Data Protection Act of 2023 came into force.

By recognizing the importance of personal privacy, the case helped to lay the groundwork for the legislative framework that followed.

Currently, Tanzania has the Personal Data Protection Act of 2023 which serves as the primary legislation dedicated to protecting personal data. It established the Personal Data Protection Commission, a specialized institution tasked with hearing and determining cases related to personal data breaches.

The Commission operates under specific procedures outlined in the Personal Data Protection (Complaints Settlement Procedures) Regulations, GN No. 449B of 2023 which provide a structured approach for handling personal data complaints. Together, these legal Instruments ensure the effective enforcement of data protection rights in Tanzania