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[2011] ZAGPJHC 56
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Kumalo v Cycle Lab (Pty) Ltd (31871/2008) [2011] ZAGPJHC 56 (17 June 2011)
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SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
31871/2008
DATE:17/06/2011
In the matter between-
JULIA
BASETSANA
KUMALO
.......................................................
PLAINTIFF
and
CYCLE
LAB (PTY)
LTD
...............................................................
DEFENDANT
______________________________________________________________
JUDGMENT
______________________________________________________________
BORUCHOWITZ,
J
:
[1] At issue is whether, in the
circumstances of this case, the publication by the defendant of the
plaintiff’s photograph
constitutes an
iniuria
.
1
[2] The plaintiff is a celebrity and public figure who has built a
successful career as a model, television presenter, magazine
editor
and businesswoman. The defendant operates a shop at Fourways,
Johannesburg, under the name "Cycle Lab” where
it carries
on business as a retailer of bicycles and cycling products.
[3] The material facts are few and relatively uncontentious. During
February 2007 the plaintiff attended at the defendant’s
store
with the intention of purchasing a bicycle and related cycling
paraphernalia. Upon entering the store she was assisted by
a sales
representative who helped her choose a bicycle and then some
clothing. While trying on cycling helmets, a man approached
the
plaintiff and took her photograph. She continued shopping and
purchased accoutrements such as sun-glasses, a heart monitor
and a
drinking reservoir and then left the defendant’s store.
[4] It is common cause that the defendant incorporated the
plaintiff’s photograph in an advertisement for its store, which
was published in a magazine entitled “abouTime” and in a
brochure called “Cycling News”.
[5] The plaintiff avers that she did not agree to the taking of the
photograph or to its further use for advertising purposes.
Her
unchallenged evidence is that upon learning of the unauthorised
publication she was greatly angered and embarrassed; her anger
stemmed from the fact that the defendant had sought to exploit her
image for commercial purposes without her knowledge and consent,
and
had published a low-quality photograph of her in a poorly designed
advertisement for its shop. She felt that she had been
abused and
her privacy invaded. The plaintiff was embarrassed as she feared
that her friends, professional colleagues and peers
would assume that
she had consented to the publication of the photograph, thereby
lowering her professional standards and standing.
[6] Mr Andrew McLean, a director of the defendant, described the
circumstances surrounding the taking of the photograph.
He explained
that the defendant had launched a new section of its business which
was to specialise in the sale of lady-specific
cycling products. He
wanted to advertise the newly-branded area and planned to have a
photograph of a woman in the advertisement.
As the defendant did not
have the financial wherewithal to pay for a professional model, he
decided to use his wife. By chance,
the plaintiff entered the shop.
He immediately recognised her and knew that she was a celebrity with
a nationwide face, and decided
that he would use the plaintiff as a
model instead of his wife. What was particularly appealing to McLean
was the fact that the
plaintiff was black and this presented the
defendant with an opportunity to promote cycling among black women.
He instructed a
Mr De Villiers, who was present, to take a
photograph of the plaintiff.
[7] Mr McLean also testified that there was no plan on his or
the defendant’s part to utilise the plaintiff’s
image
illegally or to capitalise on her name, and for that reason he did
not use the plaintiff’s name in the advertisement.
He further
denies that it was the defendant’s intention to insult or
degrade the plaintiff or in any way to injure and damage
her
reputation and dignity.
[8] There is a factual dispute as to whether the plaintiff gave her
consent to the taking of the photograph. Mr De Villiers
testified that such consent was indeed granted but he cannot recall
whether the plaintiff signified her assent expressly or tacitly,
by
nodding her head. Both McLean and De Villiers concede that they
did not seek or obtain the plaintiff’s express permission
to
utilise her photograph for advertising purposes. The plaintiff’s
evidence is that although De Villiers asked for
permission he
took her photograph before she was able to reply to his request; she
also offered no objection after the taking
of the photograph or ask
what the photograph was to be used for as she did not wish to create
any unpleasantness.
[9] The plaintiff claims damages
for
iniuria
on four separate grounds. The first claim is for sentimental damages
based on the
actio
iniuriarum
(Claim 1).
The second is a claim for constitutional damages arising from a
violation of the plaintiff’s rights to dignity
and privacy as
enshrined in ss 10 and 14 of the Constitution (Claim 2).
This claim is brought in the alternative to
Claim 1 and is relied on
only in the event of the Court finding that the plaintiff is not
entitled to a remedy under the existing
common law. The third is a
claim for patrimonial or special damages which the plaintiff is
alleged to have sustained as a result
of the defendant’s
unauthorised publication of her image (Claim 3).
The fourth claim, which has been abandoned, is founded on unjustified
enrichment.
[10] In its plea, the defendant
admits that a photograph of the plaintiff was taken and that it
caused the photograph to be incorporated
in a cycling advertisement
which appeared in “
The
Cycling News
”
and the in-flight magazine “
About
Time (1 Time)
”.
The defendant alleges that the photograph was taken with the
plaintiff’s knowledge and consent and that she impliedly
consented to the photograph being published in the aforementioned
publications. The defendant avers that the purpose and motive
behind
the publication of the photograph was not to insult or degrade the
plaintiff but to portray her in a healthy and positive
way and to
promote her as a good role model. The defendant denies that in
publishing the photograph it intended to humiliate and
degrade the
plaintiff or to injure and damage her reputation and dignity.
Accordingly the defendant denies liability.
[11] It was agreed at the outset
of the trial that the merits of the plaintiff’s claim be
separated from the quantification
thereof and that the only issue to
be decided was whether the plaintiff had suffered an infringement
(
iniuria
)
to her personality rights as a result of the publication of her
photograph.
CLAIM 1
[12] The cause of action relied
on is the
actio
iniuriarum
which
protects a person’s
dignitas
.
The concept of
dignitas
is a collective term embracing all personality rights and interests
with the exception of the right to a good name (
fama
)
and bodily integrity (
corpus
),
and embraces privacy, dignity and presumably the right to identity
(see
Jackson v SA
National Institute for Crime Prevention and Rehabilitation of
Offenders
).
2
[13] The essential requisites to
establish an action for
iniuria
have been authoritatively laid down by Melius De Villiers in the
“
Roman and
Roman-Dutch Law of Injuries
”
(1899 at 27). They are (1) an intention on the part of the offender
to product the effect of his act (
dolus
,
animus iniuriandi
);
(2) an overt act which the person doing it is not legally competent
to do and which, at the same time, is (3) an aggression
upon the
right of another, by which aggression the other is aggrieved and
which constitutes an impairment of the person, dignity
or reputation
of the other. These time-worn principles were approved in
Delange
v Costa
.
3
[14] The plaintiff contends for the wrongful infringement of three
inter-related, but distinct, personality interests, namely identity,
privacy and dignity.
[15] Identity is defined as a
person’s uniqueness which individualises such person, and is
manifested in various facets of
personality (or
indicia
)
which include, among other things, one’s physical appearance or
image and is considered a separate right of personality.
4
[16] Features of a person’s
identity have been held to be deserving of legal protection (see
O'Keeffe v Argus
Printing & Publishing Co Limited and Another
;
5
Universiteit van
Pretoria v Tommie Meyer Films (Edms) Bpk
;
6
Bernstein v Bester
7
;
National Coalition for
Gay and Lesbian Equality v Minister of Justice
8
;
Grütter v Lombard
and Another
.
9
[17] Identity is infringed by
the falsification of a person’s true image or identity. A
recognised form of falsification
occurs where a person’s image
is used or appropriated without his or her permission for advertising
purposes, creating the
false impression that such person has
consented to such conduct or supports the advertised product, service
or business.
10
[18] But an infringement of
identity may also, although not necessarily, be accompanied by an
infringement of privacy. The concepts
of privacy and identity are
closely related (see
Bernstein
(
supra
)).
A breach of privacy occurs when there is a disclosure of true facts
to outsiders contrary to the determination and will of
the person
concerned. A right to privacy encompasses the competence to
determine the destiny of private facts, and the individual
concerned
is entitled to dictate the ambit and method of disclosure of such
facts (
National Media
Limited and Another v Jooste
).
11
[19] Academic writers are divided
as to whether it is the right to privacy or identity that is
primarily violated when a person’s
image is used without
permission for advertising purposes. Professor McQuoid-Mason
contends that such use is a violation of a
person’s right to
decide for themselves who should have access to their image and
likeness – something that goes to
the root of individual
autonomy or privacy.
12
Professor Neethling holds, to the contrary, that it is primarily
the right to identity that is infringed in such circumstances.
13
For present purposes it is unnecessary to resolve these differences
[20] Whether a particular act
constitutes an
iniuria
must necessarily be determined by the facts and circumstances of each
case and considerations of legal policy, the convictions
of the
community or
boni
mores
. The
wrongfulness of an infringement must be objectively tested against
the prevailing norms of society.
[21] In
O’Keeffe,
a case
which is not dissimilar to the present, a photograph was
unauthorisedly used for advertising purposes was held to constitute
an actionable
iniuria
.
Watermeyer AJ stated as follows (at 249D-E):
“
…
The
unauthorised publication of a person’s photograph and name for
advertising purposes is in my view capable of constituting
an
aggression upon that person’s
dignitas
.
It is not necessary for me in the present case to hold, and I do not
hold, that this is always so. Much must depend upon the
circumstances of each particular case, the nature of the photograph,
the personality of the plaintiff, his station in life, his
previous
habits with reference to publicity and the like. ...
“
[22] In the present matter, the
plaintiff’s image has been used in a misleading way. It
generates the false impression that
she endorses the lady-specific
cycling products sold by the defendant and the defendant’s
campaign to promote cycling among
women. Use of her image in this
manner constitutes a violation of her right to identity. The
appropriation and misuse of the
plaintiff’s image is wrongful
and would be considered by persons of ordinary and reasonable
sensibilities to constitute an
iniuria
which is deserving of legal protection.
[23] The use of the plaintiff’s
photograph in an advertisement without her permission not only
constitutes an infringement
of the personality right to identity but
also, as previously indicated, a violation of the plaintiff’s
privacy, since a personal
fact, namely her image, was publicly
exposed contrary to her determination and will.
14
[24] In a broad sense, the
plaintiff’s right to
dignitas
15
has also been infringed. She claims, among other things, that she
felt abused and insulted and that her self-esteem was impaired
as a
result of the defendant’s conduct. I am satisfied that a
reasonable person in the position of the plaintiff would justifiably
have felt a sense of anger and insult, as the plaintiff claims she
did, and would have regarded the conduct of the defendant’s
conduct in publishing her photograph as offensive (tested by the
general criterion of unlawfulness – objective reasonableness).
16
[25] I turn now to the various contentions advanced on behalf of the
defendant.
[26] The defence of consent can readily be disposed of. Consent is a
ground of justification that negates the wrongfulness of
the
defendant’s conduct. During cross-examination Mr McLean
admitted that neither he nor Mr De Villiers sought
or
obtained the consent of the plaintiff to use her photograph for
advertising purposes. He stated, however, that if the plaintiff
had
for any reason objected thereto he would not have made use of the
photograph.
[27] By not objecting after the
photograph had been taken, the plaintiff may have implicitly agreed
to the taking of her photograph,
but such agreement did not extend to
the use of the photograph for advertising purposes. The defence of
consent can only succeed
if the defendant’s actions
fall within the limits
of the consent given (see
National
Media Limited v Jooste
(
supra
)
at 272E). Thus, for example, in
O’Keeffe
(
supra
),
where the plaintiff had consented to her photograph being used to
illustrate a news item but not as an advertisement for a certain
make
of rifle, the publication of the photograph was considered not to
fall within the ambit of the consent. In similar vein –
although in a different context - see
Kidson
v SA Associated Newspapers Limited
.
17
There, the plaintiffs had consented to their photographs appearing in
a nursing journal to assist in a campaign for the recruitment
of
nurses, but not for purposes of an appeal for funds. The publication
of the photographs was held not to be consensual.
[28] The overwhelmingly probabilities are that McLean did not seek
the plaintiff’s consent to utilise the photograph for
advertising purposes as he knew that it was extremely unlikely that
she would agree thereto. McLean’s assertion that if
the
plaintiff had for any reason objected he would not have made use of
the photograph is disingenuous as he admits that the plaintiff
was
never told that the photograph was to be used in an advertisement for
the defendant’s business. For these reasons the
defence of
consent cannot be upheld.
[29] It was further argued that
as a public figure the plaintiff had surrendered her right of privacy
to the extent that she was
not entitled to a reasonable expectation
of privacy while shopping for private purposes. The submission is
based on the proposition
that a public figure is considered to a
certain extent to have forfeited his or her right to privacy.
18
[30] While the plaintiff’s
status as a celebrity may require her to accept that when appearing
in public she may attract more
attention than others who are not
celebrities, she retains the right to be protected against an
infringement of her right to privacy
and identity by the
non-consensual publication for advertising purposes of a photograph
taken when she was about a private shopping
trip. It is universally
accepted that public figures or celebrities have a legitimate
expectation of protection and respect for
their private lives.
19
The determining factor is usually whether such intrusion is in the
public interest or for the public benefit. Professor McQuoid-Mason
points out, however, that the defence that the plaintiff is a public
figure cannot avail a defendant in cases where the plaintiff
has been
placed in a false light or his or her image has been wrongfully
appropriated for advertising purposes.
20
I concur in this view. The appropriation by the defendant of the
plaintiff’s image by using her photograph in an advertisement
cannot be justified on the basis that she is a public figure or
celebrity.
[31] Another proposition contended for by the defendant is that the
image of the plaintiff, as it appears in the advertisement,
cannot be
said to be objectively degrading, humiliating or insulting to her as
it does not reflect the plaintiff in a false light
or misrepresent
the true state of affairs. The plaintiff is pictured as a shopper in
the defendant’s store trying on a helmet
with the assistance of
a store assistant, and this is a true representation of what she was
doing at the relevant time. The plaintiff
is also not named in the
advertisement and her identity is not easily recognisable. These
contentions cannot avail the defendant.
As I have already indicated,
the use of the plaintiff’s image in the context of the
advertisement is a falsification of
her image in that the impression
is falsely generated that she endorses the lady-specific products
sold by the defendant and its
campaign to promote cycling among
women. That the defendant did not use the plaintiff’s name
in the advertisement is legally
irrelevant: what matters is that the
plaintiff’s image has been used unauthorisedly and in a
misleading way. It is also
not necessary for the attachment of
liability that the photograph depict the plaintiff in an objectively
degrading, humiliating
or insulting manner.
[32] A further novel argument
advanced on behalf of the defendant is that because the plaintiff has
chosen to exploit the intellectual
property that attaches to her
name, image and persona through a company, Maleshwane Trading (Pty)
Limited, she had thereby deprived
herself of the fundamental
personality right to control the use to which her image and other
elements of identity may be put and/or
the right to sue for
infringement. This contention is equally without merit. Whilst it
is true that the plaintiff uses a company
to promote her image and
persona, she has not thereby abandoned the right to choose who is to
have access to her image. Personality
rights are inseparably bound
up with one’s personality. They do not exist independently of
the human personality and are
incapable of being transferred. There
is a fundamental distinction between personality rights and
intellectual or immaterial property
rights which are capable of being
transferred and have a separate legal existence (see in this regard
W.A. Joubert “
Grondslae
van die Persoonlikheidsreg
”).
21
[33] Finally, I turn to the
question of
animus
iniuriandi
(intent).
It is well settled that what this encompasses is not only the
intention to achieve a particular result, but also the
consciousness
that such a result would be wrongful (see
Minister
of Justice v Hofmeyr;
22
Dantex Investment Holdings (Pty) Limited v Brenner and Others NNO
).
23
[34] Counsel for the defendant submitted that the defendant’s
representatives had no appreciation of the fact that they may
have
infringed the plaintiff’s rights. McLean testified that he did
not think it was wrong to use the plaintiff’s
photograph as he
had previously used images of Lance Armstrong, the international
cyclist, without repercussion, and did not think
that the plaintiff
would object to having her photograph published in the defendant’s
advertisement or that he required her
consent. He also did not
believe that the photograph lowered the plaintiff’s standards
but depicted her as “a normal
healthy South African out
shopping”, and did not use the plaintiff’s name in the
advert.
[35] None of these contentions has any merit. McLean and De Villiers
deliberately chose not to inform the plaintiff that
her photograph
was to be used for advertising purposes. Upon seeing the plaintiff
enter the defendant’s store, they consciously
and deliberately
seized upon the opportunity of photographing her without disclosure
as to the true purpose for which her photograph
was to be used. The
fact that McLean thought the plaintiff would not be embarrassed by
the photograph in the advertisement and
that the photograph would not
lower the plaintiff’s standards and depict her as a ‘normal
healthy South African’
is irrelevant. What is of significance
is that the defendant, through its controlling mind, McLean,
deliberately appropriated
the plaintiff’s image and likeness
without her consent and utilised same for its commercial advantage.
In so doing, the
defendant must, as a probability, have been
conscious that what it was doing was wrongful.
[36] McLean’s explanation as to why he selected the plaintiff
is unconvincing and improbable. He suggested that any woman
would
have sufficed as a model to promote the new ladies’ section of
the defendant’s store. But this is highly improbable.
It is
clear that he targeted the plaintiff purely because she was a
well-known female celebrity.
[37] The probabilities are that
the defendant intended to publish the photograph in an advertisement
without the plaintiff’s
consent, well aware that the
consequence of such act was likely to infringe the plaintiff’s
image rights, privacy and/or
her dignity. Alternatively, in
achieving its object, the defendant, through its controlling mind,
Mr McLean, foresaw the
real possibility of the plaintiff’s
rights of personality being infringed, but proceeded recklessly
despite that foresight.
The defendant thus acted with either
dolus
directus
or
indirectus
.
24
[38] Having wrongfully infringed
the plaintiff’s personality interests the defendant is presumed
to have acted
animo
iniuriandi
. The
defendant has failed to rebut this presumption.
[39] The plaintiff has satisfied
the requisites necessary to establish an action for
iniuria
.
25
By reason of the unauthorised publication of the plaintiff’s
photograph, the plaintiff has suffered an infringement of her
personality rights entitling her to the payment of sentimental
damages.
CLAIM 2
[40] Constitutional damages are
claimed arising from an alleged violation of the plaintiff’s
rights to dignity and privacy
as enshrined in ss 10 and 14 of
the Constitution. This claim is proffered in the alternative to
Claim 1. The finding in
relation to Claim 1 renders it unnecessary
to adjudicate upon this claim. It bears mention, however, that the
Constitutional Court,
in
Fose
v Minister of Safety & Security
,
26
set its face against a direct application of the Constitution where
there exists an adequate common-law remedy. The purpose of
constitutional damages is to vindicate an infringement of a
constitutional right and to prevent a further breach thereof. It was
held in
Fose
that the remedy granted under the
actio
iniuriarum
is
appropriate for the preservation of personality rights (see, also,
Dendy v The University
of the Witwatersrand & Others
).
27
CLAIM 3
[41] This is a claim for
patrimonial or special damages. The plaintiff alleges that her name
and likeness are of proprietary value
to her and that in consequence
of the defendant’s wrongful and unlawful conduct she has
sustained special damages in the
amount of R250 000, being the
diminution of the value of her likeness to her patrimony occasioned
by the unauthorised publication
of her likeness in association with
the defendant’s products. Compensatory damages may be claimed
in respect of patrimonial
loss caused by an
iniuria
;
what is controversial, however, is whether the appropriate action
for the recovery of such damages is the
actio
iniuriarum
or
actio
legis Aquiliae
(see
Neethling
op cit
65-68). It is not necessary to resolve this question as no evidence
has been presented by the plaintiff to prove that any diminution
in
the commercial value of her image or her patrimony was caused as a
result of the publication of her photograph. The plaintiff
does not
contend that she suffered any financial loss or that any of the
companies with whom she had contracted to act as a brand
ambassador
have sought to terminate their commercial relationships with her.
The plaintiff has not established any causal connection
between the
iniuria
perpetrated by the defendant and any alleged patrimonial loss.
[42] It is important to note that
the claim for patrimonial loss rests upon the infringement of her
personality right to identity
and not upon any immaterial property
right that the plaintiff holds. As mentioned above, the plaintiff
promotes her image, persona
and brand through a company. She has
also caused the names “Bassie”, “Basetsana”
and “Basetsana
Kumalo” to be registered under the
Trademarks Act, 194 of 1993. The immaterial or intellectual property
rights held by the
plaintiff exist independently of the plaintiff’s
personality rights and are capable of separate enforcement. The
plaintiff
has not sought to enforce these rights. The appropriation
by the defendant of the plaintiff’s image may constitute the
delictual
wrong of passing off but the plaintiff does not assert such
claim.
28
In foreign jurisdictions, the remedy of passing off is often
utilised for the protection of advertising images.
29
Neither was the plaintiff’s case pleaded or argued on the
basis that the Court should recognise a free-standing or independent
patrimonial immaterial property right to identity along the lines
contended for by certain academic writers.
30
[43] For these reasons, the
question in issue is decided in favour of the plaintiff. I find that
the unauthorised publication
by the defendant of the plaintiff’s
photograph for advertising purposes constitutes an
iniuria
entitling the plaintiff to the payment of sentimental damages. She
thus succeeds on Claim 1. By agreement between the parties,
the
quantification of such damages stands over for later determination.
[44] The plaintiff, as the successful party, is entitled to the costs
of the action.
[45] It is ordered as follows:
(1) The quantification of the
plaintiff’s damages is postponed
sine
die.
(2) The defendant is to pay the costs of the action to date.
_____________________________ BORUCHOWITZ J
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT : 17
TH
JUNE 2011
ON BEHALF OF PLAINTIFF : ADV L FRIEDMAN
INSTRUCTED BY : CHUENE INCORPORATED
ON BEHALF OF DEFENDANT: ADV M G REBELO
INSTRUCTED BY : FRANK BICCARI ATTORNEYS
1
A generally accepted definition of an
iniuria
is the wrongful and intentional infringement of an interest of
personality. See
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 154C
2
1976 (3) SA 1
(A) at 11F-G.
3
1989 (2) SA 857
(A) at 860I-861B
4
Neethling’s “
The
Law of Personality
”
(2 ed) (2005) 36.
5
1954 (3) SA 244
(C).
6
1977 (4) SA 376
(T) at 386G.
7
[1996] ZACC 2
;
1996 (2) SA 751
(CC) para 65
8
1998 (6) BCLR 726
(CC) para 28.
9
2007 (4) SA 89
(SCA).
10
PPJ Coetser: “
Die
Reg op Identiteit
(1986) 146; Neethling’s “
The
Law of Personality
”
(2 ed) pp 255-257; see also Neethling: “
The
Concept of Privacy in South African Law
122 (2005)
SALJ
18
at 24.
11
[1996] ZASCA 24
;
1996 (3) SA 262
(A) at 271C-H).
12
D McQuoid-Mason, “
Invasion
of Privacy: Common Law v Constitutional Delict – Does it make
a difference?
”
2000
Acta Juridica
227
at 231.
13
Neethling: “
The
Concept of Privacy in South African Law
”
op cit
24.
14
See McQuoid-Mason
supra
n. 12, and Neethling
supra
n. 13.
15
Dignity, under s 10 of the Constitution, encompasses something
broader than the Roman law concept of
dignitas
.
See
Dendy v
University of the Witwatersrand and Others
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at paras [11] and [14];
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5)
SA 401
(CC) at 418; “
Neethling’s
Law of Personality
”
op cit
27-28 and 192-194.
16
J Burchell “
Personality
Rights and Freedom of Expression: The Modern Actio Iniuriarum
”
(1998) 328-334; Neethling’s “
Law
of Personality
”
at 192.
17
1957 (3) SA 461
(W).
18
See WL Prosser, “
Law
of Torts
”
(4 ed) 1971 at 823.
19
See
A v B plc
[2003] QB 195
(per Lord Woolf CJ);
Van
Hanover v Germany
,
European Court of Human Rights (Third Section) 24 June 2004;
MGN
Limited v The United Kingdom
,
European Court of Human Rights (Fourth Section) 18 January 2011.
20
See D McQuoid-Mason, “
Law
of Privacy in South Africa
”
op cit
220; see, also, Prosser
op cit
827.
21
at 120-121 and 129.
22
(
supra
)
at 154C-F.
23
1989 (1) SA 390
(A) at 396E.
24
Compare:
NM &
Others v Smith & Others (Freedom of Expression Institute as
Amicus Curiae
)
[2007] ZACC 6
;
2007
(5) SA 250
(CC) at para
[125]
.
25
See para 13
supra
.
26
[1997] ZACC 6
;
1997 (3) SA 786
(CC) at para
[98]
.
27
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W).
28
See, in this regard,
Lorimar
Productions Inc and Others v Sterling Clothing Manufacturers (Pty)
Limited; Lorimar Productions Inc and Others v OK Hyperama
Limited
and Others; Lorimar Productions Inc and Others v Dallas Restaurant
1981 (3) SA 1129
(T) at 1152G.
29
See
Irvine v
Talksport Limited
[2002] 2 All ER 414
;
Henderson
v Radio Corporation (Pty) Ltd
1969
RPC 218.
30
See F Mostert: “
The
Right to the Advertising Image
”
(1982) 99
SALJ
413
; Coetser
op cit
146-147; André M Louw: “
Suggestions
for the Protection of Star Athletes and Other Famous Persons Against
Unauthorised Celebrity Merchandising in South
African Law
”;
“
SA Mercantile
Law Journal
”
2007 (Vol 19) 272 at 291; J Neethling: “
The
Concept of Privacy in South African Law
”
op cit
27.