January 2021 theStandard; A decision by the National Hospital Insurance Fund (NHIF) to use a couple’s picture in its commercial advertisements is to cost the taxpayer Sh10 million.
The Court of Appeal declined to set aside conditions set by the trial court for the corporation to appeal against the ruling, a situation that will now see NHIF pay the two Sh2.5 million each and deposit Sh5 million in a bank account to be managed by lawyers representing the complainants.
NHIF is to pay the money as it legally battles the court’s award to Mr Joel Mutuma Kirimi and Sharon Chepkorir Koskei at the Court of Appeal where it has filed a memorandum on the grounds that the High Court erred in law, and in fact in failing to appreciate the key elements of a claim for unlawful use of a person’s name or image.
It is also claims that the Judge Anne Ong’injo erred in law and fact in failing to appreciate the fact that the applicant did not use the respondents’ images for an exploitative or commercial purposes.
In dismissing NHIF’s application, Justice Daniel Musinga said on December 18 that Joel and Sharon had assured the court that they are capable of refunding the money paid to them in case the corporation wins its appeal.
The two sued NHIF in February 2018 after it published their pictures for commercial advertisements on its Facebook, Twitter and Instagram accounts.
They claimed their picture posted on Joel’s Facebook account in May 2013 to produce advertisement was used for commercial gain.
The couple further claimed that NHIF took the said photo and used it in a commercial advertisement for purposes of promoting their products dubbed #Supacover asking people to add their spouses to their NHIF card.
The use of the picture which has attracted a lot of public attention has eroded their public confidence as it has affected their professional career as respectable advocates.
NHIF denied the averments of the two and put them to strict proof, stating that it has never published the picture for commercial advertisement as alleged- as it has not engaged in commercial affairs. The parastatal said it is a Social Insurance Scheme expanding the Government of Kenya’s mandate to universal and affordable healthcare.
The court was told the corporation is not engaged in commercial affairs and that the pictures they used were obtained from pixabay.com which is a community of creative sharing copyright free images and videos.
Based on evidence tabled in court, the High Court ruled that NHIF did not seek the couple’s consent and the usage of the pictures infringed on their rights to privacy and human dignity.
Judge Ong’injo ordered the corporation to pull down the advertisement featuring the couple’s images on its social media pages and to pay each of them Sh5 million.
Aggrieved by the decision, NHIF applied to have enforcement of the judgment set aside, pending hearing and determination of its appeal.
In allowing the application, the judge set conditions such as the corporation paying Sh2.5 million to each of the aggrieved parties and Sh5 million to a joint interest earning account in the name of lawyers on record for the parties within 30 days.
Dissatisfied with the ruling, NHIF moved to the Appellate Court to challenge the decision, an application that Justice Musinga dismissed.