In this episode, I consider how image rights are infringed in traditional marketing and assess how social media marketing might infringe on image rights.
Updates on Image Rights are published on social media @irbynmashinini
Host: Nomalanga Mashinini
https://influencermarketinghub.com/influencer-marketing-agencies-south-africa/ accessed on 20 March 2021.
McQuoid-Mason “Invasion of privacy: common law v constitutional delict – does it make a difference?” 2000 Acta Juridica 227-261.
Neethling, Potgieter and Roos Neethling’s Personality Rights (2019) LexisNexis: Durban.
Senthil, Saravanakumar and Deepa “On privacy and Security in Social Media – A Comprehensive Study” (2016) 78 Procedia Computer Science 114-119.
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Image rights, in advertising and of influencers
Welcome to another episode of image rights by N Mashinini.
It took me a little longer to come up with this episode because I was at a conference when it had to come out. I'll be doing a rendition of the presentation that I made at that conference in a bonus episode.
But, today's focus is on advertisers and influences. I consider how image rights are infringed in traditional marketing, and then move on to assess how social media marketing infringes on image rights. I use the approach of the court in the Basetsanna Kumalo dispute. Stay tuned.
One of the most intriguing things for me in the world of image rights, is advertisements. Advertising costs can include paying a celebrity to endorse a product or an influencer to promote a brand on social media. I've always wondered how much marketing costs are spent on paying endorsers and influencers. According to the influencer marketing hub, an average influencer receives between R500 and R10,000 per Instagram post in South Africa. Advertising is a costly endeavor. It is competitive, driven by creativity, and influence. Brands are desperate to market their products, but many are limited by the resources or the lack of creative ideas. This often leads to a bad practice where advertisers use people's images without their permission. These businesses tend to lose so much more when sued for their actions. It is essential to discuss an interesting case in South Africa to understand the consequences of using a person's image in an advert without their permission.
In 2011, Kumalo took a company called Cycle Lab to court for using her photograph in their advertisement without her permission. She brought five claims in total before the court but only one is necessary to discuss in this episode. It was a claim for the violation of her rights to privacy as well as her image rights. So one day Kumalo visited a cycling store belonging to a company called Cycle Lab. An employee of this company was instructed by the director to take a picture of Kumalo while she was shopping. There is no question about why the director sees this opportunity to take Kumalo's picture because by 2011 Kumalo's career had blossomed beyond pageantry. She's a successful businesswoman, and editor of a magazine and a TV presenter.
The marketers aim was to promote recently stocked items without paying a hired model to do it. Much like many business owners who face challenges when they're trying to market their brand, Cycle Lab opted for the cheap option. Unfortunately for Cycle Lab, Kumalo spotted her photograph in a magazine advert and claimed that the ad violated her privacy and image rights. The court ruled in her favor because her image was falsified in an unlawful way. The Court explained that falsifying a person's true identity violates the image, rights.
So what does it mean to falsify a person's image? The Court explained that falsification may happen in two ways. The first one is where a person's image is used or taken without their permission, which results in the public assuming that the person agreed to have their picture used in an advertisement. It is obviously not right for people to believe that you participated in an act when in reality you did not.
The second form of falsification is where a person's image is used in an effort which makes people believe that the person supports the product or the service that's been advertised. People tend to purchase goods based on whether their favorite stars or puts that brand. So to piggyback ride or summons publicity to attract customers is wrong when the star does not consent to it.
Seen from this angle, it is pretty clear that Kumalo's fame was being used to attract clients to Cycle Lab. She was also deprived of the autonomy to choose how, where and when her images used.
So, the court went further in deciding that her right to privacy was also violated, because she was not given an opportunity to decide whether her image could be shared with the public or not. Remember that a photograph can be considered as a private fact or personal information. So, to share someone's photo with the masses requires permission. Otherwise, you're just looking for a lawsuit. But nonetheless, each case is dealt with on its own merits. To disclose private facts about a person without the permission goes to the core of the right to privacy. And this is why the court decided that Kumalo's right to privacy was infringed, as well as her image rights.
The right to privacy and image rights are closely related. I like to view them as siblings. You see, they belong to the same family of personality rights. They look similar, but their substance is different. Sometimes they are simultaneously engaged through the same act. And other times they are blurred, causing a debate regarding which right is primarily involved in the misuse of a person's image. As a result, our South African courts have trouble establishing whether it is privacy or images that are affected when a person's photograph is misused. To illustrate the problem encountered by a court, imagine that your image is used in an advertisement. Your picture made public without you agreeing to that publication. Remember that all advertisements are aimed at attracting customers in order to make a profit. So using your image to make money is an image rights infringement because the advertiser is commercially exploiting your identity. However, your privacy is also compromised with the same advertisement. Since you never agreed to have your photographs shown on television, the advertiser is invading the private realm of your personality, which you were not intending to share with the public. In such an instance, is it possible to say that only your image rights were intruded by the advertiser? Or can we say that the main problem is that your private facts are displayed in public, resulting in the invasion of your privacy? One should not assume that only one right is engaged in each case because some complex cases affect many rights. However, it is also not good practice to always rule that both these rights are engaged by every unlawful use of a photograph.
In fact, I am of the view that social media resolves this tension between image rights and privacy and assist us to finally draw the line between these two rights. So what is new then about social media that can lead us to this breakthrough? Advertising has moved from traditional means such as magazines and television, to more emphasis on social media marketing. This is especially true for beauty, fashion and fitness marketing on social media. It is not just the stars we know that attract endorsement contracts; there were celebrities, models and sports stars before and then they were influencers. I believe that the success of an influencer ultimately rests on a person's ability to wield control over another person to convince them to purchase something that the influencer endorses. In my view, influencers are different from traditional models.
A model would normally pose in a one time photoshoot, while an influencer is continually active in advertising a brand to the social media audience, through constant posting, tagging and using hashtags. The influencer plays an active role in the advertising process. While the model has more of a passive role in the advertising process. Of course, the two roles could coexist in one, at times. But you no longer need to take a picture of a person to use their identity in an advertisement.
Due to this influencer trend, people willingly partake in marketing campaigns. Remember the Coca-Cola selfie promotion? That was free marketing at its best. It seems then that the role of social media influencers makes advertising somewhat easier. At a glance, the influencer business presents itself as one that may reduce violations of people's image rights because of the availability of so many people who are willing to be product endorsers these days. But we should not be that excited. I mean, social media also presents us with variations of image rights infringement. Businesses can tag influencers to product advertisement on social media pages. And this often creates the impression that the tagged influencer endorses the product or the service being advertised. This is similar to the Kumalo case, just sitting in a different context.
Tagging someone's profile to a post is very similar to associating them with a product or service. It's not clear yet whether a person's profile is part and parcel of their true identity in legal terms, the courts have simply not tested it yet. I believe that using a person's profile and thus the identity to attract customers is a form of commercial use and falsification of the image. However, if we imagine that an influencer is tagged to an advertisement, they would have the option to either remove the tag, or set their privacy options to not allow a tag from a user outside of the network. Again, it is a wonder whether privacy or image rights are primarily violated through tags.
So would the court still rule that both privacy and image rights are infringed in such instances. This is the question I want to grapple with next. I believe 'yes' to image rights infringement, but not necessarily privacy infringement. A clear case for falsification of the image can be made here because tagging someone suggests that there's some sort of association between the person who is tagged and the one tagging them. The public will believe that the influencer endorses a product through a text post. Effectively, the advertiser would be using the influencers publicity to attract customers by creating a false impression that the influencer gave them permission to tag that profile. However, to prove that a person's profile is used against the will and intention is far-reaching. Social media accounts can be restricted through privacy settings, where users choose who may tag them or not. It is quite easy to set up a private account. The problem is that some users sacrifice their privacy just to reach a broader audience. Would this mean that an influencer, who can be freely tagged by an organization that they don't even associate with has less of an expectation to privacy? It is certainly a factor to consider before deciding on whether a tag violates privacy. Tags may also be removed if unwanted. So, not removing a tag implies that the tagged influencer appreciates a tag from an advertiser. Perhaps an influencer may leave a tag in, hoping that a brand will maybe approach them with a contract. But what happens if that advertiser never offers some money in exchange? Is there a privacy or image rights violation, then? I certainly maintain that an image rights claim can be proven here. As to the question of privacy.
My question is, what private facts are disclosed to the public by tagging an influencer on social media page? Is this also a form of using their private facts without permission that could justify a claim for privacy protection? What if there is no photograph associated to that advertisement on social media? How do we explain the invasion and disclosure of private facts in a mere tag that can be removed by the influencer? It is now tough to perceive an expectation of privacy on social media in my view, people use social media to make money from their own identity. The influence of business depends on keeping one's social media profile open to the public. The less private a social media account is, the more people it can influence.
So today, it seems that privacy is but a dream, well, at least for the billions of people who have social media profiles. This observation made me wonder about the relevance of the relations between privacy and image rights today. Historically, the lawmaker has paid a lot of attention to protecting and developing the right to privacy. I believe, however, that to protect people's images on social media requires strengthening image rights protection. If you think about the Kumalo case and the influence of a tag in the social media world, it is image rights that provide protection and remedies in those situations. One can easily show that although previously privacy is not concerned in a tag social media, image rights are certainly engaged. The argument there is that an influencer is one who may not necessarily lead a private life, and thus the profile may not be private. However, that does not give an advertiser the right to falsify the influencers image for their own commercial advantage. It is my view that image rights will take center stage now, as social media is forcing us to forego privacy and use our identity in this consumerist world, fixated with influencers and celebrities. Yet, the debate about privacy and image rights still continues to trouble our courts.
Join me in the next episode, where I will discuss the relationship between identity and privacy in the context of memes.
If you have any questions based on this episode, you can send them to email@example.com or follow @irbynmashinini on Twitter, Facebook, Instagram and LinkedIn.
I'm your host, Nomalanga Mashinini.
This podcast series is based on research funded by the National Research Foundation of South Africa, grant number 121887. The opinions and views expressed in this series do not reflect the views and opinions of the National Research Foundation, its management or governance structures.
Until next time, control your image rights!
Keywords: privacy, image, influencer, tag, advertisement, social media