The Case
On the 30th of July 2024, Honourable Judge D.P Ngunyale sitting at the High Court of Tanzania (at Dar es Salaam) (the High Court) delivered his judgment in the case of Safari Automotive Limited vs. Godwin Danda [Civil Appeal no. 978 of 2024] (the Case).
The Case was an appeal emanating from the decision of the District Court of Kinondoni (the Trial Court) in which the Respondent had instituted a case against the Appellant for breach of personal privacy.
In summary, the Respondent had contracted the services of the Appellant to undertake certain repair works to his motor vehicle for a consideration of TZS 2.9 million.
When the Respondent went to take his motor vehicle upon completion of the repair works, the Appellant recorded a video of the Respondent and his motor vehicle and posted it online on his Instagram page.
Shortly thereafter, the Respondent saw the video on Instagram and instituted a case at the Trial Court against the Appellant claiming that the video posted on Instagram was a violation of his privacy, had disturbed his peace and that he did not consent to the video being posted online for marketing purposes. The Trial Court ruled in favour of the Respondent and awarded him general damages amounting to TZS 80 million.
The Appellant’s arguments
At the High Court, the Appellant had the following grounds of appeal:
- The general damages worth TZS 80 million were granted without any evidence to prove the same;
- There was no evidence that the video bearing the Respondent’s image was published in the Appellant’s Instagram account for business purposes;
- The Trial Court erred by admitting the video posted on Instagram without laying down any foundation evidence towards its tendering and admissibility;
- 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;
- The Trial Court erred to hold that the video posted on Instagram was for commercial purposes contrary to the evidence that was presented;
- The Trial Court erred to order payment of TZS 80 million without any evidence to prove how much the video generated income for the Appellant; and
- The Trial Court erred in law and facts by failing to analyse and assess the evidence of the Appellant and largely based its decision on evidence tendered by the Respondent.
- The Appellant claimed that it was their usual practice to record customers after completing their service. Further, that the video posted on Instagram was for educational purposes in relation to how to take care of a motor vehicle and not for advertisement, and that the Respondent had consented to having his video taken.
The Respondent’s arguments
The Respondent claimed that he had not consented to the video being posted on Instagram and called his wife and son as witnesses to testify that he was shocked by his image circulating on social media without his consent. Additionally, he claimed that the video posted by the Appellant was purely for commercial purposes and given that his image was used, he was entitled to compensation from the Appellant.
The Court’s decision
The High Court held that it is indisputable that the video recorded on Instagram and posted by the Appellant was indeed of the Respondent.
The High Court also noted the claimant’s cooperation in the video recorded implied that he consented to being recorded, however, such consent did not extend to using the footage for marketing purposes. The High Court agreed that the award of TZS 80 million was excessive and there was no concrete evidence submitted by the Respondent to justify the amount that was awarded.
Whilst it is difficult to quantify compensation with respect to the breach of privacy, the amount to be awarded in such instances should be fair and not bring unlawful enrichment.
With that, the High Court reduced the amount awarded to the Respondent to TZS 10 million, from TZS 80 million that was initially awarded by the Trial Court on the basis that there was no evidence submitted to substantiate the TZS 80 million awarded by the Trial Court.
With the enactment of the Personal Data Protection Act, 2022 (the PDPA), the Personal Data Protection (Personal Data Collection and Processing) Regulations, 2023, and the establishment of the Personal Data Protection Commission (the PDPC), there is now a clear legal avenue to pursue data privacy claims.
