A WhatsApp exchange between a supermarket employee and her former employer approving the use of her photograph for advertisements has sunk her claim that the retailer used her image without consent.
Ms Joyce Caroline Munjiru wanted the High Court in Thika to declare that Muhindi Mweusi Supermarket Limited breached her rights to privacy and dignity by using her image in Facebook posts and billboard advertisements.
However, the court dismissed her claim after finding that she had consented to the use of her image in a promotional campaign through written consent reinforced by a WhatsApp conversation with the retailer.
The court ruled that she failed to prove Muhindi Mweusi breached her constitutional rights to privacy and dignity by displaying her photograph on Facebook and a roadside billboard after she left its employment.
The court found that written consent signed by Ms Munjiru was reinforced by WhatsApp exchanges showing she approved the final image before it appeared in the company’s advertising campaign.
The ruling highlights the growing role of digital communications as evidence in employment and privacy disputes, particularly where parties contest consent for the commercial use of personal images.
Consent dispute
Besides seeking a declaration that the supermarket breached her constitutional rights by continuing to use her likeness after she resigned, Ms Munjiru also sought a permanent injunction barring the company from using her image in future advertisements.
She also sought general damages and Sh800,000 in compensation for the alleged breach of her constitutional right to privacy.
She told the court she had worked for the supermarket until August 2023 before resigning. According to her evidence, she later instructed the company to stop using photographs bearing her image because she was receiving no financial benefit while the business continued to profit from the advertisements.
She testified that the supermarket retained her image on its Facebook page despite her objections before removing it only after receiving a demand letter from her advocates on October 19, 2023.
She also told the court the company erected a prominent billboard at Witeithie along the Nairobi–Thika Highway on September 18, 2023, displaying her photograph without her permission. The billboard was later removed after her lawyers intervened.
During cross-examination, however, Ms Munjiru disputed the signatures appearing on documents produced by the supermarket, insisting she never signed a consent letter authorising the use of her image. She alleged the signatures had been forged.
Her husband supported her account, telling the court she had sought compensation for the use of her photographs, but negotiations with the supermarket failed.
WhatsApp evidence
The supermarket denied breaching her rights and maintained that she voluntarily agreed to participate in its promotional campaign.
Its operations manager, Simon Karanja, testified that the company formally sought Ms Munjiru’s consent on August 23, 2023, before using her photographs in social media posts and related promotional materials.
He told the court she signed the consent documents, attended a professional photoshoot and later approved the final billboard artwork sent to her through WhatsApp before it was printed.
“The plaintiff returned a message to the effect that it was okay,” the judge said while summarising the WhatsApp exchange relied upon by the supermarket.
The company further argued that she never withdrew her consent before the advertisements were published and that it removed the Facebook posts and billboard immediately after receiving the demand letter from her advocates.
It also told the court it incurred losses after terminating the billboard campaign early and commissioning replacement advertising material.
Burden failed
In the judgment, the court found that the plaintiff failed to discharge the burden of proving that she had not consented to the use of her image.
“I have noted that the plaintiff argued that the signatures in the two letters were not hers and were forged. He who alleges must prove,” the judge said.
The court noted that although Ms Munjiru alleged forgery, she did not produce handwriting expert evidence to challenge the authenticity of the signatures.
It also found that she did not deny that the WhatsApp number through which the final image was approved belonged to her or that she used it at the material time.
“It is my considered view that the plaintiff gave her consent for her images to be used for the defendant’s business promotion,” the judge said.
“The plaintiff, having given written consent, ought to have withdrawn the consent in writing.”
The court further found that the supermarket used the photographs only for the purposes outlined in the consent documents, namely Facebook promotions and related advertising materials, including the roadside billboard.
Having found that Ms Munjiru failed to prove the absence of consent or any violation of her constitutional rights, the court dismissed the suit with costs in favour of the supermarket.
