the other hand contends that the Plaintiff consented to the use of his images.
Consent under the Contract Act 2010 means agreement of two or more persons
obtained freely upon the same thing in the same sense. DW1 Ojambo John when
asked whether the Plaintiff authorised the taking of his pictures, testified that he
was not aware. Secondly DW2 Mr Wilfred Mayende testified that the Plaintiff
consented to it but he did not know to whom he consented. DW3 Mr Varun Sood
when asked as to whether the Plaintiff authorised the taking of his photos never
answered the question. He testified that a meeting was called to brief everyone
about the event. Secondly in re-examination he was of the opinion that there was
no objection to the photo and advertisement. Counsel submitted that this was an
opinion and was not a fact. As far as DW4 Dennis Tushabe is concerned he does
not know whether there was any authority from the Plaintiff. He was not present
when the meeting was called and he does not know what was discussed.
Counsel contends that from appearances a meeting was called and the Plaintiff
was supposedly present and it was discussed that there was to be a shooting of
photos and video recordings at the Defendant's premises and no one objected to
it and consequently this amounted to consent and authorisation to use it in
commercial advertisements. Counsel contends that this did not amount to an
agreement and does not amount to authorisation. He submitted that consent to
take pictures was not authorisation to use the pictures in advertisements. Under
section 22 (1) (2) (3) of the Copyright and Neighbouring Rights Act 2006 a person
has a right to authorise the commercial rent to the public of his or her
performance.
In this case there was no authorisation. According to the Oxford Advanced
Learners Dictionary the word 'authorisation' means the power or official
permission to do something which is related to writing. Authorisation must be in
writing. Counsel contends that no single document was presented to show that
the Plaintiff authorised the taking of his photos or its use in advertisements. By
merely attending a meeting and having new uniforms distributed for the occasion
was not sufficient to amount to authorisation or consent. None of the
Defendant's witnesses committed themselves to the fact of whether the Plaintiff
Decision of Hon. Mr. Justice Christopher Madrama
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