A minor, Miss Faria Mikayla Aouad, has filed a N200 million privacy and copyright infringement suit against Unilever Nigeria Plc and two others for alleged unauthorised use of her photo and the alteration of her name in the company’s promotional competition.
Aouad filed the suit marked FHC/L/CS/990/2018 at the Federal High Court in Lagos through her parents, Mr Fouad Anthony Aouad & Mrs Chinwendu Aouad, who are the second and third Plaintiffs.
Unilever Nigeria Plc, Wild Fusion Limited, and one Mrs. Anjorin (A.K.A Mummy Pelumi) are the 1st, 2nd and 3rd Defendants in the suit.
Miss Aouad averred that the Defendants, for advertising and commercial purposes, took and made unauthorised use of her photo which her mother the 2nd Plaintiff posted on her Instagram account on 29th September 2017. The said photo was entered in Unilever’s Independence Day Promotional competition known as the “Pears Best Dressed” or “#PearsBestDressed” on social media platforms Facebook, Instagram and Twitter between 30th September 2017 and 2nd October 2017.
The Plaintiffs closed their case on 10th February 2022. At the last adjourned date of the suit, 29th September 2022, the Defendants opened their case before Justice Chukwujekwu Aneke.
Aneke J then adjourned proceedings till 17th and 18th January 2023 to enable the Plaintiffs’ counsel to cross-examine the 1st Defendant’s witness.
The Plaintiffs were represented by Kelechukwu K. Okwujiako, while Charles Bassey was 1st Defendant’s counsel.
The Plaintiffs’ claims against the Defendants include: –
(a) A declaration that the 2nd Plaintiff is the lawful owner and proprietor of the copyright in the photograph of the 1st Plaintiff posted on her Instagram account on 29th September 2017 which photograph was taken, made and/or produced by the 2nd Plaintiff using her skill, judgment and effort;
(b) A declaration that the use and publication of the photograph on social media without the 2nd Plaintiff’s consent infringes the copyright in the photo;
(c) A declaration that the 1st and 2nd Defendants “were negligent and/or failed to exercise reasonable care and due diligence” in the manner they conducted the Pears Best Dressed promotional competition” wherein the 1st Plaintiff’s photograph that was taken by the 2nd Plaintiff was selected as the winner of the competition;
(d) A declaration that the publication by the Defendants of the 1st Plaintiff’s photograph for commercial purposes without the authorization of the 2nd and 3rd Plaintiffs constitutes a breach of the 1st Plaintiffs’ fundamental right to privacy and family life;
(e) An order compelling the Defendants to pay N50million as special damages for the Defendants’ flagrant infringement of the 2nd Plaintiff’s copyright in the photograph, N50million as aggravated and/or punitive and/or exemplary damages, N50million as general damages for infringing the copyright in the 1st Plaintiff’s photograph taken by the 2nd Plaintiff and the conversion of same for commercial purpose by the 1st Defendant, and N50million for the Defendants infringement of the 1st Plaintiff’s right to a private and family life.
The Plaintiffs, in their 4th June 2018 Statement of Claim, averred that between 30th September 2017 and 2nd October 2017, the 1st Defendant organised the “Pears Best Dressed” competition which invited the public to submit pictures of their babies to the 1st Defendant to stand the chance of winning a prize from the 1st Defendant.
They said the competition was organised as a tool to advertise the 1st Defendant’s Pears Baby range of products and promote and/or enhance its business and market share.
They said they never entered the 1st Plaintiff for the said competition and/or authorized the Defendants or any other person(s) to enter the competition on behalf of the Plaintiffs.
“Despite the above, on 3rd November 2017, the 1st Plaintiff’s guardians, the 2nd & 3rd Plaintiffs were shocked when they were notified by some of their friends that the 1st Plaintiff’s picture which was taken by the 2nd Plaintiff was posted on the Pears Nigeria Facebook, Instagram and Twitter profiles as one of the winning entries in the Pears Best Dressed Competition.
“Further to 16 above, the Plaintiffs immediately took steps to verify the information from the different social media pages of the 1st Defendant. To their utter shock, the 2nd & 3rd Plaintiffs found out that not only did the 1st Defendant publish the picture of the 1st Plaintiff, the 1st Defendant changed the 1st Plaintiff’s name from Faria to “Pelumi” on the various publications on its social media pages.
“The Plaintiffs aver that the above actions of the Defendants amount to a clear and flagrant infringement of the copyright of the 2nd Plaintiff in the picture.”
But the 1st and 2nd Defendants prayed the court “to dismiss this suit with substantial costs as it is had in law, lacking in merit, frivolous, vexatious and a complete waste of the court’s time.”
The 1st Defendant in particular denied that any copyright exists in the photograph, as alleged or at all.
It denied that the 2nd Plaintiff is the author and or copyright owner of the photograph or any other photograph that was allegedly taken by the 2nd Plaintiff on 29th September, 2017, or on any other date.
The 1st Defendant further denied that it committed any infringement of the 2nd Plaintiff’s copyright, at any time material or at all, adding that the Plaintiffs were not entitled to the claims.
