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n Tydskrif vir die Suid-Afrikaanse Reg - Die reg op identiteit en die kommersiële ontginning van die individu se openbare beeld
The right to identity and the commercial exploitation of the individual's public image
The outward image and physical attributes of the individual have become commodities. The advertising world has taken notice of the popularity enjoyed by the stars and has realised the value of associating merchandise or trade marks with superstars. On the one hand, this leads to a whole new source of income for the superstars themselves and greater profit for the enterprises that associate their products with the stars. But, on the other hand, it leads to difficulties when the attributes of a person are apparently used without consent. The purpose of this article is to determine firstly to what extent the individual should be protected against the unlawful use of his or her image. Secondly, the legal nature of such protection is investigated. Thirdly, it is argued that protection of the individual's right to identity must be weighed against the fundamental right to freedom of expression.
From an analysis of various legal systems, it is apparent that there are mainly two approaches to protection of the individual against unauthorised use of his or her image. In some systems, the matter is regulated by statute, while there are attempts in other systems to afford protection within the confines of existing common law measures of mainly the law of delict. There is, however, also a third category of systems where both statutory and common law measures are applied to protect the individual against unauthorised use of his or her image. In South Africa the common law approach has thus far been followed where the attributes of a person have been used without consent for commercial purposes. This position may be summarised as follows: everyone has a right to identity. Identity includes the collection of unique congenital and acquired attributes that are unique to the individual and that distinguish the individual from others.
When the attributes of a person are used without consent for commercial gain, the right to identity can be violated in one of two ways. Firstly, a person's right to identity can be infringed upon if the attributes of that person are used without permission in a way that cannot be reconciled with the true image of the individual concerned. Secondly, the right to identity is violated if the attributes of a person are used without consent by another person for commercial gain. Where the right to identity is violated, a personality right is infringed upon, to wit the right to dignity, and satisfaction may be claimed from the wrongdoer by means of the actio iniuriarum. Violation of the right to identity may also result in patrimonial loss, in which case damages may be claimed with the actio legis Aquiliae. The user can, in certain appropriate cases, justify the unauthorised use of a particular person's attributes on the basis of public interest if such use takes place mainly in connection with public interest reporting, jest or art.
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