Image Rights Infringements: Is the Common Law of Delict Sufficient or is It Time for Legislative Intervention?

In modern commerce one could argue that the image of an individual constitutes an asset with a substantial intrinsic commercial value that may be used by third parties to generate profit, because the image of individuals is highly exploitable for commercial purposes (specifically in the context of the endorsement, marketing and advertising of brands, products and services). It is common practice for celebrities (and social media influencers alike) to engage in the marketing, merchandising and commercial exploitation of their own image for commercial gain, especially on various social media channels. Since the introduction of these channels it has become a business tool for individuals to generate an income by exploiting their image online. Despite this development and evolution of the use of social media channels, image rights and the protection thereof have not gained much attention in South Africa over the last few years. This raises the question, when an image rights infringement occurs, for example on social media, and an individual cannot rely on contractual remedies to rectify the breach (since there is no valid contract in place to regulate the use), what remedies are available to the individual, who has suffered patrimonial harm for the unauthorised use of their image. Case law has identified the common law of delict as an area of law that may provide plaintiffs in image rights infringement matters with possible relief for the financial loss they suffered due to the unauthorised use of their image. Thus, this article will investigate the common law of delict to determine whether it provides the most appropriate remedy to address image rights infringements outside a contractual agreement, by analysing South Africa case law in this regard.