Brand Activations in Nigeria: Managing Privacy Law Risk - Larry vs Nigerian Breweries

A judge of the Lagos State High Court has ordered Nigerian Breweries Plc to pay ₦10 million in damages to a football fan for using his image in a Goldberg commercial advertisement without his consent. The image reportedly appeared in an advertisement aired on SuperSport and published on Goldberg's Instagram account. The case arose from an El Clásico football viewing experience sponsored by Goldberg and organised by Nigerian Breweries in collaboration with DStv at Johnny Rockets Restaurant, Lagos, on 26 October 2024.

In its defence, Nigerian Breweries argued that it had not used the Applicant's image for commercial advertising. Rather, the footage was used to document, report and showcase the brand's activities at the event and that it displayed conspicuous Crowd Release Notices at the entrance and within the event premises. Nigerian Breweries further argued that given the publicised nature of the event and the notices displayed at the venue, the Applicant's consent could be implied and that he could not reasonably have expected his presence or activities to remain private.

The Court rejected Nigerian Breweries’ arguments, holding that since the images were to be used for commercial advertising, the company had to obtain the express consent of Larry.

At first glance, this seems like a reasonable and fairly obvious decision. A company of Nigerian Breweries' standing should not use an individual's image in a commercial advertisement without obtaining the necessary authorisation. Indeed, where a company deliberately features an individual in an advertisement, one would ordinarily expect that it has obtained the necessary consent and documented the arrangement.

Comments and Key Takeaways for Brands and In-house Counsel

We have some reservations about certain aspects of the Court's reasoning, which, in our view, raise substantial questions of law that warrant appellate consideration. However, the decision also raises important issues and reinforces principles that brands should consider when engaging brand activation partners and allocating responsibility for the use of event footage.

1. Commercial advertising requires a different level of consent. A person's attendance at a brand activation or promotional event does not, by itself, authorise the brand to use that person's image in commercial advertising. Where a brand intends to feature an identifiable individual in a commercial advertisement, it should obtain and document the necessary consent.

2. The GAID distinguishes between event coverage and commercial advertising. For events, the GAID recognises that an attendee's consent to being photographed or recorded may be implied or constructive from the circumstances of their participation. However, where a brand intends to use the images for profit-making or commercial advertising purposes, express consent is required. In other words, consent to being photographed at a brand activation does not necessarily amount to consent to having one's image used to advertise a product. Although the Court declined to apply the GAID because it came into force after the event in question, the distinction it draws is an important one for brands to consider.

3. Although a person may generally have a reduced expectation of privacy in a public place, this does not mean that a brand can use that person's image in commercial advertising without consent. Being photographed at an event is not the same as agreeing to feature in an advertisement.

4. A Crowd Release Notice is not, by itself, sufficient protection against data protection claims. While it may help address certain intellectual property and contractual issues, it does not automatically establish valid consent under the NDPA or authorise the use of attendees' images in commercial advertising. Brands should have their privacy and intellectual property counsel jointly review their brand activation and promotional activities.

5. The defence of legitimate interest may not be available where a brand intends to use an individual's image for commercial advertising. The Court rejected Nigerian Breweries' reliance on legitimate interest in this case, holding that it could not override the individual's right to control the commercial use of his image.

6. Brands may need to review their existing and ongoing brand activation materials, campaign assets and marketing strategies from a data protection law perspective to identify compliance gaps, address privacy risks and ensure that their marketing activities meet applicable data protection requirements

Balogun Harold is a licensed Data Protection Compliance Organisation (DPCO) with a commercial outlook. We advise brands on data protection compliance, privacy risk management and the commercial implications of data processing, helping businesses meet their regulatory obligations while achieving their business objectives.