In an age of social media, businesses have become more aware of the sway that influential individuals (“influencers”) hold with their respective followers. A personal endorsement of a company or their product by an influencer, with a substantial follower count, may have an impact comparable to an extensive marketing campaign. While influencers hold greater autonomy to facilitate direct connections with brands they find appealing, they are also exposed to potential exploitation by businesses seeking to leverage their platform and influence. A company aligning itself with an individual without their knowledge or consent could be committing a violation of that individual’s personality rights.


The power of an individual’s goodwill

In a press conference during the 2022 FIFA World Cup, Cristiano Ronaldo removed a bottle of Coca-Cola placed next to him by event organisers. This simple act correlated with a $4 billion drop in Coca-Cola’s market value. While this act may not have been the sole reason for the drop, numerous commentators have highlighted it as an example of the tangible impact of the parasocial relationships developed between influential figures in society and their followers on social media and symbolic of the increased value of an individual’s influence.

Social media has enabled individuals to monetize the strong positive image, or goodwill, that they enjoy with their large follower bases, through licensing aspects of their image, names and likeness. ‘Goodwill’, in this context, refers to the trust that individuals have established with their followers over time. Akin to the goodwill which businesses develop with their customers, it is based on a relationship of trust developed through carefully crafted parasocial connections with their followers. It is inextricably linked to the reputation or standing of the individual on social media and has therefore become an intangible asset which is worthy of protection.


How does South African law protect this asset?

 In South Africa, ‘personality rights’ is the broad term which encompasses all of the unique identifiers attributed to an individual. These rights are protected under our law of delict and are further preserved within each individual’s constitutional rights to dignity and privacy. The principle underpinning personality rights is that an individual should be able to control the use and exploitation of aspects of their identity such as their name, image or likeness, these aspects being inherently linked to one’s dignity.

Where personality rights are infringed, the actio inuriurum, an action based in the law of delict, may be invoked to protect a person’s physical integrity, reputation and dignitas (i.e. one’s honour, privacy and identity). When invoking this remedy, the plaintiff needs to establish that the defendant had intended to produce the infringing act or publication and that this act resulted in an impairment of the plaintiff’s personality rights.

The Supreme Court of Appeal (“the SCA”) approved the use of this legal remedy in the case of Grütter v Lombard [2007] SCA 2 (RSA) 628/05 (“Grütter”), where it held that it was unlawful to use any aspect of an individual’s personality or identity for commercial purposes without their consent. Building upon the reasoning in Grütter, the SCA in Wells v Atoll Media (Pty) Ltd 2007 (4) SA 89 SCA  stated the following:

“the appropriation of a person’s image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal rights of the individual, including the person’s dignity and privacy.”

In summary, personality rights are infringed where an aspect of a person’s identity is used without their consent, for the purpose of misleading the public for commercial gain. In such a case the actio iniurium may be invoked by an individual to claim damages.


Practical protection

Therefore, when engaging individuals to market their goods or services, businesses should ensure that they conclude a written agreement, whereby they obtain explicit consent from the individual concerned. This agreement should state which aspects of the individual’s identity may be used, clearly outlining the terms and extent of the use of the individual’s personality rights in order to avoid any potential claims against them.


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