O'Keeffe v Argus Printing and Publishing Co Ltd and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP and Watermeyer AJ
• Judgment Date: 23 April 1954
• Citation: 1954 (3) SA 244 (C)
• Hearing Date: 15 March 1954
• Court: Cape Provincial Division

Watermeyer, A.J.:

This is an exception taken by the two defendants to a declaration in which the plaintiff claims damages from the defendants. The plaintiff is a spinster employed as an announcer and producer by the D South African Broadcasting Corporation. First defendant is the owner of a newspaper circulating in Cape Town and throughout the Union of South Africa, and second defendant is a company carrying on business in Cape Town. Paras. 5, 6 and 7 of the declaration read as follows:

'5.

On the 26th October, 1953 - and in its issue of the 'Cape Argus' of that date - first defendant wrongfully, unlawfully E and intentionally and without plaintiff's authority or consent printed and published an advertisement (a true copy whereof is annexed hereto marked 'A') containing a photograph and caption thereto. The person referred to in the said caption is plaintiff and the photograph is of her.

6.

Second defendant wrongfully, unlawfully and intentionally and without plaintiff's authority or consent caused first defendant to make the said publication.

7.

F The publication of the said advertisement constituted an intentional infringement of plaintiff's right to personal privacy, was an unjustified aggression upon her dignity and plaintiff was in fact much aggrieved and humiliated thereby.'

The advertisement referred to in para. 5 above is of an unusual nature. At the head is the name of the second defendant Company, which Company G is described in the advertisement as being the exclusive factory distributor for the Union and South West Africa of certain makes of rifles, pistols, revolvers and ammunition. On the left hand side, and obviously forming part of the advertisement, is a photograph about 4 inches by 3 inches in size, of the plaintiff in the act of aiming a H pistol. Next to her in the photograph is a man correcting her method of aim, and underneath appears the following caption:

'What is wrong with the way Miss Meryl O'Keeffe is shooting? Her instructor at a private shooting range soon puts her right - 'Never hold the pistol close to your face'. Like most women, Miss O'Keeffe is unable to keep one eye properly closed when aiming, but her score-card showed that this is not necessarily a handicap.'

Below this photograph is what purports to be a description of the impression obtained by the writer on the occasion of a visit paid by

Watermeyer AJ

him to the shooting range. The range is apparently situated on the second defendant's premises, and the advertisement invites the public to make use of it, presumably in the hope that persons so doing will purchase weapons and ammunition stocked by the second defendant.

A In response to a request for further particulars the plaintiff admitted that the photograph had been taken by first defendant's employee with her consent, but only for the purpose of illustrating an article to be printed in the news columns of first defendant's newspaper. Plaintiff at no time consented to the use of her picture for the purpose of an advertisement. At no time did she consent to her name being used, and it B was known to the reporter who was employed by first defendant to write the news article that it was against the...