Not even Jeff Bezos:
Vendors: Posts a picture on social media showing John Doe eating shamelessly, with the caption, “John Doe loves our big tray of Spaghetti Bolognese with Abuja Beans Porridge, black eyed peas and fried crayfish.”
Dear Vendor (businessperson, if vendor doesn’t sound bougie enough), I feel your plight. Buharinomics is dragging every one of us in the mud. But business must boom anyway, and you’ve heard that customer reviews is one major way to get everyone texting you for orders. You’re not wrong. In fact, customer reviews are very dope. I bought a new iPhone XS Generic for 50k one time just because the reviews were mind-blowing. So, I’m not writing to stop you from loading out those reviews on your Instagram story. God forbid that I bring bad luck to your business. Karma is real, remember?
But then, have you considered that there are intellectual property implications to those pictures of customers rocking your shoes or bags? (For those of you who post pictures of customers wearing your perfume, we recommend seeing a therapist).
Jokes apart now, there are deep intellectual property issues lurking behind customer reviews. And we hate to be the bearer of bad news but that customer who angrily barks about you posting her picture on WhatsApp without permission is in the right.
In this short post, we’ll address copyright issues surrounding customer reviews. Particularly, we’ll take a cursory look at reposting pictures of customers who “sport” your products or even reposting social media messages that highlight product satisfaction. And yes, we’ll talk about fair use – because it doesn’t apply.
Generally, it’s illegal for you to repost pictures of other people on social media without their permission. That sounds like a no-brainer, yeah? If that’s so, Bolaji Shades, why did you take a screenshot of Jumoke’s WhatsApp status to advertise the 5k Givenchy Sunglasses she bought on Twitter? “Because she bought it from me” is not an answer that excuses your liability, you know.
The Nigeria Data Protection Regulation in Rule 2(2)(a) explicitly lists consent as a requirement for processing personal data. Of course, personal data includes name, photos, or any other means by which an individual may be identified. So, before you can use my pictures for any purpose at all – including printing it and taking it to your Baba for love medicine, which I don’t mind anyways – you must obtain my permission.
Besides Rule 2(3)(1) gives the owner of a personal data the right to know the specific purpose for taking such data. Now, this is all the more important because as a businessperson, you’re bound to use that picture for advertisement and commercial purposes. And this is where it gets complex.
Being in a photograph doesn’t make you the owner by the way. The owner of the copyright in a photo is the individual who clicks on the shutter. So, if all you do is ask for portrait snapshots from Chinedu because he owns an iPhone, Chinedu has the copyright to all your pictures in this life. And by right, he is the only one entitled to reap commercial benefit off such picture.
How then do we reconcile the NDPR and Copyright Law?
That’s simple. The owner of the copyright in a picture containing others may seek for a model release to meet data processing requirements. Albeit the laws on this rule aren’t exactly clear and model release/liability waivers are sometimes voluntary in several jurisdictions.
So, as a vendor, you can see that your name doesn’t appear anywhere. Using a person’s picture as a review is invariably a form of advertisement for your business and will be taken as commercial use under the copyright law. If you ever want to go ahead with that, you must seek the permission of the owner of the copyright in the photograph.
Now, it may be stressful to start looking for Muhammed who happened to be nearby and helped Semipe take her picture just to obtain a copyright license or permission. But, when you get permission from the holder of the picture, you are fine as you may claim bona fide use of the picture.
Also, be sure to let the person know you’ll be using it for advert purposes. If they ask for a 10% royalty on every person that slides in to order based on their pictures, simply tell… see, that’s your business to settle.
Moving on, does fair use apply to using someone else’s picture to market your business?
No, not at all, absolutely not, definitely impossible. In fact, the concept of fair use and commercial usage are parallel lines that can never meet. Since fair use allows permission to use copyrighted property for non-commercial purposes, it won’t apply to your adverts.
How about private chats? Can you at least screenshot and show only the place where they said your jollof is sweet?
There’s no law expressly stopping you from posting your private communication. Keeping screenshots of chats are a mere ethical issue and even social media platforms have no laws regulating this phenomenon. However, if someone expressly requests to have their private communication taken out or their names hidden for privacy purposes, you must respect their preferences. But generally, you are free to share your personal communication with customers as a form of review.
Dear vendor, sorry businessperson, I have your best interest at heart. And because Amaka is not a celebrity doesn’t mean her privacy shouldn’t be respected. Many of these your customers have big assets in Bitcoin and they now school/work virtually. They’ll have money and time to take you court. So, why not just do the right thing and save your thrift business?