Ann Wanjiru Irungu Complainant
Lintons Academy Defendant
Pursuant to section 8 (1) (f) and 56 of the data protection act, 2019 and the regulations 14 of the Data protection Act (complaints handling procedure and enforcement regulation 2021)
Introduction
The complainant lodged a complaint alleging that the respondent was using her image on the social media platforms without her consent
Facts of the case
Complainant’s Image Use: The complainant’s image was used without their consent by the respondent.
Data Protection Concerns: The complainant raised concerns about the unauthorized use of their image, citing violations of their rights under the Data Protection Act.
Respondent’s Actions: The respondent failed to obtain explicit consent from the complainant before using the image. Additionally, there was a lack of transparency and communication about the intended use of the image.
Complaint and Investigation: The complainant filed a complaint with the Office of the Data Protection Commissioner (ODPC), prompting an investigation into the matter.
Determination of Infringement: The ODPC determined that the respondent’s actions constituted an infringement of the complainant’s rights under the Data Protection Act.
Lack of Compliance: The respondent did not comply with the requirements of the Data Protection Act, particularly in obtaining consent and informing the complainant about the use of their personal data.
Issues of determination
In light of the substantive arguments by both the respondents and the applicant the following issues were raised:
- Whether there was an infringement of the complainants right under the data protection act
- Whether the respondents fulfilled his duty under the act
- Whether the complainant is entitled to any remedies under the act
Infringement of the Complainant’s Right under the Data Protection Act
The complainant’s image was used without their consent, which is a potential infringement of their rights under the Data Protection Act. The analysis indicates that the unauthorized use of personal data, such as an individual’s image, constitutes a violation if done without proper legal basis or consent from the data subject.
Respondent’s Fulfillment of Duty under the Act
The respondent did not fulfill their duty under the Data Protection Act. It has been proven in several instances where the respondent failed to obtain explicit consent from the complainant for the use of their image.
The respondent did not only use the complainant’s images on his social media platform but also on banners that were held up on events. Furthermore, there was a lack of transparency and communication regarding how the image would be used, which is a requirement under the Act to ensure that data subjects are informed about the processing of their personal data.
The defendant being the data controller as per the act should have obtained direct consent to use the complainant’s image for commercial purpose. Section 37(1)(a) a person shall not use, for commercial purposes, personal data without obtaining express consent from the data subject.
Complainant’s Entitlement to Remedies under the Act
In light of the infringement of the complainant’s rights and the respondent’s failure to meet their obligations under the Data Protection Act, the complainant is entitled to remedies pursuant to section 26 (a) and (c) , section 37 and section 40 (1)(b). The complainant can seek various remedies, including the cessation of the unlawful use of their image, compensation for any damages suffered, and corrective measures to prevent future violations. The specific remedies would depend on the extent of the infringement and the harm caused to the complainant.
Court ruling/determination
The final determination made by the data commissioner is that the respondent is liable for infringement of the complainant’s rights and non-compliance of its obligation under the act
The complainant is entitled to a compensation of sum of Kenya shillings seven hundred a fifty thousand (ksh.750,000).
The parties have a right to appeal the determination to the high court within a period of thirty days.
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