Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The complaint alleged unauthorised use of the complainant's image for commercial purposes without consent. The Data Commissioner found Solar Panda liable for unlawfully processing personal data and violating the complainant's rights. They were ordered to pay KES 500,000 as compensation.

Facts

The Complainant alleged that the Respondent had been using the Complainant's personal data in the form of an image for commercial gain to advertise its products without the Complainant's express consent and knowledge.

The Complainant stated that sometime in 2022, they became aware that the Respondent company was using their image to market and advertise its products without their consent. They had made efforts trying to inquire with the Respondent's officials as to why their image was used without consent to no avail.

The Respondent stated that the Complainant's photograph was taken as a field agent and it was pulled/retrieved solely for the legitimate purpose of improving the visibility of the field agents. They stated that they had entered into a field agent agreement in July 2019, and the Act had yet to be enacted.

The Respondent also contended that the flyer in question came into question in 2022, in which case the Complainant made sales only in December 2022 and January 2023.

They further stated that after the Act was enacted, they revised their procedures, adopting a photo consent form . The Respondent also stated that as much as its employees’ contracts were not reviewed when the Act was enacted, the Complainant’s contract of employment was not reviewed because, during the period under review, the Complainant was no longer making sales for the Respondent. They also indicated having stopped printing the flyers that bear the Complainant's image.

The ODPCs Office found that:

• At all material times when the Complainant’s photograph was taken by the Respondent, the Complainant was the Respondent’s sales agent.
• The Respondent used the Complainant’s image/photograph commercially in its product marketing flyers. The Office determined that the Respondent was thus required to obtain the Complainant’s express consent for the commercial use of his image.
• The evidence adduced by the Respondent did not demonstrate that the Complainant had expressly consented to the use of his image for commercial purposes, as envisaged under Section 32 (1) and 37 of the Act.
• The Office found that the Respondent had violated the Complainant’s rights and that it processed the Complainant’s personal data for commercial use without his consent, thereby gaining financially directly and indirectly.

Evaluation of Applicable Laws