Contents

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

Summary

Vincent M. Nduku alleged Sinoma Roofing System used his image on social media for commercial purposes without his consent. The ODPC found the respondent liable for using the image without the complainant's free, specific, and informed consent. The respondent was ordered to pay KES 500,000 as compensation.

Facts

The complainant, Vincent Muema Nduku, alleged that the respondent, Sinoma Roofing System, without proper and/or justifiable cause, collected and processed his image on its official social media platforms (Facebook and Instagram) for marketing and commercial purposes without his consent.

He stated that his image was first posted on Facebook on 15th May 2024 and later on Instagram. He argued that the respondent's actions violated his right to data privacy under the Data Protection Act. He provided screenshots of the alleged photographs on the respondent's social media pages as evidence.

Sinoma Roofing System was notified of the complaint on 9th December 2024 and served via email on 10th December 2024, with a deadline to respond by 17th December 2024. However, the respondent failed to furnish the Office with a statement of response despite being notified. Therefore, the Office proceeded to make a determination based on the evidence adduced by the complainant24 .

The ODPC made the following key findings:

• It was undisputed that the respondent used the complainant's image on Facebook and Instagram, which are public social media platforms, to advertise and market its workshop event.
• The respondent used the complainant's image for commercial and economic interests by generally inviting the public to the respondent's Facebook and Instagram pages, which is induced directly or indirectly to buy, join and or subscribe to the respondent’s services.
• The use of the complainant's image for commercial purposes required free, specific, and informed consent from the complainant, as per Sections 37(1) and 30 of the Data Protection Act.
• The respondent failed to provide proof of having obtained the complainant’s consent to process his image for commercial purposes, as is their burden under Section 30(1)(b) of the Act.
• The respondent did not furnish the Office with a statement of response, and therefore, the complainant’s allegations stood undisputed.
• The Office concluded that the respondent failed to discharge its burden of demonstrating that the Complainant expressly consented to the use of his image for commercial purposes.

Legal Provisions Reviewed: