| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Legal Provisions Reviewed |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 18 July 2024 |
| Decided: | 9 October 2024 |
| Published: | Yes |
| Fine: | KES.750,000 |
| Parties: | Nick Ongeri Mairura vs Kabras Rugby Football Club |
| Case No.: | 1069 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Nick Ongeri Mairura complained that Kabras Rugby Club unlawfully used his image commercially to advertise a rugby match without his consent. The ODPC found the club liable for unlawfully processing his personal data. Consequently, the club was ordered to compensate the Complainant KES 750,000.
The Complainant, Nick Ongeri Mairura, claimed that the Respondents (Kabras Sugar Rugby Football Club and KCB Rugby Football Club) used his image commercially to market and advertise a rugby match that was scheduled to be held on 18th February 2023. He alleged that the Respondents caused posters bearing his photograph, with the caption "Top of the table contest that you all have been waiting for. We head to Ruaraka this weekend to face log leaders KCB," to be published on their social media platforms (Facebook and Instagram) on or about 14th February 2023.
The Complainant stated he was surprised to see these posters, which clearly showed his image while dressed in the uniform of KCB Rugby Football Club. He contended that the photographs were posted without his knowledge, consent, or authority and were used solely for generating commercial and financial gain for the Respondent. He further stated that although he had previously played for KCB Rugby Football Club, he had ceased playing for them and was at the time playing for Strathmore University Rugby Football Club in February 2023.
The Complainant believed the publication appeared disloyal and untrustworthy to his then team, Strathmore University Rugby Football Club, potentially causing negative criticism and shunning within the rugby fraternity. He asserted that the publication breached his constitutional and statutory rights and that the Respondents should have known he was no longer playing for KCB Rugby Club. Despite a demand letter, the Respondents failed to cease and desist from publishing the images or provide an apology.
The ODPC initiated the complaint process by serving the Respondent. The 2nd Respondent, Kabras Sugar Rugby Football Club, responded to the notification via email on 27th August 2024. The 2nd Respondent contended that the complaint had been brought against a wrong and non-existent party, stating they were registered as Kabras Rugby Club and not Kabras Sugar Rugby Football Club as cited in the complaint form. They produced a copy of their certificate of registration to support this claim. However, despite being given an opportunity to do so, the Respondents never offered any substantive response or defence to the Complainant's specific allegations regarding the use of his image for advertising.
The ODPC proceeded with the determination based on the analysis of the complaint and the investigations conducted. The ODPC found it was clear from the posters adduced as evidence that the Complainant was identifiable as one of the male persons depicted. The ODPC found that the Respondent used the Complainant's image to market and advertise their game without his knowledge, consent, or authority. The ODPC determined that using the image to advertise and market their next match, inducing the public to attend for commercial and economic gain, constituted commercial use of personal data. The ODPC found that the 2nd Respondent did not provide a response to this assertion, which remains uncontroverted. Therefore, the ODPC concluded that the Respondent's use of the Complainant's personal data for commercial purposes was unlawful and contravened the Data Protection Act. The ODPC found that the Respondent's actions of using the photograph without the Complainant's knowledge, consent, or authority violated his rights, including the right to be informed of the use of his personal data.
The Data Commissioner made the following final determination:
The full text of the ruling is available below.