Contents

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

Summary

The Complainant claimed that the Respondent unlawfully used her swimsuit image on WhatsApp Business to market travel services for commercial gain without her consent. The non-responsive Respondent was found liable by the ODPC. The ODPC ordered compensation of KES 500,000 to the Complainant for this unlawful processing.

Facts

The Complainant alleged that the Respondent, Evanson Wahome Rugara T/A House of Ram, used her image to market his travel and tour services on a social business mobile application called "WhatsApp Business". She claimed this was done for commercial gain without her express consent. The Complainant stated that on or about 1st June 2024, she and others engaged the Respondent's services for a team building tour in Arusha, Tanzania. Sometime early July 2024, the Complainant became aware through the Respondent's WhatsApp Business status update that the Respondent had published an advertisement for holiday team excursions which featured her image, dressed in a swimsuit. The advertisement was disseminated as a status update, publicly accessible for a limited duration of 24 hours and visible to multiple parties. The Complainant initiated communication with the Respondent regarding the use of her image for commercial gain without her consent. Despite her efforts to resolve the matter through WhatsApp messages and a formal demand letter dated 18th July 2024 requesting the image be taken down, admission of liability, and compensation of KSh. 50,000, the Respondent failed, refused, or neglected to respond. As evidence, the Complainant adduced the business catalogue posted on WhatsApp Business, her conversation with the Respondent, a photograph of herself, a written statement from a third party who saw the image, and a copy of the demand letter.

The source explicitly states that the Respondent was non-responsive and did not respond to the Notification of Complaint filed against him. Therefore, the allegations levelled against him remained uncontroverted. The ODPC had requested information from the Respondent including a response to the allegations, relevant evidence, the lawful basis for processing the Complainant's data, evidence of consent for promotional purposes, and details of mitigation measures. The Respondent failed, refused, or neglected to provide any response or submit a statement.

The Office of the Data Protection Commissioner (ODPC) noted the Respondent's failure to respond to the notification of complaint. This failure meant the Respondent had not discharged his burden of proof to demonstrate that the Complainant expressly consented to the use of her image for commercial purposes, as required under Section 32 (1) and 37 (1) of the Act.

The ODPC determined that the Respondent used the Complainant's image on a public business account to advertise and market its services, which was intended to induce potential clients and further the Respondent's commercial and economic interests. This use of the Complainant's image for commercial purposes required explicit consent. Since the Respondent failed to demonstrate consent, the ODPC found that the Respondent did not obtain the requisite consent required by the Act to use the Complainant's image for commercial purposes.

Regarding whether there was a violation of the Complainant's rights under the Act, the ODPC stated it could not establish whether the image was still posted or if a request for erasure was made based on the available information. Therefore, the ODPC found that the Respondent did not violate the Complainant's right to erasure under the Act based on the evidence presented. However, having considered the merits, the evidence, and finding the Respondent processed the Complainant's image for commercial purposes without consent, the ODPC found there has been a violation of the Act by the Respondent to that extent.

• Evaluation of Applicable Laws

Holding

The Data Commissioner made the following final determination:

• The Respondent (Evanson Wahome Rugara T/A House of Ram) is found liable.
• The Respondent is ordered to Compensate the Complainant, Joan Kakuvi Munuve, the amount of KES 500,000 (Kenya Shillings Five Hundred Thousand Shillings Only).
• Parties have the right to appeal this determination to the High Court of Kenya within thirty (30) days.

Comment

The full text of the ruling is available below.

Further resources