Contents

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

Summary

Alfred Nthale Nduta A.K.A Itsyaba, the complainant, alleged unlawful commercial use of his image on social media without his consent. Savannah Brands Company LTD T/A African Originals Kenyan Originals, the respondent, admitted posting a photo of himself holding a product on Instagram to attract attention. The ODPC found this use advanced commercial interests and was unlawful without consent. The respondent was held liable and ordered compensation.

Facts

The Complainant alleged that the Respondent used his image commercially to market and advertise its products on social media platforms without his consent. The Complainant stated that the Respondent obtained photographs of him on various dates in the years 2020 and 2022 and utilised them for advertisement purposes on their social media platforms.

He contended that the Respondent had further edited one of the photos to advertise that they had been selected as finalists for the World Beverage Innovation Awards 2020 for best alcoholic drink.

In response to the complaint, the Respondent provided a substantive response on 23rd August 2024. The Respondent stated that the Complainant posted a photo of himself on his social media holding a KO drink (presumably Kenyan Originals) and went ahead to tag them without their consent. The Respondent claimed the Complainant is neither an agent nor an employee of KO (Kenyan Originals), thus the act of posting the mentioned image was a way to attract attention from the society for his own gain.

The Respondent submitted that it does not know the Complainant and has never engaged his services for any promotional activities, nor is there any record of any agreement or contract with the Complainant. The Respondent further contended that considering they had no agreement with the Complainant, the Complainant used its brand without their authority, thereby infringing on their trademark and brand integrity. The Respondent also stated that the Complainant masqueraded as its brand ambassador for his personal gain, and he was the initial infringer of their trademark and brand by passing off as being associated with them.

The ODPC found it was an undisputed fact that the Respondent posted the Complainant's photograph on its social media account, specifically Instagram. The ODPC confined itself to the data contained in the Complainant's personal data as processed by the Respondent for advertisement purposes. The ODPC noted that the Respondent's online posts adduced as evidence in this complaint were still online and it was clear that the Complainant's impugned photograph was still online.

The ODPC's analysis and determination focused on whether the Complainant's personal data was lawfully processed. Section 37(1) of the Data Protection Act provides that a person shall not use personal data for commercial purposes unless express consent has been sought and obtained from the data subject. Regulation 14 of the Data Protection (General) Regulations 2021 further provides for commercial use of personal data. This refers to the use of personal data for commercial purposes where personal data is used to advance commercial or economic interests, including inducing another person to buy, rent, lease, join, subscribe to, provide or exchange products, property, information or services, or enabling or effecting, directly or indirectly, a commercial transaction. The ODPC found that the collective reading of the above provisions makes it discernible that any form of showcasing, influencing, and/or advancing a commercial transaction, whether directly or indirectly using personal data, amounts to the commercial use of personal data.

The ODPC noted that the Respondent showcased that it was a finalist in the World Beverage Innovation Awards 2020, using the Complainant's image. This use was deemed to be advancing its commercial interests by inducing the members of the public to buy its product, and informing the members of the public of the quality of the brand/product to the extent that it was in the final of the World Beverage Innovation Awards 2020 with the intention to advance its commercial and economic interests.

The ODPC thus found that the Respondent processed the Complainant's image and thereby influenced commercial transactions both indirectly and directly. The ODPC determined that the actions of the Respondent amounted to internet marketing and commercialization of the Complainant's personal data without the Complainant's consent. Therefore, the ODPC found that the use of the Complainant's personal data for commercial purposes was unlawful and contravened the Act.

• Evaluation of Applicable Laws

Holding

The Data Commissioner made the following final determination: