Contents

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

Summary

The ODPC held that it lacked jurisdiction to entertain a complaint against the Nation Media group by virtual of the journalist exemption under the DPA19. The ruling also explored the applicability of Section 52 of the DPA19 (1)(b) and clarified the application of the permitted general and permitted health situations under the Act.

Facts

Faith Wavinya (the “Complainant) allows that the Nation Media Group (the “Respondent“), a media company, published an article titled Young smokers ditch shisha, cigarettes for cigars. Are they aware of risks? on its website and other social media pages.

Accompanying the article was the Complainant's photo along with a caption which identified her by name and identified her location during the photography as Brick Cigars Kenya.

The Complainant alleged that the article and her image was published for commercial benefit without her consent. She stated that she was not informed that she was being recorded or that she was being interviewed foe the purposes of the article.

She also alleged that the article featured her in a negative manner therefore causing harm to her reputation, and that it caused confusion by giving the impression that she was engaged in alternative employment.

The Respondent objected to the jurisdiction of the ODPC alleging that:

1. The publication did not fall within the meaning of data under section 2 if the DPA19.
2. The publication was protected by the journalist exemption under section of the DPA19.
3. The article was published in the public interest to highlight issues around the smoking of Shisha premised upon research.
4. The Respondent has in her social media pages identified herself as a cigar enthusiast, which made her fit the ideal profile for interview by the Respondent for purposes of the article.

The Respondent therefore averred that they did not introduce any new elements to the Complainant's personality or profile as a cigar enthusiast beyond that which she had already acknowledged in her public facing profiles. The Respondent also sought proof that the Complainant's employer had been left with the impression that she had secondary jobs.

The Respondent averred that the interview took place with the Complainant’s approval (though not required under the journalist/public interest exemption under section 30(1)) and full knowledge of the public nature of the intended publication. Further the reporting was fair and proportionate.