| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 8(1)(f), 25, 30(1)(a), 37(1), 65(2)(b)(ii) of the Data Protection Act, 2019; Regulation 14 of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021; Article 31 of the Constitution of Kenya |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 11 June 2024 |
| Decided: | 6 September 2024 |
| Published: | Yes |
| Fine: | KES.450,000 |
| Parties: | Christine Ochola vs. National Social Security Fund & Anor |
| Case No.: | 817 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Christine Ochola filed a complaint with the Office of the Data Protection Commissioner (ODPC) in Kenya against the National Social Security Fund (NSSF). The complaint alleged that NSSF published and circulated a video of Ochola without her consent and for their financial benefit. The ODPC determined the second respondent, an independent contractor hired by NSSF, liable for unlawfully processing Ochola's data. The second respondent was ordered to pay compensation.
On April 19th, 2024, Christine Ochola (the Complainant) was contacted by a representative of the National Social Security Fund (NSSF, the 1st Respondent) about interviewing for their YouTube channel to encourage employees nearing retirement.
The Complainant agreed and met with a representative of the 1st Respondent on April 25th. The Complainant was told that she would be given an appreciation fee of Ksh. 20,000 and that an Indemnity Agreement Form would need to be completed.
On May 8th, the Complainant received the Indemnity Agreement Form and signed it. The Complainant's video was aired on national television on May 7th, 2024, during the launch of NSSF's Strategic Plan.
The Complainant was not informed that her video would be aired on national television and did not consent to this use of her video.
The Complainant contacted the 1st Respondent and raised the issue of breach of her rights. The 1st Respondent denied any wrongdoing.
The Complainant filed a complaint with the Office of the Data Protection Commissioner (ODPC) on June 11th, 2024.
The 1st Respondent claimed that it had hired Off Grid Concepts Limited (the 2nd Respondent) as an independent contractor to produce the video. The 1st Respondent claimed that the 2nd Respondent had erroneously included the Complainant's video clip in the NSSF's Corporate Social Plan materials and that this was not the 1st Respondent's intention.
The 2nd Respondent admitted to airing the video erroneously.
The 1st Respondent (NSSF) argued they engaged the 2nd Respondent to produce the video, and the 2nd Respondent acted outside the agreed scope by airing the Complainant's video without obtaining consent.
They further asserted the video airing did not provide any financial benefits as the 1st Respondent does not monetize their YouTube channel and the Complainant was not commercially promoted.
The 2nd Respondent (Off Grid Concepts Limited) stated they were contracted by the 1st Respondent to conduct testimonials, were introduced to the Complainant by the 1st Respondent's representatives, and agreed to conduct the interview at the Complainant's house.