Contents

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

Summary

Talanta Hela was ordered to compensate the respondent KES 750,000 for using his images for commercial purposes without consent. The ODPC determined that, although the initial use of the images occurred before the enactment of the Data Protection Act 2019, the continued use of the images up to the date of the decision constituted an offence.

Facts

Toivo Kiai Muhuga (the “Complainant”) alleged that he is a former employee of the Talanta Institute (the “Respondent”) and that while performing his role as a tutor, the Respondent took photographs of him. The photos were raken without his consent. The images were then used in various promotional material by the Respondent which were then uploaded onto various media to include in the Respondent's UTube page.

The Complainant alleged that he served the Respondent with a notice to cease and desist from further processing of his image. The Complainant however did not avail any proof of service.

The Respondent confirmed that the Complainant was a former employee and that the images were taken of the Complainant as he performed his role within the institution. They averred that the videography and photography were a necessary part of the institution’s training programs, and the videos and images of the Complainant were be used to illustrate that fact. The Respondent averred that the images were taken 8 years prior in 2017 and that they had since blurred out any identifiable features of the Respondent from the videos and images.

The ODPC found:

• That the offending video, which was posted on the Respondent’s Facebook page on 5 January 2018 was still up. The page has over 100,000 followers. This persisted even after the ODPC notified the Respondent of the complaint.
• There was no proof of service of the cease and desist letter as required to trigger the right of erasure, and the Respondent did not therefore violate section 40(1)(b) of the Act and Regulation 12 of the Regulations.
• The occurrences of 2017 were outside the purview of the DPA19. However the continued presence of the videos on the Respondent's Facebook page, to include as of the date of the issuance of the determination, required that consent for continued use be provided, but was not availed. This negated the right of the Complainant under section 32(2) of the DPA19 to withdraw consent at any time.
• The Respondent used the Complainant’s images for commercial purposes having regard to the nature of the promotional materials flagged.
• Thw Respondent did not obtain the Respondent's consent prior to the use of his image for commercial purposes contrary to Section 37(1)(a).

Holding

The ODPC held that: