Authority: ODPC - Kenya
Jurisdiction: Kenya
Relevant law: Section 25(a), 28(1), 29, 37(1), 41, 65, of the Data Protection Act, 2019; Article 31 of the Constitution of Kenya
Type: Complaint
Outcome: Violation
Started: 17 October 2023
Decided: 14 January 2024
Published: Yes
Fine: Kes.750,000/=
Parties: Allan Tirop vs. Port Florence Community Hospital
Case No.: 2101 of 2023
Appeal: N/A
Original Source: ODPC
Original contributor: MZIZI Africa

Contents

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

Summary

Port Florence Community Hospital (the “Respondent”) utilized the Complainant's image on its social media platform without obtaining prior consent. Consequently, a compensation order amounting to Kes.750,000/= was issued against the Respondent.

Facts

Alla Tirop (the “Complainant”) filed a complaint against a Respondent for allegedly using the data subject's image on their social media page without obtaining the necessary consent..

The Complainant sought legal remedies, including a declaration of privacy rights violation, financial restitution, and an enforcement notice.

The Respondent was duly notified and provided with an adequate opportunity to respond, however, they failed to comply within the stipulated timeframe.

Consequently, the Respondent failed to present evidence of acquiring consent for the publication of the Complainant's image.

Consequently, the ODPC determined that the respondent had violated the Complainant's rights under the Act, specifically the right to privacy and consent.

The ODPC also discovered that the Respondent failed to meet its obligations under the Act by continuing to use the complainant's image despite the complaint being filed with it.

The Act's remedies were explored by the ODPC, including the data subject's right to compensation.

The ODPC refrained from issuing a declaration of privacy rights infringement, as such a determination falls within the exclusive purview of the High Court.

The Complainant was deemed eligible for remedies in accordance with the Act and its accompanying regulations.

Holding

The ODPC held that: