Contents

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

Summary

Edgar Obare, a social media influencer, was found not to have violated the rights of a minor when he posted the child's image on his Telegram channel. The image was already publicly available, having been submitted for publication by the child's mother through a friend. The photo was blurred and was removed promptly after the mother requested its removal. The case also addressed concerns related to journalists.

Facts

The Complainant filed a complaint against Edgar Obare (the “Respondent”) a social media influencer and operator of a telegram page known as BNN which he monetized for his gain through a membership plan. The Complainant alleged that the Respondent used the minor’s image on its page without approval.

The Complainant alleged that the Respondent featured the minor on his page due to the public stature of the child’s father, a jounalist, but refused to pull down the minors image when requested to do so by the Complainant. The image of the child was taken from the Complainants social media page.

The Respondent averred that the complaint was fattally flawed for not having been signed and that the Complainant did not approach the office with good faith. The images was submitted to him to publish by a friend of the Complainant presumably to get the father to take responsibility for the child. The story had previously run in various online platform and was not new, the child’s face was blurred in the telegram story and the item as a news story was over a year old. The Respondent also stated that the allegations that his channel is monitized is not true and that the Complainant just wanted to financially benefit from the story noting that her original intent in having a friend forward the story to him has been fulfilled, with the father of the minor taking responsibility for the child.

The ODPC found as follows:

• that the complaint is properly before the ODPC notwithstanding its technical limitations under Article 159 of the Kenyan constitution.
• The Respondent is not a journalist under the Media Council Act, 2013.
• The Respondent posted the image of the minor onto her social media page from where the Respondent obtained it from thereby meeting the requirements for indirect collection in section 28(2)(b).
• The Complainant did not deny that she used a friend to pass on the information and images for use by the Respondent on his page, notwithstanding requests by the ODPC to addess the allegation.
• The image was not used for commercial purposes as it was posted on the Respondent’s free channel and not the Respondent’s commercial channel which operated on a pay-per-view model. Consent prior to the use of the image is therefore not needed.
• The minors image was blurred and the minor was therefore de-identified in the telegram post.
• The minors image was taken down from the site by the time the matter was filed with the ODPC which fulfilled the Complainant’s right to erasure.