Contents

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

Summary

The ODPC rejected the Complainants case because the rights to use the Complainant's image for commercial purposes was lawfully obtained.

Facts

BeeHive Media Ltd (the “Respondent”) was awarded a creative design, advertising and communication contract by Capwell Industries Limited (CIL) in respect of its products. In the course of fulfilling the contract, they created posts for two CIL products, ”Soko” and Amaize”, and published them in their social media handles. The promotional material contained an image belonging to Liburuwen Lesanguru Kweri (the “Complainant”). The Complainant alleged that the Respondent used the image without his permission.

The Complainant averred the actions of the Respondent defamed him and brought him needless and unnecessary mental anguish, torture and stress. He produced evidence of his claim including a demand letter addressed to Capwell Industries Ltd which did not elicit a responce. The Complainant sought for a declaration that his right to privacy was violated by the Respondent, an award of damages on the sum of Kes.5million, recommendation for prosecution through an enforcement notice by the ODPC.

The Respondent averred that they bought a commercial license (and therefore intellectual property) to use the image from Shutterstock, a public repository of quality royalty free images owned by an American company and had used the images in accordance with the license terms. The Respondent further averred that the license terms did not include requirement to obtain further permission from the Complainant or any other person and the image was used in accordance with the acquired license terms. The Complainant also stated that they had tried to resolve the matter amicably with the Complainant which included pulling down the advertisement and terminating the agreement wth CIL, to no avail.

Holding

The following are the findings by the ODPC:

• The Respondent had an obligation to put in measures to uphold the rights of data subjects including the right to privacy.
• The ODPC has no jurisdiction to make a declaration that the Respondent’s actions violated the Complainant’s right to privacy which is a preserve of the constitutional Court.
• The Complainant did not demonstrate any financial loss caused by the Respondent to justify compensation.
• The Respondent obtained a lawful license to use the Respondents image. There was therefore a lawful publication of the Complainants image. In the circumstances, the prayer for compensation is denied.
• The Respondent has not committed a criminal act and the ODPC would not recommend criminal procecution as requested by the Complainant.

The ODPC held that the matter stands resolved.