| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 25(c), 26, 30(2), 32, 37 of the Data Protection Act, 2019; Regulation 14(1) of the Data Protection (General) Regulations. |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 22 January 2024 |
| Decided: | 17 April 2024 |
| Published: | Yes |
| Fine: | KES.1,450,000.00 |
| Parties: | Paul Ogola vs. Shalina Healthcare Kenya Ltd & Anor |
| Case No.: | 0129 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Shalinah Health Ltd violated the law and the Complainant's right to privacy by using the images beyond the authorized scope and for a longer period than permitted. The firm was ordered to pay the Complainant KES 1,450,000.00 in compensation.
Paul Ogola (the “Complainant”) entered into a modelling contract with the 1st Respondent in respect of a product known as Pharmasal. The contract was limited to an online campaign and was to expire by effluxion of time after 6 months.
A year later, the Complainant discovered that the 1st Respondent was not only still using his image but had also extended the use thereof beyond the online campaign to other media to include bill boards, poster, moving pictures etc . This extended period and use was not authorised by him.
The Complainant averred that the 1st Respondent refused to acknowledge the Complainant's claim or compensate him for the use therefore necessitating his complaint to the ODPC.
The 1st Respondent denied having a contractual relationship with the Complainant and averred that the Complainant's relationship was with Vivid Features Ltd a party unknown to it.
The ODPC enjoined Vivid Features Ltd as the 2nd Defendant to the complaint.
The 2nd Respondent averred that they are a production house hired by Dotsavvy Ltd (the “agency”) to produce images and videos for online campaigns. The agency was therefore contracted by the 1st Respondent and the agency subcontracted the production work to them.
The 2nd Respondent averred that they abided by the casting contract between them and the Complainant in total (period and extent), and were unfamiliar with the continued and extended use. They further averred that they had communicated their part in the issue to the Complainant and sought clarifications from the 1st Respondent on the continued use. The 2nd Respondent therefore assigned blame on the 1st Respondent who they allege was trying to subvert justice through misrepresention.
The ODPC found that the Complainant had not been informed of the use of his image beyond the contractual period by the 1st Respondent, not the 2nd Respondent. This continued use was also incompatible with the original intended use.
The ODPC also found that the 1st Respondent had not demonstrated lawful use post the 6 month period and no proof of consent to the continued use was availed.
Further, the 1st Respondent used the Complainant's images for commercial purposes without first obtaining consent which was against the requirements of the law.
The ODPC found that the Complainant's rate card provided a basis for computing the compensation payable to him.