| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 2, 32(1) of the Data Protection Act, 2019. |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 3 May 2023 |
| Decided: | 31 July 2023 |
| Published: | Yes |
| Fine: | N/A |
| Parties: | Edith Andeso vs. Olerai Schools Ltd |
| Case No.: | 0725 of 2023 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Olerai School Ltd was found not to have violated the provisions of the Data Protection Act, 2019 due to the level of involvement of the Respondent in the acts complained of and their action in pulling down the offending images from their social media pages, once an objection to their use was raised by the Complainant.
Edith Andeso (the “Complainant”) alleges that Olerai School Ltd (the “Respondent”) used her image to advertise its school without her permission.
She states in her complaint that she was hired by the Respondent as a teacher. She alleged that in the course of her employment at the school, the Respondent procured the services of a photographer who attended the school and took photos of teachers and students in class.
The photos were subsequently uploaded onto the schools social media pages. She states that she was informed that the parents had consented to the photography but states she was not consulted. She further stated that she was afraid to insist on the withdrawal of her photos because she didn't want to risk her employment with the Respondent. She therefore made the request for her photos to be withdrawn from the pages once she left the respondent's employment, which was ignored.
She alleged that the photos created a perception that she was in gainful employment of the Respondent to her detriment, and that she benefitted commercially from the images which was not the case. She therefore asked to be compensated.
The Respondent confirmed that the Complainant was an ex-employee and also averred that they had withdrawn the photo imediately the objection to it was raised by the Complainant.
As regards the photos, the Respondents provided proof of parental consent to the photos of the Complainant's two children who were previously enrolled at the school. They claimed the tort of estoppel in respect of the use of the Complainant's images due to the Complainant's extensive involvement in the photography and use of the images collected (which made her aware of the process and her capacity to object), and her lack of objection over the course of her employment to the use of her photographs.
Upon review, the Office of the Data Protection Commissioner found that the Respondent had demonstrated that prior consent of the Complainant had been obtained by the Respondent prior to the processing of her data. The images were quickly pulled down once the Complainant's objections was raised.
The ODPC held that: