| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 2, 5, 8(1)(f), 35(2), 36, 37, 30(1)(a), 32, 37(1), 40, 65(1) of the Data Protection Act, 2019; Regulation 14 of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021, Regulation 12 (3) of the Data Protection (General) Regulations, 2021 Article 31 of the Constitution of Kenya |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 15 May 2024 |
| Decided: | 12 August 2024 |
| Published: | Yes |
| Fine: | KES.500,000 |
| Parties: | Elijah Kariuki Mbuthia vs. St Joseph Healthcare |
| Case No.: | 0627 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
The Complainant alleged that his former employer, the Respondent, used his image for commercial purposes without his consent. The Respondent claimed they had verbal consent. The ODPC found no evidence of express consent as defined by the Data Protection Act and ruled in favour of the Complainant. The Respondent was ordered to pay Kshs. 500,000 in compensation.
Elijah Kariuki Mbuthia, a former employee of St. Joseph Health Centre, alleged that the Respondent used his image without his consent for marketing and commercial purposes.
Mbuthia stated that he was informed that a photo taken of him during his employment would be used solely for staff identification cards.
The photos were later used in various promotional materials, including a public signpost, calendars, and a publication called "The Dream", for over a year after he left the Respondent's employ.
Mbuthia argued that there was a misrepresentation of facts during the collection of data, as he was made to believe that the photograph was for staff identification purposes only.
Prior to filing the complaint, Mbuthia sought legal aid to cease and desist the unauthorized use of his image, but the Respondent refused to acknowledge any wrongdoing.
St. Joseph Health Centre maintained that Mbuthia consented to the use of his image.
The Respondent stated that Mbuthia verbally consented to his image being photographed at a staff meeting.
They further claimed that Mbuthia had the option of objecting to the use of his image but failed to do so and that no objections would have stopped the management from selecting another employee for the photo.
The Respondent argued the local publication and calendars were for public awareness and not commercial gain.
Additionally, they contended that Mbuthia did not raise concerns regarding the use of his image on the Respondent's website during his employment and alleged this complaint was an attempt to extort money.
The ODPC found that the Respondent used the Complainant’s image on its public signpost and in various print media without obtaining the requisite consent.