Adema Sangale v Zoscales Partners

Cases Detail

Cases

Adema Sangale v Zoscales Partners

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: data protection,privacy breaches,image rights,compliance

Case Summary

The Complainant worked as a consultant for the Respondent. During this time, the Respondent used her likeness to advertise their services and raise funds. After the termination of the agreement between the parties, the Complainant requested for the promotional video with her likeness to be deleted from their website and all social media accounts. The Respondent confirmed using the Complainant’s likeness but stated that they halted the use of her likeness and CV immediately once the agreement was terminated. The Respondents claim that their actions did not violate her privacy rights 

Issues for Determination

  1. Whether the Complaint was defective
  2. Whether there was a violation of the Complainant’s rights
  3. Whether the Respondent fulfilled its obligations under the Act
  4. Whether the Complainant is entitled to any remedies under the Act

Determination

Validity of the Complaint:

The ODPC (Office of the Data Protection Commissioner) dismissed the respondent's challenge regarding the validity of the complaint, citing Regulation 4(3)(b) of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021. This regulation supports the filing of complaints through representatives, provided there is proper authorization, as demonstrated by the complainant’s submission of an authorization letter. This determination emphasizes the legal framework that facilitates individuals to assert their data protection rights.

Violation of the Complainant’s Rights:

The investigation by the ODPC confirmed that the respondent adhered to the complainant’s request for data deletion, aligning with the 'right to be forgotten' under Section 26 in conjunction with Section 40 and Regulation 12 of the General Regulations. This response by the respondent effectively respected the complainant’s rights to control over personal data.

Respondent’s Fulfillment of Obligations under the Act:

The respondent was found to comply with the Data Protection Act by ceasing the use of the complainant’s likeness and deleting the relevant data post-termination of the agreement. This action demonstrated adherence to the principles of data protection as outlined in Section 25 of the Act, which includes lawfulness, fairness, transparency, and respect for individual privacy rights.

Entitlement to Remedies:

Since the respondent rectified the data usage issue promptly and respected the complainant’s rights under the Data Protection Act, the ODPC concluded that no further remedies were warranted. This determination suggests that timely and appropriate corrective measures by data controllers can mitigate potential damages and satisfy legal requirements, thus negating the need for additional remedies.

 Analysis

●       Validity of the Complaint:The respondent's challenge to the complaint's validity based on the representation by advocates was promptly addressed by the ODPC, citing Regulation 4(3)(b) of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021. This regulation allows for a complaint to be lodged by a person acting on behalf of the complainant, given proper authorization, as was the case here where an authorization letter was presented. This reaffirms the accessibility of legal avenues for data subjects to claim their rights under the Act.

●       Violation of the Complainant’s RightsThe ODPC’s investigation confirmed that the respondent deleted the complainant's likeness from their website and ceased its usage, aligning with the complainant’s right to data deletion under Section 26 read with Section 40 and Regulation 12 of the General Regulations. This action by the respondent is significant as it underscores the enforcement of the 'right to be forgotten,' a pivotal aspect of data protection law that allows individuals to request the deletion of their data when it is no longer necessary for the purposes for which it was collected.

III. Respondent’s Fulfillment of Obligations under the Act

The respondent demonstrated compliance with the Data Protection Act by not only ceasing the use of the complainant’s likeness upon contract termination but also ensuring that the data was deleted. This indicates adherence to the principles of data protection specified under Section 25 of the Act, which include lawfulness, fairness, transparency, and respect for the privacy rights of the data subject.

IV. Entitlement to Remedies:

Since the respondent took prompt action to rectify the data usage and respected the complainant’s data rights as stipulated by the Act, the ODPC found no grounds for additional remedies. This resolution points to an essential aspect of data protection disputes: corrective actions taken by data controllers can mitigate potential damages and thus negate the need for further remedies.

Broader Implications:

Responsiveness to Data Subjects' Requests: Organizations must act swiftly upon receiving requests related to data rights, particularly those concerning data deletion.

Precedents for Legal Representation: The affirmation that complaints can be lodged through legal representatives broadens the accessibility for individuals to seek redress under the Data Protection Act. On enforcement and compliance: The case exemplifies effective enforcement of data protection laws and the proactive role of regulatory bodies in overseeing compliance and protecting data subjects’ rights.

Overall, this case reinforces the responsibilities of organizations under data protection laws and illustrates the mechanisms in place to ensure compliance and protect individuals' privacy rights. It also provides a clear example of how adherence to data protection principles not only supports legal compliance but also fosters trust and maintains the integrity of the relationship between data controllers and subjects.

 

Frequently Asked Questions

Frequently Asked Questions

A data subject is a natural person who is the subject of personal data held by a controller and who can be identified, directly or indirectly, through that personal data.

Each data subject has the right:

  • to be informed whether or not his or her personal data is being processed,
  • to request information about the processing, if data has been processed,
  • to be informed of the purpose of the processing and whether the data is being used in accordance with those purposes,
  • to be informed about third parties who receive personal data in Kenya and abroad,
  • to request the rectification of incomplete or inaccurate processed data, and
  • to request the erasure or destruction of personal data.

Data processing refers to any operation performed on personal data, either entirely or partially, automatically or manually. This includes collection, recording, storage, preservation, modification, revision, disclosure, transmission, assignment, making available, classification, or prevention of use.

Data controller: is a natural or legal person who determines the purposes and means of personal data processing and is accountable for the data filing system's establishment and administration.

Data processor: is a natural or legal person that processes personal data on the basis of a data controller's authorization.

The data controller or processor is required to provide the following information: the purpose of the processing, the recipients of the processed data and the purpose of the transfer, the method used to collect personal data and its legal basis, and any other rights granted to the data subject by law.

The principles governing data processing are as follows: it must be processed fairly and lawfully, it must be accurate and up to date, it must be processed for specified, explicit, and legitimate purposes, it must be adequate, relevant, and not excessive in relation to the purposes for which it is processed, and it must be retained for the duration specified by law or for no longer than is necessary for the subsequent processing.

A Data Protection Impact Assessment can be used to identify and mitigate high risks associated with data processing that may impact the rights and freedoms of data subjects.

A data controller is a natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purpose and means of processing of personal data. On the other hand, a data processor is a natural or legal person, public authority, agency or other body which processes personal data on behalf of the data controller.