Annasalome Wangari amd Jatie Sichiri v Zerox Technology Company Limited

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Cases

Annasalome Wangari amd Jatie Sichiri v Zerox Technology Company Limited

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

Case Summary

The first Complainant reported that agents from AsapKash, a service provided by the Respondent, contacted her demanding repayment of a loan she claimed she never took. Despite her denials, the Respondent maintained that she would be held responsible for the debt incurred by a third party.

The second Complainant alleged that she received text messages from AsapKash agents, informing her that she had been listed as a guarantor. She also reported receiving threatening messages and provided screenshots as evidence of harassment.

In response, the Respondent acknowledged contacting the first Complainant, explaining that although she was not their client, her contact details had been provided by a third-party borrower. According to the Respondent, their contract requires borrowers to provide secondary phone numbers along with their primary number when applying for a loan.

Regarding the second Complainant, the Respondent confirmed contact but denied sanctioning the types of messages sent, which violated the company's policies. They also admitted that the data processing occurred without the Complainants' consent.

Issues for Determination 

  1. Whether the Respondent fulfilled its duty to notify the Complainants of the use of their contact details as per Section 29 of the Act.
  2. Whether there was any infringement of the Complainants rights as data subjects as provided for in the Data Protection Act 2019

Determination

The Respondent was held liable for failing to fulfill their duty to notify under Section 29 of the Act and they were held to have violated the Complainants’ data subject rights under Section 26 of the Act.

Analysis

  1. Duty to Notify (Section 29 of the Data Protection Act)

The Respondent’s acknowledgment that it used the Complainants' contact details without proper notification reflects a significant breach of Section 29, which requires data controllers to inform data subjects about the collection and intended use of their data. This lack of notification deprived the Complainants of the opportunity to consent to or reject the use of their data, thus stripping them of control over their personal information.

The ODPC’s ruling that the Respondent failed to provide sufficient evidence of having informed the Complainants about the use of their contact details for debt-related communications underscores the necessity for transparency in data collection practices. This is especially pertinent when the data involves sensitive financial obligations such as loans and guarantees.

  1. Infringement of Data Subject Rights (Section 26 of the Data Protection Act)

Section 26 outlines the rights of data subjects, including the right to be informed of the use of their data, the right to access their data, and the right to object to or restrict its processing. The Respondent’s failure to notify the Complainants of the collection and intended use of their personal data for debt collection purposes clearly infringes these rights.

The ODPC correctly identified that the Respondent not only failed to inform the Complainants of the use of their data but also did not obtain their consent. This failure is particularly egregious given that it pertains to financial liabilities where unauthorized data use could have significant reputational and financial implications for the data subjects.

The ODPC's decision to hold the Respondent liable for breaches of Sections 29 and 26 of the Data Protection Act is both justified and necessary, given the circumstances of the case. This ruling reaffirms the importance of consent and notification in data processing activities, particularly in sensitive areas such as financial services.

However, the case also highlights a broader issue within the digital lending industry regarding the use of third-party contacts for loan guarantees and debt recovery. While the ODPC's decision addresses the immediate breaches, it also calls for a more systematic review of how digital lenders and financial technology companies obtain and use personal data. Stricter guidelines and perhaps more severe penalties for breaches of data protection laws could deter such practices in the future. 

Additionally, while the determination focuses on the breaches by the Respondent, further guidance on preventive measures and best practices for data controllers could help improve compliance across the industry. This case should prompt other companies to review and enhance their data protection measures, ensuring they align with legal standards and best practices to protect data subjects' rights effectively.

In conclusion, the ODPC's determination in this case not only addresses the specific grievances of Annasalome Wangari and Jatie Sichiri but also serves as a crucial reminder of the fundamental principles of data protection law. It emphasises the need for transparency, consent, and respect for the rights of data subjects, particularly in industries where personal data is frequently collected and processed.

 

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.