Christine Wairimu Muturi v Roma School Uthiru

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Cases

Christine Wairimu Muturi v Roma School Uthiru

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: data protection,minors,legitimate interests

Case Summary

The Complainant is a mother of a child who is a student at the Respondent’s institution. The Complainant alleges that the Respondent processed images of minors on their social media platforms, particularly TikTOk for marketing purposes. The Complainant was concerned that the Respondent was processing minors data without appropriate safeguards. 

The Respondent denied the allegations wholly and stated that they were not aware of any minors data shared on TikTok or any other social media platforms.

Issues for Determination

  1. Whether the Respondent processed data relating to child in accordance with the Act
  2. Whether the Respondent is in breach of the Act

Determination 

The Respondent was found liable for Sections 9, 25, 26, 29, 32, 33 and 34 of the Act.

Analysis

The central issue revolves around the alleged improper use of minors' images on social media platforms for marketing purposes by the school. This raises significant concerns under the Data Protection Act of Kenya, particularly regarding the processing of children's personal data. 

Processing of Personal Data Relating to a Child (Section 33): The Act stipulates that personal data relating to a child can only be processed with consent from the child’s parent or guardian and must ensure the protection and advancement of the child's rights and best interests. In this case, the school's actions potentially violate this section if they failed to obtain proper consent from the parents or guardians of the minors whose images were used.

Duty to Notify (Section 29): The Act requires that data subjects must be informed about the collection and use of their personal data. This includes the purpose of data collection and how it will be used. The school's failure to notify and obtain consent from the parents or guardians before using the images for marketing purposes could be seen as a failure to comply with this duty.

Rights of a Data Subject (Section 26): Includes the right to be informed of the use of their personal data, the right to access their data, and the right to object to the processing of their data. The complainant’s concerns indicate that these rights may have been compromised, which is particularly crucial when it involves minors. 

The determination by the ODPC that the school was liable for violations of multiple sections of the Act, including Sections 9 (Powers of the Office), 25 (Principles of Data Protection), 26, 29, 32 (Conditions of Consent), 33, and 34 (Restrictions on Processing), suggests a breach of statutory duties in handling personal data, especially sensitive data pertaining to minors. The case underscores the importance of rigorous adherence to data protection laws, particularly when handling children's data in educational institutions. It highlights the need for schools and similar entities to implement strict policies on data consent and processing to safeguard minors' rights under the law.This case serves as a crucial reminder of the legal and ethical obligations educational institutions have in protecting the privacy and personal data of their students, especially minors, under the Data Protection Act.

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.