Edith Andeso v Olerai Schools Limited

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Cases

Edith Andeso v Olerai Schools Limited

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

Case Summary

The Complainant, a former teacher at a Primary School that offers education from Kindergarten to Junior Secondary levels, claimed that the school used her photograph for advertising purposes without her consent. This photograph was posted around 13th January 2023, misleadingly suggesting she was still employed at the school, which she argued could hinder her employment opportunities elsewhere.

The school, identified as the Respondent, acknowledged the use of the Complainant's photo on its Facebook page and removed it promptly following a demand letter from the Complainant on 18th April 2023.Moreover, the Respondent argued that the Complainant had implicitly consented to the use of her photograph by participating in the photo sessions, suggesting her agreement to its use for such purposes.

Issues for Determination

  1. Whether prior consent was obtained by the Respondent before posting the Complainant's photo
  2. Whether the Complainant is entitled to the remedy sought for the alleged breach

Determination

The ODPC dismissed the complaint, the Complainant was held to have given consent.

Analysis

Consent and its Validity

The ODPC ruled that the photograph's use did not violate data protection laws, primarily because the Respondent provided sufficient evidence that implied consent had been obtained. The Act requires consent to be "clearly, informedly, and specifically given" (Section 30 of the Act), suggesting that any consent must be unequivocal and relate directly to the circumstances of the specific data processing activity. The school's argument that participation in the photo session constituted implicit consent is contentious. Implicit consent, especially in employment contexts where there might be a power imbalance, should be approached with caution. Employees might participate in such sessions under the assumption of internal use, not broader marketing campaigns.

Application of Consent in Employment Contexts

It is crucial to differentiate between consent given in personal contexts and that given as part of employment duties. The Data Protection Act does not explicitly differentiate between these types of consents, which may lead to gray areas in its application, particularly when personal data is used for purposes beyond the original scope of employment duties.

Furthermore, the Respondent’s claim that the Complainant had consented to the use of her photo because she helped organise the photo session and did not voice opposition could be seen as an overreach. Silence or non-opposition should not necessarily be construed as consent, especially in cases where the potential for coercion or misunderstanding exists.

Duty to Inform and Withdrawal of Consent

Even if initial consent was given, the Data Protection Act allows for the withdrawal of consent. The Complainant’s action of sending a demand letter for the photo’s removal indicates her intention to withdraw any previously given consent. According to Section 32(1), which requires data controllers to prove consent, the school's quick action to remove the photo upon receiving the demand letter was appropriate, yet it does not retroactively justify the initial use if the consent was not clearly established.

Remedies and Redress: 

The ODPC’s dismissal of the complaint suggests that they found the school’s response—removing the photo upon request—to be sufficient. However, this does not address whether the initial use was justified or if any damage was done to the Complainant's professional reputation during the period the photo was misused. 

The decision raises questions about the robustness with which implied consent is scrutinised within the framework of Kenyan data protection laws. Given the potential for implied consent to be misinterpreted or misused, especially in employment relationships, the ODPC might consider setting clearer guidelines or precedents on what constitutes valid consent in such contexts.

This case underscores the complexities involved in managing personal data within professional or semi-professional relationships and highlights the need for clear, unambiguous consent procedures to protect individuals' data rights. Additionally, it illustrates the ongoing challenge of interpreting and applying the principles of data protection in dynamic real-world scenarios 

 

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.