Mohammed Orukoh vs Koru Country Club

Cases Detail

Cases

Mohammed Orukoh vs Koru Country Club

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: right to privacy,data processing,consent,image rights

Case Summary

The Complainant, Mr. Mohammed Orukoh alleged that the respondent posted and used his photo in their official Facebook account to advertise their facilities including a swimming pool on 24th May 2022. The Complainant further alleged that the photo was taken without his consent and the respondent has maintained the picture on its Facebook page for over a year. Mr. Orukoh claims that the half-naked picture of him is hurting his reputation as a father and a teacher and that he comes from a strong Christian background. 

The Respondent stated that a staff member personally spoke to the Complainant and took his consent and that it is malicious to complain 17 months after the post was posted.

Issues For Determination:

1.     Whether the Complainant's personal data was processed as per the law;

2.     Whether the Complainant's rights were infringed upon; and

3.     Whether the Complainant is entitled to any remedy under the Act. 

Determination: 

The Complainant’s data was not processed as per the law since section 30(1)(a) sets out that the data subject must consent to the processing of his or her data for one or more specified purposes. The Complaint did not expressly consent to his image being used by the Respondent. Having established there was no valid consent given, it therefore follows that the Complainant was never informed of the use of his photograph as per Section 26(a) of the Act. 

The Complainant is entitled to Kshs 750,000/= for the use of his image for commercial gain without consent. 

Analysis: 

Article 31 (c) and (d) of the Constitution of Kenya provides for the right to privacy. Additionally Section 30 and 32 of The Data Protection Act outlines that consent must be obtained from data subjects. What this case demonstrates is that before any personal data is used for any activity, including commercial use, then the data subject must have given his or her consent. Central to this principle is the requirement for data controllers to obtain explicit consent from individuals before utilizing their personal data for any purpose, especially in commercial endeavours. This means that individuals must be fully informed about how their data will be used and must actively consent to its processing. 

Without such consent, the use of personal data could potentially infringe upon individuals' privacy rights. Furthermore, the case underscores the potential legal and financial consequences of failing to comply with data protection regulations. Data protection laws typically include provisions for penalties, such as fines and enforcement notices, for non-compliance. These penalties serve as deterrents against improper data handling practices and help safeguard individuals' privacy rights.

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.