Mutheu Mutuku vs Club Legend Rongai

Cases Detail

Cases

Mutheu Mutuku vs Club Legend Rongai

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

Case Summary

Mutheu Mutuku (Complainant) alleged that Club Legend Rongai (Respondent), posted Mutheu’s  picture on their social media pages wrongly, and without consent. Upon request to pull the images down, the request went unanswered. Upon making the complaint at the Office, the Respondent did not furnish any response to the Complaint. 

Issues For Determination

1.     Whether there was a violation of Complainant's rights under the Act;

2.     Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations.

Determination

The Complainant's rights, inter alia, to erasure, rectification and to withdraw consent were violated under the Act. Given that there was deemed to be a violation of the Complainant’s rights, they were then entitled to remedies to the tune of half a million Kenyan Shillings. 

 Analysis

The Case addressed two key issues: the violation of the complainant's rights under the Data Protection Act and the entitlement of the complainant to remedies. The complainant exercised her rights under Sections 32 (2) and 40 (1) (b) of the Act to withdraw consent and request the removal of her image from the respondent's social media, which the respondent failed to comply with promptly. Additionally, the respondent used the complainant's image for commercial purposes without express consent, in violation of Section 37 (1) (a). These actions constitute clear violations of the complainant's rights, and she was awarded compensation of KES 500,000 for the unauthorised use of her image and the infringement of her privacy rights. This decision underscores the importance of data protection laws and serves as a deterrent against future violations.

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.