Robert Aka “Authentic Bales” vs. Zerox Technology Company Ltd

Cases Detail

Cases

Robert Aka “Authentic Bales” vs. Zerox Technology Company Ltd

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

Case Summary

On 22nd September 2023, Robert Aka, known as "Authentic Bales," lodged a complaint with the Office of the Data Protection Commissioner (ODPC) against Zerox Technology Company Ltd. Aka alleged that Zerox Technology, a digital credit provider with a product called Asap Kash, added him to a fundraising WhatsApp group without his consent. Aka claimed he was listed as a guarantor for a loan he did not know about and had been previously added to similar groups by the company. The ODPC's investigation confirmed that Zerox Technology violated Aka's data protection rights under the Data Protection Act, 2019, by failing to obtain consent and not properly notifying Aka about the use of his data. The ODPC ordered Zerox Technology to pay Kshs. 20,000 in nominal damages and issued an Enforcement Notice. The decision is subject to appeal to the High Court of Kenya within thirty days.

Issues for Determination

  1. Whether there was a violation of the complainant’s rights under the Data Protection Act, 2019.
  2. Whether Zerox Technology Company Ltd fulfilled its obligations under the Data Protection Act.
  3. Whether the complainant is entitled to any remedies under the Act and the attendant regulations.

Determination

The ODPC found that Zerox Technology violated Aka’s rights under Section 26(a) of the Data Protection Act by adding him to a WhatsApp group without his consent. The company admitted that the group was created by an employee without proper authorization or consent from Aka.

Zerox Technology failed to meet its obligations under the Data Protection Act. The company did not adhere to data protection principles regarding lawful, fair, and transparent processing of personal data. Additionally, Zerox Technology did not notify Aka about the collection and use of his data as required by Section 29 of the Act, nor did it provide evidence of consent for processing his phone number.

Hence, the ODPC ordered Zerox Technology to pay nominal damages of Kshs. 20,000 to Aka for the breach of his data protection rights. An Enforcement Notice was issued to ensure compliance with data protection regulations. The parties have the right to appeal the decision to the High Court of Kenya within thirty days.

Analysis

On whether there was a violation of the complainant’s rights under the Act

The complainant’s rights under Section 26(a) of the Data Protection Act were violated. This section ensures that data subjects are informed about the collection and use of their personal data. Zerox Technology admitted that Aka was added to the WhatsApp group without his consent, which directly infringed on his right to privacy. The complainant provided screenshots as evidence, confirming that his phone number was used without his knowledge or approval.

On whether the Respondent fulfilled its obligations under the Act

Zerox Technology did not fulfil its obligations as required by the Act, since the company failed to process Aka’s personal data in a lawful, fair, and transparent manner as mandated by Section 25 of the Act. There was no evidence that the data was collected for legitimate purposes or that Aka’s rights were considered.

Under Section 29, Zerox Technology was required to notify Aka about the collection of his data, including informing him of his rights and the purposes for which his data was used. The company did not provide such notifications, further violating Aka’s data protection rights.

Section 32 of the Act requires data controllers to prove that they have obtained consent for processing personal data. Zerox Technology failed to demonstrate that Aka consented to his phone number being used or that there was any lawful basis for processing his data.

On whether the complainant is entitled to any remedies under the Act and the attendant Regulations

Given the breaches identified, the complainant was entitled to remedies in the form of nominal damages. Regulation 14(2) of the Enforcement Regulations stipulates that a determination should include a remedy for the complainant. The ODPC ordered Zerox Technology to pay Kshs. 20,000 in nominal damages, addressing both financial and non-financial harm.

 

 

 

 

 

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.