Shillah T.M.K, Michael Kangethe and Elijah Njoroge v Platinum Credit Limited

Cases Detail

Cases

Shillah T.M.K, Michael Kangethe and Elijah Njoroge v Platinum Credit Limited

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

Case Summary

The complaint relates to unwarranted and unlawful use of the data subjects’ personal data as well as the infringement of the data subjects’ rights. The Complainants asserted that the Respondent's persistent calls and messages were suggestive of their phone numbers being stored in the Respondent's database, thereby violating their privacy rights. This practice enabled sales representatives from the Respondent to contact the Complainants without their consent, exacerbating the infringement on their privacy.

To this, the Respondent disregarded the complaints and went ahead to state how it had complied with the Data Protection Act. This was elaborated as the Company protecting personal data through verification and notification to data subjects, enabling the data subjects to exercise their rights, have alternative methods of submitting access requests as well as training for its staff.

Issues for determination

  1. Whether there was any infringement of the Complainants’ rights as data subjects as provided for in the Data Protection Act (2019)

Determination

The Respondent was found liable and ordered to give effect and implement data protection policies/frameworks etc. An Enforcement order directed at the Respondent was issued .

Analysis

At the outset of the complaints, the right to object by data subjects stood out as a point of commonality. This was attested to upon the Complainants expressing their opposition to the calls to the extent of even visiting the Respondent’s offices and lodging complaints. A letter by one of the Complainants titled ‘Cease and Desist Communication’ was also attached as evidence from their side to indicate the intensity to which the calls were constant. This was disregarded by the Respondent leading to the calls occurring even at the time of determination without authorization or consent thereby contradicting Section 26 of the Act that lays down the Complainants right to object. 

Later on, the Respondent expressed their efforts in building mechanisms and avenues to help resolve the data protection complaints they were subjected to. However the ODPC noted the need for such mechanisms even before the complaints arose and how practicality in such frameworks matter more than just their existence.They considered the lack of evidence from the Respondent’s side causing the allegations to remain undisputed. 

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.