Vishaal Shah, Keval Shah, Roshni Shah, Shrikunj Shah and Madhup Dokania v Cyprian Nyakundi

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Cases

Vishaal Shah, Keval Shah, Roshni Shah, Shrikunj Shah and Madhup Dokania v Cyprian Nyakundi

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

Case Summary

The complaint relates to the alleged publishing of the Complainants’ names and mobile phone numbers by the Respondent on his website (https://cnyakundi.com) through a particular link without the Complainants' consent. In June 2023, the ODPC, in its exercise of its mandate as envisaged under the Act and in the promotion of justice, notified the Respondent of the complaints filed against him via a letter. The letter asked the Respondent to provide details regarding how they obtained the personal data of the data subjects, the legality to it, the mitigation measures adopted or being adopted to address the complaints, among other factors aligned to data protection.

The Respondent’s response to the letter via email and their social media did not provide details as to the requests posed by the Office or address the complaints.

Issues for determination

  1. Whether the Respondent published the Complainants’ personal data on his website without the consent from the Complainants. 
  2. Whether the said publication falls under the exemptions in the Data Protection Act.

Determination

Having regarded the issues in question, the ODPC could effectively conclude that the Respondent did not obtain prior consent to publish the Complainants' personal data. However, clarity regarding the said publication being under the exemptions of the Data Protection Act remained ambiguous, calling for further investigations in the matter. 

Analysis

  1. Whether the Respondent published the Complainants’ personal data on his website without the consent from the Complainants 

The allegation against the Respondent with respect to the Complainants’ personal data having been published on a website without prior consent was confirmed by the ODPC post, which verified the site. To confirm prior consent, the ODPC’s communication to the Respondent was unfortunately not addressed, resulting in the allegations by the Complainants to remain uncontroverted. Therefore, it was concluded that prior consent was not obtained from the Complainants before publishing their personal data. 

  1. Whether the said publication falls under the exemptions in the Data Protection Act

Section 2 of the Act defines ‘literary work’, and the Respondent’s site fell under this category. Referencing Section 52 of the Act, exemptions concerning journalism, literature and art were assessed by the ODPC. Section52(1)(b) of the Act further provides that in instances where Data controllers have reason to believe that publication would be in the public interest, citing Kenya Anti-Corruption Commission v Deepak Chamanlal Kamni and four others (2014) regarding the definition of public interest. Deeming the Respondent’s publication as falling under the wings of public interest, however, did not result in them meeting the threshold of being a journalist under the Media Council of Kenya or Bloggers Association of Kenya (BAKE).

This called for further investigations in the matter. 

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.