Allan Tirop vs Port Florence Community Hospital

Cases Detail

Cases

Allan Tirop vs Port Florence Community Hospital

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

Case Summary

A complaint was received alleging that a non-profit organization, Port Florence Community Hospital, used one Allan Tirops’s image on its social media page without consent. The Complainant averred that this violated his data privacy. The ODPC notified the Respondent of the allegations and requested a response, but the Respondent did not reply. The complaint centers on the Respondent allegedly using the Complainant's image without consent to promote its services on social media. The Complainant claimed that the Respondent was using his image to trump up its business on the basis of giving the impression that the Complainant worked or provided services to the Respondent. Further, this could have jeopardized his current position in one of the leading hospitals. 

Issues for Determination

  1.  Whether there was a violation of Complainant's privacy rights under the Act; 
  2. Whether the Respondent fulfilled its obligations to protect the privacy of the complainant under the Act; and
  3. Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations.

Determination

The respondent violated the complainant's privacy rights under the Data Protection Act by not obtaining consent to use the complainant's image on its social media page.  The respondent failed to fulfill its obligations to, inter alia, process the complainant’s personal data in the rightful way, as required by the Data Protection Act. The complainant was entitled to remedies under the Act and attendant regulations.

The Respondent was therefore found liable for using the Complainant's image for commercial gain without his consent and failing to pull down the said image upon the Complainant's request hence violating his rights under the Act.

Analysis

The case demonstrated the critical importance of obtaining explicit consent from data subjects, as required by Sections 30 and 32 of the Data Protection Act, before using their personal data for any purpose, including commercial use. It highlighted the need for data controllers to adhere to individuals' right to privacy as mandated by Section 25, and the necessity of collecting data directly from subjects while informing them of their rights and the purpose of data collection These are clear provisions under Section 28 and 29, yet they may go unfulfilled. 

The case underscored the potential legal and financial repercussions for non-compliance with data protection laws, including fines and enforcement notices, which the ODPC is legally allowed to declare, by way of Section 65, and emphasised the necessity of implementing safeguards to protect personal data (Section 41). This case, as a precedent, shows the pursuit of stringent data protection practices, guiding both organisations and data subjects in understanding their rights and obligations.

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.