Annsalome Wangari & Jaytie Sichiri vs Zerox Technology Company Limited

Cases Detail

Cases

Annsalome Wangari & Jaytie Sichiri vs Zerox Technology Company Limited

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: data subject’s rights,consent,duty to notify

Case Summary

Annsalome Wangari and Jaytie Sichiri lodged complaints with the Office of the Data Protection Commissioner (ODPC) on June 13 and 14, 2023, respectively, against Zerox Technology Company Limited, a digital credit provider operating AsapKash. The 1st Complainant alleged that AsapKash representatives contacted her, demanding repayment of a loan she never took, claiming she was accountable for a third party’s loan. The 2nd Complainant reported receiving insulting calls and messages from AsapKash, stating she was listed as a guarantor for a third party’s loan without her consent. The ODPC notified the Respondent on June 22, 2023, and received a response on July 6, 2023. Investigations were conducted, leading to this determination.

Issues for Determination

1. Whether the Respondent fulfilled its duty to notify the Complainants of the use of their contact details as per Section 29 of the Data Protection Act, 2019.

2. Whether there was any infringement of the Complainants’ rights as data subjects as provided for in the Act.

Determination

The ODPC concluded that Zerox Technology Company Limited breached Sections 28 and 29 of the Data Protection Act, 2019, by failing to notify the Complainants that their contact details were collected and used as emergency contacts or guarantors. The company violated the Complainants’ rights under Section 26 by collecting their personal data from third parties without their consent, leading to unauthorised processing. As a result, the ODPC held the Respondent liable and mandated the issuance of an Enforcement Notice to address these violations.

Analysis

This case underscores the critical need for data controllers to obtain explicit consent and notify data subjects before processing their personal data, as mandated by Sections 28 and 29 of the Data Protection Act, 2019. The Respondent’s practice of collecting contact details from third parties without informing or obtaining consent from the Complainants violated their right to be informed and breached the principle of direct data collection. The lack of a mechanism to allow data subjects to opt out of being listed as referees or guarantors highlights a significant gap in compliance with data protection principles. The case emphasizes the importance of transparency and accountability in data processing, particularly in digital lending, and serves as a precedent for enforcing data subject rights under the Act.

 

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.