Benjamin Ouma v DMI Education service Ltd operation as St Joseph International Science school- Minor’s personal data

Cases Detail

Cases

Benjamin Ouma v DMI Education service Ltd operation as St Joseph International Science school- Minor’s personal data

Country: Kenya
Court:
Status: Determination
Tags: Data protection,Consent

Case Summaries

The minor alleged that the respondent used their image in an advertisement without their knowledge or their parents’ consent. The incident happened when the kids had gone for a fun day and were lured to put on uniforms and take photos. The minor is and was not a student at that school yet the respondent used the images for a while which attracted students to attend that school hence earning profits. Evidence on the same was provided. The respondent failed to respond to the notification of the complainant’s letter that was physically served to the school on 11th Dec 2024.

Issues for determination

  1. Whether the respondent obtained express consent from the minors parent to process the minors personal data for commercial purposes.
  2. Whether the minor's parent is entitled to any remedies under the Act and the attendant regulations.

Determination

The respondent was found liable for the use of the minors personal data for  commercial purposes without express consent.The respondent was  ordered to compensate the minor’s parents 700,000ksh. The parents had the right to appeal to the high court within 30 days.

Analysis

On the first issue, Section 33 of the Data Protection Act provides for the processing of a child's  data for which consent must be given by the parents’ child.The ODPC then defined what consent means as per Section 2 of the Data protection Act and the forms in which it manifests itself. That is, through clear and an unequivocal statement or by clear affirmative action, and a product of conscious decision making from which there must be a clear signal. Section 30(1)(a) of the Data Protection Act provides that a data processor must use data from which the data subject has granted consent and further on. Section 32(1) of the Data Protection Act states that the data controller shall bear the burden of establishing a data subject's consent to the processing of their personal data for a specific purpose. From the evidence adduced the respondent's failure to issue a statement in regards to the allegations results in the failure to discharge the burden of proof of whether there was consent given. Section 31(1)(a) of the Data Protection Act provides that data used for commercial purposes must be used after express consent from the data subject of which, Section 14(1) interprets commercial purposes to be that of commercial and economic interest.  Therefore the respondent having not discharged his burden of proof to use the minors images shows that no consent was obtained.

On the second issue, Regulation 14(2) and 14(3) of the enforcement regulation provides that remedies are given after a determination is given. The complainant requested for an award of compensation as given in Section 65 of the Data protection Act. Having considered that no consent was granted by the complainant the respondent therefore has to compensate the minors parents 700,000ksh for use of personal data for commercial purposes without express consent.

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.