Benson Odiwuor Otieno Vs Digital Regenesys Limited

Cases Detail

Cases

Benson Odiwuor Otieno Vs Digital Regenesys Limited

Country: Kenya
Court: ODPC
Status: Determination
Tags: Data protection,Commercial use of Personal data

Case Summary.

The complainant lodged a complaint on 20 November 2024 against the Respondent. The Respondent had been sending unsolicited promotional and marketing messages to the complainant without their consent. The Respondent send unsolicited whatsapp messages to the Complainant on the course fees and urging early enrollment  on the 28 October 2024 and despite the Complainant reply to the message with “STOP”, he further received another promotional message on the Respondents Artificial Intelligence Course and payment options on the 29 October 2024.The Complainant had explicitly and repeatedly objected to the Respondent via a formal cease and desist notice to the Respondent but yet received more messages.

 Issues of determination

   I.   Whether the Complainant’s personal data was lawfully processed; and

  II. Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations.

 Determination

The Respondent did not file a response to the Complaint and was unable to prove a lawful basis of procession of the Complainant’s data and was thus liable for commercial use of data without consent as per section 37 of the Act. The Respondent was thus ordered to delete the Complainant’s personal data from its systems , stop contacting him and avail proof of the same to the Office within 7 days and an enforcement Notice was also issued to the Respondent. The respondent was also ordered to pay the Complainant KES. 200,000/= as compensation.

Analysis

The case highlights the importance of ensuring that commercial use of personal data is based on consent in line with section 37 of the Act. Data Controllers and processors should ensure that opt out mechanisms are effective to ensure adherence to data subject’s rights to object processing of personal data.

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.