Lawrence M'impwi Kirima Vs Solar Panda Company Kenya Limited

Cases Detail

Cases

Lawrence M'impwi Kirima Vs Solar Panda Company Kenya Limited

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

Case Summary.

Lawrence M’impwi Kirima (the Complainant) lodged  a complaint with the ODPC on 15 October 2024 against the respondent, Solar Panda Company Kenya Limited. The complainant alleged that the respondent used his image without consent and lawful basis to advertise its products contrary to Section 37 of the Act. The complainant became aware of the same in 2022 and made inquiries to the respondent on the same and produced both the email correspondence and the marketing fliers as evidence before the ODPC. The Respondent contended that the complainant was a field agent who conducted sales at a commission and that the photo was taken as a field agent. The photo was then stored in their library and was later retrieved for the sole purpose of improving visibility of field agents. The respondent also stated that the field agreement between themselves and the complainant was entered in July 2029 before the enactment of the DPA.

Issues for determination.

i. Whether the Respondent obtained consent from the Complainant as required by the Act for the use of his image  for commercial purposes; and

ii. Whether the Complainant is entitled to any complaints under the Act and the attendant Regulations

Determination.

The respondent used the Complainant’s image in its product marketing fliers and was thus required to obtain the Complainant’s consent for commercial use of his image. The ODPC found that there was no form of consent by the Complainant for their use of data for commercial use and thus the Respondent did not obtain requisite consent for commercial use of the Complaint’s image. The respondent was found liable for the infringement of the Complainants data privacy and the ODPC directed the respondent to compensate the Complainant KES. 500,000/= for the infringement.

Analysis.

The case highlights the importance of obtaining explicit consent from data subjects before using such data for commercial use. In this case the respondent could not discharge their duty to proof that the Complainant had consented for use of his image for commercial purposes. It also highlights the need for employers to update contracts that were drafted before the enactment with the DPA to align with the data protection rights and provisions. It is critical for data controllers and processors to adhere with Section 30 of the act by ensuring processing of personal data is based on consent or any other lawful basis. Additionally it is key to ensure that commercial use of personal data is as per Section 37 of the Act in that it is based on express consent of a data subject.

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.