Liburuwen Lesanguru Kweri vs. Beehive Media Limited

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Cases

Liburuwen Lesanguru Kweri vs. Beehive Media Limited

Country: Kenya
Court: ODPC
Status: Determination
Tags: data protection,privacy breaches,image rights,consent,advertising

Case Summary

The Complainant, Liburuwen Lesanguru Kweri, lodged a complaint against Beehive Media Limited (the Respondent), alleging the unauthorized use of his image in the Respondent's advertisements across various social media platforms. The Complainant asserted that he had not granted consent for his image to be used by the Respondent for commercial purposes. The Respondent acknowledged using the Complainant's image but contended that they obtained it from Shutterstock, a stock photography platform, with a valid license. The Respondent operated under the mistaken belief that Shutterstock or its contributors had already obtained consent from the Complainant. The Complainant argued that, regardless of the Respondent's source, the ultimate responsibility for obtaining consent for the use of his personal data (his image) lay with the Respondent as the data controller determining the purpose and means of processing.

Issues for Determination

The Office of the Data Protection Commissioner identified the following key issues for determination:

  1. Whether the Respondent infringed the Complainant's right to privacy.
  2. Whether the Complainant is entitled to the remedies sought for the alleged breach.

Determination

The Office of the Data Protection Commissioner made the following final determination:

The Respondent, Beehive Media Limited, is liable for infringing the Complainant's right to privacy and unlawfully processing his personal data.

The Respondent is ordered to pay a penalty of Kenya Shillings One Hundred Thousand (KShs. 100,000) to the Complainant.

The Respondent is ordered to cease and desist from processing the Complainant's image for advertising or any other purpose where consent has not been obtained.

The Respondent is ordered to delete all images of the Complainant from its records and database.

Analysis

The ODPC's analysis focused on the principles of consent and accountability under the Data Protection Act, 2019.

Firstly, the Commissioner established that an individual's image constitutes "personal data" under the Act. Therefore, its processing, including use in advertisements, requires a lawful basis, most commonly the explicit consent of the data subject.

Secondly, the ODPC highlighted that the burden of proof for obtaining consent lies with the Data Controller. Even though the Respondent acquired the image from Shutterstock with a license, the Commissioner emphasized that this did not absolve Beehive Media Limited (as the Data Controller determining the use of the image) of its responsibility to ensure that the necessary consent from the individual (Complainant) was obtained for their specific use of the image. The Respondent's reliance on Shutterstock's terms of service was deemed insufficient, as it did not demonstrate direct consent from the Complainant for the Respondent's commercial advertising. The ODPC affirmed that a Data Controller cannot delegate their obligation to obtain consent to a third party like a stock image provider without ensuring that the third party genuinely obtained that consent for the specific purpose the Data Controller intends.

Furthermore, the Commissioner found that the Respondent's failure to obtain express consent from the Complainant for using his image in advertisements constituted a clear violation of the Complainant's right to privacy and the principles of lawful data processing under the Act. This led to the imposition of a monetary penalty and orders for cessation of processing and deletion of the image, underscoring the strict liability of data controllers for ensuring data privacy compliance.

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.