Philip Bolo Vs Platinum Credit Limited

Cases Detail

Cases

Philip Bolo Vs Platinum Credit Limited

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

Case Summary.

The Complainant lodged a complaint on 22 October 2024 alleging that the Respondent contacted him via texts messages and calls from the Respondents employees promoting its loan products without his consent. Despite the Complainant sending emails requesting the Respondent to stop, the same continued. The complainant had also made requests to the Respondent to delete his number from their database. The respondent stated that the Complainant has never been their customer and thus they do not have his data in their database. Additionally, they contended that upon investigations, the phone numbers used to call the Complainant were not its agents and were not related to the respondent. Upon investigation, an email admission by the general manager of the Respondent that the complainant was contacted by its agent was discovered. The email contained an apology to the Complainant and disclosed that the general manager had been terminated.

Issues of determination

1.Whether the Respondent fulfilled its obligations under the Act;

2.Whether there was violation of the Complainants rights under the Act; and

3.Whether the complainant is entitled to any remedies under the Act and the attendant Regulations.

Determination

The Respondent is a data controller and should ensure that processing of personal data is under lawful basis and obtain consent before commercial use of personal data. Since the Respondent could not prove the complainant’s consent and any opt out mechanism, they failed to fulfil their obligations under the Act.The Complainant's right to object processing of their data and their right to erasure was also violated by the Respondent who through its agents continued to send unsolicited promotional messages to the Complainant. As a consequence the respondent was ordered to pay KES. 900,000/= to the complainant and an enforcement Notice was issued against the Respondent.

Analysis

The case highlights the need to obtain express consent from a data subject before commercial use of their data. For data processors and controllers to avoid violation of the data subjects rights to erasure and right to object, as per Section 26 and 40 of the Act, they should establish proper opt out mechanisms and ensure processing is lawful as per Section 30 of 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.