Richard Wafula vs Hotel Tobriana

Cases Detail

Cases

Richard Wafula vs Hotel Tobriana

Country: Kenya
Court:
Status: Determination
Tags: data subject rights,

Case summary

The complainant stated that upon booking the reception of the wedding at the Respondents establishment where their children and guests were hosted, some of their images were taken and were posted in the respondents marketing, promotions and social media platforms.These images were used for commercial purposes without any written consent. The images of his wife and some of their friends have exposed them to unwarranted public attention and resulted in gross violation of their right to privacy.

Issues for determination

  1. Whether the Respondent violated the Complainants rights under the Act and attendant Regulations?
  2. Whether the Respondent fulfilled its obligation under the Act and the attendant Regulations?
  3. Whether the complainant is entitled to any remedies under the Act and the Attendant Regulations?

Determination

The respondent was liable for violating the complainants rights of erasure, failing to fulfil his duty to notify and using the complainants personal data for commercial purposes without consent. The respondent was directed to erase the complainants personal data such as the images and videos. Lastly, the respondent was ordered to pay 750,000ksh to the complainant. The parties had the right to appeal within 30 days.

Analysis

On the first issue, section 40(1)(b) of the Data protection Act provides for the right of erasure where the data subject may request a data controller to erase or destroy personal data that is obtained unlawfully. The respondent failed to respond to the demand letter. Therefore the ODPC concluded that the respondent violated the right to erasure given at the date of the determination the images were still available on facebook and instagram.

On the second issue, section 29 of the Data protection Act states that the Data processor has a duty to inform the data subject of any images collected  for advertisement purposes, however they failed to do so. Additionally, pursuant to Section 32 of the Data protection Act, the respondent failed to proof that the data subject consented to the use of the images for commercial purposes.Therefore, the respondents actions amount to unlawful use of the data subjects’ data without express consent therefore failing in their duty to notify the complainant under section 29 of the Act and failing to seek consent under Section 37(1) of the Data protection Act.

On the third issue, the complainant had the right to a remedy that would be rendered in the determination. The complainant prayed for the removal of the images from Facebook and Instagram, an official apology and 2,5 million. The ODPC directed the respondent to erase the images within 14 days and a fine of 750,000 to be paid to the complainant for use of personal data without consent for commercial purposes and violation of the right of erasure.

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.