Summary

A woman complained that Farmers Choice Kenya Limited used her image in commercial advertisement brochures without her prior consent. The respondent provided evidence of a paid contractual engagement. The ODPC found the use of the complainant's image constituted lawful processing under Section 30 of the Act and dismissed the complaint.

Facts

The complainant filed her complaint with the ODPC on 10 June 2025. She alleged that on 19 April 2025 she discovered, through an Instagram post, that Farmers Choice Kenya Limited was using her image in commercial advertising brochures without her prior consent or authorisation. She contended that this unauthorised use for commercial gain amounted to a violation of her constitutional rights. Through her advocates, she had formally demanded that the respondent immediately remove the image from all advertising materials — both print and digital — but the respondent allegedly failed and/or refused to comply. She furnished the ODPC with a copy of the demand letter and screenshots of the respondent's Instagram story and feed containing the impugned images.

The respondent filed a response, received by the ODPC on 20 August 2025. It submitted that the image in question arose from a commercial engagement in which the complainant participated and for which she received payment and consideration. The respondent pleaded that the use of the complainant's image was undertaken on the strength of consent and/or express authorisation given contemporaneously with the paid engagement, and that it reasonably relied on that authorisation for the limited purpose of advertising its products through brochures and associated marketing collateral. It provided supporting documentation, including payment vouchers and records of the engagement, as documentary proof of a contractual relationship between the parties. The respondent further averred that, upon receiving the complaint and demand, it commenced an internal review, confirmed the image had been deployed within the parameters of the commercial assignment as understood at the time, and had taken remedial steps including withdrawal or replacement of the brochure where reasonably practicable.

The ODPC found it undisputed that the respondent had collected and processed the complainant's image for commercial purposes. However, the respondent submitted that the complainant participated in a paid, contractual promotional activation, signed a consent form, and voluntarily took part with full knowledge that her image would be used for marketing purposes. It relied on lawful processing grounds under Section 30 of the Act, primarily consent and/or contractual performance under Sections 30(1)(a) and 30(1)(b). The ODPC found, on the basis of the documentary evidence provided, that the respondent's use of the complainant's image met the threshold of lawful processing under the Act. On the related question of the right to erasure under Section 40, the ODPC noted that the respondent had averred that it promptly complied with the complainant's request to remove the images from Instagram and brochures — a position the complainant did not controvert. The ODPC therefore found that the respondent had not violated the complainant's rights as envisaged under the Act, and dismissed the complaint in its entirety.

• Legal Provisions Reviewed

Holding

• The complaint against Farmers Choice Kenya Limited is hereby dismissed in its entirety.
• The ODPC found that the respondent's use of the complainant's image met the threshold of lawful processing as prescribed under the Act, on the basis of a paid contractual engagement supported by documentary evidence.
• The respondent was found not to have violated the complainant's right to erasure, having demonstrated that it acted on the removal request.
• Parties have the right to appeal this determination to the High Court of Kenya within thirty (30) days.

Comment

This case is a useful counterpoint to the growing body of ODPC decisions finding against respondents in influencer image-rights disputes. It illustrates that a respondent who engages meaningfully with the complaints process — and can produce contemporaneous documentation of a paid engagement, consent form, and remedial action — stands a materially better chance of successfully defending a commercial use complaint. The decision also implicitly confirms that the ODPC applies a substantive, evidence-based inquiry into whether consent was obtained, rather than defaulting to a finding of violation where a commercial relationship existed. Practitioners advising brands should note the critical importance of clear, written consent forms at the outset of any paid promotional engagement.