Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

Joyce Muema complained that Think Twice Kenya unlawfully used her minor daughter's images for commercial marketing across social media platforms since May 2024, without parental consent,. The Respondent failed to reply to the complaint. The ODPC found the company liable for unauthorized processing of the child's data and ordered KES 700,000 compensation.

Facts

The Complainant, Joyce Ndungwa Muema, alleged that the Respondent, Think Twice Kenya, unlawfully collected and processed the image of her minor daughter for marketing, branding, and advertising purposes. Specifically, she asserted that the Respondent used the child's image for commercial purposes, including marketing, advertising, and promotional activities, to further its business interests starting since May 2024.

The Complainant contended that this use was unauthorized, unjust enrichment, and unlawful, as the minor's images were collected and further processed without her consent or any other lawful basis. As evidence, the Complainant furnished the Office with screenshots and several links to various social media platforms displaying the minor's images, confirming they had been used across all its social media marketing platforms for the past year. The Complainant sought various remedies, including that the Respondent cease all use of the images, permanently take them down from all platforms, and provide compensation for the violation of the minor's rights.

The Respondent was served with the notification of the complaint via email and physical service in June 2025. Despite the prompt service, the Respondent failed, refused, and/or neglected to respond to the notification of complaint. Consequently, the allegations made by the Complainant remained unchallenged, and the Respondent remained unresponsive at all material times.

The ODPC determined whether the Respondent obtained the required consent for commercial use of the minor’s image and whether the minor was entitled to remedies.

1. Consent and Unlawful Processing: It was undisputed that the Respondent used the minor’s images on various social media platforms to advertise, promote, and market its events, demonstrating that the images were used to advance the Respondent's commercial and economic interests. Such commercial use requires the data controller to have sought and obtained express consent from the data subject. For personal data relating to a child, consent must be given by the child's parent or guardian. The law places the burden of proof for establishing consent on the data controller. Since the Respondent failed to furnish the Office with any response or evidence, the ODPC concluded that the Respondent did not obtain the requisite express consent required by the Act to use the Complainant's minor image for commercial purposes. The ODPC also noted that upon investigation, the minor's images were still actively in use on TikTok and Facebook platforms.
2. Entitlement to Remedies: Having found that the Respondent processed the Complainant's minor images for commercial purposes without the requisite consent, the ODPC concluded there was a violation of the Act. A person who suffers damage due to a contravention of the Act is entitled to compensation for that damage, which includes distress.

• Evaluation of Applicable Laws

Holding

In the final determination the Data Commissioner made the following orders:

1. The Respondent (Think Twice Kenya) was found liable for the use of the minor's images for commercial purposes without express consent.