Contents

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

Summary

The proprietor of Casa Vera Lounge, a restaurant and lounge was fined Kes. 1,850,000/- for infringing on the rights of its customer (the ‘Complainant’) to privacy when it published the Complainant's photo on its social media without her consent.

Facts

The Complainant, Perpetual Wanjiku, initiated a complaint against Casa Vera Lounge (the Respondent) on 14th April 2023. Her core complaint was that her image was captured and featured on the Respondent's social media pages without her authorisation.

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Link to Appeal | Okaja Limited t/a Casa Vera Lounge vs. Office of the Data Protection Commissioner - Civil Appeal E1117 of 2023

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The Complainant stated her image was allegedly circulating widely on social media platforms, including WhatsApp, Instagram, and Facebook, accompanied by a caption stating "About last night with pskratch kenya & giftthesimpleg.".

She did not authorise the Respondent to use her image, particularly for commercial advertisement by the entertainment joint.

She considered this an invasion of her privacy and a breach of her right to privacy.

The Respondent allegedly did not provide an apology, despite a demand letter being sent on 16th October 2022, which the Respondent reportedly neglected.

She supported her complaint with an affidavit, a copy of the complaint, the demand letter, her Identity Card, and an image to confirm her likeness.

The Complainant sought several remedies, including:

• A declaration that the Respondent's actions breached her right to privacy under Article 31 of the Constitution.
• Compensation for damages to her as a data subject by the Respondent. She prayed for Kshs. 5,000,000 or any other amount deemed appropriate, considering the exposure of her image, commercial exploitation, and mental anguish.
• A recommendation for prosecution.
• Issuance of an enforcement notice to the Respondent.

She cited several similar cases as precedent for compensation for breach of privacy.

The Respondent, Casa Vera Lounge, provided its response to the notification of complaint on 9th July 2023. They claimed to safeguard their clients' privacy and had a conspicuous privacy notice (disclaimer) displayed on a large board at the entrance of their premises. The notice stated: "BY ENTERING THIS PREMISE, YOU WAIVE AND RELEASE ANY CLAIMS YOU MAY HAVE RELATED TO THE USE OF RECORDED MEDIA OF YOU AT THE EVENT, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO INSPECT OR APPROVE THE PHOTO, VIDEO OR AUDIO RECORDING OF YOU. ANY CLAIMS FOR INVASION OF PRIVACY, VIOLATION OF THE RIGHT OF PUBLICITY, DEFAMATION, AND COPYRIGHT INFRINGEMENT OR FOR ANY FEES FOR USE OF SUCH RECORDED MEDIA.".