| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 25, 26(a), 28(1)(2), 30(1)(b), 32(1), 36, 40(1)(b) of the Data Protection Act, 2019; Article 8(1), 14(1)(2)(3)(e) of the Data Protection (General) Regulations, 2021 |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 6 March 2024 |
| Decided: | 3 June 2024 |
| Published: | Yes |
| Fine: | KES.1,000,000/- |
| Parties: | Esther Kanza Mbuvu vs. Grain Industries Ltd |
| Case No.: | 387 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Grain Industries Ltd was fined KES. 1,000,000/- for violating the Complainant's right to erasure, using her images for commercial purposes without her consent and failing to notify her of the use of her images when it relied on the Complainant's daughter's consent to process them for a marketing campaign.
Esther K Mbuvu (the “Complainant”) alleged that Grain Industries Ltd (the “Respondent”) used her image to promote its products without her consent.
The Respondent, a grain miller and maker of Ajab Flour produced various promotional messages dubbed Tunashukuru mama wa Ajabu featuring the Complainant's images and used them in its Utube, social media and Billboards without her consent.
The Complainant saw 3 promotional Billboards on the streets of Mombasa town and later found more promotional material on the Respondent’s Utube page. The Complainant avers that she never consented to the use of her images in the manner depicted or at all and the Respondent refused to take down the same even when prompted to do so through a formal demand.
The Respondent averred that it held a national campaign to celebrate mothers and invited willing participants to submit their photos for use in the same subject to the campaign terms and conditions. This campaign was managed by their agent, Brainwave Communication Agency.
The images in question was provided by the Complainant's daughter who took part in the campaign. The Respondent averred that it assumed that the Complainant had agreed to participate in the promotion.
Notwithstanding the above, the Respondent also averred that they were not given adequate time to comply with the Complainant’s request to remove the offending images prior to the filing of the complaint with the ODPC. The images had since been pulled down.
The ODPC confirmed that the Billboards had been pulled down.
The ODPC found that: