| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Section 30, 31, 32, 37(1), 40(1)(b), 65, of the Data Protection Act, 2019; Regulation 12(3), 14, 37(1), 14(2)(e) of the Data Protection (General) Regulations, 2021; Regulation 12(3) of the Data Protection (General) Regulations, 2021; Article 31 of the Constitution of Kenya |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 17 May 2024 |
| Decided: | 14 August 2024 |
| Published: | Yes |
| Fine: | KES.750,000 |
| Parties: | Kelvin Nyambane Angweny vs. Elite Power Craft Limited t/a Amaron Batteries Limited |
| Case No.: | 679 of 2024 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
A former employee of Elite Power Craft Limited (Amaron Batteries Kenya) filed a complaint, claiming the company used his photos without consent for Facebook ads. The company denied wrongdoing, stating the images were used with the employee's consent. However, the Office of the Data Protection Commissioner (ODPC) found the company violated the employee's right to erasure under the Data Protection Act, 2019. The ODPC ordered the removal of the images and awarded the employee KES 750,000 in compensation.
The Complainant alleged that the Respondent unlawfully used his photographs while he was their employee to advertise its products on its Facebook account without his consent. The Complainant provided screenshots of the subject photos as proof.
The Complainant served the Respondent with a demand letter from his advocates to pull down the photos but the Respondent refused.
The Complainant averred that the posting of his photographs on the Respondent’s Facebook page is a violation of his rights under the Data Protection Act, 2019.
The Respondent stated that the Complainant was indeed their employee when the images of the team at Elite Power Craft were posted. The photos were not for economic gain to the company but simply to show the team that worked for the company.
The Respondent stated that, contrary to the allegations advanced by the Complainant, the photos were posted with his full knowledge and consent and he even engaged other social media users on the comment section of the said photos. Further, the pictures were posted way back in the year 2021 and the Complainant never raised any issues during this time.
Additionally, the Respondent stated that the Complainant is acting in bad faith noting that at the time he left employment, he had been reported at the Industrial Area Police Station for stealing property worth KES 588,000 vide O.B No. 30/12/10/2023.
However, the Office notes that the evidence with regards to the said complaint to the police was not submitted.
The ODPC found that the Respondent's Facebook page by the name 'Amaron Batteries Kenya' which has 4,300 followers. Investigations conducted by the Office revealed that the Complainant’s images were available and accessible at the Respondent’s Facebook page.
The photos were still available for viewing as at the date of determination.
Legal provisions reviewed in the case
The ODPC examined several sections of the Kenyan Data Protection Act, 2019 and the Data Protection (General) Regulations, 2021 in this case.