ROBINAH NYAMBUSI vs. PLATINUM CREDIT LIMITED
1. Introduction
Robinah Nyambusi complains that Platinum Credit Limited used her image to market its products in a campaign dubbed ‘Sukuma Wiki February 2023’ without her consent, despite having left the company in October 2022, violating the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Complainant alleged that the Respondent used her image to market its products in a campaign dubbed ‘Sukuma Wiki February 2023’ without her consent, despite her having left the company in October 2022, thereby violating her right to privacy under Article 31 of the Constitution and the Data Protection Act, 2019.
3. Analysis of Evidence
Complainant’s Position
- Attached a flyer that she alleged contained her image and provided a recent photo as proof
- Stated that she was an employee of the Respondent and left in October 2022, yet her image was used in March 2023
Respondent’s Defense
- Confirmed the Complainant was a former sales officer who exited in October 2022
- Admitted that the Complainant’s image was taken during the course of her employment and thereafter, inadvertently used in their internal communication to their sales officers
- Stated that the image has never been used for marketing and/or commercial purposes and no commercial value was derived
- Indicated that they have permanently deleted her image from its database and put in place a Media Consent & Release Form to be executed by staff going forward
4. Issues for Determination
- Whether prior consent was obtained by the Respondent before using the Complainant’s image
- Whether the Complainant’s rights were infringed
- Whether the Complainant is entitled to the remedy sought for the alleged infringement of her privacy rights
5. Final Determination
The Data Commissioner found:
- No express consent was obtained for the use of the Complainant’s image.
- The employment contract contained no clause permitting commercial use of her image.
- The flyer was shared internally and not externally, so the commercial purposes threshold was not met.
- The Respondent took corrective action by deleting the image and implementing consent forms.
- The prayer for compensation was denied as commercial use was not proven.
Orders:
- The complaint is hereby dismissed.
- The Respondent is directed to have all its current employees sign the Media Consent & Release Form.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Employee Consent and Data Use
- Clarifies that employment status does not grant automatic consent for use of employee images for marketing purposes
Internal vs. Commercial Use
- Establishes a distinction between internal communications and commercial marketing
- Internal use may not meet the “commercial purposes” threshold unless external circulation is proven
Broader Impact: This determination highlights the need for employers to embed data protection into HR practices through clear consent mechanisms for employee images. Employment relationships do not grant automatic rights to use personal data for marketing. Organizations must implement formal consent frameworks to avoid regulatory scrutiny and reputational damage.