TERRENCE ADRIANO vs. SWARA ACACIA LODGE LIMITED
1. Introduction
This case involves a complaint by Terrence Adriano against Swara Acacia Lodge Limited alleging that the Respondent used his image for commercial purposes on its social media page without his consent. This action is contrary to the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The Complainant alleged that the Respondent used his images for advertising on its social media page without his consent, continued to use his images to create promotional materials despite him having left employment, created a misleading impression of his current involvement with the Respondent, and damaged his professional reputation and self-esteem.
3. Analysis of Evidence
Complainant’s Position
- Provided screenshots of the subject images allegedly posted on the Respondent’s Facebook page
- Provided screenshots of his WhatsApp conversations with the Respondent, where he had requested the Respondent to pull down the subject images from its page
- Stated that he played a pivotal role in representing the Respondent’s brand while employed, but his images continue to be used despite having left
- Stated that clients who were familiar with his association with the Respondent are questioning his integrity and commitment
Respondent’s Defense
- Confirmed the Complainant was a former Sales Executive employed on or around 1st May 2021
- Stated that the Complainant was asked if he would like to participate in his pictures being taken and uploaded on the Respondent’s Facebook page, and he willingly accepted
- Argued that the complaint was maliciously filed as the Complainant had not communicated his desire for the pictures to be taken down prior to filing the complaint
- Stated that there has been no gain made from the said pictures
- Confirmed that upon receiving the notification of complaint, it immediately removed pictures associated with the Complainant from its Facebook page and is undertaking an audit of all historical photos
4. Issues for Determination
- Whether there was an infringement of the Complainant’s rights under the Act
- Whether the Respondent fulfilled its obligations under the Act
- Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Complainant exercised his right to object and request erasure by writing to the Respondent demanding it to stop using his images.
- The Respondent failed to act upon the Complainant’s request until notified of the complaint by this Office.
- The Respondent discharged the burden of proving initial consent but failed to act upon withdrawal of consent.
- The Respondent did not prove any overriding legitimate interest to continue using the Complainant’s image.
- The Respondent failed to fulfil its obligations by not erasing all of the Complainant’s images when consent was withdrawn.
Orders:
- The Respondent is hereby ordered to erase the Complainant’s image from its Facebook page within seven (7) days.
- Compensation of Ksh 250,000 to the Complainant.
- The Respondent is directed to put in place clear consent mechanisms that provide for withdrawal of consent.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Former Employee Images and Consent
- Clarifies that consent given during employment does not extend beyond the employment relationship
- Establishes that former employees have the right to withdraw consent and request erasure of their images
Right to Erasure and Withdrawal of Consent
- Reinforces the obligation of data controllers to act without undue delay when a data subject withdraws consent
- Failure to act promptly constitutes a violation of the right of erasure
Broader Impact: This determination addresses the widespread practice of employers continuing to use former employees’ images for marketing after they leave employment. It establishes that consent is not perpetual and organizations must act promptly when consent is withdrawn, setting a critical standard for employers across Africa.