PAUL OGOLA vs. SHALINA HEALTHCARE KENYA LIMITED & VIVID FEATURES LTD
1. Introduction
The case is in respect to the complainant, Paul Ogola against Shalina Healthcare Kenya Limited and Vivid Features Ltd, on the continued use of his image for online campaigns, billboards, posters, moving pictures, website advertisements and printed calendars after the contract period had ended. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant entered into a contract permitting use of his image for a six-month online campaign from 12th February 2022 to 12th August 2022. The complainant alleged that the 1st Respondent continued using his image after the contract ended on online campaigns, billboards, posters, moving pictures, website advertisements, and printed calendars without his consent, and used his image for purposes beyond what was agreed upon in the contract.
3. Analysis of Evidence
Complainant’s Position
- Adduced a copy of the agreement with Vivid Features Ltd which permitted use of his image for six months
- Attached recordings showing billboards bearing his image, social media pages, and printed calendars for 2023
- Provided his rate card showing his commercial rates for image use
- Stated that the 1st Respondent ignored efforts to negotiate a resolution
Respondents’ Defense
1st Respondent (Shalina Healthcare Kenya Limited):
- Denied being a party to the contract, claiming the Complainant contracted with Vivid Features Ltd
- Denied using the Complainant’s image on any platforms
- Claimed the Complainant did not produce any evidence showing its use of his image
2nd Respondent (Vivid Features Ltd):
- Admitted it is a production house hired by an agency to produce images and videos for Pharmasal, a product owned by the 1st Respondent
- Confirmed the agreement with the Complainant was for six months and for social media campaigns only
- Stated the agreement did not include use of images on billboards or calendars
- Confirmed upon expiry of the agreement, they never shared, used, or entered into any arrangement to use the Complainant’s images
- Indicated the 1st Respondent should be held liable for misleading this Office
4. Issues for Determination
- Whether there was an infringement of the Complainant’s rights under the Act
- Whether the Respondents fulfilled their 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 1st Respondent continued using the Complainant’s image after the contract period ended without his consent.
- The 1st Respondent used the Complainant’s image for purposes beyond what was agreed upon in the contract.
- The 2nd Respondent acted within the contractual limits and is not liable.
- The 1st Respondent is liable for infringement of the Complainant’s rights under the Act.
Orders:
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Compensation of KES 1,450,000 to the Complainant:
- Billboard: KES 500,000
- Calendar: KES 500,000
- Website/Social Media: KES 200,000
- Infringement of right to be informed: KES 250,000
- An Enforcement Notice is issued against the 1st Respondent.
- The complaint against the 2nd Respondent is dismissed.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Commercial Use of Images and Contractual Limits
- Clarifies that images obtained for specific purposes and limited durations cannot be used beyond those limits without express consent
- Establishes that commercial use outside agreed terms constitutes a violation of the Act
Principal-Agent Relationships and Data Protection
- Holds that the principal is liable for the actions of their agents in processing personal data
- Media houses and production companies are not liable if they act within contractual limits
Broader Impact: This determination addresses a widespread challenge in Kenya’s advertising and marketing industry, where brands continue to use influencers’ images long after contracts expire and for purposes beyond the agreed terms. It establishes that companies cannot rely on ignorance of contractual arrangements with third-party agencies to avoid liability.