MOSES ATELA OTIENDE (LEGAL GUARDIAN OF AEA MINOR) VERSUS DMI EDUCATION SERVICES LTD OPERATING AS ST. JOSEPH INTERNATIONAL SCIENCE SCHOOL
1. Introduction
This matter concerns Moses Atela Otiende’s complaint against DMI Education Services Ltd operating as St. Joseph International Science School on the use of a minor’s image for advertisement on a mini billboard without his consent. This action is in breach of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondent, having taken management of the school in December 2022, embarked on an advertisement campaign and used the minor’s image on a mini billboard to showcase new school uniforms without the consent of the Complainant. The minor is enrolled in a different school and is not a student at the Respondent’s school.
3. Analysis of Evidence
Complainant’s Position
- In March 2024, while using public transport, the Complainant’s attention was drawn to the mini billboard by the minor who pointed out it was him in the image
- The minor indicated they were approached by the Respondent and given uniforms to wear for pictures
- The minor is enrolled in a different school and is not a student at the Respondent’s school
- The Complainant does not stay at the Respondent’s premises but at an adjacent estate
- Adduced the minor’s birth certificate, photographs, and evidence of residence
Respondent’s Defense
- Claimed the Complainant was the Respondent’s teacher and was in charge of organizing the event
- Contended the Complainant offered to have his son wear the school uniform and take photographs
- Argued the Complainant had on several occasions offered his son to participate in school activities
- Claimed the Complainant knew of the banner for two years before his termination
- Stated the banner and all images have been pulled down
4. Issues for Determination
- Whether the Respondent obtained express consent from the Complainant to process the minor’s personal data for commercial purposes
- Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Respondent used the minor’s image on a billboard for advertisement without obtaining parental consent.
- Implied consent through actions is insufficient to satisfy the legal standard of express consent.
- The minor is not a student at the Respondent’s school, yet his image was used for commercial purposes.
- The Respondent is liable for violation of the minor’s rights under the Act.
Orders:
- Compensation of Ksh 700,000 to the Complainant.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Minors’ Data Protection and Parental Consent
- Reinforces the stringent requirements for processing children’s data, requiring parental consent
- Establishes that implied consent through actions is insufficient under the Act
Commercial Use of Minors’ Images
- Clarifies that using minors’ images on billboards for school promotion constitutes commercial use
- Schools must obtain express parental consent before using any student’s image for advertising
Broader Impact: Schools across Africa must obtain express parental consent before using any child’s image for commercial purposes. This determination establishes that schools cannot use images of non-students for marketing without proper consent, setting a critical standard for protecting minors’ privacy rights.