HILDA MWANGI SUING AS LEGAL GUARDIAN OF MNN (MINOR) VERSUS EDGAR OBARE
1. Introduction
The case is in respect to the complainant, Hilda Mwangi, suing as legal guardian of a minor (MNN), against Edgar Obare, a social media influencer who operates a Telegram community channel known as BNN, on the publication of the minor’s image for commercial purposes without consent. This action offends the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondent published a picture of the minor on his Telegram channel (BNN), which boasts a substantial subscriber base of 95,000 people with a monthly subscription fee. The complainant alleged that the Respondent used the minor’s image for commercial gain without consent, refused to take down the image when requested, and the publication exposed the minor to ridicule and stripped her of her dignity.
3. Analysis of Evidence
Complainant’s Position
- Received news in October 2023 that the Respondent had published a picture of the minor on his Telegram channel
- Contacted the Respondent and instructed him to take down the minor’s photo but he refused
- The published picture was obtained from her Instagram account without consent
- The minor’s image continues to circulate on the Telegram channel
- The father of the minor did not consent to the publication
Respondent’s Defense
- Argued the complaint was invalid for lack of signature
- Claimed the story was not for financial gain but to help the Complainant make the baby daddy recognize their daughter
- Alleged the Complainant indirectly sent her friend to give him the story
- Stated the minor’s face is blurred and not identifiable
- Claimed the story was published almost a year before the complaint and the Complainant is attempting an undeserved cash grab
- Relied on Sections 25(e), 30, 45, and 52 of the Act in processing the personal data
4. Issues for Determination
- Whether the complaint is properly lodged with this Office
- Whether the minor’s personal data was lawfully processed
- Whether there was a violation of the minor’s rights under the Act
- Whether the Complainant is entitled to any remedy under the Act
5. Final Determination
The Data Commissioner found:
- The minor’s image was blurred and not identifiable, therefore no violation of rights under the Act was established.
- The complaint is hereby dismissed.
Orders:
- No compensation awarded as the complaint was dismissed.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Publicly Available Data and Minors
- Clarifies that data deliberately made public on social media can be collected under Section 28(2)(b)
- For minors, deidentification (masking/blurring) may satisfy data protection requirements
Commercial Use and Consent
- Establishes that for commercial use under Section 37, there must be evidence of advancing a commercial transaction
- Not all use of personal data on monetized platforms constitutes commercial use
Broader Impact: Across Africa, the rise of digital journalism and content creation has created tension between data protection rights and freedom of expression. This determination clarifies that deidentification may satisfy data protection requirements, while emphasizing that the journalistic exemption requires proper recognition by media councils.