LEROY KABOY & ROSALINDA KABOI (LEGAL GUARDIANS OF BK MINOR) vs. WADI DEGLA CLUB KENYA
1. Introduction
The case is in respect to the complainants, Leroy Kaboy and Rosalinda Kaboi, legal guardians of a minor (BK), against Wadi Degla Club Kenya, on the use of the minor’s image for marketing and commercial purposes on its social media accounts without their consent. This action contravenes the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondent posted a full-body picture of the minor playing basketball on its X (formerly Twitter) and Facebook accounts and used the image in sponsored posts on Instagram to market and promote the club without seeking consent from the minor’s parents or guardians, and refused to give the 2nd Complainant audience when she visited the Respondent’s office to settle the matter amicably.
3. Analysis of Evidence
Complainants’ Position
- In October 2023, the Respondent placed an advertisement on X and Facebook including a full-body picture of the minor playing basketball
- Neither the minor nor his guardians had consented to his picture being used
- The 2nd Complainant visited the Respondent’s office on 10th December 2023 to settle the matter amicably but was refused audience
- Produced the impugned social media posts and the minor’s membership card as evidence
Respondent’s Defense
- Argued that the image was not specifically framed on the minor’s essential biometrics but was a general depiction of a person enjoying club facilities
- Maintained that when the oral complaint was initially made, the posts were pulled down immediately
- Relied on journalistic and legitimate interests under Section 30(b) to promote its business
- Conceded that it did not obtain the Complainants’ consent for obtaining and processing the minor’s data
- Contended that the harm and damage suffered was minimal
4. Issues for Determination
- Whether the minor’s image constituted personal data as per the Act
- Whether the Respondent obtained express consent from the Complainants to process the minor’s personal data for commercial purposes
- Whether there was a violation of the minor’s rights under the Act
- Whether the Complainants are entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Respondent posted the minor’s image on social media for commercial purposes without obtaining parental consent.
- The Respondent’s reliance on legitimate interest does not justify processing a minor’s data without consent.
- The Respondent is liable for violation of the minor’s rights under the Act.
Orders:
- Compensation of Ksh 700,000 to the Complainants.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Minors’ Data Protection
- Reinforces the stringent requirements under Section 33 for processing children’s data, requiring parental consent and protection of the child’s best interests
- Establishes that even general images of minors constitute personal data and require consent
Commercial Use of Minors’ Images
- Clarifies that using minors’ images in sponsored social media posts for club promotion constitutes commercial use
- Businesses must obtain parental consent before using minors’ images for commercial gain
Broader Impact: This determination addresses a critical gap in Africa’s data protection framework regarding the protection of minors’ data in commercial marketing. It establishes that businesses cannot use children’s images for promotional purposes without explicit parental consent, setting a standard for protecting minors’ privacy rights across the continent.