ALFRED NTHALE NDUTA (AKA ITSYABA) VERSUS SAVANNAH BRANDS COMPANY LTD T/A AFRICAN ORIGINALS & KENYAN ORIGINALS
1. Introduction
This complaint concerns Alfred Nthale Nduta’s grievance against Savannah Brands Company Ltd t/a African Originals & Kenyan Originals on the commercial use of his image on social media platforms without his consent, in breach of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondent obtained the Complainant’s photographs from social media without consent and used them for product advertising, including editing one to promote their World Beverage Innovation Awards 2020 finalist status, thereby using his image for commercial gain.
3. Analysis of Evidence
Complainant’s Position
- On various dates in 2020 and 2022, the Respondent obtained his photographs from his and his photographer’s Instagram pages without consent
- The Respondent used the photographs for advertisement of their products on their social media platforms
- The Respondent edited one photo to advertise they were finalists for the World Beverage Innovation Awards 2020
- Adduced a demand letter, images under certificate of electronic evidence, his national ID, and the impugned social media pages
Respondent’s Defense
- Claimed the Complainant posted a photo of himself holding a KO drink and tagged them without their consent
- Stated they do not know the Complainant and have never engaged his services
- Contended the Complainant used their brand without authority, infringing on their trademark
- Alleged the Complainant masqueraded as their brand ambassador for personal gain
- Raised a counterclaim on trademark infringement (which the ODPC lacks jurisdiction over)
4. Issues for Determination
- Whether the Complainant’s personal data was lawfully processed
- Whether the Complainant is entitled to any remedy under the Act
5. Final Determination
The Data Commissioner found:
- The Respondent used the Complainant’s images for commercial advertising without obtaining his express consent.
- The Respondent repurposed publicly available images for commercial gain without consent.
- The Respondent’s counterclaim on trademark infringement falls outside the ODPC’s mandate.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 500,000 to the Complainant.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Public Domain Data and Commercial Use
- Clarifies that while data deliberately made public can be collected without consent, subsequent commercial use requires express consent
- Reposting an image and using it to showcase awards constitutes commercial use
Data Controller Status
- Holds that organizations become data controllers when they repurpose publicly available data for commercial gain
- Posting an image on a business account establishes data controller status
Broader Impact: This ruling establishes important guardrails for social media marketing across Africa. Organizations cannot use individuals’ images for commercial gain without express consent, even if the image was originally posted in the public domain.