ALICE KAMANDE VERSUS BONFACE MWANGI WAHOME T/A SIR BONNIE BRANDS
1. Introduction
This complaint concerns Alice Kamande’s grievance against Bonface Mwangi Wahome t/a Sir Bonnie Brands on the use of her image to advertise and promote a fashion design course on its Facebook page without obtaining her consent. This action is in breach of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Complainant, a well-known artist and public figure, discovered that the Respondent used her image to promote a fashion design course on its Facebook page without her consent. The Respondent claimed the image was “free for use from the Internet” and did not belong to her. Upon being confronted, the Respondent pulled down the image but never admitted liability nor granted compensation.
3. Analysis of Evidence
Complainant’s Position
- On or about 17th August 2024, she learned that the Respondent used her image to advertise and promote a fashion design course on Facebook
- She contacted the Respondent to have the image pulled down, for admission of liability, and for compensation
- The Respondent claimed the image was free for use from the Internet and did not belong to her
- The image was later pulled down but the Respondent never admitted liability nor granted compensation
- Provided certified copies of the Respondent’s registration certificate, screenshots of the Facebook page, and her image as evidence
Respondent’s Defense
- The Respondent was non-responsive and did not submit a response to the Notification of Complaint
- Regulation 11(2) of the Enforcement Regulations provides that where a respondent does not take any action, the Data Commissioner shall proceed to determine the complaint
- The allegations levelled against the Respondent remain uncontroverted
4. Issues for Determination
- Whether there was a violation of the Complainant’s rights under the Act
- Whether the Respondent fulfilled its 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 Respondent used the Complainant’s image for commercial advertising without obtaining her consent.
- The Respondent failed to inform the Complainant of the use of her image as required under the Act.
- Claims that images are “free for use from the Internet” do not absolve data controllers of liability.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 750,000 to the Complainant.
- The Respondent is directed to stop publishing the Complainant’s image without prior consent.
- The Respondent is directed to put in place clear consent mechanisms and seek prior consent before publishing images on social media.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Commercial Use of Influencer Images
- Clarifies that businesses cannot use images of public figures or influencers for commercial gain without express consent
- Claims that images are “free for use from the Internet” do not absolve data controllers of liability
Right to be Informed and Consent
- Reinforces the obligation to inform data subjects of the use of their personal data
- Data controllers must obtain express consent for commercial use
Broader Impact: This determination establishes that the commercial value of an individual’s image and persona is protected under the Act, setting a critical standard for the protection of personality rights across Africa’s fashion and creative industries.