ANN WANJIRU IRUNGU vs. LINTONS ACADEMY
1. Introduction
The case is in respect to the complainant, Ann Wanjiru Irungu against Lintons Academy, a beauty college, on the use of her image on its social media platforms without her consent. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant was photographed and the photographer uploaded the image on free applications without her consent. The complainant alleged that the respondent used her image on its social media platforms without her consent for commercial purposes to market their beauty college, and failed to take down her image despite indicating they would do so.
3. Analysis of Evidence
Complainant’s Position
- Provided screenshots of posts put up by the Respondent that contained her image
- Provided screenshots of conversations where she requested the Respondent to pull down her image
- Stated that the photographer who took the photo uploaded it on free applications without her consent and took it down upon her request
Respondent’s Defense
- Admitted obtaining the image from a free stock image site (Pexels) acting in good faith and in accordance with the site’s Terms of Use
- Stated that they did not know the image was uploaded without the Complainant’s consent
- Claimed they pulled down the images upon receiving the notification of complaint, but two posts were inadvertently left due to a new staff member
- Indicated they will train staff on data protection, reduce reliance on free stock image sites, and shift to formal contractual relationships with models
- Attached Pexels Terms of Use showing that users must consider whether they require consent before using content, especially for commercial purposes
4. Issues for Determination
- Whether there was an infringement 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 Complainant was not informed that her image would be used on the Respondent’s social media page for advertising purposes.
- The Complainant requested erasure on 20th December 2023, yet a post containing her image remained on the Respondent’s page as at 12th February 2024.
- The Respondent did not prove that it had any basis for indirect collection of the Complainant’s personal data from free stock sites.
- The Respondent used the Complainant’s image for commercial purposes without obtaining express consent.
Orders:
- Compensation of Ksh 750,000 to the Complainant.
- An Enforcement Notice is issued against the Respondent.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Use of Free Stock Images and Consent
- Clarifies that downloading images from free stock sites does not absolve organizations of the obligation to obtain consent from data subjects
- Establishes that businesses must verify whether consent was obtained before using images, especially for commercial purposes
Right to Object and Erasure
- Confirms that data controllers must act without undue delay when a data subject requests erasure
- Failure to act promptly constitutes a continuous violation of privacy rights
Broader Impact: This determination addresses the widespread practice of businesses downloading images from free stock sites without verifying consent. It establishes that reliance on third-party platforms does not shield organizations from data protection obligations, setting a critical standard for businesses to ensure genuine consent before using any image for commercial purposes.