CAROLINE WANJIRU KANGETHE VERSUS CIRCUS 254 CO/SARAKASI TRUST
1. Introduction
The dispute in this matter concerns Caroline Wanjiru Kangethe’s complaint against Circus 254 Co/Sarakasi Trust on the use of her image on its social media platforms for promotional purposes without her express consent. This action is in contravention of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Complainant attended an event hosted by the Respondent, and her photo was posted on its Instagram and Facebook pages on 23rd April 2024 and 3rd May 2024 without her prior knowledge or consent. The platforms are used for advertising, marketing, and promotional purposes. Upon serving a demand letter, the Respondent removed the photos but disregarded the other demands.
3. Analysis of Evidence
Complainant’s Position
- Attended an event hosted by the Respondent
- On 23rd April 2024 and 3rd May 2024, discovered that the Respondent had posted a photo of her on its Instagram and Facebook social platforms without her consent
- The platforms are used for advertising, marketing, and promotional purposes
- Served a demand letter requesting immediate removal, admission of liability, and compensation
- While the photos were removed, the other demands were disregarded
Respondent’s Defense
- Claimed it took reasonable precautions to notify attendees that photography would occur in designated “Photo Zone” areas
- Argued that by entering the premises, the Complainant implicitly consented to be photographed and to the use of recorded media
- Asserted that the event was held in a public venue where attendees could not have had a reasonable expectation of privacy
- Contended that the photographs primarily focused on the performance, with patrons appearing incidentally
- Removed the photographs immediately upon receiving the complaint as a sign of good faith
4. Issues for Determination
- Whether the Respondent obtained the Complainant’s consent as required by law
- Whether there was a violation of the Complainant’s right to erasure
- Whether the Complainant is entitled to remedies under the Act
5. Final Determination
The Data Commissioner found:
- The Respondent used the Complainant’s image on social media for promotional purposes without obtaining express consent.
- “Photo Zone” disclaimers do not constitute valid consent under the Act.
- Attending a public event does not automatically waive data protection rights.
- 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
Consent and “Photo Zone” Disclaimers
- Clarifies that “Photo Zone” warnings and disclaimers do not constitute valid consent under the Act
- Consent must be express, unequivocal, free, specific, and informed
Commercial Use of Images
- Establishes that posting event photos on social media for promotional purposes constitutes commercial use
- Express consent is required for such use
Broader Impact: This determination dismantles the assumption that “Photo Zone” disclaimers or mere attendance at events constitute consent for commercial photography. It affirms that express, informed consent is non-negotiable, setting a critical standard for event organizers across Africa who rely on incidental attendee images for marketing.