CYRUS MWANIKI NDUNGU VERSUS MOJA EXPRESSWAY COMPANY
1. Introduction
The case is in respect to the complainant, Cyrus Mwaniki Ndungu against Moja Expressway Company, on the continued use of his image for commercial purposes almost one year after he left their organization without his consent. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant was employed by the Respondent from 5th July 2022 to 17th November 2022. The complainant alleged that the Respondent posted a promotional video containing his image without his consent almost one year after he resigned, used his image to promote the On-board Unit (OBU), ignored his demand letter, and only deleted the posts after receiving the demand letter.
3. Analysis of Evidence
Complainant’s Position
- Employed from 5th July 2022 to 17th November 2022 when he resigned
- On or about 5th October 2023, the Respondent posted a video containing his image without his consent
- Issued a demand letter on 7th December 2023, and the Respondent deleted the posts on 10th December 2023
Respondent’s Defense
- Relied on Section 30(1)(b) of the Act, stating that the employment contract was the lawful basis for processing personal data
- Claimed the Complainant orally consented to make the video, which was operational in nature, not promotional
- Presented a consent form template which the Complainant never returned
- Upon withdrawal of oral consent, they immediately deleted the video
- Relied on the Employment Act and Limitation of Actions Act for retention of employee records for six years
4. Issues for Determination
- Whether the Respondent obtained express consent from the Complainant to further process his personal data
- Whether there was a violation of the Complainant’s rights 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 posted a promotional video containing the Complainant’s image almost one year after he resigned.
- The Respondent did not obtain express consent from the Complainant for the commercial use of his image after employment ended.
- The video was used to promote the purchase and usage of the On-board Unit (OBU), constituting commercial use.
- The Respondent is liable for use of the Complainant’s personal data without express consent.
Orders:
- Compensation of KES 500,000 to the Complainant.
- The Respondent is directed to ensure all employees are notified of data collection and to establish a lawful basis and record of consent for commercial use of personal data.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Employment and Post-Employment Data Use
- Clarifies that consent given during employment does not extend beyond the employment relationship
- Employers must obtain fresh consent from former employees before using their images after termination
Commercial Use of Employee Images
- Establishes that videos explaining how to use products for customers constitute commercial use under Section 37
- Employers must obtain express consent for commercial use of employee images
Broader Impact: This determination addresses a common challenge across Africa’s employment sector, where employers continue to use former employees’ images for promotional or operational purposes after they leave. It establishes that employment contracts do not grant perpetual consent for image use, setting a critical standard for employers across the continent.