FAITH WAVINYA vs. NATION MEDIA GROUP
1. Introduction
The case is in respect to the complainant, Faith Wavinya against Nation Media Group, a media house, on the publication of an Article titled “Young smokers ditch shisha, cigarettes for cigars. Are they aware of risks?” featuring her name, image and likeness after she had withdrawn her consent. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant was interviewed by the respondent for an Article on health risks associated with cigar smoking. The complainant alleged that the respondent published the Article on its website and social media sites after she had withdrawn her consent, and used her name, image and likeness to attract controversy and commercial advantage without her consent.
3. Analysis of Evidence
Complainant’s Position
- Adduced the infringing Article which featured her name, image and likeness
- Provided social media extracts showing 220 reactions, 63 comments and 2 reposts
- Submitted a demand letter dated 10th November 2023 requesting the Respondent to take down the Article
- Argued that the Article could have been published without her name, image and likeness for the alleged goal of public health education
Respondent’s Defense
- Objected to the ODPC’s jurisdiction on grounds that the Article does not fall within the definition of “data”
- Objected to jurisdiction on grounds that the publication falls within the exemptions under Sections 51(2)(b) and 52(1)(b) of the Act for journalism in the public interest
- Argued that the Complainant’s consent was obtained and in any event, consent was not required as the Article was published in the public interest
- Contended that the Respondent acted in compliance with its Editorial Policy Guidelines and Code of Ethics
- Denied that the Complainant withdrew her consent and argued that under Section 32(3), withdrawal does not affect the lawfulness of prior processing
4. Issues for Determination
- Whether ODPC has jurisdiction to handle the complaint
- Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Article contained the Complainant’s name, image and likeness, which constituted personal data as defined under the Act.
- The publication was in the public interest as it addressed health risks associated with cigar smoking.
- The Respondent was in compliance with its self-regulatory Code of Ethics (NMG Editorial Policy Guidelines).
- The NMG Code of Ethics provides that consent is not required where public interest is indisputably involved.
- The journalism exemption under Section 52(1)(b) was applicable.
Orders:
- The ODPC lacks jurisdiction to determine the complaint on account of the journalism exemption.
- The complaint is hereby dismissed.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Journalism Exemption Under Section 52(1)(b)
- Clarifies that the journalism exemption requires: (a) publication in the public interest; and (b) compliance with a self-regulatory code of ethics
- Establishes the parameters for media houses to rely on the exemption
Public Interest and Data Protection
- Reinforces that public interest can override the requirement for consent in journalistic publications
- Establishes that health and safety issues constitute legitimate public interest
Self-Regulatory Codes of Ethics
- Confirms that media houses with established codes of ethics can rely on the Section 52(1)(b) exemption
- Highlights the importance of having and adhering to internal editorial policies
Broader Impact: This determination establishes a balance between data protection rights and press freedom in Kenya’s media landscape. It affirms that journalism in the public interest, conducted in compliance with self-regulatory codes of ethics, may be exempt from certain data protection requirements.