FATUMA HADI ALI SUING ON BEHALF OF J.A.A (MINOR) VERSUS NOVA PIONEER KENYA LIMITED
1. Introduction
The case is in respect to the complainant, Fatuma Hadi Ali, suing on behalf of a minor (J.A.A), against Nova Pioneer Kenya Limited, on the use of the minor’s image for commercial purposes on billboards and on the Respondent’s website without obtaining consent. This action is inconsistent with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The minor enrolled at the Respondent’s school in 2019 but transferred in 2021. The complainant alleged that the Respondent used the minor’s image on billboards and its website for commercial advertising without her consent, and the publication caused the minor humiliation and embarrassment by falsely suggesting she remained a student at the school.
3. Analysis of Evidence
Complainant’s Position
- Enrolled the minor at the Respondent’s school in 2019, but transferred her to another school in 2021
- On 15th May 2022, discovered the minor’s image on a billboard at Makutano town
- Later discovered a similar billboard in Eldoret town and the minor’s image on the Respondent’s website
- Issued a demand letter dated 18th May 2022, and the Respondent pulled down the images
Respondent’s Defense
- Claimed the Complainant had expressly consented twice to the use of the minor’s image in promotional material
- Stated it pulled down the two billboards and the image on its website to facilitate discussion
- Made the Complainant an offer to pay for the use of the image at market rates, but the Complainant did not respond
- No further response or substantive response was provided to the ODPC
4. Issues for Determination
- Whether the Respondent obtained parental consent from the Complainant to process the personal data of the Minor
- Whether there was an infringement of the Minor’s rights under the Act
- Whether the Respondent fulfilled its obligations under the Act
- Whether the Minor is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Respondent used the minor’s image on billboards and its website without obtaining parental consent.
- The Respondent failed to inform the Complainant of the intention to use the minor’s image for commercial advertising.
- The Respondent continued using the minor’s image after she had transferred to another school.
- The Respondent failed to act on the Complainant’s request to remove the images.
- The Respondent is liable for violation of the minor’s rights under the Act.
Orders:
- Compensation of Ksh 950,000 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
Minors’ Data Protection and Parental Consent
- Reinforces the stringent requirements for processing children’s data, requiring parental consent
- Establishes that schools cannot use former students’ images for marketing without parental consent
Commercial Use of Minors’ Images
- Establishes that using minors’ images on billboards and websites for school promotion constitutes commercial use
- Parents must give express consent before such use
Broader Impact: Across Africa, schools must obtain express parental consent before using any student’s image for commercial purposes. This determination establishes that schools cannot assume consent from enrollment and must act promptly on erasure requests, setting a critical standard for protecting minors’ privacy in the education sector.