FERDINAND OMANYALA OMURWA VERSUS MULTICHOICE KENYA LTD & NATIONAL OLYMPICS COMMITTEE OF KENYA
1. Introduction
The dispute in this matter arises from Ferdinand Omanyala Omurwa’s complaint against MultiChoice Kenya Ltd and the National Olympics Committee of Kenya on the commercial use of his image to market the Paris 2024 Olympics without his consent. This action is in contravention of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
MultiChoice Kenya entered into a Collaboration Agreement with NOC-K which had the right to promote the Olympics and Team Kenya athletes. The Complainant, a Kenyan sprinter and Team Kenya athlete at the 2024 Paris Olympics, alleged that the 1st Respondent used his images on billboards and social media platforms without his consent, and that neither the Collaboration Agreement nor the Athletes Code of Conduct permitted the marketing or use of his images to advertise the 1st Respondent’s products.
3. Analysis of Evidence
Complainant’s Position
- On or about 17th July 2024, he received a picture of a billboard with his image erected along Kiambu Road from his partner
- Upon further inquiry, he established that billboards were erected at Ridgeways Mall, opposite Vessay Tile, and along Jogoo Road before Makadara Estate
- MultiChoice Kenya through its subsidiaries published his images and likeness without his express consent
- Adduced electronic evidence of the impugned billboards and the 1st Respondent’s subsidiaries’ social media accounts
1st Respondent’s Defense
- Entered into a Collaboration Agreement with the 2nd Respondent (NOC-K) which had the right to promote the Olympics and Team Kenya athletes
- Under the Agreement, the 2nd Respondent undertook to procure all necessary consents and approvals from the members of Team Kenya
- NOC-K provided Team Kenya images and clips for use by the 1st Respondent
- Used the Complainant’s image pursuant to the Collaboration Agreement and on account of the already procured consent from the Complainant by NOC-K
- Provided a copy of the Collaboration Agreement and the NOC-K Athletes Code of Conduct signed by the Complainant
2nd Respondent’s Defense
- The 2nd Respondent was enjoined as a party to the complaint but did not respond to the Notification
- The allegations against the 2nd Respondent remain uncontroverted
4. Issues for Determination
- Whether the Respondents obtained express consent from the Complainant to process his personal data for commercial purposes
- Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The 1st Respondent relied on the Collaboration Agreement and NOC-K’s undertaking to procure consent.
- The 2nd Respondent failed to obtain valid consent from the Complainant for commercial use of his image.
- The Athletes Code of Conduct did not constitute valid consent for commercial advertising.
- The 2nd Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 500,000 to the Complainant.
- The complaint against the 1st Respondent is dismissed.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Valid Consent for Athlete Images
- Clarifies that consent for use of athlete images must be freely given and not a condition of participation
- Consent must be prominent, concise, separate from other terms, and in plain language to be valid
Burden of Proof on Data Controllers
- Confirms that the burden of proving valid consent lies with the data controller under Section 32
- NOC-K failed to discharge this burden
Broader Impact: This determination challenges the practice of embedding consent into athlete participation agreements, establishing that commercial use of athlete images requires genuine, informed consent separate from participation terms, a standard that will reshape how sports bodies approach athlete data rights across Africa.