HELLEN MUTHONI vs. SOLPIA KENYA LIMITED T/A SISTAR KENYA
1. Introduction
Hellen Muthoni, a renowned media personality and television host, alleges that Solpia Kenya Limited t/a Sistar Kenya, a hair products company, used her image commercially to market and advertise its products on social media without her consent, violating the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondent commercially exploited the Complainant’s brand by posting her image on Facebook and Instagram without consent from October 2020 to December 2021. This unauthorized marketing caused her psychological distress and jeopardized her employment at Royal Media Services. After the High Court dismissed her initial petition under the doctrine of exhaustion, she was directed to pursue the matter through the Data Protection Act.
3. Analysis of Evidence
Complainant’s Position
- Adduced pleadings and judgment from High Court petition HCCHRPET/E457/2021
- Demonstrated that she is a public figure with significant social media following (406,000 Facebook followers, 153,000 Instagram followers)
- Provided evidence of the Respondent’s social media posts using her image
- Showed that the Respondent’s customers were directed to distributors, confirming commercial gain
- Stated that her employer’s advertising policies were compromised by the unauthorized use
Respondent’s Defense
- Argued that the Complainant voluntarily posted the image on public social media, making it accessible to all users
- Claimed it did not obtain or republish the image; it only commented and reposted the comment
- Denied being a data controller or processor, arguing that the Complainant was both as she took and posted the image herself
- Contended that social media features (like, comment, follow) do not require consent
- Stated it has since ceased following the Complainant
4. Issues for Determination
- Whether the Complainant’s personal data was lawfully processed
- Whether the Complainant is entitled to any remedy under the Act
5. Final Determination
The Data Commissioner found:
- The Respondent found liable for unlawful processing of the Complainant’s personal data by using her image for commercial purposes on social media without her express consent.
- The Respondent ordered to compensate the Complainant KES 500,000 for the unauthorized commercial exploitation of her image from October 2020 to December 2021.
- The Respondent directed to cease all processing of the Complainant’s personal data and remove her image from all its platforms and records within 7 (seven) days from the date hereof.
- Parties have the right to appeal the determination to the High Court of Kenya within thirty (30) days.
Orders:
- Compensation of KES 500,000 to the Complainant
- Removal of Complainant’s image from Respondent’s platforms within 7 days
- Right of appeal to the High Court within 30 days
6. Significance and Impact
Public Domain Data and Commercial Use
- Clarifies that while data deliberately made public can be collected without consent, subsequent commercial use requires express consent
- Establishes a critical distinction between collection and processing for commercial purposes
Social Media and Data Controller Status
- Holds that organizations become data controllers when they repurpose publicly available data for commercial gain
- Disproves claims that social media interactions (likes, comments, reposts) are exempt from data protection requirements when used commercially
Influencer Rights and Brand Protection
- Protects public figures and influencers from unauthorized commercial exploitation of their image and brand
- Reinforces that even public figures retain control over how their personal data is used commercially
Definition of Commercial Use
- Expands understanding of “commercial purposes” under Section 37 and Regulation 14 of the General Regulations
- Confirms that indirect commercial transactions (referrals to distributors) constitute commercial use
Broader Impact: This determination establishes important guardrails for social media marketing in Kenya. It affirms that organizations cannot use public figures’ images for commercial gain without express consent, even if the image was originally posted in the public domain. It also clarifies the boundaries of acceptable social media interactions, distinguishing between genuine engagement and commercial exploitation.