KELVIN NYAMBANE ANGWENY VERSUS ELITE POWER CRAFT LIMITED T/A AMARON BATTERIES KENYA
1. Introduction
The instant complaint concerns Kelvin Nyambane Angweny’s grievance against Elite Power Craft Limited t/a Amaron Batteries Kenya on the use of his photographs for commercial purposes on its Facebook page without his consent. This action is in breach of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The complainant, a former employee of the Respondent, alleged that the Respondent used his photographs on its Facebook page to advertise its products without his consent, and despite numerous attempts and a demand letter, the Respondent refused to pull down the photos.
3. Analysis of Evidence
Complainant’s Position
- On 21st September 2021 and on diverse dates, the Respondent used his photographs to advertise its products on its Facebook page
- Provided links to the Respondent’s Facebook page containing his photographs as proof
- Served a demand letter dated 27th March 2024 but the Respondent refused to comply
Respondent’s Defense
- Confirmed the Complainant was their employee when the images were posted
- Claimed the photos were not for economic gain but to show the team that worked for the company
- Stated the photos were posted with his full knowledge and consent, and he engaged on the comments section
- Alleged the Complainant is acting in bad faith as he was reported for stealing property worth KES 588,000
4. Issues for Determination
- Whether there was an infringement of the Complainant’s rights under the Act
- Whether the Respondent 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 Respondent used the Complainant’s photographs on its Facebook page for commercial purposes without obtaining his express consent.
- The Respondent failed to act on the Complainant’s erasure requests despite repeated attempts and a demand letter.
- Engagement in the comments section does not constitute consent for commercial use of images.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 750,000 to the Complainant.
- The Respondent is directed to delete the Complainant’s image from its Facebook page within 7 days.
- The Respondent is directed to put in place clear consent mechanisms and seek prior consent before publishing images on social media.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Right to Erasure and Continued Violation
- Reinforces the obligation of data controllers to act without undue delay on erasure requests
- Continued use of images after a request for erasure constitutes a continuous violation
Employer-Employee Consent
- Establishes that employment does not grant automatic consent for use of employee images for commercial purposes
- Employers must obtain express consent, and consent must be freely given without coercion
Broader Impact: This ruling serves as a critical reminder to employers that employment relationships do not confer perpetual rights over worker personas. Organizations across Africa must establish clear consent frameworks for using employee images in marketing and act decisively when erasure requests are made.