LIZ MUTHIKE vs. VIDEO ONE LIMITED
1. Introduction
The case is in respect to the complainant, Liz Muthike against Video One Limited, on the unauthorized use and display of her photographic image at the Respondent’s Yaya Centre Studio. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
An image of the Complainant, taken at a different studio during her pregnancy, was displayed prominently at the Respondent’s reception without her express or implied authorization. The Complainant alleged that the Respondent illegally displayed her private and personal photographic image, which showed her in a heavily pregnant and vulnerable state, and ignored her demand letter dated 14th December 2023 requesting removal of the image.
3. Analysis of Evidence
Complainant’s Position
- On 18th November 2023, she became aware that her image was displayed at the Respondent’s Yaya Centre studio reception
- The image displayed her in a heavily pregnant and vulnerable state
- She has never visited the Respondent’s studio for any photo sessions
- The photograph was taken on 16th June 2020 at RoyalReel Photography by her personal photographer
- She issued a demand letter on 14th December 2023 which received no response
Respondent’s Defense
- Acknowledged that it acted contrary to the Data Protection Act by failing to seek consent
- Stated it has taken sufficient action and taken down the pictures belonging to the Complainant
- Expressed remorse and apologized in writing to the Complainant
- Attached an image showing the photograph was pulled down and the apology letter as proof
4. Issues for Determination
- Whether there was an infringement of the Complainant’s rights under the Act
- Whether the Respondent fulfilled its obligations under the Act
- Whether the Complainant is entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Respondent displayed the Complainant’s image at its reception without her consent.
- The Respondent failed to respond to the Complainant’s demand letter requesting removal of the image.
- The Respondent is liable for unauthorized processing of the Complainant’s personal data.
Orders:
- Compensation of Ksh 1,050,000 to the Complainant.
- The Respondent is directed to put in place clear consent mechanisms and seek prior consent before using images for commercial purposes.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Unauthorized Collection and Display of Images
- Establishes that collecting personal data from third parties without consent is unlawful
- Displaying images for commercial purposes without consent violates the Act
Right to be Informed and Right of Erasure
- Reinforces the obligation to inform data subjects of the use of their personal data
- Failure to act on erasure requests constitutes a violation of the right of erasure
Broader Impact: This determination establishes that even well-intentioned displays require explicit consent. Displaying images of individuals in vulnerable states without consent is a serious violation. Photography studios and businesses must obtain express consent before displaying customer images for commercial gain.