NANCY MUGO VERSUS MIGUEL VENTURES LIMITED
1. Introduction
The case is in respect to the complainant, Nancy Mugo against Miguel Ventures Limited, on the posting of her image on its social media pages without her consent and failure to remove the image upon request. This action is non-compliant with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The complainant alleged that the Respondent posted her images on its social media platforms without her consent, used her image for commercial publicity to advertise their services, and failed to erase her photo upon request.
3. Analysis of Evidence
Complainant’s Position
- Provided screenshots of her images having been posted on the Respondent’s social media site in April 2023
- Adduced evidence of her photograph being proof that she was the one posted on the Respondent’s social media site
- Stated she tried to contact the Respondent to pull down her images to no avail
Respondent’s Defense
- Claimed the Complainant approached them in August 2022 for VISA advice and accepted to take a photo with their team
- Argued they shared the Complainant’s flight ticket on WhatsApp status with verbal consent, which disappears after 24 hours
- Denied posting the images on other social media platforms
- Alleged the Complainant was attempting to use this Office to recover a deposit sum she paid for VISA processing
- Claimed the photos filed were foreign to them
4. Issues for Determination
- Whether there was an infringement of the Complainant’s rights 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 posted the Complainant’s image on its social media pages without obtaining her consent.
- The Respondent used the Complainant’s image for commercial publicity to advertise their services.
- The Respondent failed to remove the Complainant’s image upon her request.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 1,200,000 to the Complainant.
- The Respondent is directed to delete the Complainant’s image from its Facebook page and any other social media pages where it has been used for commercial purposes.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Right to Erasure and Withdrawal of Consent
- Reinforces that data subjects have an absolute right to withdraw consent and request erasure
- Establishes that data controllers must act without undue delay
Commercial Use of Images on Social Media
- Clarifies that posting images on business social media pages for marketing constitutes commercial use requiring express consent
- WhatsApp status posts that disappear after 24 hours do not constitute valid consent for permanent social media posts
Broader Impact: Businesses across Africa must obtain express consent before using customer images on social media for commercial purposes. This determination establishes that ignoring data subject rights and court orders will result in significant liability and higher compensation.