RHONE OTIENO vs. 1824 WHISKEY BAR & LOUNGE
1. Introduction
This case involves a complaint by Rhone Otieno against 1824 Whiskey Bar & Lounge alleging that the Respondent used his image for marketing and commercial purposes on a TikTok page allegedly run and operated by the Respondent without his consent. This action is contrary to the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The Complainant alleged that the Respondent illegally and unlawfully posted a video containing his image on their TikTok page without his consent, with intent to commercialize and market its club and increase enrollments thereto, thereby violating his right to privacy under Article 31 of the Constitution, right to human dignity under Article 28, and Sections 26, 30, and 37 of the Data Protection Act, 2019.
3. Analysis of Evidence
Complainant’s Position
- Stated that the Respondent posted a video containing his image on their TikTok page without his consent or authority
- Indicated that the unlawful use of his image for commercial purposes violated his intellectual property rights, constitutional rights, and data protection rights
- Provided a screenshot of the said page which displayed numerous videos related to the Respondent’s events and activities
- Stated that the page boasted over 134.2K followers and 1.6M likes, indicating significant reach and potential benefit to the Respondent
Respondent’s Defense
- Denied having or ever registering a TikTok account or page
- Stated that they only run verified social media accounts and the purported video was not posted by them
- Opined that the TikTok account in question could be a parody account
- Contended that it was a possible collusion by the Complainant and a third party to illegally enrich themselves
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 video containing the Complainant’s image had been pulled down from the TikTok page by the time the complaint was investigated.
- The Complainant did not conclusively prove that the TikTok page belonged to and was being operated by the Respondent.
- Due to the deletion of the video and the failure to prove ownership, there was no established infringement.
- The prayer for compensation was declined as ownership could not be conclusively proven.
Orders:
- The complaint is hereby dismissed.
- The Respondent is directed that the ODPC can conduct periodic inspections and compliance audits.
- The Respondent is directed to always seek express consent before posting customer images on social media.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Proving Ownership of Social Media Accounts
- Establishes that the burden of proving that a social media page belongs to a respondent lies with the complainant
- Highlights the challenges of holding organizations accountable for unauthorized use of personal data on unverified accounts
Right to Objection and Deletion
- Confirms that the right to object to processing and request deletion under Section 26(c) and (d) is actionable
- Demonstrates that deletion of infringing content after a complaint may prevent a finding of violation
Broader Impact: This case highlights the growing challenge of unauthorized social media accounts using established brand names to exploit personal data. It underscores the need for stronger platform verification, proactive brand monitoring, and the importance of express consent before using customer images in any social media marketing.