SHERLEEN WAWIRA KIURA VERSUS WANANCHI GROUP (K) LTD
1. Introduction
The dispute in this matter arises from Sherleen Wawira Kiura’s complaint against Wananchi Group (K) Ltd on the continued receipt of promotional messages after service termination and her objection. This action is inconsistent with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Complainant terminated her Zuku services in early 2023 but continued to receive daily promotional messages despite sending a request for erasure and objection on 26th August 2024, which was ignored. The Respondent also failed to respond to her attempts to contact them via phone.
3. Analysis of Evidence
Complainant’s Position
- She was using Zuku services from 2022 to early 2023 when she changed her internet service provider
- Since terminating her engagement, Zuku has been sending her promotional messages daily
- She sent an email through their “Contact Us” form on 26th August 2024 which was acknowledged, but messages continued
- She also sent an email instructing them to delete her contact details from their system
Respondent’s Defense
- The Complainant was onboarded on 17th November 2022
- Upon termination on 29th February 2024, they made several attempts to contact her regarding unreturned company equipment
- The Subscription Agreement constitutes express consent for processing personal data
- They held on to the erasure request because the Complainant had not returned company equipment, which was necessary to establish a legal claim
- Upon receiving the complaint, they reached out, recovered the equipment on 19th October 2024, and promptly erased her data
4. Issues for Determination
- Whether there was a violation 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 continued sending promotional messages after the Complainant exercised her right to object.
- The Respondent failed to act on the Complainant’s objection and erasure request within the required timeframe.
- Retaining data for a legal claim does not justify continued direct marketing.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 250,000 to the Complainant.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Right to Object and Direct Marketing
- Reinforces that the right to object to processing for direct marketing is absolute
- Data controllers must comply with objection requests within 14 days
Lawful Retention for Legal Claims
- Confirms that data controllers may retain personal data to establish a legal claim
- However, this does not justify continued direct marketing
Broader Impact: This determination reinforces that the absolute right to object to direct marketing cannot be overridden by prior consent or unresolved administrative issues. Companies cannot use data retention for legal claims as a shield to continue marketing to individuals who have clearly withdrawn their consent.