TABITHA MWANIKI vs. ROSE GATABAI T/A TIARA NAIL SPA
1. Introduction
The case is in respect to the complainant, Tabitha Mwaniki against Rose Gatabai trading as Tiara Nail Spa, on the publication of a public notice notifying the public that she no longer works for the Respondent after the employment contract was terminated. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant was terminated from employment. The complainant alleged that the respondent issued a public notice on its Instagram and Facebook business pages with her photo stating that she no longer represents the company, which elicited many phone calls from people asking if she had done any criminal dealings. The respondent refused to take down the notice when requested.
3. Analysis of Evidence
Complainant’s Position
- After the Respondent fired her, the Respondent posted a public notice with her photo stating she does not represent the company
- The notice elicited many phone calls from people asking if she had done any criminal dealings
- She requested the photo be pulled down as she had not done anything criminal and the post was misleading
- The Respondent refused to take it down and told her to report to the police
Respondent’s Defense
- Confirmed the employer-employee relationship through a work agreement dated 25th October 2023
- Stated that as a beauty salon, photographs of clients or employees are taken and uploaded to social media with their knowledge and consent
- The Complainant liked the post on social media and shared it on her personal handles
- The Complainant breached the work agreement clause on client protocol, leading to termination of services on 9th January 2024
- Upon termination, there was need to notify the public via social media that the Complainant no longer worked for the Respondent to protect the brand and shield from liability
- Confirmed that all photos and videos of the Complainant had been deleted from all social media accounts
4. Issues for Determination
- Whether the Respondent has violated the Data Protection Act
- Whether there are remedies available against the Respondent
5. Final Determination
The Data Commissioner found:
- The Respondent acted within the law by issuing the public notice under the public interest exemption.
- The notice was in the public interest to indemnify and protect the Respondent from liability.
- The Respondent has since deleted the impugned notice and all photos and videos of the Complainant from its platforms.
- The complaint against the Respondent is hereby dismissed.
Orders:
- No compensation awarded as the complaint was dismissed.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Public Interest Exemption
- Clarifies that employers may issue public notices to notify customers of an employee’s departure under the public interest exemption
- Establishes that protecting a brand from potential liability constitutes public interest
Consent and Social Media Sharing
- Confirms that when an employee shares a post on their personal social media, they cannot later claim the image was used without consent
- Publicly sharing content implies consent to its publication
Broader Impact: This determination provides clarity on the balance between an employer’s right to protect its brand and an employee’s right to privacy. It establishes that public interest can justify issuing notices about employee departures, provided the notices are factual and not defamatory.