TOIVO KIAI MUHUGA VERSUS TALANTA INSTITUTE
1. Introduction
This complaint is brought by Toivo Kiai Muhuga against Talanta Institute on the unauthorized posting, publication and commercial use of his image on social media platforms and sponsored advertisements without obtaining his prior consent. This action is in contravention of the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The complainant worked as a tutor at the Respondent’s institute in 2017 when videos of him teaching were taken without his consent and later used for promotional purposes. He alleged that the Respondent used his image in promotional videos posted on YouTube and Facebook, continued to use his image after he left employment, and failed to remove the video upon his request.
3. Analysis of Evidence
Complainant’s Position
- Worked as a tutor at the Respondent’s institute in 2017 when videos of him were taken without his consent
- Video has been used in various productions by the institute posted on YouTube
- Sent a demand letter dated 27th March 2024 asking them to cease and desist
Respondent’s Defense
- Stated the Complainant was employed as a trainer in 2017 where his role included teaching ICT
- Video was taken for promotional purposes and the Complainant consented
- Claimed the video has been posted since 2017 and the Complainant never complained
- Stated they have blurred, erased and deleted the Complainant’s image from the promotional video
- Relied on Section 30(1)(b)(i) as the lawful basis for processing
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 used the Complainant’s image in promotional videos without obtaining his consent.
- The Respondent continued using the Complainant’s image after he left employment.
- The Respondent failed to remove the video upon the Complainant’s request.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 750,000 to the Complainant.
- The Respondent is directed to delete the video containing the Complainant’s image from its social media pages and delete all his records in their possession.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Pre-Act Processing and Continued Use
- Clarifies that even if data was collected before the Act was enacted, continued use after enactment requires compliance
- Employers must obtain fresh consent for continued use after employment ends
Commercial Use of Employee Images
- Establishes that using employee images in promotional videos with captions like “INTAKE ONGOING” constitutes commercial use
- Express consent is required for commercial use
Broader Impact: Across Africa, institutions must obtain fresh consent for continued use of former employees’ images in promotional materials. This determination establishes that employers cannot rely on pre-Act consent or employment relationships to justify ongoing commercial use of employee images.