VICTOR KIBET VERSUS HOTEL WATER LIMITED
1. Introduction
The case is in respect to the complainant, Victor Kibet against Hotel Water Limited, on the use of his image for commercial gain on the Respondent’s website without his express consent. This action is non-compliant with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The complainant’s image, taken while working as the Respondent’s receptionist, was used on the Respondent’s website for commercial gain without his express consent. He alleged that despite numerous notifications, the Respondent refused to pull down the image, and he has been unable to gain employment as other employers perceive him to still be an employee of the Respondent.
3. Analysis of Evidence
Complainant’s Position
- The Respondent has been using his image for commercial gain on its website
- He has been unable to gain employment as other employers perceive him to still be an employee of the Respondent
- Despite numerous notifications, the Respondent has refused to pull down the image
- Adduced photographs of the Respondent’s website containing his image, a demand letter dated 26th October 2023, and his National ID card as evidence
Respondent’s Defense
- Maintained that it used the Complainant’s image with his express consent
- Stated that the Complainant personally consented to be photographed and was excited to be designated as the face of the prestigious hotel
- Argued that the Complainant’s active and voluntary participation in the photo session unequivocally implied his consent
- Contended that the Complainant complaining after termination of employment is an afterthought and opportunistic manoeuvre
4. Issues for Determination
- Whether the Respondent obtained the Complainant’s consent as required by the Act to use his image for commercial purposes
- 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 used the Complainant’s image on its website for commercial purposes without obtaining express consent.
- Implied consent through voluntary participation does not satisfy the legal standard of express consent.
- The Respondent failed to act on the Complainant’s requests to remove his image from the website.
- The Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 500,000 to the Complainant.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Express Consent and Implied Consent
- Clarifies that implied consent through voluntary participation does not meet the standard of “express consent” under the Act
- Express consent requires a clear written statement, clicking an opt-in button, appending a signature, or responding to an email requesting consent
Employer-Employee Image Use
- Establishes that employment does not grant automatic consent for use of employee images for commercial purposes
- Employees must give express consent, and the burden of proof lies with the employer
Broader Impact: This ruling dismantles the assumption that employment confers perpetual marketing rights over worker personas. It affirms that former employees retain control over their digital identities, compelling organisations to embed data protection into HR practices. A worker’s image is a personal right that endures beyond the employment contract.