VICTOR MANGA MUNYUA VERSUS LIQUID INTELLIGENT TECHNOLOGIES
1. Introduction
The instant complaint involves Victor Manga Munyua’s grievance against Liquid Intelligent Technologies on the use of his image on its website for commercial gain without his express consent. This action is incompatible with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The complainant is a businessman who has held C-Level Executive roles at leading global companies. He alleged that the Respondent used his image on its website to solicit clients for commercial gain, causing him reputational damage as people associate him with the Respondent to his detriment. He issued a demand letter, and the Respondent pulled down the image but admitted no liability.
3. Analysis of Evidence
Complainant’s Position
- Has held C-Level Executive roles at leading global companies
- The Respondent used and continued to use his image to solicit clients for commercial gain
- The misrepresentation has occasioned him reputational damage
- Wrote a demand letter, and the Respondent pulled down the image but did not admit liability or grant compensation
- Adduced screenshot photographs of the Respondent’s website containing his image
Respondent’s Defense
- Maintained it used the Complainant’s image with his express consent
- The Complainant and others were issued with a model release form on 24th April 2018
- All participants signed the model release form as consent for the use of their images
- The model release form did not capture names alongside signatures, but the mere execution suffices as proper express consent
- The image was immediately pulled down upon receipt of the demand letter
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 without obtaining his express consent.
- Anonymous signatures on the model release form cannot be attributed to the Complainant without evidence.
- The Respondent’s continued use of the image after the Act’s enactment required compliance.
- 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
Proving Consent and Burden of Proof
- Confirms that the burden of proving consent lies with the data controller under Section 32
- Anonymous signatures on consent forms cannot be attributed to specific data subjects without evidence
Commercial Use of Images
- Establishes that using images on corporate websites for marketing constitutes commercial use
- Express consent is required for such use
Broader Impact: Companies across Africa must ensure proper documentation of consent when using professionals’ images for marketing. This determination establishes that anonymous signatures on consent forms are insufficient and that continued use after the enactment of data protection laws requires full compliance.