WENDY MWATHA, WINNIE WANJA & ANNAH MBURU vs. ACCESSORIZE WITH STYLE
1. Introduction
The case is in respect to the complainants, Wendy Mwatha, Winnie Wanja, and Annah Mburu against Accessorize with Style, on the continued use of their images for branding and advertising despite the lapse of their contract. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainants are models who offered their services to the Respondent under a contract which expired in 2020. The complainants alleged that the Respondent continued to use their images for in-store branding in multiple outlets in Kenya and Rwanda after the contract expired, and ignored their demand letter requesting the Respondent to cease and desist.
3. Analysis of Evidence
Complainants’ Position
- Adduced an unsigned and undated “Model Release Form” which gave consent for use of photos during a specific photo session managed by COUTURE Africa magazine
- Stated that the contract expired in 2020, yet the Respondent continued to use their images
- Provided a demand letter dated 23rd October 2023 notifying the Respondent of the infringement
- The 3rd Complainant is employed as a cabin crew and the Respondent’s actions would jeopardize her position due to conflict of interest
Respondent’s Defense
- Claimed they never had a contract with the Complainants as they outsourced branding to a third-party company
- Stated they were not privy to the contents of the contract between the Complainants and the third-party company
- Claimed the only evidence adduced was an unsigned agreement in word version
- Upon the Complainants’ protest, they resorted to rebranding its few shops to avoid being in contravention of the Act
4. Issues for Determination
- Whether there was a violation of the Complainants’ rights under the Act
- Whether the Complainants are entitled to any remedies under the Act and the attendant Regulations
5. Final Determination
The Data Commissioner found:
- The Respondent continued to use the Complainants’ images for branding after the contract expired in 2020.
- The Respondent used the Complainants’ images for commercial purposes without obtaining express consent.
- The Respondent is liable for violation of the Complainants’ rights under the Act.
Orders:
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Compensation of KES 1,500,000 to the Complainants:
- KES 500,000 each
- The Respondent is directed to ensure all data subjects are notified of data collection and obtain express consent for commercial use.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Commercial Use of Model Images After Contract Lapse
- Clarifies that images obtained for specific purposes and limited durations cannot be used beyond those limits without express consent
- Establishes that continued use of model images after contract expiry constitutes a violation of the Act
Outsourcing and Data Protection Liability
- Holds that even when branding is outsourced, the principal remains liable for the use of personal data
- Organizations cannot claim ignorance of contracts between third parties and data subjects
Broader Impact: This determination addresses a widespread challenge in Kenya’s modeling and advertising industry, where brands continue to use models’ images long after contracts expire. It establishes that companies cannot outsource their data protection obligations and must obtain express consent for commercial use of personal data.
