BY SAM ALFAN.
The manufacturer of Ajab flour has been ordered to pay a Malindi woman Sh1 million for using her image in the promotion of the flour without her consent.
Office of the Data Protection Commissioner (ODPC) found Grain Industries Ltd, the manufacturer of Ajab flour liable for violating Esther Kanza Mbuvu’s rights for using her image for commercial purposes.
Kanza produced a photo of a billboard showing her image captioned “Tunashukuru mama wa Ajabu for being the best!” along with branding materials promoting Ajab Home Baking Flour, a product associated with the miller.
The ODPC said the woman had the right to be informed before her personal data was used for commercial purposes.
“The Respondent (Grain Industries ltd) is hereby ordered to pay the Complainant (Kanza) Sh1 million as compensation for the use of the complainant’s personal data for commercial purposes without her express consent,” ruled Data commissioner.
The ODPC said the company intentionally or negligently violated Kanza’s right to be informed and denied her the right of erasure of her personal data by failing to take down the images on all the platforms that it had published it, when notified by her.
The woman accused Grain Industries ltd of using her image on a billboard at Bamburi area along Malindi Road. She stated that on or about 30th August 2023, while going about her daily errands, she saw a billboard erected along Malindi Road at Bamburi, which had several photographic images including herself.
The billboard was depicted as an advertisement or publication endorsed and promoted by the Grain Industries ltd, the maker of Ajab Flour.
Kanza further stated that later on, it came to her attention that the Miller was further using her image on a YouTube promotional advert. She said she was never engaged by any of the company’s employees, servants or agents in any way and has never consented to the use of her personal image to advertise or publicize any product by the miller.
Kanza said the use of her image without consent was not only unlawful but exploitative. She further said that the alleged consent obtained by the miller was from third parties as she was never contacted directly.
She wrote a demand letter to the company seeking immediate removal of the billboard, a public apology and general damages for use of her image. The company ignored or refused to respond to the demand letter.
In defence, the company told the Data commissioner that on 13 July 2023, it launched a promotional campaign titled “TUNASHUKURU MAMA WA AJABU’ to celebrate mothers across Kenya during the Mother’s Day.
The firm said it invited participants to submit pictures of their mothers for public display on billboards and social media platforms.
The Campaign was open to individuals nationwide and was subject to Terms & Conditions which were allegedly made available to participants.
The company said it engaged Brainwave Communications Limited as its marketing agency to spearhead and run the campaign.
The miller said such engagement included the requirement and expectation that Brainwave ensures compliance with all necessary laws and regulations and best practices in the running of the Campaign.
“This was primarily due to Brainwave’s expertise in administering similar campaigns. Brainwave hosted a webpage through which participants enrolled to take part in the Campaign, and the webpage contained a hyperlink to the T&Cs,” the company told the Data commissioner.
The company stated that the first billboard in respect of the campaign was put up on 10th August 2023.
Throughout the Campaign, the Complainant’s image was only featured on one billboard and one video on YouTube. It did not feature on any social media platform (that is, Facebook and Instagram). It is therefore wholly inaccurate for the Complainant, to allege that her image was used on ‘social media platforms’.
