Gospel music singer Hellen Muthoni, intends to challenge a decision by the Data Protection Commissioner to award her Sh500,000 as compensation for use of her photo on social media by Solpia Kenya Limited T/A Sistar Kenya.
The former Inooro TV host says the amount is too little and will be appealing the determination with eyes on a much more heftier figure in million(s) of shillings.
In a decision delivered on January 6, 2024 by Data Commissioner Immaculate Kassait, the office found Sistar Kenya- a reputable brand dealing in unique brands of hair products in the Kenyan market- liable for unlawfully using Ms Muthoni’s personal data for commercial purposes.
Sometime in October 2020, the former Rurumuka gospel show host on Inooro TV, walked into a salon to do her hair.
Impressed by the unique artistic creation of her hair stylist John Mwangi, she took a photo of her latest hairstyle with her phone and shared it on her three social media accounts.
At the time her Facebook account had 406,000 followers (currently 800,000), Instagram had 153,000 (currently 190,000) and Twitter 17,000 (now 19,300).
According to her submissions to the Office of The Data Protection Commissioner, Muthoni says On 6th October 2020 Sistar Kenya obtained the photo from her social accounts without her consent, permission and posted it on their Facebook and Instagram account with an intention to market and advertise their hair products.
Seeing the post on Sistar Kenya social accounts, she sent a demand letter and a reminder to the respondent seeking their compliance in pulling it down but the brand wouldn’t budge.
Muthoni would then file a case at the High Court but Justice A.C Mrima directed the parties to complain under the Data Protection Act with the case now falling under the jurisdiction of the Data Commissioner.
In her complaint, Ms Muthoni averred that her rights to privacy were violated and her personal data used for commercial purposes without consent from 6th October 2020 to 16th December 2021 by Sistar Kenya.
She argued that the respondent breached her fundamental rights and freedoms by taking advantage of her popularity, image, influence and brand to gain financially and commercially through its advertisement on social sites as enshrined in law. The complainant also felt that her right to privacy was violated by the unlawful use of her personal data.
Muthoni who quit Inooro TV on November 2023 after seven years of hosting Rurumuka, further claimed that Sistar Kenya had put her job into jeopardy with her then employers Royal Media Service (RMS) who own the station.
The complainant stated RMS has in place advertising guidelines and policies that demand prior approval advertisement outside the company which guidelines are binding upon her and that by publishing her image/photo the respondent led the public, her followers, and employer to construe the advertisement to the effect that she had endorsed the respondent’s products as its model to boost its sales.
As such she had contravened her employer’s policy on advertising and that as the owner of the copyright she had licensed, given consent and authorised the respondent to use and exploit her copyright.
“That the respondent’s conduct jeopardised her job as a television host and has suffered mental and psychological distress for the time the post remained on the respondent’s social media pages knowing that her career might end anytime if she was subjected to disciplinary proceedings due to the publications,” Anthony Wanyingi, Ms Muthoni’s advocate argued in the case.
Sistar Kenya pulled down the post 10 days later on the morning of 16th December 2021, just when the application she had filed at the High Court was coming up for hearingg.
In a rebuttal, the respondent argued that the complainant by her own volition took her image and posted on social media platform and therefore it’s not true that Sistar Kenya obtained and posted Ms Muthoni’s image and likeness on its social media platforms.
“The images accompanying the complaint are the images posted by the complainant herself and that there is no advertisement enclosed to establish how the respondent advertised their hair product as claimed,” Sistar Kenya legal team argued.
The brand went further to challenge Ms Muthoni’s claims stating that she tagged several people to her photo including the stylist Mwangi who then went ahead to tag the respondent’s social account.
Sistar Kenya averred upon seeing the photo via Mwangi’s tag, the brand made brief comments on the artistic expression as the social media operating procedures do not allow a third party to edit or in any way interfere with originals works as posted by the primary party.
The brand said it only made the below comments at the comment part of Ms Muthoni’s post and re-posted the said comments. “Afro Bulk Twist. Crochet braid Girls with natural hairstyles. We found a hair inspiration by Hellen Muthoni in Afro bulk twist. A true fireball,”
Sistar Kenya maintained the comment were a general admiration of the style and the artistic expression of the hair stylist who did a fantastic job in creating a true natural look of Ms Muthoni and that at no time was the complementary remarks meant to be advertisement or implied expression of the musician as a model for the brand.
“The post in social media have a like, comment, and a follow section and there is no requirement for consent for one to like, follow and or comment as no other new image needs to be generated for that to happen. Therefore, the respondent did not post any unlawful post and or use any of the complainant’s data through posting as claimed. The respondent having been tagged became a follower of the complainant and even boosted her numbers,” Sistar Kenya said.
The hair brand insisted as per the data laws, it was not the data controller or the data processor as the image was taken by Ms Muthoni.
In determining the matter, on whether Ms Muthoni consent was needed by Sistar Kenya to obtain the complainant personal data, the respondent was vindicated by the Data Commissioner .
“Complainant by her own volition took a photo of herself and deliberately posted it on public social media platforms. She made public her photograph and appearance to a plurality of persons. By the complaint making her photograph public through social media, any collection therefrom fell under Section 28(2)(b) of the Data Protection Act. As such the complainant’s argument that her consent was not obtained before the respondent obtained her personal data falls short to this extent,” Ms Kassait ruled.
Section 28 of the Act provides for collection of data states that, (1) a data controller or data processor shall collect personal data directly from the data subject. (2) Despite Sub-section (1), personal data may be collected indirectly where- (a) the data is contained in a public record, (b) the data subject has deliberately made the data public.
To that effect, Sistar Kenya collected Ms Muthoni’s personal data lawfully and upon obtaining and having access to the complainant personal data, the respondent was in a position to decide what to do with it. “The respondent had the option of deciding whether to like, comment, repost, not to like, not to comment, not to repost or even to ignore. To this end, the respondent became a data controller for any subsequent processing of the complainant’s personal data that deviated from the purpose which the complainant posted her photograph online,” The office of the Data Commissioner added in the determination.
To that effect, the Data Commissioner would then make a determination as to whether there was aspects of advertisement and/or commercials use of personal data, finding Sistar Kenya culpable.
“In this regard, the office observes that online/internet marketing is an art and science of selling products and services over the internet. It involves identifying marketing strategies that are appealing to the target audience and translating them into sales while science entails research and analysis essential to measure the success of those strategies. Some of the methods used by organizations for online/internet marketing include the use of social media platforms like Facebook, Instagram and X (formerly Twitter). By processing personal data for purposes of marketing products online, the organization then becomes data controller for that purpose,” The Data Commissioner explained.
“The High Court has in the past awarded damages in millions for an infringement like this and we shall be making a case on appeal towards that direction,” Mr Wanyingi asserted.
Wanyingi cited civil suit No 7 of 2019 where plaintiffs Joel Mutuma Kirimi and Sharon Chepkorir Koskei were awarded each Sh5 million as general damages when the High Court faulted National Hospital Insurance Fund (NHIF) for violating the two individuals fundamental rights to privacy and human dignity by its act of publishing their images on Facebook, Instagram and Twitter accounts for the purposes of commercial advertisement without their consent.
