Under the Data Protection Act and Article 31 of the Constitution, the right to privacy does not expire when a relationship ends.
Podcast confessions, viral TikToks, and YouTube tell-alls have become a popular way for people to narrate personal pain, whether messy breakups, betrayals or heartbreak.
But as more private disputes spill into public digital spaces, lawyers warn that what may feel like personal storytelling can quickly cross into unlawful exposure.
According to advocates at Muri Mwaniki Thige & Kageni Advocates, sharing intimate or identifying details about a former partner online can expose content creators to serious legal risk, even when no names are mentioned.
“Sharing a breakup story crosses from free expression into unlawful exposure when it discloses private or sensitive information about an ex-partner, makes them reasonably identifiable, harms their reputation or involves the sharing of personal data without consent,” says Mary Audi, Senior Associate Advocate at the firm.
While Article 33 of the Constitution protects freedom of expression, Audi explains that it must be balanced against other constitutional rights. “The Constitution also protects the right to privacy under Article 31 and the right to dignity under Article 28. These rights do not disappear simply because a relationship has ended.”
A common assumption among podcast guests and social media users is that avoiding names offers legal protection. That belief, lawyers say, is misplaced.
“Yes, an ex-partner can sue even if no names are mentioned,” Audi notes.
“Kenyan courts apply what is known as the test of reasonable identification. If listeners or readers can reasonably infer who the person is from the descriptions, voice, images or surrounding context, liability may arise.”
Even indirect references can amount to defamation or invasion of privacy if they make the subject identifiable to friends, family or colleagues.
Several legal frameworks can come into play when personal stories are aired publicly. These include the Defamation Act, constitutional protections for privacy and dignity, the Data Protection Act, 2019, the Computer Misuse and Cybercrimes Act, as well as common law principles.
“These laws apply equally to digital platforms,” says Fridah Muriithi, Associate Advocate. “Podcasts, WhatsApp groups, YouTube channels and social media posts are treated the same as traditional publications when it comes to legal responsibility.”
Going public years after a breakup does not necessarily offer legal insulation. While defamation claims must generally be filed within 12 months of publication, other claims have no such limitation.
“For human rights claims involving privacy and dignity, time does not weaken the claim,” Muriithi explains. “A person’s right to privacy and reputation does not expire simply because a relationship ended years ago.”
Courts also draw a clear line between opinion and statements of fact. “Saying ‘I felt betrayed’ is an opinion and is generally protected,” Audi explains. “But making factual claims, especially false ones, that harm someone’s reputation can amount to defamation.”
The way a story is framed, she adds, matters as much as the content itself.
Turning personal stories into profit significantly increases legal exposure.
“If someone profits from telling their breakup story through podcasts, YouTube or brand deals, it suggests commercial exploitation of private information rather than personal expression,” Audi says. “That makes claims for privacy and data protection violations more likely to succeed.”
To bring a successful claim, an affected person would rely on recordings, screenshots, posts, witness testimony and proof of harm, including reputational damage, emotional distress or financial loss.
Kenyan courts have already demonstrated a willingness to award damages for online exposure. In Ambe v Onyango [2024], the High Court awarded Sh2 million in damages over defamatory remarks shared in a WhatsApp group, affirming that digital spaces are subject to the same standards as mainstream media.
Meanwhile, the ongoing case of Robert Burale v Alex Mwakideu, in which damages of Sh20 million have been sought over alleged defamatory statements on YouTube, is expected to further define accountability for podcasters and digital creators.
Truth remains a strong defence against defamation, but it is not absolute.
“You generally can’t be sued for defamation if what you said is true,” Muriithi says. “However, truth does not protect you from claims based on privacy or data protection. Even true information can be unlawful to share if it exposes someone’s private life, personal communications, health, finances or intimate details without consent.”
Liability does not stop with the speaker. Podcast hosts and platforms can also be exposed. “If hosts fail to moderate harmful content or remove unlawful material after notice, they may face legal risk for publishing defamatory or privacy-violating material,” Audi says.
For those who still want to share personal experiences publicly, lawyers advise restraint. “Avoid identifying details, don’t share private messages or recordings, focus on your own feelings rather than accusations, and avoid monetising personal conflicts,” Audi advises. “Where possible, obtain consent.”
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