High Court upholds Sh0.5million award to ex-Moja Expressway over image breach
Moja Expressway Company, which operates the 27-kilometre Nairobi Expressway has failed to overturn half-a million-compensation awarded to a former employee for using his image for promotional purposes.
Cyrus Mwaniki Ndung’u won the award last year when the Data Commissioner Immaculate Kassait found the company liable for using his image to promote the use of electronic toll collection (ETC), without his consent, after leaving his job.
High Court judge William Musyoka said after termination of employment, Mwaniki was not being paid and the continued exploitation of his data, for commercial purposes was wrong.
According to the judge, the same was being exploited for free, which was unjust, and the Data Protection Commissioner was entitled to award compensation, for that exploitation.
“I agree with the Data Protection Commissioner, that once the employment relationship terminated, which had been the basis for the use of the data, there was need to obtain a fresh consent, for the continued exploitation of the data, and the use of that material, without the fresh consent, amounted to a violation,” said the court.
Mwaniki, a former toll attendant was recorded in video explaining to customers how to subscribe to and how to install the ETC and On-board unit (OBU) for commercial use.
And after leaving the job, the company continued using his image without his consent.
The court noted that his image had been used for commercial purposes, ostensibly to profit the company.
“I do not find, in the circumstances, and it has not been demonstrated, that the award of Sh500,000.00, made by the Data Protection Commissioner, was unreasonable and unfair. Overall, I find no merit, in the appeal herein, and I, accordingly, dismiss it,” said the judge.
The court stated that in the context of employment, the exploitation would have been remunerated, by salary or commission, as part of the employment terms.
But after termination of employment, Mwaniki was no longer being paid for the continued exploitation of his data.
Mwaniki sued the company accusing it of continued use of his image for commercial purposes almost one year after he left the organisation.
He filed the complaint with the Office of the Data Protection Commissioner on February 16, 2024, stating that the company made it appear that he was still working for Moja Expressway.
The former employee issued a demand on December 7, 2023 to the company but Moja Expressway ignored his letter at first, only to delete from its social media three days later.
The company had defended itself saying Mwaniki was working as a toll attendant in their sales team from July 5, 2022 to November 28, 2022, when he resigned.
The firm said it did not require his consent to process his personal data as they relied on the contract, which they obtained lawfully, as part of the sales team, as his job entailed explaining to customers how to subscribe to ETC.
Moja Expressway further said it used his image with his consent, for use in promotional activities, in line with his duties as a sales person.The firm further said Mwaniki did not withdraw that oral consent, after leaving the job. The company added that it later deleted the videos.
“The principles of personal data under section 25 (c) of the Act provide that every data controller or data processor shall ensure that personal data is collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes,” Kassait had ruled in her decision on May 15, 2024.
