Navigating Data Protection for Minors: Key Insights from Recent ODPC Determinations

Case Overview:

Hilda Mwangi vs. Edgar Obare (ODPC Complaint No. 453 of 2024):

Background: Hilda Mwangi, suing as the legal guardian of a minor, MNN, lodged a complaint against Edgar Obare, a social media influencer, for using the minor's image on his Telegram channel without consent.

Legal Findings:

• Journalistic Exemption: The respondent claimed the processing was for journalistic purposes, but he failed to demonstrate recognition as a journalist by the Media Council of Kenya, rendering the exemption invalid.
• Consent Requirements: Although the minor’s image was publicly available on social media, the respondent’s use for commercial purposes necessitated express consent from the guardian, which was not obtained.
• Commercial Use: The use of the minor’s image on a monetized platform was deemed commercial, emphasizing the need for explicit parental consent under Section 33 of the Data Protection Act, 2019.

Key Legal Provisions:

• Right to Privacy: Enshrined in Article 31 of the Constitution of Kenya, 2010, and reinforced by the Data Protection Act, 2019.
• Section 33: Prohibits processing personal data of children without parental or guardian consent, particularly for commercial purposes.
• Section 28: Allows indirect collection of data from public records, but commercial use still requires consent.

Implications for Data Controllers and Processors:

• Consent is Crucial: Always obtain explicit consent from guardians when dealing with minors' data, especially for commercial activities.
• Publicly Available Data: Even if data is publicly available, using it for commercial purposes without consent can lead to legal repercussions.
• Recognition Matters: Claims of journalistic use must be backed by appropriate credentials and recognition to be valid under the law.

Fatuma Ali vs. Nova Pioneer Kenya (ODPC Complaint No. 502 of 2024):

Background: The case involved a complaint by Fatuma Hadi Ali, on behalf of her minor child J.A.A., against Nova Pioneer a school that used the child's image for commercial advertising without proper consent.

Key Takeaways:

• Right to Privacy: The Constitution of Kenya, 2010, under Article 31, guarantees the right to privacy. The Data Protection Act, 2019, further safeguards this right, especially for minors, who require special protection.
• Consent Requirements: According to Section 33(1)(a) of the Data Protection Act, explicit consent from a minor's parent or guardian is mandatory before processing any personal data.
• The burden of proof lies with the data processor to establish that such consent was obtained (Section 32(1)).

Violation and Remedies:

• The school failed to secure proper consent, violating multiple sections of the Data Protection Act (Sections 26, 27(a), 29, 30, 33, and 37).
• The ODPC underscored the right of minors to be informed about the use of their personal data (Section 26(5)) and upheld their right to erasure (Section 40(1)(b)).

Consequences and Sanctions:

• The school was directed to implement measures to prevent future violations and pay KES 950,000 as compensation for the unauthorized use of the minor's image.
• The case highlighted the need for stringent adherence to data protection laws, especially regarding minors.

Implications for Data Controllers and Processors:

• This determination serves as a critical reminder for organizations to rigorously adhere to data protection laws, ensuring that they obtain explicit consent before using minors' personal data for any purpose. The ODPC's proactive stance underscores the importance of protecting the privacy and rights of minors in the digital age.

Call to Action:

• Organizations must review and update their data handling policies to comply with the Data Protection Act, 2019, and safeguard minors' data. Proper training and awareness about data protection principles are essential to avoid similar breaches.
• For more insights and legal support on data protection and compliance, feel free to connect with us at Mbuchi & Associates Advocates.