Former Inooro TV presenter and gospel singer Hellen Muthoni has ‘rejected’ a Sh500,000 compensation award awarded to her against Sistar Kenya, which used her hairstyle photo to advertise its business without her consent.
The chanteuse who quit her job as Rurumuka gospel show host last November says the award by The Data Commissioner is too little.
“We do not have a problem with the determination, only that the amount awarded is too low, and we shall be considering an appeal. As a matter of fact, we have communicated that decision to the Data Commissioner. The respondent has also expressed their intent to appeal,” Muthoni’s lawyer, Antony Wanyingi told Nairobi News.
On January 6, 2024, the Data Commissioner Immaculate Kassait, handling the case after it was referred to her by the High Court where the matter was first filed, found Sistar Kenya- a reputable brand dealing in unique brands of hair products in the Kenyan market at fault 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.
She would then post the photo of her new hairstyle on Facebook, Instagram, and Twitter.
Sistar Kenya would then repost the photo accompanied by the caption, “Afro Bulk Twist. Crochet braid Girls with natural hairstyles. We found a hair inspiration by Hellen Muthoni in Afro bulk twist. A true fireball.”
This prompted Ms Muthoni to take action against Sistar Kenya, filing for copyright infringement over the use of her data without consent by the hair brand to promote its business.
Whereas the Office of the Data Commissioner didn’t find Sistar Kenya liable for reposting the photo without Ms Muthoni’s consent, citing Section 28 of the Data Protection Act, No 24 of 2019 Laws of Kenya and Part III of Data Protection (General) Regulations, 2021 it did, however, found the brand in breach of Section 37.
Section 28 provides for data collection, while Section 37 provides for commercial use of data.
Even though the office of the Data Commissioner agreed with Sistar Kenya’s defense that its repost and comment of the post was a general admiration of the unique style and the artistic expression of the hair stylist who did the job and that there was no advertisement aspect tied to the repost and caption, it did find the comments thereafter as a breach of Section 37.
“From a collective reading of the above legal provision, it is discernible that any form of influencing and/or advancing a commercial transaction, whether directly or indirectly using personal data, amounts to the commercial use of personal data,” The Data Commissioner stated.
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The Data Commissioner gave examples of comments by Sistar Kenya that indicated the brand was advancing commercial transactions.
The comments included:
“Thank you for getting in touch with us. Please let us know your location, and we shall direct you to the nearest distributor. Thank You.”
Another read, “ Good day, please contact our major distributor…. Thank you for choosing Sistar,”
In reference to the comments, the Data Commissioner’s office stated, “The commercial use of personal data obtained by the data controller must be by consent from the data subject. As discussed above, consent at collection and obtaining personal data was not required as the Complaint had deliberately made her photograph public. However, any subsequent processing of the complaint’s personal data for commercial purposes required the consent of the complainant. By reposting and commenting the way it commented on the complainant’s post, the respondent was advancing its commercial interests by inducing the members of the public to buy their products,” The Data Commissioner averred.
Adding that, “The respondent went further and even made referrals and directed the members of the public to their distributors and agents places where they could buy the products. By inducing the members of the public the way it did, the respondent influenced commercial transactions both indirectly and directly. As such, the actions of the respondent amounted to internet marketing and commercialization of the complainant’s personal data without the complainant’s consent.”
In that regard, “Having found that the complainant made her personal data public and that the respondent unlawfully used the personal data for commercial purposes, the respondent is hereby directed to compensate the complainant the amount of Sh500,000,” Immaculate Kassait, The Data Commissioner directed.
With both parties having the right to appeal at the High Court within 30 days, Ms Muthoni intends to do so with the hopes of upgrading the award into millions.
“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,” Advocate Mr Wanyingi added.
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 commercial advertisement without their consent.
By Nairobinews