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Moja Expressway loses appeal in use of former employee’s image
The judge emphasised that fresh consent was mandatory for continued commercial use, and Moja Expressway's failure to obtain it constituted a violation of data protection laws.
The High Court has dismissed an appeal by Moja Expressway Company; the firm that manages Nairobi's Expressway toll road, challenging a Sh500,000 compensation order for unlawfully using a former employee's image in promotional materials without his consent.
The court upheld the May 2024 ruling by the Data Protection Commissioner, affirming that companies must seek fresh consent to use personal data after an employment relationship ends.
The case originated from a complaint filed by Cyrus Mwaniki, who worked as a salesperson for Moja Expressway until his resignation in November 2022. Over a year later, in October 2023, he discovered his image was still being used in the company's social media promotions.
Mr Mwaniki argued that while he had consented to the use of his data during employment, the company had no right to continue exploiting the same commercially after his departure.
The Data Protection Commissioner determined that fresh consent from Mr Mwaniki was necessary, to continue using the image after his resignation and awarded him the amount as compensation, a ruling that aggrieved the company.
Moja Expressway admitted using Mr Mwaniki's image but claimed he had never withdrawn his initial oral consent. The company later deleted the videos after the complaint was lodged.
Rejecting this defence, the court ruled that employment-based consent expires upon termination.
"Once the employment relationship ended, the basis for using the data was lost," the judge observed, upholding digital privacy rights under the Data Protection Act and signalling to employers that personal data—especially for profit-driven purposes—cannot be retained indefinitely without explicit consent.
The court said the award was based on commercial exploitation of Mr Mwaniki's image after he stopped working for the company.
"In the context of employment, that exploitation would have been remunerated by salary or commission as part of the employment terms. After termination of employment, the respondent was not being remunerated for the continued exploitation of his data for commercial purposes," said the court.
It added that the ex-employee's image was being exploited for free, which was unjust, and the Data Protection Commissioner was entitled to award compensation for that exploitation.
"Perhaps an issue could be raised with regard to assessment of that compensation, but the appellant (Moja) has not addressed that to fault the quantum awarded," stated the judge dismissing the appeal.
The judge emphasised that fresh consent was mandatory for continued commercial use, and Moja Expressway's failure to obtain it constituted a violation of data protection laws.
Regarding compensation, the judge dismissed Moja Expressway's argument that Mr Mwaniki had not proven tangible loss, noting that unauthorized commercial exploitation inherently warranted redress.
The court clarified that damages in such cases account for intangible harms like emotional distress and reputational harm.
While Moja Expressway questioned the Sh500,000 quantum, it failed to propose an alternative figure, leading the court to deem the sum "fair and reasonable."
