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How social media posts landed influencers hot soup
Data Commissioner Immaculate Kassait. The Office of the Data Protection Commissioner (ODPC) found Platinum Credit liable of breaching Samwel Waweru's privacy.
A series of posts on TikTok, Instagram, WhatsApp, and Facebook social media platforms have landed two popular influencers in trouble with the data protection regulator for breaching the privacy rights of fellow citizens, highlighting the expansion of data privacy enforcement beyond corporations to individuals.
The Office of the Data Protection Commissioner (ODPC) has penalised an influential TikToker and a popular blogger a total of Sh75,000 for posts that were found to violate the data privacy rights of other citizens.
Waithera Imani, popularly known online as Cera Imani, has been ordered to pay Ian Itolondo Mutoro Sh50,000 for posting a video with his image and name on TikTok and Instagram without his knowledge and consent.
In a near-similar case, Mwachere Shuma, a popular Taita Taveta-based blogger, has been ordered to pay John Mwang’ombe for illegally accessing his degree certificate from Kampala International University and posting it on Facebook and in a WhatsApp group chat without his consent.
The precedential rulings highlight a growing scrutiny of online social media conduct, increased awareness of data privacy rights among citizens, and the expansion of enforcement of the laws beyond corporations.
ODPC’s siding with both complainants was built on the lack of a lawful basis for processing of the personal data by each of the accused, pointing to how posts about people on social media could land users in trouble.
The regulator said that unless there is consent, no one can post another person’s personal information unless they can demonstrate that it is in that person’s best and legitimate interest, public interest, or when they are legally required to.
“Before processing, a controller or processor must inform the data subject of the purpose of processing, the type of personal data collected, the right to withdraw consent, and the implications of giving, withholding, or withdrawing consent,” said Data Commissioner Immaculate Kassait in the ruling against Ms Waithera.
The video that landed Ms Waithera in trouble was a promotional one for a product known as Eshe Community, which she is associated with. The video is said to have contained an image and the names of the complainant as a service provider on an app called Eshe Community.
While Ms Waithera claimed that she obtained consent from the complainant, she could not provide evidence of the express consent, forcing the data protection regulator to conclude that there was none to begin with.
“Section 32(1) [of the Data Protection Act] places the burden of proof on the data controller or processor to establish a data subject's consent for the processing of personal data for a specified purpose,” said Ms Kassait.
This shines the limelight on small-time bloggers and influencers who occasionally post personal information about other people, sometimes without written consent, or without demonstrating public interest in the processing.
The ruling comes amid growing social media use in the country, as more people use them for marketing and entertainment. Facebook, WhatsApp, and TikTok are the country’s most popular social media platforms, used by 68 percent, 53 percent, and 30 percent of Kenyans, respectively.
