Penalty on club elicits debate on data protection and privacy laws

Konka, South Africa's most popular luxury club. It's located in Johannesburg. [Courtesy]

On Tuesday, the Office of Data Protection Commissioner released three penalty notices.

Among them was one against a Digital Credit Provider, which was fined Sh2,975,000 and another against a school that was fined Sh4,550,000 for publishing a minor’s photos without parental consent.

However, what caused an uproar online was the fine imposed on Casa Vera Lounge, a restaurant located on Ngong Road, Nairobi.

The establishment was fined Sh1,850,000 for posting a reveller’s image on their social media without their consent.

“This penalty seeks to ensure that other lounges clubs etc. seek consent from their customers before posting their images online,” read a statement from the data privacy regulator.

According to the Data Protection handbook, data privacy is crucial to protecting personal information, maintaining individual rights and preventing potential harm. It is an important aspect of building trust and maintaining positive relationships with individuals and other stakeholders.

According to a letter dated October 16, 2022,  filed by Perpetual Ndegwa & Company Advocates on behalf of Ann Wangui Mwangi and Perpetual Wanjiku Ndegwa, the establishment breached their clients’ privacy.

“While our clients are concerned by the commercial use of their work for advertisement of your facility, they are further aggrieved by invasion of privacy, violation of right of publicity and defamation,” read the letter.

A manager at Casa Vera did not divulge much but said their lawyers were handling the matter.

“I would not like to comment on the subject matter at the moment but our legal team is working on solving the issue in the right manner,” said Billy Williams, the Casa Vera Lounge Entertainment manager.

Post disclaimers

“Furthermore, we have had a disclaimer at the entrance of our establishment warning our customers on the same, and in this case, I would assume they blatantly ignored the directives,” he added.

Opinion was divided with other establishments posting their disclaimers on photography in their premises on social sites.

“Disclaimers can, and do only work where product users (in this case revellers) are aware of them and accept them. If the club’s management can demonstrate that the customer was aware of the disclaimer, then they can put up a successful defence. If the reveller, on the other hand, shows that they were not brought to his attention, he definitely will succeed in an action against the club,” said Lincoln Onyango, a lawyer.

With the rise of social media and the constant need for capturing and sharing moments, it is not uncommon to find photographers roaming nightclubs, capturing candid shots of partygoers and documenting the same on their social media platforms.

“Unlike back in the day, partygoers now want to have visual nourishment of the club’s ambience, the attending crowds, the fashion trends and what you have to offer,” said business owner Ali Oumarou from Kulture Lounge, in an earlier interview.

While nightclub photography can be seen as a way to document the vibrant nightlife and create memories, it often crosses boundaries when it invades individuals’ privacy.

The invasion of privacy through nightclub photography raises several ethical questions. Should individuals have the right to control how their image is used or shared? Should there be stricter regulations in place to protect people’s privacy in these settings?

Human right

Personal Data Protection in Kenya is governed by the Data Protection Act of 2019. The Act gives effect to Article 31(c) and (d) of the Constitution of Kenya which contains the right to privacy which is a fundamental human right. provides for the protection of personal data by requiring organizations to obtain consent from individuals before collecting, using, or disclosing their personal information.

“The legal principle for anyone obtaining your data is that they must get your consent. So generally, you’ll find that you would be signing an image release. An image release is a simple contract that is signed by the data subject or the individual, accepting that the image will be used or shared somewhere. That document must be succinct, it must be clear,” says Intellectual Property and Entertainment Lawyer Liz Lenjo.

Nightclubs are often considered spaces where people can let loose and enjoy themselves without judgment. However, with the rise of smartphone cameras, individuals’ privacy can easily be compromised.

“As an establishment we are responsible for everything we put on our social media for marketing purposes. It’s necessary to protect the client and the establishment. The Sh1.8 million for Casa Vera was too much,” said Anthony Rajoro, the Marketing Head, Kentwood Address, Runda.

“General disclaimers cannot stand to waive the rights of the data subjects. Just because I entered into a club with such a disclaimer, do I give them the right to post a photo of my topless self (for ladies)? There’s a limit to the extent of what can and cannot be shared out there,” added Lincoln.

“Under the Data Protection Act, for data to be used, consent must be sought and the consent must be expressed and equivocal, free, and specific, and informed indication of the data subject’s wishes by a statement or by a clear affirmative action,” said Lenjo.

“Furthermore this consent can be withdrawn at any time. So it is not just because I agree to data that means I cannot change my mind tomorrow, in law we call that an opt-in, opt-out option or flexibility,” she said.

Come clean

For one to have the right to obtain and use someone’s data, they must be licensed by the Office of Data Protection Commissioner and come clean and declare what kind of data they are in control of and the intended use of the same.

“In case an individual or an entity defies that, then they would be answerable under the Data Protection Act, and they mostly get what is known as criminal sanctions to that. And then one could still pursue this entity on a civil liability issue as well.

“So it could be it would be like two prongs if I’m an aggrieved party I would ensure that I first take you to face criminal sanctions and then on the civil side where now I’m compensated. On the criminal side, you will be paying penalties to the government,” said Lenjo.

“We filed the case against the club and as the outcome came out we were right. But at this juncture, I am thinking of whether to press more charges on the civil side, I am yet to get the way forward,” said Ms Ndegwa who pressed charged against Casa Vera.

While nightclub photography can capture exciting moments and contribute to documenting our social lives, it should never come at the expense of invading someone’s privacy. Striking a balance between capturing memories and respecting personal boundaries is essential for creating a safe and enjoyable nightlife experience for all.

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