EMPLOYEE SUES EMPLOYER FOR USING HER IMAGE ON ITS SOCIAL MEDIA
James WaNjeri, Employment Lawyer
Social media has become more than a melting pot of ideas and discourse. It is now a marketplace that businesses have tapped into to advertise their products and find customers. Recently, a GWI report revealed that Kenyans spend the most time on social media worldwide and a report by Statista showed that as of January 2024, the number of social media users in Kenya stood at 13.05 million. Compared to 2014, the country had roughly three times more social media users in 2024. This trend is on an upward trajectory as Kenya’s youthful population continues to grow.
To get ahead of the competition and connect directly with their customers, businesses have adopted content creation through images and videos, on popular platforms such as TikTok, Instagram, and Facebook. Many of these videos have featured employees who are used in marketing the business. Unbeknownst to many employers, featuring employees on your social media presents some legal risks if not done within the law. Often, Employers will find themselves clashing with Employees’ right to privacy and the requirements of the Data Protection Act of Kenya (2019). While experience is the best teacher, it is better to learn from the experiences of others. In this newsletter, we highlight a case where employee privacy and data protection took center stage and it helps us to see how the Employment Court determines such cases.
On 15th November 2024, Justice Byram Ongaya (Principal Judge, Employment and Labour Relations Court) issued a judgment in PETITION NO. E061 OF 2024 ABINAYO vs HOUSE & FARM COMPANY LIMITED. The Employee was employed by a real estate company in February 2022, as a Sales Representative alongside other general duties. She was offered a salary with guaranteed commissions calculated based on each unit sold on behalf of the Employer. However, she was never issued with a written employment contract, but she operated from the Employer’s main office with occasional site visits to the units being sold.
While employed, the Employer caused the Employee to make promotional videos of the units being sold or take photos while at units in various places. These videos and photographs in which she appeared, were then used to promote the Employer’s business by uploading them to the company’s official Facebook page and TikTok accounts which had more than 11,000 followers. This fact was not denied by the Employer.
The employee raised her concerns about the use of her image and sometime in January 2024, she was issued with a Photo and Video Consent form by the directors for her signature giving authority to the Employer to use the same. This consent had been signed by the Employer, but it was undated. She declined to sign the form and raised concerns verbally with the directors. The Employer continued to use the videos and uploaded more photos of the Employee to market its business despite her concerns. In March 2024, the Employer summarily dismissed her from employment, citing prolonged unsatisfactory performance. However, she believed the dismissal was a reaction to her refusal to sign the consent form for the use of her images.
The contents of the consent which was presented in Court showed that it was:
1. To allow the Employer to use the Employee’s likeness in any photograph, video or other digital media taken or to be taken when working for the Employer in its publications including print or web-based publications.
2. To authorise them to edit, enhance, crop or otherwise alter any photo for use in their publications and, the employee thereby waives any rights for approval or inspection of any photos.
3. For the employee to assert that the photos and videos were the property of the Employer and will not be returned to her.
4. To state that the employee would not be entitled to any compensation or royalties for the use of the photos and videos. Further, she would release the Employer from any claims and liabilities that the employee and anyone claiming on her behalf may have or claim to have against the employer in connection with the consent.
It also indicated that the Employee understood the consent and she was signing it voluntarily.
In Court, the first issue for determination was whether the termination of her employment was carried out per the requirements of the Employment Act.
The Employer produced an employment contract, which did not have the employee’s signature. The Court rejected this document and found that she was not issued with an employment contract when she was employed as a sales representative. There was an employment relationship, even without the contract, and this had not been disputed by the Employer. She earned a monthly salary and earned a commission fee on sales made.
The termination had been done on the grounds of poor performance by the employee. The Court found that though they alleged poor performance, the employer did not show the particulars of the poor performance at termination, as required under Section 43 of the Employment Act, 2007 or, want of the petitioner’s capacity, compatibility and compliance with the respondent’s operational requirements as per Section 45 of the Act. The due process of a notice and a hearing in section 41 of the Act was not invoked at all.
Her performance was never in question prior to her services being terminated and she was one of the best-performing sales agents for the Employer. At the time of the termination, she had sold more than 20 units and the Employer owed her commissions for units sold to two clients. This position was not denied by the Employer. The termination of her contract was found to be unfair as it was based upon her refusal to sign the oppressive consent. It was blended with a violation of the rights and freedoms as well as the Employer’s malice to terminate upon the Employee’s well-founded grievance of refusal to sign the consent. She was awarded 12 months' salary.
Did the use of the Employee’s images on social media violate her rights?
The Employee argued that the arbitrary and continued use and or publishing of her image by the Employer on numerous and diverse platforms without her consent and for commercial gain was not only wrong but a clear violation of her fundamental rights guaranteed under the Constitution. She claimed psychological torture since the continued use of her videos and images on social media while in employment and especially upon being terminated had subjected her to ridicule and mockery from her friends and former colleagues. Her rights to human dignity and privacy were also violated. Further, she had been subjected to exploitation by the Employer publishing and using her image for their commercial advantage while she did not get any financial advantage.
In their defence, the Employer stated that the Employee’s informed consent was obtained voluntarily and without coercion, threat or undue influence attributed to it or its agent or employees. The other employees occasionally had their photographs taken while donning the Company’s branded t-shirts. They denied the Employee’s claims and stated that the use of her photographs had never been an issue until it rightfully relieved her of her duties for her unsatisfactory performance. It was further urged that her job description including the grant of consent for promotional purposes relating to the sale of properties and consequently agreeing to take the job amounted to guaranteeing the necessary consent.
The Court began by finding that Kenya’s laws had made provisions for how personal data is handled. First, Article 31 of the Constitution states that every person has the right to privacy and an Employer needs to have express permission to continue using the images of the Employee in sales advertisements and for gain for the period before and after the termination of the employment. The Data Protection Act requires that when processing personal data, consent is obtained and that consent should be properly explained to the Employee (data subject). The Consent can be revoked by the data subject. However, the revocation does not apply to data processed before revocation. The Employment relationship does not provide automatic consent for the employer to use the Employee’s data.
Kenya is a member of the International Labour Organisation (ILO) which has issued and published the “Protection of workers’ personal data, An ILO Code which provides, “10.2. A worker’s personal data should not be communicated for commercial or marketing purposes without the worker’s informed and explicit consent.”
The Court noted that before the Employee received the termination letter, she had raised a grievance about the violation of privacy because of the sales photographs or video clips with her image. The grievance persisted throughout the service. In the Court’s view, “It must be that the photographs were part of the sales strategy and there is no evidence to show that the respondent had obtained the petitioner’s consent for her photograph being commercially used while she was in employment of the respondent and after the separation.” Failing such consent, the Employee had a proper case for unfair labour practices and unfair invasion of her privacy. The court, therefore, found that her right to privacy had been violated by the Employer. “… by commercially using her personal data during the employment and after the termination of the contract of employment. The evidence is that the respondent did not obtain the petitioner’s consent as defined in the Data Protection Act, 2019 allowing the respondent to commercially use her photographs and videos in the respondent’s commercial property sales.”
Did the continued use of her image after she had been terminated amount to forced labour?
According to the International Labour Organisation (ILO) Forced Labour Convention, 1930 (No.29), forced or compulsory labour is all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.
The Judge found that “To the extent that the petitioner would not gain from the use of her personal data by the respondent in its commercial enterprise, it appears to the Court that the petitioner has established the violation of Article 30 on freedom from slavery or servitude and performance of forced labour. In particular, the respondent punished the petitioner by imposing the dismissal upon the petitioner’s objection to respondent’s commercial use of her personal data. Thereafter, the respondent appears to have continued to use the petitioner’s data unhindered. The commercial use of the petitioner’s personal data during the employment and thereafter the termination without obtaining her informed and explicit consent, in the Court’s opinion, amounted to forced labour.”
The Court also issued an injunction stopping the Employer from continuing to use the Employee’s photographs or videos, unless expressly agreed to or consented to by the Employee. For the Court, “continued use would infringe the petitioner’s right to fair labour practices contrary to Article 41 of the Constitution and her right to privacy…”
The continued use of the employee’s images “would also amount to misrepresentation or misleading the respondent’s customers to perceive that the petitioner is continuing as its employee or in its sales team, and, at no benefit to the petitioner. It amounts to unfair labour practice for the respondent to continue using such sales video images and photographs of the petitioner without due agreement.”
For violation of these rights, the Court ordered compensation for the sum of Kshs. 2,000,000, in addition to the Compensation for unfair termination.
Conclusion:
If your organisation was in Court, would you fair better? There are several ways to guarantee that legal risks in this area are avoided, covered and managed. The first is in the employment contract which should have a clear clause on the collection and use of the employee’s data. Secondly, every business should have a policy that guides it on data collection use and destruction. Further, there should be guidelines on using employee images for promotional activities and on the internet or publications. Finally, in the era of the Data Protection Act, a consent form is a must when a business wants to use the personal data of its employees. Consent by conduct is harder but not impossible to prove. The data consent form contains the terms and conditions of use and should be drafted under legal advisement.
Finally, when an Employer finds themselves confronted by a claim such as this, it is advisable to obtain legal advice before taking any action against an employee. The employment relationship is protected under the law and there are severe sanctions if unfair labour practices are observed. Lawyers are trained to help their clients navigate legal minefields and obtain favourable outcomes.
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
4th Floor, Ngong Lane Plaza,
Ngong Lane, off Ngong Road
Nairobi, Kenya
Email: legal@jnadvocates.com