Varsities Pay Heavy Fines for Unauthorized Use of Student Photos
The Kenyan Data Protection Act has fined two public universities for using pictures of learners in their marketing and advertising materials without permission.
The court ordered the University of Kabianga to pay Mr Shimlon Mwangi Kuria, a graduate of the University of Nairobi, Sh500,000 for using his image in its marketing materials without his permission.
In August last year, the court ordered Machakos University to pay Sh700,000 to Catherine Njeri Wanjiru, a former student, for unauthorized use of her image.
The Kenyan courts have consistently rejected the argument by universities that being public institutions and not engaged in profit, the use of such photos is not an infringement of students’ rights.
Universities should seek the permission of graduates and students to use their images in advertisements. Using photos without permission of the subject is an intrusion into privacy, courts say.
Section 29 of the Data Protection Act grants students and graduands, as data subjects, the right to know if their images will be used. The judgments indicate that universities should seek the permission of graduates and students to use their images in advertisements.
The University of Kabianga was ordered to pay Mr Kuria for using his image in marketing and soliciting funds from a regional commercial bank without his authority. The University of Kabianga exploited Mr Kuria’s identity/image for commercial gain without his consent, hence invading his privacy, contrary to the Constitution.
Ms Njeri found out that her photo was being used by the university in advertising and marketing of computer courses. On conducting online searches, she discovered that public commercial posts and advertisements by the university also had her image.
The photos were also in the website of the school, advertising the list of computer courses being offered. In addition, the school used Ms Wanjiru’s photo in a graduation gown on the website and other platforms.
Ms Wanjiru based her claims on Section 63 of the Data Protection Act. It recommends a maximum fine of Sh5 million or one per centum of the organization’s annual turnover of the preceding year of undertaking, whichever is lower.
The courts have declared the practice of universities having pictures of students taken during graduation ceremonies used without consent to be unlawful.
“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the individual’s unique characteristics and distinguishes the person from his or her peers,” said Justice Margaret Muigai in the Machakos University case.
“The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication.”
Varsities Pay Heavy Fines for Unauthorized Use of Student Photos