When right to erasure of personal data held by media doesn’t apply

A former employee of Nairobi Hospital is unhappy with the Nation for not granting him “the right to erasure”. This is the right in the Data Protection Act where a person can request for his personal data to be erased. Personal data is defined as “any information relating to an identified or identifiable natural person”.

The Act allows for “anonymisation”, i.e. removal of personal identifiers from personal data so that the subject is no longer identifiable.

This is what the former Nairobi Hospital employee, let’s call him Meme Generator, is seeking. He wants his name redacted from a story published by the Sunday Nation and Nation.Africa.

The facts behind his erasure bid are that another former employee of the hospital was awarded Sh1.3 million for unlawful dismissal. The court, in which Mr Generator gave evidence in defence of the hospital, found she was dismissed without being given a chance to defend herself. This is a breach of the employment law.

The Nation story says Mr Generator gave false information to the effect that a disciplinary hearing was held and the employee given a chance to defend herself. “Clearly, [Mr Generator] tendered false documentary evidence before the court of an alleged disciplinary hearing, which he did not attend,” the court said. “It is therefore without hesitation that the court finds that the evidence… is false and is incapable of belief by the court.”

Mr Generator now wants the Nation to remove his name from the story. “I have been mentioned as to have provided false information and yet I was acting on behalf of Nairobi Hospital, which was my employer,” he says.

“Mentioning my name is defaming since I was only representing an office which I held at the time. I have since left Nairobi Hospital employment and this article only paints me in bad light even to my current employer. My prayer is that my name is retracted from the report.”

However, the Data Protection Act does not apply in his case. Section 40 of the Act only allows rectification or deletion of personal data that is inaccurate, outdated, incompetent, irrelevant, excessive, misleading, obtained unlawfully, or is no longer authorised to be retained. None of these requirements apply in his case.

Judge’s finding

Mr Generator is demanding that his name be purged from the story merely because of the judge’s finding that he lied, and the fact that he was defending his employer. It’s a novel claim that is not known to journalism. The NMG Editorial Policy can’t come to his aid. Nor the Code of Conduct for the Practice of Journalism in Kenya or journalism ethics.

In journalism, the only cases in which the identity of persons can be redacted from news stories are those of children involved in crime, sexual abuse and other heinous activities. Names of victims of rape (usually women) are also redacted.

The NMG Editorial Policy also allows information already published to be removed because of compelling legal reasons, such as if the story is defamatory, violates privacy rights, is plagiarised, or is an infringement of copyright. It can also be taken down if it’s fundamentally or entirely inaccurate and untrue and cannot be corrected. Further, a story can be removed if it is obsolete, unfair and endangers someone’s life. None of these conditions apply in Mr Generator’s case.

Mr Generator claims the Nation story defames him. That may well be so. But, being a court report, the story is privileged. It’s not actionable. The Defamation Act, 1970 states in Section 6: “A fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged.”

An even more overwhelming reason against granting Mr Generator’s request for erasure is the fact that journalism is exempted from the general principles of processing personal data under the Data Protection Act. In addition, Section 52 of the Act states that the principles do not apply where the data controller, in this case the NMG, reasonably believes that publication would be in the public interest, among other things. Under Section 51, court proceedings – which form the basis of the Nation story – are exempt from the general principles of processing personal data.

Hard luck, Mr Generator.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264