Experience of Kenyan student whose photo was used to sell a university

Njeri Aseneka shared a story about her daughter, whose image and likeness was used by an Australian university without her consent.

I’ve decided to share the story with you because of its main takeaways.

First, reputable organisations, including news organisations, that depend on public goodwill, go out of their way to cultivate public trust and credibility.

They readily apologise and remedy wrongs. Second, it’s not always wise to rush to court when a dispute can be settled amicably.

I emphasise these takeaways because of their applicability to the job I do as the public editor for NMG.

After reading my article, “Reader’s guide on when your image can’t be used without your consent” (Daily Nation, December 17, 2021), Njeri wrote to say the article took her back some years when her daughter was a freshman at Edith Cowan University (ECU).

ECU, is a public university located in Perth, Western Australia. It has a student and public complaints and grievance policy.

Anyone can make a complaint, including lodging an appeal against academic or administrative decisions.

Splashed her face on billboards

ECU, Njeri narrates, used the image and likeness of her daughter to promote student enrolment. The university, which has a five-star rating for teaching quality (according to the 2022 Good Universities Guide), dubbed her daughter ‘The face of ECU’ and splashed her face on billboards on campus as well as the internet to drum up enrolment from ‘the continent’.

“I wrote to the college complaining since they had not obtained our consent to the use of her image. They apologised and promptly pulled down her photo, and also gave her a small scholarship as well as a part-time job on the campus.

“I could have pressed further but that would have put the spotlight on her even more, so we left it at that and she completed her studies with no further fanfare.”

“What impressed me was the quick manner in which the issue was resolved after just one letter, and not even a demand one at that. Over here, such cases have us (I’m a lawyer) jumping through hoops, including filing suits just to get simple reparations.”

If this happened in Kenya, I might add, it’s unlikely there would be a complaint in the first place and if ever there was one the results would probably be different.

Most Kenyans are ignorant of their legal claims pertaining to the invasion of privacy through misappropriation of their names and likeness and violation of their right of publicity. The “right of publicity” is the right of a person to control and make money from the commercial use of her identity.

The protection of privacy and publicity rights are rooted in the Constitution and were recently reaffirmed in the Data Protection Act.

However, a survey released on May 6 found that 70 per cent of Kenyans remained unaware of the Data Protection Act nearly one and a half years after it came into force.

Misuse of personal images

The Act specifically protects a person’s personal information including their name and likeness. The survey also found that only 54 per cent of Kenyans are aware they have the right to privacy.

The survey by Infotrak Research and Consulting Ltd was commissioned by Amnesty International Kenya.

Privacy and publicity rights cases that have gone to the courts show offending organisations, seem to think they can get away with misuse of personal images because of the general ignorance in the country. In fact the arrogance, disrespect and high-and-mighty displayed is astounding.

For example, in case of Mutuku Ndambuki, a microfinance bank used an audacious and sly method to take his picture and use it in its “Get a Boda” promotion campaign.

He had successfully repaid a loan he had taken from the bank.

Then the bank told him that they needed to take his photograph because he was a loyal customer. They did not disclose they were going to use his image in an advertising campaign.

We encourage people to speak out when they think their privacy and rights of publicity are likely to be violated in the course of NMG journalism and we are glad to put it right where justified.