The public right to know, journalism practices and the data protection law

Former First Lady Mama Ngina Kenyatta

Former First Lady Mama Ngina Kenyatta on February 7, 2020, after receiving her 2019 Macky Sall Prize in acknowledgment of her role in mediating peace through dialogue.

Photo credit: File | PSCU

What you need to know:

  • The Code of Conduct for the Practice of Journalism in Kenya states that the public’s right to know shall be weighed against the privacy rights of people in the news.
  • It says the public’s right to know should be “legitimate and not merely prurient or morbid curiosity”.
  • The private affairs of a person should be protected “except where these impinge upon the public”.

Your payslip is private and confidential. But is it?

On November 15, 2019, Business Daily reported that former First Lady Mama Ngina Kenyatta receives a monthly pay of Sh568,218 at taxpayers’ expense.

The story, “Revealed: Mama Ngina Kenyatta’s State salary”, was updated on June 28, 2020, and republished in Nation.Africa.

The publication in the two NMG publications violates Mama Ngina’s privacy, though there could be good reasons for it.

The Code of Conduct for the Practice of Journalism in Kenya states that the public’s right to know shall be weighed against the privacy rights of people in the news.

It says the public’s right to know should be “legitimate and not merely prurient or morbid curiosity”.

The private affairs of a person should be protected “except where these impinge upon the public”.

In a November 9, 2021 judgment, in the case of Gloria Meli Musau & Another v Microsoft East Africa Ltd, Justice James Rika declined to allow the disclosure of employees' payslips, saying, they are protected by the Data Protection Act.

“It would be improper for the court to order disclosure of third parties’ private and confidential information,” he ruled.

The Act says personal information can only be used by the media in accordance with the privacy rights of the individual.

But the Act doesn’t provide clear guidance for the media. So I asked lawyer Mugambi Laibuta, a privacy and data protection specialist, for advice on how journalists can navigate through the narrows of the law.

Public interest

There has been a lot of debate on the extent to which the Act affects media practice, he says.

The Act seeks to give effect to the right to privacy under Article 31 of the Constitution.

It provides that “the principles of processing personal data” shall not apply where the data controller (in our case NMG) “reasonably believes that publication would be in the public interest”. Thus, NMG can publish Mama Ngina’s payslip in public interest.

The Act indicates that processing data in such cases should comply with the “Code of Conduct for the Practice of Journalism in Kenya”.

It also indicates that the principles of processing personal data may not apply where publication is made in the public interest.

But besides the journalism code, the Act requires the Data Commissioner to prepare a code of practice containing practical guidance for journalists. So far she hasn’t.

But, what would such a code provide? One, note that the Act doesn’t provide a carte blanche to media practitioners to act against all its provisions.

Secondly, there must be justification for a journalist to process personal data.

Such justification is also guided by the journalism code and the interest of the public. Public interest justification must be legal, express and reasonable.

Thirdly, data subject to rights such as that to information, consent and objection under Section 26 of the Act may be limited for publications in the public interest.

But where practicable, when collecting personal data for publication, a journalist must inform their sources that the information may be published.

Then the journalist must decide what information is relevant and accurate for publication so as not to breach privacy.

Fourth, journalists must be keen on the storage and security of personal data they obtain for publication.

Fifth, media houses need to have a policy on subject access requests:

To what extent may they provide data subjects—the people they write about—access to the personal data they have on them?

Journalists should get training on the provisions of the Act. Media houses ought to appoint data protection officers and review their policies and notices to comply with the Act.

Those with online platforms must have privacy notices on them. In addition, they must start preparing to register with the Office of the Data Protection Commissioner.

Notably, when media houses are processing personal data, not for journalistic purposes, they must fully comply with the Act.

Thanks, NMG, for the ease of reading the e-paper

Sir, on July 8, 2022, I wrote to you about the editorial quality of that day’s publication of your flagship print, the Daily Nation.

In the last paragraph, I noted how it is very complicated to access your paper online, discouraging its users. 

Two months later, I tried accessing the same online, just for the sake of it.

I must acknowledge that I was completely surprised by the improvement in the ease of subscription and access.

By just clicking on the headline, the article pops up for ease of reading; no need to zoom in or out.

This is highly commendable as that is the direction the world is heading.

I must thank the Nation Media Group for this bold stride that has improved product quality in an effort to satisfy the ever-rising expectations of the customer. 

Thank you.

— Benson Kimani

* * *

Retired journalists should go and rest 

Your article, “Media pundits: What you need to know as ‘Nation’ news consumer (Sept. 23, 2022), was good and spot-on. Now tell some of these retired journalists to go and rest. 

I mean, those journalists who worked with George Githii in the ’70s and don’t want to give the upcoming young men and women journalists a chance. Even generals hang their boots. 

Do we still have to read stories by Kwendo Opanga, Tom Mshindi, Gitau Warigi, Peter Njenga, Macharia Gaitho, Gerry Loughran and such others? They can join Raphael Tuju, Sabina Chege, Enoch Wambua and Mutahi Ngunyi in politics. Roy Gachuhi can also show them that there is life outside journalism.

— Ngure Kamau

* * *

I would love to know how can I send my article for consideration for publication.

— Francis Ojok

Public Editor: There is really no magic to sending articles. Just send your article to the appropriate email address given in the newspaper. 

In the case of the Daily Nation, the addresses are given in the Opinion section— usually pages 15, 17 and 18 (depending on the pagination).

For further information, call using any of the numbers given on the back page of the newspaper and ask to speak to the appropriate editor. 

* * *

Kudos, Daily Nation, for the excellent coverage of Queen Elizabeth II’s funeral.

— Alnashir D. Walji

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