Disclaimers posted on the social media pages of various nightclubs warning that entering the premises constitutes consent for them to take photographs of you and use them for marketing purposes have no legal basis, the Office of the Data Protection Commissioner has warned.
Immaculate Kassait, the Data Commissioner, said the clubs' disclaimers were not sufficient to allow the premises to take photographs of revellers, as they still needed to obtain consent from patrons to do so.
Ms Kassait added that disclaimers put inside the clubs also do not constitute consent.
"The disclaimers that have been shared by the various clubs are still not enough for them to go ahead and share the images. For the clubs to do that, they need to get written consent from the customer that they have allowed the company to use them and explain for what purpose," Ms Kassait said in an interview with Nation.Africa.
For photos and videos, Ms Kassait said the consent should come with the period of time the person wants the consent to be valid.
"It is good to educate people that such consents should also come with the number of days, months or years they want a company to use the details," she said, however, adding that if one signs such documents that do not have such details, then they have nothing to worry about.
According to Ms Kassait, the only time you do not have the right to raise concerns if your photos, videos or phone calls have been tracked is if there is a written consent that you have signed.
Take photos of revellers
Nightclubs in Nairobi and other cities have over the past two days posted a flurry of notices on their social media accounts purporting to have the right to take photos of revellers for their use -with consent drawn from the mere fact that a patron has entered the premises.
The notices came after Kilimani-based Casa Vera Lounge was fined Sh1,850,000 for sharing the image of a reveller on its official social media pages.
In response, many clubs issued disclaimers stating that by entering their premises, one is deemed to have consented to being photographed and the photo subsequently used for any other purpose.
The clubs that issued the notices, which included The Loft, Da Place, Quiver lounges, Tribe Onyx and Kikao Chill and Drive, among others, informed customers that the venues were places where photographs and videos would be taken and used for marketing purposes.
Club Da Place, for example, stated that it would be exempt from any liability if photographs were taken and used for promotional purposes.
Do not want to be photographed
Quiver and Club Tribe Onyx said revellers should not enter their clubs if they do not want to be photographed.
Kikao Chill and Drive, however, warned revellers not to allow themselves to be photographed inside the club; and that those who do should be prepared to have their images posted on social media sites.
The issue of consent, says Ms Kassait, extends to CCTV technology in premises.
When you enter a place that has CCTV, there is always a disclaimer that the place is under camera surveillance, but that does not give the management consent to share your images or videos.
“The main purpose of CCTV footage is to provide security, and if you are not involved in any criminal activity and your photos or videos are still doing the rounds on social media, it is considered illegal," says Ms Kassait.
The case is no different from taking an online taxi to work and the driver, without the client's consent, starts making calls or sending messages asking for something not related to the ride.
Before entering a building
It is similar to being asked to leave your ID details - and sometimes the card itself - before entering a building.
If that information is used later when someone follows up and makes calls or sends text messages, that is also illegal, warned Ms Kassait.
Another illegality arises when an institution wants to use photographs of children. This can only apply to school magazines, and then only if the parents have given their consent.
It is still illegal to post children's photos and videos on social media or even use them on billboards without their parent's consent.
Similarly, the Commissioner said, digital money lending companies have no right to call other people who know a person who has borrowed money from them but defaulted.
Ms Kassait said the digital money lending companies should deal with the person who directly benefited from them.
"Why should they call people who have never contacted them to ask for money? They should deal with their clients and not people related to the clients," said Ms Kassait.
She advised Kenyans to familiarise themselves with the Data Protection Act 2019.