Google Kenya Ltd, the marketing company of global technology giant Google LLC, has asked the High Court in Nairobi to throw out a case on alleged invasion of privacy and breach of Kenyan data protection rules.
The company said it was wrongly sued since it does not store data of internet and smart phone users as alleged by the petitioners, African Centre for Corrective and Preventive Action (ACCPA) -a rights lobby group.
Since the heart of the case centers on allegations that the international internet company violated privacy of Kenyans by illegally tracking Android users and collecting personal information such as face photos of internet consumers, Google Kenya said it has been wrongly cited by the petitioners.
It explained that the services in question are provided by Google LLC, which is based in the United States of America, and that the court petition has "no real prospects of success".
Google Kenya said that it does not store or process the personal data complained of by the petitioners.
"A clear examination of the Petitioner’s ICT Expert Report confirms that the Google services, which are the subject of these proceedings, are indeed provided by Google LLC. Therefore, based on the Petitioner's own explicit admission, it is an undisputed fact that the services are offered by Google LLC and not by Google Kenya," said the company through Kaplan & Stratton Advocates.
In the written arguments filed in court, the advocates said the legal import of the petitioner's admission is that Google Kenya should not be a party to the court case and it should be struck out.
The lawsuit filed in March this year alleges that the internet search company has been breaching Kenya’s data protection laws by illegally invading the privacy of users and collecting the users’ biometric information like photos.
It also alleges that Google, through the Global Positioning System (GPS), “is aptly able to track the movement of Android users without their explicit consent”.
The petitioners claim that the internet company collects, processes and stores facial recognition information and personal information of users through Google Photos without their knowledge and consent. They are seeking damages for the alleged breach of privacy.
They sued Google Kenya Ltd, the Attorney-General, Cabinet Secretary Ministry of ICT, the Data Commissioner and Communication Authority of Kenya.
But in the written arguments Google Kenya said that it is not the entity responsible for providing the Google services and that it lacks capacity to comply with the court orders sought by the petitioners.
Stating that Google Kenya is separate and distinct from Google LLC, the advocates explained that their client is a limited liability company incorporated in Kenya and that it carries on the business of marketing support services, research and development.
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"Google LLC is a company incorporated in Delaware, United States, with its principal place of business in Mountain View, California, United States. Google LLC does not have any branches or operations in Kenya. Google Kenya is not an agent, liaison office, legal representative or branch office of Google LLC. Google Kenya is a separate legal entity from Google LLC," said the advocates urging the court to reject the lawsuit.
They said Google LLC is the entity that provides Google Photos, Google Play Store, Chrome OS and the Android OS services and other Google mobile and computer applications, which are the subject matter of the Constitutional Petition.
"Google Kenya does not offer Google services and as such cannot collect personal data or determine the purposes and means of processing any personal data pertaining to users' of Google services. The exclusive data controller responsible for such processing of personal data is Google LLC," said the Advocates.
They added there is no serious issue to be tried by court in relation to the allegation that Google Kenya has any liability to the petitioners in respect of Google Services.
The case is pending determination by Justice Mugure Thande.