Trainee Advocate at TripleOkLaw LLP||Legal Researcher โCurrently Researching on Image Rights and Copyright Law.
On May 15, 2024, the Office of the Data Protection Commissioner delivered a decision regarding the post-employment use of videos featuring former employees. Here's why this decision deserves a closer look: ๐๐๐ฌ๐ ๐๐๐๐ค๐ ๐ซ๐จ๐ฎ๐ง๐ The complainant alleged unauthorized use of his image in a video post-resignation. Initially created for marketing purposes during his employment, the video continued to be used by the employer even after his resignation. โ๏ธ ๐ป๐๐ ๐ซ๐๐๐๐๐๐๐ The ODPC determined that the employer failed to obtain the complainantโs consent for continued use of their image after separation from employment. Consequently, this was deemed commercial exploitation of the complainant's image and awarded KES 500,000 to the complainant. ๐ฉ ๐ท๐๐๐๐๐๐๐ ๐๐๐๐ ๐๐๐ ๐ซ๐๐๐๐๐๐๐ While the decision rightfully focuses on data subjectsโ rights, it failed to take into account the employment context under the "๐๐๐๐ ๐ ๐๐๐ ๐๐๐ ๐๐๐๐"ย principle in this particular case.Had the ODPC considered the following aspects, a different conclusion might have been reached: ๐ ๐๐ค๐ง๐ ๐ฟ๐ค๐ฃ๐ ๐๐ค๐ง ๐๐๐ง๐ ๐พ๐ค๐ฃ๐๐๐ฅ๐ฉ This principle dictates that work created within the scope of employment belongs to the employer, unless otherwise agreed. ๐๐ฏ ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฎ๐ฆ๐ฏ๐ต ๐ค๐ฐ๐ฏ๐ต๐ฆ๐น๐ต๐ด, ๐ช๐ง ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฆ๐ฆ๐ด' ๐ท๐ช๐ฅ๐ฆ๐ฐ๐ด ๐ฐ๐ณ ๐ช๐ฎ๐ข๐จ๐ฆ๐ด ๐ธ๐ฆ๐ณ๐ฆ ๐ถ๐ด๐ฆ๐ฅ ๐ฅ๐ถ๐ณ๐ช๐ฏ๐จ ๐ต๐ฉ๐ฆ๐ช๐ณ ๐ต๐ฆ๐ฏ๐ถ๐ณ๐ฆ ๐ง๐ฐ๐ณ ๐ญ๐ฆ๐จ๐ช๐ต๐ช๐ฎ๐ข๐ต๐ฆ ๐ฃ๐ถ๐ด๐ช๐ฏ๐ฆ๐ด๐ด ๐ฑ๐ถ๐ณ๐ฑ๐ฐ๐ด๐ฆ๐ด ๐ข๐ฏ๐ฅ ๐ข๐ญ๐ช๐จ๐ฏ๐ฆ๐ฅ ๐ธ๐ช๐ต๐ฉ ๐ต๐ฉ๐ฆ๐ช๐ณ ๐ซ๐ฐ๐ฃ ๐ณ๐ฐ๐ญ๐ฆ๐ด, ๐ต๐ฉ๐ฆ๐บ ๐ฎ๐ข๐บ ๐ฏ๐ฐ๐ต ๐ค๐ญ๐ข๐ช๐ฎ ๐ฆ๐น๐ฑ๐ญ๐ฐ๐ช๐ต๐ข๐ต๐ช๐ฐ๐ฏ ๐ช๐ง ๐ต๐ฉ๐ฆ๐ด๐ฆ ๐ฎ๐ข๐ต๐ฆ๐ณ๐ช๐ข๐ญ๐ด ๐ข๐ณ๐ฆ ๐ถ๐ด๐ฆ๐ฅ ๐ฑ๐ฐ๐ด๐ต-๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฎ๐ฆ๐ฏ๐ต.ย ๐๐ฐ๐ธ๐ฆ๐ท๐ฆ๐ณ, ๐ช๐ง ๐ต๐ฉ๐ฆ ๐ถ๐ด๐ฆ ๐ฆ๐น๐ต๐ฆ๐ฏ๐ฅ๐ด ๐ฃ๐ฆ๐บ๐ฐ๐ฏ๐ฅ ๐ข๐จ๐ณ๐ฆ๐ฆ๐ฅ employment ๐ต๐ฆ๐ณ๐ฎ๐ด, ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฆ๐ฆ๐ด ๐ณ๐ฆ๐ต๐ข๐ช๐ฏ ๐ณ๐ช๐จ๐ฉ๐ต๐ด. โHowever, valid claims may arise if: ๐โ๐ ๐ฃ๐๐๐๐ ๐๐ ๐ข๐ก๐๐๐๐ง๐๐ ๐๐๐ฆ๐๐๐ ๐๐๐๐๐๐ ๐๐ข๐๐๐๐ ๐๐ ๐โ๐ ๐ฃ๐๐๐๐ ๐๐ ๐๐๐๐๐๐ฆ๐๐ ๐๐๐ ๐๐๐๐๐๐๐๐๐๐ ๐๐๐๐ ๐๐๐ฆ๐๐๐ ๐๐๐๐๐๐ ๐ก๐๐๐๐ Otherwise, employers will be compelled to adopt practices that are not commercially viable, leading to significant legal and operational complications. Employees' legal recourse depends on whether the usage of their image or video aligns with ๐ฉ๐ซ๐ข๐จ๐ซ ๐๐จ๐ง๐ฌ๐๐ง๐ญ ๐๐ง๐ ๐ฃ๐จ๐ ๐๐ฑ๐ฉ๐๐๐ญ๐๐ญ๐ข๐จ๐ง๐ฌ. This balance is key to protect employees' rights as data subjects while respecting employers' business needs and practicalities. Employees who consented to their video or image being used while employed can request removal after leaving by sending a cease and desist letter. This process respects their rights to control their personal data, ensuring their privacy is maintained. ๐Every case tells a story. For precedents that shape the narratives of justice, follow my page, share my posts, and feel free to inbox me for engaging discussions See attached copy of the judgement.
Benson Odiwuor Otieno Do an employee's image rights constitute "work done for hire"? Are those not meant to be obtained under separate consent - if you look at sports stars contracts, the issue of image rights is always negotiated and agreed to in separate and specific terms often different from the terms of what they are being hired to do? What were the terms of such separate consent in this case? My quick thoughts based on your analysis even before reading your decision.
My thoughts: The ODPC's decision was right in that it was focusing on the rights of the Complainant post resignation. The Complainant argued that his consent ought to have been sought post resignation hence the conclusion that the his rights were violated. It was not for the ODPC to venture into the issue of whether the Complainant was agitating for his rights while still under employment. That was not an/the issue before.. Great insights though ๐ Let the discourse continue
Karoki William, your thoughts?
Trainee Advocate at TripleOkLaw LLP||Legal Researcher โCurrently Researching on Image Rights and Copyright Law.
2moFor example, consider an employee who was hired to create instructional videos demonstrating how to log into the company's portal. These videos, created in the course of employment and uploaded to YouTube, serve to communicate the business of the employer. It would be unfair and economically impractical for the employer to be barred from using these videos after the employee leaves the company. The employer invested resources in producing these videos, which remain useful for training and customer support. Forcing the employer to remove or redo these videos would result in unnecessary financial loss and disruption to their operations. However, employers must ensure that there are stringent contractual clauses to address such situations and provide total protection. Contracts should explicitly state the extent and duration of the rights to use the employeeโs image, both during and after employment. This includes clear terms regarding the use of images in promotional materials, instructional videos, and other business-related content.