Kenya Orient Insurance Limited has found itself on the wrong side of the law after the Milimani Commercial Court ruled that they used a client’s photo on their Facebook page without his consent. Mr Kevin Kimani Mungai sued Kenya Orient after a photo of him appeared on the insurers Facebook page as an ad.
Kevin claims that Kenya Orient did not seek express permission from him to use his photo as a marketing tool on their social media page. “The advertisement ran from October 18, 2013 and received over 18,700 likes and visitors for the defendants (Kenya Oriental Insurance) own economic gain,” said Titus Koceyo, Kevin’s advocate.
According to Kevin, Kenya Orient took the photo when he took his phone, which was insured with the defendant, for repairs. Kevin asked the purpose of the photo and he was told that it was proof that the device had been fixed to avoid any further claims.
He later found out, through friends and family that his photo was being used as an ad on Facebook. Kenya Orient did admit that they posted the photo and claimed that this was a customary practice and not for economic gain. The defendant also urged the court to dismiss the case on basis that Kevin Mungai did not suffer any damages or loss.
However, senior principal magistrate Addah Obura, who was presiding over the case, ruled that there was no evidence that Kevin Mungai had consented to the use of the photo in such a manner. “Such consent was necessary,” said the magistrate. The court awarded Kevin Kimani Mungai Kes.500,000 plus costs and interest after ruling that Kenya Orient posted the photo in order to gain financial mileage in business.
“This clearly is a form of marketing in the eyes of an ordinary man. Orient is in the insurance business… It is not convincing that they were merely advertising and were not gaining anything from such visits to their Facebook page,” she added.
The case took almost five years to rule but it sets a precedence on how brands and corporates handle people’s photos online. It is a common occurrence for brands and corporates to share images of customers and event attendees on their social media pages without proper consent. This ruling should send shock waves, especially to Instagram accounts that use people’s photos to market the products they are selling.
