A recent court ruling has clarified the rights of an internet service provider (ISP) like Zuku (Wananchi Group) to a customer’s data.
The decision, which overturns a prior ruling by the Data Commissioner, serves as a significant precedent for both companies and consumers on contract termination and data usage.
The case began as a dispute between Zuku and a customer named Victory Owino. In October 2022, Owino, a former Zuku subscriber, tried to close his account. However, he did not return his Zuku router or provide an address for the company to collect it.
Victory believed his agreement with the ISP was over. When Zuku continued to use his data to send promotional messages, he viewed it as an illegal use of his private information and filed a complaint with the Office of the Data Protection Commissioner (ODPC).
The Data Commissioner ruled against the ISP in 2023, finding it responsible for infringing on the customer’s rights and violating its obligations under the Act.
As a result, the company was ordered to pay the customer KES 250,000. However, Zuku appealed the Data Commissioner’s decision in the High Court.
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Penalty on the ISP Was Wrong
While the 1st respondent (the customer) had initiated a process to end the relationship, they had not given the required notice or returned the router. The contract was considered still active, especially since many customers go for months without renewing their subscriptions.
The court’s judgement was based on the fact that the contract between Zuku and its customer could only be terminated by following specific clauses, which required a 30-day notice and the return of the equipment.
“The Data Commissioner cannot deem that the contract terminated. The commissioner was thus wrong in finding that the contract was terminated by dint of clause 2.5 of the agreement,” reads part of the ruling.
In addition, the judge emphasized a core principle of law: “A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud, or undue influence are pleaded and proved.”
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This ruling suggests that Zuku can lawfully retain and potentially use customer data as long as the contractual obligations, particularly the return of equipment, have not been met.
In fact, Zuku could even use this information to pursue its legal rights if the contract was terminated without the equipment being returned.
Judge Kizito Magare wrote, “So long as the contract subsisted, the Appellant retained both a legal duty to preserve the data and a legitimate interest in its continued possession. In fact, if the contract was terminated while the router remained unreturned, the Appellant would be entitled to use the information therein to vindicate its legal rights.”
Customers like Victory, who do not follow the contract’s termination process, could find their data rights limited until they comply. The court’s decision overturned the Data Commissioner’s previous ruling and dismissed the customer’s complaint.
Victory was ordered to pay Zuku KES 65,000 to cover legal costs.
