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Nightclubs react to ODPC fine with ‘consent’ warning
Following the recent fine imposed on Casa Vera Lounge, a restaurant located on Ngong Road, Nairobi, nightclubs in the city have responded by making it clear that patrons choosing to unwind at their establishments may be subject to photography and video recording.
Establishments such as Tribe Onyx Club, Texas Barbeque, and Quiver Lounge Kilimani have issued warnings of implied consent to revellers entering their premises. They stated that photos and videos may be used on websites and social media, and customers should not expect compensation or file lawsuits for violations of the right of publicity, defamation, or copyright infringement.
The statement from Onyx read in part: “Your entry and presence on the premises constitute your consent to be photographed, filmed, and/or otherwise recorded and to the release, publication, and reproduction of any and all recorded media of your appearance, voice, and name for any purpose whatsoever in perpetuity in connection with Onyx KE and its initiatives, including by way of example use on websites.”
Quiver Lounge Kilimani and Texas Barbeque echoed a similar sentiment and concluded their statement with, “Do not enter the area if you do not agree to the foregoing.”
The Data Protection Commissioner (ODPC) fined Casa Vera Lounge Sh1.85 million for posting a reveler’s image on their social media platform without consent. The ODPC cited a violation of data privacy rights and non-compliance with the Data Protection Act as the basis for the fine. This penalty aims to encourage other lounges and clubs to seek consent from customers before posting their images online.
“Article 31 of the Constitution protects individuals’ privacy rights, and Article 31(c) safeguards an individual’s information relating to family or private affairs from unnecessary disclosure. Therefore, clubs do not have the right to post photos on social media without consent unless it can be proven that customers willingly posed for the photos,” the ODPC statement read in part.
The primary purpose of nightclub photography is to enhance the club’s online visibility, promote its activities, attract clientele, serve as an archive of club events, and maintain an active social media presence.
In another ruling, ODPC also fined Roma School Mixed Day & Boarding Primary School in Uthiru a total of Sh4.55 million for posting a minor’s images without parental consent.
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