Recently, the publishing of adult-rated content has become commonplace within social platforms. Quarters are finding comfort in disseminating ‘very personal’ data that is oftentimes calculated to indignity persons (data subjects). Whatever the justification or cause, this trend continues to mar the societal fabric of decency and orderliness including in the exponential digital society where a single button click could reach millions in milliseconds. As noted by Lord Hoffman in R v Brown:(1)
“One of the less welcome consequences of the information technology revolution has been the ease with which it now is possible to invade the privacy of individuals…in greater comfort and safety…exposing the right to keep to oneself under technological threat.”
Article 31 (c) and (d) of the Constitution provide that every person has the right to privacy including the right not to have information relating to their private affairs unnecessarily revealed or the privacy of their communications infringed.
The Computer Misuse and Cybercrimes Act, 2016 (CMCA) speaks of wrongful distribution of obscene or intimate images thus:
A person who transfers publishes, or disseminates the intimate or obscene image of another person including making a digital depiction available for distribution or downloading commits an offense and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.
A similar penalty is due on conviction of a person who sends an electronic message that materially misrepresents any fact upon which reliance by another person is caused to suffer any damage or loss under S. 38(2) which could be interpreted to include photoshopping of obscene content in respect of a data subject.
Under the Data Protection Act, 2019, (DPA) which inter alia regulates the processing of personal data and provides for the rights of data subjects, data processing is defined to include alteration and disclosure by transmission, dissemination, or otherwise making available of personal data which is defined under the Act as any information relating to an identified or identifiable natural person. The maximum penalty in relation to infringements under the DPA is five million shillings.
The DPA also provides certain exemptions where the principles on the processing of personal data are relaxed including; where personal data is processed by an individual in the course of a purely personal or household activity, in the public interest, in the publication of literary or artistic material or where compliance is incompatible with special purposes.
Both Acts (3) provide for compensation of the data subjects in respect of whom the provisions of the respective Acts are contravened.
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1 [1996] All ER 555-556
2 S. 37
3 S.45, CMCA and S.65, DPA