The Constitution of Kenya 2010, the Copyright Act 2001, and the Data Protection Act 2019 are legal frameworks that govern the use and reposting of photos online.
In addition, the Kenya Copyright Board (KECOBO) and the Office of the Data Protection Commissioner (ODPC) are empowered to take action when laws are violated.
Article 28 of the Constitution of Kenya 2010 states that every individual has a right to be treated with dignity and respect.
In addition, the Constitution guarantees every person the right to privacy, including protection against the unnecessary disclosure of information about their private affairs.
“Every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed,” Article 31 of the Constitution of Kenya 2010 states.
Reposting a photo without consent can breach both articles, which the ODPC considers when adjudicating complaints about unauthorized use of images.
Laws Guiding Reposting Photos
The Copyright Act 2001 classifies photographs as artistic works, dictating that the person who takes the image automatically owns the copyright without requiring any registration.
Section 26 of the Act grants the owner the exclusive right to reproduce the work, distribute it, and communicate it to the public.
However, the Act states that reposting is reproduction, whether it is using an image as a thumbnail or in a reel, this is considered as communication to the public, and without the owner’s permission is considered infringement.
Unlike the belief that most Kenyans have that crediting the photo as photo courtesy will not be infringement, KECOBO has stated clearly in its advisories that acknowledgment is not permission.
For a repost to be done without incurring penalties, one requires a license or written consent from the copyright holder, according to KECOBO.
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Liability Due to Reposting Photos
Under the Data Protection Act 2019, any photograph qualifies as personal data because they identify individuals.
The Act states in Section 37 that an individual may not use another person’s personal data unless the owner freely and without threat consents.
“A person shall not use, for commercial purposes, personal data obtained pursuant to the provisions of this Act unless the person has sought and obtained express consent from a data subject,” the Act states.
In addition, the Act states that a person posting a photo on their own page has not consented to the reposting of it, using it to promote a product, or cropping it for brand content.
Also Read: When Cybercrime Tools Are Legal Under Kenya’s Law
Penalties
The Copyright Act allows fines of up to KSh 800,000 or imprisonment for infringement. The Data Protection Act empowers the ODPC to levy fines running into millions of shillings.
Affected individuals whose photos and personal data have been used without consent can also pursue civil damages independently.
A recent case report from the ODCP shows that organizations that breached the law have been ordered to pay a penalty of up to KSh 500,000 for using a person’s image in marketing materials without permission.
Reposting photos involving minors requires sensitivity when handling the ODCP, requiring one to obtain consent from the parents or guardian before use.
In addition, social media platforms such as Instagram routinely remove flagged content, damaging follower counts and monetization eligibility.
