How to File a Complaint with the ODPC

Unsolicited promotional messages can be a nuisance, especially when received without consent. In Kenya, the Data Protection Act, 2019, safeguards consumers against such unauthorized marketing practices. This article outlines the steps to file a complaint and legal action against companies that persistently send unwanted promotional messages.

1. Understand Your Legal Rights

The Data Protection Act 2019 prohibits the use of personal data for commercial purposes without the explicit consent of the data subject.

Specifically, Section 37 of the Act states that personal data should not be used for direct marketing without obtaining express consent from the individual.

2. Gather Evidence

Collecting concrete evidence is crucial to support your case. Ensure you have:

• Screenshots of Messages: Capture images showing the sender’s details, content, and timestamps of the unsolicited messages.
• Records of Unsubscribe Attempts: Document any efforts made to opt-out, such as replying with “STOP” or using provided unsubscribe links.
• Communication Logs: Keep records of any correspondence with the company requesting cessation of messages and their responses, if any.

3. Verify Consent Status

Confirm whether you ever granted permission to the company to send promotional messages. Your case is stronger if:

• You never provided consent.
• The company continued messaging despite your opt-out requests.

4. Contact the Company Directly

Before escalating the matter, reach out to the company:

• Formal Request: Send a written request via email or registered mail, asking them to stop sending promotional messages.
• Keep Records: Maintain copies of all communications for future reference.

5. File a Complaint with the Office of the Data Protection Commissioner (ODPC)

If the company ignores your request:

• Submit a Complaint: File an official complaint with the ODPC. Provide all collected evidence and details of your interactions with the company.
• ODPC Investigation: The ODPC will investigate the matter and can impose fines or other penalties on entities found in violation of the Data Protection Act. odpc.go.ke

6. Seek Legal Recourse

If the issue remains unresolved:

• Consult a Legal Professional: Engage a lawyer specializing in data protection and consumer rights to assess the viability of a lawsuit.
• Initiate Legal Proceedings: Your lawyer can guide you through filing a lawsuit and seeking compensation for any damages incurred due to the unsolicited messages.

Recent Enforcement Actions

The ODPC has taken action against companies violating data protection laws. For instance:

SBM Bank Case: In June 2024, SBM Bank was fined Ksh450,000 for unlawfully processing an individual’s data and sending unsolicited emails.

Conclusion

Kenyan law provides robust protection against unsolicited promotional messages. By understanding your rights and following the outlined steps, you can effectively address and prevent unauthorized marketing communications.

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