How Liquid Telecom lost Sh700,000 through a secret call recording

A telephone call recording made without the employee’s consent has landed Liquid Telecom Kenya in trouble. The firm has been ordered to compensate an aggrieved former employee some Sh700,000 for violating his data rights. 

The Office of the Data Protection Commissioner (OPDC) on November 3 this year ordered the firm to pay Andrew Alston Sh700,000 after finding that Liquid Kenya had recorded his personal data without his consent and later passed the recording to its sister company – Liquid Mauritius – for use in a case against him.

Liquid Kenya had recorded a call between Alston and its human resources (HR) officers, which had taken place after he was retrenched by the company.

In his submissions to the ODPC, Alston acknowledged that the telephone conversation “was heated – and a lot of things were said”.

He told DPC that during the conversation, he had informed the HR officials that they did not have his consent to record the call and asked them to delete the recording.

The human resources officials assured Alston that the call recording would be deleted after the call. Despite assurances of erasure, the recording was later produced as evidence in an arbitration case in South Africa between Alston and Liquid Mauritius. 

Alston lodged a complaint at the Commission on August 5 this year, claiming that Liquid had recorded his personal data without his consent and also violated his data erasure rights.

ODPC found that Liquid Kenya had violated Alston’s data rights and ordered the firm to compensate him.

“Having found that the respondent (Liquid Kenya) processed the complainant’s (Alston’s) personal data without a lawful basis and violated the complainant’s data protection right to be informed of the use to which his personal data is to be put and his right to erasure, the respondent is hereby directed to compensate the complaint the amount of Sh700,000,” said the ODPC in the November 3 determination.

“In so doing, this office takes into account the nature of the personal data in issue, the scope of the unlawful processing, the duration and extent of violation concerning unlawful processing of the complainant’s personal and the conduct of the respondent in not adhering to the principles of data protection.”

Alston was an employee of Liquid Telecom Kenya. His hiring by the firm resulted in his relocation to Kenya in 2013. He was among the people retrenched in 2024. 

It was after the retrenchment that a “virtual consultation call” was convened between Alston and Liquid Telecom’s human resources officials in Kenya and the UK, where Liquid Group’s head of HR sits. 

Liquid submitted to ODPC that “the call was recorded by the human representative, and the complainant (Alston) indicated that he had not consented to the recording. Subsequently, he requested that the recording be deleted, and the HR representative acknowledged it and confirmed that it would be deleted.”

The firm, however, retained the recordings, which it told the DPC were for restricted use in a case that Alston had lodged against Liquid Telecom following the retrenchment.

It went on to produce the recording as evidence in an arbitration case in South Africa between Liquid Mauritius and Alston.

At the DPC, Liquid defended the move to retain the recording, noting that it was not only necessary for such purposes but also did no harm or prejudice to the rights and freedoms of Alston 

The firm submitted that “the recording of the call was, however, securely retained and its processing restricted to the evidentiary purposes in the arbitration proceedings, which had at the time been threatened by the complainant (Alston) against Liquid Mauritius”.

“The recording of the call was specifically retained to document, for possible evidentiary purposes, certain proposals and threats that the complainant had made to or against Liquid Kenya during the call.”

Alston protested the use of the recording at the arbitration, and Liquid Mauritius decided before the commencement of the arbitration hearing not to use the recording and the transcript. 

The ODPC noted that Alston had exercised his right to erasure in accordance with Section 40 of the Data Protection Act that requires a data controller to erase or destroy, without undue delay, personal data that the data controller or data processor is not authorised to retain, irrelevant, excessive or obtained unlawfully. 

In instances where the data controller is required for purposes of evidence, the Act further requires the data controller to inform the data subject within a reasonable time.

According to DPC, there is no evidence that Liquid complied with this section of the Act.  “Whereas the respondent had a duty to inform the data subject of the continued processing and that the request of erasure had been declined, the respondent proceeded to process the complainant’s personal data, one year later. This does not qualify as ‘reasonable time,” said DPC.

“In conclusion, the Office finds that the respondent violated the complainant’s right to be informed of the use to which his personal data is to be put under section 26 of the Act and his right to erasure under Section 40 of the Act.”

ODPC noted that while the recording may have been required to protect Liquid Kenya’s legal position in case of litigation, the firm had an obligation to inform Alston, and this would have been specifically to Liquid Kenya and not its sister companies.

“The call recording caused harm and prejudice to the complainant in the context in which it was used. The call containing his personal data was processed by the respondent, Liquid Kenya, without his knowledge and consent, and shared with Liquid Mauritius in arbitration proceedings against him. As a result of the processing, the complainant was placed in a position where he had to object to the processing and defend the admissibility of the call at his own cost,” said the ODPC 

“Notably, no evidence was adduced to demonstrate the nexus between Liquid Kenya and Liquid Mauritius and the basis for personal data transfer between the two entities, outside Kenya, and noting the complainant was neither informed of the transfer nor did he authorise the same.”