Background
Innovation has seen the emergence of communication platforms including search engines and social media take over as key platforms that facilitate access to information and free speech. Most of the key platforms and communication networks are owned by private individuals and companies who are under constant pressure from the government, individual users and civil society to regulate undesirable user content in a bid to ensure human rights i.e. right to privacy, copyright, hate speech and the like are not violated by users as they exercise their freedom of expression.
Below is a highlight of the current legal framework and the litigation developments with regards to intermediary liability and the implication on Open Journalism in 2016.
Policy and Regulatory Environment
Kenya does not have specific laws, policies or procedures that address the issue of intermediary liability hence a generalist approach to this issue which means the general rules of civil, criminal law and common law apply.
The Constitution- the Constitution of Kenya 2010 secures the freedom of expression in Article 33 which includes freedom to seek, receive or impart information or ideas. Article 34 guarantees the freedom and independence of electronic, print and all other types of media. However, these freedoms are limited as they don’t extend to “Propaganda for war; incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or based on discrimination as provided for in article 33(2). Furthermore respect to the rights and reputation of others must be taken into account and weighed against public interest as provided in article 33(3). The limitations are vague and open to misinterpretation that threatens the freedom of expression.
In applying provisions of the bill of rights, courts are required to among others to adopt interpretations that favour the enforcement of the rights or fundamental freedoms.
Article 21 (4) imposes on the State the obligation to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.
Kenya Information & Communications Act CAP 411A- responsible for regulating and issuing licenses to ISP’s.Creates offences relating to electronic media and provides for heavy penalties for the same. Some of the offences are vague and unconstitutional as declared recently when the court annulled section 29 for creating an offence without creating the mens rea therefore threatening the freedom of expression.
Access to Information Act 2016 –gives effect to the right to access to information in the constitution. Provides for protection of persons who disclose information in the interest of public and in good faith.
The National Cohesion and Integration Act of 2008- holds liable any newspaper, radio station or media enterprise for publishing any utterance which amounts to the offence of ethnic or racial contempt. The act does not mention content published online though several bloggers and media stations have been charged under this act.
The Prevention of Terrorism Act No 30 of 2012- allows interception of communication for purposes of prevention of terrorism without setting measures to determine what amounts to terror threat . It further creates the offence of incitement and hoaxes without setting measures for the definition of the same . This threatens to gag the media from reporting as there are no set parameters to determine whether thwarted terror threat amounts to hoaxes. These offences can be carried out online.
The National Intelligence Service Act, 2012 –gives security agencies the powers to monitor which definition of that term includes to intercept communications as well as to listen to, record or copy using any device.” The powers are vague as it does not state in detail what kinds of communications may be monitored. This is open to misuse by the state and government agencies.
The Media Council of Kenya (MCK) Act 2013-Journalist not defined-open to interpretation to include online end users like bloggers.
Consumer protection Act 2012-Provides for Safe habour for ISPs with regards to unsolicited electronic communications and the processing of the customers personal information for the purposes of direct marketing.
The Copyright Act-creates liability for distribution of protected works without a license.
The Trademark Act- provides for exclusive right to use and control of trademarks. Section 58F makes it an offence to counsel, aid, abet or be an accessory to the commission of an offence under the Act therefore intermediaries can be held liable for aiding as they provide the platform for distribution by third parties.
The Sexual Offences Act- criminalizes child pornography and the manufacture or distribution of anything that falls under that category.
The Penal Code (Act )- criminalizes publishing by print of any defamatory matter concerning another person with the intention to defame that other person.
Preservation of Public Security Act- gives the president sweeping powers to make regulations on grounds of national security.This was applied during post election violence in 2007/2008 in Kenya , the state interfered with the media by banning live broadcasts.
Official Secrets Act Cap 187-this act also allows the government to search without warrants and wiretap on communication systems in circumstances that are not well defined therefore subject to misuse by officials.
Common Law– provides for remedies for tortuous actions – defamation, copyright infringement, negligence, nuisance, invasion of privacy. Claims based on vicarious liability can also be made leading to liability of intermediaries for the acts or omissions of employees and agents.
Proposed Legislation
Kenya has several bills that refer to intermediary liability. However, while the bills are silent on, and do not directly define internet intermediaries, they do give rise to new rights and duties the breach of which would in effect, amount to the introduction of new forms of liability.
The ICT Practitioners Bill 2016– seeks to regulate the training, registration, licensing, practice and standards of ICT practitioners. This bill threatens threatens innovation and entrepreneurship in Kenya as it seeks to regulate without taking into account the unique nature of ICT and stakeholders have called for its withdrawal.
Computer and Cyber Crimes Bill 2016 – seeks to equip law enforcement agencies with the necessary legal tools to handle computer and cyber crimes. Vague and broad speech offences that could be subject to misinterpretation to limit the freedom of expression online.
The Data Protection Bill 2013 – to give effect to right to privacy by providing for the security of every person’s personal data. The Bill requires some improvement to breath life into article 31.
National ICT Draft Policy 2016-to set the pace for ICT sector development. The policy needs amendments to reflect enhanced production of ICTs as opposed to the current focus on consumption and government support for the same.
Cases
There have been major gains made in court with regards to draconian pieces of legislation threatening to limit the freedom of expression.This has been reflected in the following recent cases:
Law declared unconstitutional for threatening to limit the freedom of expression Nation Media Group Limited & 6 others v Attorney General & 9 others [2016]-section 3(2)(a) of the Media Council Act, to the extent that it requires that in exercise of the right to freedom of expression, the persons specified under section 4 of the Act “shall reflect the interests of all sections of society” is an unjustifiable limitation of the right to freedom of expression and is therefore unconstitutional and section 6(2)(c) of the Media Council Act is unconstitutional for being couched in a manner that is vague and broad and that is likely to limit the freedom of expression. Geoffrey Andare v Attorney General & 2 others – section 29 of the Kenya Information and Communication Act, which criminalises publication of certain information in vague terms and creates an offence without creating the mens rea element declared unconstitutional for being vague and unjustifiably limiting freedom of expression.
One the other hand, there has been a general shift of liability as a result of undesirable user content to communication intermediaries which is essentially censorship- by- proxy as liabilities threaten the growth and sustainability of these entities. Furthermore, inadequate laws on safe harbors and the general shift of law enforcement burden on communication intermediaries further threatens the synergy between technology and the law in the quest to further user rights. In addition, there have been take down orders for materials posted on social media issued before hearing of suit and disproportionate amounts in damages for civil defamation continue to be awarded in court. This trend creates a chilling effect on open journalism. This has been reflected in the following cases:
Duty to regulate user content on Intermediaries – Uhuru Muigai Kenyatta v Muchemi Wachira and Nation Media Group (NMG) –NMG, found liable for defamation by virtue of its role in publishing the comments on its site and for not exercising control in removing the defamatory comments posted by the public.
Duty to regulate breach of copyright on Intermediaries- John Boniface Maina v Safaricom Limited– Take down orders issued against the mobile service provider to remove all the protected musical works from the website.
Download of works amounts to public performance –David Kasika & 4 others v Music Copyright Society of Kenya Limited & another [2016] -a series of repeated transmissions of the same works to a number of recipients constitutes communication to the public therefore liable for payment of royalties.
Liability of intermediaries for material posted by third parties –Anne Waiguru v Google Inc & 2 others [No 333 of 2014] –the petitioner, a government official seeks orders compelling Google Kenya to reveal the identities of the owners of the Daily Post in order to facilitate the legal action for defamation against them. The presiding judge, declined to strike Google Kenya from the suit, arguing that it was too early to tell whether the firm was aware of the offensive material and if it could have been able to prevent its publication. The matter is set for full hearing.
Third party found liable for defamatory material published on social media – Arthur Papa Odera v Peter O. Ekisa [2016]– due to the refusal/failure by the defendant to apologize or pull down the offending words from the Facebook platform, the court made an award of Kshs. 2 million general damages, Kshs. 1.5 Million exemplary damages and Kshs. 1.5 Million aggravated damages making a total of Kshs. 5 million.
Take down orders issued before hearing of defamation suit- Duncan Muriuki V. Baobab Resort–Interlocutory take down orders issued requiring the respondent to remove infringing content posted even before the matter was heard.
Publishing image without consent violates the right to privacy– T O. S v Maseno University & 3 others [2016]-publication or use of the images of an individual without his consent violates that person’s right to privacy.
wbilaw 