New media in Kenya: Time for regulation?
13 Sep 20120 comments
‘New Media in Kenya: Time for Regulation?’ considers the Kenyan government’s legislative and policy responses to the challenges of new media online. Access to the internet in Kenya has developed significantly over recent years. However, concerns about the internet’s contribution to the conflict and divisions of the post-election violence has led to the monitoring of online content. Grace summarises the principal national laws that regulate and restrict freedom of expression in Kenya. She also identifies the key future challenges as internet identity, content integrity, privacy, data protection, the role of internet intermediaries and copyright protection. Grace highlights the international laws to which Kenya is bound and concludes her article with a concise set of recommendations for protecting and respecting rights to freedom of expression and information in Kenya.
New Media is defined principally as the revolution media that allows interactivity between the producers of content and consumers. It has defied traditional models of media in many senses. For instance, producers of content are also consumers, hence the term “prosumers”.
Kenya has over 17 million Internet users, with a significant number of these being active in the new media space. There is an active online community in popular social networking sites, Facebook and Twitter. While content generated in these sites by Kenyans varies from random babble, conversation, pass along value, self promotion to spam and news, these sites provide a platform for debate on topical issues and especially politics. For example, recently when Cable News Network (CNN) ran a misinforming story depicting that violence had broken out in Kenya, micro-bloggers on Twitter and Facebook sustained a campaign that led to the withdrawal of the story by CNN. 
While on a global scale there are attempts to regulate new media, not many countries, least of all developing ones, have legislated on new media. States are therefore using existing, “real world” laws and ad hoc policies to tackle issues brought about by new media. This paper examines some emerging issues in new media and laws that have been applied to new media. It concludes with recommendations to secure openness in the new media and protection of freedom of expression as well as other interrelated human rights.
II. New Media and Kenyan Laws
Kenya is a signatory to International and regional instruments guaranteeing the right to freedom of expression and the right of access to information such as the Universal Declaration on Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights (ACHPR) and the World Summit on the Information Society’s Declaration of Principles where parties commit to media pluralism and diversity.
The standards regarding freedom of expression apply to online expression. In 2011 the UN Human Rights Committee stated in General Comment No 34 that the ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and Internet-based modes of expression. At the same time, the UN Human Rights Committee noted the differences between traditional and electronic information dissemination systems, and observed that the laws should take these differences into account.
In relation to the online application of freedom of expression standards, General Comment No.34 provides that restrictions on the operation of websites, blogs or any other internet-based, electronic or other information dissemination system (including systems to support such communication, such as internet service providers or search engines) are only permissible to the extent that they are compatible with paragraph 3 of Article 19 ICCPR. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.
Furthermore, The Joint Declaration on Freedom of Expression and the Internet of June 2011 noted that regulatory approaches in the telecommunications and broadcasting sectors cannot simply be transferred to the Internet. The international mandates called for promotion of the use of self-regulation as an effective tool in redressing harmful speech.
Kenya is obliged to implement international treaties via domestic law.  The Constitution of Kenya 2010 specifically provides for Freedom of Expression (FOE) (Art. 33), Right of Access to Information (FOI) (Art. 35)  as well as Freedom of the Media (FM) (Art. 35). These provisions are subject to limitations that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as provided for in the Constitution of Kenya 2010.
Relevant Provisions in Domestic Laws
Kenya has limited cyber law provisions. These are mostly found in the Kenya Information and Communications Act that has since 1998 been amended in response to emerging cyber issues. Significant amendments of these laws were enacted in 2001, 2008 and later, that created crimes related to computing such as hacking, and also expressly provided for the inclusion of electronic communications as evidence for purposes of legal proceedings.
Since the 2007/2008 post election violence, authorities are keen to regulate the online space. For instance, the Kenya Police, National Cohesion and Integration Commission as well as Communications Commission of Kenya (CCK) have admitted to monitoring online speech and mobile phone text messages with the justification of arresting hate speech before it is spread. It is not clear what the results of the monitoring are or what has been done with suspected perpetrators of hate messages, as this monitoring is not provided explicitly by law. In light of this monitoring, seasoned bloggers in the Kenyan community have been avoiding the use of certain words that are believed to raise red flags in the monitoring system. CCK also recently announced plans to install network monitoring software, citing, among other reasons, the increased uptake of the Internet as well as security threats.
These developments indicate movement towards regulating the online space, at least from a policy perspective. There are also various legislative provisions that may be linked to regulating the online space:
The National Cohesion and Integration Act outlaws hate speech in section 13. To date, no one has been charged with online hate speech but the National Cohesion and Integration Commission (NCIC), the authority charged with administering the Act, has issued warnings that it would be monitoring content online, on mobile SMS and taking offenders to court.
The Kenya Information and Communications Act in section 3 establishes a communications regulator, the Communications Commission of Kenya, (CCK) which, in the recent past, has announced plans to install network monitoring software (NEWS) for Internet traffic. Section 84D of the Act also creates the offence of publishing obscene content.
Sub-judice rule: This is a common law rule meant to prevent publication of material that may cause prejudice to an ongoing court case. It is supposed to instil court reporting caution but it does not seem to be taken much into consideration in online discussions, which are considered informal by their participants.
III. Emerging Issues
Kenya enjoys a relatively open forum for new media. This has brought with it numerous benefits in education, news reporting, disaster management, charity, voice for marginalized groups and dissemination of knowledge. It has also been blamed for the dissemination of hate speech and negative messages that contributed to ethnic violence, particularly during the period leading to the post-election violence in 2007/2008. Additionally, there have been concerns about morality, child safety online, the integrity of content, privacy, data protection and copyright online. Some of these issues are considered in more detail below.
Anonymity and pseudo anonymity are important tools for discussion, especially amongst marginalized groups, as they enable people to engage freely. The challenge with anonymity is that the integrity of content may not always be guaranteed and that sometimes it has been used to propagate hate speech. However, in micro-blogging, hate speech and false content can always be controlled by having mechanisms for taking down the offensive material.
Anonymity is now challenged by the compulsory Subscriber Identity Module (SIM) card registration exercise that is currently underway in Kenya. Additionally, CCK’s plan to introduce network traffic monitoring technology poses a similar threat to freedom of expression.
2. Public order and security
The Constitution of Kenya envisages very few restrictions of fundamental rights and freedoms for reasons of public order and security. They include, for example, limitation of the right to privacy for persons in the Kenya Defence Forces or National Police Service through legislation.  However, in the absence of specific legislation or developed case law guidance on the permissible restrictions to freedom of expression and the Internet, bloggers may be arrested in the name of protecting national security for commenting on matters of legitimate public interest. This, of course, limits FOE and ultimately FOI for the public.
The same argument may be used by the State to defend the installation of NEWS equipment, which is designed to enhance national security by CCK. The privacy of users’ communications may be infringed upon without adequate protection because Kenya has no data protection law ensuring the privacy of the personal data.
3. Role of intermediaries
The issue of network monitoring equipment brings to the fore the role of intermediaries - companies providing Internet access, online storage, web, mail and other related services to their customers. When a regulator asks the same businesses to install monitoring equipment, it leaves a question as to what extent intermediaries are to be involved in policing the Internet.
The role of intermediaries needs to be defined with urgency as access to Internet increases, disputes involving security, copyright, domain names, defamation and even criminal activities are bound to arise. Such disputes may involve private entities and the State, with party having particular interests and priorities. For instance, in a dispute where a private entity requests an intermediary to take down allegedly offensive content on the website of another private entity, how is the intermediary to decide which party to honour? Under what circumstances should the State order an intermediary to interfere with content?
Although the right to privacy is guaranteed in the Constitution, this right has not been translated into national legislation. For instance, there are no data protection laws to guarantee that data collected in the online realm is protected from unauthorized access.
Informal surveys point out that many online users, especially new and younger ones do not clearly understand the wider privacy implications for information they post about themselves. As the same users get more involved in the new media space, they must be more careful about the information they provided online. Unfortunately, new media sites are based in foreign jurisdictions and currently, Kenya does not have policies on data ownership and data retention online.
These developments raise a number of important questions. For example, do we have the right to be anonymous? How do we treat deleted content in social media? How about the right to be forgotten? Notably, other jurisdictions such as the EU are already discussing issues related to privacy and anonymity, the right to forget, storage and ownership of new media content.
5. Intellectual Property Rights
To a large extent, the Kenyan online community does not concern itself with intellectual property rights. Users share content freely, many times without attribution. Many rights holders have also disseminated some of their content through social media. This has mostly worked positively for these people by promoting their content to a wider audience.
The online community has been active in producing creative works such as cartoons, caricature etc commenting on topical issues. Sometimes these works are derived from other rights holders works but they are largely taken as artistic expression and not many complaints have been recorded by rights holders.
Interesting to note is that bodies such as The Copyright Board are in the process of revising and updating the law. Having seen past trends where there was more effort towards protecting proprietary works, it is hoped that revisions will also focus on non-proprietary works and public knowledge.
6. Reputation/ Defamation
Online defamation is different in nature to offline defamation because of the speed and magnitude with which published content is disseminated and discussed. On the other hand, discussions in new media normally take a more relaxed state, even using very pedestrian language. There are several high profile cases of people instituting legal proceedings for online defamation.
7. Cyber Security
Cyber security is a real concern as bloggers sometimes have their accounts hacked and unwanted content is uploaded. On the other hand, cyber-security has been given as a reason for introducing network monitoring technologies.
Although this has not been a significant issue in Kenya, there is always a need to carefully monitor trends leading to censorship of online media. This could be under the guise of copyright protection, public security, defamation claims or criminal prosecutions.
9. Network Neutrality
Network neutrality affects access to platforms for new media. Without technologies being accessible by mobile devices, not everyone accessing the Internet from a mobile phone will enjoy the same connectivity as those accessing the same from a computer.
10. Other Issues
Spam: is a problem where users send unsolicited material to other users.
Morality: Kenya is not a homogeneous society and there is no accepted standard for morality. Yet emerging practices and declarations seem to show a desire towards content regulation for among other reasons, morality.
Child Safety: Although not so many people have access to the Internet, there are concerns about children joining new media and accessing adult content.
New media has been an open space and vibrant community for expression and accessing information in Kenya. |t has achieved great strides for a developing country. This can be compared to other countries in the region, where regulators have employed tools such as censorship and content-control to limit the openness of expression online.
If Kenya regulates online expression, such regulation needs to be done in consultation with all stakeholders and not just by Government agencies. There is also a need to take into consideration best practices and recommendations by international authorities on the subject, for instance the General Comment No 34 of the UN Human Rights Committee, 2011, the Report of the Special Rapporteur on Freedom of Expression through 2011 and the Declaration of the International Mandates on Freedom of Expression in 2011. Notably, these authorities focus on using the Internet to enhance freedom of expression and opinion and only allowing restrictions under limited, pre-determined conditions. The reports also call on states to take positive steps to facilitate FOI on the Internet through promoting access and digital literacy. Importantly, they also highlight the need to take a holistic approach to negative content online by dealing with issues such as discrimination, bigotry, and bias by building peace instead of resorting to censorship on the Internet.
In order to achieve a balanced policy where FOE and FOI is protected and the rights of all are also guaranteed, some suggested recommendations are:
a) FOE and FOI are constitutional liberties that should not be curtailed under the guise of copyright protection, public morals, national security or public order. As the country develops policies and laws to regulate online expression, Kenya - as a signatory to international human rights instruments - must continuously ensure that restrictions to FOE comply with the three part test established by international law.
b) When dealing with the issue of content control online, differentiation needs to be made between illegal content (which must be prohibited) and harmful, offensive and objectionable content, which states are not required to prohibit or criminalize. This is especially important in protecting vulnerable groups in society such as women and children (e.g. by prohibiting child pornography) while allowing free expression (e.g. by decriminalizing defamation, so that it is a civil wrong only) and encouraging self regulation (e.g. in interactive news reporting). In the process of legislating, Kenya also needs to consider that there are impermissible restrictions on freedom of expressison as outlined in the Special Rapporteur’s Report.  These include discussions on government policies and debates, reporting on human rights, government activities and corruption in government, election campaigns, peaceful demonstrations, expressions of opinion and dissent and expressions by minority or vulnerable groups.
c) The Internet could be used to monitor, identify, locate and target persons who disseminate critical or sensitive information via the Internet. Awareness needs to be created on how user’s personal data, private communications and communications in online spaces is being collected, stored and used. The role of the Government in guaranteeing privacy of all individuals cannot be overstated. Kenya therefore needs to concentrate efforts towards realizing privacy, FOI and data protection legislation.
d) Technologies deployed to counter cyber-security threats should ensure that anonymous/pseudo-anonymous speech online is being allowed, as long as it is not in violation of the law. In addition, technical measures should be deployed transparently with the State providing full details regarding the necessity and justification for such measures. These measures must be implemented by competent judicial authorities or independent bodies.
e) The role of intermediaries needs to be widely discussed among all stakeholders. Intermediaries should not be forced to monitor content and neither should they be held liable for the actions of their users. As noted in the Joint Declaration on FOE and the Internet, consideration should also be given to insulating intermediaries against liability for content generated by users.  This not only assures the Internet as a space for free speech but also makes it affordable for more people to access the internet.
f) The revision of intellectual property laws, for example the Copyright Act, needs to take into consideration public order and include important aspects for development such as loosening copyright protection online to increase access to knowledge: this fosters development and public good more than the status quo.
g) While it is appreciated that the Government is making efforts towards access to information, for example through the recently launched open data portal, the Government should prioritize the management of Government records and increasing access to the large volumes of information held by the State. Additionally, policies for access, including network neutrality and the use of public information needs to be put in place to ensure real gains from the Constitutional provisions.
h) Kenya has a positive obligation to increase access to the Internet in terms of expanding Internet infrastructure, improving access for people with disabilities and well as increasing digital literacy. As recommended in the Special Rapporteur’s Report, digital literacy should be included in the school curriculum. Other than teaching about how to use the Internet, individuals also need to be educated about responsible expression as well as Internet safety and security.
i) Finally, Kenya recently promulgated a new Constitution that guarantees the highest protection for FOE and other rights. Citizens must remain vigilant to ensure that these rights are not abrogated through policy and practice. This can be achieved in part by approaching the courts for constitutional interpretation whenever doubts arise as to the protection of these rights.
Grace Mutung'u (Bomu) is a young Kenyan lawyer currently involved in the formation of a local chapter of the Internet Society (ISOC) in Kenya. Between 2005- 2010 she has served as the Secretary of the Kenya ICT Consumers Association which is an organisation advocating for consumer empowerment in the ICT sector of Kenya. She is a Diplo 2009 Internet Governance Capacity Building Programme Fellow and an ISOC Next Generation Internet Leaders alumnus. Grace has a passion for culture and youth empowerment and has participated in many initiatives on the same through groups such as the Pioneers for Change (Kenya) and the Africa Youth Trust. She is currently serving at Kenya Network Information Centre’s (KENIC) Domain Name Dispute Resolution Task Force, assisting in drafting the policy. The author looks forward to a more connected world where even those in the remotest parts of a country are able to share their experiences through the Internet.
 Paragraph 3, acknowledges that freedom of expression is a necessary right for the achievement of other rights.
 CCK (2012) Quarterly Sector Statistics, July-Sept 2011/12 available at http://www.cck.go.ke/resc/downloads/SECTOR_STATISTICS_REPORT_Q1_11-12.pdf accessed 25th March 2012
 Wikipedia on “Twitter”
 See Daily Nation, “Kenyans incensed by CNN gaffe” at http://www.nation.co.ke/Tech/-/1017288/1364148/-/13j3cxo/-/index.html accessed 25th March 2012
 For example ACTA, WIPO laws and the three strikes law in France are all aimed at regulating copyright and IPR online.
 General Comment No. 34 on Article 19 of the ICCPR is based on the idea that freedom of expression and opinion are fundamental rights that not only enable other rights but also create an environment for full realisation and protection of human rights. The General Comment seeks to update Article 19 of the ICCPR by taking into cognizance developments related to freedom of expression, such as the Internet. The document also calls upon State parties to protect freedom of expression and opinion by domesticating Article 19 and encouraging its interpretation in the widest terms.
 Importantly, General Comment No 34 states that Article 19 ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and Internet-based modes of expression. In other words, the protection of freedom of expression applies online in the same way as it applies offline.
 Ibid., para. 39.
 See Joint Declaration on Freedom of Expression and the Internet, June 2011, available at: http://www.article19.org/data/files/pdfs/press/international-mechanisms-for-promoting-freedom-of-expression.pdf
 Article 1(5) states that the general rules of International Law shall form part of the laws of Kenya while Art. 1(6) includes any treaty ratified by Kenya as part of Kenyan law.
 Interestingly, FOI is limited to Kenyan citizens only as was recently interpreted in the case of Famy Care Ltd v Public Procurement Administrative Board & 5 where the petitioner, aggrieved by the tendering process of a Government agency, wanted the agency to disclose minutes of the Tendering Committee Meeting. In making the decision, the court considered that Article 22 of the Constitution empowers any person to petition the Court for enforcement of the Bill of Rights. That notwithstanding, the Court still found that not even public interest could override the limitation that Art.35 provision only applies to citizens. See case here: http://kenyalaw.org/Downloads_FreeCases/432012.pdf accessed 2nd April 2012
 Sections 24 and 25 of the Constitution of Kenya 2010
 Global Information Society Watch (2009) available at www.giswatch.org/sites/default/files/gisw2010_en.pdf accessed 25th March 2012
 See Article 25, Constitution of Kenya
 There is a Data Protection Bill 2012 currently undergoing a stakeholder review process. Access it here: http://cickenya.org/sites/default/files/bills/Data%20Protection%20Bill%20Revised%2010th%20Jan%2C2012_0.pdf
 Article 31 of the Constitution of Kenya
 See Council of Europe
 Ouma, M (2008) Law Technology and Access to Educational Material
 For example, in a recent case involving an MP, the MP complained that an insult posted on his Facebook page had already been viewed by over 1000 friends. See newspaper report here:
http://www.the-star.co.ke/national/national/65854-man-arrested-for-facebook-insult-on-mp-nguyai accessed 9th April 2012
 For example former MP Paul Muite and others sued Moses Kuria for defamatory statements on his blog. Also, blogger Dennis Itumbi recently announced that he would sue another blogger Robert Alai for defamation see http://www.dennisitumbi.com/?p=297 accessed 25th March 2012
 For example the NCIC recently recommended declared that it would be monitoring content on tv and online spaces to ensure it does not leave any group feeling marginalized. Among the groups targeted were Christians who dominate airwaves on Sunday mornings.
 Notably, the Human Rights Committee, General Comment No.34 reiterates that FOE is a liberty that States cannot derogate from even during a state of emergency. See Human Rights Committee, General Comment No.34, at para 5 available at http://www2.ohchr.org/english/bodies/hrc/comments.htm accessed 9th April 2012
 Any restriction to FOE must: be provided for by legislation; pursue one of the legitimate grounds provided for in Article 19 of UDHR; be necessary and proportionate.
 See Special Rapporteur on FOE report, at para 18
 Special Rapporteur’s Report at para 37-44
 Report of the Special Rapporteur on the Promotion and protection of the right to freedom of opinion and expression (2011) at para 11 available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf accessed 9th April 2012
 This is an obligation noted in General Comment No.34 where states are required to protect citizens from acts that would impair enjoyment of FOE.
 See Special Rapporteur’s Report, para 82
 See Joint Declaration on FOE and the Internet (2011), at para 2 available at http://merlin.obs.coe.int/iris/2011/8/article2.en.html accessed 9th April 2012
 See Joint Declaration, at para 5