In September 2016, ARTICLE 19 reviewed the draft Cyber Security and Protection Bill (Draft Bill), which is currently being discussed in Kenya, for its compliance with international and regional human rights standards.
Our analysis shows that the Draft Bill is extremely problematic in this respect. In particular, it creates several broadly defined speech offences with harsh sentences that could have a dramatic chilling effect on freedom of expression online in Kenya. The provisions dealing with pornography, intimate images, and cyber-bullying fall well below permissible forms of content regulation under international standards on freedom of expression.
We recommend entirely omitting several offences that are either duplicative, or broadly defined as to expose them to abuse for less legitimate ends. These offences include, among others, cyber-squatting, which on their face conceivably punish many forms of legitimate expression. Eliminating these offences would simplify the law while still allowing the punishment of legitimately criminal conduct with greater legal certainty. We also recommend including more precise intent and harm requirements for existing offences, namely by requiring “dishonest” intent and “serious” harm to result for most sanctions.
Finally, we suggest in multiple cases a ‘public interest’ defence. The defence entails providing an opportunity for an accused to establish that there was no harm or risk of harm to a legitimate interest in engaging in the proscribed activity, and that the public benefit in the activity outweighed any harm.
The analysis not only highlights concerns and conflicts with international and regional human rights standards within the Draft Bill but also actively seeks to offer constructive recommendations on how the Bill can be improved.