Kenya: Copyright Bill must respect international standards of free speech 

Kenya: Copyright Bill must respect international standards of free speech  - Digital

On 28 December 2021, ARTICLE 19 Eastern Africa sent a memorandum to the National Assembly Committee on Communication, Information and Innovation. The memorandum expresses concern that the Copyright (Amendment) Bill 2021 contains provisions that water down international standards on intermediary liability and free speech. 

The Copyright (Amendment) Bill 2021 published in October 2021 seeks to amend the Copyright Act by repealing section 35B-35D, which provides for the notice and takedown procedure, the role of Internet Service Providers (ISPs) and judicial reliefs for copyright infringement respectively. 

These sections were enacted in 2019 to address copyright infringement online. While ARTICLE 19 welcomes clause 5 of the Bill, which repeals section 35B of the 2019 law, we are concerned that clauses 6 and 7 of the Bill, which repeal sections 35C and D respectively, are likely to lead to violations of human rights.

In our earlier submission, ARTICLE 19 highlighted challenges with the notice and takedown procedure under section 35B, and specifically that it allows private entities to make decisions on content. Secondly, the section imposes financial or criminal liability on ISPs for failure to take down content, encouraging ISPs to err on the side of caution and take down material even where it is legitimate and lawful. This imposes undue restrictions on freedom of expression and access to information and is open to abuse by both private and state actors. 

ARTICLE 19, therefore, welcomes the move to eliminate the notice and takedown procedure but recommends that it be replaced with our proposed notice -and-notice procedure.  This ensures an intermediary does not decide on the legality of the content immediately upon notice of a complaint. In 2011, the Joint Declaration on Freedom of Expression and the Internet recommended that ‘At a minimum, intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression (which is the case with many of the “notice and takedown” rules currently being applied).’   

ARTICLE 19 is however concerned that repealing section 35C, as proposed in clause 6 of the Bill, violates international standards on intermediary liability. Section 35C provides for intermediary immunity and only allows ISPs to disclose information of subscribers who are allegedly infringing copyright to investigative agencies in compliance with a court order. The section also states that ISPs are under no obligation to monitor material transmitted, stored or linked or actively seek facts or circumstances indicative of infringing activity within its services. ARTICLE 19 Eastern Africa is concerned that repealing this section would be akin to eliminating intermediary immunity as it is highly likely that ISPs would actively monitor and police content to ensure it is not infringing speech, which would lead to censorship. 

Similarly, we are concerned that repealing section 35D, as proposed in clause 7 of the Bill, would eliminate the opportunity for a complainant to seek judicial remedies. ARTICLE 19 believes that judicial authorities or an independent tribunal, not private entities, should make decisions on content. Section 35D affirms this position by stating that the High Court may issue an order to a web host or ISP to make infringing material inaccessible. This position complies with international standards on intermediary liability and international human rights standards on free speech. 

We, therefore, recommend that the Kenyan authorities: 

  1. amend clause 5 of the Bill to provide for ‘notice-and-notice procedure’ in alternative to the notice and takedown procedure.  
  2. delete clause 6 of the Bill as it limits the gains made to safeguard the right to privacy and freedom of expression in the digital environment.
  3. delete clause 7 of the Bill as it eliminates the opportunity for a complainant to seek judicial remedies for copyright infringement and waters down international standards on intermediary liability.

Read the Full submission here: ARTICLE 19 Memo on the Copyright Amendment Bill 2021

For more information please Contact Mugambi Kiai at [email protected], Regional Director for ARTICLE 19 Eastern Africa