The act of sharing a personal image without consent is a violation of the subject’s privacy and autonomy. It is crucial to understand that the ownership of personal images lies solely with the person depicted in them, and it is their right to decide who sees them and under what circumstances. In this blog, we will explore how the Kenyan legal system deals with the non-consensual sharing of personal images including but not limited to those of an intimate nature, with the aim of creating a platform for reflection and appreciation of the existing avenues for redress.

Introduction

In recent years, the issue of non-consensual sharing of personal images has become a growing concern in Kenya. The act entails sharing photos and videos of a personal nature without the consent of the subjects. The rise of social media platforms and messaging apps has made it easier than ever for individuals to share these types of images. In many instances when these images are shared, they may be accompanied by personal information about the targeted individuals, including their names and links to their social media platforms, effectively sharing further personal data of the individuals in question. Unfortunately, the consequences of such actions can be devastating and further amount to the violation of the right to privacy which is enshrined in the Constitution. Victims often experience a vast array of psychological harm all connected to the individuals’ expectation to the right to privacy.

Studies reveal that women make up 90 % of the victims of non-consensual sharing of personal images. The same is also evident for the more vulnerable in society such as minors. This gender disparity highlights the deep-rooted inequalities that persist in our society. It is imperative that we acknowledge this specific form of violence against women, understand its far-reaching implications, and collectively strive to create a safer environment that upholds the rights and dignity of every individual irrespective of gender. Despite the high prevalence of such incidents, victim-blaming attitudes in our society often discourage victims from taking legal action or seeking redress. Furthermore, many victims lack the necessary knowledge and resources to navigate the legal system and hold the perpetrators accountable. These barriers to justice contribute to the perpetuation of such violence and the continued suffering of the victims.

Legal Framework in Kenya

Despite the obstacles that victims face when seeking justice, there have been notable instances where individuals have successfully pursued legal action, setting precedents in the process. In this section of the blog, we will delve into the available legal avenues for redress in Kenya and examine some of the cases that have been brought before the courts of law.

In Kenya, victims have the option to either initiate civil action, aiming to obtain damages for breach of privacy, or criminal action, seeking sanctions against those responsible for the wrongful sharing of intimate images. To provide a comprehensive understanding of these mechanisms, we will focus on three key statutes that play a vital role in understanding such offences: The Computer Misuse and Cybercrime Act, 2018; The Constitution of Kenya, 2010; and The Data Protection Act, 2019. By examining the relevant provisions of these statutes, we can gain valuable insights into the legal framework designed to combat the non-consensual sharing of intimate images in Kenya.

Kenya’s Computer Misuse and Cybercrimes Act criminalize the act of wrongful distribution of obscene or intimate images under Section 37. It states; “A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate or obscene image of another person commits an offence and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or to both.” The provision establishes a legal pathway for individuals whose intimate images are shared online without their consent to pursue criminal charges against those responsible. However, to date, there have been no reported court cases that have been decided based on Section 37.

Alternatively, the victims can file a petition seeking damages for breach of privacy pursuant to the Constitution of Kenya, 2010. Article 31 (c) of the Constitution provides for the right to privacy over information relating to one’s family or private affairs, which in this case protects one’s intimate images from being unnecessarily required or revealed. A number of cases have been successfully litigated under Article 31 of the Constitution of Kenya. One such case is the case of Roshanara Ebrahim v Ashleys Kenya Ltd & 3 (2016), involving Roshanara Ebrahim, a former Miss Kenya, who successfully filed a court case against her former partner, Frank Zahiten, for leaking and sharing her intimate images with pageant organizers, Ashleys Kenya Ltd. The court ruled in her favour, recognizing the violation of her right to privacy as enshrined in Article 31 of the Constitution of Kenya, 2010, and ordered the perpetrator to pay damages of one million Kenyan shillings. Another significant case is that of MWK v AG, a female minor whose intimate images were forcefully taken and shared on social media by Kenya police officers as a form of punishment for alleged drug abuse. In 2017, the court delivered a judgment in favour of MWK, deeming the actions of the police officers a gross violation of her constitutional rights to dignity, privacy, and protection against degrading treatment. MWK was awarded four (4) million Kenyan shillings in damages.

The prevailing judicial precedence reflects society’s perception of the non-consensual sharing of personal images as a privacy violation issue rather than a sexual offence. It is also important to note that the majority of cases that have been brought before the court have been initiated by individuals with financial means or with the support of human rights organizations thus highlighting the unfortunate reality that a significant number of victims, who lack resources, have been unable to access justice.

How Can the Data Protection Act Help?

While legal action, whether civil or criminal, can hold the perpetrator accountable, it may not automatically result in the removal of these images from the internet, unless a takedown order is specifically sought. An emerging avenue for redress that victims of non-consensual sharing of personal images can explore is the right to be forgotten. The Data Protection Act of 2019 (DPA) incorporates the right to request for deletion of false or misleading personal information, commonly known as the right to be forgotten, under Section 26 (e). A victim whose personal images have been shared without consent can file a request with the social media platforms to take down or delete those images within the meaning of Section 26 (e) of the DPA.

Other data protection laws around the world such as the European Union’s General Data Protection Regulation (GDPR), use the term “right to erasure” to describe a similar concept. There is an emerging global trend to rely on data protection provisions, particularly the right to be forgotten, as a means to enhance internet user protection by holding platforms accountable for removing misleading or false information about individuals upon request. The landmark Google Spain judgment has established a precedent in this regard. In this case, Google was fined 10 million euros for unlawfully transferring the personal data of European Union (EU) citizens to a third party and for impeding the individual’s right to be forgotten under the GDPR. The victims can also explore the social media platforms’ content moderation rules and guidelines. A number of social networking platforms, such as Facebook, Twitter, Instagram, etc, have features that allow users to report content for removal. For instance, Facebook has community standards outlining what is and what is not allowed. The community standards vow to protect the users’ safety, privacy, and dignity, among others. Specifically, it lists sexual activity as some of the content that can be subjected to removal upon objection.

Conclusion

In conclusion, public awareness is needed to educate the public about the consequences of the non-consensual sharing of personal images, discourage people from distributing personal images, especially those of an intimate nature, on social media without consent, and educate the victims of these violations on some of the avenues for redress available.