Digital rights cases to watch out for in 2023

2022 was a busy year in corridors of justice. Moreso, in the realm of digital rights. Despite it being a political year, there were a number of digital rights cases that were filed and are yet to be concluded. We look at a few of those cases below.

1. Meta – Sama case

In May 2022, a petition was filed in Nairobi’s employment and labour relations court against a local outsourcing firm Samasource Kenya EPZ, also known as Sama, and social media giant Meta. The petition alleges that contracted content moderators are subjected to unfavourable working conditions such as inadequate mental health support, poor pay, and violations of their right to privacy and dignity.

The petition sought financial compensation on behalf of current and former Sama employees, an order requiring that outsourced moderators receive the same health care, benefits and pay scale as Meta employees, protection of unionisation rights, and an independent human rights audit of Sama’s Nairobi office. The petition also sought mental health support for content moderators who spend hours reviewing graphic content on Meta’s platforms.

Meta has since denied wrongdoing saying it takes seriously its responsibility to people who review content on its platforms. It also added that it requires its partners to provide competitive pay, benefits, and support. In June 2022, Meta’s lawyers asked the court to dismiss the case on jurisdictional grounds. They argued that the company cannot be tried in Kenya since it is not registered there.¹

2. Meta- Content moderation case

On December 14, 2022, a lawsuit was filed in the Milimani Law Courts against Meta (Facebook’s parent company) for inciting political unrest in Africa through the use of algorithms, which resulted in people being shamed, families being displaced, and communities being destroyed, specifically in Ethiopia and Kenya. According to the lawsuit, Meta used a Facebook algorithm that prioritizes and recommends hateful and violent content to promote speech that led to ethnic violence and killings in Ethiopia. The petitioners demanded that the company pay over $200 billion USD in victim funds and make significant changes to its services, such as modifying Facebook’s algorithms to prevent such content from being recommended to Facebook users. Seven other human rights and legal organizations including Article 19 and Amnesty International are also involved in the case.

Amnesty International’s legal advisor in the region and petitioner on the lawsuit, Fisseha Tekle, was targeted as a result of posts on the social media platform. He received a barrage of hateful Facebook posts for his work exposing human rights violations in Ethiopia. He is an Ethiopian citizen who is currently residing in Kenya and is afraid of returning to his home country.

Through Facebook algorithms, Meta amplified hatred and hate speech. According to the lawsuit, an Ethiopian professor was allegedly targeted and murdered after several Facebook posts calling for his death. One of the petitioners, the son, holds the US company directly accountable for the events. The petitioner’s lawyer cited a “lack of investment in content moderation in Africa as compared to other regions” and questioned why Facebook took so long to respond, even after the family requested that the posts be removed. Facebook responded by stating that it is collaborating with Ethiopian experts to address posts that promote hate speech. The company did not state why its system failed the Ethiopian professor.

3. The Hustler Fund

The Hustler Fund, launched on November 30, 2022, is a government project that is meant to lift millions of Kenyans out of poverty through the bottom-up economic model, by primarily targeting “low-income earners.” In a country where only 9% of the workforce has a stable income and 39% of Kenyan youth are unemployed, such an offer has enormous potential and has attracted multitudes. At least 3.5 million Kenyans had applied for loans by December 2, 2022. The fund’s platform receives 600 loan applications every second. The Fund, which is easily accessible through a USSD code, charges 8% interest if loan buyers repay the amount within 14 days.

Kenyans on social media have dubbed the Hustler Fund “data mining without user consent,” as they are concerned that the loan applicants’ personal information is being shared or sold behind the scenes without their knowledge. Furthermore, many applicants have not received any money even days after applying, raising concerns about data security in the hands of multiple data processors. The Fund has been challenged in court, with petitioners requesting that its implementation and loan disbursement be halted pending the outcome of a lawsuit filed at Milimani Law Courts. According to the Public Finance Management (Financial Inclusion Fund) Regulations, 2022, the government must appoint a board of directors and a CEO to oversee the Hustler Fund. This was not the case when the Hustler Fund was established.

4. Safaricom SIM Card Registration case

Eliud Karanja Matindi filed a petition against Kenya’s Communication Authority over the directive requiring mobile service operators to re-register their customers. The petitioner asked the court to declare the directive unconstitutional, claiming that it violates the Constitution (including the Bill of Rights), statutes, regulations, and other laws.

According to the petitioner, who cited Article 31 of the Constitution on the right to privacy, requiring mobile telephone service subscribers who have already registered their SIM cards with their service provider to register again is unconstitutional. As a condition of registration, natural persons who wish to register as mobile telephone service subscribers must consent to have their photographs taken, processed, and stored, according to the petitioner. The petitioner also claimed that requiring mobile phone service subscribers to disclose all mobile phone numbers already registered to them, including with other mobile phone service providers, violates the Constitution. The Communication Authority, the ICT Cabinet Secretary, the Data Protection Commissioner, and the Kenya National Commission on Human Rights, as well as the National Gender and Equality Commission, the Commission on Administrative Justice, Safaricom, Airtel, and Telkom Kenya, have been named as respondents in the suit. The petitioner seeks to have Sections 5B (5), 27 and 27D of the Kenya Information and Communications Act, 1998, declared unconstitutional and thus null and void.

According to the petitioner, the directive may require mobile operators to suspend the services of any subscribers who have not registered their mobile telephone lines by April 15, with service deactivation 90 days later if they are still not registered. All natural persons must consent to have their photographs taken, processed, and retained as a condition of this new registration; failure to do so will result in suspension, followed by deactivation 90 days later. The petitioner requested the court to order the telcos to delete and remove photographs of registered mobile subscribers taken during the registration process from their records and systems. However, the High Court declined to issue an order prohibiting new SIM card registration.

Bonus

ODPC enforcement notice

On 5th October 2022, the ODPC issued a compliance audit notice to 40 Digital Credit Providers. In December, they reported that only 18 out of the 40 entities had responded by submitting documents for preliminary review. ODPC also added that a review of the documents submitted to them is currently ongoing and in its preliminary findings, a majority of the Digital Credit Providers have more than one product. The Office promised more details once the investigation is concluded. It also reported that Aga Khan Hospital, which had been issued an enforcement notice in October 2022 had responded and is demonstrating compliance with the Data Protection laws.

ODPC penalty notice

The Office of the Data Protection Commissioner (ODPC) had an early Christmas gift for Oppo Kenya in the form of a penalty notice. In the press release dated December 22, 2022, the ODPC stated that they issued the penalty notice because of the refusal by Oppo Kenya to comply with an enforcement notice issued by them on November 3, 2022.

Oppo Kenya had been accused of infringing on the privacy of the complainant by the use of their image on the company’s Instagram account (stories) without the complainant’s consent. The enforcement notice required Oppo Kenya to adduce and/or develop a policy for compliance with Section 37 of the Data Protection Act, which contains provisions for the use of personal data for commercial purposes. The notice also required Oppo Kenya to adduce a data protection policy and evidence that it has developed an internal data subjects complaints management system as mandated by law. to. Due to being uncooperative, Oppo Kenya was ordered to pay the ODPC a penalty of Kenya Shillings Five Million (KES 5,000,000) pursuant to the provisions of the Data Protection Act and the Data Protection (Complaints Handling Procedure and Enforcement).

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