By Jackline Akello

The Kenya Information and Communication (Amendment) Bill, 2019[1] seeks to amend the Act[2] to regulate the use of social media platforms. The Bill introduces stringent rules for bloggers, social media platforms, social media users and social media group administrators that raise questions on the intention of the Bill. Questions as to what the Bill intends to cure are also inevitable.

An analysis of the Bill shows that its provisions are not in line with the provisions of the Constitution as they violate the right to freedom of expression[3], and the proportionality principle[4] which aims to determine whether the limitation/interference of a particular right is justifiable. The Bill provides for; registration of bloggers, licensing of social media platforms, and responsibility of social media users and group administrators.

It starts by defining “blogging” and “social media platforms”. Section 2 of the Bill defines “blogging” as collecting, writing, editing and presenting of news or news articles in social media platforms or in the internet.

This then begs the questions; Are blogs unrelated to news not regarded as blogs within the meaning of the Bill? Are blogs not related to news not regarded as blogs at all? This author’s opinion is that the drafters of the Bill narrowed the scope of this definition with the likely intention of targeting “fake news”[5] and limiting people’s voices and critique of government practices.

“Social media platforms” have been defined to include; online publishing and discussion, media sharing, blogging, social networking, document and data sharing repositories, social media applications, social bookmarking and widgets. This interpretation is wide and has the potential of being applied to cover sites that may otherwise not be regarded as social media platforms. Jadili[6], for instance, which is an online discussion platform of Kenyan laws and policies that is owned by CIPIT, cannot be said to be a social media platform. However, the Act gives a wider and ambiguous meaning that may erroneously be used to include such sites under its ambit.

The Bill introduces registration of bloggers in Section 84ID which requires bloggers to obtain a license authorizing them to blog. Consequently, as drafted, a blogger who blogs without a license is guilty of an offence and liable upon conviction to a fine not exceeding five hundred thousand shillings or to an imprisonment of a term not exceeding one year.

With the proliferation of the internet, blogging has become one of the many channels used by citizens to exercise their right to freedom of expression online. Licensing and registration is an outright breach of this right as there is no legitimate reason why bloggers or members of the public should be subjected to mandatory licensing to express themselves.

Further concerns, in this bloggers opinion, include the fact that social media platforms are required to obtain a license authorizing them to be used for communication purposes.[7] Additionally, they are required to meet the terms and conditions laid out in the Bill subject to issuance of the license by the Communications Authority of Kenya (The Commission). Failure to which, the license may be revoked by the Commission.[8]

Social media platforms are obliged to – establish a physical office in the country, register all users of the platform using legal documents, keep all data of the users and submit to the Commission when required and, carry out due diligence in ensuring that all its users, if natural persons, are of age of majority. Failure to which, their license may be revoked.

It is important to note that the above conditions laid out are untenable and, in this authors opinion, legally unenforceable. Firstly, registration of all users of a social media platform is impractical. Secondly, the requirement that the social media platform submits all data to the Commission when required is legally unenforceable and a breach of the right to privacy[9] and the principles of data protection laid out in the Data Protection Act, 2019.[10]

The Data Protection Act sets out that personal data – shall be processed in accordance to the right to privacy of the data subject; processed lawfully, fairly and in a transparent manner; collected for explicit, specified and legitimate purposes; and collected only where a valid explanation is provided.[11] Subsequently, the Act also grants a data subject the right to be informed the use to which their personal data is to be put.[12]

The requirement that social media platforms submit all data to the Commission when required, in this authors view, violates the aforementioned principles and is also subject to abuse by the Commission as it does not state the circumstances when personal data should be availed to the Commission and does not consider the right to privacy of data subjects.

Additionally, the proposed licensing regime does not provide sufficient details about the conditions for granting of the license. It lacks clarity on whether issuance of the license automatically follows the payment of the fee, or if further conditions have to be met by the applicant. The vagueness of the rules might provide authorities with unlimited discretionary power in deciding whether to grant license or not. The Bill also lacks mention of any appropriate administrative or legal relief that can be granted to an applicant, should the application be denied.

Social media users have been given the responsibility under the Bill, of ensuring that content published by them on the platforms – does not degrade or intimidate recipients of the content; is not prejudicial against a person or group of people based on their race, gender, ethnicity, nationality, religion, political affiliation, language, ability or appearance; and is fair, accurate and unbiased.[13] The Bill further criminalizes any act done in contravention with this provision.[14]

These propositions limit the right to freedom of expression as they do not align themselves with the constitutional requirements on when and how the right to freedom of expression should be justifiably limited. The only exception stated in the Constitution is content that directly relates to – propaganda for war, incitement to violence, hate speech or advocacy for hatred.[15] Such limitations are therefore unconstitutional.

The Bill further places unrealistic responsibilities to group administrators of social media platforms.[16] The requirement that group admins should; notify social media platforms of their intention of forming groups, approve members of the group, approve content published in the group and control undesirable content is unrealistic and threatens the right to freedom of expression and the right to assembly which are freely provided by the Constitution.

Social media groups are formed for various purposes such as fundraising in the event of death, sickness or weddings, social purposes such as reunions, and requiring group administrators to inform the Commission before such groups are formed, is untenable. Also, as drafted, clarity is required on what constitutes ‘undesirable content’. This as a result, can give an administrator unchecked powers to determine what it is that people can discuss in a group.

In conclusion, the author of this article does not dispute regulation of the use social media. Such regulation should however, be done in line with the Constitution giving effect to Article 24 of the Constitution on the principle of proportionality. Regulation of should be done in a manner that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.  Regulation should also be done in a manner that protects the freedom of expression and association.

---

[1] Published on 24^th July, 2019.

[2] Kenya Information and Communication Act, 2015.

[3] Article 33, Constitution of Kenya, 2010.

[4] Article 24, Constitution of Kenya, 2010.

[5] Fake news is a type of propaganda that consists of deliberate disinformation or hoaxes spread via traditional news media or online social media.

[6] http://jadili.ictpolicy.org/

[7] Section 84IA

[8] Section 84IA (2) & (3)

[9] Article 31, Constitution of Kenya, 2010.

[10] Section 25, Data Protection Act of Kenya, 2019.

[11] Ibid.

[12] Section 26 (a) Data Protection Act, 2019.

[13] Section 84I C (1).

[14] Section 84IC (3).

[15] Article 33 (2).

[16] Section 84IC (2).