WILMap: Kenya


LEGISLATION

[Under Kenyan law, no provision specially addresses the issue of intermediary liability. There are no stated take down laws, policies or procedures. There is also no safe harbour for intermediaries or similar provisions limiting their liability. However, the activities of the intermediaries are assessed and regulated according to general provisions of criminal or civil liability. Under this framework, Intermediaries are responsible for filtering, removing and blocking content that is considered illegal, e.g. under crimial law or copyright, information communication, or hate speech legislation. However, they have no obligation to monitor traffic on their networks unless they are made aware of an illegal/unauthorized content or activity. The relevant provisions are detailed below.]
 
 
[Section 11(1) provides that “no person shall advertise an internet gaming site that is operated contrary to any written law” and Section 11(2) provides that “no person, other than an internet service provider, shall arrange for or otherwise facilitate advertising prohibited under subsection (1) on behalf of another person.” Although confusing, the wording of these sections does not allow illegal activity for ISPs, but rather introduces a "safe harbour" exception so that an ISP can continue operating even if there are adverts (of which it has knowledge or does not have knowledge) that are illegal. Also, section 11(3) states "For the purpose of subsection (1), a person advertises an internet gaming site only if the advertising originates in Kenya or is primarily intended for Kenya residents."]
 
 
[(1) Section 24-25 establishes the requirement of license to operate or provide telecommunication systems and services;  under the Unified Licencing Framework (ULF) operated by the Communication Commission of Kenya (CCK), there are 3 categories of  internet intermediaries, which need to be licensed: (i) Network Facilities Provider (NFP), owning and operating any form of communications infrastructure (based on satellite, terrestrial, mobile or fixed); (ii) Applications Service Provider (ASP), providing all forms of services to end users using the network services of a facilities provider; (iii) Contents Services Provider (CSP), providing contents services such as broadcast (TV& Radio) material, and other information services and data processing services, etc.
 
(2) Section 27 empowers the Miniter in charge of communications to make rules in consultation with the CCK pertaining to the telecommunications system, thus the minister may introduce new obligation for intermediaries;
 
(2) Section 29 prohibits improper use of a system by sending a message or other matter that is false offensive, indecent, obscene or menacing character; 
 
(3) Section 30 prohibits the intentional modification or interference with the contents of a message sent by means of a telecommunication system, by persons licensed to run a telecommunication system;
 
(4) Section 31 prohibits licensed operators from intercepting and/or disclosing the contents of a message sent through the system;  
 
(5) Section 46(I) lists the responsibilities of broadcasters including to respect the rights to privacy of individuals and to respect the copyrights or any neighbouring right to any work or material; 
 
(6) Section 84(D) prohibits the publishing or transmitting of obscene information in electronic form; and 
 
(7) Section 93 provides general restrictions on disclosure of information.]
 
 
 
[Section 13 creates the offence of Hate Speech. Section 62 makes an offense for any media enterprise to publish words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.]
 
Sexual Offences Act of 2006, last amended by Act No. 12 of 2012
 
[(1) Section 12 makes it an offense for any person to distribute, supply or display any article that is intended to encourage or enable a child to be engaged on in sexual act;
 
(2) Section 14 prohibits child pornography which involves distribution and receiving profits from distribution of obscene materials to a child;
 
(3) Section 19 criminalizes the publishing of information intended to promote or facilitate conduct that would constitute a sexual offence against a person living with disabilities.]
 
 
[(1) Section 26 describes the nature of copyright in literary, audio-visual and musical or artistic works. It provides for the exclusive right of copyright holder to control reproduction and distribution of their works to the public;
 
(2Section 35 defines and describes what constitutes copyright infringement and imposes criminal liability for distribution or making available to the public protected works without a license;
 
(3Section 38 lists the offences and penalties for copyright infringement including the making and distribution of protected works without a license.
 
(4) Neither the Copyright Act nor other legislation imposes specific penalties on service providers for failing to block or remove infringing content. However, the continued existence of copyright material on a website, can be construed as a continuing violation and thus fall under the ‘distribution’ clause under s. 35 and 38 of the Copyright Act, thus giving rise to liability.]
 
Penal Code, CAP 63
 
[Chapter XVIII defines and describes defamation as an offence. Section 194 makes any person who unlawfully publishes defamatory matter with intent to injure or defame another person liable for defamation.]

BILLS AND PENDING PROPOSALS

 
[This bill will be enacted to give effect to article 31(c) (d) of the Kenyan Constitution on regulation, collection, and disclosure of personal data and connected purposes. (1) Section 8 prescribes the manner in which personal data is to be collected; (2) Section 11 imposes a duty on any agency that holds personal data to ensure its protection and security; (3) Section 17 gives the restrictions on commercial use of personal data.]
 
Electronic Transactions Bill of 2007 (withdrawn)
 
[(1) This Bill contained key provisions on intermediary liability which finally were not integrated into the Information and Communication Act of 2009 and was partially inspired by the EU Commerce Directive.
 
(2) It provided for ‘safe harbours’ limiting civil and criminal liability for service providers in respect of third parties where they acted as mere conduits, when hosting, with respect of caching processes, and where they used information location tools.
 
(3) Further, it provided for a notice and take-down procedure for addressing complaints of infringement of rights, while also granting service providers immunity for any actions taken once notified of the infringing activity.
 
(4) Clause 27 stated that service providers were not under any general obligation to monitor data transmitted or stored or to actively seek facts or circumstances which were indicative of unlawful activity, although they were required to monitorand report unlawful activity once they were aware.
 
(5) However, the limitation on liability proposed under the bill did not extend to obligations such as those founded on contract, those imposed by law or court processes, and those based on common law or statute.

DECISIONS

Lower Courts

High Court of Kenya at Nairobi, Uhuru Muigai Kenyatta v Muchemi Wachira and Nation Media Group, 2013
[defamation, hosting provider, news platform, users' comments]
 
[The defamatory material for which Nation Media Group (NMG) was found liable consisted partly of comments posted on the NMG’s website by members of the public in response to a news article that Muchemi Wachira had posted on NMG's website. The court found NMG liable for defamation by virtue of its role in publishing the comments on its site and for not exercising control in removing the defamatory comments posted by the public. According to this decision, intermediaries have an obligation to remove allegedly defamatory material, which comes to their notice, either as a result of a complaint by the allegedly defamed person or otherwise. The obligation to remove the infringing material does not depend upon the determination of the court.]
 
[There are currently no other known cases that have been brought before the courts on the issue of intermediary liability. However, a few other cases have delt with direct infringment of online intermediaries and defamation through social networking sites. They are mentioned below as they may contain useful insights.]
 
High Court of Kenya at Nairobi, John Boniface Maina v Safaricom Limited, [2013] eKLR, Civil Suit No. 808 fo 2012, May 14, 2013
[copyright, mobile telecom, ringtones]
 
[The plaintiff, a musician, successfully sued the defendant, a mobile telecommunication company for breach of copyright. The defendant had introduced a caller back ring tone service where they distributed the plaintiff music without authorization. The defendant was restrained from infringing upon the plaintiff’s copyright by offering for sale, selling or storing of any data relating to the plaintiff’s musical works. The defendant was also ordered to remove all the plaintiffs musical works from the website.] 
 
High Court of Kenya at Nairobi, Duncan Muriuki V. Baobab Resort, Petition no. 223 of 2012, June 12, 2013 
[Defamation, Hotel, Facebook page]
[This is an ongoing case where the plaintiff complained that some words published on the hotel’s Facebook page were defamatory. Interlocutory order was obtained requiring the respondent to remove infringing content posted.]

OTHER RESOURCES

Center for Intellectual Property and Information Technology Law (CIPIT) at Strathmore Law School in Nairobi, Kenya, http://www.cipit.org
Alice Munyua, Grace Githaiga and Victor Kapiyo, Intermediary Liability in Kenya (Intermediary Liability in Africa Research Papers No. 2, 2013)
Marisella Ouma, Role and Responsibility of Internet Intermediaries in the Field of Copyright in Kenya (a paper presented at WIPO-ISOC, June 22, 2011)
Kenya ICT Action Network (KICTANet), http://www.kictanet.or.ke 

CONTRIBUTORS

Center for Intellectual Property and Information Technology Law (CIPIT) at Strathmore Law School in Nairobi, Kenya

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