‘THE SOCIAL MEDIA BILL’: PROPOSED AMENDMENTS TO KICA TO REGULATE USE OF SOCIAL MEDIA PLATFORMS

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).