This is one of a series of posts about the pending The Computer and Cybercrime Bill 2017 hereinafter Cybercrime Bill and its consequences for intermediaries and user speech online.
The Cybercrime Bill is currently in its first reading at the National Assembly. It is worth noting that the bill is important in a nation that continues to be subject of multiple cases of cyber-crime. The Bill covers all possible computer-related offenses for the public. In this post I will however give a critique of Section 12 of the Cybercrime Bill.
Section 12 provides that, “A person who intentionally publishes false, false publications. misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.”
The purpose of defamation laws is to protect people from false statements of factual nature that cause damage to their reputation which are well provided for under the Defamation Act. The Cybercrime Bill does not however define what a false publication and subsequently does not provide who determines whether a publication is false or not. Furthermore no parameters have been established to determine what kind of information would fall under the definition of false publication.
The proposed Section 12 of the Cybercrime Bill does not take into consideration the finding of Hon Justice Mativo in Jacqueline Okuta & another v Attorney General & 2 others  eKLR where he termed section 194 of the penal code dealing with the criminalization of defamation.
The Penal Code repealed Section 194 provided, “any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanor termed libel.”
By inserting section 12 of the Cybercrime Bill the drafters seemed to be sneaking in clauses criminalizing the defamation again through the backdoor.
The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.
The Court then held that “the invocation of criminal defamation to protect one’s reputation is … unnecessary, disproportionate and therefore excessive and not reasonably justified in an open society based on human dignity, equality and freedom. The Court further held that article 194 of the Penal Code is “unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33(2)(a)-(d)” and its continued enforcement against the petitioners “would be unconstitutional and/or a violation of their fundamental right to the freedom of expression
The United Nations Commission on Human Rights has observed that “detention as a sanction for the peaceful expression of opinion is one of the most reprehensible practices employed to silence people and accordingly constitutes a serious violation of human rights”.
The African Commission on Human and Peoples’ Rights has adopted a resolution on repealing criminal defamation laws in Africa: “Criminal defamation laws constitute a serious interference with freedom of expression and impede the role of the media as a watchdog, preventing journalists and media practitioners from practicing their profession without fear and in good faith”. This is particularly so when less restrictive remedies are available in the form of civil defamation and the right of reply.
Further Principle 4 of ARTICLE 19’s Defamation Principles, calls for all criminal defamation laws to be abolished without delay, even if they are seldom or never applied, and to be replaced with civil defamation laws. The Principles state that jail terms or excessive fines should never be available as sanctions for such offences. They are based on the premise that, in a democratic society, freedom of expression must be guaranteed and may be subject only to narrowly drawn restrictions which are necessary to protect legitimate interests, including reputations. In particular, they set out standards of respect for freedom of expression to which legal provisions designed to protect reputations should, at a minimum, conform. In this case however the proposed section 12 of the Cybercrime Bill does not conform.
Defamation laws, while aiming to suppress or redress harms to reputation resulting from speech whether spoken aloud, distributed in print, broadcast, or otherwise publicly communicated will necessarily interfere with the right to freedom of expression. Our Constitution commands that these limitations must not only serve a legitimate public purpose, they must do so in a way that strikes a proportional balance. Key factors in this equation are how restrictively the right is limited and whether less restrictive means are available to achieve the purpose. It is against this background that criminal defamation must be viewed.
It is my view that the proposed Section 12 of Cybercrime Bill should be deleted before the Bill is passed into law as it is an affront to the fundamental right of freedom of expression which is protected by the Kenyan Constitution.