THE Internet is increasingly becoming a virtual soapbox for people to vent their thoughts – and sometimes frustrations and dissatisfaction. The
proliferation of blogs, discussion groups, and more recently, social networking, have emboldened many – with the assumption that making comments from behind a screen shields them from any legal repercussion.
However, the long arm of the law extends beyond solid ground, and reaches into the virtual realm as well.
Internet posts are subject to similar laws as that of print media, aside from the Kenya Information & Communications Act). Examples of legislation include the Penal Code as well as civil and criminal defamation laws – all of which have previously been invoked to bring an individual to court, most famously in the cases involving the Daily Nation and the East African Standard.
More recently, Robert Alai a blogger was arrested and charged for a Twitter message that apparently mocked the ongoing renovation and building work in Kibera by the government by calling it ‘Kalongolo’ a kids game in the urban slang sheng language.
Posting news content on Internet blogs, for example, is in some way similar to what mainstream news journalists do, but Law feels that bloggers are at a distinct disadvantage.
They do not have proper media training or resources to help them determine what they are doing are legal. As the social networking and blogging activity is still relatively new, there is little legal precedent to follow and there are many issues yet to be tested in court.
The President recently signed into law the Security Laws (Amendment) Act, 2014 which amended the Penal Code and the Evidence Act respectively, amendments which touch on posting of materials online.
The Penal Code is amended by inserting the following new section immediately after section 66─which prohibits publications and broadcasts.
“66A. (1) A person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.”
On the other hand the Evidence Act has been amended at section 78A and provides that in any legal proceedings, electronic messages and digital material shall be admissible as evidence.
The wording of the Penal Code (Section 66A) is very broad, and there is a lot of uncertainty. Because it is not yet tested, you can be snagged if its wording can be defined to suit your case. It can be of any mode, medium or application – SMS, iPad or Twitter – so long as you type out a comment and post it, you will fall within the ambit of the section. The law is broad enough to include everyone, even an innocent disseminator.
The provisions may be uncertain and ambiguous, but not bad law. It gives enforcement agencies a lot of leeway so they would have the unfettered discretion for its use. The only question is if this discretion is used fairly.
However, web service providers need immunity from content posted on their website, something that United States law provides for in Section 230 of its Communi¬cations Decency Act.
This is not the case however in Kenya as it was recently ruled in the case involving Google Inc and Google Kenya Limited where the latter had argued in its application that it was not responsible for publication of defamatory material as the platform used by the blogger was owned by Google Inc. which only pays the local operation marketing fee.
While existing Kenyan law appears to cover cases of wayward online behaviour at the moment, there are some who feel that there is a need for the law to be reformed.
Just like how there was the industrial revolution before, now we are having an information revolution. During the agrarian age, laws were formed to protect the land, and during the industrial age, to protect intellectual property with laws regarding copyright and trademarks,
The whole world now has information at its fingertips, and if you withhold information, people start to question the lack of access to it. People expect information, and the question is if existing laws are sufficient to provide for the needs of a modern society.
Signs of this can be seen in the increasing call for freedom of expression and the right to information which are guaranteed by the Kenyan Constitution 2010.
Laws exist to serve society, and society does not serve the law. We have this need now, and the question is if the Government is doing enough to provide for this need. Any significant legal reform on the use of the Internet is not yet on the horizon, and until then, social networkers and bloggers should be vigilant on their online behaviour.
In conclusion, people should behave the same way online as they would in real life. If they do not shout and curse in public, then their behaviour should remain the same online. They should not wear a different hat in cyberspace.
What is posted on cyberspace stays there forever. Something that you said 5 years ago on a website may resurface, and you may have no recollection of even writing it. You have to be careful what you write, and not just post what comes off the top of your head. If you know it to be inflammatory, then you should be careful.