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With a new regime in Kenya, the fate of internet intermediaries is uncertain. Two years after the publication of an APC research report on the issue, Grace Githaiga talked to APCNews on the latest developments in the country.

What are the new challenges currently faced by Kenya in terms of intermediary liability?

Kenya just went through a first general election under a new constitution last year, and there has been a reduction in the amount of hate speech via text messages. This is because there is now a law that mandates everyone to register their SIM cards, and the government actually indicated that it was monitoring text messages and flagging those that were deemed risky. We suspect that people were afraid of being profiled as those sending or exchanging hate messages.

What’s more is that organisations have started taking responsibility as intermediaries. When we conducted the intermediary research, only the Daily Nation newspaper already had rules on how readers should blog on their online platforms. But recently The Standard has also created its own rules. As far as I am concerned, this is their own initiative because of fear of being taken to court by people who have been defamed by comments on their platform.

In the previous government, the minister, the permanent secretary and other senior staff in the Ministry of Information frequently interacted with civil society and other stakeholders. This has not been the case with the current government, where there seems to be suspicion towards civil society.

Also, the government is not participating in some global internet debates and making its position known. For example, it would be useful to know if they will be participating in the NETmundial meeting scheduled for Brazil in April. The Kenyan government is also a founding member of the Freedom Online Coalition (a group of governments committed to working towards internet freedom) but has not been active in its planning meetings.

What are the most pressing internet issues in Kenya?

I think it is the issue of surveillance, especially the monitoring of text messages.

The fact that we still do not have a data protection law is also an issue. Sometimes surveillance can be justified, in particular in this country where we have had enough cases of terrorism and terrorist threats. However, it raises concerns when the surveillers start building a profile of you. There needs to be a law that provides justification for surveillance.

Considering that the constitution of Kenya recognises the participation of stakeholders in any policy-making process, we still need to make a conscious effort to sustain this, especially because the new officials in the Ministry [of Information] are hesitant to incorporate multi-stakeholderism. The Ministry has in some instances released complete policy documents and asked for input, giving us a very short time to respond, and even after stakeholders make the effort to contribute, their inputs are ignored in the final outcomes. Stakeholders’ contributions should be reflected in outcomes; otherwise this consultation is superficial, aimed at fulfilling the face value of a constitutional requirement.

Since your report, has the Telecommunications Service Providers Association of Kenya (TESPOK) been recognised by the country’s regulatory body, the Communications Commission of Kenya?

Grace Githaiga: They have been recognised for a while since they are stakeholders and sit in committees that make decisions such as for the .ke domain name. I am not sure if this has happened in law, but they have been effective and quite visible in policy platforms.
4. In your report, you mentioned some bills [the Consumer Protection Bill and the Data Protection Bill] that introduce new forms of liability for internet intermediaries. What’s the present status of these bills?

Grace Githaiga: The consumer bill is actually an act now, it was passed last year even before the general election. The Data Protection Bill and the Freedom of Information Bill have yet to be passed. They have been undergoing stakeholder consultation and we are not sure what their current status is. We just want to meet with the government to get an update on the status of things.

Is there currently any safe harbour provision (that is, a law or regulation that protects internet intermediaries from potential liability) for internet intermediaries in Kenya?

Not that I know of. However, we’ve not had any cases of intermediaries being prosecuted by the government for “improper” content.

Currently, is there any evidence that suggests that internet intermediaries face pressure from the government to give preference to certain types of content?

Grace Githaiga: No, there is none. The only proof was during the election period, where the mobile service providers, working together with the government, created a firewall to flag text messages that were thought to be hate messages. But after that we’ve not had any reports of them doing that.

*What is the impact of the current regulations on citizens of Kenya?

Sometimes people have felt that we are reverting to the old regime, where decisions would be made unilaterally without any dialogue with stakeholders. We feel that there is some scorn, especially towards civil society, because stakeholders have been raising concerns that need a response from the Ministry but have only been met with silence.

We would like the cabinet secretary to look at the internet as an enabler of information rights, and therefore facilitate the creation of a framework for the protection of information rights.

How is it affecting their internet experience?

I must say that people still continue to communicate on the internet freely without any fear. They can say anything! The only place it has affected is communication via text messages, because people know that there may be some monitoring and so they are careful of what they put out there through their phones.

Why is this an issue that matters to them?

Governing the internet is not like governing any other area: the internet concerns everybody and it requires multi-stakeholderism. I think it is the only place where you have both users and producers participating on similar platforms as important stakeholders. So when the government regulates it, it needs to regulate in the interest of the stakeholders, including the end users.

Why have the responses of internet intermediaries to technology-related forms of violence against women been so inadequate?

Even ordinary women’s issues don’t really get the attention that is necessary, so intermediaries have nothing specific to protect women against online violence with. We don’t have specific laws that can be used to prosecute those who are committing this kind of violence. People have been taken to court for sending hate speech and abusive text messages, and the charges have been that they have misused a telecommunication instrument, but are really not based on the content.

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