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Nyakundi case highlights need for education on the law and Internet in Kenya

Photo courtesy of www.mashada.com
Photo courtesy of www.mashada.com

The court case against blogger Cyprian Nyakundi highlights the need to learn about online freedoms and responsibilities. Certainly the internet does not exist in a vacuum.

Nyakundi, after reading the summons to appear in the newspaper tweeted

 

 

 

 


In addition to the above, he also retweeted what people were commenting about the court case. Most of these comments were disparaging Safaricom’s move. It is good to note from the go that tweeting and retweeting are both publishing. Neither has a lesser obligation. In addition, neither does stating half of retweets are not endorsements or retweets are not necessarily endorsements in the profile of your account reduces your culpability.

The legal framework governing the internet in Kenya is still evolving. However a point to note is that what governs media and freedom of speech offline also governs its online. That means that what is illegal or unlawful or should be avoided offline, should be replicated online.

The Bloggers Association of Kenya (BAKE) in whose mandate is to promote online local content has been running a project called ifreedoms. The project seeks to enlighten Kenyans of all walks of life about the law and the internet in Kenya. It conducts these training’s in various locations around the country. So far, these training’s have been held in Nairobi, Kisumu and Nyeri. It intends, in the long run, to go nationwide.

It is in the interest of BAKE that Kenyans know how they should conduct themselves online so that they responsibly, accurately and consistently tell their own stories online through blogs and social media platforms. Certainly when a blogger has a legal issue, BAKE may intervene when the cause is genuine and especially when it involves its members. It does these by assisting with legal counsel, popularizing the issue on social media and documenting it.

This Nyakundi court case validates what BAKE is doing. Nyakundi is still innocent until proven guilty. However, if he knew his legal rights and obligations, he probably would not be in the situation he is today. More importantly, more Kenyans should take queue from this to learn how they should conduct themselves online.

The State of Blogging & Social Media in Kenya report brought out some of the cases bloggers are facing. It also stated that one challenge they face, including social media users is knowledge of their rights including basics like the rights of an arrested person.

There is a court ruling that sheds light into the issue of sharing secondary content that comes with responsibility as the primary publisher of the content. In the case, CFC Stanbic Bank Limited v Consumer Federation of Kenya (COFEK) Being sued through its officials namely Stephen Mutoro & 2 others [2014], two things stand out, they read

On or about 1st October, 2014, the Defendant caused to be published in its web-site http://www.cofek.co.ke an article entitled “How true is this allegation on Stanbic Bank Juba Branch on Foreign Exchange Transactions.”  In the said article, there were allegations against the Plaintiff’s Juba branch of lack of integrity in Foreign Exchange dealings; breach of Bank of South Sudan and Central Bank of Kenya regulations; arrogance by the Plaintiff’s Foreign Exchange dealer; breach of consumer rights and lack of integrity and responsibility by the Plaintiff’s management team.

On 2nd October, 2014, Messrs Wamae & Allen Advocates the Plaintiff’s advocates demanded from the Defendant the immediate removal of the said article from the Defendant’s website, facebook and Twitter accounts.  On receipt of the said demand, the Defendant responded that they were not the authors of the said anonymous article but had brought the said article to the attention of the public in general to have more complaints and have a public explanation given.

The court held that in the

Safaricom Limited  Vs porting Access Kenya Ltd (2011), repetition of a rumour is libel itself.  By republishing what is libelous, the Defendant is taken to have assumed responsibility in respect hereof.

Ruling on the 5th December 2014, Justice A. Mabeya ruled that

I have considered that the article complained of is not only defamatory but its  continued publication on the world wide web may continue to damage the Plaintiff’s international business, the Plaintiff is a bank of repute operating not only in Kenya but throughout Africa; the continued circulation of the article in the worldwide web of the Defendant may hinder or affect the Plaintiff’s reputation and business operations;

The above case sheds light into the practice of sharing content. Sharing includes retweeting on Twitter and sharing on Facebook. It also follows that re-publishing such content has ramifications, equal to the first publisher hence responsibility must be critical.

The onus on how on Safaricom to charge and argue whether;

1. Cyprian Nyakundi indeed has a blog and it is his blog that Safaricom alleges published defamatory statements,

2. The posts, it needs to produce them in court in some format, were defamatory. Already, the court has ordered they be pulled down.

Moving forward, Kenyans need to learn how, what to publish online and what not to as there are consequences for the choice of words you put online.

 

About shitemi khamadi

Shitemi is the Kenya Monitor Managing Editor. He trains journalists on basics of journalism, storytelling, conflict sensitive journalism and devolution.

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