The time is ripe to hone laws on social media

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Sunday Memba

“Remember this: a story that must be told never forgives silence. Speech is the mouth’s debt to a story,’’ Femi Adaro is told by his grandmother in Okey Ndibe’s, Arrows of Rain.

This appeal for sanity to prevail in social media platforms must not fall to deaf ears. For a while now, even a blind man could see that a regulation to curb the negative effects of social media was coming. Social media is the current El Dorado of information, and it is vital to distinguish what type is palatable. People who shout “fire” in a crowded building must face the wrath of the law. Social media has become a world of conjecture and should be regulated. This cannot be gainsaid. I therefore proceed with sledgehammer directness.

“The media is on its own… is like a giant beast; its teeth are persuasion, its eyes information and its hands formation of public opinion. The media wins and loses elections.

The media impeaches politicians and, on its own, the media is a watchdog to government decisions… it uncovers corrupt malpractices (Franceschi LG and Mwita C, “Media and the Common Good”, Law Africa, 2009). In our techno-savvy times, media comprises the social media. The Constitution, in Articles 33 and 34 guarantees the freedom of expression and the media correspondingly. It also provides restraint to the same rights. The law regarding social media regulation is limited in scope and value. This is seen by the failure of law enforcers to curb this mischief more times than anyone cares to count.

In January this year, six bloggers were arrested. The arrests were all related to their social media posts and their blogs. Some were detained and later released. Others were tried and acquitted on the premise that there was no evidence implicating them to the offence(s) they were charged with. These arrests were done by the Directorate of Criminal Investigations (DCI). The DCI then forwarded these cases to the Director of Public Prosecutions (DPP). Section 66(1) of the Kenya Information and Communications Act (Kica) Cap 411A and/or section 29 of the Penal Code were the legal podium on which the charge sheets were drafted.

Section 29 of Kica imposes a penalty of a fine fifty thousand shillings or imprisonment for three months if (a) by means of a licensed telecommunication system sends a message that is grossly offensive or (b) sends a message that he knows to be false for the purpose of causing annoyance or needless anxiety to another individual. Section 66(1) of the Penal code makes it an offence for one to publish any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace; whoever does this is guilty of a misdemeanour. This sums up regulation of defamatory or libellous statements over the web. Nonetheless, these sections are very vague; they do not even at once state the word “media”, leave alone “social media”. No statute defines social media or judicial decisions.

This should send shockwaves. It is an open secret that our Parliament is not run by the best brains around, but someone expects that it should act upon some threshold of common sense to this problem. However, all is not lost; there is some glimmer of hope.

Time is more than ripe to set the boundaries of free speech in legislation. Be that as it may, let’s not hurry to avoid a stillbirth. Social media has become a platform that needs to be checked lest it becomes an albatross around our necks. WhatsApp, Facebook, Twitter, Instagram and Snapchat remain the most used altars of exchange amongst Internet users.
Social media sites have changed society on both a micro and macro level by aiding perpetual communication. On a micro level, persons can share information to each other as friends, professionals or workmates. On a macro-level, social media is a market place where one speaks or listens as one wishes. The macro level has also enabled the planning of strikes, mass gatherings and even impeachment of leaders. The macro level can be considered as comprising of public law, and the micro level private law.

Libel in social media

A defamatory statement is one which tends to lower the claimant in the estimation of right thinking members of a society or cause one to be shunned or avoided. Should the traditional common law rules regarding libel still be applied to libellous content published in the social media? Should the doctrine of laches requiring that court actions concerning libel after one year aren’t in the interest of equity applied? And if this is so, should the limitation period begin on the day of publication or on the day the information was accessed?

Common law developed to suit modern day hard copy publications, but is it inimical to social media? These questions provide fodder for law-making on social media.

In “Loutchansky v The Times Newspaper Ltd” [2001] EWCA Civ 1805, the court sought not to apply the common law rule applied in defamation while dealing with the doctrine of laches. This position was later criticised by the UK Law Commission in a paper “Defamation and the Internet – A Primary Investigation”. The commission argued that it was unfair to defendants to allow actions to be brought against publishers of a statement decades after the original publications. What position would our system take?

The law in Kenya on defamation is that anyone who participates in publication of defamatory statements liable though exceptions occur if it one participates innocently. This is of course limited to the standards of liability. Thus an author, editor, publisher, printer, distributor and vendor are all potentially liable. In the social media scene, these actors exist. One may photograph an obscene piece of literature, and thereafter a friend uploads it in a social media platform. People may like and share this information on social media.

The social media site then participates as the “printer”. Finally one of the “sharers” is caught. The chain is complete.  Who is liable and to what standards? Would the site be liable? Or we should we consider it as acting like a telephone booth which passively transmits data across its system. These questions are ineluctable.

Some factors need to be considered. Lines must be drawn between authorisers, participators and facilitators. Primary and subordinate disseminators of the information must also be considered. In common law, the primary disseminators were liable whether or no they knew of the statement or not. The secondary disseminators would be liable if they knew it was defamatory. But who in these days would not plead the defence of innocence? If we are to legislate on this matter then utmost care should be taken in deciding the level of liability.

What about internet service providers? Are they liable or not? The case of Godfrey v Demon Internet Limited [2002] HCA 56, gave a decision that an Internet service provider would be liable. This is to mean that he who makes a platform for one to publish would be liable. However, Eady J in “Bunt v Tilley [2006] EWHC” held that affording a connection to the Internet would not render a provider liable. He noted that it was crucial to ascertain that one had “a knowing in involvement in the process of publication of the relevant words”. What should our legal system thus embrace?

Soul searching on these questions is of utmost significance; answering them is even greater. They are stark and staring.

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