Justice Jacob Gakeri ruled that social media giant Meta can be sued locally, opening a new front for multinationals registered outside the country to face suits in Kenyan courts. The firm wanted to be removed from the case arguing that Kenyan courts do not have jurisdiction to determine the case. The social media firm argued that they are not domiciled in Kenya and local courts do not have jurisdiction over them.
Meta is also facing a second court case in Kenya, filed by two Ethiopian petitioners and a Kenyan rights advocacy group, Katiba Institute, who claim that the company failed to take online safety measures to manage hate speech during Ethiopia’s Civil war. The father of one of the petitioners was killed after a violent Facebook post that was reported but not deleted on time. Advocates of the plaintiffs argued that the content had been left in Facebook for a long time and it failed to take it down. Justice Jacob Gakeri further ruled that if a technology company has a significant presence in Kenya or any other African country, such as an office or employees, Kenya courts may have jurisdiction to hear cases related to content regulation particularly if the content impacts Kenyan and African citizens at large.
Inciteful messages have often been disseminated on social media platforms during elections that have led to anarchy in our country.
The matter of jurisdiction when it comes to foreign social media companies functioning in Kenya is a complex and multifaceted subject, encompassing various legal, technological and political elements. The question is the extent to which Kenyan courts and other African courts can claim jurisdiction over companies based overseas but with operations and services accessible to Kenyan citizens. Jurisdiction refers to the legal authority of a court or other governmental body to hear and decide cases, enforce laws, and take other legal actions.[1] Jurisdiction is important in holding social media companies liable for content moderation because it adumbrates and delineates which court or government has the authority to hear and decide a case against the company. Without proper jurisdiction, a court may not have the authority to hear a case, and any legal action taken against the company may not be enforceable.
Jurisdiction of Kenyan courts over foreign social media firms is not absolute and may be subject to limitations under the principle of International comity and the laws of other countries. The concept of jurisdiction in the digital era is complicated by the fluid and borderless nature of the internet and the difficulties in determining the place of commission of online activities.
Our jurisdiction’s domestic laws such as The Electronic Transaction and Cyber security Act govern dealings, data security and Cyber security matters in Kenya and sets forth a legal structure for controlling the actions of foreign social media corporations doing business in the county[2]. The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters outlines the required procedure for providing legal paperwork to individuals or organizations located in a foreign country.[3]
In this case, the Kenyan government may not be able to take legal action against the company unless the company has a presence in Kenya, or if the content in question was targeted specifically at users in Kenya. Pursuant to this, it is a challenge when attempting to initiate legal action against social media companies located outside of Kenya, as serving the relevant paperwork may prove cumbersome. This may disadvantage local users and lead to lack of accountability of these companies in their exploits in Kenya.
Similarly, the Brussels Regulation oversees the Jurisdiction of courts for Civil and Commercial cases within the European Union and also provides that the defendant’s case must be heard in the country where they are domiciled, where the headquarters is located[4].
According to recent statistics, Kenya has a high penetration rate for internet usage, with over 50% of the population having access to the internet, and a significant portion of this group using social media platforms[5]. This can be a clear indicator that these companies have a presence in Kenya and profit from Kenyan Citizens. These companies therefore have a legal and moral obligation to ensure content moderation for the safety and wellbeing of Kenyan and African users at large.
Content moderation is an important issue for social media companies because it affects the quality of information and discourse on their platforms.
To wrap up, the issue of Kenyan courts having the authority to hear cases about content moderation performed by foreign companies is a complicated and continuously developing legal area. There are conflicting aspects, such as these companies operating on a global scale, which makes them susceptible to legal actions from all over the world, while at the same time, many countries, including Kenya, have limitations in their jurisdiction over foreign companies and face challenges in enforcing their rulings. International treaties and agreements may be necessary to solve these challenges.
The development and implementation of national and international laws in this field will play a significant role in establishing clear and efficient standards for online content moderation.
Joe Onyango a Law student at the University of Nairobi, Parklands Campus.
[1] Black’s Law Dictionary, 10th ed. (2014).
[2] The Electronic Transaction and Cyber security Act, 2018 No.19 of 2018, Laws of Kenya.
[3] Hague Service Convention, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, S. Treaty Doc. No. 99-11 (1985). https://www.hcch.net/en/instruments/conventions/full-text/?cid=41. ( accessed 2033)
[4] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32012R1215. ( accessed 2023) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351, 20.12.2012, p. 1-32.
[5] World Bank. (2021). “Kenya – Internet users.” World Bank Data. https://data.worldbank.org/indicator/IT.NET.USER.P2?locations=KE ( accessed 2023) Kenya National Bureau of Statistics. (2021). “Communications Sector in Kenya: 2021 Report.” KNBS Reports. 5.http://www.knbs.or.ke/publications/index.php/communications-sector-in-kenya-2021-report/ ( accessed 2023)
