HIGHLIGHTS ON PROPOSED LAW INTRODUCING STRICT REGULATION OF SOCIAL MEDIA

By Daniel Mwathe,John Syekei Wednesday, October 16, 2019
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The Kenya Information and Communication (Amendment) Bill, 2019 (commonly dubbed “the Social Media Bill” and hereafter referred to as the “Bill”) was tabled in parliament on 2 October 2019 for its first reading. The Bill, which is a Private Member’s Bill, seeks to amend the provisions of the Kenya Information and Communications Act (KICA) by introducing stringent regulations on the use of social media in Kenya.

A copy of the Bill can be viewed here.

Regulation of bloggers

The Bill proposes a mandatory requirement for bloggers to obtain licences from the Communications Authority of Kenya (CA). The definition of blogging given under the Bill is wide and ambiguous and appears to be similar to that of journalism under the Media Council Act, 2013. Under the Bill, blogging includes collecting, writing, editing and presenting of news or news articles on social media platforms. This definition is wide enough to capture ordinary users of social media platforms such as YouTube, Facebook and Twitter.

Regulation of social media platforms

The Bill introduces the requirement for a social media licence to be obtained in respect of a social media platform which is accessible in Kenya by the social media platform operator in question. It is unclear whether this requirement is mandatory since no penalty has been prescribed for failure to obtain the licence. Social media platform operators whose platforms are available in Kenya will also be required to have a physical office in Kenya. The definition of a social media platform given in the Bill is very wide and captures any online medium that allows for social networking and media sharing. Some of the provisions of the Bill may have adverse data privacy concerns. For example, a social media platform operator would be required to keep all data relating to users of its platform and submit this data to the CA on request.

Social Media User obligations

The Bill further places a number of obligations on users of social media. It requires social media users to ensure that their content is, among other things, accurate and unbiased and that it does not intimidate a recipient of the content.

In addition to the above, the Bill requires an administrator of a group on a social media platform (e.g. WhatsApp group admin) to, among other requirements, approve members of the group and the content being published. The Bill makes it an offence for a person to contravene these requirements.

Conclusion

The Bill introduces a regulatory regime for social media operators and users and will have far reaching implications on the use of social media in Kenya if enacted in its current form. We will continue to monitor the situation with this Bill and submit a memoranda to the relevant committee of the National Assembly when the public is invited to provide comments.