courage_L09

This year, we have highlighted the cases of Robert Alai, Kenya Daily Post and Dead Beat Kenya as examples to illustrate the delicate balance that must be struck between competing constitutional rights and freedoms. These cases also demonstrate the growing use and impact of social media and other online platforms within Kenyan society, which this blogger contends is a matter that requires judicial, legislative and policy interventions to protect both private and public interests.

In 2013, the Kenya Media Council Bill was passed by Parliament and assented to by the President amidst hue and cry from the ‘Fourth Estate’, claiming that the legislation was intended to muzzle free speech and radically curtail freedom of the media enshrined in the Constitution. This blogpost considers how the Media Council Act may be used as a tool to regulate ‘bloggers’ and other ‘journalistic’ social media users in Kenya.

In section 2 of the Act, the definitions provided for “Journalism” & “Journalist” are all-encompassing and may possibly be interpreted to include bloggers. For instance, “journalism” is defined as the “collecting, writing, editing and presenting of news or news articles in the internet. This is a major departure from the narrow definitions in the previous 2007 Media Act Chapter 411B Laws of Kenya.

With regard to the application of the Act, section 4 appears to suggest that the Act will apply to bloggers either in their capacity as “journalists”, “media practitioners” (The Act does not define the term “media practitioner”) or “consumers of media services”. In light of the above, this blogger contends that there may be need to review the definition of “journalist” to exclude those not engaged in a regular and professional manner in the dissemination of information to the public via media.

With regard to the functions of the Media Council, Section 6(1)(g) provides for the accreditation of journalists. This further complicates the definition of ‘journalist’ in the Definitions section. It may be argued that a possible distinguishing factor between a journalist and a blogger would be accreditation by the Council. Again, there may be need to review the definition of “journalist” to address this ambiguity.

In addition to the functions of the Council, the Act goes further to elaborate the powers of the Council, which include:-
1. the establishment and operation of the internal alternative dispute resolution mechanism for disputes relating to the media
2. the setting of procedures for determination of disputes relating to the media.
3. the establishment and operation of systems to receive, investigate and deal with complaints made against bloggers.
4. the power to summon and receive information or evidence relating to any matter.

With regard to complaints and dispute settlement, the Act under section 38(1)(f) creates and empowers the Complaints Commission to order a fine of not more than one hundred thousand shillings (KES 100,000) for any violation of the Bill or Code of Conduct committed by a journalist, which may by extension include bloggers. However the Act under section 42 provides for Appeals to the High Court against a Council decision on a complaint within thirty days after the decision.

The Act creates the offence of failing or refusing to comply with the direction of the Council without lawful justification. Upon conviction, the penalty is a fine not exceeding two hundred thousand shillings (KES 200,000) or six months imprisonment or both. For offenders convicted for any subsequent offences, the fine is one million kenya shillings (KES 1,000,000) or a prison term not exceeding ten years or both.

Schedule 2 of the Act provides a Code of Conduct for the Practice of Journalism. This Code of Conduct may be a useful read for all bloggers. It can be summarised under the following broad headings:-

– publication of fair, accurate and unbiased stories on matters of public interest
– independence from those seeking influence or control over news content
– integrity of news presented
– accountability of journalists to the public and the profession
– opportunity to reply be accorded to any person/entity when reasonably called for.
– disclosure of sources
– confidentiality of source of information where necessary
– information or pictures should not be obtained through misrepresentation
– Reports must not be obscene or vulgar
– publications must not be exchanged for payment of money
– caution and restraint when covering ethnic, religious conflict
– consent to tape or record interviews and conversations
– individual right to privacy outweighs public’s right to know
– sensitivity and discretion in cases involving grief or shock
– non-discrimination of sexes, genders
– disclosure of financial interests prior to reporting
– cases relating to children
– non-disclosure of names of sexual offences victims
– caution in the use of picture and names
– non- disclosure of innocent relatives of friends connected with convicted or accused persons
– presentation of acts of violence and other anti-social conduct
– editor’s responsibility for content and advertisements.
– careful quoting of hate speech and derogatory remarks

All in all, the Act is significant as it blurs any distinction between journalists and bloggers, with the latter group ostensibly being subsumed in the definition of the former group. Therefore once the Chairperson and Members of the Media Council have been appointed, it will be interesting to see how the Council interprets the application of the Act to bloggers and other relevant categories of social media users.