Materiality: A possible hindrance to enforcing misleading representations in social media advertising in Kenya.


Influencers endorsing brands and advertisement is the new normal. In their practice, influencers are able to build direct relationships with their key consumers and create a brand loyalty. Thus brands targeting specific consumers, their needs and wants, opt to use them. In advertising, influencers are preferred based on their trust within a niche community, retention of a loyal following and knowledge or experience about what they are advertising.[1]

On 11th March, 2019 notable influencers were endorsing Always products sold in Kenya on #feelthecomfortalways advertisement on Instagram. Influencers were tagged in the advertisement in order to promote the product and to achieve a bigger and specific target audience. On social media, particularly Twitter, consumer complaints on the quality of the Always product have been raised and recorded on #myalwaysexperience, which began in early February 2019.

In light of this on-going case, this article examines misleading representations in influencer led advertisement on social media. A misleading representation occurs when a shared practice or representation misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the ordinary consumer to take a different decision.[2]  Thus, what statements made by influencers would be termed as misleading representations on social media? How are misleading representations enforced? Materiality in enforcing consumer complaints on misleading representations made by influencers on social media?

Misleading Representations on Social Media

In advertising influencers make often statements, referred to as testimonials, from previous and/or current customers about their experience with a product or service.[3] The testimonials used, such as opinions, value judgments, and subjective assessments on a product, have to be truthful. The consumers should not be misled on any aspect of a product or service which is capable of being objectively assessed in light of generally accepted standards.[4] For instance, a person falsely presents that goods and services have qualities, uses, and benefits they do not have.[5]

Generally, if proven that the Always products in #feelthecomfortalways do not have the said benefits and qualities, and the representations caused an ordinary consumer to make a different decision, the influencers could be liable for misleading representations. In the Competition Act, a person charged with misleading representation can either be fined ten million shillings or five years imprisonment or both.[6]

Materiality in Enforcing Representations on Social Media

In addition to the determining whether the representation is misleading and the effect of the representation on an ordinary consumer, in James Kuria v Attorney General & 3 others eKLR, Mativo J, imposed a materiality standard. Materiality is defined as being of consequence or importance, or pertinent or essential to the matter. The effect of materiality is setting a different test for a misleading representation. The old test was an ordinary consumer. The new test that of an average consumer who is reasonably well informed and reasonably observant and circumspect.

In so doing, in the Always Kenya case, the influencers in #feelthecomfortalways advertisement are merely tagged. The average consumer who is well informed and reasonably observant will know the influencers are making representations on behalf of Always Kenya. Thus the influencers who are tagged would potentially not be liable for misleading statements.

Additionally, the Competition Authority[7] and Inspectors under the Department of Weights and Measures[8] mandated with receiving and investigating misleading representations will be forced to consider materiality.


We have a Court decision imposing the materiality and average consumer test and a standard in the Consumer Protection Act and the Competition Act on misleading representations. The result of this a possible duplicity of standards on misleading representations. Inevitably enforcement mechanisms will prove to be difficult task.  

[1] accessed on 6th February, 2019.

[2] Consumer Protection Guidelines, 2014.

[3] Consumer Protection Guidelines, 2014.

[4] Code of Advertising Practice and Direct Marketing, 2003.

[5] Section 55, The Competition Act, No 12 of 2010, see also Section 12, Consumer Protection Act No. 46 of 2012.

[6] Section 70, Competition Act, No 12 of 2010.

[7] The Competition Act, No 12 of 2010.

[8] Section 21, Trade Descriptions Act CAP 505.


by Chebet Koros

A tech invention may be protected through a patent, trade secret or know-how. In most cases, this innovation is first kept a secret to gain an advantage over others prior to registration and communication to the public. Amazon’s one-click sale and Google’s algorithm have been built on the companies’ confidential information. These companies’ commercial confidential information has subsequently birthed patent, industrial and trademark rights. The essential component in a successful business is that which acts as a magnetic force pulling in clients from competitors. The company’s unique process, design, business model, database, strategy among others are key components on which a business maintains its competitive advantage. Several companies, outside the tech space, like Coca-Cola and KFC are known to take extreme measures towards protecting their secret recipes resulting in their economic success.

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CIPIT Hosts Novel Moot Court Competition on IT Law in East Africa


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The Winners of the CIPIT Moot Competition, Uganda Christian University.

CIPIT’s bi-annual moot competition aims to be innovative and to attract teams from across East Africa, and the 2018 edition was no exception. This year’s edition was particularly significant being the first moot in Sub-Saharan Africa to focus on Information Technology(IT) Law. The 2018 moot problem addressed the complexities of innovation, privacy and data protection in jurisdictions that operate in a legal vacuum with respect to data privacy. Therefore, participating students were able to interact with the topics of privacy and data protection and grapple with the ambiguities these cutting-edge issues pose in the legal field. This was also an excellent opportunity for CIPIT to highlight the trickle- down effect of innovations to the recurring concerns of data protection, and to nurture the interest of the young generation in IT law and policy.

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Developing a Career in Intellectual Property & IT Law

Guest post by Lucy Wyndham

As the global digital sphere expands, so too do intellectual property infractions. Brand power is more accentuated than ever, leading to greater levels of trademark appropriation. What’s more, new research by Wharton shows that strong intellectual property protection benefits the ‘small guy’. Essentially, protecting new trademarks brings growth for small businesses.

As a result, intellectual property and information technology (IT) legal professionals are in great demand and can expect generous remuneration; Payscale suggests that the potential pay ceiling can reach USD $198,000. Furthermore, as small businesses develop their own systems, having legal assurance embedded will be key to maintaining growth. For a graduate, there is a clear path into the discipline.

Developing and displaying the necessary skills

Communication, problem-solving, determination and natural assertiveness are the core skills that all legal professionals need to possess. For an IP/IT lawyer, it is to your benefit to lay claim to a few other key areas. Firstly, while all lawyers need to stay up to date with law, IP/IT areas are a particularly fast-moving space; accordingly, legal professionals specializing in the field should have a comprehensive knowledge of online resources, and a talent for preempting what big changes will impact a company.  The EU’s General Data Protection Regulation, which came into force in May this year is set to have impacts across Africa and the wider world. According to Thomson Reuters, compliance is high on the agenda; both consultant and in-house lawyers will be busy. When constructing an application, or formalizing your resume, ensure the relevant skills are clearly highlighted.

Understanding the job market

The good news about the IP/IT job market is that it is wide open. As Daily Nation outlined in a report concerning business best practices, there aren’t many intellectual property focused lawyers operating in Kenya, let alone digitally native ones. However, the Kenyan digital startup industry is absolutely booming: startups scooped half of all of Africa’s startup funding in the first 6 months of 2018, totaling nearly USD $50m, according to Business Today. With such a huge expansion in digital businesses, there is a clear market for expert legal advice that will also help to protect the industry, guaranteeing its onward profitability and the reputation of legal experts in the field.

The potential future

IP/IT is a fascinating and rapidly growing area of law. The nature of intellectual property laws are not necessarily set in stone when it comes to digital applications – take, for example, Apistry v Amazon, 2013, in which the case was dismissed in favor of Amazon, with the court finding that the patents involved were ‘abstract ideas’ given their internet-based application. As the world becomes more and more globalized and internet usage continues apace, it’s likely that definitions will shift and previously dismissed claims will become more relevant. The role of the legal professional in the field will only become more valuable and more important.

Moving into intellectual property and information management law is an exciting way to further your career. In Kenya, with businesses booming into the digital age, there are countless opportunities. Seizing is a case of determination and honing the right skills.



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Goodies galore.

The Matter of Mangala & WAP -vs- The Guacamole Republic of Avocado (GRA)

As promised, here is the account of the recently concluded CIPIT ICT Moot. Held every two years, the competition attracts teams across East Africa. It is the only one in the mooting calendar this part of Africa that has information technology and intellectual property as subject matters. This allows competitors to engage with contemporary issues, as was the case in this year’s edition. Data protection has not been legislated extensively in Kenya. The resulting lacuna forces the litigant to think outside the box and try to find viable and practical solutions to technology related problems oft outside the purview of lawyers.

Day One

“There will be winners, and there will be losers…” were the words of the Dean of the Strathmore Law School to end his address to the participating teams during the second biennial CIPIT moot. This author is sure that nothing rung truer in the minds of the eager young faces looking at him.

The Dean of the Strathmore Law School, Dr. Luis Franceschi delivering his address.
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Experiences during the 2018 CIPIT Moot


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The University of Nairobi Team, from left: Jackline Chepng’eno Sang, Kanyangi Esther Nyachia, and Kanyangi Leah Aoko.

From the Editor:

CIPIT held its biennial moot on 11th and 12th of October 2018. In total there were 13 teams in attendance, with about half of the teams hailing from Uganda. In the coming weeks, the CIPIT team will provide a full play by play account of events. Before that however, we would like to acknowledge one of the teams that participated.

The University of Nairobi Team comprising of the Kanyangi twins (so any confusion in the above image is regretted but understandable) and Jackline Sang wrote to us, grateful for the wonderful experience they had during the moot. Truth be told, it is the CIPIT team that is in gratitude for their attendance and their thoughtful letter. Here is their account of the moot, viva voce…

“It was a great privilege to participate in the recently concluded CIPIT 2018 moot competition. From the very onset it was exciting to engage with teams from universities around the country and Uganda. The moot concerned the right to privacy and data protection. Of specific emphasis was the disclosure of health data to third parties and the use of such information to peddle advertisements on the accounts of Wika virus victims.

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The Digital Freedom of Association

By Colla Vella dels Xiquets de Valls ( [CC BY-SA 3.0 (], via Wikimedia Commons

Author: Galma Godana


The freedom of association has traditionally been defined as the right to be with other people for a legal reason, cause or purpose, without interference.[1] However, with the advent of modern technology, today’s emergent associations differ in important ways from traditional political and social organizations.

Recent global events particularly those associated with the Arab Spring form prime examples of the need to examine and analyze the legal protections afforded to associations in the digital age and whether such protections are sufficient in the wake of emerging threats.

Thus, an analysis of the commonalities and the differing aspects of the contrasting viewpoints of the subject right as well as the impacts of this is well justified in light of the changing context within which the right is exercised and indeed with a view to building a wholesome definition having considered all relevant factors.


Freedom of association has commonly been associated with the notions of physical meetings and geographical proximity. However, advances in modern communication technology have greatly shifted the context of this right and led to a number of differing aspects with its traditional understanding. The prime difference consists in the non-requirement of geographical proximity. Previously, participation of one’s associational freedom often meant attendance of in person meetings. Conversely, in the present day, one can participate in the activities of an association without the need for physical attendance or geographical proximity due to the relatively inexpensive nature of internet connection. Global events ranging from the political uprisings that swept across the Arab world to the Occupy Wall Street Movement have highlighted the use of digital technology in the exercise of the subject right.[2]

Another key differing factor is the platform on which the right is exercised. In its traditional understanding, the right is often exercised in public spaces such as city squares whereas the digital right extends to digital platforms such as discussion forums and chat rooms. This view was supported by the APC which stated that the right should be construed to include any space where people can meet, including online spaces.[3]

A logical import from the differences highlighted is the central role of modern technology as a conduit to the exercise of the digital right. This view is reiterated by the 2012 report of the former Special Rapporteur where he called upon States “to recognize that the rights to freedom of peaceful assembly and of association can be exercised through new technologies, including through the Internet”.[4] This view was also highlighted by the Human Rights Council in its Resolution 24/5 in which it:

“Reiterated the important role of new information and communications technologies in enabling and facilitating the enjoyment of the rights to freedom of peaceful assembly and of association…”

However, these differences do not constitute a comprehensive redefinition because of the commonalities shared such as the similar nature of the associations in both conceptions. As per the ‘Guidelines on Freedom of Association’ an association is “an organized, independent, not-for-profit body with an institutional structure based on the voluntary grouping of persons with a common purpose.”[5] Online associations fulfill each of these requirements therefore enjoying protection even in the traditional understanding.


In view of the differences as well as the commonalities of the contrasting interpretations of the subject right one can reasonably deduce that the digital right can be defined as the right to voluntarily join with others through collective action based on a common purpose through the use of modern communication technology without interference.

Perhaps an interpretational challenge in defining the subject right also owes to its confusion with the related freedom of assembly. Freedom of assembly secures the right of people to meet for any purpose connected with government whereas associational freedom protects the activities and composition of such meetings.[6] 


Digital technology has transformed the ways in which civic and political associations are formed and operate. Political and civic “work” in society is increasingly performed not by traditionally organized and well-defined associations but by decentralized networks of individuals. As such, online association has opened the door for a more effective advocacy of Human Rights issues which may be dangerous in authoritarian states and for the faster aggregation of resources for community development.

However, the same features of modern communications technology that enhance associational freedom also crucially enhance the threat posed by relational surveillance. Relational surveillance can loosely be defined as surveillance that makes extensive use of digital communications in order to determine the associative groups to which an individual belongs.[7] Comprehensive surveillance has the unfortunate propensity to cause exploitation of vulnerable groupings in society. Indeed surveillance also highlights the occasionally involuntary nature of online association since it uncovers exploratory activities such as inquiries or admission into social media groups which could mark an individual as a “member” of an association before express consent has been made. Additionally, the networking tool of the internet is useful not only to legitimate civic groups but also to criminal and terrorist groups as they can also benefit from the pseudonymity of digital association.[8]

Lastly, the central role of data in modern communications technology and continuous data collection often leads to the threat of profiling. It is no secret that platform providers retain consumer data often using it for targeted advertising purposes.[9] However, the emergent use of data as a value tool whereby data is sold to advertisers and other firms has led to widespread privacy concerns highlighted best by the Cambridge Analytica scandal.[10]

Given that the Computer Misuse and Cybercrimes Act’s chief focus is with regard to the content of the data rather than the collection and use of data and the relative lack of comprehensive data protection legislation outside the Constitution, it would seem that the local laws are ill equipped to deal with the issue of surveillance. Therefore, there is need for legislation to regulate and provide oversight on;

  1. circumstances under which platform providers can collect and use data,
  2. circumstances under which platform providers can share such data with government agencies and other 3rd parties.


Although modern communications technology has greatly enhanced associational freedom for many informal associations, it has also facilitated the emergence of new threats such as that of surveillance. This expansion of the scope of the subject right has meant that current legislation is insufficient in the wake of new threats. Therefore, it is imperative to review and update relevant legislation in order to comprehensively address these concerns.

[1] on 26th July 2018

[2] on 5th August 2018

[3] on 26th July 2018

[4] on 26th July 2018

[5] on 26th July 2018

[6] on 26th July 2018

[7] on 26th July 2018

[8] on 26th July 2018

[9] on 5th August 2018

[10] on 26th July 2018

Digital Right: The Freedom of Assembly


The right to freedom of assembly has been widely accepted as a necessity in a functioning democracy as assemblies are used to express and defend different views.[1] This right has justified holding of political rallies, picketing, demonstrations and meeting or barazas held to discuss issues in the society, with the condition that any of such is done peacefully.[2] It is so essential that even the modes of protests have changed with time with online protests becoming more common. This has led to social media being viewed as a potent tool in aiding access to information as well as enhancing the right of the freedom of assembly. This has resulted in the need to justify the exercise of assembly online and the role the government has in safeguarding online assemblies.

So what constitutes and forms online assembly? What role does the government play in safeguarding this right? What constitutes an infringement and how can this be mitigated? This article seeks to answer these questions by first setting out the background of the right to the freedom of assembly in the traditional sense, then exploring the legal framework and case law, which set out the duties the State owes and how this right is applicable to online assemblies.


Online assembly is a controversial issue especially when it comes to online protests. This is especially with the disruptive nature and wide reach online protests have. Discussing the legality of online assemblies is necessary as this will determine whether governments are justified in shutting down the internet or censoring content online. This involves discussing the role the right to access information plays in online assemblies.

The right to the freedom of assembly in the traditional sense is composed of two elements that aid it: free speech and the right to associate.[3] It finds its roots in “Tavern Talk” in America in the mid-18th Century, where the biggest revolutions such as the famous Boston Tea Party were found to begin with the political discussion that happened in taverns. The taverns offered the Americans a place to vent of their common issues and discuss matters affecting them. Given the large pool of men visiting these taverns it was often easy to mobilise people to protest against the then British rule.[4] It foreseeable that the American legislator saw it important to protect free speech, freedom of association and the freedom of assembly in the First Amendment of the American Constitution. In fact, Congress in discussing what constitutes the freedom of assembly, found free speech and freedom of association as integral to fulfilment of this right.[5]

This notion has been widely accepted in the Kenyan context. The right to the freedom of assembly is first and foremost a constitutional right, which is the supreme law of the land. it further finds its routes in our democracy, which is the exercise of the people will through elected representatives.[6] The courts have interpreted the right to the freedom of as an end , with free speech and the right to associate being the means. The courts assert that free assembly requires the free flow of opinions and ideas…[7]

What is Online Assembly?

Online assembly in this article refers to the association of people on virtual platforms in groups so as to express their views and at times for the purpose of criticising the government. The nature of online assemblies is unique as it involves the sharing of information across a digital platform in order to mobilise internet users to take part in virtual protests. As such, online assembly has various elements unique to it: the online platform, the role access of information plays and the viral effect brought about by the network.

The disruptive nature that online assemblies have had has seen governments in most States taking action to try and control them through stringent rules as well as complete media shutdowns. This has led to push back as it was seen as an infringement on the citizenries’ right to access information and the right to the freedom of assembly.[8]

States are now required to ensure there is access to the internet as people have the right to gather online and express their opinions.[9] The state should therefore refrain form shutting down the internet without just cause.[10] There should additionally be no restrictions on content and government surveillance.[11] This is to ensure free speech is not policed by government and that it is protected.

It goes without saying that online assembly does have its dark side. This is because of the tools internet activists used such as hacking and the use of computers whose owners don’t know they are infected. This is illegal as one cannot use someone’s personal resources for your political purpose without their consent.[12] As such, the State does have the duty to draft frameworks to ensure online assembly is not abused.


There is a need to protect the right to online assembly as it has resulted in a lot of positive changes in society. An instance of this is the profound effect the #MeToo movement has had in addressing the need for stronger anti-rape laws. Online assembly has also has also played a profound role in advancing for the protection of citizens against violation of human rights, as seen in the Tunisian Revolution.[13] These are just a few examples of the numerous occasions where digital media has been used to advance for legitimate causes.

In light of this, the State has to balance the need to maintain public order with the right to online assembly, which is achievable without shutting down the internet or censoring the internet. The State can take measures to ensure that those who abuse online assembly are penalised through cyber laws whilst still ensuring people can freely gather and express their opinions online.

[1], 14th June 2018

[2] Wilson Olai and 5 Others v Attorney General and 2 Others, [2017] eKLR

[3]  Inazu J., Virtual Assembly, Cornell Law Review, Volume 98, 2013

[4] Baylen J. Linnekin , “Tavern Talk” & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to its Roots in Colonial Taverns

[5] Baylen J. Linnekin , “Tavern Talk” & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to its Roots in Colonial Taverns

[6], 14th June 2018

[7] Wilson Olai and 5 others v Attorney General and 2 others, High Court at Nairobi [2017] eKLR

[8], 25th August 2018

[9] HRC Resolution 21/16

[10]The Right to Freedom of Peaceful Assembly: Best Practices Fact Sheet, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (published Nov. 2014)

[11]Freedom of Assembly and Association Online in India, Malaysia and Pakistan: Trends, Challenges and Recommendations , V.Gayathry, APC IMPACT,

[12], 25th August, 2018

[13], 25th August 2018

Defining the Digital Right to Privacy

*Lyndah Tugee & Mercy Kingori

A little history

Brandeis and Warren trace the origin of the right to privacy in the U.S. back to the 1890s. They define privacy as the right to be let alone[1]. The right was first concerned with personal autonomy but it later evolved to cover the peoples’ personal information. A Privacy Act was enacted in 1974 to prevent unauthorized disclosure of personal information held by the federal government. Later on, other Acts including Financial Monetization Act 1999 and Fair Credit Reporting Act requiring financial institutions to provide customers with a privacy policy and to protect their personal financial information they had collected.[2] The right continues to extend its sphere of influence with the emergence of technology, which allows individuals to use, create and publish digital media or to access and use computers, devices or communication networks.[3]

Although Kenya does not have a rich history when it comes to privacy law as compared to the US, supposedly due to varying ages of the countries, there is an increasing interest in the right to privacy especially as applied in the digital sphere. The challenge, however, resides in defining the right to privacy in the digital era.

The Issue

The Constitution of Kenya provides for the right to privacy but it is not immediately apparent Article 31 appreciates the realities of the digital world where the right can be asserted over the communication and telecommunication networks.[4]

A report published by Privacy International highlights the intrusive nature of micro-lending apps, which continue to demand more and more personal data in a bid to define what they term as a financial identity in a bid to determine a person’s credit worthiness.[5] The report studies the nature of information collected to create such identity.[6] One digital lender, Branch, collects call logs, contacts, SMS messages including M-Pesa, GPS location, the repayment patterns of one’s friends for Branch loans etc.[7] Most of these digital lenders are startups whose exit strategy  involves being bought out by another company. It is not clear to what extent to customers will have control over their data once the startup is sold to new owners.

The case of Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR discusses the use of a Device Management System (DMS) to tap into the devices of mobile phone users. The device was mainly meant to monitor illegal international calls between Kenya and Rwanda. Nevertheless, the High Court ruled that the device would infringe on the consumer right to privacy because the monitoring would be done in the absence of orders to collect information of a private nature.

Why does it Matter?

The foregoing cases bring out a number of challenges that need to be resolved if we are to entrench the right to privacy in the digital space. To begin with, where there are no mechanisms to regulate the nature of information collected, the autonomy of the individuals from whom such information is collected may not be respected. In addition, entities who unwittingly collecting significant volumes of data create a significant risk when their technical systems are breached.[8] Moreover, it is important to make sure that customers can always exercise their data protection rights where a company changes ownership.

The Way Forward

From the aforementioned, certain elements are necessary in defining the right to privacy. A digital right to privacy will be assured where the data subject can determine: a) who can collect their data, b) what data is collected, c) what data is not collected, d) and the nature consent required to collect certain kinds of data. This criterion derives from the legal doctrine of the right to informational self-determination in respect of right to privacy. It is the right of a person to determine the disclosure, and the use of their personal data.[9] The doctrine is in line with Westin’s definition of the right to privacy which he succinctly defines as “the right of the individual to decide what information about himself should be communicated to others and under what circumstances”.[10]  

[1] Samuel Warren, Louis Brandeis, ‘The Right to Privacy’, Harvard Law Review, Vol 4 No.5.

[2] <> as at 3rd August 2018.

[3] <> as at 19th August 2018.

[4] Article 31, Constitution of Kenya (2010): Every person has the right privacy, which  includes the right not to have – (a) their person, home or property searched, (b) their possessions seized, (c) information relating to their family or private affairs unnecessarily required or revealed, or (d) the privacy of their communications infringed.

[5] Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017.

[6] Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017

[7] Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017

[8] Crabtree A,’ Personal Data, Privacy and the Internet of Things: The Shifting Locus of Agency and Control’

[9] Rouvroy A, ‘The Right to Informational Self-Determination and the Value of Self-Development: Reassessing the Importance of Privacy for Democracy’ 2009.

[10] Westin A, ‘Privacy And Freedom’, 25 Washington and Lee Law Review, 1968.

Free Speech in the Digital Space

A striking postulation of free speech was developed in the 19th Century by John Trenchard and Thomas Gordon, supporters of John Locke. They defined the right as the freedom to “think what you would and speak what you thought”. This placed a strong emphasis on the citizens’ role in exercising the right as against an implied oppressor, the government.

Other postulations of the right intuit that there is a balance to be struck between the right expressed by the citizen and the right of others. Between citizens, the government is charged with ensuring no one infringes the right of another. The overt regulation of speech amounts to the prevention from: holding an opinion, receiving information to facilitate creation of said opinion, or the dissemination of information that would allow the creation of opinions. The state would in this instance curb the spread of information it perceives as undermining its rule or that which infringes the rights of others.

The International Convention on Civil and Political Rights (ICCPR) posits freedom of speech as consisting two parts; a negative obligation on state organs, to deregulate speech and, a positive right, exercised by the public within the law. Subsequently, the right operates within two parameters as well: dissemination of information and expression of opinions that are vital for debate and transparency in democracies; and the censure of statements infringing the rights of others or abrogating order within the state. Two competing norms exist, individual autonomy versus the protection of collective goals, such as equality among persons.

Criticism of other persons should be conducted within the law. Hence, one must respect the rights and reputations of others. Are statements by errant bloggers protected by Kenya’s own free speech clause? Not quite, libellous statements are not granted legal protection.  Article 33 of the Constitution of Kenya (CoK) outlaws making of statements that disparage persons and their reputations.

Citizens should be able to oppose decisions made by their government, employer, municipal court or member of parliament. The CoK stipulates that public participation is an essential avenue for citizens to express their sentiments regarding governance. In democracies, elected representatives are not immune from critique. Their actions are scrutinised by a vigilant public, aware of state obligations.

Free Speech: Applicable mutatis mutandis in cyberspace?

Conceptualists of free speech had written their treatises prior to the internet and mass media. Thus, contemporary issues such as jurisdictional conflicts over online offences were unforeseen. Free speech should evolve to meet these demands.

The right should supersede the classic two-party consideration; the government and the citizen. Social media platforms and internet service providers are new participants in the rights matrix. They curate more data than ever before and have the power to deactivate accounts spreading misinformation. While international case law indicates that social media is an arena for free speech, administrators should be obliged to curate the content on their sites and ensure there are no rights infringements.

Kenyan courts applied principles of tort to malfeasance on social media, to regulate the platform. This approach is only partially viable; the “obligation to curate” must be placed on administrators. The main impediment to this concern is practicality. Twitter cannot monitor its 335 million active user’s pages. Surveillance on that scale would broach a myriad of privacy concerns.

A possible solution could be mandating platforms to introduce a complaints system, allowing users to report rights violations. Administrators responding to the report provide initial adjudication on whether the offending content contravenes internal policies. Illegality however, mandates administrators to assist municipal law enforcement with information pertinent to investigations.

Concluding, digital free speech may be defined as:

The freedom to express a factual representation or opinion on an online platform. The right precludes the following: defamatory statements, hate speech, cyber-bullying, or misrepresentations. The custodians of the right include the government and at initial phases, administrators of online platforms. These custodians are obliged to respond expeditiously to any reports of illegal activity or activity flouting platform policies.