The implementation of the right to access information has been a topic of conversation as early as the 18th century. Sweden became the first country in Europe to do so (implement right to access). Anders Chydenius’ believed that democracy and workers’ rights were crucial to the economic growth of a state and urged that freedom of press and information is a vital right that should be accessible to all citizens; the English parliament also recognized the need and importance of abolishing political censorship in the 17th century. Eventually India, being the first non-European country, followed suit in the 20th century by incorporating the right to information into their own laws (known as the Right To Information Act).
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. 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.
TRADITIONAL RIGHT VIS-À-VIS DIGITAL RIGHT
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.
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.
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”. 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.” Online associations fulfill each of these requirements therefore enjoying protection even in the traditional understanding.
DEFINITION AND RELATION TO ASSEMBLY
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.
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. 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.
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. 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.
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;
circumstances under which platform providers can collect and use data,
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.
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. 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. 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. 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. 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.
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. 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…
What is Online Assembly?
Online assembly in this article refers to the gathering 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.
States are now required to ensure there is access to the internet as people have the right to gather online and express their opinions. The state should therefore refrain form shutting down the internet without just cause. There should additionally be no restrictions on content and government surveillance. 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. 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. 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.
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)
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 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.
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. The report studies the nature of information collected to create such identity. 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. 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  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. 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. 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”.
 Samuel Warren, Louis Brandeis, ‘The Right to Privacy’, Harvard Law Review, Vol 4 No.5.
 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.
 Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017.
 Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017
 Privacy International, ‘Fintech: Privacy and Identity In the New Data-Intensive Financial Sector’, 2017
 Crabtree A,’ Personal Data, Privacy and the Internet of Things: The Shifting Locus of Agency and Control’
 Rouvroy A, ‘The Right to Informational Self-Determination and the Value of Self-Development: Reassessing the Importance of Privacy for Democracy’ 2009.
 Westin A, ‘Privacy And Freedom’, 25 Washington and Lee Law Review, 1968.
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.