Overview of online and offline Freedom of Expression

1. Overview of online and offline Freedom of Expression Stephanie Muchai ARTICLE 19 KENYA muchai@article19.org Presentation for: “Bloggers Responsible And Ethical Use Of Online Freedom In The Election Period” Friday October 12, 2012 I-HUB, Bishop Magua Centre - Ngong Rd, Nairobi

2. What is Freedom of Expression? • Constitution of Kenya - Article 33 • FoE is the freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research • There is no reference to which use of media for this freedom like there is in IL. • IL definition includes “receive and impart information and ideas through any media and regardless of frontiers.”

3. Freedom of expression and the internet • The Internet has radically transformed the way in which people receive and share information and ideas. • It has become a basic requirement for the enjoyment of freedom of expression, which is the foundation of a democratic society. • FoE via the Internet should be protected to promote diversity, development, pluralism, reporting and public participation • The protection of freedom of expression applies online in the same way as it applies offline.

4. Overview oF JOINT DECLARATION OF FoE AND THE INTERNET • FoE applies to the Internet and all other means of Communication • Restrictions on FoE on the Internet are only acceptable if they are prescribed by law, for a legitimate aim and are necessary/proportional (Ref 1 (b) of Declaration) • This is done for the respect and rights of reputations of others and; For the protection of national security or of public order, or of public health or morals. • Approaches to regulation of Internet must be specifically designed and not imposed/transferred from broadcasting or telephony

5. Overview oF JOINT DECLARATION OF FoE AND THE INTERNET • Providers of Internet services should not be liable for content generated by Internet users • Content filtering systems imposed by government or commercial service provider which constitute prior censorship are not justifiable limitation of FoE online • End user filtering should be accompanied by clear information to end users about how they work and potential pitfalls • Discussion on Kenya context in next session

6. Overview oF JOINT DECLARATION OF FoE AND THE INTERNET Criminal and Civil Liability • Basically cases should be heard in the country with a real & substantial connection (author established there, content uploaded there or specifically directed at that State) • Private parties can bring a case in a certain jurisdiction if they can show they’ve suffered substantial harm • Only one action for damages should be allowed in respect of same content

7. Overview oF JOINT DECLARATION OF FoE AND THE INTERNET Other topics in declaration: • Network Neutrality • Access to the Internet

8. Limitations to FOE (Online and OFFLINE) in KENYA “Hate Speech” • The Constitution of Kenya states that Freedom of Expression is guaranteed. But FoE does not extend to (a) propaganda to war, (b) incitement to violence, (c) hate speech; or (d) advocacy of hatred that (i) constitute ethnic incitement, vilification of others or incitement to cause harm, or (ii) is based on any group of discrimination contemplated by the Constitution

9. Hate Speech – Kenyan Provisions Continued…… • S.62 (1) of the NCI Act states that: any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine (1 million max – or imprisonment 5 yrs max) • S 62 (1) states a newspaper, radio station or media enterprise (interpreted to include digital media) that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine (1 million max)

10. Kenya Information and communications act • The following section is already in use against an Internet User 29. A person who by means of a licensed telecommunication system: (a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person commits an offence (50K or 3 months)

11. OTHER Speech PROVISIONS KENYAN CONTEXT • The Media Act (2nd Schedule) provides that we should avoid quoting persons making derogatory remarks based on ethnicity, race, creed, colour and sex should be avoided. • Penal Code – S 77makes words intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya an offence • It further states that careful account must be taken of the possible effect upon the ethnic or racial group concerned, and on the population as a whole, and of the changes in public attitudes as to what is and what is not acceptable when using such terms

12. OTHER PROVISIONS AFFECTING FoE ONLINE • Defamation - making untrue statements about another which damages their reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. • NOTE: Public figures, including officeholders and candidates have to show that the defamation was made with malicious intent and was not just fair comment.

13. Speech Remedies • All other types of expression such as defamatory or offensive comments, should not be criminalised. • Rather, States should promote the use of more speech to combat offensive speech. In this regard, it is worth mentioning that with new Web 2.0 types of applications, including the comment section on newspapers websites, blogs, online chat rooms etc., it is now possible to respond to online derogatory comments almost immediately at no cost. For this reason, sanctions (e.g criminal) available for offline defamation and similar offences may well be unnecessary and disproportionate.

14. AREAS TO NOTE FOR bloggers and citizen journalists • In Kenya, as in many other countries, the same restrictions to speech that apply offline apply online • It is well established that public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them.

15. bloggers and citizen journalists LIMITING HARMFUL AND HATE SPEECH in the election period • Don’t reproduce or give bigger audience to such speech! Stop RT’s and other forms of dissemination…even just FYI ones! • Dishonour the speaker and their views/attitudes • Highlight and trend alternative sources of information and voices • Trend new/counter ideas or attitudes • Start/be engaged in online conversations searching for solutions • Understand that there are no bare facts and that people know how to create facts for journalists to report to influence the public’s view – reflect this in your posts • Try and present as many views as possible

16. Concluding remarks • Citizen Journalists and Bloggers need to begin to demonstrate self regulation while exercising their freedom of expression • Capacity build the online community on limitations to freedom of expression • Promote a culture which while embracing plurality of views (including critical etc) does not embrace or tolerate advocacy to hatred, hostility or violence

17. Thank you for your kind attention