Bloggers walking the narrow path between freedom of expression and right to privacy

In the past four months, four incidences have emphasized the foundational right to privacy and its connection to other human rights such as freedom of expression, freedom of the media and human dignity in Kenya.

The first incident happened in the beginning of April when Health Cabinet Secretary Mutahi Kagwe paraded two Covid-19 patients who he claimed had fully recovered from the coronavirus.

The recovery was a huge milestone for the Ministry of Health and the Cabinet Secretary wanted to share the positive story with Kenyans. To show how important this was for the government, President Uhuru Kenyatta personally congratulated the two patients via a video call that was aired live in most TV stations.

After the press conference and photo ops, Brenda Cheruiyot, one of the two Kenyans that had been paraded, appeared on two TV interviews to talk about her recovery. It’s during these two interviews that Kenyans observed the inconsistencies in her story and felt the exercise was a PR stunt. Soon, what had begun as an objective criticism turned into a shameful cyber bullying and body-shaming of Ms Cheruiyot. Images that were alleged to be her nude photos were soon leaked online and all manner of dirt thrown against her person.

The second incidence occurred barely three weeks after. Azziad Nasenya, a 19-year-old student found herself the subject of ridicule and cyber bullying after a video of herself dancing to Femi One’s new song Utawezana, featuring Mejja, went viral online. No sooner had she become an overnight celebrity than random ill-minded Kenyans started digging up her old photos and subjecting her to ridicule and body-shaming.

The third and fourth incidences happened almost at the same time. Edgar Obare, a YouTube content creator and vlogger (video blogger) published passport details of Natalie Tewa, an online media celebrity, alleging that she had travelled to Dubai alongside politicians Hassan Joho and Junet Mohammed to visit Raila Odinga who had sought treatment in the United Arab Emirates capital. Natalie opened a case against Edgar on grounds of breaching Section 73 (3) (b) and Section 74 and Data Protection Act No. 24 2019.

In the fourth incidence, CS Interior Dr. Fred Matian’gi made a public complaint after a freelance journalist Isaac Kibet Yego published on Facebook that the CS, who chairs the National Emergency Response committee on Covid-19, had been taken ill and was fighting for his life in Intensive Care Unit. Dr Matian’gi went on to say that “I feel for my family. My wife and children who have their own lives to live but they have to endure this kind of rumour. They are private citizens who have to pay a heavy price because one of their members is in public service.”

Mr Kibet was arrested and charged under Section 23 of the Computer Misuse and Cybercrime Act No. 5 of 2018. In all these cases, freedom of expression is being confronted by rights to privacy, data protection, computer misuse and cybercrime and human dignity laws.

ROBUST CONSTITUTION

Kenyans enjoys a robust Constitution, which, under Article 33, outlines the right to expression without individual or governmental restraint. What many citizens don’t understand is that freedom of speech isn’t absolute. Looking at the four cases, one is inclined to ask, did all the four individuals deserve this kind of treatment? Does the right to speak outweigh the right to privacy?

Article 31 of the Constitution of Kenya provides for the right to privacy which includes the right not to have one’s person, home or property searched, possessions arbitrarily seized, information relating to family or private affairs unnecessarily revealed or privacy of communications exposed. Broadly speaking, it also ensures your innate right to have your private life not to be made public without your consent including your right to have your pictures not to be unnecessarily circulated.

However, in a world where we are perpetually posting personal details about ourselves on the Internet and appearing in our friends’, colleagues’ and families’ posts and photos, what constitutes an infringement of privacy becomes difficult to readily establish. 
In the cases of Brenda, Azziad and Natalie, the prosecution would argue that the subjects’ right to privacy and human dignity was seriously debased. On Dr Matiang'i the jury is divided on the matter. Broadly speaking, the four incidents are connected to the overall and perhaps general erosion of the concept of individual privacy. I consider myself an advocate of freedom of speech and freedom of expression. However, I am also cognizant of the fact that as much as freedom of speech is a fundamental right, it is not absolute. It carries responsibility, which is what makes us apologise to one another whenever we say hurtful things to another. It is this responsibility that makes the media retract a story or offer right of reply whenever one feels aggrieved by a published content. That is to say that we have the right to speak; so long as that speech doesn’t infringe on another’s right.

But is right to privacy absolute or does it also have its limits like freedom of speech? I do believe that right to privacy is not absolute. For instance, when you have broadcast your entire life on the social media and widely shared your life stories and photos publicly, I am not sure if you can still claim that your privacy has been invaded if someone misused the content available online? To claim to have had your privacy invaded when the content was already made available to the public by yourself becomes difficult to enforce. In Edgar versus Natalie case, he may only need to prove that her passport data was, in a way, already publicly accessible by the time he published it.

DIGITAL WORLD

Since the advent of Covid-19 and the subsequent control measures instituted by the government such as curfew and lockdown, our lives have largely remained indoors and online. We have been compelled to take three steps at once in our online journey to the digital world and now we find ourselves in unknown territory. We are shopping online, hailing cabs online, ordering food online, using Google map for locations, spending more time on social media and digital media. In the process of being online and living our lives in the digital space we have perhaps inadvertently shared our private data with the rest of the world.

The loss of our privacy, I believe, is something that we all must admit to have contributed towards, either intentionally or unintentionally. We may want to blame cyber bullies for insults and attacks on our person — sometimes rightly so, but other times we also must ask ourselves how complicit we are in aiding the problem.

In my opinion, we have become complicit in blurring the borders of our public and private lives through the social media platforms. Often, we post tonnes of content without considering the dangers of these actions. For instance, by clicking a name, one can find someone’s educational background, career, furniture, electronics, clothes, food, friends and family etc. This means that if this person wants to use the same for ill purposes, he or she will not struggle finding it. We have somewhat, willingly or unwillingly, contributed to the dangers of privacy infringement. Through our actions, we have become captive to the whims of the gods of the Internet. Beyond our actions, we must know that social and digital media companies spend loads of money in developing algorithms that track and monitor our every move through every click we make online.

Be that as it may, we all desire some level of privacy which can only be achieved if we don’t start by violating it ourselves. We must be protective of our data and information that we deem personal. We can’t, for example, dump nude pictures of ourselves in the Internet and then become angry when someone picks the images and misuses the same. To do so would be akin to someone who shares his ATM PIN and bank account online and then goes to the police to complain when he finds his account emptied. In the current highly interlinked world, we must learn to be cautious on what we post online.

The author is a Kenyan journalist, writer, and communication specialist with special interest in media law and political communication.
Twitter: @ohagaohaga