It is time to rethink the cyber harassment law

At what point does freedom of speech become cyber harassment?

What can bloggers post about individuals, institutions, politicians, leaders and others and still be considered within the boundaries of free speech?

It is important to revisit this discussion after a spike in cases on social media where it is apparent freedom of speech is blatantly abused.

The recent case involving Nairobi Woman Representative Esther Passaris calling on anyone with the identity of those behind a photoshopped image where an image of someone bearing her resemblance appears to be cosy with Governor Mike Sonko is a new low.

CYBER HARASSMENT

No one is spared, not even mainstream media organisations. Just recently, Nation Media Group was the target of trolls.

Notably, most of the victims of cyber harassment are institutions, leaders and individuals who have a reputation to protect but who lack platforms to respond to such harassments in equal footing without being seen to be stooping too low.

Many choose to ignore such incidences despite the character assassination.

From President Uhuru Kenyatta to Chief Justice David Maraga, no one appears to be safe from social media trolls.

In May 2018, President Kenyatta — in an attempt to address the issue — signed into law the Computer Misuse and Cybercrimes Bill 2018 that criminalises abuse of persons on social media. It was a watered down version of the Computer and Cybercrimes Bill 2017 after much public outcry that it bordered on restricting freedom of speech.

INVESTIGATION

The law provides for timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes. It stipulates measures that includes search and seizure of stored computer data, record of and access to seized data, production order for data, expedited preservation, partial disclosure, real-time collection and interception of data.

It also establishes the National Computer and Cybercrimes Coordination Committee and facilitates international co-operation in dealing with computer and cybercrime matters, deals with offences relating to computer systems including unauthorised access, interference, interception and disclosure of passwords. It also addresses cyber espionage, false publications, child pornography, cyber terrorism and wrongful distribution of obscene or intimate images.

The Act further deals with computer forgery, computer fraud, cyber harassment, publication of false information and cybersquatting, among other cybercrimes.

FALSE INFORMATION

While this law is in place, cases of cyber harassment, publication of false information continue. So what is the issue?

The issue lies in the definition of “cyber harassment”. This needs to be reviewed, tightened and laws enforced.

To many, the Computer Misuse and Cybercrimes Act 2018 is leaning against the “hard” cybercrimes such as hacking, spying and electronic espionage.

However, the “soft” cyber-crimes are the most prevalent.

According to the Act, Cyber harassment is anything from online stalking, bullying and trolling. In the Act, cyber harassment is only viewed as so if it causes apprehension, detrimentally affects a person, is indecent or gross.

SH20 MILLION

The offence carries a Sh20 million fine or a 10-year prison sentence or both. At what point does a post, blog or a picture pass the mark to start causing “apprehension”, “detrimentally affects a person” or is considered ‘indecent or gross?’

What are the parameters for indecency to qualify as a cybercrime? It is important that we refine further these aspects of the Computer Misuse and Cybercrimes Act 2018.

The writer in General Manager and Founder of PVG Kenya, a marketing and communications agency. [email protected]