Online bullies have been put on notice by government as it seeks to stamp out the vice committed through telecommunication devices including the internet. The Computer and Cyercrimes Bill creates the offence of cyber harassment which will on conviction attract sh20 million fine, or ten years’ imprisonment or both.
The move comes in the wake of complaints by Members of Parliament claiming that certain persons have been harassing them, soliciting money from them and impersonating them. In recent days, one suspect Wazir Chacha was identified as the prime suspect and is being held as investigations continue.
Clause 16 of the Bill proposes to create the offence of cyber harassment which is defined as person who, individually or other persons, willfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct – is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or detrimentally affects that person.
Article 19 urged the Departmental Committee on Communication, Information and Innovation to remove the entire clause saying it is vague but the committee deferred. Other than Article 19, other institutions that also sent memoranda on the clause are Safaricom, Media Council of Kenya, Kictanet and Information Systems Audit and Control Association of Kenya (ISACA-Kenya).
The committee only agreed to the proposals by Kictanet and Media Council who proposed to change the terms cyber stalking and cyber bullying to read cyber harassment. The committee added that through the amendment a victim will be able to apply for a restraining order.
Safaricom sought to have clause (3)(a) deleted. It reads; it is a defence to a charge of an offence under this section if the person establishes that – the conduct was pursued for the purpose of preventing or detecting crime. The telco argued that the offence could be counterproductive and lead to cyber harassment in itself but the committee disagreed. Crime prevention and detection are functions of the law enforcement agencies which the committee felt they will be able to execute it as the law expects.
The House Committee went further to introduce other offences.
Firstly, it will now be possible for a complainant to not only seek a restraining order but also block the person from enlisting help from others to continue perpetuating cyber harassment. Such an application shall be heard and determined within 14 days. In addition, an intermediary can also apply for the order on behalf of someone who feels aggrieved. Furthermore, a person may apply for this order outside court working hours.
The proposed legislation adds that the court may order a service provider to provide any subscriber information in its possession for the purpose of identifying a person whose conduct is complained of.
Secondly, a person who contravenes an order made under the section commits an offence and is liable, on conviction to a fine not exceeding sh1 million or to imprisonment for a term not exceeding six months or both.
Thirdly, there are a number of new offences that will be covered under this law;
Cybersquatting – a person who intentionally takes or makes use of a name, business name, trademark, domain name or other word or phrase registered, owned or in use by another person on the internet or any other computer network, without authority or right, commits an offence and is liable on conviction to a fine not exceeding sh2 million or imprisonment for a term not exceeding two years or both.
Wrongful distribution of intimate images – a person who transfers, publishes or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate image of another person commits an offence and is liable, on conviction to a fine not exceeding sh3 million or to imprisonment for a term not exceeding three years or both.
Identity theft and impersonation – a person who fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any other person commits an offence and is liable on a conviction to a fine not exceeding sh3 million or to imprisonment for a term not exceeding three years or both.
Phishing – a person who creates or operates a website or sends a message through a computer system with the intention or induce the user of a website or the recipient of the message to disclose personal information for an unlawful purpose or gain unauthorized access to a computer system, commits an offence and is liable upon conviction to a fine not exceeding sh3 million or to imprisonment for a term not exceeding three years or both.
Interception of electronic messages or money transfers – a person who unlawfully destroys or aborts any electronic mail or processes through which money or information is being conveyed commits an offence and is liable on conviction to a fine not exceeding sh10 million or to a term of imprisonment not exceeding seven years or both.
Willful misdirection of electronic messages – a person who willfully misdirects electronic messages commits an offence and is liable on conviction to a fine not exceeding sh1 million or to imprisonment for a term not exceeding one year or both.