KICTANET, in the Departmental Committee on Communications and Information and innovation Report has proposed the deletion and replacement of the clause, ‘False publication’, with a revised text to effectively deal with the issue of ‘Fake News’.
The bill, reported to the National Assembly dubbed the Computer and Cybercrimes Bill, 2017, was read on 10th October 2017 and subsequently referred to the Committee above for consideration. It seeks to provide for offences relating to computer systems in order to enable timely and effective detection, investigation and prosecution of computer and cybercrimes, including in collaboration with other states under mutual legal assistance agreements.
The committee placed an advert on the dailies and wrote to the key stakeholders inviting them to submit their views on the bill.
The stakeholders include Communications Authority of Kenya, Article 19, Media Council of Kenya, Information Communication Technology Association of Kenya (ICTAK), Information Systems Audit and Control Association (ISACA – Kenya), KICTANET, Kenya Private Sector Alliance (KEPSA), (Technology Service Providers of Kenya) TESPOK, Centre for Intellectual Property and Information Technology Law (CIPIT) and Safaricom PLC among other stakeholders.
Among the stakeholder recommendations are; Article 19, Media Council of Kenya, ICTAK and CIPIT all proposed the deletion of Clause 12 for infringing on the freedom of expression as guaranteed under Article 33 of the Constitution. Clause 12 touches on false publication. It states ‘A person who intentionally publishes false, misleading or fictitious data or misinforms with the intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence.’ The phrase is very ambiguous and open to abuse by law enforcement officers which will threaten freedom of expression in Kenya.
Bloggers can face jail term with the said phrase as ‘False publication’. ISACA – Kenya proposed a reduction of the penalty for false publications from a fine not exceeding five million or imprisonment for a term not exceeding two years to a fine not exceeding one million shillings or imprisonment for a term not exceeding one year. The penalty proposed under the clause is too prohibitive and will infringe on creativity and restrict the freedom of expression.
Another argument was in Clause 16 (1) which focuses on Cyber Bullying and Cyber Stalking. Article 19 proposed the deletion of the entire clause as they argued that the offences should be dealt with under other legislation as it is not clear what the statement “repeated communication” in the knowledge that this conduct will cause fear or will affect a person means.
Safaricom PLC stated that the subclause (3) (a) provides an avenue for cyberstalking and cyberbullying and should be deleted. KICTANET and the Media Council of Kenya proposed that the clause should be renamed “Cyber harassment “and provision be made to allow victims to obtain a restraining order. ISACA – Kenya proposed a reduction of the penalty under the clause to a fine not exceeding one million shillings or imprisonment for a term not exceeding one year as the penalty is prohibitive.
Other recommendations include; The Bill should establish a definition of “damage” requiring serious impairment or loss to a computer system or to specified legitimate national security or public order interests. Section 7 (1) of the Draft Bill should be amended to require serious damage or impairment. All the enhanced penalties should be significantly reduced.
The Bill should also establish a public interest defence against offences specified in Part II for “any person who discloses information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of national or international law, abuse of authority, waste, fraud or harm to the environment, public health or public safety.”