When Kenyans hear about tea, they get excited. It basically means that they are going to get some juicy gossip about a socialite or celebrity. And when Edgar Obare is involved, well, things tend to get interesting. Edgar Obare is the owner of BNN, a YouTube gossip channel.

For the better part of the week, Edgar Obare, Media personality Jalang’o and his close friends were the subject of conversations on Twitter, after allegations of cheating on their wives with different women surfaced online. The expose by Obare, posted on his Instagram account, featured screenshots from a WhatsApp group believed to be that of Jalang’o and his friends-the boys’ club.

While Kenyans were distracted by the scoop, something more disturbing was brewing in the background, the issue of consent and privacy for the victims.

Before he revealed the escapades of Jalang’o and his boys’ club, or what Kenyans online referred to as serving the tea, Obare had issued a disclaimer on his Instagram saying,

“The opinions or views expressed on my Instagram stories, including but not limited to screenshots of messages, represent the thoughts of my individual followers and not necessarily my views or that of my business partners. By following me and messaging me, you give me a permanent right to use your messages to aid in the discussion of a topic. I shall not assume responsibility for my follower messages.”

It creates another new conversation on whether a disclaimer exonerates or excuses an individual from privacy-related violations. 

What then what is privacy? 

The issue of privacy has been a subject of contention for a very long time. People have argued that privacy is ambiguous, both in theory and in practice. Basically, it is one grey area filled with piles of goo. 

Sociologist Alan Westin in his book Privacy and freedom (1968) argues that few values so fundamental to society such as privacy have been left so undefines in social theory or have been the subject of such vague and confused writing by social scientists. Another scholar, A philosopher of law, Judith Jariuis Thompson in a 1975 article expressed her skepticism of her understanding of privacy and wrote that the most striking thing about privacy is that nobody seems to have a clear idea of what it actually is. 

But that was then, things are not the same as they were, and because of technology and social networking platforms, it is easy to find yourself in the wrong side of the law, when you were genuinely interested in informing the public about an issue.

In media law, journalists are trained to weigh privacy rights against the public right to know. They are trained to stick to issues, which should be legitimate and not merely to gain clout or satisfy morbid curiosity. Whether this applies to citizens as they cruise the online streets is another conversation entirely.

Grace Bomu from the Strathmore University Center for Intellectual Property and Information Technology Law (CIPIT) feels that the issue could be of public interest.

 “People have an interest in celebrities, this story could be of public interest. But we also have to look at it in another way. Obare is not a journalist and therefore is not bound by laws and rules, so who is held to account?”

WhatsApp is outfitted with end to end encryption which ensures that the only people who can read your messages are you and the person you are communicating with. The sharing of screenshots – outside of the WhatsApp platform- to Edgar by one of the group members is a risk that WhatsApp- in its privacy policy – highlights to its users.

Sigi Waigumo Mwanzia, a Digital Policy Consultant at ARTICLE 19 Eastern Africa says that, on the face of it, there is no privacy breach by Edgar. She further says, conversations posted on a WhatsApp group chat stop being private the moment one willingly presses the ‘send’ button. The more sensitive the information, the higher your expectation of privacy is.

“The obligation on the members of the boys club was to ensure that the content they posted does not violate the privacy of others and does not incriminate them. Obare has no obligation to protect their privacy, and the burden of protecting the privacy of the women whose images that were shared rests squarely with the members of the boys’ club. Everyone has the freedom to post what they want to post on their account; balancing the right to freedom of expression and privacy can be a challenge.”

Sigi believes if you wouldn’t post content on a billboard, don’t post it on a WhatsApp group. Ultimately, individuals themselves should take personal responsibility for the content they churn into public fora and take responsibility for the backlash that accompanies any leakages.

Mercy Mutemi, from Mutemi Sumbi Advocates, reiterates this, stressing that the problem would be where the women in the photos did not know they were being recorded or that their photos were being shared.

Demas Kiprono a lawyer however disagrees. He says that article 33 (2) provides for types of speech that freedom of expression does not extend. In his opinion, what Obare and the boys club allegedly did amounts to vilification of the women particularly in the conversations, which is prohibited. 

“There is harassment of the women in question, which is a direct violation of their rights including their right to privacy. The problem with our laws is that our provisions on cyber harassment in the cybercrimes law are overly vague, not exhaustive or clear and can, therefore, be misused.”

According to article 31(c) of the constitution of Kenya, every person has the right to privacy, which includes the right not to have information relating to their family or private life unnecessarily required or revealed or the privacy of their communications infringed.

Whether this tea was necessary and required for the public interest is for you as an individual to decide, but if you are in the business of informing the public, familiarize yourself with the laws that govern this area, lest you find yourself in the wrong side of the tracks. As the saying goes, ignorantia juris hon excusat– ignorance of the law excuses not.

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