New guidelines in Kenya against ‘undesirable’ political speech on social media

The Communications Authority of Kenya has released new guidelines against dissemination of “undesirable bulk political SMS and social media content” ahead of the August polls.

Kenya’s National Cohesion and Integration Commission helped develop the policy guidelines together with the Communications Authority, which has statutory authority to regulate the ICT industry in Kenya, including telecommunications and broadcasting services.

The 12-page document dated June 2017 gives authorities guidance for regulating speech over a sweeping number of channels, including text messaging, voice calls, blogs, document sharing sites, online discussion forums, and social networking sites.

A major concern of the authorities is the possibility that inflammatory claims could spread in one or more ethnic languages using modern means of technology. For this reason the new guidelines bar the dissemination of bulk content on telecommunications networks in any languages other than English or Kiswahili.

The Communications Authority also aims to improve transparency for the sake of citizens receiving political messages by SMS or other means. “A Political Message must bear the name of the Political Party or individual disseminating the Political Message,” reads the new policy.

Other regulations are vaguely worded, leaving them open to interpretation: “Political Messages shall not contain offensive, abusive, insulting, misleading, confusing, obscene or profane language… Political Messages shall not contain inciting, threatening or discriminatory language that may or is intended to expose an individual or group of individuals to violence, hatred, hostility, discrimination or ridicule on the basis of ethnicity, tribe, race, color, religion, gender, disability or otherwise.”

Not only SMS messages but also ring back tones and voice calls fall under these regulations.

Protecting the people — or politicians?

Another key concern of the policy document is really not all that new; certain stipulations simply reiterate established law and practice regarding defamation, which is the wilfull dissemination of false information that damages a person’s reputation.

“It shall be the responsibility of the content author to authenticate, validate the source and truthfulness of their content prior to publishing to limit information that might spread rumors, mislead or cannot be supported by facts,” it says.

“Content authors shall be committed to be honest and correct in their content publishing and shall be responsible for all their content as published.”

These regulations simply extend the established norms governing traditional media (newspapers, broadcasters, etc.) over social media users, leaving them potentially liable in a defamation suit, should they spread false information that damages a person’s reputation.

What is more striking, however, is that the Communications Authority seems to broaden the concept of what is traditionally considered defamatory. The traditional defense against a defamation claim is that the published content is truthful. For instance, a newspaper that publishes incriminating information against a politician cannot be held legally liable as long as it can demonstrate that the information is true.

But the Communications Authority states in its new guidelines that “Publishing of other person’s private information will not be published without their consent.” Depending on how one interprets the phrase “private information,” this clause could be used to prohibit the dissemination of compromising information about corruption or ethics lapses, even if the information were true.

The Communications Authority expressly bans ad hominem personal attacks via SMS and insists that Kenyans write social media posts using “civilized language.”: “Political Messages (via SMS) shall not contain attacks on individual persons, their families, their ethnic background, race, religion or their associations.”

“All comments shall be polite, truthful and respectful.”

“All social media content shall be written using a civilized language that avoids a tone and words that constitute hate speech, ethnic contempt, and incitement to violence, harassment, abusive, violence, defamatory or intimidating,” says the document. “All comments shall be polite, truthful and respectful.”

For the most part, the guidelines seem aimed not at regulating Facebook or other social media corporations per se, but rather target Kenyan influencers on these platforms and seek to hold them accountable for the speech that they disseminate. Kenya’s penal code and NCI Act will be used to penalize those who flout these rules.

“It shall be the responsibility of the Administrator of the social media platform to moderate and control the content and discussions generated on their platform.” This implies that the manager of a Facebook group, for example, could be arrested for allowing members of the group to post inflammatory content.

The policy document even proposes a mechanism whereby the government clears content for publication or advises against its dissemination: “Publishers of political content who are unsure whether their content is inflammatory or not, will liaise with the NCIC before publishing the content. NCIC shall respond to the publisher within 24 hours.”

Kenya’s preoccupation with hate speech and incitement relates to the experience of the 2005 elections, when post-election violence was fanned by largely unregulated radio broacasts, telecommunications and social media. The new guidelines define a “hate message” as a message designed to “degrade, intimidate or incite to violence or prejudicial action against a person or group of people based on their race, gender, ethnicity, nationality, religion, political affiliation, language, ability or appearance.”

Read the full guidelines here.

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