Social Media and Cyber Crimes: An Upgrade to the Law

Everyone has a social media or social networking account of some form, whether it is WhatsApp, YouTube, Facebook, LinkedIn, Twitter or Instagram or a combination of some or all of them, which may also be linked to each ether due to commercial partnerships between the companies that own them. Unless one is on a social media hiatus, it has become normal for one to access their social media account regularly to check on their online status, post random updates, manage their company social media page or connect for social, cultural or business reasons. Indeed, it is not uncommon for business leaders, politicians and celebrities to interact online with their employees, supporters and business partners.

What is clear is that social media as a phenomenon has ingrained itself into our culture and connected people globally at all levels. An unfortunate consequence of the increased use and influence of social media within society is the negative effects of social media such as false news reporting, fake accounts, hacking and cyber bullying.

The Kenya Parliament recently enacted the Computer Misuse and Cybercrimes Act 2018 (the Act), which provides for various offences relating to use of computer systems. Several provisions of the Act were suspended by the High Court in 2018 due to a legal challenge by the Bloggers Association of Kenya on the constitutionality of some of its legal provisions, however the Court recently dismissed their claims and asserted that the Act was constitutional and as such is now in force subject to any appeal.

Below are some highlights of offences under the Act that impact on the use of social media:

 

  • False Publications and Information This is where one intentionally publishes false, misleading or fictitious data or misinforms with an intent that the data shall be considered authentic or is false and which results in panic, chaos or violence among citizens or which may discredit the reputation of a person.

 

 

  • Child Pornography This is where one publishes, possesses, downloads, distributes, transmits, circulates, delivers, sells or makes available child pornography through a computer system or telecommunications apparatus.

 

 

  • Computer Fraud This is where one through fraud and dishonesty, unlawfully occasions unlawful loss or obtains economic benefit for oneself or another person through means unauthorised access of a computer system, program or data or the interference or obstruction with the functioning of a computer system.

 

  • Cyber Harassment This is where one wilfully communicates, either directly or indirectly, with another person knowing their conduct is likely to cause apprehension or fear of violence to that person or damage or loss to their property or where the communication is of an indecent or grossly offensive nature to that person.

 

  • Cybersquatting This is where one intentionally takes or makes use of a name, business name, trademark, domain name or other registered name or phrase of another person on the internet or other computer network without that person’s authority or consent.

 

  •  Cyber Espionage This is where one unlawfully gains access to important government facilities or institutions of national interest with an intent to acquire critical information.  

 

  • Identity Theft and Impersonation This is where one fraudulently or dishonestly makes use of electronic signatures, passwords or other unique identification features or another person.

 

 

 

  • Phishing This is where one creates or operates a website or sends a message through a computer system with the intention to induce the user of a website or the recipient of the message to disclose personal information or to gain unauthorised access to a computer system.

 

The Act appears to capture a large number of offences that one can argue are highly prevalent today and also sets out various penalties that can range from fines of 200,000 shillings for cybersquatting and identity theft to 20M shillings for child pornography, computer fraud and cyber harassment and also provides for jail terms as an alternative to financial consequences.

It will be interesting to see how the Act is implemented over the next few years given that social media is now the dominant medium of communication between friends, colleagues and the general public.

Fidel Mwaki

is a Legal Consultant at the Firm.
He holds a Bachelor of Laws and a Master of Laws Degrees from University of Warwick and a Post Graduate Diploma in Law from the Kenya School of Law. He is an Advocate of the High Court of Kenya, Commissioner for Oaths and Notary Public. He is also a Commonwealth Scholar.

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