OVERVIEW OF ONLINE AND OFFLINE
FREEDOM OF EXPRESSION
Stephanie Muchai
ARTICLE 19 KENYA
muchai@article19.org
Presentation for:
“Bloggers Responsible And Ethical Use Of Online Freedom
In The Election Period”
Friday October 12, 2012
I-HUB, Bishop Magua Centre - Ngong Rd, Nairobi
WHAT IS FREEDOM OF EXPRESSION?
 Constitution of Kenya - Article 33
 FoE is the freedom to seek, receive or impart
information or ideas; freedom of artistic
creativity; and academic freedom and
freedom of scientific research
 There is no reference to which use of media
for this freedom like there is in IL.
 IL definition includes “receive and impart
information and ideas through any media
and regardless of frontiers.”
FREEDOM OF EXPRESSION AND THE
INTERNET
 The Internet has radically transformed the
way in which people receive and share
information and ideas.
 It has become a basic requirement for the
enjoyment of freedom of expression, which is
the foundation of a democratic society.
 FoE via the Internet should be protected to
promote diversity, development, pluralism,
reporting and public participation
 The protection of freedom of expression
applies online in the same way as it applies
offline.
OVERVIEW OF JOINT DECLARATION OF
FOE AND THE INTERNET
 FoE applies to the Internet and all other means of
Communication
 Restrictions on FoE on the Internet are only
acceptable if they are prescribed by law, for a
legitimate aim and are necessary/proportional (Ref 1
(b) of Declaration)
 This is done for the respect and rights of reputations
of others and; For the protection of national security
or of public order, or of public health or morals.
 Approaches to regulation of Internet must be
specifically designed and not imposed/transferred
from broadcasting or telephony
OVERVIEW OF JOINT DECLARATION OF
FOE AND THE INTERNET
 Providers of Internet services should not be
liable for content generated by Internet users
 Content
filtering systems imposed by
government or commercial service provider
which constitute prior censorship are not
justifiable limitation of FoE online
 End user filtering should be accompanied by
clear information to end users about how they
work and potential pitfalls
 Discussion on Kenya context in next session
OVERVIEW OF JOINT DECLARATION OF
FOE AND THE INTERNET
Criminal and Civil Liability
 Basically cases should be heard in the
country with a real & substantial connection
(author established there, content uploaded
there or specifically directed at that State)
 Private parties can bring a case in a certain
jurisdiction if they can show they’ve suffered
substantial harm
 Only one action for damages should be
allowed in respect of same content
OVERVIEW OF JOINT DECLARATION OF
FOE AND THE INTERNET
Other topics in declaration:
 Network Neutrality
 Access to the Internet
LIMITATIONS TO FOE (ONLINE AND
OFFLINE) IN KENYA “HATE SPEECH”
 The Constitution of Kenya states that Freedom of
Expression is guaranteed.
But FoE does not extend to
(a) propaganda to war,
(b) incitement to violence,
(c) hate speech; or
(d) advocacy of hatred that (i) constitute ethnic
incitement, vilification of others or incitement to cause
harm, or (ii) is based on any group of discrimination
contemplated by the Constitution
HATE SPEECH – KENYAN
PROVISIONS CONTINUED……
 S.62 (1) of the NCI Act states that: any person who
utters words intended to incite feelings of
contempt, hatred, hostility, violence or
discrimination against any person or community
on the basis of ethnicity or race, commits an
offence and shall be liable on conviction to a fine (1
million max – or imprisonment 5 yrs max)
 S 62 (1) states a newspaper, radio station or media
enterprise (interpreted to include digital media) that
publishes the utterances referred to in subsection (1)
commits an offence and shall be liable on conviction
to a fine (1 million max)
KENYA INFORMATION AND
COMMUNICATIONS ACT
 The following section is already in use against an
Internet User
29. A person who by means of a licensed
telecommunication system:
(a) sends a message or other matter that is grossly
offensive or of an indecent, obscene or menacing
character; or
(b) sends a message that he knows to be false for the
purpose of causing annoyance, inconvenience or
needless anxiety to another person commits an offence
(50K or 3 months)
OTHER SPEECH PROVISIONS
KENYAN CONTEXT
 The Media Act (2nd Schedule) provides that we should
avoid quoting persons making derogatory remarks
based on ethnicity, race, creed, colour and sex
should be avoided.
 Penal Code – S 77 makes words intended or
calculated to promote feelings of hatred or enmity
between different races or communities in Kenya an
offence
 It further states that careful account must be taken of
the possible effect upon the ethnic or racial group
concerned, and on the population as a whole, and of
the changes in public attitudes as to what is and what
is not acceptable when using such terms
OTHER PROVISIONS AFFECTING
FOE ONLINE
 Defamation - making untrue statements about
another which damages their reputation. If the
defamatory statement is printed or broadcast over
the media it is libel and, if only oral, it is slander.
 NOTE: Public figures, including officeholders and
candidates have to show that the defamation was
made with malicious intent and was not just fair
comment.
Speech Remedies
 All other types of expression such as defamatory or
offensive comments, should not be criminalised.
 Rather, States should promote the use of more speech to
combat offensive speech. In this regard, it is worth
mentioning that with new Web 2.0 types of applications,
including the comment section on newspapers websites,
blogs, online chat rooms etc., it is now possible to respond
to online derogatory comments almost immediately at no
cost. For this reason, sanctions (e.g criminal) available for
offline defamation and similar offences may well be
unnecessary and disproportionate.
AREAS TO NOTE FOR BLOGGERS
AND CITIZEN JOURNALISTS
 In Kenya, as in many other countries, the same
restrictions to speech that apply offline apply online
 It is well established that public figures voluntarily
place themselves in a position that invites close
scrutiny, whereas private citizens who have not
entered public life do not relinquish their interest in
protecting their reputation. In addition, public figures
have greater access to the means to publicly
counteract false statements about them.
BLOGGERS AND CITIZEN JOURNALISTS LIMITING HARMFUL
AND HATE SPEECH IN THE ELECTION PERIOD
 Don’t reproduce or give bigger audience to such speech!

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Stop RT’s and other forms of dissemination…even just FYI
ones!
Dishonour the speaker and their views/attitudes
Highlight and trend alternative sources of information and
voices
Trend new/counter ideas or attitudes
Start/be engaged in online conversations searching for
solutions
Understand that there are no bare facts and that people
know how to create facts for journalists to report to influence
the public’s view – reflect this in your posts
Try and present as many views as possible
CONCLUDING REMARKS
Citizen Journalists and Bloggers need to begin to
demonstrate self regulation while exercising their
freedom of expression
Capacity build the online community on limitations
to freedom of expression
Promote a culture which while embracing plurality of
views (including critical etc) does not embrace or
tolerate advocacy to hatred, hostility or violence
Thank you
for your kind attention