[kictanet] Kenya IGF on line Discussions Day 2: Intermediary Liability

[Ali Hussein]

Barrack and all

This is an interesting topic. The question that has always burned through
me is do the laws of a country, natural justice also apply online? I must
confess I havent read the Communications act in detail and I guess we
should all find time to do that to be able to answer some of the questions
I pose today.

It seems to me that organizations and individuals take creative and
journalism license to do things that may not necessarily pass muster in the
offline world.

Have these two worlds now come together intrinsically and cannot be
distinguished?

Should  YouTube, Facebook etc be compelled to share advertising revenue
with Safaricom/Airtel/yu/Orange/Access Kenya etc because of the heavy usage
of bandwidth? After all this was one of the key basis of the heated
discussion on Net Neutrality in the US and Europe. Are we going to see the
same debate here?

Where do we draw the line if Telcos decide on their own to institute what
they call *Fair Usage* rules on bandwidth that a customer has bought? Fair
Usage in my humble opinion is another way of saying that if we feel you are
misusing bandwidth then we will reduce your speeds to a crawl. At least one
Telco has this in its terms and conditions. What does the regulator and the
consumer watchdog have to say about this? Who decides Fair Usage rules?
Should Telcos be allowed to play judge and jury?

On the other hand we have seen an deluge of bloggers in our midst and just
like mainstream journalism you have the positives and the negatives. There
are those who have already crossed over to the 'dark' side. Picture this
for example. An imposter hijacks a name that he/she doesnt 'own' of a
prominent Government Official. In this case Dr. Alfred Mutua, and uses the
twitter handle @AlfredMutua to pock fun and be outright obnoxious in the
tweets that he posts on twitter. What can the regulator do? What does the
Government Spokesman do? I understand he has written to Twitter himself to
try and stop these tweets. Here's are sample tweets -

*@alfredmutua: My highest moment in government was when I was on 20th floor
#theTrend

@alfredmutua: Why do people say I'm not diplomatic? I have several diplomas
from Pivot Point!

@alfredmutua: ♫ ... Suruali yoo, Suruali yo-o-o - mi natafuta Suruali yoo
... ♫*

This is what I call Cyber Terrorism. And there are lots of examples to fill
a whole page. The issue of intermediaries and how we ensure that we protect
Freedom of Speech and Association while at the same time *NOT* allow it to
be misused is a real issue that needs to be addressed as a matter of
urgency. We already have precedence to this even in this country where
people have been sued for defamatory Facebook updates.

Where do we draw the line?


Ali Hussein

+254 773/713 601113

Sent from my iPhone®

On Jun 14, 2012, at 9:50 PM, Barrack Otieno <otieno.barrack at gmail.com>
wrote:

> Listers,
>
> Internet intermediaries can be looked at as go-betweens, they act
> between two parties on the Internet enabling the transmission and
> sharing of information. They allow communication, and provide
> knowledge and content of all types, from email to entertainment.
> However, they do not make decisions about the type of content that
> passes through their facilities. OECD (2010, p. 9) identifies Internet
> intermediaries to include ‘Internet access and service providers
> (ISPs), data processing and web hosting providers including domain
> name registrars, internet search engines and portals, internet payment
> systems, e-commerce intermediaries and participative networking
> platforms which include internet publishing and broadcasting platforms
> that do not themselves create or own content being published or
> broadcast’.
>
> From a Kenyan perspective, it is important to consider mobile service
> providers as intermediaries since mobile telephony continues to set
> the stage for adoption of Internet access even though they are
> regulated under telecom laws.
>
> Intermediary liability arises where governments or private litigants
> can hold Internet intermediaries liable for unlawful or harmful
> content created by users of their services.
> The power and influence of Internet intermediaries, as well as their
> limitations in enabling communication and facilitating information
> flows is now attracting more attention in Internet governance
> discussions.
>
> Questions:
>
> 1.    What are the laws that govern intermediary liability in Kenya?
>
> 2.    What sort of content would be deemed a liability by
> intermediaries and therefore justify removal?
>
> 3.    Has Kenya had instances where intermediaries have been asked to
> take down content or block services e.g. text messages?
>
> 4. Any other concern?
>
> The floor is open
>
> --
> Barrack O. Otieno
> +254721325277
> +254-20-2498789
> Skype: barrack.otieno
> http://www.otienobarrack.me.ke/
>
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