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

[Barrack Otieno]

@ Ali,

Interesting questions indeed, reminds me of the hue and cry raised by
the proposed network monitoring that was to be instituted by CCK.
Increasingly the Internet is being viewed as a resource that needs to
be properly managed. I am trying to understand the argument posed by
the Telco regarding use of bandwidth the unlimited option while at the
same time empathising with them since most of the available bandwidth
is acquired from Infrastructure service providers meaning it has to be
used optimumly for the telco to make a return. We also lack content
meaning majority of netizens access foreign content, in my humble
opinion, (Michuki can correct) me accessing the (International)
Internet is more costly than accessing the local Internet. That said
the society has values, the government is a custodian of this value,
any organization licensed to offer goods and services, including
internet related goods and services is an intermediary and has to
abide by certain rules to ensure the society is not contaminated, the
question is how far can we go in the absence of a clear data
protection and freedom of information framework?

On Fri, Jun 15, 2012 at 9:55 AM, Ali Hussein <ali at hussein.me.ke> wrote:
> 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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-- 
Barrack O. Otieno
+254721325277
+254-20-2498789
Skype: barrack.otieno
http://www.otienobarrack.me.ke/