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

Fri Jun 15 12:58:52 EAT 2012

I was very impressed that the PS complained to the Media Council, the
(independent) body that is supposed to take action. (Un) fortunately, the
apologies and retraction were done before we officially heard from the
Media Council. It would have been interesting to hear their verdict on this
one. The independence of the Media Council and its transparency in dealing
with complaints becomes the issue. From their website, we cannot establish
complaints received ( they only give a number) or read their decisions.
Perhaps somebody from the Council can point us to the right direction....
Anyway, the Council is among the bodies to be re-established under the new
Constitution and I hope in that process we can achieve the ideal body.

2012/6/15 Barrack Otieno <otieno.barrack at gmail.com>

> Interesting observation Grace, reminds me of a scenario last week of a
> local daily that published a photo ostensibly of a letter depicting
> the ill fated police chopper (may our leaders and officers rest in
> peace) coming down, one of the media stations accidentaly showed
> graphical footage of the scene and apologised that the footage was
> unedited, i heard from the grapevine that the PS personally delivered
> a protest letter to the media council, we saw an apology on social
> media i also recall the drama in Muliro gardens last year in which
> disturbing photos ended up doing rounds in social media, does the
> media council really act? What is your take from a legal perspective?
>
> On Fri, Jun 15, 2012 at 12:20 PM, Grace Mutung'u (Bomu)
> <nmutungu at gmail.com> wrote:
> >
> > I take a different view with this one. Kenyans have always been creative
> > with topical situations. The Internet has only provided a platform to
> show
> > it. As long as content is not defamatory, it should remain in the realm
> of
> > freedom of speech. And where content is defamatory, really, someone
> > independent should be the one to declare it as such and order it pulled
> > down. Afterall, in the real world, a newspaper cannot be pulled out of
> > circulation without a court order, neither can misleading ads...
> > it is only in very limited circumstances (cyber security) where the State
> > should come in....All in all perhaps we need a legislative framework to
> > predefine situations in which intermediaries should act...
> >
> > 2012/6/15 Ali Hussein <ali at hussein.me.ke>
> >>
> >> @Barrack
> >>
> >> Indeed. On the Fair Use question I think the question goes beyond what
> is
> >> at face value. When for example an advertiser decides to run ads that
> are
> >> borderline misleading..kind of straddling the fence so to speak between
> >> factual and not then what recourse do consumers have? When you
> advertise in
> >> big headlines that you are offering UNLIMITED INTERNET yet by all
> intents
> >> and purposes its not then we have a problem. The flip-side of course is
> that
> >> customers today are able to vote with their feet and wallets. The
> problem
> >> arises when there is collusion between players. Some of these issues go
> >> beyond Telcoms Regulators of course and there is probably a role for the
> >> Advertisers Practitioners Association.
> >>
> >> Ali Hussein
> >>
> >>
> >> On Fri, Jun 15, 2012 at 10:39 AM, Barrack Otieno
> >> <otieno.barrack at gmail.com> wrote:
> >>>
> >>> @ 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/
> >>> >>
> >>> >> _______________________________________________
> >>> >> kictanet mailing list
> >>> >> kictanet at lists.kictanet.or.ke
> >>> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >>> >>
> >>> >> Unsubscribe or change your options at
> >>> >>
> >>> >>
> https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com
> >>> >>
> >>> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder
> >>> >> platform
> >>> >> for people and institutions interested and involved in ICT policy
> and
> >>> >> regulation. The network aims to act as a catalyst for reform in the
> >>> >> ICT
> >>> >> sector in support of the national aim of ICT enabled growth and
> >>> >> development.
> >>> >>
> >>> >> KICTANetiquette : Adhere to the same standards of acceptable
> behaviors
> >>> >> online that you follow in real life: respect people's times and
> >>> >> bandwidth,
> >>> >> share knowledge, don't flame or abuse or personalize, respect
> privacy,
> >>> >> do
> >>> >> not spam, do not market your wares or qualifications.
> >>>
> >>>
> >>>
> >>> --
> >>> Barrack O. Otieno
> >>> +254721325277
> >>> +254-20-2498789
> >>> Skype: barrack.otieno
> >>> http://www.otienobarrack.me.ke/
> >>
> >>
> >>
> >>
> >> --
> >>
> >> Ali Hussein|Managing Partner
> >>
> >>
> >> Telemedia Africa
> >> Azania Technology Group
> >>
> >> Chaka Court, Argwings Kodhek Road
> >>
> >> P O Box  14556-00100
> >>
> >> Office: +254 737 751409
> >>
> >> Cell:     +254 773/713 601113
> >>
> >> Nairobi, Kenya
> >>
> >>
> >>
> >>
> >>
> >> Twitter: @AliHKassim
> >>
> >> Skype: abu-jomo
> >>
> >>
> >>
> >> "You generally hear that what a man doesn't know doesn't hurt him, but
> in
> >> business what a man doesn't know does hurt.". - E. St. Elmo Lewis,
> member,
> >> Advertising Hall of Fame
> >>
> >> _______________________________________________
> >> kictanet mailing list
> >> kictanet at lists.kictanet.or.ke
> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >>
> >> Unsubscribe or change your options at
> >>
> https://lists.kictanet.or.ke/mailman/options/kictanet/nmutungu%40gmail.com
> >>
> >>
> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> >> for people and institutions interested and involved in ICT policy and
> >> regulation. The network aims to act as a catalyst for reform in the ICT
> >> sector in support of the national aim of ICT enabled growth and
> development.
> >>
> >> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> >> online that you follow in real life: respect people's times and
> bandwidth,
> >> share knowledge, don't flame or abuse or personalize, respect privacy,
> do
> >> not spam, do not market your wares or qualifications.
> >
> >
> >
> >
> > --
> > Grace L.N. Mutung'u (Bomu)
> > Kenya
> > Skype: gracebomu
> > Twitter: GraceMutung'u (Bomu)
> >
> >
> > _______________________________________________
> > kictanet mailing list
> > kictanet at lists.kictanet.or.ke
> > https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >
> > Unsubscribe or change your options at
> >
> https://lists.kictanet.or.ke/mailman/options/kictanet/otieno.barrack%40gmail.com
> >
> > The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for
> > people and institutions interested and involved in ICT policy and
> > regulation. The network aims to act as a catalyst for reform in the ICT
> > sector in support of the national aim of ICT enabled growth and
> development.
> >
> > KICTANetiquette : Adhere to the same standards of acceptable behaviors
> > online that you follow in real life: respect people's times and
> bandwidth,
> > share knowledge, don't flame or abuse or personalize, respect privacy, do
> > not spam, do not market your wares or qualifications.
>
>
>
> --
> Barrack O. Otieno
> +254721325277
> +254-20-2498789
> Skype: barrack.otieno
> http://www.otienobarrack.me.ke/
>

-- 
Grace L.N. Mutung'u (Bomu)
Kenya
Skype: gracebomu
Twitter: GraceMutung'u (Bomu)
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