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

Fri Jun 15 13:48:10 EAT 2012

@Grace on pulldown of content.

I think the precedent was the Godfrey vs Demon internet case http://www.nominet.org.uk/disputes/caselaw/index/godfrey/  .  The net result being that if an individual feels that an internet post has defamed him and he asks the hosting company to remove the contet.  If they refuse to do so they can then also be party to the eventual court case.  If you were the ISP and got a request would you quote freedom of speech for your client or would you protect your companies interests by removing the said content ??.  

Unfortunately most ISP’s remove the content.  In fact there was talk of a famous Russian millionaire in Europe who had a team of lawyers focused on takedowns of any website that were defaming him.  And this was a very successful strategy.

So as you see self-preservation is more powerful than freedom of speech to the internet publishers.

Regards

From: kictanet [mailto:kictanet-bounces+ntegeb=one2net.co.ug at lists.kictanet.or.ke] On Behalf Of Grace Mutung'u (Bomu)
Sent: Friday, June 15, 2012 12:21 PM
To: ntegeb at one2net.co.ug
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] Kenya IGF on line Discussions Day 2: Intermediary Liability

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/
>>
>> _______________________________________________
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>>
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--
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

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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)

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