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

Fri Jun 15 17:51:04 EAT 2012

@ Badru,
interesting case.....presicely why another body should be the one to
determine content to be pulled down...

2012/6/15, Badru Ntege <ntegeb at one2net.co.ug>:
> @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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>
>
>
> --
> 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)
>
>

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