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

Mon Jun 18 11:31:22 EAT 2012

Interesting discussions here.

I think the challenges that we have locally are that (1) there is no law,
(2) where there is, it is deficient, unclear and untested in the courts.

With regard to the fair use - sale of goods act - consumer protection
debate, one problem is that consumers sign contracts for services with the
ISPs; and these contracts always have a fair use clause, such that by
signing you are deemed to accept their fair use policy. This in effect
seems to derogate from the core principles of the sale of goods act -
fitness of description, purpose etc. But that is if you are looking at it
from the service perspective. The SOGA is silent about the regulation of
services, unlike the SOGA UK which has very clear provisions. But then
again if you are to look at the issue from a goods perspective, such that
data (bundles) are the goods to be delivered at a certain speed in a given
period, then the fair use principle would fail, and thus require the ISP to
provide the 'unlimited internet'.

>From a consumer protection perspective, I think that action should be taken
against some ISPs for fraudulent / misleading advertising, like in the case
of Apple <http://www.bbc.co.uk/news/technology-18059732> in the UK over the
ad of the new ipad. In addition, there should be regulations mandating ISPs
to disclose their 'fair use policies' and state clearly how they are
implemented. In my view, throttling speeds when full speeds have been paid
for would amount to obtaining by false pretences - which is criminal!

Our courts are slowly starting to deal with such issues.
Recently<http://www.nation.co.ke/Tech/Pull+out+Facebook+post+hotel+ordered+/-/1017288/1426096/-/t6uyb3/-/index.html>,
a court ordered a hotel to take down a post from Facebook which was
discriminatory. This is a good step and we may see more of this, esp. now
with a new constitution, legislation on hate speech etc. In addition, Safcom's
new guidelines<http://www.nation.co.ke/News/politics/Safaricom+issues+tough+guidelines+on+political+messages+/-/1064/1429144/-/95yclmz/-/index.html>on
messages presents an interesting dimension to the role intermediaries
should play. I think its a good effort but it may have a limited effect
given the ease with which people can still purchase sim cards.

Nonetheless, while courts are the best arbiters for such issues, it mustn't
be forgotten that they can only pronounce on them if people went to court.
Sadly, no one is keen on incurring costs, so the corporates will always
win. Also, the lack of proper legislation also leads to increasing cases of
administrative actions eg by cck, kenic as cited, which may fail the due
process test.

But i remain hopeful.

Victor

On 17 June 2012 21:55, Grace Mutung'u (Bomu) <nmutungu at gmail.com> wrote:

> todays Nation had an interesting story on intermediary liability in "a
> letter from London" see
>
> nation.co.ke/oped/Opinion/Crackdown+planned+on+cruel+Internet+hoaxes+/-/440808/1429216/-/aie6ej/-/index.html
>
> 2012/6/17, Kivuva <Kivuva at transworldafrica.com>:
> > Back home, Its was just recently that KENIC in conjunction with
> > Safaricom arm twisted a registrar to pull down a domain registered by
> > a disgruntled customer. Safaricon.co.ke had content that was making
> > Safaricom very very uncomfortable. I would have wished to know how the
> > court would have handled this case. More on
> > http://bake.or.ke/blog_feed_item/12277
> >
> > Before that, there was a fake Equity Bank website
> > Equitybanknig-plc.com that was a clone of the real website
> > equitybank.co.ke, and "experts" suspected it was a phishing website. I
> > would have wished to know how that was resolved
> >
> http://businessinfocus.blogspot.com/2009/09/equity-banks-membership-drive-attracts.html?m=1
> >
> > On 14/06/2012, 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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> >
> >
> > --
> > ______________________
> > Mwendwa Kivuva
> > For
> > Business Development
> > Transworld Computer Channels
> > Cel: 0722402248
> > twitter.com/lordmwesh
> > transworldAfrica.com | Fluent in computing
> > kenya.or.ke | The Kenya we know
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>
> --
> Grace L.N. Mutung'u (Bomu)
> Kenya
> Skype: gracebomu
> Twitter: GraceMutung'u (Bomu)
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-- 
Victor Kapiyo, LL.B

====================================================
*“Your attitude, not your aptitude, will determine your altitude” Zig Ziglar
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