[kictanet] [ISOC_KE] Defining intermediary liability in Kenya

Wed Oct 3 06:03:03 EAT 2012

Grace and all

A good piece on intermediary liability. I look forward to the discussions next week.

This is a touchy area which in my opinion remains undefined and subject to interpretations depending on what side of the fence you find yourself. 

For example it is a known fact that the US Government periodically asks Google and other search engines to provide search histories of known Pedophiles. Is this a violation of one's privacy? Or can we argue that the Government is justified in this particular case?

How about the fact that known and well established global companies/Brands like Amazon and PayPal were used to blunt the bite of wikileaks by denying it the use of its domain and payment systems? This is a clear case of the US Government coercing these companies to do something that doesn't pass muster in the name of 'National Security'.

As a country where do we draw the line? At what point do we say this is for the good of the community and quash personal freedoms? Do our ideas of personal freedoms and the good of the community equate to the western value system? These are weighty questions that we as a society must address. And now. 

The ongoing cases of two bloggers charged with various offenses will be instrumental. The judiciary is faced with a situation of monumental delicateness and import. We do hope that they will treat it with the weightiness it deserves.

I look forward to Wednesday's breakfast discussions. 

Ali Hussein

+254 773/713 601113

Sent from my iPad

On Oct 2, 2012, at 1:03 PM, Grace Githaiga <ggithaiga at hotmail.com> wrote:

> Listers
> Greetings.
>  
> This is a follow up to Alice’s email in which she shared a study on intermediary liability in Kenya, and inviting you to a discussion on the same.
>  
> Internet intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide internet based services to third parties.’ 
>  
> OECD 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 was indirectly discussed on this list last week through the Piracy/WAPkid/Copyright discussion.
>  
> 
> Question:
> 
> 1.    Are there other ways that we should define intermediaries?
> 
> 2.    What role should intermediaries play?
> 
> 3.    Considering that they do not create the content, should they be liable? And if so, in what ways?
> 
> Please feel free to respond to any of the issues.
> 
> Rgds
> 
> Grace
> 
> 
> Date: Mon, 1 Oct 2012 19:57:35 +0300
> From: alice at apc.org
> Subject: [kictanet] Discussion intermediary liability in Kenya
> CC: kictanet at lists.kictanet.or.ke
> To: ggithaiga at hotmail.com
> 
> Dear Colleagues, 
> 
> This is an invitation to a discussion on intermediary liability in Kenya starting tomorrow Tuesday 2nd October 2012, which will be followed by a breakfast meeting on 10th October at jacaranda hotel.
> 
> See attached the initial findings of the study on Intermediary Liability in Kenya. We welcome comments. Please note that this initial report is a forthcoming publication, and it should not be cited publicly until November, when the final report will be made available.
> 
> The study notes that there is a lack of a clear framework for liability of intermediaries and a lot of         uncertainty in understanding our evolving post-constitution legislative environment particularly in "regards to what offenses may happen on communications networks and whether intermediaries would be liable or not, this may have contributed to caution and self-regulation. 
> 
> In addition, there seems to be no legislated take down procedures other than responding in court to whichever law was cited as broken.   Do we need a "clear framework for liability of intermediaries, and safe harbor legislation?   What are the strengths and weaknesses of the current situation?
> 
> We would like to encourage policy discussions on these issues with the aim of providing concrete recommendations and way forward.
> 
> Grace Githaiga and Victor Kapiyo will take it from here
> 
> Best
> 
> Alice
> 
> 
> This is a project of:
> 
> Kenya ICT Action Network (KICTANET)
> Open Society Initiative (OSI)
> Association for Progressive Communications (APC)
> Google
> Ministry of Information and Communications
> Telecommunications Service Providers Association of Kenya (TESPOK)
> 
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