[kictanet] Defining intermediary liability in Kenya

Wed Oct 3 11:09:13 EAT 2012

Thanks AliYou raise important points which center on violation of privacy, denial by companies/brands to deny use of its domain(s) and really where do we draw the line as far as our freedoms are concerned. All these points have been noted.
Listers, the floor is still open. We still go back to the questions raised yesterday:
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 today, and tomorrow we can move on to the next step.
Thanks you.Rgds
Grace
CC: alice at apc.org; isoc at orion.my.co.ke; kictanet at lists.kictanet.or.ke
From: ali at hussein.me.ke
Subject: Re: [ISOC_KE] Defining intermediary liability in Kenya
Date: Wed, 3 Oct 2012 06:03:03 +0300
To: ggithaiga at hotmail.com

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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