[kictanet] Defining intermediary liability in Kenya

Wed Oct 3 11:22:16 EAT 2012

Interesting discussion. My view is that all players must understand that
freedom comes with responsibility and absolute freedom is a mirage. 

Globalization presents immense opportunities and challenges and the
balancing act is quite delicate. 

The challenge is the  point of balance to ensure that privacy is not
violated to the extent that whoever is being protected does not also
infringe on others privacy through their actions.with all these threat of
terrorism and other ills.  In the case of intermediaries, to what extent
should they be liable to the action of others and when it comes to
disclosure, what should be the guiding principles?

Jane Thuo

From: kictanet [mailto:kictanet-bounces+info=amwik.org at lists.kictanet.or.ke]
On Behalf Of Grace Githaiga
Sent: Wednesday, October 03, 2012 11:09 AM
To: info at amwik.org
Cc: kictanet at lists.kictanet.or.ke; isoc at orion.my.co.ke
Subject: [kictanet] Defining intermediary liability in Kenya

Thanks Ali

You 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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