[kictanet] Google loses round one of court battle with Waiguru

Thu Dec 11 10:24:48 EAT 2014

The law is silent on intermediary liabilities but we can borrow 'safe harbour scheme' from countries like Australia, US and Europe.  Safe harbour scheme for internet intermediaries protect them from liability for offenses committed by persons who use their services, where the intermediary meets certain conditions. This is because given the quantity of material generated on these sites, and the instantaneous way in which online communications are sent and received, this may be oppressive and unreasonable to expect the search engines to police all content coursing through the system. 
May be Section 230 of Communications Decency Act 1996 (US) contains a particularly strong and broadly applicable safe harbour scheme which can be used to come up with an internet intermediary law. 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider...No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

   From: Mwendwa Kivuva via kictanet <kictanet at lists.kictanet.or.ke>
 To: scmutunga at yahoo.com 
 Sent: Thursday, 11 December 2014, 9:23
 Subject: Re: [kictanet] Google loses round one of court battle with Waiguru

This is an interesting development.

The law has been silent in terms of Intermediary Liabilities. It would be good to have precedence in terms of case law on the same since we have refused to propose bills on the same. The only challenge is those advising the judge, and the media too are not very informed in the area of Internet intermediaries and we might end up with bad precedence. This is also the Observation of Kictanet (Victor, Grace and Alice), and CIPIT in the Stanford map on Intermediary liability in Kenya (1)

We should not expect web hosting companies to police content of their customers, but this has become the norm everywhere. Companies like Rapidshare shrunk to nothing because of requirement to police client's content. (2). Others like megauploads died out.
In other jurisdictions, search engines too suffer law suites yet they just make the information available and are not the publishers.

Why does this happen? Intermediaries are easier to identify: and therefore, they become the only ones to sue in cases where the alleged culprit remains anonymous, and they have the technical ability to ensure the compliance to court rulings, and they have deep pockets in case the litigant wins the case and there is libel damages are to be paid.

There is precedence elsewhere in the world, an interesting one was decided by the Supreme court of Argentina (3) where a lady had sued Google and Yahoo for linking search results to third-party content that violated her fundamental rights and infringed copyright. The decision was largely favourable to search engines.

Lets wait and see.

Notes
(1) http://cyberlaw.stanford.edu/page/wilmap-kenya
(2) http://en.wikipedia.org/wiki/RapidShare
(3) http://www.opensocietyfoundations.org/voices/case-watch-top-argentine-court-blazes-trail-online-free-expression
______________________
Mwendwa Kivuva, Nairobi, Kenya
T: twitter.com/lordmwesh

"There are some men who lift the age they inhabit, till all men walk on higher ground in that lifetime." - Maxwell Anderson

On 11 December 2014 at 07:58, Mark Kipyegon via kictanet <kictanet at lists.kictanet.or.ke> wrote:

>From the news article, the offending site is hosted on the blogspot[.]com platform which is a product of Google.
Google has policies in place regarding disclosure of personal information to authorities. You can easily check them out online.
On 11 Dec 2014, at 07:49, "Victor Kapiyo via kictanet" <kictanet at lists.kictanet.or.ke> wrote:

I don't think they are the right party in the suit. Unless they host those sites.On Dec 10, 2014 8:24 PM, "Ngigi Waithaka via kictanet" <kictanet at lists.kictanet.or.ke> wrote:

Exactly how does Google come into this?Waithaka NgigiAlliance Technologies
Nairobi, Kenyawww.A1.ioOn 10 Dec 2014 12:56, "Grace Githaiga via kictanet" <kictanet at lists.kictanet.or.ke> wrote:

The Constitutional and Human Rights Division of the High Court, sitting in Nairobi, declined to grant Google Kenya’s prayers to be struck out of the case in which Ms Waiguru has sued Google Kenya and its mother company Google Incorporated.Google Kenya had made the application in response to a suit the Cabinet Secretary had filed against it and Google Inc. as part of her fight with a Kenyan website Daily Post over publication of a story she claims was defamatory.
http://www.businessdailyafrica.com/Google-loses-first-round-battle-against-Waiguru/-/539546/2550536/-/item/0/-/y9ryi1z/-/index.html 
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