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

Sat Dec 13 09:43:02 EAT 2014

I think they key difference between this case and the usual third-party
intermediate wrangles we come across is that Google are not being held
liable for the content, they are merely being asked to disclose the
*identity* of the content owner, which they would have obtained when
setting up the hosting for this owner.

IMHO this is not a big deal and Google should simply provide the required
information as required by court.

On Thursday, December 11, 2014, Isaac Mutunga via kictanet <
kictanet at lists.kictanet.or.ke> wrote:

> 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
> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');>>
> *To:* scmutunga at yahoo.com
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');>> wrote:
>
> Exactly how does Google come into this?
> Waithaka Ngigi
> Alliance Technologies
> Nairobi, Kenya
> www.A1.io <http://www.a1.io/>
> On 10 Dec 2014 12:56, "Grace Githaiga via kictanet" <
> kictanet at lists.kictanet.or.ke
> <javascript:_e(%7B%7D,'cvml','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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