16 August 2013

Kenya: What Does the Law Say About Cyber-Bullying


Before we can discuss what Kenyan law says (or doesn't say) on cyber-bullying, we need to understand what this term means. Cyber-bullying has been defined variously as: the use of the internet vide your computer or other devices to engage in obnoxious behavior directed at a specific person or group of persons, involves threats, (cyber)stalking, insults, defamatory/libelous statements, falsification, fraud etc. Cyber-bullying is a sub-set of cybercrime (also called computer crime in some jurisdictions).

Cyber-bullying can be effected through emails, tweets, through messages on social media fora, short messaging services, actual phone/skype calls. This not-so-new-phenomenon caught a lot of people by surprise, and particularly celebrity types who tend to be the more "popular" victims of this crime. Sometimes however an individual person minding his own business will find that someone out there with or without (comprehensible) reason subjects them to cyber-bullying, which can be very debilitating especially since it may not be easy to find out who the perpetrator is, or indeed to stop them once they have a means of communicating to you. Therefore short of completely disconnecting from all modern means of communications and/or changing ones personal communication details, stopping cyber-bullying is indeed a challenge.

In the brick and mortar world we had statutes that addressed criminalized behavior like criminal defamation, assault, fraud, extortion etc. On the other hand one could sue for damages where an individual carried out civil wrongs against their person or property e.g. civil defamation, harassment, stalking, physical and mental abuse etc. However these statutes could not easily bridge the gap posed by cyber crimes like cyber-bullying.

In Kenya the Kenya Information & Communications Act CAP 411A has a section on electronic transactions which addressed certain criminal acts like: unauthorized access to computer data, access with intent to commit offences, interception of computer service, modification of computer material, denial of access, unauthorized possession of data, electronic fraud, and publishing of obscene information. There is no mention or definition of cyber-bullying as an offence under CAP 411A, it is however instructive that the heading of PART VIA is Electronic Transactions. Simply put, this part enunciates the role of the Commission in facilitating electronic transactions for ease of communications between individuals inter se or between individuals and the Government. Thus the offences addressed thereunder should be viewed within this context.

Since cyber-bullying is not mentioned in the said Act as an offence does it mean it is not punishable? I suggest that it may not be punishable as such however it is arguable that the stipulated offences under the said Act are some of the enablers or indeed forms in which cyber-bullying could happen or be effected. For example in certain cases cyber-bullying may happen due to or following unauthorized access to information, unauthorized possession of information etc. Therefore where the cyber-bully commits any of the stipulated offences in the course of cyber-bullying then the individual offences will lie under the Act for which the person can be charged but not for the "offence" of cyber-bullying as such.

Perhaps it is time that the Government of Kenya considers amending the statute books to legislate against cyber-bullying and its derivatives. Such legislation should also contain:

Detailed provisions on the nature of cyber-crime

Detailed enforcement provisions (to guide the Kenya Police who already have in place a cyber crime unit) (South Africa has an Electronic Communications & Transactions Act which creates a role for what are known as cyber inspectors who monitor and enforce unlawful cyber activity)

Efficient reporting mechanisms

Distinctions in severity of the offence between minors and adults

Possible criminal liability for internet service providers and network facility providers who are notified of the use of their networks for commission of cyber crimes and they fail to take any action to stop it

Finally it would be helpful if the proper state agencies (including CCK and the Kenya Police) carried out awareness programs for the public as this will help in a common understanding of cyber crimes (including cyber-bullying) and how to respond to it.

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