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Online Attacks Against Journalists:
Know Your Rights in Kenya

Contents

What type of harassment are you experiencing?

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THREATS

  • Criminal threats include death threats, rape threats, or threats of violence made online. Online threats can be captured as cyber harassment under Section 27 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018. You or your legal representative can request that the courts compel anyone making online threats to stop.
 
  • The Penal Code also addresses certain types of online threats: threats to kill someone (Section 223), using threats to demand property (Section 299), and threats to burn someone’s property (Section 344). You have the right to file a police report. 

INTIMIDATION

  • Intimidation includes actions that threaten or frighten someone. Online intimidation can be captured as cyber harassment under Section 27 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018. You or your legal representative can request that the courts compel anyone making online threats to stop.
 
  • Section 238 of the Penal Code criminalizes intimidation, defining it as anything intended to cause alarm or to cause a person to take or refrain from taking a specific action (e.g. publishing a certain story); or any action that causes or intends to cause harm to a person, their reputation, their property or someone associated with them (i.e. a friend, family member, etc.). You have the right to file a police report.
 
  • Additional provisions of the Penal Code may also apply: threats to kill (Section 223), using threats to demand property (Section 299), and threats to burn someone’s property (Section 344). You have the right to file a police report.
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CYBER STALKING

Cyberstalking is the repeated use of electronic communications channels to target someone an unwanted and intrusive way. Kenyan law does not specifically address cyberstalking. However, it may be captured under:

  • Section 27 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018, which criminalizes cyber harassment. This includes conduct that is likely to cause a person apprehension or fear of violence towards them or damage or loss to their property; that detrimentally affects that person, or that is indecent or grossly offensive in nature. You have the right to request that the courts compel anyone engaging in cyber harassment to stop.
 
  • Section 238 of the Penal Code, which criminalizes intimidation. This may apply to cases of cyberstalking if you can show: intent to cause you alarm; intent to cause you to take a certain action or refrain from taking a certain action (e.g.. publishing a certain story); that it causes you or someone you are affiliated with harm; or that it causes harm to your reputation, property or that of someone you are affiliated with. If any of those elements are present in the cyberstalking you are experiencing, you have the right to file a police report.
 
  • Section 223 (threats to kill), section 299 (threats to hand over property) or section 344 (threats to burn your property) of the Penal Code.  If any of these elements are present in the cyberstalking you are experiencing, you have the right to file a police report.
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DOXXING

  • Doxxing is an online attack that involves publishing personal information on the internet without consent. The Data Protection Act, No. 24 of 2019 prohibits the unlawful processing of personal data. As a victim of doxxing, you have the right to lodge a complaint with the Data Commissioner.
 
  • Section 37 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018, criminalizes the distribution of intimate images (this is commonly referred to as “revenge porn”). If someone has distributed intimate images of you without your consent, you have the right to request that the courts compel them to stop.
 
  • Article 31 of the Constitution guarantees the right to privacy. This protection includes the right to not have personal information or private communications unnecessarily revealed. If you are a victim of doxxing, you have the right to file a constitutional petition with the High Court requesting that they enforce this right.
 
  • If the doxxing has a negative impact on your reputation, you also have the right to sue for defamation in a civil court. Defamation laws in Kenya are only enforced in civil proceedings.
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ONLINE IMPERSONATION

  • If someone has used or is using your electronic signature, a password belonging to you, or any other identification feature unique to you, then you have the right to file a petition requesting the courts compel the perpetrator(s) to stop, under Section 29 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018.
 
  • If someone has used or is using your name or a name, business name, trademark, domain name, or other word or phrase owned or in use by you, without the proper authority, then you have the right to file a petition requesting the courts compel the perpetrator(s) to stop, under Section 28 of the Computer Misuse and Cyber Crimes Act, No. 5 of 2018.
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TROLLING

  • Trolling includes making deliberately offensive or provocative online comments. Kenyan law does not specifically address trolling. However, laws and statutes addressing harassment, threats or intimidation may apply to cases of trolling. Please use the sections above detailing the different routes that may be available to you, depending on the trolling you have experienced or are experiencing.
 
  • Depending on the nature of the trolling, options may include filing a police report, filing a petition requesting the courts compel the perpetrator(s) to stop, and/or suing for damages in a civil court.
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BRIGADING

  • Brigading involves coordinated harassment by inundating an individual or community with a large number of inflammatory, offensive, and/or derailing comments. Kenyan law does not specifically address brigading. However, laws and statutes addressing harassment, threats or intimidation may apply to cases of brigading. Please use the sections above detailing the different routes that may be available to you, depending on the brigading you have experienced or are experiencing.
 
  • Depending on the nature of the brigading, options may include filing a police report, filing a petition requesting the courts compel the perpetrator(s) to stop, and/or suing for damages in a civil court.
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SEXUAL HARASSMENT

  • The Sexual Offences Act, No. 3 of 2006, prohibits sexual harassment, which is defined as unwanted sexual advances by a person in authority or a public office holder who can reasonably be expected to know that those advances are not welcome by the recipient. If you are the victim of online harassment involving unwanted sexual advances and the perpetrator is a public office holder, you have the right to file a police report.

What do I do if the harassment is anonymous?

While Kenyan law does not specifically address anonymous harassment, there are several options available to you to try to identify an anonymous perpetrator:

 

Regardless of which of these agencies you choose to file a complaint or report with, they will work together to compile evidence. Once the evidence-gathering process is complete, the Directorate of Criminal Investigations will refer the matter to the Office of the Director of Public Prosecutions to begin the process of prosecuting the perpetrator(s).

 

What do I do if race and/or gender is a factor in the harassment?

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REUTERS/ Damir Sagolj

The National Cohesion and Integrity Act, No. 12 of 2008, outlaws discrimination or harassment based on ethnicity. If you are experiencing any type of harassment that is based on your ethnicity, you can file a complaint with the National Cohesion and Integrity Commission.

The National Cohesion and Integrity Act also outlaws hate speech, which is defined as the publication or distribution of material that is abusive and intended to cause ethnic hatred. If you are the victim of hate speech, you have the right to file a complaint with the National Cohesion and Integrity Commission.

Article 27 of the Constitution grants everyone the right to equality and freedom from discrimination of any kind. If you are experiencing any type of harassment that involves discrimination on the basis of your race and/or gender, you (or your legal representative) have the right to file a constitutional petition with the High Court requesting that they enforce this right.

What do I do if the harassment is committed by someone located in another country?

An offence under the Computer Misuse and Cyber Crimes Act, No. 5 of 2018, (CMCA) which is committed outside Kenya would be deemed to have been committed in Kenya if the person committing the act or omission is a citizen of Kenya or ordinarily residing in Kenya; and the act or omission is committed against a citizen of Kenya. In this instance, authorities in Kenya would have the right under the CMCA to enforce its provisions regardless of whether the offence was committed outside Kenya.

REUTERS/Andrew Kelly

What do I do as a media organisation, or an employee oF a media organisation, experiencing online harassment?

As a media organisation, you can also be a victim of online harassment. Examples of online harassment that a media organisation can suffer include – but are not limited to – defamation, threats, and intimidation. If your organisation is the victim of criminal online harassment, you have the right to file a report with the police.

If a journalist employee is the victim of online harassment, your options to assist them in seeking legal recourse are unfortunately limited. Most online harassment claims need to be instituted by the journalist themselves. Newsrooms are encouraged to make guidance available that informs employees of legal recourse options in the event that they experience such harassment, and to provide them with support to effectively gather evidence and, if they wish, initiate a complaint.

Where else can I find help?

The National Kenya Computer Incident Response Team detects, prevents and responds to various cyber threats targeted at the country. The National KE-CIRT/CC commenced round-the-clock operations since August 2017 and currently runs operations on a 24/7 basis.

Review your understanding

This short optional questionnaire can be used to assess your knowledge about online harassment laws in Kenya after reading this page. 

Download the guide

Download the Know Your Rights Guide for Kenya

Some crimes can be prosecuted but require the victim (or a representative of the victim) to file a criminal complaint in order to begin prosecution proceedings against the perpetrator(s). If you are a victim of such a crime (or the representative of one) you have six months from the time the perpetrator(s) are identified to file a criminal complaint and request that they be prosecuted.

Some crimes require the government, represented by the Public Prosecutor’s Office, to prosecute the alleged perpetrator(s) whether or not the victim presses charges. Crimes of this nature are subjected to what is called unconditional public prosecution. If you are a victim of a crime subjected to unconditional public prosecution and have reported the crime, no further immediate action is required on your part in order to ensure the perpetrator(s) are prosecuted.

Some crimes give both the government and the victim the option to press charges against the perpetrator(s). They do not, however, require the government to step in and prosecute as crimes subject to unconditional public prosecution do. If you are a victim of such a crime, you have six months from the date it is committed against you to request the state pursue charges against the perpetrator(s). The government, represented by the Public Prosecutor’s Office, also has six months to file charges against alleged perpetrator(s) whether or not the victim requests it. If you are a victim of a crime that is subject to conditioned public prosecution and wish to see the perpetrator(s) prosecuted, you will need to be proactive in requesting that charges be filed and/or following up with the Public Prosecutor’s Office to ensure they file charges and begin prosecution proceedings.

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