Gap in Kenyan law stokes hate speech on social media

Hate speech has become an open conversation on social media with users hiding under anonymity to push out vile comments.

The government and tech companies have been left stumbling over themselves to control the messages which may spark violence as the country heads to the General Election in less than a month.

Less than a fortnight ago, new guidelines on social media use were drafted, with a proposed fine of Sh1 million or a jail term of five years for Kenyans sharing inflammatory content via Facebook, Twitter and WhatsApp this election season.

However, even with the guidelines by social networking sites and the local National Cohesion and Integration Act individuals still use loopholes in the system to propagate inflammatory messages.

For example, Facebook employs content moderators for its pages, however, with over 2,000 languages and dialects on the site, it is not possible for all hateful content to be flagged.

“The proportion of users on Facebook compared to those who report content that should not be on Facebook is very small,” says Ebele Okobi, Public Policy Director Africa, Facebook. In addition, some users put up fake accounts to post threats and inflammatory comment, hiding behind anonymity to get off without being prosecuted.

“Hate speech for Facebook is content that attacks individuals based on actual or perceived race, ethnicity, national origin, religion, sex, gender or gender identity, sexual orientation, disability or disease,” said Ms Okobi.

This creates the need for users to play their role in prevention and stopping hate crimes on social networking and messaging sites.

“There are many things that people feel that the government is responsible for. I have people calling me to have stuff pulled down,” said ICT Cabinet Secretary Joe Mucheru.

According to Mr Mucheru, social networking sites such as Facebook and YouTube have a responsibility for the content on their pages.

Germany passed a controversial law which fines social media companies up to Sh5.9 billion (€50 million) for failing to pull down hate speech.

The sites are also required to submit public reports on how many posts were flagged and how many were removed under the law that comes into force in October.

In Kenya, there is no law on the responsibility of a site on content posted on it, only individuals are targeted.

Early last year, a video flagged by the Kenya Film Classification Board (KFCB) as inappropriate for promoting gay relationships sparked a tussle between the board and Google. According to the KFCB chair, the board submitted a legal request to have the video pulled down. YouTube added a disclaimer on the video indicating that it had been flagged as inappropriate to some audiences but did not take it down.

Some users have experienced similar challenges on other sites where content is flagged as inappropriate with no other action taken. According to Ms Okobi, the guidelines on hate speech and inappropriate content are global.

This aspect cuts across most sites, meaning that content that may be generally accepted across the world but offends one or two outlier countries may not be taken down as the guidelines do not take into consideration individual cultural and country practices.

Most of these sites require you to contact the user who posted the content to take it down of flag the content and report it under the reasons listed to have the company pull it down.

Further, an aggrieved individual in Kenya is required to report the issue to the Directorate of Criminal Investigations for an investigation to be launched and a case filed.

“Repeat offenders on the site have accounts deactivated or are placed under check points (where they cannot access their accounts for a period of time) or in very severe instances, they are permanently removed from the site,” said Ms Okobi.