Digital activism: Delicate balance in public officials' right to privacy

A protester records a video using his smartphone during the anti-Finance Bill 2024 protest on Nairobi’s Koinange Street on June 20, 2024.

Photo credit: Wilfred Nyangaresi | Nation Media Group

Since early last week, Kenya's Members of Parliament (MPs) have been inundated by phone calls, SMS and WhatsApp messages from Kenyans pushing for the shoot-down of the unpopular Finance Bill, 2024.

It all started when young Kenyans, agitated by various proposals that would see taxes on various goods and services increase drastically, leaked the MPs' contacts in a new trend of digital activism that has spilt opinions as to where the privacy rights of public officials.

Multiple legislators lamented publicly about being overwhelmed by the massive number of calls and text messages from citizens as they urged them to shoot down the punitive tax bill.

While some quarters termed it an infringement of the individual right to privacy, others fronted the argument that MPs are public officials whose role in the legislative proposal was a matter of public interest that called for the highest possible level of transparency.

Legal position

Under the Data Protection Act, 2019, every individual in Kenya has the right to privacy and protection of their personal data. The Act defines personal data as any information relating to an identified or identifiable natural person.

According to tech lawyer Silas Owiti, privacy regarding holders of public office remains a grey area as the citizenry will oftentimes seek to access public information or submit petitions directly to the officials.

“Sharing a politician's contact information online without their consent could be considered a breach of their privacy rights under the Data Protection Act. However, the public interest aspect comes into play when considering the role of politicians as public officials,” states Owiti.

“The transparency and accountability aspect of their positions might necessitate some level of public access to their contact information, albeit in a controlled and regulated manner.”

Technology advocate Robert Muoka draws a contrast between the Data Act and the constitutional right of access to information held by the State, including information held by another person and required for the exercise or protection of any right or fundamental freedom.

“The law generally leans towards protecting the privacy of individuals, including politicians, unless there is a compelling public interest justification for sharing such information. The balance between transparency and privacy is delicate, and each case may need to be assessed on its merits,” he opines.

Legal resource

“Public officials have a right to privacy as well and as much as that right can be limited in certain circumstances such as criminal investigations, pursuant to court orders etc - it would be unfair to say that their personal information and their families’ personal information should be leaked,” he adds noting that affected politicians have clear legal avenues for recourse.

Last week, the Office of the Data Protection Commissioner (ODPC) added its voice into the debate, warning social media users against the continued sharing of personal information terming it a breach of regulations.

“In view of the foregoing, the Office wishes to advise members of the public to refrain from further sharing of personal information which infringes on individuals’ rights to privacy,” said ODPC in a statement.

Mr Owiti says that though it would be practically impossible for a politician to sue every citizen who shared their contact information without consent, the more viable approach would be to file a complaint with the ODPC or seek a court injunction to prevent further dissemination of personal information.

“This would address the issue at a systemic level rather than targeting each individual responsible for sharing the contact information,” he says.

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