Meta case sets up multinationals for Kenya suitsTuesday February 07 2023
A judge on Monday ruled that social media giant Meta — the owner of Facebook, Instagram and WhatsApp — can be sued locally, opening a new front for multinationals registered outside the country to face suits in Kenyan courts.
A number of multinationals including Google and Nokia face suits in Kenya and the firms have been arguing that local courts do not have the jurisdiction to determine cases over foreign firms.
Justice Jacob Gakeri, however, in a ruling on Monday declined to strike out Meta Platforms Inc and Meta Platforms Ireland Ltd from a case filed by South African Daniel Motaung.
Lawyer Ndegwa Wambugu said the ruling creates a discourse although courts will still have to consider the issue of jurisdiction on a case-by-case basis.
“It (the case) somewhat opens the door but judges will have to determine matters on a case-by-case,” Mr Ndegwa said.
Meta signalled its intention to appeal the ruling.
Amnesty International executive director Irungu Houghton welcomed the decision, saying it is a significant step towards ensuring the authority of Kenyan courts in protecting and enforcing fundamental human rights.
“If the attempt by Meta Platforms Inc to avoid Kenyan justice had succeeded, it would have undermined the fundamental tenets of access to justice and equality under the law in favour of foreign privilege,” Mr Irungu said.
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He added that it is the first time that Meta Platforms Inc is being significantly subjected to a court of law in the global south.
The firm wanted to be removed from the case, arguing that Kenyan courts do not have jurisdiction to determine the case.
The social technology firms argued that being foreign corporate bodies registered in Delaware, US and Dublin, Ireland respectively, they are neither resident, domiciled nor trading in Kenya and that local courts do not, therefore, have jurisdiction over them.
The multinational also said Mr Motaung did not seek the permission of the court before filing the case and that he had no contractual relationship with Meta.
Mr Motaung’s lawyer, Mercy Mutemi, had opposed the application arguing that Facebook, along with other Meta products like WhatsApp and Instagram, is not only available in Kenya but “very widely used as the main platform for sharing social, political and economic content”.
She further said Facebook pays digital services tax to the Kenyan government on the advertising revenue it raises in the country.
She noted that Meta earned millions from political adverts posted and viewed by users in Kenya.
“Whilst the petitioner agrees that VAT is eventually borne by the consumer, the fact that VAT is charged to the 2nd and 3rd Respondents’ consumers in the first place confirms that the Respondent is actively doing business in Kenya and with Kenyan citizens,” Ms Mutemi said.
Mr Motaung filed the case last year, arguing that he and his colleagues suffered psychological injuries arising from repeated exposure to extremely disturbing, graphic violent content coupled with a toxic working environment.
The South African was employed as a moderator by Meta’s local outsourcing company, Samasource Kenya EPZ Ltd. He wants to be paid damages for the suffering he allegedly underwent in the six months he worked for the firm.
Meta has also argued that the South African failed to disclose to the court that he signed a non-disclosure agreement as a moderator, which barred him from giving evidence against the organisation.
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Mr Motaung claimed he and his colleagues were also subjected to extra working hours without compensation.
He claimed that a large number of moderators left Samasource in January 2021 and instead of hiring replacements, the firm forced the content moderators to cover additional hours.
He said he had no idea that he would spend his working hours looking at photos and videos of the most graphic and violent content.
“Content moderation at Facebook has been found to pose a risk to workers’ mental health. Because of their repeated exposure to gruesome content such as beheadings, torture, and rape, a significant number of Facebook moderators contract post-traumatic stress disorder (PTSD),” he said.
The case will be mentioned on March 8 for directions.