Kenya's Court of Appeal Invalidates Sections of Cyber Law Targeting 'Fake News'

The Court of Appeal in Kenya has ruled against specific sections of the Computer Misuse and Cybercrimes Act that penalized the dissemination of 'fake news,' labeling them excessively broad and prone to misuse against innocent individuals. The decision was welcomed as a significant victory for press freedom and freedom of expression by the Committee to Protect Journalists (CPJ).

The Bloggers Association of Kenya (BAKE) had challenged 26 provisions of the Computer Misuse and Cybercrimes Act, 2018, asserting that these sections were ambiguous, lacked a definitive requirement for criminal intent, and violated constitutional protections concerning expression and privacy rights.

The ruling announced on Friday has been celebrated by many, including CPJ Africa Program Coordinator Muthoki Mumo, who stated, "The Court of Appeal’s decision to invalidate the laws that criminalize the publication of false news is an important win for the media. These parts of the cybercrime law have often been exploited by those in power to suppress unfavorable reporting."

The court specifically criticized Sections 22 and 23 for being general and indiscriminate, describing them as "akin to unguided missiles" which could ensnare innocent parties and indicated the difficulty in proving such offenses.

Despite the annulment of these particular provisions, the court upheld the remaining sections of the law. It dismissed claims that these sections permitted excessive governmental powers concerning surveillance, search, and seizures. Furthermore, Section 27, which labels "cyber harassment" a crime, was maintained, with the bench ruling that its provisions were clear and the petitioners had not sufficiently shown how it impinges on free speech.

Section 27 authorizes penalties of up to 10 years in imprisonment for any communications deemed as having a detrimental effect or being grossly offensive to the recipient.

Mercy Mutemi, the attorney representing BAKE, characterized the ruling as a "vindication" but cautioned that the struggle for safeguarding privacy rights is far from over. "We strongly believe in the sanctity of the right to privacy," she stated.

Peter Mwita, a journalist from Al Shifaa Media, is due back in court in April after being charged with cyber harassment in February over a misdirected WhatsApp message.