Social media platforms will lose for disregarding code of practice

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Barely a week after President William Ruto launched Kenya’s first data protection registration system on International Data Privacy Day, January 27, 2023, the world’s most influential social media platform faces its most important test of accountability and legitimacy in a Kenyan court.

Organised by the three-year-old independent Office of the Data Protection Commissioner, this annual conference held the attention of diverse stakeholders for two days. Fintechs, SMEs and multinational companies brushed shoulders with NGOs, professional associations, big data researchers and data privacy advocates and a wide range of government agencies.

The President’s speech powerfully articulated a clear vision for a digital transformed economy, citizens digital ID and a data protection regime that protects our privacy, builds global trust and confidence, and expands e-commerce within Kenya and with the the world. His remark that Kenya has leap frogged four decades of data governance legislation in Europe and North America with our Data Protection Act (2019), remains striking.

This coming week on February 6 and 8, Meta Inc and Facebook are before the Kenyan court on two separate cases. The first case relates to unsafe labour conditions of Sema company employees, several of them Kenyans, who moderate the content found on FaceBook.

Meta have argued that the Kenyan Constitution cannot be applied to corporate entities operating outside Kenya’s territory. Sema employee and petitioner Daniel Motaung has argued that Meta generates revenue from Kenyans through advertising, processes our personal information and data, pays digital service tax to the government and is therefore, bound by the Data Protection Act.

The second case, explored in an earlier column, relates to the massive failure of Meta Inc to protect Fisseha Tekle, the late Prof Meareg Amare and thousands of other Ethiopians from online hate speech during the recently ended two-year Tigray conflict.

The two cases pivot on the argument that Meta Platform Inc is a foreign company carrying on business in Kenya and must comply with the laws of Kenya.

East Africans are not unfamiliar to foreign companies. Just a century ago, European imperial companies and governments seized 150 million people and 15 million square kilometres, a fifth of the world’s land mass, across Africa and Asia.

In December 2022, FaceBook and WhatsApp had five billion users, thirty times twenty century imperialism. Imperialism or imperium, Latin for “to command”, is the extension into another territory without being accountable to local jurisdiction or people.

In this context, the resistance of social media platform owners to be held domestically accountable for the cost of doing business and the impact of their services is astonishing. It undermines the fundamental tenet of equality under the law in favour of foreign privilege.

Why should local companies like NCBA bank be held accountable when Meta Inc is not? If the Kenya Kwanza administration can commit to bring 5,000 public services online and comply with the Data Protection Act in six months, why can’t the platforms? Finally, can we really claim to be a sovereign nation if Kenyan courts have no integrity, independence and power to protect us?

There is a greater cost to social media platforms continuing to stick their webcams in the sand, to adapt that old ostrich analogy. Last week, the Council for Responsible Social Media released the Report on Disinformation and the Role of Big Tech in Kenya (2022). The report finds that 47 per cent of Kenyans have seen fake news on social media.

FaceBook (90 per cent) and WhatsApp (36 per cent) offer the most fake content and 69 per cent no longer trust the information they see on FaceBook. Seventy per cent of Kenyans now want the social media platforms to self-regulate or be regulated by government.

The trust tide is drifting away from social media platforms that do not protect the privacy and dignity of users and the public. The time for investing in new ways of business and codes of practice is now.

First published in The Standard on 04th February 2023. Kindly reproduced here with permission from The Standard.

Irũngũ Houghton is Amnesty International Kenya’s Executive Director and writes in his personal capacity. Email: [email protected]