The Law Society of Kenya’s “Social Media Regulations” 2020: Contextual Review Within the Profession - By James Gitau

Introduction

Change, the only constant phenomena on earth, attempted to make headway in the legal profession in Kenya in 2020, in the context of Advocates’ conduct online. This was after the Law Society of Kenya’s Ethics Committee shared the Draft Advocates Social Media Code for public participation. The reception of the regulations by members of the society was quite telling of the “how-not-to-go-about” social media regulation. In the paragraphs below, this feature shall attempt to dissect the issues, from a broad sense.

On the 17^th of December, 2010, Mohammed Bouaziz, a young Tunisian, doused himself in petrol and set himself alight.[1] This was in protest to extortion from police, in a country where president Zine El Abidine Ben Ali had ruled for two decades. This incident went viral on social media, leading to huge protests. A month later, Ben Ali was ousted from power leading the country to democracy, ostensibly as a result of the actions of Bouaziz.

In 2016, there was a perpetuation of genocide against the Rohingya Muslims of Myanmar. The United Nations commissioned an independent Fact-Finding Mission (FFM) whose report noted that social media, especially Facebook, was used by the government of Myanmar to incite violence against the Rohingya Muslims,[2] bringing to mind memories of the Rwandan genocide in the 1990s, where radio was used similarly.

The two scenarios above demonstrate just how much of an impact social media can have in our lives, both positive and negative. It is then the responsibility of any reasonable body to ensure that the use of social media is regulated to avoid the negative impacts and better facilitate the positive outcomes. Such regulations do exist, with the first line of defence being the various social media platforms’ policies.

Challenges in self-regulation

Due to the dynamic and ever-changing nature of social media or blogosphere, numerous regulatory challenges have emerged. Several gaps have consistently been identified, leading to proposals for self-regulation, as remedial action for the said gaps.

Self-regulation has worked to a large extent, albeit only for a short while, and not any longer. For instance, the use of Facebook to perpetuate hate speech in Myanmar along with Facebook’s slow response to curbing this hate speech, is a glaring gap, as noted by Facebook’s then Chief Operations Officer, Sheryl Sandberg. She was briefing a Senate Intelligence Committee in September 2018.[3] This was not an isolated incident of manipulation of the Facebook platform for malicious intent.

In 2016, it was widely reported that Facebook was used to interfere with the presidential elections of the United States of America (USA) through numerous disinformation campaigns. This was not unique to the USA as the world came to learn, much to everyone’s chagrin, through an exposé on Cambridge Analytica, in early 2018.[4] The company obtained information from Facebook and in turn used it to influence the political views of millions of Facebook users around the world.

Early 2020, parents of children who use Tik Tok, were up in arms over increased incidents of predators contacting their children via the platform. [5] In the United Kingdom, there has been a surge in the drug trade on social media, with some of these drugs getting to the hands of children. [6]

In Kenya, a shocking story hit news headlines in late 2020, when forty-four (44) underage girls were found partying in a house in mountain view, Nairobi, indulging in a cocktail of drugs including bhang. Reports indicated that the underage girls communicated and planned with their hosts through WhatsApp.[7]

The list of these shortcomings in self-regulation is endless. The same can be said of the… Click this link to continue reading in the March 2021 Edition.