My neighbour called me a witch, ruined my business…

Hi Vivian,

I own an online clothing business with social media pages on Instagram and Facebook. Last year, our Nyumba Kumi chairman asked all business owners to join the estate’s WhatsApp group and freely post various items on sale. When I began to do so, my neighbour sent comments to the group, calling me a witch and that no one should trust my goods. He went ahead to call various people in the neighbourhood, causing them fear by making them believe I am a witch. I had a pool of loyal customers; however, I have lost them all. What should I do?

Annette Kibuba,
Voi

Dear Annette,

In light of the recent celebration of International Women’s Day, whose theme was ‘DigitALL: Innovation and technology for gender equality’, your question could not have come at a better time. Various narratives in the campaigns realised the emerging online crimes that threaten to take away the safe and secure spaces that should exist online. In your case, the offence can be termed cyber-harassment.

Attempts have been made to define cyber-harassment. There have generally been trends towards either of two approaches. In both, cyber-harassment refers to offensive communication or conduct that takes place online.

According to the UN Office on Drugs and Crime, the offence intentionally humiliates, annoys, attacks, threatens, alarms and offends.
Computer misuse and offences committed in cyberspace are different from ordinary crimes and, in their very nature, unique.

In view of that, investigative procedures have to be conducted. Therefore, recording your statement with the police is the best place to begin.
In the afternoon sitting in the National Assembly’s Hansard of March 21, 2018, it was mentioned the oft-cited objective of cyber-harassment law is valid in light of the pervasive nature of cyberspace, and the effects of online harassment on people.

Should the evidence be sufficient, the perpetrator will be charged under the Computer Misuse and Cybercrimes Act.

The law makes it an offence, in Section 27, for a person to communicate with another a message that they know or ought to know would cause the recipient fear; is indecent or offensive in nature; or would detrimentally affect the recipient. This offence carries a penalty of either a Sh20 million fine or a 10-year jail term or—discretionarily—both.

However, critics of this segment of the law have highlighted its wording appears to exclude a number of offences that would count as cyber-harassment such as cyber-stalking, doxing or impersonation. Others have also mentioned that it suppresses the purpose of the freedom of expression found in the Constitution.

However, when the Constitutional Court was faced with this question, it found that the Act is valid and does not violate, infringe or threaten fundamental rights and freedom under Article 24 of the Constitution.

Vivian

The writer is an Advocate of the High Court of Kenya and an award-winning civil society lawyer; [email protected]