A case pitting Kirinyaga Governor Anne Waiguru against global internet giant Google Incorporated failed to proceed yesterday due to unavailability of the presiding judge.
The case in which Governor Waiguru is seeking compensation for an allegedly defamatory story published by a Kenyan blogger seven years ago was scheduled to be mentioned before Justice Weldon Korir.
The governor was expected to inform the court whether she had furnished the California-based multinational with court papers so that it can file its response to her claims.
However, a notice by the court indicated the judge was away on weeklong official duties. The case will resume on June 22.
The case is expected to determine the level of responsibility and liability borne by online carriers such as Google with regard to materials and content posted by third-party users.
Alleged defamatory content
Ms Waiguru moved to court in July 2014, when she was the Cabinet secretary for Devolution and Planning, seeking orders to compel a blog site known as The Daily Post to pull down allegedly defamatory content.
She wants the global search engine held liable for the article alongside The Daily Post, which carried the allegedly defamatory story against her.
She believes Google Inc and its Kenyan subsidiary, Google Kenya Limited, are parties to the wrongs committed against her by the owners, authors and publishers of The Daily Post.
The governor claimed that sometime in April 2014, the blog, which was on a platform provided by Google Inc – specifically the content management system http://www.blogger.com/– published an article that was damaging to her reputation.
The article was published in the wake of the sacking of former Youth Development Fund chairman Gor Semelang’o by President Uhuru Kenyatta.
Right to seek legal redress
Ms Waiguru argues that having been aggrieved by the offending publication, she has a right to seek legal redress but she cannot exercise that right without the information held by Google Inc and Google Kenya Ltd regarding the owners, authors and publishers of The Daily Post, being provided.
She urged the court to issue an order compelling Google to disclose information such as the identity including name, address, telephone number, verification email address, access logs, any sign-up IP address and account status of persons who own, control, publish or post in the site known titled The Daily Post.
Ms Waiguru also urged the court to issue an order directing Google to remove or cause to be removed and permanently delete all defamatory statements concerning her published in the blog.
Further, she wants Google to be permanently restrained from allowing the search results from The Daily Post concerning her.
Google Kenya Ltd wanted to be struck out of the proceedings, arguing that it was not responsible for publication of the material as the platform is owned by Google Inc, which only pays the local operation a marketing fee through Google Ireland.
Separate from US firm
It stated that whereas it is a shareholder of Google Inc, that fact alone could not be a basis for concluding that the two legal entities are inextricably linked. The local firm further argued that it was separate from the US firm even though it handled marketing for and was a commercial agent of Google Inc.
But the court declined the request and ruled that the issue of responsibility over a post or publication made on the Google website is a novel one in Kenya and requires determination of complex issues of law in a proper factual context.
“Given the significance and complexity of the issue as well as the fact that it concerns a developing area of the law, striking out the second respondent at this stage of the proceedings would be clearly inappropriate,” said High Court judge Isaac Lenaola, who now sits at the Supreme Court.
He said Google Kenya Ltd stood to suffer no prejudice by participating in the proceedings.