THE DIGITAL DILEMMA: NAVIGATING THE THIN LINE BETWEEN FREEDOM OF EXPRESSION AND CYBERBULLYING
"Give
me the liberty to know, to utter, and to argue freely according to
conscience,
above all liberties. -John Milton[1]
Introduction
The
internet is without a doubt one of the most useful inventions of our time. It
enables a worldwide network of relationships. With its invention, it was
anticipated that the internet would level the playing field for sharing
knowledge and community building among individuals, corporations, other
organisations, and governments alike.[2]
However, it is a fact that many people have misused it for destructive reasons
resulting in victimization of several people in the process.[3]
This has resulted in a common phenomenon of cyber bullying under the guise of
people expressing themselves. Although freedom of expression is a fundamental
right that ought to be safeguarded, the pertinent question arises that can it
occasionally transition into cyberbullying? Enshrined within Article 33 of
Kenya’s 2010 Constitution,[4]
freedom of expression guarantees individuals the freedom to seek, receive, and
impart information or ideas. It complements other rights by allowing every
person to express their thoughts, beliefs, and opinions freely. However, in the
era of digital technology, the notion of freedom of expression has become
closely linked with the problem of cyberbullying.[5] To
mitigate this, the restrictions on internet be more stringent and the execution
be done in a way that is fruitful or valuable and not detrimental or injurious.
While it is needful that a balance should be maintained between online freedom
of speech and cyberspace the pertinent question is where should the skeletal be
traced in a bid to strike a balance? According to an initiative started by the
government of United States of America "Cyberbullying is bullying that
takes place over digital devices like cell phones, computers, and tablets.
Cyberbullying can occur through SMS, Text, and apps, or online in social media,
forums, or gaming where people can view, participate in, or share content.
Cyberbullying includes sending, posting, or sharing negative, harmful, false,
or mean content about someone else. It can include sharing personal or private
information about someone else causing embarrassment or humiliation. Some
cyberbullying crosses the line into unlawful or criminal behavior.[6]
Like any other form of bullying, cyber-bullying also has detrimental effects
and can lead to depression, unwillingness to attend school, self-esteem
problems and in extreme cases, it can even lead to substance abuse or suicide.[7] In
2017, a Facebook user succumbed to the cyber bulling on the internet and
committed suicide.[8]
Such incidences highlight the concerns raised on the urgent need to address the
negative consequences of online behaviour and the urgent need for awareness and
action to combat it. This article will delve into the dynamics between freedom
of expression and cyber harassment and cyberbullying, exploring the challenges
they present and the implications they hold for the future of the internet and
society as a whole.
Understanding freedom of expression
Freedom
of expression stands as one of the fundamental liberties crucial for
constructing a democratic, social, and political framework.[9] To
understand this right, some argue that the ability to exercise free
will is inherent to humanity. This includes the ability to make autonomous
decisions and take action, without being compelled to.[10] Freedom
of expression fosters personal liberty by providing a platform for the
dissemination of ideas and views. It also provides a broad set of beliefs and
values from which individuals can choose while developing their viewpoints,
with no involvement from political authority.
Legal
scholars point out that freedom of speech and expression is widely recognised
as a basic human right, even in cultures where its practical application is
limited and tolerance for opposing viewpoints is low.[11]
This widespread recognition across countries, especially in the context of
the African continent, suggests that concerns with freedom of
expression originate less from a lack of recognition in constitutions and more
from governmental indifference and disrespect for constitutional principles.
This implies that, while constitutions typically provide this freedom,
governments routinely violate it by consistently disregarding and scorn for
fundamental values. Freedom of expression is not only a cornerstone of
democracy, but also the foundation on which other rights and freedoms are
founded. This basic freedom allows people to express themselves freely without
fear of censorship or repercussions, promoting the practice of different human
rights. International treaties highlight the critical relevance of freedom of
expression. These include, including the United Nations Declaration of Human
Rights (UDHR),[12]the
International Convention on Civil and Political Rights (ICCPR),[13]
and the African Charter on Human and People's Rights (the Banjul Charter),[14] recognise
this freedom. In view of the domestication of international law by virtue of
article 2(5) of the Constitution of Kenya, 2010 these international instruments
form part of the law in Kenya.
The
Constitution of Kenya, 2010, in Article 33(1), ensures the right to freedom of
expression. This encompasses the freedom to seek, receive, or share information
and ideas, artistic creativity, academic freedom, and freedom of scientific
research.[15]
However, it's important to note that constitutional rights, including freedom
of expression, are subject to the laws of the land and other human rights. This
means that while individuals have the right to express themselves freely, there
are limitations and regulations imposed by law and other rights outlined in the
Constitution. Article 33(2) of the Constitution of Kenya delineates these
limitations, which include forms of expression that infringe upon the rights or
reputation of others, perpetuate discrimination or marginalization against
certain groups, or provoke ethnic hatred or tensions leading to potential
violence.[16]
This stance aligns with the rationale behind laws addressing cyber harassment
and cyber bullying.[17]
For
example, In the case of Bloggers Association
of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa &
another (Interested Parties) [2020] eKLR, the constitutionality of certain
sections of the Computer Misuse and Cybercrimes Act, 2018 (CMCA), particularly
section 27 addressing cyber harassment, was upheld. The honorable judge argued
in the ruling that, apart from the exceptions outlined in Article 33 of the
Constitution, limitations on freedom of expression can be permitted under
Article 24 if they serve a legitimate purpose and follow legal procedures. The
judge further asserted that the objective of Section 27, which aims to address
socially harmful conduct such as harassment, is valid within the context of
pursuing a legitimate social aim. This decision appears to be reasonable as
criminalizing cyber harassment aligns with pursuing a legitimate societal
objective. BAKE, the petitioner, contended that Article 33 of the Constitution
lists exceptions to freedom of expression, and since cyber harassment is not
explicitly included, the limitation imposed by the CMCA is unconstitutional.
They argued that cyber harassment is akin to Section 29 of the Kenya
Information and Communications Act (KICA), drawing parallels in the case of Geoffrey Andare v Attorney General & 2
others [2016] eKLR to support their argument.
In
the case of Geoffrey Andare case,[18]Justice
Ngugi ruled that Section 29 of the Kenya Information and Communications Act
(Cap. 411A) (KICA), which pertains to the improper use of a licensed
communications system, was unconstitutional. Justice Ngugi invalidated Section
29 in the Geoffrey Andare case
because of its broad scope, arguing that its ambiguous language and reliance on
subjective interpretation could potentially stifle freedom of expression.[19]
Section 29 of the KICA outlines that anyone who, through a licensed
telecommunications system, sends a message or material that is grossly
offensive, indecent, obscene, or menacing, or sends a false message with the
intent of causing annoyance, inconvenience, or anxiety to another person,
commits an offense.[20]
The penalty for such an offense is a fine not exceeding fifty thousand
shillings, imprisonment for a term not exceeding three months, or both.
In
the BAKE case, Justice Makau held
that the offences of cyber-harassment and improper use of a licensed
communications system existed separately due to the scope of the statute. The
CMCA applies to anybody who uses a computer system, but
the KICA only applies to licensees working within its regulatory
framework.[21]
Unpacking cyberbullying
Cyber
bullying can be said to be ‘bullying[22]
that takes place over digital devices like cell phones, computers, and
tablets.’[23]
Cyberbullying is difficult to describe as it can take several forms and occur
in various settings. Willard defines cyberbullying as flaming, harassment,
denigration, impersonation, outing, and trickery.[24]
Cyberbullying, therefore, involves online harassment that can occur via SMS,
text messages, and programmes, as well as on social media platforms, forums, or
gaming environments where people can see, interact with, or share material.
This sort of harassment includes transmitting, distributing, or disseminating
negative, damaging, inaccurate, or derogatory information about another person.
It may also entail disclosing personal or intimate information about another
individual, resulting in emotions of embarrassment or shame. In some
circumstances, cyberbullying can grow into illegal or criminal behaviour,
crossing legal lines and potentially leading to legal ramifications.[25]
According
to the European Institute for Gender Equality, cyber harassment refers to
hostile online communication, including emails and SMS.[26]
Offensive communication is purposely humiliating, annoying, attacking,
threatening, alarming, offending, or verbally abusing another. Harassment,
generally, has long been recognised as an offence, with legal remedies
available in a variety of jurisdictions. The rise of the ‘internet society’ has
heightened worries about harassment[27]
Cyber
harassment frequently follows gendered patterns, with issues such as revenge
pornography[28]
and cyberbullying being more widespread among women. To illustrate this point,
in 2022 A Kenyan court ordered Weiss Marvin Valentin, a German athlete, to pay
a Ksh. 70,000 fine or serve a six-month prison sentence for cyber
harassment in Iten, Elgeyo Marakwet County. Valentin sent unsettling text and
social media messages to a Kenyan female athlete, making her anxious. He
attempted to have a romantic relationship with her, but his attempts were
turned down. Despite warnings from other athletes and the coach about his
behaviour, Valentin continued to pursue the athlete. He pled convicted to four
counts of harassment.[29]
To
address cyber harassment, two themes have emerged: legislation targeting the
issue, and the view that it is merely a reflection of offline behaviour,
resulting in the application of existing laws. In the Kenyan context,
legislators have attempted to create legislation to curb this menace. Section
27 of the CMCA states that:
(1) A person who, individually or
with other persons, wilfully communicates, either directly or indirectly, with
another person or anyone known to that person commits an offence, if they know
or ought to know that their conduct—
(a) is likely to cause those
persons apprehension or fear of violence to them or damage or loss on that
persons' property; or
(b) detrimentally affects that
person; or
(c) is in whole or part, of an
indecent or grossly offensive nature and affects the person.
(2) A person who commits an offence
under subsection (1) is liable, on conviction, to a fine not exceeding twenty
million shillings or to imprisonment for a term not exceeding ten years, or to
both.
Before
the enactment of the CMCA, addressing bullying or harassment issues required
one to go through a tortious action or civil suit, such as defamation. The
Computer and Cybercrimes Bill brought with it new hope that cybercrimes such as
cyberbullying will be dealt with in a just and effective manner. Unfortunately,
critics of the CMCA argue that the Act sets a low threshold for the offence.[30]
Lowering the threshold makes it easier for persons to be punished for small
breaches, perhaps leading to unfair outcomes and impeding freedom of expression.
They further claim that the threat of harsh fines and ambiguous language in the
law may discourage people from openly expressing themselves, resulting in
self-censorship and suppression of public debate. Furthermore, the law’s broad
applicability to numerous types of communication, including possibly innocent
or well-intentioned speech, renders it ineffective and vulnerable to misuse by
authorities.
Tracing the skeletal
There
is need to navigate the delicate balance between the unfettered expression of
ideas and the protection of individuals from harmful behavior, particularly in
the digital realm. While some argue for complete freedom of expression, there
are obstacles to consider; others recognize that certain forms of expression,
such as cyberbullying and harassment, may not warrant the same level of
protection. It's crucial to find the right equilibrium between the two issues
while ensuring that the right to free speech isn't misused to justify harmful
actions, and that measures against cyberbullying don't excessively limit this
freedom. Often, this necessitates an individual examination of each situation.
According to Lawrence Lessig, a balance should be maintained between online
freedom of speech and cyberspace.[31]
He also talks about the necessity of internet regulation, which needs to come
from within. He further argues for a greater role of the government in the
regulation of cyberspace.[32]In
Kenya, constitutional freedoms are subject to limitations outlined in the law.
Article 24 of the Constitution establishes criteria for restricting freedom of
speech, emphasizing that limitations must be legally prescribed, serve a
legitimate purpose in a democratic society, and be the least restrictive means
possible.[33]
This balanced approach seeks to safeguard both freedom of expression and
individuals’ rights to protection from harm, particularly in online spaces
where the line between speech and harassment can blur. As legislation evolves
to address cybercrimes like cyberbullying, it is essential to strike a balance
that preserves free expression while effectively combating harmful behavior in
the digital age.
Conclusion
The
complications with regulating online behavior, particularly those related to freedom
of expression, point out the obstacles that governments and regulatory
agencies face. The cyberspace's unique characteristics, such as competing
sovereignties and a lack of clear physical analogues, is a testament
to the difficulties of formulating and implementing norms in this digital
domain.[34]
While regulation seeks to strike a balance between social responsibility and
free expression, fostering accountability and responsiveness to public
interests, it must also follow recognised criteria of legality, necessity,
proportionality, and legitimacy, as emphasised in David Kaye's report to the
OHCHR.[35]
As we traverse the bounds of freedom of speech online, it is critical to retain
a human rights-based approach that respects the inherent dignity and rights of
all persons, while addressing posed by the use of the internet.
[1] John Milton, AREOPAGITICA (John W. Hales ed, 1st edn 1875) 50.
[2]John Perry Barlow, ‘A Declaration of
the Independence of Cyberspace’ (1996) <https://www.eff.org/cyberspace-independence> accessed 2 March 2024.
[3] Taruna
Nayyar, ‘Cyber Bullying and Online Freedom of Speech and Expression in India’
(2021) 4 Issue 4 Int’l JL Mgmt. & Human. 2639.
[4] Constitution of Kenya, 2010, Art 33.
[5] Kevin,
‘Balancing Freedom of Expression and Cyberbullying: Exploring the Boundaries’ (De
Rebus, 31 July 2023) https://www.derebus.org.za/balancing-freedom-of-expression-and-cyberbullying-exploring-the-boundaries/
accessed 8 March 2024.
[6] ‘What is Cyber bullying’, <https://www.stopbullying.gov/cyberbullying/what-is-it/index.html>
accessed on 8 March 2024.
[7] Dr. Savita Srivastava, ‘Pessimistic
Side of Information & Communication Technology: Cyber Bullying Legislature
Laws, International Journal of Advances in Computer Science and Technology’ <https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.303.4996&rep=rep1&type=pdf>
accessed 8 March 2024.
[8] Elvis Ondieki, ‘Cyber bullying linked
to woman’s suicide in Nairobi’ Nairobi
News (Nairobi, 21 May 2017)<https://nairobinews.nation.africa/cyber-bullying-womans-suicide/>accessed 2 March 2024.
[9]Agnes Callamard and Lee Bollinger
(eds), Regardless of frontiers: global
freedom of expression in a troubled world (Columbia University Press 2021).
[10]Joaquín Rodríguez-Toubes Muñiz,
‘Freedom of expression from the standpoint of JS Mill’s On Liberty’(2007) 16(2)Télos75, 77 <https://minerva.usc.es/xmlui/bitstream/handle/10347/5395/76-96.pdf?sequence=1&isAllowed=y> accessed 2 March 2024. John
Stuart Mill's primary and overarching argument for freedom of expression
originates from a comprehensive advocacy for individualism and personal
independence.
[11]Willem Johannes van Vollenhoven,
‘Freedom of Expression’ in Wyk D.V. et.al (eds) Rights and Constitutionalism: The New South African Legal Order (Oxford,
Clarendon Press, 2005),
[12]The UN General Assembly ratified the
UDHR in 1948, and Article 19 guarantees freedom of expression. It claims that
every individual has the right to have opinions free of interference and to
actively participate in dissemination and receipt of information and ideas via
various media. However, it recognises that this right may be subject to
constraints that are essential to protect the rights or reputation of others,
as well as to maintain national security, public order, or public health.
[13] ICCPR was adopted in 1966 by the UN
General Assembly and it guarantees freedom of speech and expression. It asserts
individual freedom to hold opinions without interference, seek, receive, and
impart information through any media. However, these rights come with certain
duties and responsibilities, subject to restrictions if necessary for maintaining
peace, national security, public order, or public health. Any such restrictions
or limits must be legal and required for the objectives stated above. Countries
that have ratified the ICCPR must uphold and implement its provisions through
national laws.
[14] The ACHPR was adopted on June
27, 1981, and went into force on October 21, 1986. It was adopted by
African heads of state to reaffirm their commitment to the principles of human
and peoples' rights and freedoms as outlined in instruments issued by
organisations such as the Organisation of African Unity, the Movement of
Non-Aligned Countries, and the UN. The preamble of the charter promotes these
rights, notably Article 9, which details the right to
freedom of expression. This article stated that every individual
has the freedom to obtain information as well as express and share
their ideas within the confines of the law.
[15] Constitution of Kenya, 2010, Laws of
Kenya, Art 33(1)
[16] ibid Art 33(2).
[17] Also other laws dealing with
defamation, hate speech, as well as incitement to violence.
[18]Geoffrey
Andare v Attorney General & 2 others [2016] eKLR.
[19] ibid para 95, 102, 106.
[20] Kenya Information and Communications
Act, Chapter 411A, Laws of Kenya, s 29.
[21]Bloggers
Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East
Africa & another (Interested Parties) [2020] eKLR para 71.
[22] Bullying is characterised as
persistent brutality, either psychological or physical, perpetrated by a more powerful
individual. The important component is a power imbalance, which allows for such
atrocities. This is according to Ken Rigby, ‘What Children Tell Us About
Bullying in School’ (1997) 22 (2) Cambridge University Press.
[23]Stopbullying.gov, ‘What is cyberbullying,’<https://www.stopbullying.gov/cyberbullying/what-is-it> accessed 3 March 2024.
[24] Robin Kowalski, ‘Cyberbullying’ in The Routledge international handbook of
human aggression, (Routledge 2018) 132.
[25]Stopbullying.gov (n 17).
[26]Eleonora Esposito, ‘Cyber Violence
against Women and Girls. Key terms and Concepts’ (2022) European Institute for
Gender Equality<https://eige.europa.eu/sites/default/files/cyber_violence_against_women_and_girls_key_terms_and_concepts.pdf> accessed 3 March 2024.
[27]Sylvia Wanjira, ‘Sexual Harassment In
The Kenyan Cyberspace’ (KICANet, 17 April 2023) <https://www.kictanet.or.ke/sexual-harassment-in-the-kenyan-cyberspace/> accessed 3 March 2024.
[28]Mugambi Laibuta, ‘The revenge porn
dilemma,’ (laibuta.com, 2019) <www.laibuta.com/human-rights/therevenge-porn-dilemma/>
accessed 3 March 2024.
[29] Fred Kibor, ‘Convicted German athlete
set to leave the country’ Nation Africa
(20 May 2022) <https://nation.africa/kenya/sports/athletics/weiss-marvin-valentin-convicted-athlete-leave-the-country-3821780> accessed 3 March 2024.
[30] An international organization
advocating for freedom of speech expressed concern about the phrasing of the
clause, arguing that criteria like "apprehension or fear of violence"
establish a minimal threshold for criminal behavior and create potential
avenues for political repression. This was as stated in Abdulmalik Sugow,
Margaret Zalo, and Isaac Rutenberg, ‘Appraising the Impact of Kenya’s
Cyber-Harassment Law on the Freedom of Expression’ (2021) 1 (1) Journal of
Intellectual Property and Information Technology Law (JIPIT) 91, 102.
[31] Lawrence Lessig, "Code and Other
laws of Cyberspace", 1998 https://web.cs.dal.ca/-abrodsky/7301/re
adings/Le04.pdf (Last accessed on 8th March 2024)
[32] ibid
[33] Constitution of Kenya, 2010, Laws of
Kenya, Art 24(1) and 24(2).
[34] Lawrence Lessig, ‘Code Is Law. On
Liberty in Cyberspace’ Harvard magazine (1, January 2000) <https://www.harvardmagazine.com/2000/01/code-is-law-html> accessed 4 March 2024.
Lawrence Lessig highlights the
challenges governments encounter in regulating internet behavior, attributing
them to the architecture of the internet itself. He states that defining and
enforcing rules on the internet is complicated by the existence of competing
sovereignties and the absence of direct parallels to physical-world objects and
actions. Lessig argues that effective regulation requires balancing free speech
with social responsibility, as it encourages individuals to be accountable for
their actions and responsive to public interests.
[35] David Kaye, ‘Report of the Special
Rapporteur on the promotion and protection of the right to freedom of opinion
and expression’ (A/HRC/38/35) para 7 <https://undocs.org/en/A/
HRC/38/35>
accessed 4 March 2024.
In the report submitted to the Office
of the High Commissioner for Human Rights (OHCHR) concerning the regulation of
user-generated online content, David Kaye, the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression,
emphasized the importance of adopting a human rights-centered approach to
moderating such content. Kaye emphasized that any restrictions on freedom of
expression should adhere to established criteria, including legality,
necessity, proportionality, and legitimacy.
*Graci Ndungu is a third year law
Student at the University of Nairobi. She also serves as the Research Editor at
the University of Nairobi Law Journal.
**Harrison Otieno is a final year law
student at the University of Nairobi. He also serves as an Associate Editor at
the University of Nairobi Law Journal.
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