Court of Appeal strikes down key sections of Cybercrime Act

The Court of Appeal has declared sections 22 and 23 of the Cybercrime Act as unconstitutional.

The said provisions pertain to the criminalisation of false or misleading information published online (Section 22) and the publication of false information likely to cause public panic, chaos, or harm to a person’s reputation (Section 23).

The ruling marks a victory, especially for bloggers, journalists, and social media users.

The appeal was brought by the Bloggers Association of Kenya (BAKE), challenging the constitutionality of sections of the Cybercrimes Act that carried heavy penalties for what was termed “false publications” on digital platforms.

The Court of Appeal partially upheld the appeal, finding that the provisions were overly broad and likely to ensnare innocent citizens, including individuals who forward or share content without verifying its accuracy.

“This appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being too broad to the extent that they are likely to net innocent persons,” the bench ruled.

In its ruling on Friday, the court emphasised that the contested provisions were akin to “unguided missiles,” sweeping up both those deliberately publishing false content and those unknowingly sharing it.

The judges noted that the law could potentially criminalise satire, opinion pieces, and minor journalistic inaccuracies, thereby infringing on the constitutional rights of freedom of expression and the media.

“The provisions are aimed at patrolling the social media space but risk penalising citizens who may not even be aware that the information they are publishing is false,” the court observed.

It further noted that history shows statements considered false at one time may later prove true, citing Galileo Galilei’s conviction for asserting that the Earth revolves around the sun.

Galileo Galilei was convicted by the Roman Inquisition in 1633 for asserting that the Earth revolves around the Sun.

At that time, this idea conflicted with Church teachings. His trial, the court says, illustrates how statements deemed false or dangerous can later be proven scientifically correct, highlighting risks of punishing perceived “falsehoods.”

The court also highlighted that Kenya already has mechanisms, such as the National Cohesion and Integration Act, 2008, which criminalises hate speech and harmful ethnicity-based statements.

This, the court noted, makes the broad criminalisation under the Cybercrimes Act unnecessary and disproportionate.

Civil remedies, such as defamation laws, were deemed sufficient to address false information without resorting to criminal sanctions.

Under the provisions, anyone forwarding content—without knowledge of its truth or falsehood—could have faced fines of up to 5 years or 10 years imprisonment.

Sections 22 and 23 of the Act were alleged to limit the provisions, rights, and freedoms protected under the Constitution on account of lacking specificity and the use of vague and broad terminology.

According to the appellant, these provisions, which carry heavy sentences, would hinder citizens' ability to participate in governance, limit the freedom of expression, and the freedom of the media.

Each party in the case was directed to bear its own costs, being a public interest matter.