Appraising the Impact of Kenya’s Cyber-Harassment Law on the Freedom of Expression

Author(s):  
Abdulmalik Sugow ◽  
Zalo Margret ◽  
Isaac Rutenbeg

Kenya’s Computer Misuse and Cybercrimes Act 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 20 million shilling fine or a 10-year term of imprisonment or—discretionarily—both. While the offence is termed ‘cyber-harassment’, its wording appears to exclude a number of offences that would count as cyber-harassment such as cyber-stalking, doxing or impersonation. In fact, its wording is vague and overbroad, using undefined terms such as ‘detrimentally affect’ which require subjective interpretation. Cyber-harassment laws constitute a limitation on the freedom of expression and as such, ought to conform to the limitations of human rights test as provided in Article 24 of the Constitution. Where the aim sought is legitimate in a democratic society and other conditions such as legality are met, this limitation is valid. This paper reviews Kenya’s law that was recently upheld by the High Court in Bloggers Association of Kenya (BAKE) v Attorney General & Three others; Article 19 East Africa & another and finds that it fails to meet the limitations test prescribed under Article 24 of the Constitution. It argues that Section 27 of the Computer Misuse and Cybercrimes Act is therefore overbroad and has the potential to be used as a tool for the unconstitutional suppression of legitimate criticism.

Author(s):  
Simon Evans ◽  
Julia Watson

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.


2021 ◽  
Author(s):  
◽  
Andrew Robert Jack

<p>When a broadcaster broadcasts directly to people living in another state disputes can arise. The audience may find the programmes offensive. The programmes may foment disorder and rebellion and corrupt the values and traditions of the inhabitants of the receiving state or even threaten their very survival. The problem is not new. It has been a source of international tension since the inception of broadcast technology. The problem has however become more pointed as that technology has become ever more sophisticated. The power of radio is aptly illustrated by recalling the panic caused in 1938 by Orson Welles' famous hoax broadcast announcing the invasion of Earth by Martians. More recently commentators such as James Miles, BBC correspondent in Peking at the time, have suggested that the rebellion in China before and after the massacre at Tianamen Square was fomented, prolonged and to a degree coordinated by programmes broadcast on overseas radio stations such as Voice of America and the BBC. Television has a much greater graphic capacity than radio and is also vulnerable to abusive techniques such as subliminal suggestion and advertising. The impact of television is set for another great leap ahead as the development of High Definition Television technology proceeds apace. The development of communications satellites has greatly increased the range and quality of broadcasts. There have been a number of attempts to address this problem but none have met with much success. The international community has polarised into two camps, one taking a position based on a very strict view of the right to freedom of expression, and the other insisting that that right yield to a degree at least to accommodate peoples' rights to determine their own economic, social and cultural development. This paper offers a solution to this impasse. It offers guidelines to help resolve international broadcasting disputes. The guidelines are based on the international human right to freedom of expression as viewed particularly by the two bodies responsible for drafting that right's most famous exposition in the Universal Declaration of Human Rights and in the host of other international and constitutional instruments which it inspired. It is argued that cultural relativity in the human rights context is consistent with the sources of international law specified in article 38 of the statue of the International Court of Justice, and that by incorporating a degree of cultural relativity the guidelines advocated herein are similarly consistent with current international law. It is also shown that the view of human rights the guidelines evince is consistent with a version of constructivist human rights theory which accords with observable practice and which enjoys widespread academic support. Some alternative methods for addressing the problem arising from international broadcasting are examined and their shortcomings identified. This leads to the conclusion that the method proposed in this paper for regulating international broadcasting, notwithstanding that it is most surely within the realm of de lege ferenda, is both consistent with current international law and jurisprudentially defensible, and therefore better than the alternatives.</p>


2021 ◽  
pp. 125-145
Author(s):  
Andrés Gascón Cuenca

Despite the general consensus about freedom of expression being a basic fundamental right on every democratic society, the debate about its boundaries has never found such a pacific agreement. Thus, the Spanish Penal Code has several articles that punish its abuse that are highly contested, like articles 490.3 and 543 that penalize the offenses directed towards national symbols or State representatives. This being so, this article examines the controversy generated by the application of this articles through the analysis of two judgements issued by the European Court of Human Rights against Spain, and a third one issued by the Spanish Constitutional Court that could follow the same path. This work will be done to describe the clash that exists between the caselaw of these two jurisdictions, in order to critically analyze the approach Spanish courts have to behaviors that criticize national symbols and state representatives.


2015 ◽  
Vol 32 (1) ◽  
pp. 121
Author(s):  
David DesBaillets

The case of Tanudjaja v. Attorney General, represents an unprecedented opportunity for Canadian legal scholars to examine the right to adequate housing in the Canadian human rights context. It is the only legal challenge that broaches directly the right to housing under Canadian law, basing its arguments on two key elements contained in Charter of Rights and Freedoms: sections 7 and 15. Moreover, the case represents an attempt by the claimants to bolster their Charter claim with reference to housing rights found in international human right’s law. For Canadian housing rights’ scholars, this decision, though ultimately quite negative in its conclusions, demonstrates the need for a better understanding of the intersection between international legal norms on human rights on the one hand, and the Charter, on the other. It does not, however, adequately portray the full extent of the former’s influence on the latter, as Justice Lederer of the Ontario Superior Court of Justice, failed to address the importance of international legal doctrine with respect to the interpretation of positive social and human rights in the Canadian legal context. In particular, he ignored the growing body of Charter related cases and precedents in Canadian jurisprudence that shed light on the complex relationship between fundamental human rights enshrined in various international legal documents and the recognized positive obligations they impose on the government of Canada to implement them under such long established treaties as the Covenant of Economic Social and Cultural Rights.   In this comment, the author makes a critique of the analysis undertaken by Judge Lederer with regards to the relevance of international human rights norms in the context of Tanudaja, by comparing it with past Charter jurisprudence involving the impact of these on Canadian human rights claims.  L’affaire Tanudjaja c. Attorney General est une occasion unique pour les spécialistes en droit du Canada d’examiner le droit à un logement adéquat dans le contexte des droits de la personne protégés au Canada. Il s’agit du seul litige dans lequel le droit au logement en droit canadien est abordé directement sous l’angle de deux dispositions clés de la Charte canadienne des droits et libertés : les articles 7 et 15. De plus, dans cette même affaire, les demandeurs ont tenté d’étoffer leur allégation fondée sur la Charte en invoquant les droits au logement reconnus dans le droit international sur les droits de la personne. Pour les spécialistes en matière de droits au logement au Canada, malgré les conclusions plutôt négatives qui y sont tirées, cette décision illustre la nécessité de mieux comprendre l’interaction entre les normes juridiques internationales sur les droits de la personne, d’une part, et la Charte, d’autre part. Cependant, elle ne décrit pas adéquatement l’ampleur de l’influence des premières sur la seconde, puisque le juge Lederer, de la Cour supérieure de justice de l’Ontario, n’a pas abordé l’importance de la doctrine juridique internationale relative à l’interprétation des droits sociaux et humains positifs dans le contexte juridique canadien. Plus précisément, il a ignoré le nombre croissant de décisions canadiennes liées à la Charte qui ont mis en lumière la relation complexe entre les droits humains fondamentaux garantis dans différents documents juridiques internationaux et les obligations positives reconnues que ces textes imposent au gouvernement du Canada en ce qui a trait à la mise en œuvre de ces droits en conformité avec des traités d’aussi longue date que le Pacte international relatif aux droits économiques, sociaux et culturels. Dans ce commentaire, l’auteur critique l’analyse que le juge Lederer a menée au sujet de la pertinence des normes internationales à l’égard des droits de la personne dans le contexte de l’affaire Tanudaja, en comparant cette analyse à des décisions antérieures concernant la Charte et faisant état des répercussions de ces normes sur les revendications fondées sur les droits de la personne au Canada. 


Subject Nigerian dissent crackdown. Significance Nigerian journalist and former presidential candidate Omoyele Sowore was freed on bail on December 24, following a month in which he was released by a federal judge, rearrested by agents of the Department of State Services (DSS) in defiance of that order and finally released by order of the attorney-general. Sowore’s case highlights President Muhammadu Buhari’s increasing clampdown on dissent, with the ruling All Progressives Congress (APC) preparing to give the executive branch new powers with a series of bills designed further to restrict freedom of expression. Impacts Public demonstrations against DSS impunity and government curbs on free speech will likely be met with force, despite official denials. The Trump administration’s cooperation with Nigeria will come under renewed scrutiny from Democrats and human rights organisations. Abuja may increasingly look to bolster its online surveillance capacity with the assistance of authoritarian states.


Legal Studies ◽  
2017 ◽  
Vol 37 (1) ◽  
pp. 25-53
Author(s):  
Peter Coe

This paper considers the impact of new media on freedom of expression and media freedom within the context of the European Convention on Human Rights and European Court of Human Rights jurisprudence. Through comparative analysis of US jurisprudence and scholarship, this paper deals with the following three issues. First, it explores the traditional purpose of the media, and how media freedom, as opposed to freedom of expression, has been subject to privileged protection, within an ECHR context at least. Secondly, it considers the emergence of new media, and how it can be differentiated from the traditional media. Finally, it analyses the philosophical justifications for freedom of expression, and how they enable a workable definition of the media based upon the concept of the media-as-a-constitutional-component.


2021 ◽  
Author(s):  
◽  
Andrew Robert Jack

<p>When a broadcaster broadcasts directly to people living in another state disputes can arise. The audience may find the programmes offensive. The programmes may foment disorder and rebellion and corrupt the values and traditions of the inhabitants of the receiving state or even threaten their very survival. The problem is not new. It has been a source of international tension since the inception of broadcast technology. The problem has however become more pointed as that technology has become ever more sophisticated. The power of radio is aptly illustrated by recalling the panic caused in 1938 by Orson Welles' famous hoax broadcast announcing the invasion of Earth by Martians. More recently commentators such as James Miles, BBC correspondent in Peking at the time, have suggested that the rebellion in China before and after the massacre at Tianamen Square was fomented, prolonged and to a degree coordinated by programmes broadcast on overseas radio stations such as Voice of America and the BBC. Television has a much greater graphic capacity than radio and is also vulnerable to abusive techniques such as subliminal suggestion and advertising. The impact of television is set for another great leap ahead as the development of High Definition Television technology proceeds apace. The development of communications satellites has greatly increased the range and quality of broadcasts. There have been a number of attempts to address this problem but none have met with much success. The international community has polarised into two camps, one taking a position based on a very strict view of the right to freedom of expression, and the other insisting that that right yield to a degree at least to accommodate peoples' rights to determine their own economic, social and cultural development. This paper offers a solution to this impasse. It offers guidelines to help resolve international broadcasting disputes. The guidelines are based on the international human right to freedom of expression as viewed particularly by the two bodies responsible for drafting that right's most famous exposition in the Universal Declaration of Human Rights and in the host of other international and constitutional instruments which it inspired. It is argued that cultural relativity in the human rights context is consistent with the sources of international law specified in article 38 of the statue of the International Court of Justice, and that by incorporating a degree of cultural relativity the guidelines advocated herein are similarly consistent with current international law. It is also shown that the view of human rights the guidelines evince is consistent with a version of constructivist human rights theory which accords with observable practice and which enjoys widespread academic support. Some alternative methods for addressing the problem arising from international broadcasting are examined and their shortcomings identified. This leads to the conclusion that the method proposed in this paper for regulating international broadcasting, notwithstanding that it is most surely within the realm of de lege ferenda, is both consistent with current international law and jurisprudentially defensible, and therefore better than the alternatives.</p>


2021 ◽  
Vol 4 (1) ◽  
pp. 23-60

The European Convention of Human Rights along with the case law elaborated by the European Court of Human Rights set an international procedural standard of a fair trial. It exerts a predominant influence not only on the creation and interpretation of European regulations connected with access to court and basic principles of the European justice system, but also on the interpretation of national constitutional laws in the realm of civil procedure. Any evaluation of the impact of protecting human rights and fundamental freedoms on the form, shape and daily practice of the Polish justice system in terms of the remedies mechanism demands that a number of issues be taken into account, not only with regard to the imperative of securing the right to an effective remedy, but also the form and functioning of the same in Poland. They should be adequate in terms of protecting the interests of individual parties as well as public interest. The impact of Art. 10 of the Convention on the evolution of Polish law on protection of freedom of expression is invaluable. According to the analysis, ECtHR case law under Art. 10 of the ECHR has had a major influence on the decisions of Polish courts; in fact, in certain instances it led to significant changes in Polish legislation.


Author(s):  
Gabru Naeema

This contribution is a review of a book on actions which may offend religious feelings even if it was not the intention of the offender to do so. This book illustrates how, drawings (amongst others) on the face of it, may be construed to be a mere exercise of the right to freedom of expression or free speech in a democratic society. This is regardless of the content of the drawing which, to other societies, may constitute an offence.  


2021 ◽  
Vol 108 ◽  
pp. 01002
Author(s):  
Alla Nikolaevna Gutorova ◽  
Aleksander Nikolaevich Grokhotov ◽  
Vladimir Viktorovich Korovin ◽  
Elena Aleksandrovna Masufranova ◽  
Vladimir Vladimirovich Yatsenko

As a result of constitutional amendments, several ideological provisions which are legally binding by constitutional requirements as a normative legal act of supreme legal force appeared in the Russian Constitution. It is necessary to determine the limits of freedom of parliamentary activity in the current conditions. The objective of the study. To analyze the deputy’s activity through the prism of constitutional amendments, in the correlation of the deputy’s activity as a free expression of his opinion and the established constitutional right restrictions. In this study, the formal-legal method was used to interpret the content of the constitutional amendments and the analysis method to identify the impact of the adopted amendments on the deputy activities. The analyzed constitutional provisions, having an “ideological” character, for the most part, cannot be qualified as a constitutional-legal norm. At best, it is a constitutional and legal principle, but most likely, it should be interpreted as a constitutional principle of a non-legal nature. However, at the same time, they are a legally binding rule of law. Concerning parliamentary activity, the “ideological” norms of the Russian Federation’s Constitution after its amendments from 2020 play a special role. Deputies are forced to take one political position in the presence of several alternatives, which are also devoid of signs of illegality and, therefore, are legitimate and permissible in a democratic society. Therefore, in relation to deputies’ activities, these amendments can be interpreted as a very significant deviation from the freedom of expression in a democratic society. These constitutional innovations significantly change some traditional ideas about the people’s representation, the role of deputies in society, their obligations, and constitutional legal restrictions on their activities.


Sign in / Sign up

Export Citation Format

Share Document