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Computer Misuse and Cybercrimes Act Court Of Appeal judgment summary

The Court of Appeal has today ruled that sections covering “false information” (Sections 22 and 23) failed the test of constitutional clarity and infringed upon the freedom of expression and media as guaranteed under Articles 33 and 34 of the Constitution.

Here is a summary of the judgement:

Computer Misuse and Cybercrimes Act Court Of Appeal judgment summary

The Bloggers Association of Kenya (BAKE) appealed a previous High Court decision that had upheld the entire Computer Misuse and Cybercrimes Act (2018). BAKE argued that several sections of the law were vague, lacked a “guilty mind” (mens rea) requirement, and violated constitutional rights like privacy and free speech.

The Big Win: Sections Declared Unconstitutional

The Court of Appeal partially allowed the appeal by striking down two major sections that have long been criticized by digital rights activists:

  • Section 22 (False Publications): This section criminalized the intentional publication of false or misleading data.
  • Section 23 (Publication of False Information): This section criminalized the publication of “fake news” that results in panic, chaos, or discredits reputations.

Why were they struck down?

  1. Too Broad: The court called them “unguided missiles.” They were so wide that they could net innocent people who forward messages without knowing they are false.
  2. Chilling Effect: The judges noted that what is “false” today (like Galileo’s theories) might be “true” tomorrow. Criminalizing “falsity” risks silencing satire, opinion, and journalistic errors.
  3. Alternative Laws: The court noted that the National Cohesion and Integration Act and civil defamation laws already handle these issues without needing such harsh criminal sanctions.

 What the Court Upheld (Remains Law)

The Court disagreed with BAKE on several other points, keeping the following powers and sections intact:

1. Investigative Powers & Privacy (Sections 48–53)

The court ruled that the police can still apply for:

  • Search & Seizure warrants for computer data.
  • Production orders to compel service providers to give up subscriber info.
  • Real-time collection of data (surveillance) for up to 6 months.

The Court held that these are not “unchecked” powers because they require a warrant. However, the Court emphasized that these powers must only be exercised under strict judicial oversight. The judges underscored that courts must act as vigilant gatekeepers when authorizing such intrusive orders because the powers granted under the Act are capable of abuse, including potential misuse for political purposes.

2. The “Guilty Mind” (Mens Rea)

BAKE argued the law was vague about who is a criminal. The Court ruled that terms like “knowingly,” “intentionally,” and “without authorization” are sufficient. If you accidentally stumble into a file, you aren’t a criminal under this Act; you must have intended to break the law.

3. Child Pornography (Section 24)

The court upheld the strict penalties for child pornography, dismissing the technical argument that the wording could be used to target adult content unfairly. The Court held that the strict criminal penalties relating to child pornography serve a legitimate and compelling public interest in protecting children and do not unjustifiably limit constitutional rights.

4. Cybersquatting (Section 28)

Using someone else’s name or trademark as a domain name in bad faith remains a crime. The court ruled that the internet is not a “Wild West” and property rights must be protected.

Key Takeaways for content creators and journalists

  • Victory for Free Speech: You can no longer be criminally prosecuted under Sections 22 and 23 for “false publications.” This removes the threat of a 10-year prison sentence for sharing “fake news.”
  • Privacy is Conditional: While the law protects you, the State can still access your traffic data and communications for investigative purposes if they get a warrant from a judge. However, courts have been urged to be extremely vigilant before granting such warrants.
  • Responsibility Remains: While criminal liability for “false publications” has been struck down, individuals who publish damaging false statements may still face civil defamation suits.

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