Appellate Court strikes out false statement clauses in Cybercrime Act

The Court of Appeal in Nairobi has delivered a landmark ruling that significantly alters the regulatory landscape for online communication in Kenya. In a unanimous decision, a three-judge bench declared two contentious provisions of the Computer Misuse and Cybercrimes Act, 2018, unconstitutional, asserting that they were too broad and posed a risk to innocent citizens.

Justices Patrick Kiage, Aggrey Muchelule, and Weldon Korir targeted Sections 22 and 23 of the Act, which previously criminalised the publication of false, misleading, or fictitious data. The judges described these specific provisions as "unguided missiles" that lacked the necessary precision to define a criminal offence in a democratic society.

The ruling is the culmination of a protracted legal challenge initiated by the Bloggers Association of Kenya. They argued that the law was being used to silence critics and investigative journalists. By striking down these sections, the court has effectively removed the threat of criminal prosecution for publishing information that the state might deem inaccurate.

Legal experts and digital rights advocates have welcomed the decision, noting that the invalidated sections relied on vague terms such as "panic" and "chaos" without providing clear definitions. The court found that such ambiguity could lead to arbitrary enforcement against routine online commentary, satire, or genuine journalistic errors.

While the court nullified the "false information" clauses, it upheld the remainder of the 2018 Act. This means that other provisions remain in force, including those related to:

- Cyber harassment and the protection of victims from online abuse.

- The unauthorised interference or access to computer systems

- Crimes involving child pornography and computer forgery.

- Investigative powers allowing for the search and seizure of digital data

The bench noted that while the state has a legitimate interest in combating cybercrime, any limitation on constitutional rights must be reasonable and justifiable. The judges observed that Sections 22 and 23 failed this test because they did not clearly establish criminal intent, making it difficult for citizens to know exactly what conduct was forbidden.

This appellate decision overturns a 2020 High Court ruling that had initially upheld the law. For the construction and infrastructure sectors, which increasingly rely on digital project management and public communication, the ruling provides a clearer boundary for corporate and individual expression on digital platforms

The court emphasized that in a free society, the remedy for false speech is more speech, rather than the use of criminal law to suppress expression. However, the ruling does not grant absolute immunity, as civil litigation for defamation remains a legal avenue for those aggrieved by false publications.

The decision arrives at a time when Kenya is tightening its digital governance framework, including recent amendments aimed at critical information infrastructure. Stakeholders in the technology and media sectors are expected to monitor how the government responds to this significant reduction in its power to police online content.