Court hits sections of cybercrime law to shield online speech

The Court of Appeal has delivered a significant ruling for the digital landscape, striking down specific sections of the 2018 Computer Misuse and Cybercrimes Act. In a decision issued on Friday, March 6, the court determined that the provisions criminalizing the publication of false information were unconstitutional and posed a threat to free expression.

The three-judge bench, comprising Justices Patrick Kiage, Aggrey Muchelule, and Weldon Korir, focused specifically on Sections 22 and 23 of the Act. These sections had previously allowed for the prosecution of individuals who shared data the state deemed false, misleading, or fictitious. The court noted that the language used in these provisions was excessively broad, describing them as unguided missiles that could easily affect innocent citizens.

Under the 2018 law, Section 22 carried a penalty of up to Sh5 million or two years in prison for publishing false data. Section 23 was even more severe, targeting information likely to cause panic or chaos with a potential ten-year prison sentence. The judges found that such vague definitions failed the constitutional test of clarity required for criminal law, as they did not allow citizens to know exactly what behavior was forbidden.

This legal battle was spearheaded by the Bloggers Association of Kenya, commonly known as BAKE. The association argued that the law was being used by authorities to silence critics and stifle investigative reporting. By declaring these sections invalid, the court has ensured that the mere act of sharing information that is later disputed can no longer be treated as a criminal offense under this specific statute.

While the ruling is a victory for digital rights advocates, the Court of Appeal did not dismantle the entire Act. The judges upheld several other provisions, including those related to child sexual exploitation and cybersquatting. This means that while the state's power to police general false information has been curtailed, other specialized cybercrimes remain punishable under the existing legal framework.

The decision effectively overturns a 2020 High Court ruling that had initially upheld the contested sections. Legal experts noted that the appellate court's stance prioritizes the protection of satire, opinion, and even journalistic errors, which the judges argued could be suppressed if the threat of criminal prosecution remained.

For many social media users and professional reporters, the ruling provides a necessary buffer against arbitrary arrests. The court emphasized that in a democratic society, limitations on fundamental rights like freedom of expression must be reasonable and justifiable, a threshold that Sections 22 and 23 did not meet.