On Tue, Oct 16, 2012 at 3:57 PM, Grace Githaiga <ggithaiga@hotmail.com> wrote:

Thanks Barrack, Jaco and Kariuki for your views.

Jaco, we note your point on the need for users to take responsibility on what they post and the need for information and media literacy for users. Barrack is of the same opinion that there is need for an education of users on their responsibility online. If I may ask both of you, who would be responsible for conducting this sort of education?

Kariuki, you make a very good point about what may have informed the introduction section 29 of KICA namely the facsimile. Considering that technology has evolved and the internet is no longer in infancy, what would you recommend for this section?

Listers, lets here more input from you.
Rgds
Grace

Date: Tue, 16 Oct 2012 09:47:13 +0300
From: otieno.barrack@gmail.com
Subject: Re: [kictanet] Hate text messages/KICA Section 29
CC: kictanet@lists.kictanet.or.ke; isoc@orion.my.co.ke
To: ggithaiga@hotmail.com

GG,

Intermediaries are liable to a certain extent, when a computer broadcasts spam, its IP address is blacklisted and users might not be able to use it to send mail until corrective measures are taken. I beleive this is meant to ensure that the Intermediary is responsible for the content emanating from the network? if this is the case, why shouldn't the government which has a responsibility over the safety and security of every citizen not take the intermediary to court to produce the the real culprit? Imagine what would have happened in the the recent case when a child was kidnapped from a City Church if the Intermediary had not been of assistance to the state agencies, now that the populace understands the value of the Internet we should start educating them about their rights responsibility on the net same case applies to the Intermediaries, if this issues are not enshrined in the law it will be total chaos (looking at it from a government perspective)

Best Regards

On Tue, Oct 16, 2012 at 8:58 AM, John Kariuki <ngethe.kariuki2007@yahoo.co.uk> wrote:

Grace,Listers,

Section 29 of KICA was first introduced in Kenya law in 1998 at the infancy of the Internet in Kenya and was based mainly on experience of Facsimile.It was, in my view, at that time not intended for intermediaries.

However,if today a smart lawyer can adduce pursuasive evidence in court that indeed the intermediary was actually the 'sender' not mere 'carrier', I see no reason why he may not secure a conviction based on KICA section 29.

John Kariuki.

From: Grace Githaiga <ggithaiga@hotmail.com>
To: ngethe.kariuki2007@yahoo.co.uk
Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke>
Sent: Tuesday, 16 October 2012, 1:02

Subject: [kictanet] Hate text messages/KICA Section 29

Good morning Listers

I would like to thank Jane, Barrack and Topista for views expressed on yesterday's topic Shooting the messenger.

They did express the need to place some level of responsibility on both the source of the content and the host platform. Further they underscored the need to have a good information system that operates under a sound policy framework if it is to be useful to society.

Today we look at Section 29 of the KICA (improper use of system) http://www.cck.go.ke/regulations/downloads/KenyaInformation-Communications-Act-Final.pdf that is increasingly being used as a basis for criminal charges for users of technology based platforms. See example: http://www.youtube.com/watch?v=9q7VmsYNsqE

29. A person who by means of a licensed telecommunication system—

(a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person

commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.

Could misuse of an information system also be used to charge intermediaries? Would this call for the training of the Kenya Police, DPP and Judiciary so that they understand the issues as they litigate and make rulings?

Listers, lets hear your views. Further, please feel free to go back to yesterday's thread on shooting the messenger if you would like to contribute.

Have a wonderful day

Rgds

GG

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KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.

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