The debate on whether to regulate social media content has drawn mixed reactions among a section of Nyeri residents with each giving their varied views on the matter.
This follows a recent High Court ruling that found Kenya Film Classification Board (KFCB) has a mandate to regulate content on social media platforms such as TikTok, YouTube, and Facebook.
The ruling by Justice Lawrence Mugambi at the Milimani Law Court also dismissed a petition filed by singer and content creator William Getumbe Kinyanjui.
Getumbe had argued that his content, recorded using a smartphone and shared on Facebook, TikTok, and YouTube, fell outside the scope of the Films and Stage Plays Act.
The petitioner maintained that the Act was only intended to regulate conventional film production and excluded amateur social media content.
He also wanted KFCB barred from pulling down social media and suspending his accounts.
But in his ruling Justice Mugambi found that KFCB had acted within its legal mandate when it directed the singer to pull down two controversial music videos uploaded on YouTube earlier this year.
The court further rejected Getumbe’s arguments that the law does not differentiate between professional and amateur content or between traditional media and digital platforms.
“As for the claim that the Films and Stage Plays Act does not grant KFCB powers to regulate social media activity, this argument is untenable. The regulation applies to any audio-visual recording made available for public exhibition,” the court ruled.
However, the court also found that the legal requirement for all audio-visual content intended for public display to first be examined and approved by the KFCB is impractical and constitutes an unjustifiable intrusion into personal privacy.
“In these contemporary times, when anyone with a smartphone can record a video and upload it to social media for public access, it is absurd to expect the Board to enforce the requirement of examining, classifying, and rating every such video or to demand license fees prior to filming and uploading amateur content,” ruled the court.
Article 15(1)(a) of the Films and Stage Plays Act mandates KFCB to regulate the creation, broadcasting, possession, distribution and exhibition of films by examining every content for purposes of classification.
The Act also mandates the board to impose age restriction on viewership, giving consumer advice and having due regard for the protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet.
But Brenda Kamau, a content creator from Nyeri, says the court’s ruling may create a loophole for the Board to interfere with the work of upcoming creative artists who are striving to earn a living through online social media platforms
She says it was equally impractical for the KFCB to monitor and regulate every piece of digital content in the country and now wants the State to promote the budding industry to thrive instead of putting restrictions along the way.
“The ruling appears like a license for KFCB to silence us. I often generate videos using my smartphone which I can later upload on my tiktok accounts. But it would be impractical for me to await approval from authorities before I can upload it to the general public. If this is the way, then we are going to find it very hard to grow as content creators,” argues the 20-year-old college student who specializes in tiktok comedy skits.
James Kinyua who doubles as a life coach instructor and a digital content artist wants the Government to help young upcoming artists grow by coming up with more incentives that could boost the online content industry.
He says online content creators should be viewed as law-abiding citizens who are only out trying to make ends meet in a cutthroat business environment.
“We are not filmmakers. We are just trying to share our passion and give guidelines on how to grow and stay fit. If the State enforces these regulations, they will make one feel what he is doing is illegal,” echoed Kinyua.
On her part, Judy Wambui who markets skincare products online, believes regulating social media platforms should be done without hurting both the consumers and creators.
Wambui who depends heavily on tiktok to market her products warns that any attempt to regulate online digital content may turn out to be counterproductive to their businesses since the clientele base is quite unpredictable.
“I depend on tiktok to notify my customers of any arrival of new products. It is the fastest way to reach my customers despite their geographical location. My appeal to the Government is to ease the way of doing business as long as what is done is legal. We need balance not barriers,” she said.
But for Margaret Wanjiru and John Mbugua, the absence of independent bodies and stringent laws to regulate social media platforms is a recipe for anarchy and an affront to a morally sound society.
They feel that if content creators are left on their own they will churn out unrestricted content which will be the first step in building a morally depraved society.
“Some of these videos are not suitable for our children. I am glad the government is doing something. Cultural values are getting lost online since many young people are adopting trends and behaviours that do not reflect our moral values. The government should do what’s necessary to protect our moral fabric. Freedom shouldn’t mean anything goes,” said Wanjiru, a mother of three.
“There is a lot of misinformation and harmful content on social media platforms which can really poison our minds. However, we need clear guidelines so that people can understand what is expected from them. The process needs to be fair, clear and inclusive,” Mbugua added.
The debate on whether to have stringent rules to help regulate online content has been a contentious subject in Kenya in recent days attracting condemnation and applause in equal measure.
While a section of Kenyans feels regulating social media content is a breach of Article 33 of the Constitution, there are those who feel that left unchecked, the emerging platform may be one slide to the abyss of moral decadency.
In 2023, KFCB had raised concerns over increased sharing of graphic and disturbing audiovisual content on social media platforms in utter disregard of the interests and safety of other members of society.
The then Board’s acting CEO Christopher Wambua had noted that some bloggers and social media users had taken to sharing extremely offensive video content with the potential to cause harm to young children.
“We have further noted that some apps are being transformed into digital brothels from midnight onwards. Equally worrying is the non-consensual dissemination of intimate images or videos of individuals in violation of privacy laws,” the then CEO had said during a press briefing in Nairobi on April 26, 2023.
Wambua cautioned that the freedom of expression, which is protected in the Constitution, was not absolute but had certain margins.
“Freedom of expression must also be interpreted within the broader context of other provisions of the Constitution, including Article 11 on culture, Article 24 on the limitation of rights and fundamental freedoms and Articles 53 and 55 which advocates for the rights of the child and the youth respectively. Offenders, therefore, ought to take note of this,” he had explained.
By Samuel Maina and Christine Mumbi
