criminology Regulatory Framework.pptx l2

criminology framework

1. REGULATORY FRAMEWORK BY: PURITY MUREITHI

2. More and more Kenyans are connecting to the internet, most frequently from mobile devices like phones and tablets. There are, of course, big benefits to increased connectivity. These include the rise of mobile money transactions and access to loans. But there are downsides, too. The country has been targeted by hackers in several major attacks. 

3. CYBERCRIMES UNDER CURRENT LEGISLATION Penal Code Kenya Information and Communications Act Cap 411A Copyright Act (2012) Sexual Offences Act (2006) Computer Misuse and Cyber Crime Act Data Protection Act

4. The new Computer and Cyber Crime Act have several stated aims. For instance, it offers a framework for the timely and effective detection, investigation and prosecution of computer crimes. Such crimes include unauthorized access to or interference with computer systems by third parties; the distribution of child pornography and online harassment like bullying and stalking; and the production of fake publications. These and other crimes described in the act come with very steep fines. For example, the crime of “fake publication” attracts a fine of 5 million Kenyan shillings or 10 years in prison. Unauthorized interference or interception of state protected computers attracts the longest sentence: 20 years.

5. Unfortunately the legislation is extremely vague when it comes to defining some of the offences, leaving a great deal open to individual interpretation. That’s particularly troubling when it comes to things like “fake publications”, since the act could be misused to censor free expression in the online space. And that directly contradicts the country’s Constitution. The provisions around “publication of false information” and “hate speech” are too broadly framed. The worry is that such blanket provisions might lead to a damping down of free expression. Citizens may even self-censor, not sharing different opinions or views, because they worry that these will somehow contravene the act.

6. The act also lays the ground for international cooperation around prosecuting cyber-crimes. And it sets up a crime reporting database. Any person who has information about a threat, attempt or actual cyber-attack is now legally obliged to share this with the database within 24 hours of the incident. If they don’t, they’re liable for a fine or could be jailed for up to two years.

7. Challenges posed by the Act One problem with this is that it shifts liability on to the victim or target of the cyber crime. There should be a distinction between aiding and abetting a crime and actually being an ignorant victim or target who is not aware of the act’s reporting requirement. Another is that once a planned crime has been reported, surveillance will be necessary to confirm it. The Act has a provision for searches without a warrant. This may take the form of blanket surveillance of, for instance, a WhatsApp group because of one person’s comments in that group. Others in the group who are not involved in any crime will also be “watched” by the state. This is a violation of citizens’ basic rights.

8. INTERNATIONAL STANDARDS The protection of freedom of expression under international law  The right to freedom of expression is protected by a number of international human rights instruments that bind states, including Kenya, in particular Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Kenya also ratified the 1983 African Charter on Human and Peoples’ Rights (ACHPR) which guarantees the right to freedom of expression in Article 9. Additional guarantees to freedom of expression are provided in the 2002 Declaration of Principles on Freedom of Expression in Africa (African Declaration)

9. Article 19 of ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and Internet-based modes of expression. In other words, the protection of freedom of expression applies online in the same way as it applies offline. State parties to the ICCPR are also required to consider the extent to which developments in information technology, such as Internet and mobile-based electronic information dissemination systems, have dramatically changed communication practices around the world.

10. The legal framework regulating the mass media should take into account the differences between the print and broadcast media and the Internet, while also noting the ways in which media converge. Similarly, the four special mandates for the protection of freedom of expression, including the African Special Rapporteur on Freedom of Expression and Access to Information, have highlighted in their Joint Declaration on Freedom of Expression and the Internet of June 2011 that regulatory approaches in the telecommunications and broadcasting sectors cannot simply be transferred to the Internet. Particular, they recommend the development of tailored approaches for responding to illegal content online, while pointing out that specific restrictions for material disseminated over the Internet are unnecessary. They also promote the use of self- regulation as an effective tool in redressing harmful speech. As a state party to the ICCPR, Kenya must ensure that any of its laws attempting to regulate electronic and Internet-based modes of expression comply with Article 19 ICCPR as interpreted by the UN Human Rights Committee and that they are in line with the special mandates’ recommendations.

11. THE ROLE OF THE REGULATORY FRAMEWORK Developing cyber risk management frameworks, to enable clients to assess their compliance with laws, regulation and best practice relating to cyber risk Preparing for cyber breaches, including designing tailored cyber response plans Responding post breach, including advising the board on internal and external actions, coordinating investigation of the breach and liaising with regulators and third parties Advising on how to comply with national and international technology regulations Understand the meaning of contracts for technology, including services, software and outsourcing. Anticipating legal risks and approach them appropriately. Exercise critical thinking to understand the practical implications of industry standards

12. LIMITATIONS ON THE RIGHT TO FREEDOM OF EXPRESSION While the right to freedom of expression is a fundamental right, it is not guaranteed in absolute terms. Restrictions on the right to freedom of expression must be strictly and narrowly tailored and may not put in jeopardy the right itself. The determination whether a restriction is narrowly tailored is often articulated as a three-part test. Restrictions must: Prescribed by law: this means that a norm must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. Ambiguous, vague or overly broad restrictions on freedom of expression are therefore impermissible; Pursue a legitimate aim, exhaustively enumerated in Article 19(3)(a) and (b) of the ICCPR as respect of the rights or reputations of others, protection of national security, public order, public health or morals. As such, it would be impermissible to prohibit expression or information solely on the basis that they cast a critical view of the government or the political social system espoused by the government; Should be necessary to secure the legitimate aim and meet the test of proportionality.

13. Necessity requires that there must be a pressing social need for the restriction. The party invoking the restriction must show a direct and immediate connection between the expression and the protected interest. Proportionality requires that a restriction on expression is not over-broad and that it is appropriate to achieve its protective function. It must be shown that the restriction is specific and individual to attaining that protective outcome and is no more intrusive than other instruments capable of achieving the same limited result. The same principles apply to electronic forms of communication or expression disseminated over the Internet

14. Online content regulation The above principles have been endorsed and further explained by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, In September 2011 report, the Special Rapporteur also clarified the scope of legitimate restrictions on different types of expression online. He also identified three different types of expression for the purposes of online regulation: Expression that constitutes an offence under international law and can be prosecuted criminally; Expression that is not criminally punishable but may justify a restriction and a civil suit; and Expression that does not give rise to criminal or civil sanctions, but still raises concerns in terms of tolerance, civility and respect for others.

15. Thank you