RECENT DEVELOPMENTS IN TELECOMMUNICATIONS LAW
The aim of the amendments was to streamline information and communication regulation in the country in order to take account of the convergence of telecoms, media and information technology. The amendments were also to bring the much anticipated legal recognition of electronic transactions and ICT related offences.
The key areas affected are:
- Regulation of broadcasting information
- Recognition of electronic records and signatures
- The creation of ICT related offences
The recent amendments to the Act transferred the function of radio and television broadcasting licensing from the Minister of Information (the “Minister”) to the Communications Commission of Kenya (the “CCK”).
The Act now recognises three main broadcasting service categories (i) public broadcasting (ii) private broadcasting and (iii) community broadcasting. Broadcasting services falling within these categories will have to be licensed as either: free-to-air radio; free-to-air television; subscription radio; subscription television; subscription management; or any other class of licence as may be determined in accordance with the Regulations.
In considering applications, the CCK will consider public interest obligations in all broadcasting categories, diversity and plurality of views for a competitive marketplace of ideas, availability of radio frequency spectrum, efficiency and economy in the provision of broadcasting services, demand for the proposed broadcasting service within the proposed broadcast area, the expected technical quality of the proposed service, and the expertise, financial means and business record of the applicant. Political parties, adjudged bankrupts and persons of unsound mind will not eligible for the grant of a broadcasting licence.
The CCK is in the process of formulating a licensing framework for broadcasting licensing in Kenya and currently is not issuing any broadcasting licences.
The Act also empowers the CCK to set standards for the time and manner of programmes to be broadcast by licensees in the form of a Programme Code, and also to impose conditions requiring the licensee to commit a minimum amount of time in its programme schedule to locally produced programmes or in the alternative pay a prescribed amount of money into a fund to assist the development of the Kenyan production industry.
All licensed broadcasters will be required to provide responsible and responsive programming that caters for the varied needs and susceptibilities of different sections of the Kenyan community; ensure that Kenyan identity is developed and maintained in programmes; observe standards of good taste and decency; gather and present news and information accurately and impartially; and when controversial or contentious issues of public interest are discussed, make reasonable efforts to present alternative points of view, either in the same programme or in other programmes within the period of current interest; and ensure that derogatory remarks based on ethnicity, race, creed, colour and sex are not broadcast.
The CCK is currently formulating a framework for the implementation of these amendments and it is anticipated that there will be several policy changes that will affect existing and new operators of broadcasting services.
recognition of electronic transactions
The recent changes to the Act have given long-awaited statutory recognition of electronic transactions in two major ways (i) by the recognition of electronic records and (ii) the recognition of electronic signatures.
The Act now states that where any law requires that information or other matter shall be in writing then, such requirement shall be satisfied if such information or matter is made available in an electronic form and is accessible so as to be usable for a subsequent reference.
With regard to contract formation, the Act now recognises that an offer and acceptance may be expressed by means of electronic messages. This will however not apply where any other law expressly provides a different method for the formation of a valid contract for instance, in the case of contracts for the disposition of an interest in land, which are not only required to be in writing, but are also subject to a requirement that the signature of each party is attested by a witness who is present when the contract was signed by such party.
It is important to note that transactions relating to the creation or execution of a will, negotiable instruments; and documents of title are expressly exempted from the Act’s provisions on e-transactions and can therefore not be carried out electronically. The Minister is empowered to add or remove a class of transaction to the list of exempted transactions.
The amendments also introduced a statutory basis for the recognition of electronic signatures. The Act stipulates that where any law requires a signature of a person, that requirement is met in relation to an electronic message if an “advanced electronic signature” affixed in such manner as may be prescribed by the Minister.
Transactions involving the Government have not been left out of the Acts provisions. The Act recognises the use of electronic records and signatures by the Government and its agencies and it may soon be possible to file forms, applications and documents electronically at Government Registries. The Act also provides for the issue of licences and permits by Government agencies in electronic form, the payment of moneys electronically and for the publication of an electronic gazette.
The Act provides a broad framework for the recognition of e-transactions, however it will be necessary that subsidiary legislation expounding on these provisions is passed in order to give several of these provisions practical effect. It is expected that the Minister, in consultation with the CCK, will soon prescribe regulations under the Act.
information and communication technology related offences
The recent amendments have introduced several new offences relating to information technology and telecommunications which were not previously recognized under Kenya criminal law. The Act sets out the ingredients of the offences and prescribes the penalties in the form of heavy fines, jail terms or both. Some of these newly introduced offences are as follows:
- Unauthorised access to computer data
- Access with intent to commit offences
- Unauthorised access to and interception of computer service
- Unauthorised modification of computer material
- Unauthorised disclosure of password
- Unlawful possession of devices and data
- Electronic fraud
- Tampering with computer source documents
- Publishing obscene information in electronic form
- Unauthorised re-programming of mobile telephone
Cyber and tech-criminals in Kenya are quaking in their boots!
Angela Waki is a partner at Coulson Harney Advocate