Privacy Online: Is Invasion of Privacy a Crime in this Digital era? -By Ohaga Ohaga

In the past month, two incidences have emphasized the foundational right to privacy and its connection to other human rights such as freedom of expression and human dignity in Kenya.

The first incidence happened at the beginning of April when Kenya’s Health CS Mutahi Kagwe paraded two COVID-19 patients who he claimed had fully recovered from the dreaded Coronavirus. 

The recovery was a huge milestone for the Ministry of Health and the Minister wanted to share the positive story with Kenyans. To show just how important this was for the government, President Uhuru Kenyatta personally congratulated the two patients via a video call that was aired live in most TV stations.  

After the press conference and photo ops, Brenda Cheruiyot one of the survivors appeared in two TV interviews to talk about her recovery. It’s during these two interviews that Kenyans observed the inconsistencies in her story and felt the exercise was a PR stunt. Soon, what had begun as an objective criticism turned into a shameful cyber-bullying and body-shaming of Brenda Cheruiyot. Her nude photos were soon leaked online and all manner of dirt thrown against her person.  

The second incidence occurred barely three weeks after. Azziad Nasenya, a 19-year-old student found herself the subject of ridicule and cyber-bullying after a video of herself dancing to Femi One’s new track Utawezana featuring Mejja went viral. No sooner had she become an overnight celebrity, than random ill-minded Kenyans started digging-up her old photos and subjecting her to ridicule and body-shaming.  

Kenyans enjoys a robust Constitution. Under Article 33, Kenyans enjoy the right to express themselves without individual or governmental restraint. What many of the citizens don’t understand is that freedom of speech isn’t absolute. Looking at the two cases, one is inclined to ask, did Brenda and Nasenya deserve this kind of treatment? 

Article 31 of the Constitution of Kenya provides for the right to privacy which includes the right not to have one’s person, home or property searched, possessions arbitrarily seized, information relating to family or private affairs unnecessarily revealed, or privacy of communications exposed. Broadly speaking, it also ensures your innate right to have your private life not to be made public without your consent including your right to have your pictures not to be unnecessarily circulated.

However, in a world where we are continually and perpetually posting personal details about ourselves on the Internet and appearing in our friends, colleagues, and family posts and photos; what constitutes an infringement of privacy becomes difficult to readily establish. 

In the two instances, the subjects’ right to privacy and human dignity was seriously abused. Broadly speaking, the two incidents are connected to the overall and perhaps general erosion of the concept of individual privacy. I consider myself a proponent of a free world. A world where people are free to speak their minds, and the media is free to report the same without any interference from anyone. 

That is to say that as much as social media users were within their rights to speak, that right was vacated the moment the speech became insults. However, the same way the law applies limits in freedom of speech, I do believe that the right to privacy is not absolute. For instance, when you have broadcasted your entire life on the social media and widely shared your life stories and photos publicly, can you still claim that your privacy has been invaded if someone misused the content available online? To claim to have had your privacy invaded when the content was already made available to the public by yourself becomes difficult to enforce. Celebrities and public figures, for instance, do not enjoy a lot of privacy due to their stature in the society.

The loss of our privacy I believe is something that we all must admit to have contributed towards. Either deliberate or inadvertently. We may want to blame cyberbullies for insults and attacks on our person- sometimes rightly but sometimes, we also must ask ourselves, how complicit were we in aiding the problem. 

In my opinion, we have become complicit in blurring the borders of our public and private lives through the social media platforms we often post tonnes of content without considering the dangers of actions. For instance, by clicking a name, one can find someone’s educational background, career, furniture, electronics and clothes, food, friends and family etc. This means that if this person wants to use the same for ill purposes, he will not struggle to find it. We have somewhat willingly or unwillingly, contributed to the dangers of privacy infringement. Through our actions, we have become captive to the whims and gods of the internet. Beyond our actions, we must know that social media companies spend loads of money in developing algorithms that track and monitor our every move through every click we make online

Be that as it may, we all desire some level of privacy but that level of privacy can only be achieved if we don’t start by violating it ourselves. We must be protective of our data and information that we deem personal. We can’t for example dump nude pictures of ourselves on the internet and then become angry when someone picks the images and misuses the same. To do so would be akin to someone who shares his ATM PIN and bank account online and then go to the police to complain when he finds his account cleared. In the current and highly hyperconnected and interlinked world, we must learn to cautious about what we post online. We must ask ourselves how complicit are we in encouraging cyber-crime? 

Ohaga Ohaga is a Kenyan Journalist, Writer, and Communication Specialist with special interest in Media Law and Political Communication. He remains a close observer of, and participant in, Journalism and the Media.