COMPUTER MISUSE AND CYBERCRIMES ACT

Familiarise yourself with cybercrime law

It's now an offence to publish any information that may discredit a person's reputation.

In Summary
  • It creates the offence of child pornography and further criminalises downloading or generally making any pornography, available in any electronic device.
  • As a computer user, you now have an obligation to report any attacks including malware and virus attacks to another computer or network that you are aware of.

The Computer Misuse and Cybercrimes Act came into effect on May 30, 2018. However, immediately thereafter, the Bloggers Association of Kenya (BAKE) filed a constitutional petition seeking to have 26 sections suspended for being unconstitutional. The court granted conservatory orders and these sections have been suspended since, pending the court’s final decision.

Last week, the High court declared all sections of the Act constitutional and dismissing the petition effectively, reinstating the 26 suspended sections.

When the Act came into effect, it was largely condemned for its criminalisation of free speech, freedom of belief and opinion and was widely believed to have been targeted at bloggers and journalists.

With the suspended sections coming back into force, it is now an offence to publish any information that may discredit the reputation of a person, constitute hate speech, advocate for vilification of others or incitement to hatred or ethnic incitement if that information is considered to be false, misleading or fictitious.

This provision brings back criminal defamation, which the High Court had in a 2017 petition declared unconstitutional and inconsistent with the freedom of expression. While the Act creates the offence of child pornography, which is a welcome provision, it further criminalises downloading or generally making any pornography, available in any electronic device.  Basically, it is a criminal offence to take and share your own nudes and the penalty is either a fine of more than Sh20 million or imprisonment for up to 25 years.

Another welcome provision is the criminalisation of sharing or dissemination of intimate or obscene images of another person even though what constitutes ‘intimate and obscene’ is not defined. Ultimately, sharing of other people’s nudes is an offence.

It is also an offence to share anything that would cause a person fear, apprehension or will detrimentally affect them. This means that threatening someone over the phone or sharing videos and photos of crime scenes, accidents or even dead bodies is an offence. If found guilty the penalty can be as high as Sh1 million or imprisonment of six months.

The common actions of using another person’s password or other identifier without their authority to access their accounts and information constitutes identity theft and is now an offence. An action as simple as accessing someone’s social media will land you in jail.

The police can now, by court order, seize any electronic device if they believe that it was used or acquired in the commission of a crime and is necessary for a criminal investigation. The Act also gives the police power to, by court order, intercept any communication that would include phone conversations, if it is necessary for criminal investigation.

It is an offence to send messages for the purpose of getting a person to disclose personal information for an unlawful purpose. Therefore, every call or message you receive asking for your personal information so a person can steal your line and withdraw all the funds from your mobile money account is an offence that would attract a fine of Sh300,000 or three-year imprisonment.

The common actions of using another person’s password or other identifier without their authority to access their accounts and information constitutes identity theft and is now an offence. An action as simple as accessing someone’s social media will land you in jail.

However, in our opinion, identity theft should cover wider ground and incorporate the ‘impersonation’ aspect of the offence to address any act of one person representing themselves as another person by use of any or a combination of their unique identifying information. For example, fraudulent registration for mobile loans using stolen mobile numbers and identity cards.

Issuing false e-instructions for financial instructions is an offence with a fine of up to Sh200,000 or imprisonment of two years.  The instructions include posting of debit and credit transactions and issuance of electronic instructions as they relate to sending of electronic debit and credit messages. The Act does not specify whether the instructions were a mistake or fraudulent therefore banks could be found guilty where an account is debited or credited by mistake even where the mistake is corrected. 

As a computer user, you now have an obligation to report any attacks including malware and virus attacks to another computer or network that you are aware of.

The Act makes companies liable for offences committed under this act and places personal liability on the business’s leadership or owners.

The court has the mandate to order for the seizure and forfeiture of property obtained from the proceeds of a cybercrime. Therefore, any properties purchased from money obtained from computer fraud, phishing and such other crimes will be forfeited to the government in addition to the person found guilty of committing the crime being imprisoned and fined.

These are the highlights of some of the common actions that were previously not expressly identified as criminal offences. The Act provides for a lot more offences that both individuals and businesses need to be aware of for the protection of their own rights as well as to be aware of what actions may constitute criminal offences and take appropriate action.

In this day when almost everyone has an electronic device and most transactions are conducted electronically, it is crucial for every person to familiarise themselves with the provisions of this Act.

Technology lawyers