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THE RIGHT TO PRIVACY: EMERGING ISSUES

THE RIGHT TO PRIVACY: EMERGING ISSUES

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Under the previous Article, we observed that there are certain instances where the Right to Privacy can be breached/challenged. Recently, there has been emerging issues that have posed a threat to the Right to Privacy.

On 6th February 2017 the government through the Communications Authority intended to install a communication surveillance system named Device Management System (DMS) on Mobile Network Operators (MNOs).

The COMMUNICATION AUTHORITY OF KENYA (CAK) ordered three service providers namely Orange- Telkom Kenya, Airtel Kenya and Safaricom PLC to allow them create connectivity between the DMS and their systems to access information of their subscribers on their network.

This move was however challenged in court in the case Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eKLR. Herein, the petitioner among other issues claimed that the government was silent on; the systems’ capabilities for spying on calls and texts and reviewing mobile money transactions; and how it will protect the privacy of individuals once the information is collected by the second respondent and shared with third parties.(sic)

The CAK stated that DMS could only access information on a mobile service provider network that it was authorized to access and that the move was a clean-up process of illegal devices which commenced in 2011. The second respondent stated that the system was to aid in blocking the use of illegal mobile devices, minimizing theft of mobile devices, blocking use of counterfeit mobile devices, stop sim boxing and cut revenue leakages from mobile operators. The second respondent further stated that the DMS was incapable of spying on the calls or SMS’s or mobile money transactions.

In the reasoning of the Learned Justice Mativo he stated as follows:-

“….In line with the dictates of the constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to protection of consumer rights. Article 46 (3) provides that the Article applies to goods and services offered by the public entities or private persons.

First, the consumers were never involved in the discussions, hence, they were never provided with information on the device. This is a breach of their constitutional and statutory rights. Second, as held above, their constitutionally guaranteed right to privacy is under threat. Third, the act and the regulations recognize the need to protect consumer rights. On the whole, I find and hold that the DMS was introduced in a manner that was inconsistent with the constitutionally and statutory guaranteed rights of the consumers and or subscribers of the third, fourth and fifth Respondents, hence the same violates Article 46 Rights and the provisions of the Consumer Protection Act.”

The court allowed the petition and declared the move to integrate the DMS on the Mobile Network Operators was a threat to the subscribers privacy, hence a breach of the subscribers constitutionally guaranteed rights to privacy, therefore unconstitutional, null and void.

The court further stated that the Communications Authority was obligated to craft and implement a meaningful programme of public participation and stakeholder engagement in the process leading to the decision, policy and or regulation or implementation of the DMS System.

This decision was appealed at the Court of Appeal in the case Communications Authority of Kenya v Okiya Omtata Okoiti & 8 others [2020] eKLR where the three judge bench court noted that:-

“…..We think the Judge over concentrated only on the interpretation of an aspect of the term ‘access’ in a narrow sense in regard to retrieving data which he took to mean intrusion of privacy to communication. He however did not consider other aspects of ‘access’ such as making use of the resources to address the challenges at hand. We state this cautiously, noting that in accessing the data there was fear that the right to privacy was likely to be infringed which seems to have preoccupied the Judge. The right to privacy is important but the issues of abuse by unscrupulous mobile operators also needed to be tackled so as to strike a balance between securing the right to privacy and dealing with the problem without infringing the right to privacy.

In undertaking the Device Management System (DMS), which was agreed by all the parties was in pursuit of the appellant’s mandate to regulate the mobile communication sector, the appellant had a duty to abide by the law. It is clear to us that there was no concrete evidence that the DMS was going to spy or intrude on private communication other than the unsupported newspaper cuttings. It is also clear to us that there were genuine issues raised by Mobile Network Operators (MNOs) which were still being discussed….”

The court ruled that

  • In exercise of its mandate of developing a DMS system, the appellant shall continue with the consultations that were ongoing with the stakeholders and Mobile Network Operators (MNOs) prior to the filing of the petition so as to complete the technical and consumer guidelines on the DMS.
  • The guidelines/ regulations should be subjected to public participation.

CONCLUSION

The Appelate Court gave a modest approach to the issue. While appreciating that there are vices in the society that ought to be contained, the Right to Privacy has to be appreciated and protected at all levels. Similarly the Appelate Court seems to concur with the judgment of the High Court decision that consumers ought to participate in any formulation of policy and regulations. As you will note, the fears raised by the Mobile Network Operators MNOs are similar to the consumers and therefore both stakeholders have to keenly be on board and their issues addressed appropriately.

The key question being, will/can the Device Management System (DMS) be trusted to access to subscribers’ information.

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April 27, 2020
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MEDICAL CONSENT
April 28, 2020

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