Holding Meta Accountable in Africa

It was yet another unwelcome development for Mark Zuckerberg’s technology titan Meta, the parent company of Facebook.  The High Court of Kenya has found that the US-based entity can be sued over its alleged role in disseminating content that incited violence in neighbouring Ethiopia.  While the case can be heard in Kenya, the essential harm is alleged to have taken place during the 2020-2022 civil war in Ethiopia’s northern region of Tigray.

Ethiopians Abrham Meareg and Fisseha Tekle, the latter a former Amnesty International researcher, along with The Katiba Institute, charge Meta with promoting harmful content from November 2020 to November 2022.  Meareg, alleges that his father Meareg Amare Abrha, an academic then in the employ of Bahir Dar University, was killed outside his home in 2021 in the saturating aftermath of threatening, inciting posts on Facebook.  These included details about where he lived, along with false allegations of corruption and the provision of assistance to the Tigrayan People’s Liberation Front.  Tekle, for his part, faced a hail of hateful posts and activity on Facebook for his human rights work in Ethiopia.

As cited in the ruling by High Court judge Lawrence Mugambi, the petitioners also make various other arguments.  One is that Meta’s “Facebook algorithm recommends content that amounts to propaganda for war, incitement to violence and advocacy to the Facebook users in Kenya.”  Meta is also accused of “granting preferential treatment to users in other countries as opposed to Facebook users in Africa”, thereby making it discriminative in nature. “The darker the content,” the petition asserts, “the higher the likelihood it will be prioritized.”

The petitioners demand that Meta make a formal apology for the killing of Meareg Amare Abrhal and establish a restitution fund for victims of hate speech and incitement on Facebook to the value of 250 billion KSH (US$2 billion), with an additional 50 billion KSH (US$400 million) for harm arising from sponsored posts.  The company is to also alter Facebook’s algorithm to halt the promotion of viral hate and adjust the algorithm in favour of demoting incitements to violence, including death threats and doxing.  This would be along lines similar to what was adopted in the aftermath of the US Capitol riots of January 6, 2021.

Important here is also the demand that Meta ensure the recruitment of sufficient numbers of content moderators for Facebook to guard against any repetition of those harms caused in East and Southeastern Africa, with particular attention paid to Ethiopia.

The argument by Meta was a tried and failed one.  Kenyan courts, it argued, could not hear the case, as Meta was not a Kenyan company.  It had contended that the Kenyan Constitution had no extraterritorial reach and could not be said to apply to events taking place in Ethiopia.  Nor did it have a base of operation in Kenya.  Any relevant claim, accordingly, could only be heard in the US judicial system.

The Court found, however, that it was empowered to determine whether rights protected under the Kenyan Bill of Rights were breached, even in the novel circumstances posed by the use of artificial intelligence.  It followed that the petition raised “substantial questions of law”, thereby satisfying the threshold requirements of the Constitution.

As the ruling goes on to mention, “The issues raised are substantial and transcend the interests of the parties involved in the Petition.  These are matters of general public importance relating to the protection of fundamental rights and freedoms in the digital era.”  An uneven number of judges, as stipulated by section 165 of the Constitution of Kenya, will be empanelled by Chief Justice Martha Koome, even as Meta’s legal representatives seek to appeal the decision.

Lawyers representing the company should have known better.  The jurisdictional argument has been run in two separate cases involving the unlawful sacking of content moderators working for Facebook in Kenya in 2022 and 2023.  Kenyan courts have given short shrift to claims that they lack jurisdiction no less than three times.  To this can be added defeats for Meta in the Employment and Labour Relations Court and the Court of Appeal.  This particular High Court ruling is notable for, in its words, helping identify “a clear jurisprudential path that ensures observance of human rights in a borderless digital community.”

Nora Mbagathi, executive director of the Katiba Institute, underlined the salience of the decision: “The court here has refused to shy away from determining an important global matter, recognising that homegrown issues must be addressed directly by our courts.”  Abrham Meareg also had sharp words for Zuckerberg, who “may imagine that justice begins and ends at the US border.”  It is yet another example of holding the conduct of tech behemoths to account for the convulsive information ecosystem they have so blithely created and exploited.