Kenyans can expect to receive an influx of political messages as we approach the August 2022 General Election. Most political aspirants and candidates will seek to capitalize on the campaign period through use of bulk political Short Message Service (SMS).
Unlike past experiences, the 2022 campaign period will be conducted against the backdrop of the Data Protection Act, 2019 (the Act) and the operationalisation of the Office of the Data Protection Commissioner (ODPC). Further, the Communications Authority of Kenya (CA) in consultation with the National Cohesion and Integration Commission Kenya (NCIC) had previously issued guidelines in July 2017 on the Prevention of Dissemination of Undesirable Bulk and Premium Rate Political Messages and Political Social Media Content via Electronic Communication Networks (the Guidelines). The guidelines apply to all Mobile Virtual Network Operators (MVNOs), Content Service Providers (CSPs) and Mobile Network Operators (MNOs).
The Act is a breath of fresh air when it comes to the protection of personal data relating to Kenyans. It requires the consent of a data subject before processing their personal data. To this end, consent in the form of opting in will be mandatory before sending out political messages to individuals.
Kenyans have in previous election cycles complained of being bombarded with unsolicited political campaign messages sent via SMS. Often, the recipients would wonder how their contact details had been obtained and on what basis they were receiving the political messages. In some instances, hateful and inflammatory political messages aimed at inciting certain segments of the populace would be sent to unsuspecting Kenyans. Given the coming into force of the Act and the requirements outlined in the Guidelines, can Kenyans now expect to see a change in how political messages are disseminated?
We summarise below the Do’s and Don’ts on bulk political messaging as outlined in the Guidelines:
|Political messages must be delivered through licensed CSPs||No political message can be sent out bearing an MNO, MVNO or CSP’s name, logo or slogan|
|Prior to sending a political message, CSPs must make a request to an MNO/MVNO at least 48 hours before sending the message||Political messages cannot contain offensive, abusive, insulting, misleading, confusing, obscene or profane language|
|In transmitting political messages, MNOs, CSPs and MVNOs must comply with all the laws including political campaign periods announced by IEBC||Political messages must not contain inciting, threatening or discriminatory language that may or is intended to expose an individual or group of individuals to violence, hatred, hostility, discrimination or ridicule on the basis of ethnicity, tribe, race, color, religion, gender, disability or otherwise|
|Prior to sending of any proposed political message, an MNO/MVNO must vet its content to ensure compliance with the Guidelines||Political messages shall not contain attacks on individual persons, their families, their ethnic background, race, religion or their associations|
|The MNO/MVNO has the right to refuse the transmission of a proposed political message over its network that it views not to be in compliance with the Guidelines||CSPs shall not send unsolicited Bulk or Premium Rate Content to customers who have not subscribed for the service. CSPs shall ensure that all recipients of political messages have opted into the service. Such opt-in will require the express consent of the recipients and opt-out procedures must be clearly notified to customers and kept functional at all times|
|Where an MNO/MVNO is unable to ascertain through its internal vetting process whether the content of a message is not inflammatory, inciting, hateful or otherwise in violation of the law, they shall refer the content to NCIC for further vetting||CSPs shall ensure that prior to subscribing customers to Premium Rate Content, they have notified the customer of the charges, terms and conditions of such subscription and shall provide the customers with a free-of-charge process of opting out of the subscription at any time|
|In the event and upon determination by NCIC a political message that had already been transmitted elicits an unforeseen negative reaction from the public or any other entity, the MNO/MVNO shall immediately have the right to stop transmission of the message|
|Bulk, premium rate messages and political CRBTs must be communicated in English and Kiswahili language only|
|Bulk or Premium Rate Content shall only be sent out during the day between the hours of 08:00hrs and 17:00hrs||
The ODPC recently faced sharp criticism for taking a ‘soft’ approach when Kenyans took to social media to protest, following revelations they had been registered as members of political parties without their knowledge and consent.
As Kenyans become savvier about their data privacy rights, it remains to be seen how the CA, NCIC and in particular ODPC will react to dissemination of political messages that are non-compliant with the data protection provisions under the Act as well as the requirements under the Guidelines.