Court upholds KFCB's authority to regulate social media content

In a significant ruling, the High Court has confirmed the Kenya Film Classification Board’s (KFCB) legal authority to regulate content on social media platforms such as TikTok, YouTube, and Facebook, citing the need to safeguard Kenyan cultural and moral values.

The decision, delivered by Justice Lawrence Mugambi, reinforces the Board’s role in overseeing the content circulated on these platforms, marking a crucial moment in the ongoing debate over internet freedom and content regulation in the country.

However, the court also made a critical distinction, ruling that the requirement for all audio-visual content to be examined and approved by the KFCB before being published is impractical and an infringement on personal privacy.

Justice Mugambi pointed out that in today's digital age, where anyone with a smartphone can upload videos to social media, it would be unreasonable to expect the Board to review every video before it is shared publicly.

"In these contemporary times, when anyone with a smartphone can record a video and upload it to social media for public access, it is ridiculous to expect the Board to enforce the requirement of examining, classifying, and rating every such video—or to demand licence fees prior to filming and uploading amateur content," he said.

The ruling stemmed from a case involving Eldoret-based singer and content creator William Getumbe Kinyanjui, who had been ordered by the KFCB to take down two controversial music videos posted on YouTube earlier this year.

Kinyanjui argued that his content, which was created using a smartphone and uploaded to platforms like TikTok and Facebook, did not fall under the purview of the Films and Stage Plays Act.

He contended that the Act was meant to regulate traditional film production, not amateur social media content, and challenged the KFCB’s demand for a Sh234,200 licence fee.

Kinyanjui also sought to stop the Board and its CEO from influencing social media platforms to remove his posts or block his accounts.

Despite his claims, the court dismissed his petition, siding with the KFCB.

The court made it clear that the Films and Stage Plays Act does not differentiate between professional and amateur content, nor does it exclude digital platforms from its scope.

"As for the prayer that the Films and Stage Plays Act does not grant KFCB powers to regulate social media activities, this claim is untenable. The regulation applies to any audio-visual recording available for public exhibition," Justice Mugambi concluded.

The ruling has wide implications for social media content creators in Kenya, reinforcing the government’s position on the regulation of online platforms while also highlighting the challenges of balancing privacy with public interest in the digital age.