On platforms like TikTok, Facebook, X, Instagram and YouTube, provocative dance challenges and sexually suggestive performances by influencers dominate children screens.
The High Court has backed the decision of the State-owned Kenya Film Classification Board (KFCB) to regulate content aired on social media platforms, including TikTok and Facebook, to protect Kenyan culture and moral values.
At the same time, the court held that a legal requirement that all audio-visual videos intended for public display must first be examined and approved by KFCB was impractical, ludicrous, and an unwarranted intrusion of one’s privacy.
“In these contemporary times when any person with a smartphone can use it to take an audio-visual recording and upload it to his or her account in a social media platform where it can be accessed by the public, it is ridiculous to expect the Board to enforce the requirement of examining, approving, classifying and rating all those videos or to demand for the payment licenses before filming and uploading the amateur video recordings,” said the court.
In a judgment delivered by Justice Lawrence Mugambi, the court ruled that the KFCB was within its authority and law in requiring content creators and artistes to pull down audio-visual content that is considered inappropriate.
The judge rejected an argument that the statutory power of the Board only applies to filming done within a conventional film studio and not the audio-visual recordings taken using smartphones for purposes of uploading on social media platforms.
He ruled that KFCB could also regulate amateur videos posted on social media platforms.
“The duty to examine, classify, and rate audio-visual content on any public display to protect the vulnerable members of society, such as children, remains vested in the KFCB and can enforce it regardless of the means of transmission adopted,” said Justice Mugambi.
He made the findings while dismissing a petition filed by an Eldoret-based singer and content creator, William Getumbe Kinyanjui, challenging the Board’s decision to disapprove his two controversial audio-visual songs in January 2024. The Board had directed that Mr Getumbe take down the YouTube videos.
The singer told the court that since he was a social media content creator who regularly posts his content on Facebook, TikTok, and YouTube, he was not subject to regulation by the KFCB.
He contended that the Films and Stage Plays Act was not intended for the regulation of amateur videos recorded, such as those recorded on smartphones and used in social media content.
Hence, he said the Board and its Chief Executive Officer acted outside the provisions of the Act when he was compelled to pay a licence fee of Sh234,200 in respect of the music video uploaded on his YouTube account.
He was also dissatisfied with the KFCB’s move to demand that he pull the video down for exhibiting inappropriate content.
He wanted the court to issue an order prohibiting the Board and its CEO from engaging YouTube, TikTok, Twitter, and Facebook to pull down his social media posts or ban his accounts.
Mr Getumbe also applied for a declaration that it was unconstitutional for KFCB to regulate social media.
“As for the prayer that the Films and Stage Plays Act does not grant KFCB any powers on regulation of social media activities, this prayer is untenable because the regulation applies to audio-visual recording available for public exhibition, the medium through which it is shared is immaterial,” said Justice Mugambi.
The judge also said the board’s demand for licence fees for uploading the videos was null and void.
The court stated that according to the Act, the word ‘film’ is used as a generic term that encompasses ‘any recorded audiovisual medium’ and ‘film making’ as the act of ‘recording on any other audio-visual medium.
“The definition is not by reference to the apparatus used to take the video or the medium through which it is to be transmitted but by the attributes of the recording,” he stated.
Regarding legal conditions for the license and prior inspection of content before publication, the judge said the requirement has been overtaken by events.
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“In this day and age, where any person that has access to a smartphone that can generate an audiovisual recording and upload on any social media platform at any time, the requirement that all persons desiring to record any audio-visual film for public display must obtain a licence from the KFCB is ludicrous,” said Justice Mugambi.
Such a condition can only be implemented more in breach than in compliance, he observed.
He stated that even if the fast-growing technology has brought about challenges in the effective regulation of the entertainment industry, that has not taken away the mandate vested in the Board.
The court held that despite challenges caused by new digital trends, the Board has to protect the vulnerable from harmful audio-visual content that is not age-appropriate and the public generally from undesirable content such as those promoting the abuse of women.
