Facebook parent company Meta loses bid to terminate case in Kenya

Facebook parent company Meta has lost a bid to dismiss a lawsuit against it by a former Facebook content moderator in Nairobi over alleged exploitation and poor working conditions.

At the same time, the court gagged the petitioner against prosecuting the suit “in other forums”.

Meta Platforms Inc. (FB.O), the owner of Facebook, wanted court to throw out the suit, arguing that it cannot be tried in Kenya. The company said the local Employment and Labour Relations Court has no jurisdiction to hear the suit lodged by Daniel Motaung’, a South African working in Nairobi.

However, Justice Jacob Gakeri declined to strike out the suit in which the American social media company is accused of failing to provide the content moderators based in Nairobi with adequate psychosocial support after exposing them to graphic content.

The judge, however, found that the petitioner should have furnished Meta with the court papers and ordered him to do so to enable the company respond to the claims raised against it.

Justice Gakeri said that since Meta is not a Kenyan registered company, the petitioner should have sought the court’s authority to furnish the firm with the petition.

At the same time, the judge gagged the petitioner against talking about the suit in public or other forums.

“The orders not to prosecute the matter in other forums are still in force,” said the judge.

The suit is scheduled to be mentioned on March 8 to confirm compliance and for further directions on how the case will proceed to a hearing.

The suit is likely to be precedent-setting because it will determine whether global big tech and social media companies can be held accountable by outsourced workers.

Meta had argued that it ought not to have been sued since the petitioner had been contracted by a third party, Samasource Kenya EPZ, which had been outsourced for content moderation on Facebook.

Meta also owns WhatsApp, Instagram and Messenger.

The international social media firm had stated that the suit was incompetent, bad in law and unsustainable.

Through lawyer Fred Ojiambo, the company argued that Meta Platforms Inc. and Meta Platforms Ireland Ltd, which are listed as respondents in the suit, are foreign corporations and neither resident nor trading in Kenya.

Mr Motaung’ sued the firm in October last year over alleged failure to ensure the mental wellbeing of employees and poor working conditions.

He claimed that he was sacked after questioning the working conditions of the employees based in the Nairobi office.

The firm was sued alongside its local outsourcing agent Samasource Kenya EPZ Ltd (Sama), a company registered in the United States.

“Sama and Meta acted negligently by failing to provide adequate precautions for the safety, health and wellbeing of the Facebook content moderators and exposing them to risk, danger and injury of which they were aware,” he said in the court papers.

In the suit, the sacked worker made 16 demands, including damages for violation of constitutional rights and an order stopping Meta and Sama from interfering with content moderators’ rights to freedom of expression and right to join a workers’ trade union.

He also wants Meta and Sama to “cater for the cost of lifelong treatment for current and former content moderators engaged through Sama for any mental health problems that they may have developed as a result of being content moderators”.

“Content moderation at Facebook has been found to pose a risk to workers’ mental health. Because of their repeated exposure to gruesome content such as beheadings, torture and rape, a significant number of Facebook moderators contract post-traumatic stress disorder (PTSD),” says the petitioner.

“The mental condition may involve among other problems insomnia, flashbacks, panic attacks, difficulty concentrating and difficulty forming human relationships. A serious patient of PTSD may struggle to continue in work.”

He also accuses the company of a deceptive recruitment process and misleading advertisements for the vacancy of a content moderator.

“Between 2019 to date, Sama has issued various notices calling for applications for content moderators. It used the terms Call Centre Agents, Agent and Content Moderator, to mean Facebook Content Moderator. The varying descriptions are deceptive and designed to trick unsuspecting applicants into unknowingly becoming Facebook content moderators,” he claims.

He says Sama engaged about 240 Facebook content moderators in its Nairobi office. They were recruited from Kenya, South Africa, Ethiopia, Somalia, Uganda and elsewhere, the court papers indicate.

The former worker claims that Meta and Sama failed to take adequate steps to guarantee the mental health and wellbeing of the moderators and to invest in programmes and interventions to prevent, mitigate and treat the harmful effects of their work.

He complains that the moderators lack hardship payments, and they are not employed directly by Meta; but by the outsourcing companies such as Sama.

In the suit, he has listed 10 organisations and state offices as interested parties, including the Kenya National Human Rights Commission (KNHRC), Central Organisation of Trade Unions (Cotu), Attorney-General, Ministry of Labour, Social Security and Services, the Export Processing Zone Authority, and the Ministry of Health.

Others are Office of the Data Protection Commissioner, Ministry of Foreign Affairs, Kenya Revenue Authority and Katiba Institute.

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