My name is Alex. I am 30. I broke off my engagement with my fiancé in late September 2021. She had become so manipulative and emotionally abusive that it took encouragement from my family and friends to quit the relationship. Ever since we broke up, she has subjected me to untold trauma and cyber bullying. She started by sending me abusive texts, and I thought she was just reacting to our break up. But it has now gotten so bad that she is hurting my family and friends. She has created fake profiles online using my name and my sensitive photos I had shared with her in our happier days. She has also photo-shopped nude pictures of my close friends and sent them out to telegram channels saying that we are a boys’ club of commercial sex workers. Three weeks ago, I woke up and found my car sprayed with expletives in our estate driveway. I know she is the one doing this because it all started after we broke up. I can’t bear this emotional torture anymore. What should I do to protect myself from her legally?
Harriet Onyiego, an Advocate of the High Court of Kenya, and a Member, Young Lawyers Committee, East Africa Law Society.
Alex, your situation can be termed as revenge cyber bullying. This is what the Computer Misuse and Cybercrimes Act, 2018 terms as cyber-harassment. However, the legal burden of proof lies with you. You need to collect evidence that can show a court of law the nasty things your former lover is doing. This will involve ascertaining and showing beyond doubt that indeed it is your former girlfriend who is behind the torture. You will also need to provide a background behind your predicament, and show that you have never given her consent to share any of your private information. This includes phone numbers, images or even videos.
You will then explain how her actions have impacted your life. You may then file either a civil or criminal claim in court against your ex. If for instance, she has been intimidating you on cyber space, you can bring up criminal charges. You can rely on the provisions of section 238 of the Penal Code.
Where your privacy has been breached, Article 31 of the Constitution of Kenya, 2010 will be critical in pursuing a claim for breach of privacy. Among the arguments you should put across is that your private affairs have been preposterously revealed and the privacy of your communications has been overstepped. Section 27 of the Computer Misuse and Cybercrimes Act, 2018 prohibits your ex from communications that would detrimentally affect you.
Whereas Article 33 of Constitution of Kenya, 2010 provides for freedom of expression for your ex-girlfriend, it does not give her freedom to act in whatever manner she likes. Specifically, Article 33(3) obligates her to respect your rights and reputation. This means that you can also sue her for defamation for the materials she has published online.
*****
Moses Tumu is an Advocate of the High Court and the Partner in charge of Litigation at Musa Boaz & Thomas Advocates
Cyber bullying involves negative use of technology, especially the social media space to harass, threaten, embarrass, nag or target another person in order to hurt and embarrass them. As such, you can seek a claim against your ex including a prohibition from further bullying through the Computer Misuse and Cybercrimes Act of 2018. The offensive text messages she is sending you can form evidence for cyber harassment. Section 27 (1) of the Computer Misuse & Cybercrimes Act of 2018 specifically prohibits your girlfriend from continuing to send you these texts, and especially where you have made it clear that they are not welcome. If she continues to send, she may be found liable to a jail term of ten years or fines of up to twenty million.
The revenge porn photos leaks, whether photoshopped or real, do not only infringe on your right to privacy but can also result in both civil and criminal consequences against your former girlfriend. Even if she got the images from you, posting them on social media and adult websites is illegal according to the Computer Misuse & Cybercrimes Act of 2018, section 37.
Whether with consent or not, posting nudity is illegal and criminal and the Computer Misuse & Cybercrimes Act specifically prescribes a sentence of not more than two years in jail or Sh200,000 fine. You may sue for defamation as your photos leakage constitutes a breach of privacy under article 31 of the constitution.
Make a complaint to the police for investigations to be done against your ex. It would be better if you can readily show proof as cyber cases can easily collapse in court if there are no tech savvy investigators to collect proper evidence. You can also approach the court and obtain orders barring your ex from leaking or publicising your private details. If she still carries on despite the court orders, you can petition the court that she be held liable for damages. BY DAILY NATION