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By Juliet O. Nyangái

The global Covid-19 pandemic has given rise to altered lifestyle altogether; with the lockdown and social distancing guidelines, this have paved way for a rise in privacy related crimes. Some of the factors triggering digital crime include; more shiftless time during self-isolation thus creating more access to social media platforms, heightened alcohol and substance abuse which affects mental health and inhibits thinking plus more time with a partner thus access to a partner’s digital devises.

Leaking Nudes

With rise of the digital era, leaking nudes has become a new form of sexual violence. This week, the social media space in Kenya has been awash with leaked nudes, screenshots and graphic photos of people associated with a certain Kenyan ‘’celebrity’’. From blogs, WhatsApp groups and twitter, a sensational story and intimate photos have been trending of an alleged ‘’boys club’’ that ostensibly has multiple sexual exploits with women and discusses the same in detail in a WhatsApp group. If indeed true, debauchery would be a befitting term for the case scenario!

A certain blog reports, that after one of the boys purportedly shares intimate moments with a lady, he then shares the lady’s photos and personal contact details of the lady in the said group. There are rumors of leaked sexually explicit digital photos and videos. Persons who have viewed the same have in summary, described them as heart scalding! Unless one is in the adult entertainment industry, having one’s intimate details publicly revealed even to a group of friends is unwarranted.

Is Intimate Image Abuse – A Human Right Violation

Intimate Image Abuse usually has devastating and profound impact on the victims. It is reported that some victims even resort to suicidal thoughts and suicide. There are many cases whereas the victim instead of receiving support, is subjected to ridicule, taunting and even tables turned to them being portrayed as the wrong-doer.

Intimate Image Abuse occurs when one’s photos, pictorial, images or video recordings are shared, distributed or circulated without one’s consent. There are arguments that there is no ill done if a party willingly consented to taking of the images or recordings but this stance is ignorant as it is unsound. Sharing another’s intimate images without their express permission or authorization is immoral, ill-informed and can attract legal sanctions.

Intimate Image Abuse and Revenge porn undermines human dignity, a Constitutional right as enshrined under Article 28 of the Constitution of Kenya. Every person has inherent dignity and the right to have that dignity respected and protected.

Further, intimate image abuse violates the right to privacy as envisaged in Article 31 of the Constitution of Kenya. The same stipulates that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communication infringed.

In perpetrator’s defense, one could argue ‘’freedom of expression’’ which is not sufficient justification. Article 31(3) of the Kenya Constitution states that even the exercise of the right to freedom of expression, every person shall respect the rights and the reputation of others.

Mugambi Laibuta a Privacy and Data Protection Advocate who has written extensively on his area, opines that sharing of personal or private information about someone else thus causing embarrassment and humiliation is unlawful and criminal conduct. He states that a reading of Section 27 of the Computer Misuse and Cybercrimes Act indicates that both revenge porn and intimate image abuse could be interpreted as cyber-harassment. Criminal Lawyer Cliff Ombeta reiterates Mr Laibuta’s sentiments and is of the view that even in the absence of explicit legislation, one may file cyber security or privacy related charges.

What paves way for Intimate Image Abuse?

Coupled with increase of digital platforms, there are other factors which have catalyzed intimate image abuse and revenge porn in Kenya;

Patriarchy – Most image abuse laws are perpetrated towards women because of the gender and a perceived male superiority complex. When it comes to any form of sexual violence, women are disproportionately discriminated and harassed thus the more cases of digital sexual crime against women.

Weak and Ambiguous Laws – Kenya has made great strides in cyber security and crimes laws with the enactment of the Computer Misuse and Cybercrimes Act, 2018. Nonetheless, there is still a lack stringent privacy laws that control the use, dissemination and distribution of personal information.

Retrogressive Cultural Beliefs – Discriminatory cultural perceptions and beliefs that perpetuate women as powerless and mere objects fuel digital sexual assault and violence towards women.

Way Forward

One of the best modes of combatting crimes and essence of rigorous law is deterrence. Human beings fear punishment. Even as there exists several provisions of the law that can be applied by victims, Kenya does not have explicit laws on intimate image abuse or revenge porn. There is thus a need for enactment of progressive legislation that is clear, concise, publicized and applied evenly to protect fundamental rights of persons affected by intimate image abuse.

A Safe line to assist the victims would be most handy especially during this pandemic season. Psychology has it that trauma can have lasting effects and intimate image abuse can jeopardize both present and future relationships. Helpline counsellors ought to be skilled in dealing with such cases to enable them offer sober advice and support without judgement.

Finally, there is need for deliberate public awareness of the vitality of digital privacy. Some perpetrators and their cheerleaders are unaware of how much their misdeeds could cause emotional distress, extensive harm and psychological trauma to the victim/s and relatives to the victim. When the perpetrator is publicly heralded and deemed the victim and the victim is scorned and bullied, then there is clearly a lack of available information and support regarding the dangers and consequences of the subject matter. Information is a good thing because it would make many think, before applauding the perpetrator and better, even before, pressing that send button!

The above article appeared on the African Warrior Online Magazine on 22nd of May, 2020

The author is a Researcher, Consultant and Advocate of the High Court, Principal Partner at Juliet Nyangai & Company Advocates. She specializes in Public International Law, International Criminal Law and Human Rights. She has apt interest in Forensic Psychology and Criminology.

Ms J.O Nyangái can be reached on:

Twitter: @nyangaij   Email: nyangaij@gmail.com

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