Often on social media, we come across intimate images and videos of individuals who we most probably do not know. At times these intimate images and videos are of prominent personalities; either politicians, journalists, musicians, actors etc. For many on social media or the internet generally, these intimate images and videos are a source of unending entertainment. Unfortunately, in most cases, the persons depicted in these images and videos have not given consent for the same to be shared with third parties. These images and videos go viral causing mental and emotional anguish to the concerned parties.

Intimate images and videos are usually shared in a private context. Often it is a couple in some sort of sexual relationship that take naked photos or videos of themselves and share with each other. The videos may even be of the couple engaging in sexual activities. In this context however, there is a trust relationship between the two persons. The images and videos are meant for the exclusive consumption of the two. When the images and videos are being taken and shared, it is not contemplated that they will be availed to third parties.

Notwithstanding the context, at times, the intimate images and videos find themselves in the hands of third party audiences. This may happen through hacking or as is often the case, one of the parties in the intimate relationship decides to leak the images and videos out of malice; the aim being to embarrass and cause emotional and mental anguish to the other party.

The rule of thumb should be:  ‘DO NOT FILM YOURSELF HAVING SEX’ or ‘DO NOT TAKE NUDES OF YOURSELF AND SHARE THEM’. But, we all know these rules do not apply in a normal setting.

The dictionary definition of revenge porn is – ‘revealing or sexually explicit images or videos of a person posted on the Internet, typically by a former sexual partner, without the consent of the subject and in order to cause them distress or embarrassment.’

Kenya does not have laws that specifically deal with revenge porn. Nonetheless, several provisions of the law may be applied by persons aggrieved by revenge porn. In my submission to parliament on the computer misuse and cybercrime law, I proposed the following provision to deal with revenge porn –

“A person who, individually or with others intentionally discloses, communicates or distributes the image of an identifiable person in a state of nudity or engaged in sexual activity, when the person has an expectation of privacy, with the intent to harm, harass, intimidate, threaten, or coerce the depicted person commits an offence and is liable, on conviction, to a fine not exceeding seven million shillings or to imprisonment for a term not exceeding four years, or to both.”

 Unfortunately my proposal was never taken on board. It deals with the context of sharing intimate images, the expectations by parties, the intent of sharing the images, the effect of sharing the images, the actual sharing and the sanctions applicable.

As I have indicated above, we may use several laws and legal principles to deal with revenge porn in Kenya.

One, where the images are of a public figure with image rights, they may sue the infringing party for use of their intimate images without their consent. But, it is important to note that the concept of image rights is not well defined within Kenyan law.

Two, one may sue for defamation depending on the context the images are shared. A defamation suit is basically to protect the reputation of an individual. Article 33(3) of the Constitution provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

Three, one may sue for breach of privacy. While we do not have any concrete privacy and data protection laws, Article 31 of the Constitution provides –

“Every person has the right to privacy, which includes the right not to have—

(c) information relating to their family or private affairs unnecessarily required or revealed; or

(d) the privacy of their communications infringed.”

Using Article 31, one may argue that their private affairs have been unnecessarily revealed or the privacy of their communications have been infringed.

Four, where intimate images are shared with persons below the age of 18, the Sexual Offences Act comes into play. Section 11 (1)     of the Sexual Offences Act provides that any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. The Act defines an indecent act to mean an unlawful intentional act which causes exposure or display of any pornographic material to any person against his or her will.

Five, one may explore the provisions of Section 27 of the Computer Misuse and Cybercrimes Act, 2018 provides the following in relation to what it terms as cyber harassment –

(1) A person who, individually or with other persons, wilfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct—
(a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or
(b) detrimentally affects that person; or
(c) is in whole or part, of an indecent or grossly offensive nature and affects the person.

(2) A person who commits an offence under subsection (1) is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both.
(3) A person may apply to Court for an order compelling a person charged with an offence under subsection (1) to refrain from—
(a) engaging or attempting to engage in; or
(b) enlisting the help of another person to engage in, any communication complained of under subsection (1).

A reading of Section 27 of the Computer Misuse and Cybercrimes Act indicates that revenge porn may be interpreted to be cyber-harassment.

Simply put, engaging in revenge porn may attract legal sanctions in Kenya.