Case Summary and Outcome

The High Court of Kenya ruled that it had jurisdiction to hear a petition against Meta Platforms, Inc., the parent company of Facebook, and certified the case for hearing by a multi-judge panel. The petition concerned Meta’s alleged failure to regulate harmful content on its platform. It arose from claims that Meta’s content moderation practices and algorithms facilitated the spread of inciteful, hateful, and dangerous content, resulting in serious harm in Kenya and other African countries. The Court rejected Meta’s application to dismiss the case for lack of jurisdiction, finding that the alleged violations of constitutional rights fell within its authority under Article 165(3)(b). It further found that the case involved disputed facts about the company’s operations in Kenya, which required examination at trial. The Court concluded that the issues raised involved fundamental constitutional rights and could not be resolved without a full hearing. It also noted that the petition raised novel and complex legal questions concerning digital rights, corporate responsibility, and the cross-border effects of online expression.

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Facts

A petition was filed before the High Court of Kenya by Tekle Fisseha Mengistu, Abrham Meareg, and the Katiba Institute (collectively, the petitioners), challenging the conduct of Meta Platforms, Inc., the parent company of the social media platform Facebook (the respondent). The petition concerns Meta’s alleged failure to regulate harmful content on Facebook, particularly in relation to Kenya and other African countries.

The first petitioner, Tekle Fisseha Mengistu, is an Ethiopian citizen. He alleges that inciteful and dangerous content posted on Facebook led to violations against his family in Ethiopia, including the murder of his father, which forced his family to flee to the United States. The content in question was allegedly moderated at Meta’s content moderation centres located in Nairobi, Kenya. [para. 55]

The second petitioner, Abrham Meareg, is also an Ethiopian citizen and a researcher residing and working in Kenya. He claims to have been the target of hateful, inciteful, and dangerous comments while living in Kenya, where he continues to reside. He is the son of Professor Meareg Amare, who was killed during the Tigray War following Facebook posts that targeted him. Abrham Meareg believes that these hostile posts contributed to his father’s death.

The third petitioner, Katiba Institute, is a Kenyan civil society organisation that advocates for constitutionalism, the rule of law, and human rights in Kenya, standing “as a person acting in the public interest and representative of Facebook users in Kenya, who may pursuant to Articles 22 and 23 of the Constitution, institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been violated or threatened” [Para 62(x)].

The petitioners brought this action in their individual capacities, on behalf of a class of Facebook users in Kenya and across Africa, and in the public interest. They asserted that the High Court of Kenya has jurisdiction to hear the matter, citing Meta’s content moderation operations in Nairobi, its advertising and business activities in Kenya, and the direct impact of Facebook content on users in the country.

The respondent, Meta Platforms, Inc., is incorporated in the State of Delaware, United States, and is the parent company of Facebook. The petitioners allege that Meta controls content moderation policies and algorithms on the Facebook platform, including those affecting users in Kenya and the wider African region.

The cause of action is based on the alleged failure by Meta to uphold fundamental rights under the Constitution of Kenya, 2010, particularly those related to freedom of expression and protection from hate speech and incitement to violence.

The petitioners claim that Meta’s actions and omissions violated multiple constitutional provisions by enabling and amplifying harmful content during the Tigray conflict. They cite Article 33(2), which prohibits incitement to violence and hate speech, as well as other rights including the right to life (Article 26), dignity (Article 28), non-discrimination (Article 27), security (Article 29), privacy (Article 31), consumer protection (Article 46), and access to justice (Articles 47, 48, and 50).

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Decision Overview

The main issue before the Court was not the substantive determination of the alleged human rights and freedom of expression violations, but rather two preliminary applications: one by the respondent, seeking to strike out the petition for lack of jurisdiction; and the other by the petitioners, seeking certification of the petition as raising substantial constitutional questions requiring referral to a multi-judge bench.

The respondent, Meta, challenged the jurisdiction of the High Court of Kenya. It argued that the Kenyan Constitution does not apply extraterritorially, and that the alleged harms occurred outside Kenya and involved non-Kenyan citizens. Meta claimed it had no employees or infrastructure in Kenya and that its third-party content moderation contract in the country ended in March 2023. It characterised the dispute as contractual, governed by Terms of Service with a forum selection clause naming the United States, and invoked the doctrine of constitutional avoidance, arguing the case should be resolved through contract law rather than constitutional litigation. Meta sought to strike out the entire petition or, alternatively, to remove the claims brought by the non-Kenyan petitioners.

In response, the petitioners and interested parties argued that the case was rooted in violations of fundamental rights under the Kenyan Constitution, not merely a contractual dispute, and thus fell squarely within the High Court’s jurisdiction under Article 165(3)(b). They pointed to Meta’s promotion of harmful content to Kenyan users via its algorithm, its regional moderation infrastructure potentially located in Kenya, and its advertising operations directed at the Kenyan market as establishing a sufficient link to Kenya. They argued that Meta’s application relied on disputed facts—particularly regarding its operational presence and impact in Kenya—which should be determined at trial. They further contended that the doctrine of constitutional avoidance did not apply when clear constitutional rights violations were alleged, and when the claims extended beyond Meta’s Terms of Service.

The petitioners further submitted that the case raised novel and complex constitutional questions involving digital human rights, algorithmic accountability, content moderation duties, corporate responsibility for transnational harms, and internet governance. They argued that these issues warranted certification for consideration by a multi-judge bench.

The Court considered both applications. On Meta’s request to strike out the petition, the Court held that striking out is a severe measure to be used sparingly, and that it differs from a preliminary objection, which must be based on uncontested facts. Since Meta’s application involved disputed factual issues, particularly the connection between Meta’s actions and Kenya, the Court found it was not appropriate for summary dismissal.

The Court rejected Meta’s jurisdictional challenge, stating that the alleged violations of constitutional rights, including those arising from content moderation and its impact in Kenya, fell within its authority under Article 165(3)(b). It explained that the case “perfectly falls within the purview of this Court’s jurisdiction to consider under Article 165(3)(b) of the Constitution.” The Court also reiterated that the Constitution binds every person within the Republic. [para. 135]

The Court further determined that the doctrine of constitutional avoidance did not oust its jurisdiction, as the petition raised fundamental human rights concerns requiring constitutional interpretation that went beyond a simple contractual dispute. It noted that constitutional avoidance does not apply when the constitutional violation is clear, there’s no apparent alternative relief, or seeking non-constitutional resolution would be futile.

The Court concluded that the petition presented significant constitutional concerns that merited a full hearing: “This petition is one that warrants to be given a chance and be heard on merits as opposed to terminating it summarily at a preliminary level.” [paras. 136–137]

On the petitioners’ application for certification, the Court analysed the meaning of a “substantial question of law” based on precedent. Relying on guiding precedent, including the Indian case of Sir Chunilal Mehta & Sons Ltd v. Century Spinning and Manufacturing Co. Ltd, the Court emphasized that a “substantial question” is one of “general public importance” or one that “directly and substantially affects the rights of the parties” and is “not finally settled” or is “not free from difficulty.” Such a question affects the parties but transcends the case’s circumstances, has a significant bearing on public interest, and involves a state of uncertainty in the law.

Applying these principles, the Court found that the petition raised several unsettled and weighty constitutional issues. It acknowledged the need for judicial interpretation of the extent to which digital platforms may be liable under the Kenyan Constitution for algorithm-driven decisions, including whether such systems amplify harmful content or exhibit regional bias and discrimination, thereby implicating the constitutional guarantees of equality and non-discrimination.

The Court also identified the need to determine whether decisions made abroad, but with impacts within Kenya, could fall under its constitutional jurisdiction—and whether actions taken within Kenya may give rise to human rights violations elsewhere.

It concluded that the issues raised were of broad public importance and central to the evolving understanding of fundamental rights in the digital age. The Court observed that: “The resolution of the present dispute will go a long way in charting a clear jurisprudential path that ensures observance of human rights in a borderless digital community.” [para. 149]

Accordingly, the Court dismissed Meta’s application to strike out the petition and granted the petitioners’ application for certification. The matter was referred to the Chief Justice for empanelment of a bench of at least three judges to hear and determine the substantive constitutional issues raised.

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