Court of Appeal rules Meta can be sued in Kenyan courts over layoffs of content moderators
Meta has suffered a blow after the Court of Appeal dismissed an application challenging the authority of Kenyan courts to handle a case brought by 186 Facebook content moderators.
The social media giant— which owns Facebook, WhatsApp, Instagram and Threads among others — argued that the content moderators cannot pursue the legal claim against the company as Meta was not based in Kenya.
The content moderators sued the company and blocked outsourcing firm Samasource Kenya EPZ from declaring them redundant, pending the determination of their case.
But Meta challenged the cases arguing that the Facebook content moderators failed to meet the legal threshold for the court to allow them to serve the foreign firms with the court documents.
Read: Why civil society wants foreign digital firms probed
In an earlier ruling on March 20, 2023, Justice Mathews Nderi allowed the workers to serve the Facebook owners in their principal offices in the USA.
The judge also issued interim injunction orders, stopping the sackings, pending a hearing of the application.
The appellate court judges said they were satisfied that the trial court appreciated that there was a threat of the content moderators being laid off and it was proper and within the jurisdiction of the Employment and Labour Relations court (ELRC) to intervene, pending the determination of the case.
“Consequently, the appellants’ appeal on this ground is without merit,” Justices Daniel Musinga, Asike Makhandia and John Mativo said.
Meta argued that the ELRC could not assume jurisdiction over a foreign corporation since the Kenya constitution does not apply beyond its geographical limits and the firms are not subject to the constitution.
Further, Meta argued that they are foreign companies with no operations in Kenya and the firm risks paying Sh10 million to the moderators yet they are not their employees.
The Facebook owner also said the content moderators were lawfully terminated and South African Daniel Motaung cannot bring a claim on behalf of undisclosed persons.
Read: Why is TikTok in the hot seat? Understanding Kindiki’s pronouncements
“In the case at hand, as it is an agreed fact that the 2nd and 3rd respondents are foreign corporations, Kenyan law cannot apply to them. There is no permissive law that allows this court to exercise jurisdiction beyond territorial limits over the 2nd and 3rd respondents,” Meta said in court documents.
The content moderators through lawyer Mercy Mutemi submitted that Meta and its former agent Samasource Kenya EPZ, started a redundancy programme to get rid of them in retaliation because of a petition filed by Mr Motaung, alleging poor working conditions.
She further said most of the moderators who are migrant workers would be forced to leave Kenya, and will lose all meaningful access to justice owing to difficulty in accessing the court.
Ms Mutemi argued that Meta and its agents were trading in Kenya, and that Facebook has millions of users in the country and draws revenue from the users through Facebook Pay and Facebook Marketplace.
The firms also pay digital service tax (DST) to the government of Kenya, she said.
The lawyer maintained that in today’s digital world, it is possible for a foreign company to operate fully in Kenya without a physical office in the country.
She said the term ‘carrying on business’ must be interpreted accordingly, taking into account the digital world.
The employees are drawn from various countries in Africa and were engaged at the Content Moderation Centre in Nairobi, which serves the larger Eastern and Southern African Region.
Read: Why Kenya has no Silicon Valley
The moderators sued Meta Platforms, Meta Platforms Ireland Ltd and Samasource Kenya EPZ.
In a separate decision, the court set aside orders given by the court regarding the working conditions of the Facebook content moderators, stating that Justice Byram Ongaya issued final orders at the preliminary stage.
skiplagat@ke.nationmedia.com
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