A civil application by American tech giant, Meta, was recently dismissed in a ruling by the Court of Appeal, affirming the decision of a lower court that the company can be sued in Kenya a long-running case outsourced Facebook moderators.
- •Meta argued in the appellate court that the determination made by the Employment and Labour Relations Court was unsustainable because it had no jurisdiction over an American company.
- •In April last year, Justice Mathews Nderi issued interim orders halting the layoffs and allowed the moderators to file a lawsuit against Meta owners in the USA.
- •The verdict by Justices Musinga, Makhandia, and Mativo, issued on September 20th, paves way for the content moderators to press on their demand for US$ 1.6 billion in the labour court as compensation.
“We are satisfied that the trial court appreciated prima facie that there was a threat to the 3rd to 186th respondents’ constitutional right, and therefore, the extension of the orders issued on 20th March 2023 in our view was proper and within the jurisdiction of the learned judge being an appropriate remedy to prevent the respondents’ rights from being infringed in the intervening period as the parties awaited the application dated 17th March 2023 to be heard in merit,” said the ruling.
“We find no improper exercise of jurisdiction or misdirection by the learned judge in the impugned rulings,” the ruling continued.
A bid at settling the case outside of court failed in October 2023, as the controversy has opened a can of worms being litigated in various cases. At the heart of Meta’s defense is jurisdiction, since it contracted local firms to moderate content on the social media website Facebook.
The Case Against Facebook
Facebook is being sued by a South African man, Daniel Motaung and 185 other moderators who claim the social network exploited them in the course of their work. The moderators worked for Samasource Kenya, an EPZ-based outsourcing firm that has since rebranded to Same. According to the moderators’ legal team led by Mercy Mutemi, both Meta and Samasource wanted to lay them off after a petition was filed demanding the companies provide better working conditions for their workers.
According to these workers, moderating Facebook content was a strenuous task that was detrimental to their mental health. Facebook defended themselves by saying these workers were not under their terms of employment and were not liable to compensate them.
“The grounds in support of the application were that the appellants are foreigners; that they were not the employers of the respondents; that there was no employer-employee relationship between them and the said respondents,” the ruling explicated.
Kenya is Setting a Precedent
The moderators charged Facebook’s defense as weak because the company’s operations in Kenya were predominant and profitable. By virtue of this, Mutemi argued that they cannot be extricated from the plight of workers serving to make the platform better locally.
The appellate court, however, set aside orders by Justice Byram Ongaya which ruled that the working conditions of the moderators were not conducive. He had directed Meta to ensure that the psychological care of these workers was enhanced.
The court of appeal noted that such a decision was premature as it dealt with issues of fact and the law. The verdict noted that such a case cannot be determined at the interim stage.
“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement,” the Court explained.
Sama is no longer running content moderation for Meta. The case opens up a can of worms for global companies that outsource workers in Kenya. It could have repercussions for BPOs and their constituent SEZs who are likely to see diminished international clients wary of being sued in the Kenyan jurisdiction.
It also sets a precedent on jurisdiction in the digital age, and who carries the blame between the BPO or the contractor entity.
