Kenya’s Court of Appeal has stayed the execution of an order from the High Court that required Safaricom to pull down 141 streaming websites that were airing content pirated from Multichoice Ltd.
The order had been issued on 26th November 2020 to Safaricom PLC, and Jamii Telecom Limited under section 35(D) (2) of the Copyright (Amendment Act) 2019 pending the hearing and determination of the case filed by Multichoice.
However, Safaricom filed an appeal seeking a stay of execution of the ruling and order issued by the High Court.
The appellate judges, Justices Hannah Okwengu, Fatuma Sichale and Jamila Mohammed said, “In this case, if an order of stay is not issued, Safaricom will be forced to comply with the takedown notice.
“Safaricom has demonstrated that this may have serious ramifications for its company, including the risk of civil and criminal sanctions, and the effects of such consequences may be irreversible.”
The court further recognised that “Both Safaricom and MultiChoice have conceded in their submissions that the dispute concerns takedown notices in Copyright (Amendment Act) 2019, which is an emerging area of law (in Kenya).”
In this case, Civil Application NO. E376 of 2020, Multichoice Kenya had moved to court after Safaricom and Jamii Telkom failed to act on its takedown notices.
The Kenya Copyright Board (KECOBO) and Communications Authority (CA) were listed as interested parties in the suit during the high court ruling.
The High Court Order under section 35B of the Copyright Act as amended in 2019 states that, “a person whose rights have been infringed by content to which access is being offered by an Internet Service Provider (ISP) may request by way of a takedown notice that the ISP removes the infringing content.”
However, Safaricom in its appeal argued that effecting the takedown notices would affect the rights of other copyright holders, and expose it to future civil and criminal sanctions from those holders, as well as a backlash from its subscribers and that the damage to its local and international reputation would be irreparable.
Consequently, after hearing the matter, the appellate court said “The upshot of the above is that Safaricom has satisfied the conditions for granting an order of stay of execution under Rule 5(2)(b) of the Court Rules, and deem it appropriate that we grant an order of stay of execution of the order of the High Court issued on 26th November 2020 pending the hearing of the appeal and order that costs of the application shall be in the appeal.”
