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Facebook slammed in court for trying to dodge Kenyan whistleblower’s lawsuit

Daniel Motaung worked on Facebook content in Nairobi – but tech giant’s lawyers claim Kenyan law doesn’t apply

Mukanzi Musanga.jpeg
Mukanzi Musanga
29 July 2022, 11.59am
Four Teenagers take a selfie on the KICC building overlooking Nairobi
Hugh Mitton / Alamy Stock Photo

Facebook was accused in court this week of misunderstanding basic human rights law after it tried to claim it wasn’t responsible for traumatising a content moderator who watched a beheading video.

Facebook is claiming immunity from Kenyan law in an attempt to avoid dealing with outsourced content moderators in the East African country who watch disturbing and harmful content as part of their jobs.

Daniel Motaung, who worked as a content moderator in Nairobi, is suing Sama, Facebook’s main outsourcing contractor in East Africa. Lawyers for Meta, Facebook’s parent company, argued in June that the Kenyan court has no jurisdiction over the company because it is “not resident, trading or domiciled in Kenya”.

At a court hearing in Nairobi on Wednesday, lawyers for Motaung asked the judge not to let Meta off the hook. Lead counsel Mercy Mutemi said Meta’s position was a “bold misapprehension of the constitution as well as fundamental principles of human rights law”.

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Motaung sued both Facebook and the tech company Sama (specifically Samasource Kenya EPZ Ltd, the Kenyan branch of the California-based multinational) in May for forced labour, human trafficking and union-busting.

Earlier this year, Motaung came out as a whistleblower to say that content moderation work for Facebook – which included him watching at least one beheading – was hazardous to mental health and poorly paid, and that the psychological care provided by Sama was inadequate. His attempts to form a union, in order to negotiate for better terms and conditions, were squashed, and Sama sacked him.

He also said the advert for his job had not mentioned that he would have to sift through disturbing content.

Motaung, who is a Black South African, started working for Sama in 2019. He was contracted to relocate from South Africa to Kenya, to work as a moderator of Zulu-language content on Facebook. Sama’s Nairobi office is the main hub of Facebook’s content moderation operation for the whole of sub-Saharan Africa.

In 2020, Facebook agreed to pay $52m in compensation to more than 11,000 content moderators in the US for mental health issues developed while on the job. Moderators were exposed to a range of disturbing content, and some of them developed PTSD, depression and other problems.

During the Nairobi hearing on Wednesday – attended by openDemocracy – Motaung’s lawyer Mutemi also said that by collecting the personal information of Kenyans and benefiting vastly from this information, Meta voluntarily submitted itself to the jurisdiction of any court in Kenya.

The judge set the next hearing for 22 September.

Double standards

Separately, Facebook and Sama have been accused of trying to silence Motaung after their lawyers, Terry Mwango (for Sama) and Fred Ojiambo (for Meta), earlier asked the judge to stop Motaung speaking publicly and to the media about his experiences. Ojiambo called it a “complete and total contempt” of court proceedings, and asked the judge to “crack the whip” on Motaung with a gag order. The judge refused to grant the gagging order.

Frances Haugen, the American whistleblower who released thousands of documents on Facebook’s business practices in 2021, called Meta’s application “unjust” and “a double standard applied to Daniel for following his conscience the same way I did”.

Meta has not brought any formal proceedings against Haugen, who testified before the US Senate on Facebook’s practices and continues to speak publicly about the documents she released.

Last week, Haugen joined more than 80 lawyers, writers, trade unions and campaigners in signing an open letter calling on both Meta and Sama to “cease attempts to silence South African whistleblower Daniel Motaung”.

The letter directly compares what happened to the two whistleblowers, saying that “Facebook’s treatment of a low-paid, Black whistleblower is all the more shocking when compared to its response to other whistleblowers with more privilege and profile.”

The letter came just days after Meta published its first human rights report, saying that it complies with principle 15 of the UN Guiding Principles on Business and Human Rights, which asks companies to “know and show that they respect human rights”.

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