Kenya’s Court of Appeal Rules Against Meta: A Landmark Decision on Digital Workspaces and Jurisdiction

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Background of the Case

Meta Platforms, Inc. (Meta) and its Irish subsidiary are at the center of two related appeals before the Court of Appeal of Kenya. The cases revolve around allegations brought by content moderators employed by Samasource Kenya EPZ Limited, who claim violations of their fundamental rights due to poor working conditions, unfair labor practices, and discrimination. The case is unique due to the virtual nature of Meta’s business and its involvement with content moderators based in Kenya but employed through third-party companies like Sama.

 

Key Legal Issues in the Appeals

  1. Jurisdiction of Kenyan Courts Over Foreign Entities
    • Meta argued that, as a foreign corporation, it is not subject to Kenyan law, and therefore the Employment and Labour Relations Court (ELRC) has no jurisdiction over it. They contended that Kenya’s Constitution cannot apply extraterritorially to Meta, which is domiciled in the U.S. and Ireland.
    • The respondents (content moderators) countered that Meta has a virtual presence in Kenya through its operations on Facebook and earns revenue from Kenyan users. They argued that Meta’s activities constitute “carrying on business” in Kenya, making it subject to Kenyan law.
  2. Service of Process
    • Meta challenged the validity of the service of the petition, asserting that the content moderators failed to seek the court’s leave to serve Meta outside Kenya.
    • The moderators responded that they obtained proper leave and had served Meta via international courier and email. They further argued that Meta’s extensive operations in Kenya obviated the need for special service procedures.
  3. Employee-Employer Relationship
    • Meta contended that the content moderators were employed by Sama, not by Meta itself, and that there was no privity of contract between the moderators and Meta.
    • The moderators argued that Meta exercised control over their work through Sama and should be held liable for any harm caused.
  4. Interim Injunctions and Their Extension
    • Meta argued that the ELRC improperly extended ex parte interim orders beyond the 14-day limit specified under Rule 17 of the ELRC Rules. The extension, Meta argued, was indefinite and procedurally flawed.
    • The content moderators and their legal team contended that Rule 17 does not apply in constitutional petitions. Instead, the ELRC acted under Article 23(3) of the Constitution, which grants courts broad powers to issue appropriate relief, including extending interim orders to prevent constitutional violations.
 

Judgment of the Court

The Court of Appeal dismissed both appeals, ruling as follows:

  1. Jurisdiction
    • The Court rejected Meta’s argument that it was immune to Kenyan jurisdiction, noting that its virtual presence and operations in Kenya subjected it to the country’s laws. The court highlighted that Meta, through Facebook, interacts with millions of Kenyan users and earns revenue, effectively “carrying on business” in Kenya. Thus, the ELRC had jurisdiction to hear the case.
  2. Service of Process
    • The Court held that the content moderators had followed the proper procedure in serving Meta. Moreover, Meta had engaged with the process through legal counsel, and any failure in procedural aspects was not sufficiently grave to warrant dismissal of the petition.
  3. Employer-Employee Relationship
    • The Court found that the question of whether Meta was an employer required further factual determination at trial. The Court agreed with the ELRC that the nature of Meta’s control over the content moderators’ work warranted investigation and could not be resolved at the preliminary stage.
  4. Extension of Interim Orders
    • The Court upheld the ELRC’s decision to extend interim orders. It ruled that constitutional petitions under Article 23(3) of the Constitution allowed for broad discretionary powers to protect rights pending the full hearing of the case. The ELRC’s decision to extend the orders was within its jurisdiction.

Implications for the Public

  1. Digital Workspaces and Legal Accountability: This case emphasizes that foreign corporations conducting virtual business in Kenya must adhere to Kenyan laws. The notion that online platforms are beyond legal accountability in the countries where they operate is increasingly challenged. Businesses must understand that they may face litigation in any jurisdiction where they have users or operations.
  2. Worker Rights in the Digital Age: The case is significant for workers in Kenya’s growing gig and digital economy. It raises critical questions about the obligations of global companies to provide safe and fair working conditions, even when employing workers through intermediaries like Sama. Workers performing duties for such companies may be able to seek legal recourse if their rights are violated.
  3. Procedural Safeguards in Constitutional Petitions: The decision highlights the courts’ willingness to ensure substantive justice over procedural technicalities, particularly in matters involving alleged violations of constitutional rights. It signals that parties should focus on the merits of the case rather than relying on procedural defenses to derail cases at the interlocutory stage.
 
 
 

Conclusion

The judgment in Meta Platforms, Inc. signifies a growing trend where foreign companies, particularly in the digital economy, are increasingly held accountable under local laws. The Court of Appeal’s ruling underscores the need for foreign corporations to recognize their legal obligations in jurisdictions where they operate, physically or virtually. Furthermore, this case underscores the importance of protecting workers’ rights, especially in emerging digital economies, and the need for robust legal frameworks that adapt to modern work environments.