In 2022, three petitioners, two Ethiopian nationals and a Kenyan civil rights organization, walked into Kenya’s High Court with an unusual complaint. Facebook’s algorithm was not just showing them objectionable content, it was weaponizing data to amplify hate speech, propaganda and incitement to violence across East and Southern Africa. They alleged that Meta Platforms had failed to moderate hateful posts, allowed doxing (publishing private information on the internet typically to shame or harm individuals), and granted preferential content-moderation treatment to users in other countries while neglecting African countries. The petitioners asked whether Kenya’s Constitution goes beyond borders to hold a tech giant accountable for data decisions made in Kenya but have a wider effect.
The case Meareg & 2 Others v Meta Platforms, Inc. thus became a test of whether Kenya and by extension, Africa, could reassert control over algorithmic harm, data-driven discrimination and the intersection of data protection, hate speech and cybercrime. Today, as our firm embraces TAKE CONTROL OF YOUR DATA, this ruling is essential reading for citizens, data controllers and anyone managing digital rights in the region.
WHAT THE PETITIONERS ALLEGED
The petitioners grounded their challenge in multiple violations of the Constitution:
- Articles 26, 28, 29 and 33: Right to life, right to dignity, freedom and security of the person, and freedom of expression. They argued that Facebook’s algorithm prioritized inciteful content over legitimate speech.
- Article 31: The right to privacy. The petitioners alleged that Meta allowed doxing, the publication of private information to harass or shame individuals, thereby violating the right not to have private affairs unnecessarily revealed.
- Article 27: The freedom from discrimination. They contended that Meta’s moderation granting preferential treatment to users in other countries as opposed to Facebook users in Africa thus being discriminative.
- Article 47: The right to administrative action that is lawful, procedurally fair and rational. The failure to remove hate speech and incitement despite clear Community Standards was, they argued, arbitrary and irrational.
The petition’s proceedings also raised a novel legal question being whether Kenya’s Constitution has extraterritorial application.
META’S DEFENCE: A JURISDICTIONAL GAMBIT
Meta did not seriously contest the factual allegations. Instead, it took a jurisdictional position. Kenya’s courts have no power to regulate a U.S.-incorporated company operating under U.S. law, with no employees in Kenya and no infrastructure there. Meta pointed to its Terms of Service, which mandated disputes be resolved in California, and invoked the doctrine of “constitutional avoidance”. (Constitutional avoidance is the idea that disputes grounded in contract should be resolved contractually, not constitutionally).
Meta also argued that because a third-party contractor that had performed content moderation in Kenya had ceased services in March 2023, there was no longer a sufficient nexus between Meta and Kenya for the courts to exercise jurisdiction.
THE HIGH COURT’S LANDMARK RESPONSE: JURISDICTION OVER ALGORITHMS
The High Court did not buy Meta’s argument. In a certification decision, the Court held that the petition raises substantial questions of law of constitutional and public importance, warranting empanelment of a larger bench.
Several novel and complex issues had come up including:
- Protection of human rights in the age of Artificial Intelligence (AI): Does algorithmic decision-making trigger the same human rights obligations as human decision-making?
- Duty to moderate: Do social media platforms have a legal duty to prevent hate speech, incitement and harm on their platforms?
- Algorithmic bias and discriminatory AI: Can algorithms themselves be tools of discrimination, and who is liable when they are?
- Intermediary liability: When harmful user-generated content is amplified by an algorithm, is the platform liable?
- Transnational and cross-jurisdictional grievances: Can Kenyan courts regulate data decisions made by foreign companies whose effects are felt in Kenya?
Crucially, the Court affirmed that its jurisdiction could not be ousted by the doctrine of constitutional avoidance.
THE DATA PROTECTION AND CYBERCRIME INTERSECTION
What makes the Meareg case significant for data protection and cybercrime is this, algorithmic amplification of hate speech is a data crime.
Under Kenya’s Computer Misuse and Cybercrimes Act, 2025:
- Using a computer system to commit or facilitate hate speech, incitement, or violence is a criminal offence.
- Unauthorized access to or doxing is prohibited and attracts criminal sanctions.
- Using algorithms or automated systems to amplify or distribute such harmful content could constitute “unlawful interference” with computer systems or data.
The Meareg petition essentially asks, when Meta’s algorithm selects, prioritizes and distributes inciteful posts to Kenyan users, has Meta’s system been used to facilitate hate speech in violation of both the Data Protection Act? What about the Computer Misuse and Cybercrimes Act passed in October 2025?
If the answer is yes, and the Court’s certification suggests the petitioners have a credible case, then Meta faces not just civil liability but potential criminal exposure under Kenya’s cybercrime laws, and data protection enforcers (like the ODPC) have grounds to investigate algorithmic discrimination.
CONCLUSION: DATA CONTROL IN THE DIGITAL AGE
Meareg & 2 Others v Meta Platforms, Inc signals that Kenya is no longer a passive bystander in the global data economy. Instead, courts appreciate the substantial questions arise as to whether Kenyans have a right to know how their data is being used, to object when algorithms discriminate, and to demand accountability from the platforms that profit from their information.
This aligns squarely with our Data Privacy Week theme: TAKE CONTROL OF YOUR DATA.For WAREN Law Advocates LLP, cases like Meareg underscore the urgent need for clients to be aware and to audit their data systems, ensure algorithmic fairness, and prepare for a legal environment where “the algorithm decided” is no longer an excuse, it is the beginning of an investigation.