You glance at your phone after a meeting only to find dozens of missed calls from the same person. While it may seem more annoying than unlawful, legal experts say persistent unwanted phone calls can, under certain circumstances, attract legal consequences in Kenya.
According to Mary Audi and Fridah Muriithi, lawyers at Muri Mwaniki Thige and Kageni (MMTK) LLP Advocates, repeated calls do not have to contain threats to amount to actionable conduct under Kenyan law.
“Repeated calls can still be actionable where they amount to cyber harassment under the Computer Misuse and Cybercrimes Act, harassment under the Protection Against Domestic Violence Act, or an infringement of the right to privacy of communications under Article 31(d) of the Constitution,” the lawyers tell Nation Lifestyle. “The law is concerned with the pattern and effect of the conduct, not only with whether an express threat was made.”
The lawyers note that there is no magic number of calls that automatically transforms an irritating situation into a legal dispute.
“The issue is whether the person wilfully communicates, knowing or ought to know the conduct is likely to cause fear, detriment, or is indecent or grossly offensive.”
The laws at play
Several laws may come into play depending on the nature of the relationship between the parties involved.
Article 31(d) of the Constitution guarantees every person the right not to have the privacy of their communications infringed. Meanwhile, Section 27 of the Computer Misuse and Cybercrimes Act criminalises cyber harassment where communication is intended, or is reasonably likely, to cause fear, distress or other detrimental effects.
The Protection Against Domestic Violence Act may also apply, particularly where the repeated calls come from a spouse, former partner or family member. The Act specifically recognises repeatedly making telephone calls as a form of harassment in domestic settings.
“Repeated unwanted calls by an ex-partner or family member may constitute domestic violence even where no physical violence has occurred,” Ms Audi and Ms Muriithi explain.
Context matters
The context of the calls also matters. According to the lawyers, the legal implications may differ depending on whether the caller is an ex-partner, a debt collector, an employer or a stranger.
For instance, debt collectors and digital lenders could potentially run afoul of the Data Protection Act if they misuse an individual’s personal information. The Act allows individuals to object to the processing of their data and seek compensation where they suffer damage resulting from violations of the law.
Individuals experiencing persistent unwanted calls are advised to keep evidence, including screenshots of call logs, voicemail recordings, text messages and records of any complaints made to authorities or service providers.
“They should keep a dated call log, screenshots of call history, voicemail recordings, SMS or WhatsApp messages, the phone numbers used, and copies of complaints made to the service provider, police, Data Commissioner, or Communications Authority.”
Victims also have several legal options available to them. Depending on the circumstances, they can report the matter to the police, seek restraining or protection orders from the courts, file complaints with the Office of the Data Protection Commissioner, or pursue remedies through telecommunications regulators.
The lawyers further note that mobile service providers can receive complaints and investigate nuisance numbers within the existing regulatory framework.
Importantly, people should not assume that only direct threats warrant legal action.
“A common misconception is that a call must contain a direct threat before it becomes unlawful,” Ms Audi and Ms Muriithi say. “That is not true under the Computer Misuse and Cybercrimes Act, the Protection Against Domestic Violence Act, or Article 31(d) of the Constitution.”
What to do
For anyone facing persistent unwanted calls, the lawyers recommend first asking the caller to stop, blocking the number where possible, preserving evidence and escalating the matter to the relevant authorities if the conduct continues.
So, can someone sue another person over repeated phone calls? Yes, but not simply because the calls are annoying. The crucial question, the lawyers say, is whether the conduct amounts to harassment, infringes on privacy rights or violates other protections provide