Can Kenyan Courts Order Content Off the Entire Internet?

A defamatory video is uploaded to YouTube, a false allegation about a Kenyan company spreads across Facebook, or a private image leaks onto X. The victim goes to court in Nairobi and obtains an order for its removal. The platform complies, but only for users in Kenya, so the content remains visible in London, Dubai and Johannesburg, where the victim's clients, business partners and family abroad continue to see it.

This is the problem of the global takedown order, and it is fast becoming one of the most contested questions in cross-border digital litigation. Kenyan courts have not yet answered it, but the answer will matter greatly to anyone whose reputation, privacy or brand is damaged online, and to every platform that hosts the content.

Why a local order is often not enough

The traditional rule is that a court's orders operate within its own territory, and global platforms have built their compliance systems around that rule. When a court orders content removed, the platform will usually restrict access only for users in that country, a practice known as geo-blocking.

For a victim, geo-blocking is often a hollow remedy. Reputational harm does not stop at the border, and a Kenyan professional with international clients suffers real loss when defamatory material remains visible to those clients abroad. Geo-blocking is also easily defeated by anyone with a virtual private network. What the victim needs is an order with global effect, and that is precisely what the platform will resist, on the ground that the court of one country should not decide what the rest of the world may read.

How courts elsewhere have answered the question

Courts in other jurisdictions have divided sharply on the question.

The Supreme Court of Canada took the boldest position. In Google Inc v Equustek Solutions Inc, it upheld an interlocutory injunction requiring Google to de-index, everywhere in the world, the websites of a company that was selling products in breach of the claimant's rights.¹ The majority reasoned that the internet has no borders and that an order confined to Canada would have been ineffective, because most of the infringing sales were taking place outside Canada. Although Google was not itself a wrongdoer, the Court held that it was the means by which the harm was being done.

That victory proved difficult to enforce. Google went to a federal court in California and obtained an order declaring that the Canadian injunction could not be enforced in the United States.² The lesson is plain: a court may order removal worldwide, but it cannot compel the courts of another country to give effect to its order.

The Court of Justice of the European Union has taken a more measured path. In Glawischnig-Piesczek v Facebook Ireland Ltd, it held that EU law does not prevent a national court from ordering a hosting platform to remove defamatory content worldwide, including content identical or equivalent to the original, provided the court acts within the framework of relevant international law.³ In the same year, however, the Court held in Google LLC v CNIL that EU law does not require a search engine to de-reference results on every version of its service when it gives effect to the right to be forgotten.⁴ European law therefore permits global orders in appropriate cases without making them the norm.

The Court of Justice has also limited which courts may grant such orders at all. In Bolagsupplysningen OÜ v Svensk Handel AB, it held that a claim for the rectification and removal of online content cannot be divided country by country, and may therefore be brought only before a court that has jurisdiction over the whole of the damage.⁵

The Delhi High Court went further than most. In Swami Ramdev v Facebook, Inc, it ordered the platforms to disable defamatory content worldwide wherever that content had been uploaded from India, reasoning that the act of uploading from India vested jurisdiction in the Indian courts.⁶ For content uploaded from outside India, the court confined its order to blocking access by users in India.

Where Kenyan law stands

No Kenyan court has yet made a reported global takedown order against a platform, but the legal tools for one are already in place.

The first is the Constitution. Article 23(3) empowers the High Court to grant appropriate relief where a right in the Bill of Rights has been violated or is threatened, and the Supreme Court has held that the reliefs listed in that provision are not exhaustive.⁷ A victim who frames online harm as a violation of the right to dignity or privacy can therefore invite the court to fashion a remedy that actually works. A remedy that can be defeated simply by crossing a border is, arguably, not an appropriate one.

The second is the Data Protection Act 2019. The Act applies expressly to data controllers and processors that are not established in Kenya but process the personal data of data subjects located in Kenya.⁸ It entitles data subjects to the correction of false or misleading personal data and to the erasure of data processed unlawfully,⁹ and nothing in the Act confines those rights to copies of the data held in Kenya.

The High Court has already enforced the Act against foreign entities. In the Worldcoin case, the respondents included companies incorporated in the United States, Germany, the Cayman Islands and the British Virgin Islands. Having found that biometric data collected from Kenyans had been transferred to servers outside Kenya, the court ordered the respondents to erase that data permanently within seven days, under the supervision of the Data Commissioner.¹⁰ An order of that kind is, in substance, an order with effect beyond Kenya's borders.

The three obstacles

A claimant who seeks a global order from a Kenyan court will nevertheless face three obstacles.

The first is jurisdiction over the platform. Most global platforms have no registered presence in Kenya, so the claimant must obtain the court's leave to serve them outside the country. One of the recognised grounds for leave is that the claimant seeks an injunction as to anything to be done in Kenya.¹¹ A worldwide order reaches beyond that ground, and the claimant will therefore need to rely on another ground or on the court's constitutional powers. The Court of Appeal has held that a Kenyan court assumes jurisdiction over a foreign defendant only once leave has been granted and the defendant has been properly served,¹² so a misstep at this stage can be fatal to the entire case.

The second is comity, the respect that the courts of one country extend to the laws and decisions of another. Content that is defamatory under Kenyan law may be protected speech elsewhere, and a court that orders global removal is in effect applying Kenyan law to readers in other countries. Platforms will argue that this intrudes on the sovereignty of other states, and Kenyan courts will have to weigh that concern against the need for an effective remedy.

The third is enforcement. In practice, a Kenyan order binds a foreign platform only if the platform chooses to comply or a foreign court agrees to enforce it. In the United States, federal law bars the courts from recognising a foreign defamation judgment unless the foreign law provided at least as much protection for speech as the First Amendment.¹³ As the Equustek litigation shows, a platform may also turn to the courts of its home state to block enforcement altogether.

What this means for victims and platforms

For victims of online harm, a global order is possible in principle but should not be assumed. The strongest applications will demonstrate real harm suffered outside Kenya, show that the content is unlawful in most of the places where it can be seen and not merely in Kenya, and explain why geo-blocking cannot protect the victim effectively. Where personal data is involved, the Data Protection Act offers the firmest statutory footing.

For platforms and brands, the warning is equally clear. Kenyan courts already possess the constitutional and statutory tools to make orders that reach beyond Kenya. The first such order will probably come in a case with compelling facts, and once it is made, it will set the terms on which every later application is argued.

The question is no longer whether a Kenyan court can make such an order. It is when one will, and whether the rest of the world will respect it.

Benson Odiwuor is a Nairobi-based dispute resolution lawyer and researcher in internet jurisdiction, who handles dispute resolution in cross-border digital, data protection and online reputation matters. He is also the editor of The BOLD, a legal newsletter focusing on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

For inquiries, contact the author at insights@bensonodiwuor.com or info@bensonodiwuor.com.