The Teachers and the TikTok Classroom in Kenya

Introduction

The intersection of Kenya’s vibrant digital culture and its teaching profession has generated a complex legal and regulatory landscape that demands careful analysis. On 13 August 2026, the Teachers Service Commission issued Circular No. 14/2026, telling all teachers that professional standards apply equally in digital and social media spaces. This directive, while framed as a necessary response to growing concerns about online misconduct, opens serious questions about the scope of constitutional rights, the limits of employer regulation, and the protection of children’s data in an increasingly connected world.

The phenomenon that prompted this circular reflects a broader social transformation. Young teachers across Kenya have embraced social media platforms as spaces for professional expression, creating content that offers the public glimpses into classroom life.

Some dance with learners. Others sing. Many record classroom activities or share humorous interactions with students. These videos have attracted massive following, with some teachers building substantial online audiences. But this organic cultural development has collided with regulatory concerns about professional boundaries, data protection, and appropriate teacher-learner relationships.

The circular was not unexpected. Concerns about teacher conduct on social media have been growing steadily. Yet its language and implications deserve careful examination. The legal questions arising from this collision are multifaceted. How should constitutional rights to freedom of expression and privacy be balanced against professional obligations? What constitutes lawful processing of children’s personal data in educational contexts? Does a circular that carries disciplinary consequences require public participation, or does it fall within the category of administrative guidance that may be issued without full statutory instrument procedures? These questions touch upon administrative law, constitutional law, data protection, children’s rights, and employment law. This article examines the legal framework governing teacher conduct online, analyses the TSC circular against that framework, and identifies areas requiring further legal development.

The Phenomenon and Its Context

Young teachers have taken social media platforms by storm. They give Kenyans a glimpse into their day-to-day experiences in the classroom. Some dance with learners. Others sing. Many record classroom activities or share humorous moments with their students or pupils. These videos have become popular, with many social media users praising the teachers for making learning more engaging.

Behind the entertainment lies a growing question. Where does content creation end and professional misconduct begin? In some cases, teachers have been filmed dancing with learners in ways that raise questions about appropriate boundaries. The videos attract millions of views, but they also generate debate about what is acceptable for a teacher to post online.

The TSC circular responds to these concerns. It states that the Commission is concerned about the prevalence of unprofessional behaviour by teachers on social media platforms. It warns that teachers who misuse digital platforms could expose themselves and the Commission to legal liabilities, including in relation to processing, sharing, and protection of personal data involving learners and fellow teachers. The circular warns warns that teachers found to have engaged in cyberbullying or unprofessional conduct on social media will be subjected to disciplinary measures under the Teachers Service Commission Act, the Code of Regulations for Teachers, and other relevant legislation.

The Constitutional Foundation

Freedom of Expression Online

Article 33 of the Constitution of Kenya guarantees freedom of expression. This includes the freedom to seek, receive, and impart information and ideas. The right extends to digital platforms. Teachers who create and share content online are exercising constitutional rights.

But the Constitution also contemplates limitations. Article 33(2) provides that freedom of expression does not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred that constitutes ethnic incitement, vilification, or discrimination. The circular correctly identifies these boundaries.

The problem lies in the broader language used in the circular. It warns against conduct that “diminishes the dignity and integrity” of the teaching profession. This standard is considerably broader than the constitutional exceptions to freedom of expression. What constitutes a diminution of dignity? The circular does not say. This raises legitimate concerns about vagueness and potential overreach. Teachers cannot be certain what conduct crosses the line. This uncertainty may have a chilling effect on legitimate expression.

The Supreme Court of Kenya has emphasised that limitations on constitutional rights must be clear, specific, and justified under Article 24 of the Constitution. In Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR), the Court of Appeal declared sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2016 unconstitutional for being too broad and likely to net innocent persons. The court noted that where Parliament creates offences that affect freedom of expression, the provisions must be sufficiently precise to enable citizens to regulate their conduct. This principle applies equally to administrative circulars that carry disciplinary consequences.

The Right to Privacy

Article 31 guarantees the right to privacy. This includes the right not to have information relating to family or private affairs unnecessarily required or revealed. It also includes the right to privacy of communications.

The Data Protection Act, 2019 operationalises this constitutional right. Section 3 states that the object of the Act is to protect the privacy of individuals and regulate the processing of personal data. Section 33 specifically addresses processing of children’s data. It requires parental or guardian consent and processing that protects and advances the rights and best interests of the child.

The TSC circular references the Data Protection Act. This is legally accurate. A teacher who records a learner and shares that recording on social media is processing personal data. The teacher becomes a data controller with corresponding obligations.

The Best Interests of the Child

Article 53(2) provides that a child’s best interests are of paramount importance in every matter concerning the child. The Children Act,202 elaborates this principle. Section 8 requires that all actions concerning children treat the interests of the child as the first and paramount consideration.

When teachers share content featuring learners, they must ensure such processing serves the child’s best interests. This is not merely a professional concern. It is a constitutional obligation. The Office of the Data Protection Commissioner’s Guidance Note on Processing Children’s Data provides important guidance. It emphasises that children’s personal data must never be treated as a commodity. It must be processed lawfully, fairly, and transparently. The primary purpose must be to protect children’s rights to privacy, safety, and development.

The Regulatory Framework

The Teachers Service Commission Act, 2012

The Teachers Service Commission Act establishes the Commission’s mandate. Section 11 sets out its functions, including monitoring teacher conduct and performance. Section 34 lists disciplinary offences, including any other act or conduct that is incompatible with the teaching profession. Section 47 empowers the Commission to make regulations. However, the authority of the Commission is broad but not unlimited. The principle of legality requires that administrative powers be exercised in accordance with law. A circular that carries disciplinary consequences must be consistent with the statutory framework. It must not exceed the powers delegated to the Commission.

Whether the circular exceeds the Commission's delegated authority turns on its character. If it merely interprets existing standards, it falls within the Commission's administrative powers. If it creates new obligations or expands the scope of prohibited conduct, it may exceed the authority delegated by Parliament. This distinction has been central to judicial analysis of similar instruments, as discussed later in the examination of public participation requirements.

The Code of Conduct and Ethics for Teachers,2015

The Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations establishes standards of professional behaviour. The circular references Clauses 10, 12, and 24. Clause 10 addresses integrity. It requires teachers to carry out duties with honesty and impartiality. Clause 12 concerns professionalism. It requires that a teacher’s private and public conduct upholds the dignity and integrity of the teaching service. It specifies that a teacher shall be of good conduct whether or not on official duty.

Clause 24 addresses relations with fellow employees and the public. It requires teachers to treat colleagues and the public with dignity, courtesy, and respect. It prohibits behaviour that is unbecoming, abusive, belittling, or threatening. It forbids bullying or offensive behaviour intended to undermine another person.

The Code applies to all registered teachers. It provides that every teacher will be deemed to have read, understood, and accepted its provisions. This deeming provision raises due process concerns. A teacher cannot genuinely be deemed to have understood provisions that are vague or overbroad.

The Code of Regulations for Teachers,2015

The Teachers Service Commission Code of Regulations for Teachers provides detailed rules. Regulation 17(4) requires that a teacher shall at all times conduct himself in a responsible and professional manner at the place of work and in his relationship with fellow teachers, pupils, and members of the public. Regulation 140 lists offences that may lead to disciplinary action, including immoral behaviour, professional misconduct, and infamous conduct.

The regulations provide disciplinary procedures. These include investigation, interdiction, and hearing before a Disciplinary Panel. A teacher accused of breaching the Code is entitled to notice of allegations, an opportunity to be heard, and a reasoned decision. The circular must be implemented within this procedural framework.

Data Protection and Children’s Rights

Parental Consent Requirements

The Data Protection Act establishes the requirements for processing children’s data. Section 33 provides that a data controller or data processor shall not process personal data relating to a child unless consent is given by the parent or guardian of the child. The processing must protect and advance the rights and best interests of the child.

Section 33 also requires appropriate mechanisms for age verification and consent. These mechanisms shall be determined on the basis of available technology, the volume of personal data processed, the proportion of such personal data likely to be that of a child, the possibility of harm to a child, and other factors specified by the Data Commissioner.

The ODPC Guidance Note on Processing Children’s Data, 2025 clarifies that parental or guardian consent must be obtained even where other lawful bases for processing exist. It distinguishes between consent as a lawful basis for processing under section 30 and parental or guardian consent as a procedural safeguard under section 33.

This distinction is very important. A teacher may have a legitimate interest in documenting teaching activities. But this does not eliminate the requirement for parental consent when processing children’s data. The teacher must obtain parental consent and must be able to demonstrate that such consent was properly obtained.

The consequences of failing to obtain parental consent are huge. Under section 65, a person who suffers damage by reason of a contravention of the Act is entitled to compensation from the data controller or data processor. The Office of the Data Protection Commissioner may impose administrative fines up to five million shillings.

Children’s Digital Rights

The Children Act establishes specific protections. Section 22 addresses protection from abuse through electronic systems or networks. It provides that a person who subjects a child to online abuse, harassment, or exploitation commits an offence. The penalty is imprisonment for up to ten years or a fine of up to two million shillings.

Section 22(4) expressly references cyberbullying, grooming, cyber enticement, cyber harassment, and cyberstalking as forms of online abuse. Section 27 protects children’s privacy. It provides that no person shall subject a child to arbitrary or unlawful interference with their privacy, family or private affairs, or correspondence. Section 27(3) requires that personal data concerning a child be processed only in accordance with the Data Protection Act.

The intersection of these provisions with teacher social media use is direct. When a teacher records a learner and shares that recording without proper consent, they may be violating the learner’s right to privacy. If the content exposes the child to harassment or exploitation, additional criminal liability may arise.

The Legality of Recording Students

The question of whether teachers are legally allowed to record students or pupils in school settings requires careful analysis. There is no absolute prohibition on recording students. Recording may serve legitimate educational purposes such as classroom assessment, instructional use, internal documentation, or safeguarding.

However, recording must be undertaken within an established school policy framework. It must comply with data protection principles. Recording students for entertainment or social media content, without a clear educational justification, is more difficult to justify. Even where a legitimate educational purpose exists, the recording must comply with data protection principles. This includes obtaining parental consent where the content will be shared publicly.

The Procedure for Issuing the Circular

Public Participation Requirements under the Statutory Instruments Act

The Constitution establishes public participation as a fundamental principle of governance. Article 10 designates it as a national value and principle of governance binding on all State organs, State officers, public officers, and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions. Article 118 requires Parliament to facilitate public participation in the legislative and other business of Parliament and its committees. Courts have consistently held that public participation extends to significant administrative decisions affecting the public interest, though the precise contours of this obligation remain context-dependent.

The Statutory Instruments Act, 2013 provides the specific statutory framework for consultation requirements applicable to regulation-making authorities. Section 5(1) of the Act provides that before a regulation-making authority makes a statutory instrument, and particularly where the proposed instrument is likely to have a direct or substantial indirect effect on business or restrict competition, the authority shall make appropriate consultations with persons likely to be affected by the proposed instrument.

Section 5(2) sets the standard for determining whether consultation is appropriate, requiring the regulation-making authority to have regard to whether the consultation drew on the knowledge of persons with expertise in the relevant field and whether persons likely to be affected had an adequate opportunity to comment on the proposed content. Section 5(3) specifies that consultation shall involve notification, either directly or by advertisement, of bodies or organisations representative of persons likely to be affected, or invite submissions by a specified date or participation in public hearings.

Section 5A of the Act, inserted by the Statute Law (Miscellaneous Amendments) Act, 2018, further provides that every statutory instrument shall be accompanied by an explanatory memorandum containing a statement demonstrating that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution, a brief statement of all consultations undertaken, the way consultation was carried out, an outline of the results, and a brief explanation of any changes made as a result. Where no consultation is undertaken, the regulation-making authority must explain why no such consultation was undertaken.

The critical question is whether the TSC circular constitutes a statutory instrument within the meaning of section 2 of the Statutory Instruments Act. Section 2 defines a statutory instrument as any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorised to be issued. The definition is deliberately broad and inclusive, encompassing “guidelines” and “other statutory instruments” issued under statutory authority.

The courts have provided important guidance on the distinction between administrative guidelines and statutory instruments. In Republic v Attorney General; Law Society of Kenya (Interested Party); Ex parte Francis Andrew Moriasi [2019] KEHC 7013 (KLR), the High Court considered whether a circular issued by the Attorney General constituted a statutory instrument. The Court held that not all guidelines, orders, or directions are legislative in character and therefore statutory instruments.

There may be guidelines and directions that are purely executive in character, in the sense that their objectives are solely administrative in guiding implementation of standards in laws and policies. The Court noted that the circular in question set out its purpose as explanatory, had no reference to any statutory provision empowering the guidelines, and was therefore not a statutory instrument as envisaged by the Statutory Instruments Act.

The Court in Moriasi further elaborated that a statutory instrument must be “issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.” The impugned guidelines in that case could not be traced to any particular provision of the Office of the Attorney General Act and were therefore mere internal rules or an operation manual meant to assist in the discharge of day-to-day duties.

Similarly, in Okiya Omtatah Okoiti v Director of Public Prosecutions; Inspector General of National Police Service & another [2022] KEHC 1165 (KLR), the High Court addressed the status of the DPP's “Guidelines on the Decision to Charge, 2019.” The Court held that the guidelines did not fall into the definition of a statutory instrument as defined by the Statutory Instruments Act because they were not promulgated pursuant to a specific authority granted by law. The guidelines were internal rules as they were not issued under any statutory authority granted to the DPP. The Court observed that the guidelines expressly stated that they did not create any rights or obligations on the part of any third party and were only binding on prosecutors, confirming their character as an internal operation manual.

Applying these principles to the TSC circular, the circular does not create new legal obligations. It applies existing standards to digital contexts. It references Clauses 10, 12, and 24 of the Code of Conduct and Ethics for Teachers, which already set out expected standards of behaviour. Clause 10 addresses integrity, Clause 12 professionalism, and Clause 24 relations with fellow employees and the public. These provisions predate the circular and were already binding on teachers. The circular's primary function is interpretive and directive rather than legislative. It reminds teachers of obligations already imposed by existing statutory instruments and legislation. It clarifies the application of existing standards to digital and social media spaces, a context not expressly addressed in the original Code.

However, the circular carries disciplinary consequences. It warns that any teacher found to have engaged in cyberbullying or unprofessional conduct on social media shall be subject to disciplinary measures in accordance with the Teachers Service Commission Act, the Code of Regulations for Teachers, and any other relevant legislation. This disciplinary effect could be interpreted as expanding the scope of prohibited conduct, particularly through its language on conduct that “diminishes the dignity and integrity of the teaching profession.” The vagueness of this standard could create new categories of misconduct not previously understood to be prohibited. The circular also references the Data Protection Act, the Computer Misuse and Cybercrimes Act, and the Leadership and Integrity Act, potentially expanding the range of legal instruments applicable to teacher conduct online.

The distinction between legislative instruments subject to parliamentary scrutiny and administrative directives or guidelines that do not require the same procedural steps is well established in Kenyan jurisprudence. In Moriasi, the Court held that guidelines that are purely executive in character, with objectives solely administrative in guiding implementation of standards in laws and policies, do not constitute statutory instruments. The critical factor is whether the instrument is issued in execution of a power expressly conferred by an Act of Parliament under which that instrument is expressly authorised to be issued.

The Court in Omtatah v DPP further emphasised that an instrument that does not create rights or obligations on third parties and is only binding on internal staff of an office does not qualify as a statutory instrument. The 2019 DPP Guidelines were held to be a mere internal operational manual because they expressly stated that they were only binding on prosecutors and did not create any rights or obligations on the part of any third party.

The TSC circular shares these characteristics. It is issued by the Commission in its capacity as the regulator of the teaching profession, drawing on its statutory mandate under the Teachers Service Commission Act. It does not amend the Code of Conduct and Ethics, the Code of Regulations, or any other statutory instrument. It interprets and applies existing standards to new contexts. This interpretive function places the circular within the category of administrative guidelines that do not constitute statutory instruments requiring the full procedural rigour of the Statutory Instruments Act.

The principle of legality nonetheless requires that the exercise of administrative power be both authorised by law and procedurally fair. Article 47 of the Constitution guarantees the right to fair administrative action. The Fair Administrative Action Act provides detailed procedural safeguards, including the right to be given written reasons for administrative action, the right to be heard before adverse action is taken, and the right to access information held by the administration. The circular's significant effect on teachers' rights to freedom of expression and their employment interests suggests that some form of consultation was appropriate, even if the Statutory Instruments Act did not strictly require it.

The courts have held that public participation is not required for every operational decision of a public body. In David Wanyeki Kago v Kenya National Examinations Council [2022] KEHC 26897 (KLR), the Court held that requiring an entity to subject its internal operational decisions to public participation is unreasonable and would forestall the operations of such entity. The Court distinguished between internal operational decisions and decisions whose effect transcends the borders of the public body into the arena of stakeholders and the public. Where the decision has a significant impact on the public or stakeholders, there is ample justification for subjecting the exercise of statutory power to public participation.

The argument that consultation was required finds support in the principle that the exercise of public power must be transparent and accountable. The circular affects the rights and interests of a substantial number of people, estimated at over 300,000 registered teachers. It engages constitutional rights under Articles 33 and 31. It could have significant employment consequences, including disciplinary action up to dismissal. These factors suggest that consultation with teachers' unions and other stakeholders was appropriate, even if not legally mandated by the Statutory Instruments Act.

However, the Commission may argue that the circular is merely a reminder of existing obligations and does not create new law, making formal consultation unnecessary. The Commission may also argue that its statutory mandate includes the power to issue such directives without prior consultation, particularly where they are interpretive rather than legislative in nature. The Code of Conduct and Ethics for Teachers was developed through a consultative process and subjected to public participation before its enactment as Legal Notice No. 162 of 2015. The circular builds on this existing framework and may not require a fresh round of consultation.

The position is further complicated by the circular's reference to the Data Protection Act, which was enacted after the Code of Conduct and Ethics. Teachers may not have been aware of their data protection obligations when the Code was developed. The circular brings these obligations to their attention and clarifies their application in educational contexts. This function, while primarily informational, could be seen as substantive enough to warrant consultation, particularly given the complexity of data protection obligations and the potential consequences of non-compliance.

The Office of the Data Protection Commissioner has published sector-specific guidance notes on processing children's data and processing for journalistic purposes, developed through consultative processes. The TSC circular performs a similar function for the education sector, clarifying how data protection obligations apply to teachers. The absence of consultation in the TSC circular's development may be contrasted with the Data Commissioner's consultative approach, raising questions about the adequacy of the TSC's process.

Ultimately, whether the circular should have been subjected to public participation requires an assessment of its character and effects. If it is purely interpretive, applying existing standards to new contexts without creating new obligations, consultation may not have been required. If it effectively creates new standards, expands the scope of prohibited conduct, or introduces new legal obligations, consultation would have been appropriate. The circular's vague language on conduct that diminishes dignity and integrity, combined with its disciplinary consequences, supports the latter interpretation. The better view is that the circular, while not a statutory instrument requiring full compliance with the Statutory Instruments Act, nonetheless called for consultation with teachers' unions and other stakeholders given its significant effects on teachers' constitutional rights and employment interests.

The Principle of Legality

The principle of legality requires that administrative action be authorised by law. The TSC’s authority to regulate teacher conduct online derives from the Teachers Service Commission Act and the Code of Conduct and Ethics. The circular is within this authority to the extent that it simply applies existing standards to digital contexts.

However, any interpretation that expands the scope of prohibited conduct beyond what was previously understood would raise legality concerns. The circular’s references to professional standards and “dignity and integrity” are general concepts that may not provide sufficient guidance. In administrative law, vagueness in directives can be challenged on the basis that they fail to provide adequate notice of prohibited conduct.

Legal Challenges to the Circular

Vagueness and Overbreadth

The primary vulnerability of the circular is its vagueness. The prohibition on content that diminishes the dignity and integrity of the teaching profession is not defined. What constitutes a diminution of dignity? Under what circumstances would a teacher be deemed to have crossed this line?

The principle of legal certainty requires that laws and regulations be sufficiently precise to enable individuals to regulate their conduct. In Bloggers Association of Kenya v Attorney General, the Court of Appeal held that vague laws can trap the innocent and impermissibly delegate policy matters to police, judges, and juries on a subjective basis. Similar concerns apply to the circular. Teachers who have built audiences through creative content may be uncertain whether their activities cross the line. The circular’s vague language risks arbitrary application by different school administrators or disciplinary panels.

Procedural Fairness

The implementation of the Circular must comply with procedural fairness requirements. Article 47 of the Constitution of Kenya guarantees the right to fair administrative action. The Fair Administrative Action Act, 2015 provides detailed procedural safeguards. Any disciplinary action taken against a teacher for social media conduct must comply with these requirements.

The Code of Regulations for Teachers, 2015 provides procedural safeguards. These include notice of allegations, an opportunity to be heard, and a reasoned decision. However, the circular’s role in the disciplinary process is important. If it creates new categories of prohibited conduct without adequate notice, the fairness of subsequent proceedings may be compromised.

A more fundamental question is whether the circular itself constitutes administrative action that adversely affects teachers' rights and therefore requires procedural fairness under Article 47. The Fair Administrative Action Act defines administrative action broadly to include "any act, omission, decision, or conduct of an administrator affecting a person." The circular's disciplinary consequences suggest it qualifies as administrative action. If so, the absence of prior consultation or notice to affected teachers before its issuance may itself constitute a breach of procedural fairness, regardless of whether the Statutory Instruments Act applies.

The Intersection with Criminal Law

The circular references criminal legislation, including the Computer Misuse and Cybercrimes Act. This Act criminalises cyber harassment, cyberstalking, publication of false information, identity theft, and other forms of online abuse. Teachers who engage in such conduct may face criminal prosecution in addition to professional discipline. The Computer Misuse and Cybercrimes Act has been subject to constitutional challenges. In 2026, four civil society groups petitioned the Supreme Court to strike out sections of the Act governing surveillance. The petitioners argue that sections 27, 28, 37, 48, 50, 51, 52, and 53 are unconstitutional. The Court of Appeal had found otherwise, but the petitioners contend that the Court misinterpreted and misapplied the Constitution.

Balancing Competing Rights and Interests

Freedom of Expression versus Professional Obligations The circular requires striking a balance between teachers’ constitutional rights and their professional obligations. Teachers do not lose their freedom of expression upon entering the profession. They retain the right to express opinions, participate in public discourse, and engage in creative activities online.

The balancing of rights requires consideration of several factors. The nature of the speech matters. Political expression generally receives stronger constitutional protection than purely personal statements. The connection to professional duties matters. Speech that directly relates to teaching activities may be more subject to professional regulation than speech on matters unrelated to education. The impact on others matters. Speech that harms learners, colleagues, or the reputation of the profession may be subject to limitation.

The Code of Conduct and Ethics, 2015 provides a framework for this balancing. Clause 12 requires that a teacher’s private and public conduct upholds the dignity and integrity of the teaching service. This standard permits the Commission to take action against conduct that undermines the profession, even when it occurs outside working hours or on personal social media accounts.

The Public Interest in Education

The enforcement of the circular must consider the public interest in education. Quality education requires a stable, motivated, and professional teaching workforce. Excessive or arbitrary regulation of social media conduct may discourage talented individuals from entering or remaining in the profession. This could ultimately harm students by reducing the quality of teaching.

At the same time, teachers serve in a position of public trust. The Commission emphasises this point. Teachers, as public officers, are expected to conduct themselves in a manner that upholds the dignity of the teaching profession. This applies whether acting physically or through digital platforms. The public’s confidence in the teaching profession depends on teachers’ conduct in all settings.

The circular’s warning that teachers who misuse digital platforms may expose themselves and the Commission to legal liability reflects the interconnected nature of liability in public employment. The Commission has legitimate interests in protecting its own legal position and maintaining public confidence in its regulation of the profession.

Practical Guidance for Teachers

Obtaining Consent for Content Featuring Learners Teachers who wish to share content featuring learners should follow established legal requirements. The Data Protection Act requires parental consent for processing children’s data. Section 32 requires that consent be express, unequivocal, free, specific, and informed.

A generic consent form included in enrolment paperwork does not meet this standard. Consent must be specific to the intended processing. It must provide clear information about the content, its intended use, and its audience.

The Office of the Data Protection Commissioner’s Guidance Note on Processing Children’s Data emphasises that parental consent must be obtained even where other lawful bases exist. The guidance also stresses the importance of age verification mechanisms and the need to document consent.

Teachers should implement robust processes for obtaining and documenting consent. This includes providing clear information about the purpose of processing, the types of data collected, how the data will be used, and the right to withdraw consent. The consent should be obtained in writing or through a verifiable electronic process.

Best Practices for Social Media Use

Beyond formal legal requirements, teachers should consider best practices for social media use. This includes maintaining clear boundaries between professional and personal content. Teachers should not use their professional roles to build personal followings in ways that might compromise professional relationships.

Teachers should avoid content that could be interpreted as crossing professional boundaries, even if it falls short of formal misconduct. They should be mindful of their status as role models and the impact of their content on learners and the broader community.

The Code of Conduct and Ethics requires that teachers set a good example to the learners and the public. This standard applies to online activities that may be visible to students and parents.

Teachers should also consider the reputational risk associated with social media content. Even legal content may have professional consequences if it reflects poorly on the teacher or the profession. The circular’s emphasis on dignity and integrity reflects this reputational concern.

Reform Proposals and Recommendations

Codification of Social Media Standards

The circular’s vagueness suggests a need for codification of social media standards for teachers. Clear guidelines would provide greater certainty for teachers and reduce the risk of arbitrary enforcement. The Commission should consider developing a comprehensive policy on teacher social media use.

The policy should be developed with stakeholder input and subjected to public participation. It should address specific issues including appropriate teacher-learner interactions online, consent requirements for featuring learners in content, guidance on maintaining professional boundaries, and examples of content that does and does not meet professional standards. This would provide practical guidance while maintaining the flexibility necessary for case-by-case application.

Strengthening Public Participation

The process of developing the social media policy should include meaningful public participation. Consultation with teachers’ unions, teachers, parents, and other stakeholders would enhance the policy’s legitimacy and effectiveness.

Public participation would also provide an opportunity to address teachers’ concerns about the circular’s potential for abuse. Teachers have expressed concern that the circular could be used to intimidate teachers, particularly during political seasons. Inclusive policy development could build trust and reduce these concerns.

The TSC should also consider adopting the consultative approach demonstrated by the Office of the Data Protection Commissioner in developing its guidance notes. Meaningful stakeholder engagement, even where not legally required, would enhance the legitimacy and effectiveness of regulation in this area.

Judicial Clarification of Digital Rights

The evolving legal framework for digital rights in Kenya requires continued judicial clarification. Cases currently before the courts, including the challenge to the Computer Misuse and Cybercrimes Act, will provide important guidance on the balance between freedom of expression and regulation of online conduct.

The Supreme Court’s guidance on digital rights and privacy will be particularly significant. The challenge to the surveillance provisions of the Computer Misuse and Cybercrimes Act raises fundamental questions about state power in the digital sphere. The court’s analysis of these issues will provide important interpretive principles for other regulatory instruments.

Data Protection Training for Teachers

The circular’s emphasis on data protection obligations suggests a need for data protection training for teachers. Many teachers may not be aware of their obligations under the Data Protection Act or the potential consequences of processing children’s data without consent. Training would support compliance and protect both teachers and learners.

The Teachers Service Commission should consider incorporating data protection requirements into teacher training and professional development. The Office of the Data Protection Commissioner should develop sector-specific guidance for educational settings. This would complement the existing guidance notes and provide practical assistance for teachers.

Conclusion

The Teachers Service Commission’s circular on social media conduct reflects legitimate concerns about teacher conduct in digital spaces. The profession’s integrity depends on teachers maintaining professional standards across all settings, including online platforms. The legal framework supporting the circular is broad, drawing on constitutional principles, statutory authority, professional codes, and data protection obligations.

However, the implementation of the circular must respect constitutional rights and administrative law principles. Freedom of expression, privacy, and the best interests of the child are not unlimited, but limitations must be clear, justified, and procedurally fair. The circular’s vagueness risks arbitrary application and may have a chilling effect on legitimate expression.

The circular’s reference to learners’ data protection rights is legally sound. Teachers who share content featuring learners without proper consent risk legal liability under the Data Protection Act. This is not merely a professional concern but a legal obligation with serious consequences. The Children Act reinforces these protections, establishing children’s rights to privacy and protection from abuse.

The Commission’s authority to regulate teacher conduct online is legally defensible. Teachers do not abandon their constitutional rights upon entering the profession, but they accept professional obligations that may limit the exercise of those rights. The Code of Conduct and Ethics provides standards that the circular applies to digital contexts.

The need for clarity in this area is pressing. The digital environment is dynamic, and teachers’ use of social media will continue to evolve. The Commission must develop clear, workable standards through proper processes that include stakeholder engagement. Failure to do so risks undermining the legitimacy of regulation and the rights of both teachers and learners.

The courts will continue to play a crucial role in defining the boundaries of digital rights and professional obligations. The challenge to the Computer Misuse and Cybercrimes Act and other cases addressing constitutional rights in the digital sphere will provide important guidance. These decisions will shape the future of regulation in Kenya’s digital society.

Ultimately, the regulation of teacher conduct online must strike a fair balance between protecting the profession and respecting the rights of teachers and learners. The circular takes an important step in recognising the digital dimension of professional conduct, but its full implementation will require continued attention to legal standards and constitutional principles. The Commission’s success in navigating these tensions will depend on its commitment to clear, fair, and consultative regulation that respects the fundamental rights of all participants in Kenya’s educational community.

Authored by Benson Odiwuor; Advocate of the High Court of Kenya

This article is a publication of the Public Law & Regulation Series, featured in The BOLD Newsletter. For questions, clarifications, or suggestions on this or related subjects, contact the author directly: insights@bensonodiwuor.com /info@bensonodiwuor.com