High Court strikes down State website-blocking powers in Cybercrimes Act

The High Court has declared unconstitutional a key provision of the Computer Misuse and Cybercrimes (Amendment) Act, 2025, that empowered a State committee to order internet service providers to block access to websites and online applications without prior court approval.

In a judgment delivered on Thursday, the court ruled that Section 6(1)(j)(a) of the amended law violates constitutional guarantees on freedom of religion, expression and media freedom, holding that it grants sweeping censorship powers to an administrative body without adequate safeguards.

The disputed provision empowered the National Computer and Cybercrimes Coordination Committee to direct internet service providers to render inaccessible websites and applications deemed to contain prohibited content relating to unlawful activities, terrorism, violent extremism, child sexual exploitation or other specified offences.

However, the court found that the amendment effectively allowed the committee to determine whether online content was offensive and order its removal without judicial scrutiny.

"The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds," Judge Patricia Mande held.

The court rejected the respondents' argument that judicial oversight could be implied into the law, noting that Parliament had separately amended the Act to introduce another enforcement mechanism involving court supervision.

Instead, the judge found that the new provision created a parallel process that enabled the committee to take drastic measures limiting fundamental rights without the involvement of the courts.

According to the judgment, the State failed to demonstrate that the limitation of constitutional rights met the strict requirements under Article 24 of the Constitution, which demands that any restriction of a fundamental freedom be clear, precise, reasonable and demonstrably justifiable in an open and democratic society.

"The State has not discharged its burden to show that the limitation is both necessary and the least restrictive means available," the court ruled.

Justice Mande further held that granting an administrative committee powers to order websites blocked before judicial determination amounted to unconstitutional prior restraint and risked arbitrary enforcement.

The court warned that the broad powers would likely discourage legitimate online expression by forcing individuals and digital platforms to censor themselves to avoid possible sanctions.

"Such anticipatory silence is antithetical to the constitutional commitment to a vibrant and uninhibited marketplace of ideas which Articles 32, 33 and 34 were crafted to protect," she stated.

Another key provision invalidated by the court was Section 27(1)(b), which criminalised communication deemed likely to cause another person to commit suicide.

Justice Patricia Mande held that the provision was vague, overly broad and based on speculative standards that failed to define with sufficient precision what conduct amounted to a criminal offence.

She found that imposing criminal liability based on communication "likely to cause" suicide violated the constitutional principle of legality by relying on subjective and indeterminate criteria.

"In the circumstances, the only proper conclusion is that section 27 1 (b) of the Computer Misuse and Cyber Crimes Amendment Act 2025 is unconstitutional, invalid and of no legal effect," the judge ruled.

However, the court dismissed the petitioners' challenge to the legislative process on the amendment, finding that Parliament complied with constitutional requirements on public participation.

Justice Mande held that the National Assembly afforded the public a reasonable opportunity to submit views before debating and passing the Bill.

The court also rejected claims that the Senate ought to have participated in the enactment of the amendments, ruling that the legislation did not concern county governments and therefore did not require Senate approval.

"Overall, the consolidated constitutional petitions succeeded only in part, with the court declaring Section 6(1)(j)(a), relating to website blocking, and Section 27(1)(b), which criminalised communication likely to cause another person to commit suicide, unconstitutional and of no legal effect," the judge ruled.