Court of Appeal rules Facebook owner can be sued in Kenyan courts over layoffs by contractor

Meta has suffered a blow after the Court of Appeal dismissed an application challenging the authority of Kenyan courts to handle a case brought by 186 Facebook content moderators.

The social media giant— which owns Facebook, WhatsApp, Instagram and Threads among others — argued that the content moderators cannot pursue the legal claim against the company as Meta was not based in Kenya.

The content moderators sued the company and blocked outsourcing firm Samasource Kenya EPZ from declaring them redundant, pending the determination of their case.

But Meta challenged the cases arguing that the Facebook content moderators failed to meet the legal threshold for the court to allow them to serve the foreign firms with the court documents.

In an earlier ruling on March 20, 2023, Justice Mathews Nderi allowed the workers to serve the Facebook owners in their principal offices in the USA.

The judge also issued interim injunction orders, stopping the sackings, pending a hearing of the application.

The appellate court judges said they were satisfied that the trial court appreciated that there was a threat of the content moderators being laid off and it was proper and within the jurisdiction of the Employment and Labour Relations court (ELRC) to intervene, pending the determination of the case.

"Consequently, the appellants’ appeal on this ground is without merit," Justices Daniel Musinga, Asike Makhandia and John Mativo said.

Meta argued that the ELRC could not assume jurisdiction over a foreign corporation since the Kenya constitution does not apply beyond its geographical limits and the firms are not subject to the constitution.

Further, Meta argued that they are foreign companies with no operations in Kenya and the firm risks paying Sh10 million to the moderators yet they are not their employees.

The Facebook owner also said the content moderators were lawfully terminated and South African Daniel Motaung cannot bring a claim on behalf of undisclosed persons.

“In the case at hand, as it is an agreed fact that the 2nd and 3rd respondents are foreign corporations, Kenyan law cannot apply to them. There is no permissive law that allows this court to exercise jurisdiction beyond territorial limits over the 2nd and 3rd respondents,” Meta said in court documents.

The content moderators through lawyer Mercy Mutemi submitted that Meta and its former agent Samasource Kenya EPZ, started a redundancy programme to get rid of them in retaliation because of a petition filed by Mr Motaung, alleging poor working conditions.

She further said most of the moderators who are migrant workers would be forced to leave Kenya, and will lose all meaningful access to justice owing to difficulty in accessing the court.

Ms Mutemi argued that Meta and its agents were trading in Kenya, and that Facebook has millions of users in the country and draws revenue from the users through Facebook Pay and Facebook Marketplace.

The firms also pay digital service tax (DST) to the government of Kenya, she said.

The lawyer maintained that in today’s digital world, it is possible for a foreign company to operate fully in Kenya without a physical office in the country.

She said the term ‘carrying on business’ must be interpreted accordingly, taking into account the digital world.

The employees are drawn from various countries in Africa and were engaged at the Content Moderation Centre in Nairobi, which serves the larger Eastern and Southern African Region.

The moderators sued Meta Platforms, Meta Platforms Ireland Ltd and Samasource Kenya EPZ.

In a separate decision, the court set aside orders given by the court regarding the working conditions of the Facebook content moderators, stating that Justice Byram Ongaya issued final orders at the preliminary stage.

"A reading of the above excerpt extracted from the impugned judgment leaves no doubt that the learned judge was actually writing a final judgment effectively determining the litigants’ final rights on the issues he was considering as opposed to an interlocutory ruling," the judges observed.

The judge had ruled that the work they perform was inherently hazardous and, therefore, directed Meta to ensure that medical, psychiatric and psychological care for the content moderators are put in place.

He also directed the government agencies to review the status of the law and employees’ safety in virtual and digital workspaces, note areas for improvement and make a report to the court regarding the extent of improvement to ensure workers in such spaces are protected.

But the court of appeal judges said Justice Ongaya "impermissibly and dangerously delved" into contested issues of fact and the law and purported to determine the parties’ rights at the interim stage.

The content moderators are seeking compensation for unfair termination of employment equivalent to twelve months gross salary, damages amounting to Sh10 million per moderator for unfair labour practices and a further Sh20 million each, for violation of their rights.