Kenya’s TikTok Dilemma: Balancing Regulation and Digital Rights

Introduction

As TikTok continues to dominate the global social media landscape, its implications for digital rights and data governance have become increasingly significant. With over 10 million Kenyan TikTok users as of 2024, the platform’s influence on communication, creativity, and commerce is profound. The ongoing global debates surrounding TikTok, particularly in the context of national security, user privacy and harmful content, resonate deeply within Kenya’s socio-political framework. These considerations are crucial in the conversation on regulating digital platforms, especially considering their monumental role in the Kenyan digital economy. This article explores the complexities surrounding TikTok operations in Kenya, including calls for a ban, the importance of regulation, and the global context of these considerations.

Global Concerns and Local Context

Globally, TikTok has faced scrutiny over its data practices, with concerns that the Chinese government could access user data due to its alleged influence over ByteDance, TikTok’s owner. In the United States, lawmakers took legislative measures by creating the Protecting Americans from Foreign Adversary Controlled Applications Act, whose significant impact would have been TikTok’s divestiture to an American-owned company or a total ban of the App in the country. In the final weeks of January 2025, TikTok faced a looming ban that would have taken effect the day before the inauguration of the new president after the Supreme Court affirmed the DC Circuit Court of Appeals decision requiring the divestiture. The new president has since issued an executive order granting the company a 75-day extension to negotiate a sale or restructuring of its U.S. operations, delaying enforcement of the ban, though details remain unspecified.

The US case, though prominent, is not the only battle TikTok has faced worldwide. India famously banned the App in 2020, citing data privacy concerns, amid fears of Chinese government influence. Other governments, such as Canada and the European Union, have restricted public servants from using TikTok on government devices due to concerns about covert surveillance and content manipulation.

In early 2024, the Kenyan government expressed concerns about TikTok’s data processing practices and compliance with Kenyan data protection laws. The Office of the Data Protection Commissioner (ODPC) contacted the company to understand its data processing activities and whether the app met Kenyan legal standards, including registration with the ODPC as both a data processor and controller. Requiring TikTok to localise data storage and conducting periodic compliance audits would also ensure alignment with Kenyan data protection laws.

Data Storage and Oversight: A Global Concern with Local Relevance

One of the primary concerns regarding TikTok’s operations globally has been its data storage practices. While TikTok claims that user data is stored in secure servers in the United States, Singapore, and Malaysia, it has yet to provide sufficient transparency regarding the security of data from Kenyan users. The lack of a clear policy on data handling for Kenyan users raises significant concerns about how their personal information is treated. Unlike in the United States or European jurisdictions, TikTok’s approach to data governance in Kenya appears opaque, leaving Kenyan citizens vulnerable to potential misuse of their personal data without proper recourse.

Due to these concerns, initial calls for a total ban began in 2023 through a petition filed before the Public Petitions Committee in the National Assembly. The petition raised several critical concerns regarding data privacy, including significant worries about third-party access to user data without consent and the collection of data from minors without parental consent, which poses serious risks to the privacy of young users.

Various stakeholders, including the Law Society of Kenya, the Communications Authority of Kenya, TikTok content creators and most critically, the ODPC, shared their submissions during the hearings, leading to the recommendation that instead of a complete ban on the app—which would infringe upon the constitutional rights of Kenyans to expression—a regulatory framework should be established to ensure accountability and protect users, especially vulnerable populations such as minors, while still allowing access to the platform.

Recognising Kenya’s Unequal Relationship with China

A significant power imbalance has long marked Kenya’s relationship with China. While China is a key economic partner, Kenya often finds itself negotiating from a position of lesser strength, especially regarding deals involving Chinese technology firms. This imbalance in bargaining power raises concerns about the potential for platforms like TikTok, whose parent company ByteDance is based in China, to prioritise Chinese interests over Kenyan ones.

Given that China has the upper hand in many economic agreements with Kenya, there is a valid concern that unregulated platforms like TikTok could undermine Kenyan data sovereignty. The platform’s reach, coupled with the possibility of Chinese oversight over its data, highlights the need for Kenya to assert greater control over the digital platforms operating within its borders.

The Economic Case for Regulation over a Total Ban

Kenyan content creators and entrepreneurs have benefited significantly from TikTok, with millions of users accessing their videos, products, and services. A ban on TikTok would disrupt this vibrant ecosystem, potentially stifling the digital economy that many rely on. The growth of Kenya’s creative industry is closely tied to global platforms that provide exposure and revenue opportunities, and TikTok has been a major contributor to this growth.

However, while creators advocate for the continued availability of TikTok, they also recognise the need for a balanced approach that ensures their data privacy and protects them from exploitation. The Public Petitions Committee in the National Assembly also considered balancing a vibrant, creative economy with proper safeguards for citizen rights. Kenyan creators and users should be free to work with whichever platforms they choose without government interference. Still, this freedom should not come at the cost of their privacy and security.

The Case for an Effective Regulatory Framework

Rather than prohibition, regulation represents a practical and sustainable solution for Kenya. It is crucial to recognise that, unlike the United States, which has the financial leverage to impose demands like the divestiture of TikTok’s American operations, Kenya lacks the financial resources to purchase or otherwise control major foreign tech companies. This limitation means that Kenya must focus on establishing effective regulatory measures and holding TikTok accountable for the impact of its operations on Kenyan users. Given TikTok’s significant economic and social benefits, a total ban would create more harm than good. Instead, Kenya can follow a regulatory path similar to that adopted by the European Union, with the regulation of digital platforms’ operations and agile regulatory implementation that keeps up with TikTok’s activities.

In early 2024, the European Commission initiated formal proceedings against TikTok under the Digital Services Act (DSA), the EU’s 2022 law that requires transparency, accountability and protection of users from the harms of digital platforms. The law requires platforms to disclose how their algorithms work, explain content moderation decisions, and impose stricter controls on targeted advertising. It also requires platforms designated as “very large” i.e. those with over 45 million monthly users in the EU, to conduct independent risk assessments to mitigate potential harms such as disinformation, addiction, and algorithmic bias.

In the same way, Kenya requires proactive laws and real-time implementation by relevant authorities to ensure that digital platforms operate under clear regulatory oversight. Such laws include digital platform regulation and an overarching data governance law that would govern how data generated by Kenyans on digital platforms is to be responsibly managed. As discussed before, the Public Petitions Committee emphasised the importance of regulating the platform to protect users from data misuse, harmful content, and potential exploitation through a regulatory framework that ensures compliance with Kenyan laws and prioritisation of the safety and privacy of users. The most crucial recommendations included:

• Clear data governance policies

Kenya must strengthen data governance frameworks and effectively implement the data protection law by enforcing transparency in data collection, storage, and usage by platforms like TikTok. In addition to transparency on data processing activities, the Kenyan Data Protection Act requires digital platforms operating in Kenya to adhere to key principles such as lawfulness, fairness, purpose limitation, data minimisation and accuracy. Data should also not be transferred outside Kenya without the data subject’s consent or confirming proper data protection measures in the receiving jurisdiction. The Data Protection (General) Regulations, 2021 require entities processing personal data outside Kenya to ensure equivalent data protection safeguards. To buttress this demand, Kenya should enact a comprehensive data governance law that, among other things, enforces mandatory data localisation for sensitive data and requires Data Protection Impact Assessments (DPIAs) for all cross-border data transfers.

• Content moderation standards

Regulations should be put in place to ensure content aligns with Kenyan cultural and moral standards. This would buttress TikTok’s community guidelines, which recognise regional differences that inform their content moderation activities. Notably, the company’s Q2 2024 report on guideline enforcement indicated that they removed over 360,000 Kenyan videos in content moderation efforts, filtering videos that contained misinformation and graphic content, and deleted more than sixty thousand accounts, most of which seemingly belonged to minors under 13 years old. Proactively monitoring TikTok’s compliance with its community guidelines is a key first step in demanding transparency and protecting Kenyans’ rights.

• User education

Public awareness campaigns should educate Kenyans about their digital rights and the potential risks of online sharing of personal information. The Data Commissioner is responsible for raising public understanding of data protection and outlining citizens’ rights and obligations. Consequently, the Commissioner should highlight the dangers posed by TikTok and similar platforms – especially given the high number of banned accounts among users under 13 – while providing practical guidance on protecting personal privacy.

Path Forward for Digital Rights in Kenya

As Kenya grapples with the complexities of regulating global digital platforms like TikTok, the country faces an opportunity to redefine its digital rights and data governance landscape. Drawing on international examples – from the high-stakes legislative actions in the United States to the European Union’s proactive enforcement of the Digital Services Act – the country can adopt best practices on local data storage, enhancing transparency and ensuring the privacy and security of Kenyans’ data. In doing so, Kenya secures its digital future in an interconnected world and sets a progressive standard for digital regulation in emerging markets.

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