Investigating legal frameworks - a comparative study of the outsourcing of social media content moderation in Kenya and India

Abstract

Social media content moderation involves the removal of harmful content and promotion of accurate information aiming at providing to the users a healthy environment for interactive discourse. To ensure that moderation is done effectively, social media platforms tend to outsource this function to third party contractors, who then hire the moderators. Kenya has become the hub for content moderation outsourcing, in the Sub-Saharan Africa region, because of several reasons: the high level of training in the IT Sector, the country has one of the best internet connectivity in the region, and the high number of people who use social media daily. The social media platforms outsourcing content moderators in Kenya are mainly Facebook, TikTok, and X, formerly known as Twitter. The Business Process Outsourcing (BPO) and the IT-Enabled Services (ITES) are methods utilised by third party contractors responsible for hiring content moderators. The risk that this model creates is that it exposes the outsourced moderators to unfair working practices and leaves them uncertain as to whom to hold liable in case of infringement of their rights. The question this study seeks to address is what kind of legal regime governs the BPO and ITES models and what employment protections are available for content moderators. The study will compare Kenya to India because there exists similar legal systems between the two countries and the recognition of India as a global tech hub. This study employs the use of qualitative research to analyse legislation and literature review, seeking to establish which kind of legal regime governs the contractors operations in the country and whether Kenyans employed in this industry are being protected by the law or not. This study will use the principle of proportionality as its theoretical framework due to its ability to resolve conflicts between a right and a competing right or interest.