Kenyan Court First To Tell Meta It Can’t Walk Away From A Lawsuit Just By Claiming It’s Not From Around Here
from the cranking-open-the-liability-floodgates dept
A lawsuit filed over exploitation of content moderators will be allowed to continue, according to a recent ruling by a Kenyan court. Former employees of Meta sued the company in the Kenya Employment and Labour Relations Court last year, alleging being subjected to a “toxic work environment” while performing the often unpleasant task for removing harmful content before it is seen by Facebook users. The plaintiffs also alleged Meta and its third-party contractor (Kenyan digital services provider, Sama) engaged in “union busting” and refused to provide mental health services to moderators.
The allegations also detail what moderators view as pay rates much lower than what should be expected for people hired to wade through the internet cesspool on behalf of a company worth hundreds of billions of dollars. An expose of the work conditions by Time last year contains this absurd explanation for lowballing moderator pay:
Sama’s late founder Leila Janah attempted to justify the company’s levels of pay in the region. “One thing that’s critical in our line of work is to not pay wages that would distort local labor markets,” she said. “If we were to pay people substantially more than that, we would throw everything off.”
Ah, yes. We can’t have tech disruptors disrupting local labor markets. Anything else that can be broken while moving fast is still on the table, but outsourcing pay rates must remain in line with that of local, non-multinational, non-multi-billion dollar companies.
Anyway, back to the lawsuit. While most foreign-based companies have been successful raising the argument they can’t be sued in other countries because they do not actually reside there, this tactic hasn’t worked in this case.
Through its lawyer, Meta had argued that Meta Platforms, Inc. and Facebook are foreign corporations and neither residents nor trading in Kenya, thus were not under the country’s jurisdiction. However, the Employment and Labour Relations Court ruled on February 6 that Meta can be sued in Kenya. It will be the first time that a lawsuit against a global tech giant is proceeding to a hearing, not just outside of the West, but in Africa, where the wrongdoing happened.
This ruling has obvious implications for US companies utilizing foreign-based outsourcing contractors. While it may seem the intermediary (Sama, in this case) is more directly responsible for low pay and toxic working environments, the fact remains the work is being performed for Facebook. Just because Meta hasn’t placed a physical footprint in Kenya doesn’t necessarily mean it’s not culpable for workplace violations related to its moderation efforts.
The article suggests this will “open the floodgates” for similar lawsuits. And it may indeed result in that. But a single labor court in a single country does not set worldwide precedent. If this does provoke copycat lawsuits, a lot of copycat litigants are going to find out that precedent is only useful in its original court jurisdiction. While this ruling may nudge judges towards allowing extra-jurisdictional litigation to proceed, more often than not judges are likely to see the implications of letting anyone sue anyone anywhere in the world and shut down many of these lawsuits.
But for lawsuits filed in Kenya, there’s a chance Meta will be held accountable for its alleged involvement in not only this terrible chain of events, but for other harms it has allegedly caused, like those listed in another suit.
[T]wo Ethiopian researchers… together with the Kenyan rights group the Katiba Institute, are suing Meta for USD 1.6 billion for allowing hateful content to flourish on their platform and fueling Ethiopian ethnic violence.
Yes, moderation at scale is still impossible. But companies shouldn’t use this as an excuse to ignore the working conditions moderators are subjected to or to shrug at the negative outcomes of inadequate moderation efforts. Companies need to do better, both for their users and for their employees. And far too many times, it takes a lawsuit to make these things happen.
Filed Under: content moderation, contractors, kenya, venue
Companies: meta, sama
Comments on “Kenyan Court First To Tell Meta It Can’t Walk Away From A Lawsuit Just By Claiming It’s Not From Around Here”
Two things…
1) Moderators get paid?! (I never got paid for it. Bummer.)
2) If you don’t know it’s a cesspool when getting into it, then you weren’t paying attention, and you shouldn’t be there to begin with.
Re:
There’s a difference between knowing its a cesspool and not being provided with appropriate equipment by the person who has hired you to wade through it.
“One thing that’s critical in our line of work is to not pay wages that would distort local labor markets,” she said. “If we were to pay people substantially more than that, we would throw everything off.”
What is desired here, apparently, is slavery.
However, they do not want to provide food and shelter to their slaves. They expect others to be charitable and give these poor starving people some food and shelter because – profits.
It’s a race to the bottom
That's not how any of this works
Let’s just accept that begged question as a given. It’s still irrelevant.
X Company in Africa does work that benefits
Y Company in the US that benefits
Z investors in the world who bought Y Company Stock
Are Z investors liable for anything X Company did? Of course not. Nor can they be dragged into African court. Stop laughing.
Are Y company staff liable for violating laws in somewhere they didn’t operate… like… say… Africa… No.
This is an absurdity of an attempt to extend jurisdiction beyond the shores to hold third parties liable, and it WILL FAIL.
This isn’t about Meta (well, THIS case is, but the discussion isn’t) and just like Nigerian Princes aren’t prosecuted under US law, US corporations not operating in Nigeria won’t be prosecuted under that law.
But hey, pretending it’s a “fact” and that the company is called Facebook makes for good copy, good on you. Sorry, this one is stupid and shouldn’t have been published.
Pretend any of that has to do with jurisdiction and try again.
E
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Uh huh. And Uber drivers are independent entrepreneurs.
Re: agent theory
Your results may vary if there it is determined that the ``intermediate” is an agent of the defendant. In some cases, the principals are held liable for the acts of their agents.
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Exactly. I don’t understand how anybody thinks cases like this mean anything.
Facebook isn’t a party here, in law. The local contractor is. An activist judge isn’t going to get anywhere with this. I doubt Facebook risks sending even a representative, let alone a lawyer.
And as is common in international cases, be it foreign pirates in US courts, or US companies in foreign courts, nothing of consequence is going to happen here.
Kenya isn’t exactly an unriskable market.
If smart, we watch Facebook walk away from the country.
I will say this, I’m surprised they used a company in Kenya. Most outsourced content work of this type is done in Vietnam or Laos. I’m sure there’s a reason here, but I don’t see it.
Kenya ??
… Com’on now, Really? — obscure activity in the totally unknown “Kenya Employment and Labour Relations Court” is a prime item of interest here ?
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Telling others what is of interest?
Yes, I’m sure that siphoning off a region’s best and brightest by paying them more than they could make locally is 100% not going to cause local businesses to lose even more ground to multinational competitors.
While we’re at it, why don’t we flood their markets with cheaply-made international goods to increase everyone else’s buying power? It’s the same basic idea.
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Same basic idea ..
the idea that a potential employer needs to pay their employees enough to survive.
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You’re missing the point. What about pay proportionate to the risks of the work? Which other jobs predominantly involving reading and judging things on a computer screen have comparable potential to harm mental health and to cause PTSD? Workers should have some safety from the apathetic forces of a national market. Anyone who doesn’t want the greater risks of one job should get lower pay for doing the same tangible amount of work in a different job, degrees aside. Inversely, workers willing to take the risks deserve higher pay.
It’s not the same basic idea at all. The article is about compensating workers in Kenya. Your hypothetical is about undercutting workers in Kenya. Besides tariffs exist, especially for physical goods. And trade agreements aside, I hope you don’t expect a country like the US to punish a hypothetical US company for flooding a foreign market.
Re: Re:
Some people are more sensitive than others. You’re unlikely to scar me. And I do moderation work. Deleting criminal content and hiding or sandboxing the unsavoury.
I’ve seen, and reported to police, some fairly bad stuff. But nothing worth a psychologist.
World wide, each generation becomes more and more of wimpy cry babies.
This isn’t like clearing post war mine fields. There’s nothing permanently damaging here unless you have personal problems or weaknesses to begin with.
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Pretending corproations give a crap about brain drain isn’t the dumbest thing anyone has said in this site’s comment section, but it is on the list.
Re: Re:
It’s a long list.
Living wage
Imagine if that were a sentence.
Let’s pretend it’s an idea. Somehow somewhere there’s an implied obligation to pay people NOT for what they do or for the job they agreed to do and the pay that comes with it, but for their entitlement to live a happy worry-free life.
So yes, a potential employer sentence fragment nonsense here indeed.
E
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The AC comment you were referring to:
What you made of it:
Jumping from “pay their employees enough” to “entitlement to live a happy worry-free life” seems a bit far to me. The most charitable interpretation of the AC’s comment is that Facebook’s content moderators in Kenya are not being paid enough for the work they currently do.
I would say that Facebook should compensate the risks to workers’ mental health with proportionately higher pay or with mental health services. I think it’s safe to assume that large employer engaging in union busting (which is only an allegation in this Facebook case right now) isn’t paying workers enough.
Re: Re: Forgot to mention something
Anyone working as a content moderator for Facebook will not be living a “happy worry-free life” while they work there, even if they get higher pay for the risks.
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“implied obligation to pay people NOT for what they do or for …. ” blah blah
Perhaps I was not entirely clear. How will your business operate when it can not find anyone to hire?
If you are unable to pay someone enough to live within commuting distance of your establishment, who will you hire? Homeless? Now do not tell me about some government assistance because that is socialist commie stuff right?
While the ruling is interesting, the real test is whether it survives appeal. Courts can and do make mistakes, and both the Court of Appeal and Supreme Court of Kenya could overrule this decision.
Also because it’s issued by a specialised court, I suspect that this ruling would have no weight at other courts within Kenya.
Extra-jurisdictional?
Don’t most US states have a long-arm statute that lets their courts exercise jurisdiction over out-of-state defendants when sufficient connection with the state exists? Eg., a worker in Ohio employed by a company in Alabama could sue the company in an Ohio court over violations of Ohio labor law. Seems to me this is simply an international version of the same thing. And while there’s a contracting firm in the middle, it’d depend heavily on how much control Meta has over the moderators. Given how much control companies in general like to have over contractors, it should be relatively easy to argue that the moderators don’t have the control over how and when to do their job necessary to be considered an independent contractor.
Uber drivers
It’s always great when people want to use analogies. These linguistic methods make it easier to understand complex topic.
This is not a complex topic. Meta doesn’t operate in Kenya and will not be on the hook for its laws. Thank you for reading.
Oh, I’m sorry, there was a little noise there that went something like this:
Good job stringing random words together. No analogy nor metaphor are present here; the random words in no way reflect Meta’s non-operation in Kenya, and serve only to clarify that there’s some “issue” with Uber which is neither relevant, pertinent, nor in any way instructive as to how dispositive Kenyan law is.
I have a Nigerian prince offer to respond to. I firmly believe him to be an independent entrepreneur. Go reflect on how that means anything.
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Well if Meta doesn’t operate in Kenya, they should probably do something about all those Kenyans with access to their systems. Seems like a pretty serious security breach.
how much?
“One thing that’s critical in our line of work is to not pay wages that would distort local labor markets,”
Important facts missing from article are how much they pay relative to other jobs in the area and in comparison to their local cost of living.
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From the Time article this post linked to:
Contractors?
Hiring so-called contractors instead of directly hiring employees has been a scam for decades, in the USA and transnationally.
Most benefits of “outsourcing” go to the corporations that hire them. No unions, lower costs, no pensions to fund, and avoiding pesky regulations (such as OSHA, minimum wage laws, etc.).
The owners of these “gig companies” can make lots of money, but they have no responsibilities to anyone or anything except their personal profits.
By design, their employees are not protected by the laws of the end buyer of their work. It is the reason these companies exist.
Here’s an excerpt from: A Great Amnesia, By Marilynne Robinson, Harper’s, May 2008
…there was an iron – or, alternatively, a brazen – law of wages. This meant that the great class of those who lived by their labor could not earn more than subsistence – and subsistence very strictly defined.
…Starvation could be rationalized as the friend of civilization, a natural mechanism for restoring balance in the labor market.
…This iron law has come into force again in much of the world as a consequence of a form of competition that has based national economies on the poverty and low expectations of their population.
————
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“Gig workers” – now that phrase is a masterpiece of public relations BS.
(Sure, some people prefer part-time work, but most would rather have a regular job.)
Sue the company with the deepest pockets
I think what we have here is a case of people wanting to sue the company with the deepest pockets.
If I understand this correctly, Facebook has hired Sama to do their content moderation, but then an employee wants to sue Facebook for the problems that they’re having. Yet shouldn’t they sue Sama since that’s their employer?
Isn’t the whole point of outsourcing that the parent company doesn’t have to deal directly with local employment laws?
How about this example:
Apple uses the Chinese company called Foxconn to make their chips. What happens if a factory worker working for Foxconn has a problem? Do they sue Apple over it? Of course not, they sue their own company, which in this case is Foxconn.
So I think this case is a case of the Kenya court trying to extend their reach. And I think the end result will be that Facebook and other companies will pull their business out of Kenya, which will become a net loss for everybody who relies on those companies for their income.
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They’re using a program developed by facebook to moderate content on facebook, according to rules set by facebook, with targets set by facebook. The fact that some rent-seeking parasite has interjected themselves into the system is quibbling.
Thanks for sharing. It is very helpful for me and also informative for all those users who will come to read.