Can a Big Tech company be sued in Kenya for alleged abuses at an outsourcing company working on its behalf?
That’s the question at the heart of two lawsuits that are attempting to set a new precedent in Kenya, which is the prime destination for tech companies looking to farm out digital work to the African continent.
The two-year legal battle stems from allegations of human rights violations at an outsourced Meta content moderation facility in Nairobi, where employees hired by a contractor were paid as little as $1.50 per hour to view traumatic content, such as videos of rapes, murders, and war crimes. The suits claim that despite the workers being contracted by an outsourcing company, called Sama, Meta essentially supervised and set the terms for the work, and designed and managed the software required for the task. Both companies deny wrongdoing and Meta has challenged the Kenyan courts’ jurisdiction to hear the cases. But a court ruled in September that the cases could each proceed. Both appear likely to go to trial next year, unless the Kenyan Supreme Court intervenes.
Read More: Inside Facebook’s African Sweatshop
Meta declined to comment on ongoing litigation. Sama did not respond to requests for comment. It has previously called the allegations “both inaccurate and disappointing.”
If successful, the lawsuits could enshrine a new precedent into Kenyan law that Big Tech companies – not just their outsourcing partners – are legally liable for any wrongdoing that happens inside subcontracted facilities. Supporters say that this will boost workers’ rights and guard against exploitative work in Kenya’s data labeling sector, which is booming thanks to growing demand for AI training data. But opponents argue that such a decision would make Kenya a less attractive place for foreign firms to do business, potentially resulting in a loss of jobs and hindered economic development.
In a sign of the cases’ significance, Kenya’s president William Ruto waded into the debate on Monday. At a town hall event in Nairobi, Ruto said he was preparing to sign a bill into law that he claimed would prevent outsourcing companies from being sued in Kenya in the future. “Those people were taken to court, and they had real trouble,” Ruto said, referring to Sama, the outsourcing company that directly employed the Facebook content moderators. “They really bothered me. Now I can report to you that we have changed the law, so nobody will take you to court again on any matter.” Ruto said Sama had planned to relocate to Uganda “because many of us were giving them trouble.” And he cast the change to the law as an effort to make Kenya a more attractive location for outsourcing companies, similar to India or the Philippines, in order to bring much-needed jobs to the country.
The reality is more complex than Ruto made it sound. There is a bill in the Kenyan Senate that would change employment law as it relates to the outsourcing industry. But that bill would not, as Ruto claimed, prevent outsourcing companies from being sued. Quite the opposite: its text instead explicitly prevents outsourcing companies’ clients – for instance big tech companies like Meta or OpenAI – from being drawn into lawsuits against their contractors in Kenya. The majority leader of the Kenyan Senate, who drafted the bill, said in a post on X that the proposed change was in the “best interest of the ever growing number of unemployed youth” in the country, arguing that it would make Kenya a more attractive place to do business without eroding its workplace protections. “Industry players insist that if we are to fully realize our potential, this is their ask to us as a country,” he said, without elaborating on which specific companies had lobbied for the change to the law. (He did not respond to a request for comment. “Meta has not advocated for changes to these laws,” a company spokesperson said in a statement to TIME. Ruto’s office did not respond to a request for comment.)
Supporters of the lawsuits disagree. “This notion that economic development can only come at the expense of exploitation, that needs to die,” says Mercy Mutemi, the lawyer leading the cases against Meta and Sama at the law firm Nzili and Sumbi Advocates, alongside UK tech justice non-profit Foxglove. “One hundred percent, let’s get more jobs for young people. But it doesn’t mean that they have to do these jobs in an exploitative model. There’s a way to achieve both.”
Read More: Meta Fails Attempt to Dodge a Worker Exploitation Lawsuit in Kenya
If the lawsuits against Meta proceed to trial and the courts decide in the plaintiffs’ favor, Ruto could face a political headache. “The President ran on a platform of economic transformation,” says Odanga Madung, an independent tech analyst based in Nairobi and former Mozilla fellow who has studied the country’s outsourcing industry. “Court cases that challenge the [outsourcing] sector are getting in the way of him delivering his political goals. In essence he’s telling young Kenyans that court cases like the one against Meta are a threat to their future, which he is trying to secure. It’s very important to consider that political context.”
The lawsuits in Kenya were filed after a 2022 TIME investigation revealed that young Africans had been recruited from across the continent for what some of them believed were call center positions at Sama, only to find themselves moderating graphic Facebook content. The story described how many of them developed PTSD, and how some were fired after advocating for better working conditions and planning a strike. The lawsuits allege human rights violations, labor law violations, discrimination, human trafficking, unfair dismissal, and intentional infliction of mental health harms. Both companies deny the accusations, with Meta also arguing it wasn’t the direct employer of the moderators.
While Ruto’s political intervention may stave off any lasting precedent, it does not appear likely to have a direct impact on the proceedings of the cases against Meta, says Mutemi. She says that this is because the cases cite human rights violations rather than simple employment claims, so they are protected under the Kenyan constitution, and could proceed regardless of any changes to employment law. “We agree that the law needs to be amended to reflect the new categories of work, for example the gig economy and platform work,” Mutemi says. “However the bill that’s currently in parliament does not offer any protections to the workers. As a matter of fact, it seems to be prioritizing the protection of the [outsourcing companies] and the tech companies at the expense of workers’ rights.”