Q&A – 14 September 2015
Canonical disability
My husband is suffering from a canonical disability. I am not sure what to do. Is this a ground for me to claim damages from him? What else can I do?
TE, Lindi
Canonical disability is the inability of either party to have sexual relations with the other. It is another word for impotence. You cannot claim damages if this is a medical condition and which occurred after the marriage. However if you were unaware of this before marriage and were made to believe that all is normal, then you may have a claim for damages.
As lawyers we are not qualified to guide you on the medical remedies available but if canonical disability is permanent and incurable then it is a valid ground for divorce.
Unsolicited advertisements from suppliers
My inbox is flooded with mass e mails being sent by suppliers who are promoting their services. I get e mails from those offering courses, to those selling computers. I hear there is a new law that protects us as consumers from such messages. What about mass messages inviting persons to attend a debate or seminar? Please guide.
OI, Dar
The newly enacted law, The Electronic Transactions Act of 2015 provides for this and makes it illegal for such commercial suppliers to send you unsolicited messages. Section 32 of this Act states that (1) A person shall not send unsolicited commercial communication on goods or service unless-
(a) the consumer consents to the communication; (b) at the beginning of the communication, the communication discloses the identity of sender and its purpose; and (c) that communication gives an opt-out option to reject further communication. (2) The consent requirement is deemed to have been
met where- (a) the contact of the addressee and other personal information were collected by the originator of the message in the course of a sale or negotiations for a sale; (b) the originator only sends promotional messages relating to its similar products and services to the addressee; (c) the originator offered the addressee the opportunity to opt-out and the addressee declined to opt-out; and (d) an opportunity to opt-out is provided by the originator to the addressee with every subsequent message.
(3) An originator who contravenes this section commits an offence and shall, upon conviction, be liable to a fine of not less than ten million shillings or to imprisonment for a term not less than one year or to both.
You can see that if the commercial advert is unsolicited, it is illegal and the sender can be fined ten million shillings or be imprisoned for a minimum of one year, or both.
However this does not apply to non commercial communication meaning that mass e mails with free debates and seminars would not fall foul under this law.
Further, section 20 of the Cyber Crimes Act of 2015 states that (1) A person shall not, with intent to commit an offence under this Act – (a) initiate the transmission of unsolicited messages; (b) relay or retransmit unsolicited messages , or (c) falsify header information in unsolicited messages; (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of not less than three million shillings or three times the value of undue advantage received, whichever is greater or to imprisonment for a term of not less than one year or to both.
It is important for those sending out mass e mails for commercial purposes or those emails that will end up being an offence under the Cyber Crimes Act to be careful as they can be fined and imprisoned.
Stolen online identity
I am a famous personality and know of a friend, who cannot stand my fame, and who has registered myname on twitter and fakes as if it is me. There are comments she makes that would entice people not to like me, whilst it is not me. How can I stop this? Is this not an offence under our laws?
TT, Dar
Twitter has some strong rules and policies that users must abide to. One of them is on impersonation which is a violation of the Twitter Rules. Twitter accounts portraying another person in a confusing or deceptive manner may be permanently suspended under the Twitter impersonation policy.
However Twitter states that an account will not be removed if: the user shares your name but has no other commonalities, or the profile clearly states it is not affiliated with or connected to any similarly-named individuals.
Accounts with similar usernames or that are similar in appearance (e.g. the same background or avatar image) are not automatically in violation of the impersonation policy.
In order to be impersonation, the account must also portray another person in a misleading or deceptive manner.
However Twitter users are allowed to create parody, commentary, or fan accounts.
Please refer to Twitter’s parody, commentary, and fan account policy for more information about these types of accounts.
In addition to the Twitter rules, our newly introduced Cyber Crimes Act states makes such impersonation a criminal offence. Section 15 states that (1) A person shall not, by using a computer system impersonate another person.
(2) A person who contravenes subsection (1) commits an offence and is liable on conviction, to a fine of not less than five million shillings or three times the value of undue advantage received by that person, whichever is greater, or to imprisonment for a term of not less than seven years or to both.
If you know who is impersonating you, you should report this to the police who can pursue that person under this new law.