Huge ruling in Kenyan court threatens global model of outsourced content moderation – and says that Facebook is the “true employer” of its key safety workers

Last Friday, a judge in Kenya’s Employment and Labour Relations Court made a ruling with huge potential implications for social media content moderation across the world.

Judge Byram Ongaya ruled that Facebook is the “true employer” of its content moderators in Kenya – not Sama, its outsourcing company. That means Facebook is legally responsible for these workers.

The ruling is – we think – the first of its kind in the world. And it is one with explosive potential consequences. 

If Facebook is legally responsible for its moderators, every problem they have been subjected to: the union-busting and exploitation; the mental anguish caused by prolonged exposure to toxic content; the unlawful sham redundancy that has impoverished them and threatened the rights of many to live in the country – all become Facebook’s responsibility, in the eyes of the law.

Across the world, social media content moderation is overwhelmingly outsourced. This allows tech giants like Facebook and TikTok to argue that the dire working conditions of their moderators, who do the essential work of making their platforms fit for use, are nothing to do with them.

Should Judge Ongaya’s ruling be confirmed when the main case is heard, that could blow a hole in this entire model of outsourcing content moderation. After all, if Facebook, TikTok or OpenAI is the “true employer” of their content moderators and the “owner[s] of the digital work of content moderation” in the eyes of the law – then they cannot hide behind middleman like Sama or Majorel. It will be their responsibility, at last, to value and protect the workers who protect social media – and who have made tech executives their billions.

This is a massive victory for the brave 184 Facebook content moderators bringing a lawsuit against Facebook’s sham mass redundancy of its entire content moderation operation for East and Southern Africa – and for their fantastic Kenyan counsel, Mercy Mutemi, and her team at Nzili and Sumbi Advocates. We are incredibly proud to be supporting them.

In addition to this seismic ruling, Judge Ongaya also said:

  • Facebook and outsourcer Sama are ordered to hold all moderators’ jobs in place – and to pay them – pending the full hearing of the Constitutional case;
  • Facebook’s supposed redundancy WAS a sham – the Court finds there was no reason “to justify the redundancy,” meaning the entire mass sacking was legally invalid;
  • Facebook is barred from blacklisting its Sama moderators from doing work for its new chosen outsourcer, Majorel, after recruiters’ texts revealed there was an effective blacklist;
  • Because the Court finds the work of content moderation “inherently hazardous with serious mental health impacts”, Facebook and outsourcers are ordered to “provide proper psychological and medical care to the Petitioners in place of wellness counselling”;
  • Major Kenyan agencies – Kenya’s Human Rights and Equality Commission, the Central Organisation of Trade Unions, the Attorney General, the Ministry of Labour and the Ministry of Health – are ordered to investigate the health and safety implications of content moderation work and report on needed reforms to the Court.

The judge granted Facebook and Sama a six-day pause to study the ruling before it comes into effect.

That expires on Thursday, June 8, when Facebook will face the moderators in court to debate the order and set direction for a contempt application, aimed at getting Facebook and Sama to comply with prior court orders and pay their long-withheld wages. 

We couldn’t do all this without support – and the moderators still need help.

Hit the button below to support the moderators bringing this case, who have been left unable to pay bills and struggling to feed their families by Facebook and Sama’s refusal to pay them the wages they are owed:

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