ADVOKS GLOBAL · KENYA
Copyright Act
35B. Takedown notice
Edition: 2022-12-31 · In force
35B. Takedown notice
(1)A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request, by way of a takedown notice, that Internet Service Provider removes the infringing content.(2)A takedown notice issued under subsection (1) shall—(a)be in writing and addressed by complainant or his agent to the Internet Service Provider or their designated agent;(b)contain the full names and telephone, physical and email address of the complainant;(c)be signed by the complainant or his authorized agent;(d)describe in specific detail the copyright work subject to the alleged infringement or sought to be removed;(e)identify the rights being infringed;(f)set out the content sought to be removed with details of where the content is contained;(g)attach an affidavit or any other declaration attesting to claim of ownership, validity of the rights, good faith and setting out any efforts to have entities responsible for making the content available to remove the content;(h)be copied to the Board, Communication Authority and the recognised umbrella association of service providers.(3)A takedown notice shall be deemed delivered on the next business day following physical delivery at its registered offices or two days following the day it is sent by registered post or immediately it is sent by electronic communication to a designated address of the Internet Service Provider or its designated agent.(4)An Internet Service Provider shall, upon receipt of a valid takedown notice, notify the person responsible for making available the alleged infringing content and provide them with a copy of the notice as soon as is practicable.(5)An Internet Service Provider shall disable access to the material within forty eight business hours unless it receives a counter notice fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice.(6)An Internet Service Provider which fails to take down or disable access when it receives a takedown notice shall be fullyli able for any loss or damages resulting from non-compliance to a takedown notice without a valid justification.(7)An Internet Service Provider which contravenes the provisions of subsection (4) commits an offence and shall, upon conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years, or to both.(8)Any person who falsely or maliciously lodges a takedown notice or a counter notice under this section commits an of fence and shall, upon conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years, or to both.(9)A person responsible for such misrepresentation under subsection (7) shall, in addition to the penalty provided under that subsection, be liable for any damages resulting from such false or malicious misrepresentation.(10)An Internet Service Provider shall not be liable for wrongful takedown in response to a valid takedown notice.