Court of Appeal quashes Meta’s bid to stop suit by content moderators

The Court of Appeal has shut down an application by Facebook parent company Meta seeking to suspend a case in which 184 content moderators are suing the social media giant.

The court declined to suspend the case by the staff who were responsible for reviewing violent and hateful posts on Facebook as employees of Meta’s moderating partner, Samasource.

The moderators at Facebook’s Nairobi moderation hub sued Meta and Sama for sacking the entire workforce and blacklisting the laid-off workers.

Meta was challenging the handling of the suit by Kenyan courts, arguing that the Employment and Labour Relations Court (ELRC) assumed jurisdiction of a foreign company by allowing the moderators to sue the company in Kenya.

But in the ruling dated July 28, Justices Daniel Musinga, Kathurima M'Inoti and John Mativo noted that Meta did not demonstrate any basis warranting the order of stay of further proceedings.

“Upon analyzing the reasons cited by the applicants, we are not persuaded that the applicants have demonstrated any basis to merit the order of stay of further proceedings as prayed. As the law stands, an applicant under Rule 5 (2) (b) must as on necessity surmount both the arguability test and the nugatory test. Accordingly, having failed to satisfy the twin principles to qualify for an order of stay of the proceedings, the application dated 27th April 2023 is dismissed with costs to the 1st respondent and the 10th Interested Party,” the court ruled.

At the same time, the court also declined to stop another case filed by moderator Daniel Motaung against Meta Platforms, Meta Platforms Ireland Ltd and Samasource.

This is in the wake of a court ruling barring the Facebook parent company or Sama from firing the workers, pending a hearing to determine the legality of the redundancy.

Meta challenged the case arguing that the moderators did not meet the legal threshold for the ELRC to allow them to serve the foreign companies without the court documents.

In its ruling, however, the Court of Appeal stated that a stay of proceedings pending hearing and determination of an appeal cannot be allowed unless the impugned order will significantly prejudice the applicant if the matter proceeds.

“In light of our reasoning herein above, we find and hold that the applicants have failed to satisfy the nugatory test. Because it is a prerequisite for an applicant to satisfy both tests, the inevitable conclusion is that the applicants’ application dated 5th May, 2023 falls for dismissal. Accordingly, we dismiss the said application with costs to the 3rd to 186th respondents and the 2nd interested party,” reads court documents.

Last month, the ELRC ordered the suspension of the mass sacking of the moderators and further directed Meta to provide counselling to the employees.

Justice Byram Ongaya said Meta and Sama were "restrained from terminating the contracts" pending the determination of the lawsuit challenging the legality of the dismissal.

The court also barred Facebook's new outsourcing firm, Luxembourg-headquartered Majorel, from blacklisting the moderators from applying for the same roles.

Meta in January also tried to have the case struck down, arguing that the ELRC had no jurisdiction over it because it is neither based in nor trades in Kenya.

But the court in February said Meta can be sued in Kenya and declined to strike out the tech giant from the case.