Last month, one Court in Kenya has issued a historic ruling against Meta, owner of Facebook and Instagram. The US tech giant was, the court ruled, the “real employer” of the hundreds of people who worked in Nairobi as moderators on its platforms, who sifted through posts and images to filter out violence, hate speech and other shocking content. That means Meta can be sued in Kenya for labor rights violations, even though moderators are technically employed by a third party.
Social media giant TikTok kept a close eye on the matter. The company also uses outsourced moderators in Kenya and other countries in the Global South through a contract with Luxembourg-based Majorel. Leaked documents obtained by the NGO Foxglove Legal, viewed by WIRED, show TikTok is concerned it could be next in line for potential lawsuits.
“TikTok is likely to face reputational and regulatory risks for its contractual agreement with Majorel in Kenya,” the memo says. If the Kenyan courts rule in favor of the moderators, the memo warns “TikTok and its competitors may be monitored for real or alleged labor rights violations.”
The ruling against Meta came after the tech company tried to get the court to dismiss a case brought against the company and its outsourcing partner, Sama, by South African moderator, Daniel Motaung, who was fired after trying in 2019 to form a trade union.
Motaung said the job, which involved spending hours a day watching violent, graphic or otherwise traumatizing content, left him with post-traumatic stress disorder. He also claimed that he was not fully aware of the nature of the job before moving from South Africa to Kenya to start the job. Motaung accuses Meta and Sama of various violations of Kenyan labor law, including human trafficking and breaking up unions. If Motaung’s case succeeds, other major tech companies outsourcing to Kenya could be held accountable for how staff are treated there, providing a framework for similar cases in other countries.
“[TikTok] reads it as a threat to reputation,” said Cori Crider, director of Foxglove Legal. “The fact that they exploit people is a threat to reputation.”
TikTok did not respond to a request for comment.
In January, as Motaung’s lawsuit progressed, Meta attempted to cut ties with Sama and transfer its outsourcing business to TikTok’s partner Majorel.
In doing so, 260 Sama moderators were expected to lose their jobs. In March, a judge issued a court order barring Meta from terminating her contract with Sama and transferring it to Majorel until the court could determine whether the layoffs violated Kenyan labor laws. In a separate lawsuit, Sama moderators, some of whom spoke to WIRED earlier this year, alleged that Majorel blacklisted them from applying for the new Meta moderator jobs in retaliation for pushing for better working conditions at Sama. In May, 150 outsourced moderators who worked for TikTok, ChatGPT and Meta voted through outside companies to create and register the African Content Moderators Union.