Last month, a court in Kenya issued a landmark ruling against Meta, owner of Facebook and Instagram. The US tech giant was, the court ruled, the “true employer” of the hundreds of people employed in Nairobi as moderators on its platforms, trawling 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 contractor.
Social media giant TikTok was watching the case closely. The company also uses outsourced moderators in Kenya, and in other countries in the global south, through a contract with Luxembourg-based Majorel. Leaked documents obtained by the NGO Foxglove Legal, seen by WIRED, show that TikTok is concerned it could be next in line for possible litigation.
“TikTok will likely face reputational and regulatory risks for its contractual arrangement with Majorel in Kenya,” the memo says. If the Kenyan courts rule in the moderators’ favor, the memo warns “TikTok and its competitors could face scrutiny for real or perceived labor rights violations.”
The ruling against Meta came after the tech company tried to get the court to dismiss a case brought against it and its outsourcing partner, Sama, by the South African moderator, Daniel Motaung, who was fired after trying to form a union in 2019.
Motaung said the work, which meant watching hours of violent, graphic, or otherwise traumatizing content daily, left him with post-traumatic stress disorder. He also alleged that he hadn’t been fully informed about the nature of the work before he’d relocated from South Africa to Kenya to start the job. Motaung accuses Meta and Sama of several abuses of Kenyan labor law, including human trafficking and union busting. Should Motaung’s case succeed, it could allow other large tech companies that outsource to Kenya to be held accountable for the way staff there are treated, and provide a framework for similar cases in other countries.
“[TikTok] reads it as a reputational threat,” says Cori Crider, director of Foxglove Legal. “The fact that they are exploiting people is the reputational threat.”
TikTok did not respond to a request for comment.
In January, as Motaung’s lawsuit progressed, Meta attempted to cut ties with Sama and move its outsourcing operations to Majorel—TikTok’s partner.
In the process, 260 Sama moderators were expected to lose their jobs. In March, a judge issued an injunction preventing Meta from terminating its contract with Sama and moving it to Majorel until the court was able to 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 had blacklisted them from applying to the new Meta moderator jobs, in retaliation for trying to push for better working conditions at Sama. In May, 150 outsourced moderators working for TikTok, ChatGPT, and Meta via third-party companies voted to form and register the African Content Moderators Union.