GHAI: Freedom of expression, defamation law and compensation windfalls

To win compensation, a person must show what was said or written about them would lower them in the opinion of other people

In Summary

• People are getting large compensation from people who have made defamatory statements.

• Is there a balance between freedom of expression and the protection of reputations

A vendor displays newspapers in a stand in Nairobi.
A vendor displays newspapers in a stand in Nairobi.
Image: FILE

On February 3, the Daily Nation published a very interesting article – and a worrying one – about the way in which the courts are being used to stop people from making comments critical of others, particular through social media.

Alternatively people are getting large compensation from people who have made defamatory statements.

This raises several questions. Central is whether we have got the right balance between freedom of expression and the protection of reputations, including whether social media and its risks (and potential) perhaps requires us to look again at the issues.

Why is freedom of expression important?

Most people probably recognise that freedom of expression is particularly important for democracy and accountability. Governments, especially, need to hear what they do not want to hear. But if they – and the people who run them – are given powerful tools to control what is said and written about them, they will use them to crush dissent.

What is the law of defamation?

Defamation is about reputations. For a long time, there was a criminal offence of defamation – it involved “unlawfully publishing any defamatory matter concerning another person, with intent to defame that other person.”

But the Kenyan courts held that it was unconstitutional. It was too much of a restriction on freedom of speech. Limits on human rights are only allowed under the Constitution, if they are necessary limits, and the court said it is enough that we have civil law of defamation – people can bring an action to get compensation for defamation.

But this means the civil law is very important.

To win compensation, a person must show what was said or written about them would lower them in the opinion of other people generally (in fact the law has always said the opinion of right thinking people” generally, which risks being “thinking like us judges”).

But those who complain do not have to convince the courts that what was said about them was wrong. The person who made the statement and is sued can argue what they said is true. This is not easy; someone who argues this runs a risk. If they cannot convince the court what they said was true, it is likely to increase the damages they have to pay. Many people do not even try to prove what they said was true.

It is no defence the person who made the statement did not know it was untrue.

There are other defences.

If what you said was an honest expression of opinion, based on facts the reader of your statement could understand, you should have a good defence. If what you said was in the genuine interest of the person to whom you wrote or spoke (meaning they are affected by the facts and should know what you passed on) you should have a good defence.

But the law is rather technical, and in the event many people (including newspapers) end up settling cases so they do not go to court – which will mean paying the person complaining.

And as the Nation pointed out, the damages awarded by courts can be rather high, really a windfall (it can be profitable to be defamed - “The courts are raining money”, it said). If you are claiming that you lost a job or money or even a spouse because of defamation, you must prove it. But if you are simply arguing that the statement was one that would naturally harm you in the eyes of people you don’t have to prove it. That is logical – how useful would it be to have 3 friends of a person saying: “I thought less of him because of the defamation” if the claim is that the public generally would have done so?

Can we use the Constitution to change things?

The Constitution says, “Every person has the right to freedom of expression”. It also says that “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

This is a pity because it seems to suggest the laws of defamation had constitutional approval. In fact, a Kenyan court said defamation law “has been given a constitutional underpinning”. It crept into the Constitution in the Committee of Experts first draft in 2009.

However, it did not prevent the courts declaring the criminal law of defamation unconstitutional. The Kenyan courts took the view that criminal law was not necessary for the protection of reputations. The best way to look at this provision is that it recognises that protecting reputation is important, but does not necessarily preserve the detailed law of defamation as it is now.

Various other countries’ courts have held that their constitutions require their law of defamation to be modified because it restricts free speech too much. The best known is the US, where it is now very difficult for public figures to bring a successful action in defamation.

Let’s look at possible changes that might mean this law was less of a hurdle for free speech.

Change the law so that a public official who complains of damage to their reputation must prove what was said was untrue and the person who made the statement knew it. Or at least did not care whether it was true or not.  

This is one thing that the US Supreme Court said in the famous case of Times v Sullivan. In fact, the US courts later decided that even if the person suing is a purely private person he or must prove the person defaming them was careless or worse about the question of truth.

Other countries have not followed the US court.

However, in South Africa, (which has a different history of defamation law than Kenya) a person is liable for defamation only if they intended to defame. But the South African law assumes that if you defame someone you intended it, and it is up to you to prove that you did not intend it and were not negligent or careless about the truth. This does make the law a bit less draconian than in Kenya, where you can be legally liable, even if you had good reason to think you were telling the truth, but cannot prove it.

However, several countries have given greater protection to political discussion or general discussion of matters of public importance. This tends to protect the media, and only if the media have been reasonable – so checking their facts and asking people affected for their reactions before publishing. This might not help many on social media.

Reduce damages. This maybe the simplest approach. Defamation compensation (damages) can be very high, sometimes seeming more than one might get for a serious personal injury caused by negligence. Beyond loss that is actually proved (like loss of a job), maybe damages should be just enough to mark that an injustice has been done, but not enough to serve as an incentive to people to sue.

Damages to punish the defaming party should perhaps not be awarded (we abolished the crime of defamation why should we still punish?). These are called punitive or exemplary damages and are not uncommon in defamation cases,

In fact, the emphasis should perhaps be shifted to trying to put right the wrong – which money will not do – for example, a court order to a person who defamed another to make a clear and prominent correction of what they wrote.

Our courts could deal with most of these ideas by developing the law as the Constitution urges them to for the protection of human rights. But they can’t do it, if the lawyers don’t bring the arguments – both for and against changes (these and others).

The lawyers can seek guidance from decisions in other countries. For example, the Supreme Court of Appeal of South Africa’s decision in the case by Trevor Manuel against the Economic Freedom Fighters, in December 2020, about damages and other remedies.

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