The pandemic that has taken the world by storm has come with a lot of uncertainty as well as an antisocial phase among people. Human beings have now turned to technology devices, be it mobile phones, laptops, television among others as a pastime, waiting for relief from this uncertainty.

With people being drawn to their phones and having access to social media platforms readily, people are forced to interact with others online. Many people hide behind the veil of anonymity, hence allowing some of them to publish harsh and defamatory posts online that can be detrimental to one’s reputation.

Defamation is the communication of a false statement that harms the reputation of an individual, person, business, product, group, government, religion or nation. It can be described as an assault to a person’s good name which causes injury to that person. Defamation can be oral which is known as slander and written also known as libel, which may be done through publications of false and malicious statements.  Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. In the context of social media, libel is a publication of false and malicious statements on a blog or micro blogging sites like twitter, Face Book, My Space, and LinkedIn by making a post. Bloggers are publishers. Yes, it may sound weird but if you hit publish on that article, tweet or even comment on a blog, you are liable in a defamation claim and can sue or be sued. An example of online defamation is when a blogger makes an innuendo but another user joins the dots or completes the puzzle by adding more information making it become obvious who is being talked about. Another common behaviour especially among Kenyans on Twitter who go by the moniker #KOT is to use memes, which are modified pictures, texts and videos aimed at being humorous and trending topics that in the end destroy the reputations of those being ridiculed. It is also important to note that re-sharing posts amounts to re-publication of the said defamatory statements as evidenced in the case of Safaricom Limited v Porting Access Kenya Limited [2011] KLR.

The constitution provides for the right to privacy, right to have dignity and the freedom of expression in Articles 31, 28 and 33 respectively. Despite the fact that the three rights need to coexist, one tends to note that there is no adequate balance between them.

Article 33 of the Constitution provides for freedom of expression whereby every person has a right to freedom to express themselves be it through giving information, artistic work, academic and scientific research. However, it also limits it on the basis of propaganda for war, incitement of violence, hate speech and even to the detriment of one’s reputation.

The Computer Misuse and Cyber Crimes Act has outlined defamation on the basis of false publications in Section 22 and 23, both shunning the publication of false statements for the purpose of misleading and misinforming with the intent that it will injure the defamed person. They also carry hefty penalties if one is found having defamed someone falsely of a fine of Kenya Shillings Five Million or 2 Months imprisonment.

It goes further to provide for the issue of cyber harassment in section 27 (1) (c) , which states that:-

“ A person who individually or with other persons, willfully communicates, either directly or indirectly with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct  detrimentally affects that person.”

One would ask what would qualify as a defamatory statement. It was succinctly put by High Court of Appeal case S M W V   Z W M [2015] eKLR:-

A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

The law provides restitution for persons aggrieved by reputational injury from defamatory statements and publications. For one a suit of defamation must be brought forth twelve months from the date when the defamatory statement was made. The case of the aggrieved party is further strengthened when  the maker of the defamatory statement withdraws it and apologies as was seen in the case Honorable Musikari Kombo v Nation Media Group.

Furthermore, the person mentioned on the defamatory statement is the one who is to file the suit. This was held in Lord Atkin in Knupffer v London Express Newspaper Ltd [1944] 1 ALL ER 495:-

            “ The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff.”

There are defences available where one accused of defamation may use. They  are justification, fair comment, public interest and privilege information/ immunity. For instance, legislative persons have immunity from prosecution from comments made during their legislative period, due to the fact that they must carry out their work with freedom from prosecution.

The defence of fair comment must be made in uttermost good faith and should be based on substantial facts.

Key things to Note

  • Verifying information is always a necessity before posting and sharing it online
  • Sharing or re-posting is equivalent to re-publication which is an offence as well.
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