Unlocking Defamation: What to Consider Before Suing or if Sued

Introduction 

Since 2008 when the banking and micro-finance laws were amended to allow financial institutions to share credit information of their customers through credit reference bureaus, a number of finance institutions have found themselves on the receiving end, facing defamation suits, from their erstwhile customers. Some of those suits have succeeded and the finance institution has been ordered to pay substantial damages. Are the courts, right? 

Should you rush to court if a mainstream media publication or broadcaster publishes words which portray you in bad light? Does it matter if the words are published in an alternative media publication (gutter press)? What if the words complained of are published in a blog with huge following? We are going to explore and answer these questions. 

Article 33 (1) of the Constitution of Kenya, 2010 protects every person’s right to freedom of expression. However, Article 33 (3) has a rider to the effect that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. Put differently, the law of defamation aims to balance the right of free speech with protecting a person’s reputation. 

Defamation is a communication from one person to at least one other that harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. 

The court in the case Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR cited Gatley on Libel and Slander Sweet & Maxwell, 12th Ed. in which it is said that: 

“A defamatory imputation is one … which tends to lower him in the estimation of other, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking person generally. To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency.” 

Thus, for a publication to be defamatory, it must have the potential or tendency to lower the esteem in which the person is held by right-thinking members of the society. A “person” includes a company. 

However, for a defamation action to succeed, the plaintiff (the person suing) has to prove four things: – 

• That the communication has been published to a third person; 
• The publication must be by the defendant; 
• That the communication identifies (or is about) the plaintiff; and 
• That the communication is false. 

Defences 

Of the defences available to a defendant in a defamation case, the possible defences in the instant case are justification, fair comment, absolute privilege and qualified privilege. 

a) Justification 

The defence of justification/truth is a complete defence if the publisher can prove the material published was wholly or substantially true. This means that even if an imputation is found to be defamatory, the publisher is not liable if the imputation is proven to be true in substance or not materially different from the truth. 

The burden of proving the truth however lies on the defendant (the person sued). Accordingly, the publisher would, Legal Insights in raising the defence of justification, be required to prove the contents of the Article to be true in order to successfully escape liability for defamation. 

Justification as a defence also enjoys statutory recognition by dint of section 14 of the Defamation Act (the Act). 

b) Fair comment 

Section 15 of the Act provides for right to fair comment. Fair comment, also known as honest opinion, is a defence that can be raised to demonstrate that the content of an offending publication was based on an opinion(s) which a rational and fair-minded person having knowledge of certain facts could reasonably have or be entitled to have. 

Therefore, the defendant can only raise this defence if the Article was based on an actual situation, past or present, and if the conclusions made therein would be such as neutral and rational third-party (the court) would equally arrive at. 

c) Absolute privilege 

This kind of communication is not actionable as it enjoys absolute immunity. Examples are parliamentary and court proceedings. 

d) Qualified privilege 

This applies to a situation where the person making the allegedly defamatory statement has some right to make that statement. For instance, statements made to the police or other institutions mandated by law to receive such information. Credit reference bureaus can therefore successfully plead qualified privilege as the law mandates them to receive and share the credit information as long as they do so in good faith. 

Reliefs 

The most common relief in defamation suits is damages, being monetary compensation for the injury to the aggrieved party’s reputation and for any losses resulting therefrom. The damages are compensatory in nature and intended to place an aggrieved party in the position it would have been in had the defamatory statement not been published. For instance, while a careless or negligent listing may attract a defamation suit, considering that the communication made to credit reference bureau is not available to all and sundry, the same should only attract very nominal damages; a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right, but suffered no substantial harm. However, if a customer has can show that as a result of the erroneous listing he has suffered actual financial loss, e.g. a business deal, he can sue for the loss. 

In exceptional circumstances, the Court can grant exemplary (punitive) as well as aggravated damages with the intention to sanction the defendant for his wrong-doing. While exemplary damages are meant to ‘punish’ the defendant, aggravated damages will be ordered against a defendant who acts out of improper motive e.g., where it is actuated by malice or failure to apologise. 

The court has a discretion, meaning the power or freedom, to determine the amount, if any, of damages that should be awarded. However, the damages awarded should not be manifestly excessive as to occasion undue hardship on the defendant nor be so inadequate as to cause injustice upon the plaintiff. 

In the alternative or in addition to a claim for damages, the aggrieved party may be seeking orders to have the party at fault compelled to make an apology for the defamatory statement, correct the same or retract it. 

If there is risk of repetition of the defamatory words, the aggrieved person can apply for temporary injunction to restrain the same pending the hearing of the case and for permanent injunction at the conclusion of the case. If the words are contained in a blog or other digital platform, one can also apply for a mandatory injunction to have the pulled down. 

Criminal Proceedings? 

Section 194 of the Penal Code makes it an offence to defame another person. This was a misdemeanour whose sanction was imprisonment for a term not exceeding two years or a fine or both. 

However, in 2017, section 194 was declared unconstitutional in the case of Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR for being an affront to the freedom of expression guaranteed under Article 33 of the Constitution of Kenya. Justice Mativo succinctly expressed himself as follows: – 

“… I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. I my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” 

In light of this decision, criminal prosecution is not an option. 

Time Frame 

A suit for defamation should be instituted within a period of 12 months from the date on which the cause of action arose, that is, the date on which the publication was made. Thereafter, the claim becomes time-barred or stale. 

Other Considerations 

a) Popularity of the Publication 

Are the words complained of contained in a platform with such a degree of popularity as to cause significant harm to the plaintiff? In other words, if the words are in a non-descript publication or blog, there is a risk of the case attracting the attention of mainstream media and thereby unwittingly spread the news further, especially where the plaintiff knows he is not very clean. 

b) Chances of recovery 

In the main aim is to get damages, access the chances of recovery in the event the suit is successful. A private investigator is usually engaged to establish whether the defendant has any attachable assets. It makes no sense to sue a pauper only to end up with a paper judgement.