Defamation - Kenyayote

DEFAMATION Torts protecting the reputation

• Tort = State law, so differs state to state • Based on common law, so very similar – Slander – spoken – Libel - written – Directed at goods or services

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• Freedom of the press flows from freedom of expression, which in Kenya is guaranteed by the constitution. • To ensure that it is exercised within reasonable limits, the law provides special checks on freedom of expression. • The laws of defamation and protection of the privacy of the individual exist to guard against abuse of press freedom.

• Defamation is any allegation or imputation of a fact which attacks the honor or the consideration of the person or of the body to which the fact is imputed. • The law of defamation exists to protect reputation. • Kenya’s defamation laws derive from English law in which every man is entitled to his good name and to the esteem in by others which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.

• Publication of any matter that lowers one’s estimation in the eyes of the public is a defamatory statement. Defamation can also be defined as the act of publishing that reduces or casts aspersions on the character of a person and the status that he or she enjoys in society. • A defamatory statement is one which lowers a person in the estimation of the right thinking members of the society, or causes him to be shunned or avoided or exposed to hatred, contempt or ridicule, or to convey an imputation on him injurious to him in his office, profession, calling, trade or business.

• For there to be defamation four distinct factors have to be present Reference to a fact that should be provable an attack on honor Regard to a person or body Nothing in the attitude and behavior of a person or group justify being discredited this way.

Libel: defamation by written words or by communication in some tangible form. The elements of a libel suit include

 Defamation: a statement is defamatory if it injures a person’s reputation, lowering that person in the estimation of the community or deterring third persons from associating or doing business with that person.  Identification: the plaintiff must prove the audience would associate him/her with the defamatory statement. This requires proving that readers, listeners or viewers would have understood that the statement was about the plaintiff.

 Publication: the statement should have appeared on a newspaper or on a television broadcast.  Falsity: Proof that the statement about the plaintiff is false  injury: the defamation statement must have injures the reputation of the plaintiff  Fault; refers to the state of mind of the person who uttered the allegedly defamatory statement. did the publisher intentionally or negligently say something false and defamatory.  Slander- Spoken

Two forms of defamation 1. Libel – permanent form-written 2. Slander – transitory form- spoken Note the practical distinctions between the two Note also that there may be criminal libel

Other ways of protection the reputation

• Injurious falsehood • Malicious prosecution

DEFAMATION CONSISTS OF: “The publication of a false and defamatory statement concerning another person without lawful justification”

Traditional role of the courts • Protection of individuals from the damage that can be caused to the reputation by untrue statements made about them • Numerous complex defences have been developed over the years • Before the introduction of conditional fee agreements only the very rich could afford to bring libel claims

• The role of the judges in defamation cases is to ensure that freedom of speech does not outweigh the interests of the individual. • Some would argue that the conflicting interests involved cannot be balanced and that the role of the courts should not be regarded as a balancing exercise, as the interests are not of equal weight.

More recent developments Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

What is publication? • The statement must be published to a person other than the claimant alone. • It is not actionable in civil law to make a defamatory statement to the claimant alone out of ear-shot of a third person, nor to write a letter to the claimant containing defamatory material. • If the claimant shows a potentially defamatory letter to someone else, there is a defence of volenti as the claimant, not the defendant, has published the statement.

Role of the jury • To establish the standard of ‘right-thinking members of society’ • To decide whether the claimant was defamed • In recent years, a much more limited role in assessing damages

Words must refer to the claimant • The claimant must have been identifiable by the statement as an individual • Note the possibility of a defence if the claimant is named accidentally in a work of fiction

Who is Liable for Defamation? • In non-internet defamation cases the court distinguishes among the following: – Common Carriers – Distributors – Publishers of the defamatory material

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Common Carriers are not Liable for Defamation – Common Carriers, telephone and telegraph, have been held to not have any control over the content of the material and therefore are not liable

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Distributors, vendors or bookstores are not liable for defamation • Smith v. California: proprietor of bookstore not liable for obscenity because didn’t know what was in the book – Can’t be liable for obscenity unless the vendor knows what the content is (not that it is obscene) – So can’t be liable for defamation if don’t know what is in the book

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Publishers of books, newspaper, television, radio can be liable • If they exercised control over the content

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Are Online Service Providers Common Carriers? • Are they common carriers? distributors, publishers? • Lunney v. Prodigy: Prodigy was just a conduit, not a publisher of profane and threatening messages

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What is a Publication in the Internet Environment? • It’s in the Cards, Inc. v. Fuschetto: Question: was a computer subscription service accessible anytime by its users a periodical? and therefore a publication?. – Court said no because • it did not appear on a regular basis, posting was random communication • analogous to posting a written notice on a public bulletin board

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The law of Privacy •The law recognizes four kinds of invasion of privacy: • Intrusion: A lawsuit for intrusion requires that one person intentionally intrude on the solitude or seclusion of another in a manner that would be highly offensive to a reasonable person. Gathering information about a person by examining public records and interviewing friends, relatives, enemies and associates is perfectly legal, even if the subject of investigation objects. Nor are reporters intruding on a person’s solitude or seclusion by requesting interviews

 To commit intrusion, they would have to invade some area of in which the person had a reasonable expectation of privacy (a persons home, a hotel room, a hospital room etc). News reporters may not enter a person’s home or other private property without permission. Doing so would be a clear case of intrusion. It would be grounds for a trespass action.  It is possible to invade another person’s privacy without physically entering that person’s property, for example by using electronic eavesdropping devices, tapping a telephone line, looking into a bedroom window with binoculars or using a powerful telephoto lens to take pictures of people inside their homes.

 Giving publicity to private facts: everybody has secrets and most people would be upset if their secrets were made public. Lawsuits for publicity to private facts are a way people can receive damages when their secrets are revealed.  False light: A false light suit requires that publicity place a person in a false light and that the false light be highly offensive to a reasonable person.  Misappropriation: any person who uses the name or likeness of another for his or her own use or benefit may be sued for invasion of privacy by misappropriation.