Legitimate Restrictions to FOE: Defamation and Free Speech

1. ARTICLE 19 – EASTERN AFRICAPresenter : Demas Kiprono Presentation on Legitimate Restrictions to FOE: Defamation

2. FREE SPEECH Freedom of expression is a fundamental human right. It reinforces all other human rights, allowing society to develop and progress. The ability to express our opinion and speak freely is essential to bring about change in society. • INSTRUMENTALITY – one cannot claim/access rights he does not know of..

3. Forms of expression • Together, free speech and a free press are essential to the public's ability to become informed and to actively participate in a democracy.

4. CONSTITUTIONAL LIMITATION OF RIGHTS GENERALLY Article 24 deals with limitations generally. Provides, “a fundamental right shall not be limited except by law, and then only to the extent that the limitation is reasonable, justifiable in an open society” EXPRESSION - Article 33 (2) (a – d) provides situations when the right to freedom of expression may be limited. They include propaganda for war, incitement to violence, vilification of others, hate speech and advocacy for hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is based on discrimination.. 3) Every person shall respect the rights and reputations of others

5. Under Article 19 of the ICCPR – FOE is also guaranteed. Article 19 (3) Limitations on freedom of expression must be prescribed by law; necessary and proportionate; and pursue a legitimate aim, namely: the interests of national security or public safety; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others.

6. . • "Defamation" is a term for any statement that hurts someone's reputation. Written defamation is called "libel," and spoken defamation is called "slander." • IT IS ACKNOWLEDGED THAT people should not ruin others' lives by telling lies about them; HOWEVER, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. • Political and social disagreement is important in a free society, and we obviously don't all share the same opinions or beliefs.

7. Section 194 to 200 of the Penal Code created the offense of Criminalised Defamation in Kenya. • Section 67 – Defamation of foreign prince, pontate, ambassador… • Section 194 was declared unconstitutional in February, 2017 JAQUELINE OKUTA v AG case.

8. DEFAMATION ACT • The Defamation Act makes provision dealing with the civil defamation in Kenya. However, it does not define it.. • From case law, it can be defined as a publication or statement which tends to lower a person in the estimation of his fellow men or right thinking members of the society generally and which tend to make him be shunned or avoided, or makes them think less than him. • The statement must lower his estimation among members of society generally. Does not matter what you think of yourself.. • The words must also be maliciously published. Malice can be constructed from a deliberate or recklessness or even negligence or ignoring facts. • An action can only be brought within 12 months of the publishing of the statement.

9. Slander affecting official, professional or business reputation (Section 3) • In respect of words calculated to disparage the complainant in any office, profession, calling trade or business held or carried on by him/her at the time of the publication Slander of women (Section 4) • In respect of words imputing unchastely to any woman or girl. Slander of title (Section 5) • In any action for slander of title, slander of goods or other malicious falsehood, • If the words upon which the complaint is founded are calculated to cause financial damage to the plaintiff and are published in writing or other permanent form; or • If the said words are calculated to cause financial damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

10. ARTICLE 19’s view….. • In the laws of many countries, defamation is defined both as a civil wrong and a criminal offence. • This means that a person can either be sued for compensation by the affected person or be criminally prosecuted by the state. • ARTICLE 19 campaigns against criminal defamation as it is a disproportionate punishment and has a harsh effect on freedom of expression.

11. Ingredients of defamation • 1. First, the "statement" can be spoken, written, pictured, or even gestured. Because written statements last longer than spoken statements, most courts, consider libel more harmful than slander. • 2. "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about • 3. A defamatory statement must be false -- otherwise it's not considered damaging. Even terribly mean or disparaging things are not defamatory if the shoe fits. Most opinions don't count as defamation because they can't be proved to be objectively false. For instance, when a reviewer says, "That was the worst book I've read all year," who can prove otherwise?.

12. Ingredients ……. • 4. The statement must be "injurious." Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how their reputations were hurt by the false statement. Someone who already had a terrible reputation most likely won't collect much in a defamation suit. • 5. Finally, to qualify as a defamatory statement, the offending statement must be "unprivileged." • Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. Eg witnesses and parliamentarians.

13. Why criminal defamation is problematic • Criminal defamation laws arenearly always used to punish legitimate criticism of powerful people, rather than protect the right to a reputation. • Sedition or criminal defamation laws are also used to silence critical reporting against government. It thus disproportionately targets journalists, bloggers, human rights defenders, environmental activists and members of the political opposition. • It is a disproportionate punishment and has a harsh effect on freedom of expression.

14. Chilling effect of criminalization of speech • The possibility of being arrested by the police, held in detention and subjected to a criminal trial is always in the back of the mind of a journalist when he or she is deciding whether to expose, for example, a case of high-level corruption.

15. Defamation vis a vis Public Officials • Public officials and figures should have a harder time proving defamation because the public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. • However, defamation laws are often misused to penalize criticism of governments or public officials. • How about judges?

16. Public officials should enjoy less protection • Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. • Freedom of political debate is at the very core of the concept of a democratic society. • The limits of acceptable criticism are, accordingly, wider as regards a politician as such than as regards a private individual. • A Public Official knowingly lays himself open to close scrutiny of his every word and deed, and he and COURTS must consequently display a greater degree of tolerance. • Public office is a SMOKY KITCHEN, If you cant stand the smoke, then you might as well get out!

17. Exclusions/Exceptions/Defences to defamation: • “fair comment” - a statement of opinion which was arrived at based on accurate facts, which do not allege dishonourable motives by the person about whom the statements were made. • Opinion: The statement complained of was not a statement of fact but an expression of opinion. …There may be some expectation that it has a reasonable factual basis, but it is not a requirement to prove this. E.g commenting on a persons writing skills… • Statements made about a public person (political candidates, governmental officeholder, movie star, author, celebrity, sports hero, etc.)are usually exempt, even if they are untrue and harmful. • However, if they were made with malice – with hate, dislike, intent and/or desire to harm and with reckless disregard for the truth – the public person may have a cause of action. This was determined by the U.S. Supreme Court and has been re-interpreted various times. New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[

18. Continuation ……. • Minor errors in reporting, such as publishing a person’s age or title inaccurately or providing the wrong address. • Governmental bodies due to the premise that a non-personal entity cannot have intent. • Public records are exempt from claims of libel. • Truth – the communication was true. • Satire: The statement was not intended seriously and no reasonable person would understand it thus. • Consent: to the publication of the allegedly defamatory statement

19. Privilege You will not be liable if you prove that you were entitled to make the statement because it was subject to absolute or qualified privilege. Privilege applies to Lawyers, legislators and witnesses in court, house or tribunal proceedings. "Absolute privilege" applies to judges, lawyers and witnesses in legal proceedings, to MPs for things they say in Parliament, and to statements made by various officials dealing with "affairs of state". There can be no liability in defamation for these statements, even if the person making the statement was motivated by malice.

20. .. • “Qualified privilege" applies where the person making the statement has a duty of some kind to make the statement to someone who has a corresponding interest in receiving it. • However, the person making the statement must do so in good faith and without any improper motive; this means that, unlike absolute privilege, this defense won't protect you if you acted out of malice or ill will towards the plaintiff. • Examples of where qualified privilege will arise are reports of court proceedings, statements made at meetings of public bodies, and statements made in the investigation of crimes,

21. Kenyan trends:- • Increasingly, especially towards 2016, media houses have come under a great deal of pressure in the form of defamation cases. • In fact, in 2016 alone, two of the country’s top media houses were slapped with huge fines for publishing material that was found to be defamatory. • The result is a chilling effect on the freedom of expression and freedom and independence of the media in the country. • JOURNALISTS’ EMPLOYMENT TERMS?…

22. , • VERY FEW APPEALS • - Going forward, if media houses do not seek legal recourse for the very high awards to plaintiffs, similar judgements could financially imperil even the largest media houses. • Be that as it may, there is need for improved reportage on the part of journalists in the country as concerns the likelihood of being sued for defamation.

23. EXAMPLES OF CASES • Hon. Uhuru Muigai Kenyatta V Baraza Limited • Baraza Limited was sued in 2010 for playing a clip of Raila that alleged that the Plaintiff was involved in the 2008 PEV. • Baraza was ordered to pay the Plaintiff 7,000,000 KES. • 2. Eric Omenda v Safaricom Limited • Sued Safaricom because he was arrested at their behest on allegations that he was involved in card fraud in front of shoppers, business people and people who knew him as a regular shopper at the Village market. • The judge stated that the plaintiff was entitled to an award of Ksh 600,000 • 3. Cyril BikoGwendo v Standard Limited & 2 others [2014] • Defamatory reportage of court proceedings that portrayed the plaintiff as a person of loose morals with no regard to family values, a conman and fraudster and a man who was a philanderer and unworthy of respect. Court found that the journalists used court reports to generate rumours and scandals. • Plaintiff succeeded in obtaining an injunction. • 4. Samuel Ndung’uMukunya v NMG [2015] • The Plaintiff claimed that the defendants' disparaged him concerning his application to the Judicial Service Commission. Failed to report that he had been inadvertently removed from shortlist yet they were aware. • Plaintiff was awarded 20,000,000 KES

24. 5. Arthur Papa Odera v Peter O. Ekisa [2016] The plaintiff, Member of Parliament for Teso North claimed that between the months of February and March, 2014, Arthur Papa Odera, the defendant, published information defamatory of him on Facebook. The plaintiff also alleged that the Facebook platform has international circulation and is easily accessible and therefore this was detrimental to him. Defendant ordered to pay 5 million KES. Part of the reason is that he had refused to pull down the post. 6. Alnashir Visram v Standard Limited 2016 Alnashir Visram, a serving Judge of the Court of Appeal of Kenya alleged that the defendant, The Standard Limited, had published a story titled, “UNFIT FOR JUSTICE” that he claimed had defamed him. The paper claimed public interest and fair comment. However, the plaintiff adduced evidence that he had asked for an opportunity to present his side but was denied. Court awarded him 26,000,000 based on malice on the defendants part.

26. …. • By clearing one of the major impediments to effective journalism - the threat of prison for journalists who expose corruption or criticise the government - it paved the way for a freer and stronger media. • This case was heavily relied on in Kenya in the petitions that abolished. • 1. Misuse of Licenced Telecommunication System (Section 29 of KICA). • 1. Criminal Defamation (Section 194 of Penal Code) • 2. Undermining Authority of Public officer (Section 132 of Penal Code

27. Geoffrey Andare vs Attorney General Geoffrey, though a post in a community Facebook group, accused Titus Kuria, a representative of a scholarship trust, of using his position of authority to sleep with young girls seeking scholarships. Kuria brought a criminal complaint against Andare under Section 29 of Kenya’s Information and Communication Act that broadly criminalizes indecent or false information. The High Court held that Section 29 was unconstitutional because it unjustifiably limited freedom of expression and because it was worded in vague terms.

28. Jaqueline Okuta & Jackson Njeru v AG Two Kenyan nationals were charged with criminal defamation for statements made on a Facebook page. They subsequently challenged the constitutionality of the offence, which carried the maximum penalty of two years’ imprisonment. In a ground-breaking ruling, the High Court of Kenya declared that section 194 was unconstitutional as it was a disproportionate limitation on the right to freedom of expression. The Court concluded that the invocation of criminal defamation for the purpose of protecting a personal reputation was “clearly excessive and patently disproportionate” and that there was an alternative civil remedy for defamation. SEE KURGAT MARINDANY CASE …..

29. Robert Alai v Attorney General Alai, a prominent blogger and political commentator was arrested and charged with undermining the authority of the President after he described the President as immature in a tweet. He criticised the president for what he said about the leader of opposition. The DPP used Section 132 of the Penal Code “undermining authority of public officer”…. does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer, is guilty of offense and is liable to imprisonment for a term not exceeding three years” The Court reasoned that the purpose for which the offense was adopted, namely to suppress dissent and protect the government at the height of a state emergency, was no longer valid; that the limitation on freedom of speech was neither sufficiently clear nor justified: and that public officers have to tolerate criticism in an open and democratic state.

30. 1. Allan Wadi – Undermining authority of public officer & Hate Speech – Facebook posts. Was arrested, charged and sentenced to 2 years after posting on his facebook material that targeted the Kikuyu community and specifically the President. He was arrested in Busia by the Military, produced in Court in Nairobi and sentenced immediately. LEGITIMATE AIM? Reputation, national security? His sentence was quashed because his plea was not properly considered. 2. Yassin Juma – Not charged, arrested for reporting on War on Al Shabaab and especially regarding the El Adde attack – He published a picture of a dead KDF member. Picked by 10 police officers. 3. Abraham Mutai– Undermining authority & Misuse of Licenced Telecommunications system. Arrested in Mombasa, driven to Nairobi. His blog and twitter handle discussed issues touching on corruption and poaching in Nakuru, Mandera, Mombasa and Isiolo counties. Also implicated 1st family in poaching…

31. 4. NANCY MBIDALA - Facebook • A 24-year old University Student, Nancy Mbindalah was in January this year arrested by Police in Embu County and held for allegedly abusing, spreading hate and inciting statements against the Embu Governor Martin Wambora on social media. • 5. ANNE WAIGURI – Website • CS Waiguru is seeking compensation for an alleged defamatory story that was published by a Kenyan website Daily Post regarding the President’s sacking of the former chairman of the Youth Development Fund, Gor Semelango. • Ms Waiguru had in a separate suit last year sued Google and its Kenyan subsidiary Google Kenya seeking to compel them to reveal owners of the Daily Post website. RIGHT TO PRIVACY? Can bloggers be anonymous? • She now wants the global search engine held liable for the article alongside Daily Post, which authored the allegedly defamatory story.

32. Prevention of Terrorism Act – Section 19 states that. “A person who, knowing or having reasonable cause to suspect that an officer is conducting an investigation under this Act— • (a) discloses to another person anything which is likely to prejudice the investigation; • or (b) interferes with material which is relevant to the investigation, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding twenty years.”

33. National Cohesion and Integrity Act… • Section 13 of the NCIC Act provides _ • (1) A person who— (a) uses threatening, abusive or insulting words or behaviour, or displays any written material; (b) publishes or distributes written material; (c) presents or directs the performance the public performance of display; (d) distributes, shows or plays, a recording of visual images; or (e) provides, produces or directs a programme, which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up. • (2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both. • WHAT IF WHAT IS BEING SAID IS TRUE?

34. Q&A