Can what you post on your Facebook wall or Tweet land you in jail?
The Facebook world was abuzz recently about a post questioning the morality of university female students.
This rubbed many the wrong way and the university students might become the first Kenyans to challenge negative statements posted online.
When the post hit the social networking sites, other users picked the baton from the original tweet and proceeded to make the situation worse, oblivious of the potential legion of defamatory suits they were exposing themselves to.
There is no doubt that a tweet can be defamatory. You can quite easily cause harm to a reputation in 140 characters.
More scary is that re-tweeting a defamatory tweet could also be defamatory.
Luckily as the Kenyan law stands currently, it is impossible for a group of people to sue for defamation en masse since the content must be directed towards a specific person.
Lawyers see the Internet as a fertile ground for potential suits, but say suing someone over defamatory statement on a social networking site becomes tricky because many users hide behind the anonymity of the web by using aliases and the fact that tracking the source of the information can sometimes prove difficult.
“Article 33 which accords citizens the right of expression does have limitations that if breached, could be used against you in a court of law,” Vincent Kimosop, executive director at Institute of Legislative Affairs, said.
However, Mr Kimosop said review of the communication and media laws will go a long way in erasing any doubts on online defamation.
Kenya has lagged behind in changing its laws in tandem with emerging trends unlike its peers in developed countries.
“The problem with Kenya’s legislation is that it does not always move in tandem with changing technologies and times. The admissibility of online evidence in a court of law could be challenged by some lawyers,” Mr Kimosop said.
“Revision of these laws would capture all the dynamics of admissibility regarding platform used in dissemination though it is still possible currently to prove breach of another persons rights,” he said.
Sekou Owino, a lawyer, says this particular piece of legislation can be the cause of litigation mayhem for many people who carelessly post hatred and defamatory content online.
“Kenya’s law of defamation is to the effect that it is the dissemination by one person of a statement that would injure or tarnish the reputation of another person. It does not matter the method of dissemination. This could be through a letter, spoken word, television or radio broadcast or even Internet posting if the statement,” Mr Owino said.
Article 33 states that every person has the right to free expression, including seeking and imparting information and ideas.
The law continues to say that this freedom does not extend to propaganda to war, incitement to violence, hate speech or advocacy to hatred.
Of special note is sub-article 3 that cautions that “in the exercise of the right to expression, every person shall respect the rights and reputation of others.”
In developed countries, errant social media users have found themselves charged for material posted online and even on personal blogs.
In America, musician Courtney Love wrote libellous information about fashion designer Dawn Simorangkir on MySpace and Twitter.
This case hit headlines for being the first libel case involving messages posted on Twitter.
This angry rambling cost the musician Sh34.4 million after determination of the case early last month.
In Kenya, most defamatory cases have involved more traditional forms of media, such as newspapers and television stations.
While cases have gone down in the last few years due to stricter editorial guidelines, analysts say rising awareness of citizen rights under the new Constitution may lead to more online -related cases in coming years.
In Kenya, defamation cases have cost personalities and organisations millions of shillings as well as the trouble of defending themselves in court.
This year, Water and Irrigation minister, Charity Ngilu won a defamation case against Radio Africa Limited.
Last year, a local newspaper was ordered to pay former Speaker of the National Assembly Francis ole Kaparo Sh7 million for publishing a story which the complainant said portrayed him as “corrupt and dishonest person and one not fit to hold his title.
Social media can be an effective and seemingly harmless avenue to vent frustrations, anger and even insults, but be warned, these could land you in trouble.