Defamation: Why most of us don’t sue
Mutahi Ngunyi, a former Nation columnist and political analyst famed for his prediction of “tyranny of numbers” in the 2013 elections. He said he was going to sue the Sunday Standard for defaming him because the newspaper said he was one of the advisers who have been misleading President Uhuru Kenyatta. The merits of his case aside, I’m always amazed by the number of people who are defamed but don’t sue and those who threaten to sue but don’t. PHOTO/FILE.
What you need to know:
- Defamation is publication of false information that damages the reputation of another person.
- The law should be reformed so that everybody has an equal chance of redress for damage to their reputation.
Mutahi Ngunyi, a former Nation columnist and political analyst famed for his prediction of “tyranny of numbers” in last year’s elections, said on his Twitter account this week that he was going to sue the Sunday Standard for defaming him because the newspaper said he was one of the advisers who have been misleading President Uhuru Kenyatta.
“I am not and never was adviser to Uhuru,” he said in a tweet that went viral.
The merits of his case aside, I’m always amazed by the number of people who are defamed but don’t sue and those who threaten to sue but don’t. The law provides for damages — money — to soothe hurt feeling and loss of reputation.
Defamation is publication of false information that damages the reputation of another person.
It occurs every day.
And in clear cases of defamation the compensation is ready-made. Besides, while it’s true damages “are at large”, meaning the courts determine the amount they deem just, some defamations attract not less than a minimum fixed by law.
Section 16A of the Defamation Act provides that if you are accused of doing something that is punishable by death, such as murder, then the damages payable shall not be less than Sh1 million.
If you’re accused of an offence punishable by imprisonment of not less than three years, the damages shall not be less than Sh400,000.
Furthermore, for any defamation, the court may order exemplary or punitive damages on top.
Exemplary or punitive damages are given because the defamer has been particularly negligent, reckless or malicious.
In addition, the court may grant an injunction restraining the defamer from further publishing the defamation.
So why do most people not sue when the law provides such largesse?
Most people don’t sue because of ignorance of the law; they don’t know they can sue for damages.
Others don’t sue because of the uncertainty of a suit and the possibility of financial ruin if they don’t win as they would have to pay not only their own lawyer’s fees but also those of the person they sued.
Others don’t sue because of the high cost of hiring a lawyer, or the long wait, stress and anxiety before a case can be heard and determined (on average about two years).
Still others fear the publicity during the hearing of the suit in which all manner of allegations can be made in open court and that could further damage their reputation.
Others simply don’t sue because they think they’re nonentities, or they’re “defamation proof”, meaning their reputation is already so bad they can’t win.
All that leads me to conclude that the law of defamation works only for the well-to-do and those who have a reputation they can afford to guard. For the rest of us, Lord have mercy.
The law should be reformed so that everybody has an equal chance of redress for damage to their reputation.
