One cannot talk of freedom of speech when media is in chains

Is a person’s reputation more important than their limbs? When we compare personal injury cases and defamation cases, we find larger amounts of damages awarded in the latter. It is needful to ask whether society generally cares more about one’s abstract opinion of others than the safety of that person’s body.

English judge Lord Kenneth Diplock, faced with the same questions, said: “I am convinced that it is not just that … when a man’s reputation has been injured, the scale of values to be applied bears no relation whatever to the scale of values to be applied for physical injuries. I do not believe that the law today is more jealous of a man’s reputation than of his life or limb.”

In the Kenyan context, defamation suits stand as some of the most ‘profitable’ legal endeavours, especially when they involve media houses. The high amount of damages are unconstitutional when we analyse libel law in the light of the Constitution.

INCITEMENT

Article 33 of the Constitution provides that every person has the right to express themselves freely but they are precluded from spreading propaganda for war, incitement to violence, hate speech, ethnic incitement and discriminative speech. Furthermore, it declares that the exercise of free speech should respect the rights and reputation of others.

The protection of reputation under the article gives life to the Defamation Act. Ergo, where one man’s speech ends, another man’s reputation begins.

Nevertheless, the protection of reputation has limitations. A person’s reputation is not immune to expressing truthful content even if it injures one’s reputation. It is not protected against issue of fair comment where matters of public interest are involved.

Hence, Article 33 empowers the courts to award damages for injured reputations if the offending party does not have sufficient justification for their actions.

When it comes to media houses, it is important to judge the defamatory action in light of freedom of the press and not freedom of speech. Article 34 provides that media freedom does not extend to propaganda for war, incitement to violence, hate speech and vilification of others. Thus, the protection of reputation is a consideration within the context of free speech, not press freedom.

CRITICISM

This is not to say that the Constitution equips the media with a carte blanche to defame whomever it desires. Rather, it recognises that no one’s reputation is so enormous as to deprive society of its collective right to express criticism and to receive information.

Essentially, the award of large amounts of damages against media houses subtly promotes self-censorship. For instance, awarding, say, Sh8 million in a defamation suit would literally mean that the judicial system is placing a price on the right to give and receive criticism in the media. This means that smaller media houses which are not conglomerates with large pockets would be unable to comment on anything they fear to be defamatory.

Media houses must remain responsible for defamatory information but the courts should protect press freedom by giving moderate and lower amounts of damages.

Hence, the award of high damages dilutes the quality of democracy because a subtly priced press freedom violates Article 34 by penalising media houses for the dissemination of information. Information cannot be said to be free yet we place chains on the media. The State, through the courts, is going contrary to the purpose and object of Articles 34 and 35 of the Constitution.

RAMPANT DEFAMATION

Seemingly, this might foster a culture of rampant defamation from the media, as the naysayers have it. Nevertheless, the benefit of a free press that is not under the threat of large amounts of damages outweighs the risk posed by possible defamation.

The quality of democracy is not dependent on the intactness of people’s reputations but, rather, informed political debate and criticism of the authorities. Fame and popularity may reign supreme in freedom of speech when assessing the damages but should not be considered in defamation cases that involve the media.

The free dissemination of information directly contributes to the growth of good governance under the Constitution. As Justice William Brennan, an American judge, once said, “Order cannot be secured merely through fear of punishment for its infraction; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones”.

Mr Rosana is a legal intern at Nation Media Group. [email protected].

 -Mutuma Mathiu will be back next week.