On speech-limiting injunctions and the public right to know

If there is an order that is well-known to members of the public in Kenya, it is the court injunction. This is an order given by a court directed at a person to stop or refrain from doing a certain act whose continued performance has caused or could cause damage to another.

Indeed, it is not far-fetched to say that the prohibitory injunction is the remedy sought and issued in most cases in Kenya.

It can be used to stop an action such as eviction from premises by a landlord or stop the sale of a property by a bank.

Injunctions are the favourite orders that subjects of stories seek from court against the media. This injunction is the first order that is often sought from court by a person claiming to be aggrieved by or stands to suffer damage on account of a story that has been or is yet to be published by the media outlet.

STOP PUBLICATION

The intention of the persons and the effect for the injunction is to stop the publication of an intended story viewed by the subject of the story as a threat to his reputation. In the first instance, the order is often sought and often granted by the court on an urgent ex parte basis, that is, in the absence of the party against whom the order is to be sought.

If the order is given in such a case, the media house or the person to whom it is directed, finds himself with the obligation of obeying an order without having been heard to answer the claims of the complainant. This is why they are more popularly known as ‘gag orders’.

The editor who receives that order finds himself in the unenviable positon of having to stop the publication or broadcast of a story which has been the subject of public interest or has been investigated over a long period or is otherwise newsworthy at that moment.

News being a perishable good, sometimes the ex parte injunction brings about the conclusion of the case even if the injunction is ultimately challenged and reversed by the court at a subsequent court appearance.

LIMITS MEDIA FREEDOM

In other words, an injunction against the publication of a news story effectively limits media freedom by the restraint of the products of investigative journalism from being known. More importantly, the prohibition will hinder the constitutional right of the public to information.

In effect, therefore, the issuance of an order prohibiting publication of information by the media is a double strike in favour of an individual against the larger society.

It enhances the individual’s right to reputation against the freedom of the media to search for and disseminate information on behalf of the public.

It also constitutes a direct attack on the public’s right to information on a timely basis.   

This is even more important because the person who often seeks and get injunctions against media in Kenya are the odd triumvirate of seekers of appointment to public offices, whose intention is to ensure concealment of any prior misdeeds which may disqualify them from appointment or election to the offices they seek.

The other group consist of businessmen, government bureaucrats and politicians under investigation for illegalities which could result in their prosecution.

COMMON LAW

By allowing the injunctions to be used to prohibit dissemination of information to the public at large, the courts are at, least unwittingly, lending cover to the opacity in which corruption thrives by preventing the disclosure of the information available to the public as to the deeds and misdeeds of persons under scrutiny.

It is true that under Common Law, the courts do grant injunctions to protect reputations.

However, even in those countries, the injunctions do not enjoy the ubiquity that is prevalent in Kenya.

Secondly, I would argue that this blind adherence to Common Law by our courts fails to take cognizance of the fact that the right to a good reputation is just but an individual right which should not upend the larger right of the society.

DEFAMATION

I have argued many times in our courts, without much success, that an injunction in a claim for defamation against a media house in Kenya is unconstitutional because it elevates a right to reputation which is not constitutionally granted over the two constitutional rights of media freedom and the public’s right to information unearthed by the media. Most of the courts do not think so — to the detriment of the public.

Mr Owino is Head of Legal at Nation Media Group.