#TroubleOnTwitter

The age of the internet has expanded avenues for expressing our opinions and increased access to information. However, a lot of people tend to be reckless in their posts whilst hiding behind the anonymity of usernames and aliases. The Constitution of Kenya provides for the freedom of expression under Article 33 which includes freedom of artistic creativity, receiving and imparting information.

Nonetheless, this freedom is not absolute but limited if it involves hate speech, propaganda to war, incitement against violence, and advocating hatred. In addition to this, the freedom of expression should not infringe on other people’s right to a good reputation which is covered in the Penal Code under defamation.

Defamation can be defined as a false statement that is likely to injure the reputation of any person by exposing them to hatred, contempt or ridicule; or likely to damage any person in his profession or trade by an injury to his reputation. It can either be done by writing (libel) or spoken (slander).

“Glass, China and Reputation are easily cracked and never well mended”

~Benjamin Franklin

In the context of social media, libel is the publication of a false and malicious statement on a blog, or microblogging sites such as Twitter, Facebook, LinkedIn, and as recently determined WhatsApp.

It is worth noting that sharing an existing post or re-tweeting amounts to re-publication of a post and can also open up one to a charge of defamation. This was determined in the case between the CFC Stanbic vs the Consumer Federation Kenya where their defense was that they weren’t the original authors of the defamatory material, but the fact that they allowed it to be published on their website, Facebook and Twitter accounts made them liable for defamation. Hence before sharing or retweeting a post, it is prudent to verify the authenticity of the initial publication or post.

Australia has made the most radical rulings about defamation on social media especially Facebook. In one case, a lady was held liable for defamatory comments made on her Facebook page. She had made an initial defamatory post about her neighbor and her Facebook friends proceeded to comment on it further worsening the situation.

The court ruled that she was liable for not only her comments, but also the republication of the comments made on her page. She had 2000 followers on Facebook and her settings were set to public. The mere fact that she did not delete the original post and the subsequent comments she indirectly authorized the republication of the material and the court ordered her to pay $65,000 in damages. The courts also ruled that the owners of Facebook pages are liable for any materials and comments posted on their pages as the administrator of the page is considered a publisher. The mere fact that the case was determined in Australia does not preclude it from being applied in Kenya.

It is a common practice in law for Judges and Advocates to rely on cases from other jurisdictions. This was shown in the case of Arthur Papa Odera vs Peter O Ekisa where the defendant was ordered to pay Kshs 5,000,000 for making defamatory statements on Facebook.

Unlike Twitter and Facebook, WhatsApp has limited reach although the High Court in the UK made a determination of defamation on WhatsApp, the first of its kind.

In Kenya, the president passed a new law; the Cybercrimes and Computer Misuse Act which states that knowingly spreading false information electronically will attract a fine of up to Kshs. 5,000,000. So if you receive information about the death of a prominent person, a photo of a nude teenager, or an article about a politician, let the sum of the fine serve as a reminder not to.

We witnessed recently how an eight-word post by a man from rural Nyeri in Kenya; in regards to burning the White House, sparked concern all the way to the United States amidst the chaos because it was retweeted 8000 times. The poor fellow found himself the subject of inquiry of several security agencies in the United States and of course the subject of several memes.

The consequences of his actions may not have been dire; at least not to our knowledge, but the next time he might not be as lucky. He retracted his sentiments and issued an apology to the United States Government thereafter.

If you ever find yourself on the wrong side of a defamatory suit here are some defenses that you might use.

1. Justification is where you prove that the alleged defamatory statements are indeed true and it is an absolute defense; meaning the charges against you cannot stand.
2. Fair comment is where the defamatory statements were just but an honest opinion and show the basis of the opinion.
3. Public interest is another defense where you believed that the statements were made in the interest of the public, under a moral or social obligation to inform the public. This defense is used mostly by journalists and bloggers.
4. Absolute Privilege means that the person has the absolute right and freedom to make the statements even if they are defamatory; the person is immune to prosecution. This defense applies only to parliamentary proceedings, or documents and discussions in Parliament and statements made in court during proceedings by judges, advocates, or witnesses.
5. The final defense is innocent dissemination where the person proves that they had no prior knowledge or reason to believe that the information was defamatory. This defense rarely works because a general rule of law is ignorance is not a defense.