By Lolyne Ongeri

As a blogger, you are entitled to your own opinion. But sometimes, we get caught up in the wrong side of the law as we go about out blogging duties. Knowing about online media law is the best way to avoid being caught up between a rock and a hard place.

Unfortunately, most bloggers are either blogging for fun and have no clue about media law, or they are pro bloggers who haven’t taken time to learn about the legalese part of blogging.

Bloggers are publishers. Yes, it may sound weird but if you hit publish on that article, tweet or even comment on a blog, you are liable in a defamation claim and can sue or be sued. As online content creator, it is paramount to know understand defamation, what can be termed a defamatory and how you can defend yourself in a defamation claim.

Defamation is the communication of a false statement that harms the reputation of an individual person, businessproductgroupgovernmentreligion, or nation. Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel.

The constitution of Kenya article 33 affords every Kenyan the right to freedom of expression but in 33(3), the freedom of expression has a condition that requires every person to respect the rights and reputation of others.

While sometimes publishers have no idea that they have defamed, it is interesting to note that when you face a defamation suit, there are ways that you can defend yourself. They include,

Truth/justification

Justification has always been an absolute defense of a defamatory action. As a defendant, you must prove that whatever statements the plaintiff said and meant were  true.  Another important aspect of defamation is the difference between fact and opinion. Statements made as “facts” are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. The burden of proof rests solely upon the defendant. The information that causes the defamation, if damaging, will often be assumed to be untrue until the defendant proves otherwise.

Fair comment

Here, the defendant can be exonerated from a defamation claim if he/she can prove that the statements were an honest opinion. Statements of opinion or pure opinion are often not actionable in a court of law. It can be used as a defense to defamation claims if the defendant can show:

  • that the statement in question was an opinion
  • that within the statement there was an apparent basis to the opinion
  • the statement is one that an honest person could have held.

 Public interest

It is a defense to a defamation claim if the defendant can show that their comments were made regarding a matter which is of public interest, and that they reasonably believed that publishing the statement was in the public interest. This defense mostly applies to journalists and bloggers who comment or report on a situation that they deem necessary to inform the public. The action could be a necessity, either moral, legal or a social obligation to impart certain information to another who has an interest. As such, the main reason for imparting the information is to let the public form their own opinion.

Absolute privilege

In some situations, freedom of communication is so important that the participants are completely protected from being liable for defamation. This means no action for defamation can be brought, even if the person making the defamatory statement made it knowing it to be false, and made the statement with the intention to damage the affected person’s reputation. Absolute privilege also covers the broadcast of parliamentary proceedings, documents tabled in Parliament, and official reports of Parliamentary proceedings. Similarly, all statements made during court proceedings by Judges, Jurors, barristers, witnesses and parties are absolutely privileged.

Innocent dissemination

Innocent dissemination is a defense that can be invoked by those who are accused of libel through the publication of the written word or images. For this defense to be successful the defendant must prove that they had no knowledge that what they published was defamatory, had no reason to believe that the material would contain libel.