Defamation cases rising fast in the age of Internet

According to the case of Sim V Stretch, a statement is said to be defamatory if it tends to “lower the plaintiff (person suing) in the estimation of right-thinking members of society generally”.

With the advancement of technology and social media pervading our society, defamation in the Internet age has consequently become notorious.

Social media is a convenient platform for communication due to its accessibility and ability to reach large numbers instantaneously, and this probably explains the increasing number of defamation suits brought against social media users such as private persons, bloggers and media houses.

Other challenges that courts and plaintiffs have to grapple with include the fact that defamatory material on the Internet can be shared widely and they can also be stored or saved by persons who have had access to it. A remedy of deletion may thus not provide a permanent solution for the plaintiff since a person who has saved or even had a screenshot of the defamatory material can still access it.

Every individual has a reputation which can be defamed and one cannot thus be heard arguing that a person is not prominent or he or she is little known. The status of a person will only serve as a yardstick to determine the amount of damages (money paid to compensate a wrong) that will be paid to the plaintiff once his/her case has succeeded.

Some of the defences that a person taken to court for defamation can proffer include, truth, fair comment, reasonable publication and privilege.

In order for bloggers or any other social media user to protect himself or herself from the consequences of publishing defamatory material, it is prudent to ensure that you verify your information before posting or sharing as suggested in the case of Patrick Nyoike Vs People Ltd (2013) eKLR. The Constitution guarantees freedom of expression but there is also a corresponding duty to ensure duty of care on the dignity and reputation of others as was stated in Safaricom Limited vs Porting Access Kenya Ltd (2011) eKLR.

In the case of Arthur Papa Odera vs Peter O Ekisa (2016) eKLR the court awarded the plaintiff total damages of Sh. 5 million for defamatory statement published on Facebook.

It thus behooves every social media user to exercise caution before clicking the share button to avoid heavy penalties in terms of damages. Refusal to pull down defamatory material on being advised to do so by the aggrieved person will also increase the damages once the court finds that the material was defamatory.

As stated in this article, sharing a document/ statement that is defamatory will also attract liability even if the person sharing is not the author or originator of the document. In the case of CFC Stanbic Bank Limited v Consumer Federation of Kenya (COFEK). Being sued through its officials namely Stephen Mutoro and two others (2014) eKLR the defendants argument that they were not the author or originator of the defamatory material was dismissed and the court found COFEK liable for defamation by allowing the defamatory material to be published on their website, Facebook and twitter accounts even though they were not the authors or originators of the publication.

Until the High Court in the case of Jacqueline Okuta and Another vs Attorney General and two others (2017) eKLR ruled that section 194 of the Penal Code which provided for criminal defamation was unconstitutional, before then defamation not only attracted the dangers of damages and other civil remedies but it could also lead to a person being arraigned in a criminal court.