DEFAMATION
Torts protecting the reputation
• Tort = State law, so differs state to state
• Based on common law, so very similar
– Slander – spoken
– Libel - written
– Directed at goods or services
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• Freedom of the press flows from freedom of
expression, which in Kenya is guaranteed by the
constitution.
• To ensure that it is exercised within reasonable
limits, the law provides special checks on
freedom of expression.
• The laws of defamation and protection of the
privacy of the individual exist to guard against
abuse of press freedom.
• Defamation is any allegation or imputation of a
fact which attacks the honor or the consideration
of the person or of the body to which the fact is
imputed.
• The law of defamation exists to protect
reputation.
• Kenya’s defamation laws derive from English
law in which every man is entitled to his good
name and to the esteem in by others which he is
held by others, and has a right to claim that his
reputation shall not be disparaged by defamatory
statements made about him to a third person or
persons without lawful justification or excuse.
• Publication of any matter that lowers one’s
estimation in the eyes of the public is a
defamatory statement. Defamation can also be
defined as the act of publishing that reduces or
casts aspersions on the character of a person and
the status that he or she enjoys in society.
• A defamatory statement is one which lowers a
person in the estimation of the right thinking
members of the society, or causes him to be
shunned or avoided or exposed to hatred,
contempt or ridicule, or to convey an imputation
on him injurious to him in his office, profession,
calling, trade or business.
• For there to be defamation four distinct
factors have to be present
Reference to a fact that should be
provable
an attack on honor
Regard to a person or body
Nothing in the attitude and behavior
of a person or group justify being
discredited this way.
Libel:
defamation by written words or by
communication in some tangible form. The elements of
a libel suit include
 Defamation: a statement is defamatory if it
injures a person’s reputation, lowering that
person in the estimation of the community or
deterring third persons from associating or doing
business with that person.
 Identification: the plaintiff must prove the
audience would associate him/her with the
defamatory statement. This requires proving that
readers, listeners or viewers would have
understood that the statement was about the
plaintiff.
 Publication: the statement should have
appeared on a newspaper or on a television
broadcast.
 Falsity: Proof that the statement about the
plaintiff is false
 injury: the defamation statement must have
injures the reputation of the plaintiff
 Fault; refers to the state of mind of the person
who uttered the allegedly defamatory
statement. did the publisher intentionally or
negligently say something false and
defamatory.
 Slander- Spoken
Two forms of defamation
1. Libel – permanent form-written
2. Slander – transitory form- spoken
Note the practical distinctions between
the two
Note also that there may be criminal libel
Other ways of protection the reputation
• Injurious falsehood
• Malicious prosecution
DEFAMATION CONSISTS OF:
“The publication of a false and defamatory
statement concerning another person
without lawful justification”
Traditional role of the courts
• Protection of individuals from the damage
that can be caused to the reputation by
untrue statements made about them
• Numerous complex defences have been
developed over the years
• Before the introduction of conditional fee
agreements only the very rich could afford
to bring libel claims
• The role of the judges in defamation cases is to
ensure that freedom of speech does not
outweigh the interests of the individual.
• Some would argue that the conflicting interests
involved cannot be balanced and that the role of
the courts should not be regarded as a
balancing exercise, as the interests are not of
equal weight.
More recent developments
Everyone has the right to freedom of
expression. This right shall include
freedom to hold opinions and to receive
and impart information and ideas without
interference by public authority and
regardless of frontiers.
What is publication?
• The statement must be published to a person
other than the claimant alone.
• It is not actionable in civil law to make a
defamatory statement to the claimant alone out
of ear-shot of a third person, nor to write a letter
to the claimant containing defamatory material.
• If the claimant shows a potentially defamatory
letter to someone else, there is a defence of
volenti as the claimant, not the defendant, has
published the statement.
Role of the jury
• To establish the standard of ‘right-thinking
members of society’
• To decide whether the claimant was
defamed
• In recent years, a much more limited role
in assessing damages
Words must refer to the claimant
• The claimant must have been identifiable
by the statement as an individual
• Note the possibility of a defence if the
claimant is named accidentally in a work of
fiction
Who is Liable for Defamation?
• In non-internet defamation cases the court
distinguishes among the following:
– Common Carriers
– Distributors
– Publishers of the defamatory material
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Common Carriers are not Liable
for Defamation
– Common Carriers, telephone and telegraph,
have been held to not have any control over
the content of the material and therefore are
not liable
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Distributors, vendors or bookstores
are not liable for defamation
• Smith v. California: proprietor of bookstore
not liable for obscenity because didn’t
know what was in the book
– Can’t be liable for obscenity unless the vendor
knows what the content is (not that it is
obscene)
– So can’t be liable for defamation if don’t know
what is in the book
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Publishers of books, newspaper,
television, radio can be liable
• If they exercised control over the content
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Are Online Service Providers
Common Carriers?
• Are they common carriers? distributors,
publishers?
• Lunney v. Prodigy: Prodigy was just a
conduit, not a publisher of profane and
threatening messages
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What is a Publication in the
Internet Environment?
• It’s in the Cards, Inc. v. Fuschetto: Question:
was a computer subscription service accessible
anytime by its users a periodical? and therefore
a publication?.
– Court said no because
• it did not appear on a regular basis, posting was random
communication
• analogous to posting a written notice on a public bulletin
board
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The law of Privacy
•The law recognizes four kinds of invasion of
privacy:
• Intrusion: A lawsuit for intrusion requires that
one person intentionally intrude on the solitude or
seclusion of another in a manner that would be
highly offensive to a reasonable person. Gathering
information about a person by examining public
records and interviewing friends, relatives,
enemies and associates is perfectly legal, even if
the subject of investigation objects. Nor are
reporters intruding on a person’s solitude or
seclusion by requesting interviews
 To commit intrusion, they would have to invade
some area of in which the person had a reasonable
expectation of privacy (a persons home, a hotel
room, a hospital room etc). News reporters may
not enter a person’s home or other private property
without permission. Doing so would be a clear
case of intrusion. It would be grounds for a
trespass action.
 It is possible to invade another person’s privacy
without physically entering that person’s property,
for example by using electronic eavesdropping
devices, tapping a telephone line, looking into a
bedroom window with binoculars or using a
powerful telephoto lens to take pictures of people
inside their homes.
 Giving publicity to private facts: everybody has
secrets and most people would be upset if their
secrets were made public. Lawsuits for publicity to
private facts are a way people can receive damages
when their secrets are revealed.
 False light: A false light suit requires that publicity
place a person in a false light and that the false light
be highly offensive to a reasonable person.
 Misappropriation: any person who uses the name
or likeness of another for his or her own use or
benefit may be sued for invasion of privacy by
misappropriation.