Have you ever heard the saying – “sticks and stones may break my bones, but words can never harm me”?

Sure, that’s all well and good on the playground, but in the “real world” – words can harm.

Saying something false about someone else with the intention of causing harm can result in grave consequences for the person “blabbering away”.

In legal lingo, this is called defamation.

Now here comes the tricky bit. You see, in Kenya we have what is known as “freedom of expression.” Which according to the Oxford Dictionary means –

“The power or right to express one’s opinions without censorship, restraint, or legal penalty.”

But does this mean that you can say whatever you want because the Bill of Rights affords you that freedom?

First – A look at what defamation entails.

The Kenyan Bill of Rights

Freedom of expression is contained in Article 33 of the Constitution–

33. (1) Every person has the right to freedom of expression, which includes—
34. freedom to seek, receive or impart information or ideas;
35. freedom of artistic creativity; and
36. academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

1. propaganda for war;
2. incitement to violence;
3. hate speech; or
4. advocacy of hatred that—
5. constitutes ethnic incitement, vilification of others or incitement to cause harm; or
6. is based on any ground of discrimination specified or contemplated in Article 27(4).

(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

BUT –

It is the limitation that is contained in Article 33(3) which we feel needs some repetition – because freedom of expression is not an unlimited freedom.

No person may use this right in a way that does not respect the rights and reputations of others.

And deciding on whether someone has suffered reputational harm, consists of a weighing up of rights. Specifically, the right to freedom of expression versus the right to human dignity (enshrined in Article 28 of the Constitution), and access to information (enshrined in Article 35 of the Constitution).

Now infringing on another person’s right to dignity (as enshrined in our Constitution) is exactly what our Bill of Rights, under Chapter Four of the Constitution, aims to prevent.

And this leads us to defamation.

Let’s be honest – we all kind of know what defamation means. At least we have heard about it in the news or in movies. Even online. We know that it’s a dreadful thing and that it can involve court judgements and damage claims.

But do we all know the real crux of what defamation entails?

What is defamation?

Defamation is broadly defined as a false statement that tarnishes, harms or damages a person’s reputation. Defamation falls under tort law and includes both libel (written statements) and slander (oral or spoken statements).

More specifically defamation means making a false statement that tends to harm a person’s reputation or lower them in the eyes of the right-thinking members of society, exposing them to public hatred, contempt or ridicule or causing them to be shunned or avoided.

The Meriam Webster dictionary defines defamation as –

“the act of communicating false statements about a person that injure the reputation of that person.”

Publication is an integral facet of defamation.

Publication is defined to include “all written and printed matter, and any record, tape, wire, perforated roll, cinematograph film or other contrivance by means of which any words or ideas may be mechanically or electrically produced, reproduced, represented or conveyed, and everything containing any visible representation, or by its form, shape or in any manner capable of producing, reproducing, representing or conveying words or ideas and every copy and reproduction of a publication” (section 3 of the Interpretation and General Provisions Act No 2).

Now, does the definition of publication above also mean that it applies to social media? Absolutely. The High Court found the defendant liable for defamation in Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR for false statements that were made and circulated on Facebook and a WhatsApp group.

How does one prove a case of defamation?

Defamation claims must be brought within 12 months of the date on which it is claimed that the libel or slander was committed.

To succeed with a claim of defamation, the following elements must be proven on a balance of probabilities –

1. that the statements complained of are defamatory in character. This means that it must be a false statement likely to harm a person’s reputation;
2. that the statements tend to harm their reputation, lower them in the eyes of right-thinking members of society, expose them to public hatred, contempt, or ridicule, or cause them to be shunned or avoided;
3. that the statements refer to them or that they could be identified from the statements in question;
4. that the statements are communicated or published to someone other than the person complaining/suing (i.e., made public); and
5. that the statements are made maliciously.[1][2]

Are there any defences to a claim of defamation?

Yes, there are several defences one can raise against a claim of defamation. The following defences may be raised-

1. Justification – This is the assertion that the words published are true in substance and in fact. Failure to justify the defamatory words will expose the defendant to aggravated damages. There is no need to justify each and every fact provided that the words that are not justified don’t injure the plaintiff’s reputation. The defence of justification calls for the defendant to demonstrate that the defamatory imputation is true. A defendant cannot get away with it by saying that he believed that the matter complained of was true. The burden is to prove the words are true.
2. Absolute privilege – The defence of absolute privilege applies to fair and accurate reports relating to proceedings of high public importance such as court and parliamentary proceedings. The court in Khasakhala v Aurah (1995-1998) 1EA 112 stated that, unlike qualified privilege which requires explanation, absolute privilege would be enjoyed by a defendant who has made a fair and accurate report in his newspaper provided that such a report does not contain blasphemous, seditious, or indecent matter.
3. Qualified privilege – qualified privilege applies to a far wider range of occasions and reports – where the defendant has a moral or social duty to make the statement and the recipient has an interest in receiving it. The statement must be fair and accurate. Any malice in the statement will defeat the defence. Key elements of this defence are:
4. the statement(s) in question must be a comment, not assertions of fact;
5. the statement(s) in question must be based on provable facts set out or referred to in the publication;
6. the statement(s) in question must be honestly believed.
7. Fair comment – The defence of fair comment entails comments on matters that are of public interest. The defence applies to comments and not statement of facts. The facts upon which the comments are based must be true or substantially true.
8. Constitutional defence – in addition to the above defences, the constitutional defence of freedom of expression is one that can also be relied upon. Article 33 of the Constitution says that every person has the right to freedom of expression, which includes the freedom to seek, receive or impart information or ideas. However, under Article 33(3), the Constitution says that “in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”.

What relief is granted to the person who suffers defamation?

The relief that can be granted includes an award of damages, injunctions, apology, or orders of retraction of defamatory statement(s) –

1. Injunction – An injunction is a judicial order that may compel someone to perform an action or restrain someone from performing an action. When publication of a defamatory statement is threatened, the person about to be defamed is not obliged to wait for the act to occur. The person/entity can apply to a Court for an injunction to prevent further publication and in some instances, for the publication to be pulled down.
2. Damages – if the defamatory statement has already been published and someone/an entity is successful in proving a defamation claim, they are entitled to an award of damages as compensation for the harm to their dignity and reputation. The award of damages in defamation cases is discretionary. The court may consider such factors as: the gravity of the defamatory statement; the social standing of the person whose reputation has been harmed, the medium in which it is published and the extent of circulation of the offending publication; any repetition; and the conduct of the defendant after publication and during trial, including whether there was an apology issued. While there is no maximum level of financial compensation, the award of huge sums of damages in defamation cases has been on the rise.
3. Retraction and/or apology – an apology given after the defendant received a complaint or during trial is a ground for mitigating the damages in a defamation case (section 16, Defamation Act). Where an apology is not given, the court may order the defendant to issue an apology, usually in equal measure to the size of the publication. A court may also order a retraction of the offending article, giving the same prominence as the defamatory article. In other instances, a court may grant damages in lieu of a retraction or apology, especially when considerable time has passed between publication and when the orders are issued.

Second – Defamation in light of technology

When it comes to social media, freedom of expression is taken to the next level. On every platform, be it Facebook, Instagram, X, Tik-Tok, LinkedIn or otherwise we are encouraged to express ourselves. We are encouraged to give our opinions – whether it’s to gain followers or just to be seen. Presidents take to the socials to express themselves – even President Biden took to X  when he stood down on the 21^st of July 2024.

But the problem with this seemingly “unlimited freedom” (which it – of course, isn’t) to express your every whim is the very real possibility that you may publish something that defames someone else. Should a third party decide to repost your tweet or post, they would, likewise, be re-publishing the defamatory statement and therefore also be liable should a defamation claim be lodged.

And this is where there is the difficulty weighing up the freedom of expression with the right to dignity. This weighing up of rights needs to be equitable to the extent that the limitation placed either on the freedom of expression or the right to dignity is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors including –

1. the nature of the right or fundamental freedom;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose (Article 24 of the Constitution).

The High Court of Kenya in Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR held as follows:

“128. One’s image and reputation is an integral and important part of the dignity of the individual as espoused in Article 10 of the National Values and Principles of Governance as well as Article 28 of the Constitution which provides that “every person has inherent dignity and the right to have that dignity respected and protected.”

129. The plaintiff’s inherent dignity is guaranteed by the Constitution at Article 28. That right must therefore be protected and respected by all and the defendant is no exception.”

The Republic of South Africa has a similar Bill of Rights as Kenya and Kenyan jurisprudence is persuaded by the decisions of the Courts in South Africa. The South African Supreme Court of Appeal matter National Media Limited and Others v Bogoshi weighed the two interests and held that “the reasonableness of the publication which should consider the nature, extent and tone of the allegations can be used as a ground to justify the statement. The Constitution is the highest law of the land in South Africa and entrenches key rights such as the right to dignity and the right to freedom of expression, which rights tend to clash within the context of defamation law. The law of defamation serves to protect genuine interests that people have in their reputation and the South African Constitution reinforces this protection in the form of the right to dignity. Despite the importance of the right to dignity and the right to freedom of expression, it is noteworthy that these rights are not absolute and can be limited in certain instances. Section 36 of the Constitution allows for a limitation of rights, more so in instances where it is reasonable and justifiable to do so. It also takes into account factors such as the nature and extent of the right, the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and the purpose, and whether there are less restrictive means of achieving the purpose. At the very heart of defamation law, lies the right to dignity and the right to freedom and in instances of an online defamatory statement, one would have to weigh up both of these rights to ensure that a just decision is made.”

Or the infamous matter of Penny Sparrow in South Africa –

“Former Durban realtor Penny Sparrow, whose unacceptable Facebook status likened Black beachgoers to “monkeys.” After the post went viral and there was widespread outrage in the country, The Umzinto Equality Court eventually fined Sparrow R150 000 for her racist comment. Sparrow’s remarks were classified as hate speech, which can be seen as any speech, gesture or conduct or writing that attacks a person or group on attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity.”

The balance here is crucial. So is the level of compensation that is being afforded to those claiming defamation. Too often there are reports of compensation windfalls from defamation law disputes.

The elements set out previously must be established to launch a claim of defamation. In addition, the defences we listed above may be used by the person who published the alleged defamatory statement. In other words, like with proving or defending ordinary slander or libel, a defamatory statement that is either published or re-published on social media will follow the same route.

It’s at this juncture that we urge you to be cautious of what opinions you post online. As Social Media Law Expert Emma Sadleir-Berkowitz of the Digital Law Company has cautioned many times before –

“If you wouldn’t put your comment on a giant billboard with your name, photograph, and your company or school, do not let it exist in social media at all.”

Referred to as the “The Billboard Test,” it should always remain strictly top of mind.

There is so much to consider and so much law – sometimes opposing – to keep in mind, that it can make your head spin. Do you have a claim for defamation? Do you have a defence for something you said? It all very much depends on the circumstances of each matter. Unfortunately, there is no outright yes or no answer to this question.

If you have any questions about the information we have set out above or need assistance with a legal matter that we have the experience and expertise to assist with, please don’t hesitate to contact us at TripleOKLaw.

(Sources used and to whom we give thanks – The Standard; The Star; Thomson Reuters Foundation; The Constitution of the Republic of Kenya and Kenya Law)      

[1] Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR

[2] John Ward V Standard Ltd , HCCC 1062 of 2005