Social Media and the Law of Defamation in Kenya: Some Lessons from South Africa
“In today’s world, the most effective, efficient and immediate way of conveying one’s ideas and thoughts is via the internet. At the same time the internet reaches out to millions of people instantaneously. The possibility of defamatory [facebook] postings on the internet would therefore pose a significant risk to the reputational integrity of individuals.” – Chetty J. at para 28.
This blogger has come across the recent judgment of M v. B  ZAKZPHC 49 in which M was seeking confirmation of an interim order that B remove all defamatory statements from her facebook page and refrain from in any way making, publishing and/or distributing defamatory statements about M. A copy of the judgment is available here.
Chetty J. sitting in the High Court confirmed the first part of the interim order relating to the removal of the offending statement but declined to confirm the second part of the order which refrained B from in any way making, publishing and/or distributing defamatory statements about M. However, the court ordered B to pay the legal costs of M’s Pietermaritzburg High Court application.
This blogpost discusses the court’s findings in this case and other similar cases relating to defamation via facebook. It is against this South African backdrop that we consider the on-going debate around the “Dead Beat Kenya” Facebook page in Kenya and the possible outcome of defamation suits filed against the administrator of the page.
In the present case, M and B are the parents of a 5-year-old daughter, born out of wedlock, who lives with the mother, B. However the father, M, a Durban businessman, has contact with his daughter every alternate weekend from Friday afternoon until Sunday afternoon. During one such weekend, M admitted that his daughter and him visited the house of a friend, and ended up staying over. During the course of the evening, other friends gathered at the house eventually resulting in M’s daughter sharing a bed with an adult female, who is a pre-primary school teacher, and someone known to M’s daughter as she had babysat her on previous occasions. M safely returned his daughter to B on Sunday.
In the week that followed, M claims that he received calls from several friends drawing his attention to a posting by B on Facebook, under the heading “DEBATE”. The posting reads as follows:
“DEBATE: your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s drunk, 50 yr old girl “friend” ends up sleeping with your daughter cause he doesn’t want his girl “friend” sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?”
At the time of the above post, B had 592 “Facebook friends” and a number of the respondent’s ‘friends’ responded to her posting and were critical of M’s behaviour. M also alleges that B further contributed towards the debate by making subsequent postings in reply on this posting.
M regarded these facebook posts as defamatory and detrimental to his business reputation and engaged attorneys, who wrote to B clarifying that during the weekend in which M had access to their daughter, at no time therein was their child placed in any danger, nor was her safety compromised in any way. M’s attorneys then called upon the B to remove the offending postings from her Facebook page by the close of business, failing which they threatened litigation.
B claims to have complied with the attorney’s notice however at the time when the application for urgent relief was launched, M contended that the “remnants” of that debate lingered on the respondent’s Facebook wall. In particular, B made several postings directed at her own brother SB who it would appear, did not take kindly to the insinuations of neglect aimed at M:
“This is my FB page which I can get opinions on matters close to my heart, if you don’t like it then go read someone else’s and defriend me!”
“I have Every right to know who ends up looking after / sleeping with my daughter. Completely different situation [SB] get real please. Looking after a child during school hours or afternoon is different to a night time, when alcohol and drugs are involved!!”
Given the reference to the use of drugs, M contended that he had a prima facie right to approach the Court to ensure that his reputation was not further harmed and that he should not be subjected to defamatory statements being posted by B. M considered the postings to be harmful to him as a father, but also that it could have a detrimental impact on his business reputation and character.
In confirming the first part of the interim orders in favour of M, the court found as follows:-
“Other than a denial that the postings were defamatory, the respondent does not make out any argument of the public interest in respect of the statements attributed to the applicant. I am satisfied that the applicant was entitled to approach the Court on an urgent basis at the time that he did.”
This judgment confirms an earlier South African case, H v. W, which dealt with defamation on facebook.
The second part of the interim orders in the present case was more contentious as M sought confirmation of an order against B from publishing or distributing any defamatory statements about M beyond the social network platforms to printed media or any other form of publication. In essence, M contended that the Court should have regard to B’s prior conduct, and in light thereof, this order was necessary in order to protect his reputation into the future. The court disagreed on three main grounds.
Firstly, the court was not convinced that the order sought could be likened to the protection orders provided under the South African Domestic Violence Act despite the domestic relationship between M and B. Secondly, the court rejected M’s argument that by granting the order, it would be an easier task for the applicant to approach the Court on the basis of contempt rather than having to traverse the entire background or history of his relationship with the respondent.
In this connection, the court agreed with B that there was no basis at common law for a Court to curtail B in respect of material which is not as yet known to the Court, nor has it been presented or published. As such, the Court is asked to speculate on what could constitute a defamatory statement, uttered or published by B against M. In the court’s view, even if the statement in the future by B is defamatory of M, it is equally so that not every defamatory statement is per se actionable in that B may have a good defence to its publication, such as legal duty, qualified privilege, fair comment on facts that are true and in matters of public interest as well as in circumstances where it is reasonably necessary for and relevant to the defence of one’s character or reputation.
Finally, the court rightly considered the right to freedom of expression enshrined in Section 16 of the South African Constitution, although the parties had not made any arguments based on section 16. In this regard, the court found that the order sought by M would be a drastic limitation and restraint on the B’s freedom of expression.
In the Kenyan context, media outlets have been abuzz with reports (see for instance here and here) about a facebook group called “Dead Beat Kenya” that names and shames absentee parents who fail to support their children. Jackson Njeru, the founder and the administrator of the page, claims that before he posts anything on the page he asks the person making the accusation to provide evidence such as a birth certificate or any communication between the two parties. He also calls the accused and gives them a chance to defend themselves.
In the regard, Njeru states:
“We call both parties. It’s a challenge to verify (…) But I remind people that they’ll be sued for defamation if they make false accusations.”
As we know, defamation is the act of harming the reputation of another by making a false statement to a third person. A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided. Therefore under Kenyan law, a plaintiff in a defamation case must prove that the words were spoken/written; that those words refer to him/her; that those words are false; that the words are defamatory or libellous and that he/she suffered injury as a result, that is, his/her reputation was injured as a result.
Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed, which could easily include the facebook posts made on the Dead Beat Kenya page.
The tort of defamation has specific defences available to a defendant. These include justification, truth, privilege and fair comment. The burden of proof shifts to a defendant to prove any of these defences in line with the phrase “he who alleges must prove”. The defendant must prove that the defamatory matter is substantially true for the defence of justification. For a defendant to rely on qualified privilege he/she must prove that the subject matter and its context was in advance of public interest or that the words were a fair comment on a matter.
From a constitutional perspective, it is clear that any law of defamation is a restriction on freedom of speech in the interest of other rights worthy of protection. Therefore, in cases of defamation, courts are called upon to strike a balance between the protection of the right to dignity, right to privacy and the right of freedom of expression.
We will wait to see how this “Dead Beat Kenya” case plays out in the weeks and months ahead.