A landmark ruling in the Court of Appeal in New Zealand has for the first time recognised the existence of a new “public interest defence to defamation claims” arising from mass publications — which gives journalists more room to handle stories and extra immunity from possible suits.
Previously, the only recognised privileged information was what was contained in court and parliamentary proceedings and public interest was not taken as a defence to defamation.
Specialists in media law have lauded it as one of the "most significant decisions in defamation law for many, many decades".
The court held that the qualified privilege as previously recognised in the Lange V Atkinson, an established case law on qualified privilege and whose authority was previously cited in defamation cases in Kenya, has now been set aside.
“The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern,” the New Zealand court ruled in a case now referred as Durie Anor V Gardiner and Anor.
Building on new developments in the English and Canadian laws, the New Zealand court has concluded that time has come to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions.
“The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge,” a statement from the court on the landmark decision said.
This new defence “is available to all who publish material in any medium, and is not part of the rubric of qualified privilege”.
Kenya has, of late, been struggling to redefine the laws of defamation and extend the frontier of freedom of expression while also protecting the public interest and rights to reputation.
In 2017, Justice John Mativo declared criminal defamation offence as “unconstitutional (and) not reasonably justifiable in a democratic society.”
“Criminal sanctions on speech ought to be reserved for the most serious cases,” he said referring to propaganda for war; incitement to violence; hate speech; and advocacy of hatred, which are not protected.
The media in Kenya has often been forced to pay hefty fines as a result of libel suits filed by public officials following a trend set during the last days of Kanu rule when Cabinet minister Nicholas Biwott was awarded Ksh67.5 million ($675,000) from four cases he had sued a number of individuals and firms, among them a British pathologist, and two bookshops.
The High Court in 2016 awarded Justice Alnasir Visram Ksh26 million ($260,000) in a libel suit against The Standard newspaper.
News organisations have usually relied on a House of Lords ruling in the Reynolds case which had sought to protect “responsible journalism” against hefty libel fines, even if they cannot prove the truth of what they have published.
Before the Reynolds case in October 1999, newspapers in UK were being forced, even when they had carried accurate reports, to pay damages if they could not prove what was published was true.
The Reynold’s case gave newspapers some protection, especially in Europe, if they published information that the public was entitled to know, although it never protected malice.