Innocent photo juxtaposed with a smear story can lead to libel

The latest Saturday Nation carried a story on page 22 headlined, Signs you’re dating a dangerous criminal.

The story was illustrated with a picture of Joseph Irungu, the main suspect in the murder of Monica Kimani. The picture looked over the text and ran down the entire length of the half-page story.

Ernest Saina wrote to complain. He said: “Whereas the article is appropriate, using the suspect’s picture and name is in bad taste and, I believe, actionable. According to the law, Irungu is innocent until proved guilty but the article has judged and convicted him.”

The picture was in itself not defamatory. What Mr Saina was actually complaining about was the juxtaposition of the picture with the story about dating a dangerous criminal because that implied Mr Irungu is a dangerous criminal.

Juxtaposing an innocent picture with defamatory material can amount to defaming the person pictured.

This happens in newspaper as well as television stories. In the case of TV news, the visual and the audio are juxtaposed.

LAWSUIT

An example of juxtaposition may be a TV story about prostitution on, say, Koinange Street in Nairobi, in which a panoramic shot of the street catches the image of an innocent bystander. The inclusion of the image could infer she is a prostitute.

There have been a number of defamation cases arising from juxtaposition in newspaper stories. They include Mary M’Mukindia v Nation Media Group Limited.

In a judgment delivered on November 29, 2017, Justice Lucy Njuguna awarded Ms M’Mukindia, then a director of Kenya Revenue Authority (KRA), Sh1 million against NMG for publishing her picture in Sunday Nation and Business Daily stories that implied she was dishonest and corrupt.

The Business Daily of December 25, 2015, in particular, published Ms M’Mukindia’s photograph alongside texts and pictures of people who had been accused of corruption.

They included Ms Anne Waiguru, former Imperial Bank CEO Abdulmalek Janmohamed and then National Youth Service Director-General Nelson Githinji.

GRAFT

But the most dramatic case of juxtaposition defamation is Richard Otieno Kwach v Standard Limited & Another.

In a judgment delivered on October 16, 2007, Justice Alnashir Visram awarded the former Court of Appeal judge Sh5.5 million for the defamation.

The newspaper, then edited by Mr David Makali, had published a front-page story on October 19, 2003, which exposed the wrongdoings of alleged corrupt judges.

The story was based on the ‘Ringera Report’, which saw 23 judges suspended pending investigations.

Continued on pages two and three, the story narrated the various allegations against 15 unnamed judges. Page three also carried a picture of Mr Kwach with the caption, “LOUD SILENCE: Appeal Judge R.O. Kwach”.

SENSATIONAL

The judge sued for defamation. He argued that, by publishing his picture in combination with the story, the Standard portrayed him as a corrupt person not fit to be a judge.

The newspaper denied that the story referred to the judge. However, the court agreed with the judge that the story was understood by the public to refer to him.

Justice Visram said publishing Mr Kwach’s picture and the caption was sensational and a reasonable person reading the story would believe the allegations referred to him.

The Sunday Standard should have known, Justice Visram said, that the publication of the picture would tarnish the judge’s image.

In this case, picture-text juxtaposition satisfies the first essential requirement of defamation: The words complained of are “of and concerning” the former Court of Appeal Judge Richard Kwach.

Placing his picture next to the story connected him with the defamatory material.

Send your complaints to [email protected]. Call or text 0721 989 264