Politicians need a thick skin like a rhino
What you need to know:
- Actual malice arises when one makes defamatory statements knowing they are false, or in reckless disregard of the truth, i.e. without exercising due diligence to establish the truth.
Politicians and public figures need to be as thick-skinned as a rhinoceros as they are not as protected from defamation as ordinary citizens. Thanks to the rule established in New York Times v Sullivan that is now gaining currency in our courts.
The rule says elected officials and other public figures cannot win a defamation claim in a matter of public interest unless there is actual malice. Actual malice arises when one makes defamatory statements knowing they are false, or in reckless disregard of the truth, i.e. without exercising due diligence to establish the truth.
This is a standard of proof that is higher than that required from private individuals, who only need to show the statements were defamatory. In the New York Times case, the US Supreme Court held in a landmark ruling that a newspaper is not liable if it publishes defamatory statements about the conduct of a public official provided the statements are made without actual malice.
The rule was expanded to include other public figures defamed in any media. The idea was to allow robust and uninhibited criticism of public figures including elected officials, public officials, and limited-purpose public figures who thrust themselves into public controversies.
The US is a common law country and its courts’ decisions have a persuasive, though not binding, influence on like cases in Kenya. The New York Times rule is now haunting our courts more than 50 years after the US Supreme Court made the decision on March 9, 1964.
A TARGET OF COMMENT
It has not always been that way. In Chirau Ali Makwere v Royal Media Services Ltd, the rule was found inapplicable. Mwakwere won the case and was awarded Sh3 million for injury to his reputation.
Mr Justice Phillip Ransley, in his judgment on May 10, 2005, told Royal Media Services they could not rely on the New York Times rule because it “does not bind the courts in this country”. However, he accepted that “a person in the public arena is a target of comment and can be criticised more openly than a private individual”.
Since then our courts have, in measured terms, adopted the rule. Mr Justice Jackton Ojwang set the trend in his judgment on October 3, 2008, in a similar case, Mwangi Kiunjuri v Wangethi Mwangi, Nation Media Group Limited & Royal Media Services Limited. He accepted the arguments by defence lawyer Dr Gibson Kamau Kuria, who relied on the ruling in the New York Times, which he said has also been followed by courts in Australia and India.
Mr Justice Ojwang, now a Supreme Court judge, said he could not “encourage an approach to the law of defamation, which unduly restricts the ventilation of ideas on public affairs”.
He thus opened the way for the New York Times rule to be applied in Kenyan defamation cases, with devastating results for public figures seeking redress for defamation.
