Why police can tarnish your name and you cannot sue for defamation

In a recent case, a reader complained bitterly that the Nation had published negative stories about her based on police reports. She accused the newspaper of engaging in “a criminal enterprise” with the Department of Criminal Investigation (DCI) to damage her reputation and ruin her business.

She was particularly unhappy that the Nation published the information without contacting her for comment.

The woman was a licensed gun holder. The Nation published police and court reports that she had drawn a pistol and threatened to kill a man, stormed the office of a lawyer, and abducted a businessman. In a series of tweets, the DCI ordered her arrest, saying she was a “serial criminal”.

She was taken to court. But the charges were later dropped, presumably for lack of evidence. The woman will remain unnamed in this piece to avoid any prejudice. But she is one of many readers who have, over the years, complained that the media publishes information given to them by the police — information that often turns out to be unfounded but their reputations are ruined regardless.

Defamation

Some of the readers sue the media for defamation but to no avail. One of the most notorious cases is that of Stephen Thuo Muchina, a businessman and graduate in data processing and sales marketing.

He woke up one Saturday morning to find his picture in Taifa Leo and the Daily Nation. In a story based on a police report, the newspapers said he was a wanted criminal, one of the six “very dangerous criminals” who had been robbing banks across the country.

The newspaper said the gangsters were being hunted not only by the ordinary police but also by special units, including the much-feared Flying Squad.

Bank robbery

Mr Muchina feared for his life. After two anxious days, and in an apparent move to protect himself, he called People Against Torture and the media and then presented himself to the police. He was taken away and charged but not with the crime of bank robbery and then released after a few days.

He sued the Nation Media Group for defamation, claiming the publication of the police claims that he was a bank robber tarnished his reputation and ruined his business.

Even though he was acquitted, some members of the public still called the police whenever they saw him.

He was forced to close his cyber cafe business. He also got sick, suffered ulcers and depression and had to seek constant medical treatment. He was diagnosed with PTSD (post-traumatic stress disorder).

‘No sinister motive’

In its defence, NMG cited section 7 of the Defamation Act. The section states that newspapers enjoy “qualified privilege” if they publish information provided by the police so long as they do not do so with malice. The publication should also be a fair and accurate report of the information issued by a police department or gazetted police officer and the information should be “for the public benefit.”

NMG successfully argued in court that the information was published for public benefit. The court agreed, saying, it found “no sinister motive” on the part of NMG.

“It was an occasion when [NMG] had a moral duty to publish a matter of a public nature and of public interest and for public information,” declared Justice George Odunga in his judgment of July 23, 2012. He dismissed Mr Muchina’s case, saying, it did not disclose “any cause of action” and that it lacked merits. Moreover, he ordered him to pay the Nation for the costs of the suit!

The moral of the story, and many others that are similar, is that police can tell the media that you are a wanted criminal, and the media can report that, even using your picture. If you are eventually found to be innocent, too bad, your name will already have been tarnished. And the law does not allow you to sue and claim damages against the media, so long as they did it without malice and for the benefit of the public.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264.