Many readers ask if a political cartoonist and the newspaper that publishes his work can be sued for defamation. The simple answer is yes.
Under Kenyan law, a cartoonist and his newspaper can be sued for defamation, just like a journalist and his newspaper. Many complainants, however, prefer to sue just the newspaper because collecting monetary awards from individual journalists or cartoonists can be challenging.
Incidentally, readers also ask if editorial cartoonists are also journalists. They are not, in the traditional sense, although they perform a similar role in journalism by providing commentary and analysis.
Like columnists, editorial cartoonists are opinion writers. But it’s possible for one to be both a cartoonist and a journalist. Thomas Nast, a famous cartoonist in the United States, was both.
You can sue a cartoonist and his newspaper if the cartoon contains false statements that injure your reputation or business.
The Defamation Act doesn’t define defamation. But the Penal Code does: Defamation is a statement likely to injure the reputation of a person by exposing him to hatred, contempt or ridicule or damage his profession or trade.
But the Defamation Act provides for five defences the accused can use to defeat a claim. One, and the most perfect defence, is justification—that the defamatory statement was true and made for the public benefit.
Two, and one of the most commonly used defences, the defamatory matter is fair comment, a fact-based opinion on a matter of public interest. Three, the matter was published without malice and gross negligence.
Four, the defamatory statement was not intentional and the newspaper made a genuine attempt to rectify the situation after publication.
Five, the matter was privileged, such as a judicial or parliamentary statement, or statement issued under a presidential or ministerial order or by a person legally bound or authorised to publish it.
Instances of defamation lawsuits against political cartoons are rare. In March 2011, William Kabogo Gitau, who later became the first governor of Kiambu, sued The Standard for publishing a cartoon linking him to drug trafficking.
He argued that the cartoon was defamatory and false and the cartoonist and the newspaper had no defence that could succeed. Justice Kalpana Rawal agreed with Mr Kabogo, observing that the defamation was likely to be repeated.
She granted him an injunction restraining the newspaper from publishing any derogatory words or cartoons related to his involvement in drug trafficking (Civil Case No. 74 of 2011).
In May 2018, Justice Joseph Sergon ordered The Standard to pay City Hopper Limited Sh8 million in damages for a series of cartoons that depicted the bus company negatively. City Hopper said the cartoons, titled “Shitty Hoppa”, “Chuki Hoppa” and “City Leper”, were intended to damage its reputation.
The cartoonist, Paul “Maddo” Kelemba, claimed the words used were only meant to provoke thought. But the judge ruled that the publication of the cartoons had damaged the company’s reputation (Civil Case No. 656 of 2007).
On November 23, 2007, Justice Hatari Waweru ordered The Standard to pay Major (Rtd) Marsden Madoka Sh1.5 million in damages for publishing a defamatory cartoon.
Madoka claimed the cartoon hurt his credit, character and reputation. He also argued that the words were motivated by malice and intended to disparage his role as an MP and cabinet minister (Civil Case 938 of 2002).
There is a mistaken belief that cartoonists cannot be sued because they are supposed to be funny and satirical and enjoy ‘poetic licence’. Poetic licence refers to the artistic freedom to bend or break certain rules of grammar, syntax or reality to achieve a particular effect or convey a specific emotional response.
This might involve exaggerating facial features, altering perspectives or using unconventional language or imagery to emphasise a point or create a visual metaphor.
However, poetic licence allows cartoonists to express their ideas and messages in a more robust, impactful and entertaining manner but it’s not a licence to defame.
- 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.
