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Media has the right to be wrong, Parliament please tell the courts

By Kodi Barth

Shilling 22 million. That was the price a court in Homa Bay decided last week that the Star newspaper should pay for defamation.

It closed the case over a disputed 2018 story in which the Star had named businessman Ernest Owino and his company, Mbingo Enterprises, as among beneficiaries in the ongoing Sh2.5 billion graft case tied around Migori Governor Okoth Obado’s neck.

In his ruling, the judge noted that the Star had published an apology; hence, admitting liability. It is a ruling that may shake freedom of the Press in Kenya.

This is not the only eye-popping defamation award by the courts in recent years.

According to media reports, in 2018 the courts ordered Royal Media Services to pay politician Musikari Kombo Sh6 million over a story in which the broadcaster mistakenly said Kombo’s wife had been charged. A year earlier, the same Royal Media was ordered to pay an Eldoret family law firm Sh12 million over a 2010 story about a cemetery scandal.

In 2016 a court ordered the Nation Media Group to pay a judge Sh20 million because the Nation had questioned why the judge’s name was left out of the list of applicants to the Environmental and Land Court.

Earlier in 2005 the Nation was also ordered to pay former Cabinet Minister Joseph Kamotho and his sons Sh14 million over an unfavourable story on the broadcaster’s morning radio show. This followed another 2001 court order against the Nation to pay a lawyer Sh10.2 million for a picture caption that was ruled as defamatory.

No comment about the facts in these cases. But if a media house is indeed guilty of defamation, it is guilty.

With that out of the way, let us talk principles. What principles ought to guide a nation that cherishes both freedom of the Press and the rule of law?

We cherish a free Press because, to echo Thomas Jefferson, we’d rather have newspapers without government than a government without newspapers.

Why? Because if the state had its way, media would be gagged from covering governance. Public officials would do whatever they pleased, and citizens would be kept in the dark of government policies and resources management. Likewise, the rich and powerful would use the courts to muzzle media. It would be a fraud on the people.

The only thing standing between would be fraudulent governance and the people is a free Press.

Thing is, freedom requires room to err, occasionally.

Yes. All ethical, hard-working and honest journalists have the right to get the story wrong from time to time. And that’s Okay. A 1964 example involving the New York Times will illustrate why.

At a time when Martin Luther King was wreaking havoc with his civil rights movement in the United States, a government official sued that he had been defamed by a full-page advert published by the Times. The advert accused the police of mistreating non-violent protestors and harassing King.

What ensued was the famous New York Times Co. v. Sullivan case. First, the court noted that the advert actually carried some false claims. But rooting for the constitutionally protected freedom of the Press, the court considered, second, the principle that debate on public issues should be uninhibited, robust and wide open. Even if such debate is based on partially false premises and includes unpleasant attacks on government and public officials.

In Kenya’s recent defamation cases, particularly those involving public officials, the courts may have ruled that the bigger picture was national public debate on, say, graft in Migori. And that’s a debate that cannot be hindered.

Such a ruling would endorse our argument here, that it’s unrealistic to expect journalists to guarantee the truth of every factual assertion, because that would lead to damaging self-censorship.

But the right to get it wrong makes sense only if reporters who fumble on stories acknowledge the errors and their publications recall the pieces, such as the Star may have sought to do with its apology.

Should the courts punish a retraction and apology with a Sh22 million fine?

Corrections and retractions are centuries-old practice in a free Press. It’s how a responsible media house exercises accountability and self-censorship. Applied sporadically, this is an admirable tradition. It is a statement that journalists can’t be expected to get it right all the time.

It cannot be, therefore, that a retraction is interpreted by the courts as guilt in the same context and consequences it does in other civil litigation. If it is, Parliament should fix the law. Otherwise, every retraction would open the Press to a lawsuit.

Eliminate the right to occasionally get it wrong and there would be no newspapers, no broadcasts, and no websites.

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