By Harriet Hagoi
In today’s rapidly evolving digital landscape, the tension between freedom of expression and the right to protect one’s reputation has never been more pronounced for journalists, media practitioners, and media enterprises. Kenyan law seeks to balance these competing rights as enshrined in the Constitution and the Defamation Act. Additionally, the Media Council Act, 2013, particularly the Code of Conduct for Media Practice (2025) in Schedule II, sets professional and ethical standards to reduce the risk of defamatory publication and promote accountability in journalism.
Defamation occurs when a publication harms a person’s reputation by exposing them to hatred, contempt, or ridicule. While defamation includes both slander (spoken) and libel (written/permanent), the digital age has blurred this distinction. Spoken statements are now routinely recorded and shared indefinitely, effectively functioning as libel. This article focuses on libel due to its permanence and high potential for republication.
Key elements of libel
To succeed in a libel claim, a claimant must prove the statement is defamatory, refers to them, and was published to a third party. A statement is defamatory if it lowers the claimant’s standing in the eyes of an ordinary, reasonable person. Meaning is derived not just from the text, but from headlines, captions, photographs, and the overall context. The Code mandates accuracy and verification to prevent such misleading presentations.
Identification and publication
A claimant need not be named to sue. Identification can occur through titles, offices, locations, or photographs. Journalists must consider whether an ordinary reader familiar with the context could reasonably identify the subject.
In the digital environment, “publication” includes website posts, social media uploads, and even resharing content. The repetition rule dictates that each reshared instance constitutes a new publication; thus, quoting or attributing an allegation to a third party does not grant immunity. Republishing claims from blogs or user comments still requires editorial verification under the Code.
Principal defences
Journalists and media enterprises may rely on several defences in appropriate cases. From a regulatory perspective, compliance with the Code is mandatory. Strong editorial processes reduce harm and position media practitioners to rely on lawful defences where disputes arise.
Under Section 14 of the Act, truth is an absolute defence. This aligns with the Code’s requirement for factual accuracy. However, practitioners should recognize that while truth may defeat a defamation claim, publication can raise other legal and ethical concerns, including privacy and dignity issues. For example, disclosing personal medical information may shift the question from falsity to whether the disclosure was lawful.
Honest opinion or fair comment applies under Section 15 of the Act if the statement is clearly an opinion based on facts and made without malice. The Code requires a clear distinction between commentary and factual reporting.
Qualified privilege protects fair and accurate reports of proceedings or matters where the law recognizes a duty to inform the public. However, this protection depends on fairness and accuracy, as significant inaccuracies can defeat the privilege. Certain occasions enjoy absolute privilege, granting total immunity for specific events, such as parliamentary proceedings. Even in such cases, professional standards under the Code require careful and accurate reporting.
The defence of innocent dissemination may protect those who circulate defamatory material without editorial control, such as newsstands. However, digital platforms must act promptly to address defamatory user-generated content once notified; failure to remove such content can create liability through continued publication or omission.
Corrections, apologies, damages
Although not a defence, a prompt correction, clarification, or apology may mitigate damages, as recognized under Section 16(1) of the Act. Courts assess awards based on the gravity of the allegation, the publication’s reach and impact, the claimant’s standing, and the presence of malice. Damages are compensatory, not punitive, and appellate oversight ensures proportionality.
Practical accountability and redress mechanisms
Given the speed and permanence of digital publication, understanding libel law is essential for responsible journalism that respects reputation while protecting freedom of expression. Defamation matters are handled through the courts, and claims may be brought where publication unlawfully injures reputation. Additionally, the Media Complaints Commission offers an accessible avenue for resolving complaints relating to professional standards, such as inaccuracies or unfair reporting, which may escalate into defamation disputes.
Harriette Hagoi works in the Regulatory Affairs Department of at Media Council of Kenya, and is an advocate of the High Court
